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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus. The parties, the city of Galena, Cherokee county, and the state highway commission, seek a declaratory judgment as to their respective obligations concerning the payment of warrants issued by Cherokee county for the improvement of a road or highway through the city, with appropriate orders relating thereto.
The facts are stipulated. The city of Galena is a city of the second class, situated in Cherokee county on the east borderline of the state.
On June 21,1921, the city of Galena, by its proper officials, acting, as it presumed, under authority of chapter 219 of the Laws of 1921 (R. S. 68-506), amending sections 15 and 54 of chapter 264 of the Laws of 1917, presented to the board of county commissioners of Cherokee county “a petition and application for road improvement.” This recited, among other things, that a part of the road and county highway was then being improved in Cherokee county whereon federal aid was being expended, which road terminates at the corporate limits of the city of Galena; that the road passes through the city to the state line, which is the corporate limits of the city, and that a concrete road and highway has been constructed by the authorities in the state of Missouri which terminates at the state line and corporate limits of the city and will connect up with the road prayed for and proposed and which will also connect up and be an extension of the public highway, now being improved, so as to make a continuous highway; that it will be a great public utility, and that the houses situated on the road proposed to be improved are, on the average, more than two hundred feet apart. The proposed highway, described in detail, began at the west limits of the city at the end of the improvement then being made by the county on a county highway, thence east to Main street, thence north on Main street to the northwest corner of block 5 of the original plat of Galena, thence along a regularly laid out road north about 860 feet, northeasterly about 4,565 feet and southeasterly about 2,087 feet to the point where it intersects with the improved concrete road constructed in Missouri. The petition prayed that the board of county commissioners declare the city of Galena to be “a road benefit district” for the purpose of improving such road; that the same be declared and designated as a part of the road system of Cherokee county; that its improvement be declared a public utility, and that necessary orders for such improvement be made; that the payments and the assessments therefor be made in ten annual assessments, and that the board of county commissioners take such steps as may be necessary to secure state or federal aid for the improvement. There was also passed by the proper officials of the city of Galena and filed with this petition a resolution by which the city agreed to maintain and keep in repair, at its own expense, the highway after the improvements prayed for were made.
On June 3, 1921, the petition and resolution of the city of Galena were presented to the county attorney of Cherokee county, who examined the same and reported to the board of county commissioners that he found all of the proceedings to have been conducted in accordance with chapter 265 of the Laws of 1917 and amendments thereto and other laws of the state, and that the petition and other proceedings were sufficient in form to justify the improvements prayed for and the issue of the bonds proposed. On the same date the board of county commissioners, having considered the petition and application and resolution of the city of Galena, found that the improvements as prayed for are a public utility; that the petition is presented by the city council of Galena, that it designates the road to be improved sufficiently by name and terminal points, that it definitely describes the land within the proposed benefit district, also the type of improvement, the width of the roadway, the number of annual assessments, and in all respects to be in compliance with the provisions of chapter 265 of the Laws of 1917 and amendments thereto, and it was resolved that the road described in the petition be improved as prayed for; that the county engineer make a survey of the proposed road, with profile and maps and an estimated cost of the improvement; that the board of county commissioners cause the expense for the improvement of the road to be met from time to time with warrants, and after the completion of the improvements the cost be apportioned as follows: “(a) If any portion of the cost of said improvements is provided for by the receipt of federal aid or donations from other sources, the same shall be applied to the cost of the improvements to the extent for which the same are given.” (6) That the remaining cost be apportioned to the county and city, fifty per cent to each. This resolution was published for three weeks beginning July 9, 1921.
On July 15 the board of county commissioners presented to the state highway commission an application for federal aid, in which it was stated that the improvements would be carried out under the direction of the state highway commission, as required by the federal act, “subject to the inspection and approval of the secretary of agriculture and in accordance with the provisions of the federal-aid road act, chapter 264 of the Session Laws of 1917, amendments thereto, and the rules and regulations adopted by the secretary of agriculture.”
On July 30,1921, the board of county commissioners, having duly published their former resolution more than ten days previous, took up the petition for final consideration and again made all the findings contained in the resolution of June 3 and ordered the road to be improved as prayed for, and to meet the expense from time to time by warrants from a special fund created for that purpose, and after the completion of the improvements to apportion the costs and to issue bonds as provided by section 9 of chapter 265 of the Laws of 1917 and amendments thereto, in payment of the outstanding warrants; that in addition thereto the county would construct necessary bridges the cost of which shall exceed $2,000 or that have a span of twenty feet or more.
On August 24, 1921, the final resolution of the board of county commissioners was passed in accordance with a decision of the state highway commission recommending federal aid to an amount not exceeding fifty per cent of the entire cost and not to exceed $15,000 per mile.
On August 25, 1921, the final resolution of the state highway commission for the improvement of the road as a federal-aid road was adopted.
We may say here that the cost of improving any part of the proposed road from the west line of the city to Main street, and on Main street, is not involved in the controversy in this case. Main street, being paved at the time these resolutions were adopted, was not to be improved, and whether that part of the proposed road west of Main street was improved does not appear from the proceedings before us.
About June 28, 1922, the board of county commissioners passed a resolution altering the route of the proposed road from Main street to the east line of the city, where it connected with the concrete highway established in Missouri. This alteration became necessary to avoid dangerous railroad crossings, the federal govern ment having made it a- condition to the furnishing of federal aid. A new survey, with plats, etc., was ordered.
Nothing further appears to have been done in the matter until after the 1925 session of the legislature. On April 21, 1925, the city adopted a resolution reciting the previous history of the matter and the enactment of chapter 211 of the Laws of 1925, and stating its willingness to conform thereto, and by which the city agreed to change the route of the highway as required by the federal authorities, “and does hereby agree to acquire, establish, lay out and provide for a street, roadway, or thoroughfare over and along the route designated or approved by the federal-aid bureau.” The resolution directed the city engineer forthwith to make surveys, with reports, plats, maps, plans and specifications and estimates as may be required, and the city attorney was required forthwith to take the legal steps for obtaining a right of way for the purpose of opening, establishing and extending the streets over and along the route to be followed by such highway. The city agreed to join with the board of county commissioners for the construction of the remaining portion of the highway in accordance with the provisions of chapter 211 of the Laws of 1925.
On April 25, 1925, a committee representing the city of Galena presented to the board of county commissioners a contract with the St. Louis-San Francisco Railway Company, the Missouri, Kansas & Texas Railway Company, and the Joplin-Galena good-roads association, and also presented the last-mentioned resolution to the city, with the request that the board of county commissioners adopt a resolution whereby the board, in conjunction with the city, should complete the improvement on the highway; but the board, after a hearing, deferred determination of the matter. On September 14, 1925, the board of county commissioners accepted the proposal of the Joplin-Galena good-roads committee and the St. Louis-San Francisco Railway Company and agreed to go ahead with the work. 'Among the agreements so filed with the board of county commissioners was that of the Joplin good-roads committee by which the committee agreed to pay to the county “$5,000 to assist the county in paying their share of the costs of the whole project as provided by law and described in the petition and shown by plans prepared by the county.” On the same day there was signed a “memorandum agreement” between the city and county by which the city agreed to the change in the route of the highway and agreed to ac quire, establish, lay out and provide for a street, roadway, or thoroughfare over and along the route designated- by the federal-aid bureau, and that the city would furnish the right of way and fill up any caves or undermined ground beneath the proposed route and make it safe for the laying of the concrete slab, if the county would consider going ahead with the work.
Pursuant to the memorandum agreement the city acquired the right of way and made it safe for the laying -of a concrete slab. Plans and specifications and estimates were presented to and approved by the state highway commission, which presented them to the federal bureau of public roads, which approved them on April 6, 1926.
On April 12,1926, the board of county commissioners directed the clerk to advertise for bids. The requisite notice was published and the contract was let about June 4. The board of county commissioners adopted an appropriate resolution for the financing of the project, which was completed about December 16, 1928. Distribution of the costs of the project was not made until in November, 1930, at which time the board of county commissioners apportioned the costs. It seems to be conceded that this apportionment was inaccurate, because the cost of constructing,a viaduct was mingled with that of the construction of the highway, and perhaps for other reasons. For our present purposes it is sufficient to say that the total cost of the improvement (exclusive of the right of way, which the city procured) was $74,064.65. Federal aid was received and applied in the sum of $19,256.63. This left $54,808.02 to be paid for by the county and the city, which, on the fifty per cent basis, would require each to pay $27,404.01. The Joplin-Galena good-roads committee paid $5,000 to the board of county commissioners, which it applied on its share of the expense, which left unpaid $22,-404.01. It then issued its bonds in the sum of $21,200, leaving warrants unpaid in the amount of $1,204.01. In 1927 the city of Galena levied a tax upon the taxable property of the city to pay upon this project. These taxes, amounting to $3,711.87, were collected by the county, and so far retained by it.
The relator and the state highway commission contend that under chapter 211, Laws of 1925, it was and is the duty of the city of Galena to bear its portion of the cost of constructing the highway as provided in the resolutions and agreements hereinbefore mentioned, the same to be collected by a tax levied upon the' taxable property within the city, the mayor and council being authorized, should they deem it necessary, to issue bonds of the city to pay the cost thereof; that not having collected such costs by a levy of a tax the city was obligated to issue its bonds bearing interest at not to exceed six per cent, payable in ten annual installments, as provided by chapter 211 of the Laws of 1925; that such bonds not having been issued, a peremptory writ of mandamus should now be issued requiring the issuance of such bonds.
The relator and the board of county commissioners of Cherokee county contend that under chapter 225 of the Laws of 1929 it is the legal, duty of the state highway commission to utilize certain of its funds to pay the principal sum of outstanding warrants issued by the county for the improvement of the highway, but the state highway commission contends it has no duty to perform in connection with the payment for the particular project.
The relator and the city of Galena contend that under chapter 225 of the Laws of 1929, as amended by chapter 247 of the Laws of 1931, it is the legal duty of the state highway commission to apply certain of its funds to the payment of installments, including principal and interest, of the tax assessed on the property in the city of Galena, claiming that the projects constituted a benefit district, as referred to in these statutes; that reimbursement should be made of the benefit-district tax paid to the taxpayers who paid the installment; that the state highway commission must pay to the county of Cherokee the portion of costs chargeable to the lands and improvements in the city of Galena, including interest, on the theory that the city constitutes a benefit district as defined by these statutes. The state highway commission denies that the city constitutes or is a benefit district referred to in these statutes, denies it has any legal duty or authority to make such disbursement or to pay any bonds that may have been issued, or to pay any installments of principal or interest due or to become due, on any bonds issued by the city of Galena or the county of Cherokee.
The principal question for our determination in this proceeding is whether it is the duty, as contended for by the city of Galena and Cherokee county, of the state highway commission under existing statutes to pay the costs, or any part thereof, of the construction of the improvement made. If that question should be determined in the affirmative, then there are subsidiary questions as to how those payments should be handled. If the question should be an swered in the negative, there are questions as between the city of Galena and the county of Cherokee to be determined.
In determining the principal question to be decided it will be necessary to examine certain of our statutes, with amendments thereto, respecting the construction of improved roads and highways. We may begin with the legislative session of 1917, when two statutes were enacted (Laws of 1917, ch. 264 and ch. 265) bearing on the matter, since both of these chapters, and later ones amending them, are referred to in the proceedings had for the construction of the improvement in question. Chapter 264 revised or repealed many previously existing statutes of the state relating to roads and highways, and in addition thereto gave the consent of the legislature to the provisions and requirements of an act of congress, approved July 11, 1916, entitled, “An Act to provide that the United States shall aid the states in the construction of rural post roads, and for other purposes,” to be administered under the secretary of agriculture. It created a state highway commission and authorized it t<? enter into contracts and agreements and to cooperate with the secretary of agriculture, and to receive and distribute federal aid for the construction or improvement of highways within the state. Section 15 of the act provided that the county engineers and boards of county commissioners should classify and designate the roads in their respective counties according to their relative importance as “county roads” and “township roads.” It contained the provision that when a main-traveled highway is located partly within and partly without a city and connects a county road with the city, by the consent of the mayor and council or city commissioners the board of county commissioners might designate such highway as a part of the county road system and improve and maintain it as such, but that the city might aid in such construction and maintenance. By section 54 it was provided that the act should not apply to the construction and maintenance of streets and highways within the corporate limits of cities, but should apply to all other roads and highways in the state. These sections (Laws of 1917, ch. 264, §§ 15, 54) were specifically amended by chapter 219 of the Laws of 1921. The amendment to section 15 added to the section originally enacted the following:
“Provided, however, That when a road is being or has been improved by the county where state or federal aid has been extended in the improvement of such road, and such road terminates at the city limits, and where such road has been constructed with federal aid, which terminates at the state line and the state line is the corporate limits of a city, the state highway commission is hereby authorized and empowered to extend federal aid and the board of county commissioners on application of the city council or commissioners shall declare such street or streets as form a connection between said roads a benefit district and extend state aid on that part of the road lying within the city limits, in the same way and in the same manner as they extended aid in the improvement of the road outside of the city limits: Provided, however, Aid shall not be applied on roads within the city limits only as far as the houses are located more than 200 feet apart on the average and the improvement of such road is the extension of a highway that is being improved or has been improved in the county, outside of the city limits: And provided further, That the state highway commission is hereby authorized and empowered to cooperate and deal with the city council, commissioners or other interested parties that provide funds to take care of the local part of the cost of the improvement of the highway lying within the city limits, and such improvement shall be under the supervision and direction of the state highway commission, as provided for in the improvement of other roads of like nature in the county.”
This section, as amended, became section 68-506 of the Revised Statutes of Kansas for 1923. Section 54 was amended so as to read:
“That the provisions of this act shall not apply to the construction and maintenance of streets and highways within the corporate limits of cities, but shall apply to all other roads and highways in this state, except as provided in section 1 of this act.” (R. S. 68-547.)
The steps taken prior to 1925 by the city of Galena and Cherokee county for the improvement in question were taken under this statute and chapter 265 of the Laws of 1917, which will be later discussed.
The legislature in 1925 passed an act (Laws 1925, ch. 211) amending and supplementing section 15 of chapter 264 of the Laws of 1917, as amended by section 1 of chapter 219 of the Laws of 1921, the first section of which reenacts the former statute, with some verbal changes not affecting its meaning. By section 2 the governing body of the city declared a benefit district, under the provisions of the act, was authorized to bear its proportion of the cost of constructing the highway, the same to be collected by taxes levied upon all the taxable property within the city, and when deemed necessary the mayor and council were authorized to issue bonds of the city to pay the cost thereof and to levy taxes upon the taxable property of the city for the purpose of meeting the interest and principal on the bonds. By section 3 it is provided that where a city had previously begun proceedings by resolution, ordinance, or otherwise, under chapter 264 of the Laws of 1917, as amended by chapter 219 of the Laws of 1921, and a resolution had been adopted by the county commissioners declaring the city a benefit district and the road through the city to be a public utility, the proceedings should not7 by the passage of the act, be invalidated or set aside, but the actions taken shall be and axe ratified, confirmed and made valid, and it was made the duty of the board of county commissioners, in conjunction with the governing body of the city, subject to the approval of the state highway commission, to proceed with the work; and if it became necessary to leave the route proposed in order to eliminate steam or electric grade crossings or other dangerous places to conform to the requirements of the department of agriculture or federal public-aid bureau to obtain federal aid, such route might be changed, and the right of way for that purpose, if it could not be obtained by donation or purchase, the city was authorized to acquire by condemnation proceedings. By section 4 it was provided that upon the completion of these improvements the county commissioners should apportion the costs by first applying federal or state aid or donations received, and the remainder of the cost should be apportioned fifty per cent each to the county and the city; the bonds issued or taxes levied to be in addition to all other issues authorized by law. The roads, after they were completed, were to be kept in repair by the city.
Since chapter 265 of the Laws of 1917 is frequently referred to in the proceedings for the making of the improvements, the costs of which are in controversy here, it will be necessary to consider that act. It amended several sections of the General Statutes of 1915, originally enacted in 1909 (Laws 1909, ch. 201), some of which were amended in 1911 (Laws 1911, ch. 249). Generally speaking, it is a statute providing for the improvement of country roads by the “benefit-district plan,” by which the improvements were initiated by a petition addressed to the board of county commissioners, signed by the requisite number of the property owners within a designated district, stating the name of the road, or part thereof, which was to be improved, the points between which the improvements were to be made, the kind of improvements, and the number of annual assessments for the payment thereof, and providing a procedure before the county commissioners for the making of the improvement and assessing the costs thereof. This statute was amended by chapter 246 of the Laws of 1919, and some sections later amended by chapter 218 of the Laws of 1921, and became R. S. 68-701 et seq.
The action taken by the city and county in 1921 and early in 1922 was under the authority of chapter 219 of the Laws of 1921, which amended sections 15 and 54 of chapter 264 of the Laws of 1917. Because these statutes were deficient in matters of procedure the parties had looked to chapter 265 of the Laws of 1917, which related to the improvement of country roads under the benefit-district plan, without having any specific authority to do so. Obviously these statutes were inadequate to carry out the work contemplated. The proceedings lay dormant until the enactment of chapter 211 of the Laws of 1925. This, as we have seen, specifically amended chapter 219 of the Laws of 1921, which, in turn, had specifically amended sections 15 and 54 of chapter 264 of the Laws of 1917. It did not purport to amend chapter 265 of the Laws of 1917 relating to the improvement of country roads by the benefit-district plan. This chapter, 211 of the Laws of 1925, while general in its terms, was so worded that perhaps it could apply only to the city of Galena and Cherokee county. At any rate, we are informed that no other city has attempted to act under it. The subsequent proceedings were wholly under that statute. New contracts and agreements were entered into between the city and the county, providing, among other changes, a new method of apportioning between them the expense of the project. These related only to improvement of that part of the project from Main street to the east line of the city, and the route of that was changed from the original plan. Those portions of the original plan beginning at the west line of the city, thence east to Main street, thence north on Main street, were abandoned. The new project required the laying out and locating of a street, which the city agreed to do, and did do, by the exercise of the ordinary powers of cities in laying out new streets, including the power of eminent domain. The improvement from Main street to the east line of the city was designated as a specific project and divided into sections. It called for the construction of a viaduct, a part of the expense of which was borne by the railroad, and it called for the construction of a bridge, the expense of which was borne by the county. The parties were able to get federal aid, for the act of congress of June 11, 1916, which authorized the United States to aid the states in the construction of rural post roads, defined “rural post roads” to mean any public road over which the United States mails are or may be transported, excluding streets and roads in a place having a population of 2,500 or more, “except that portion of any such street or road along which the houses average more than two hundred feet apart.” (39 U. S. Stat. p. 356.)
Let us now examine the statutes creating the state highway commission and defining its powers and duties as they relate to the question before us. The state highway commission was created by chapter 264 of the Laws of 1917, and was given general supervision over the construction, improvement and maintenance of highways under the road and bridge laws of the state. Highways were classified as county roads and township roads, and, generally speaking, the expense of their construction and maintenance was borne by the county or township, respectively. The statute heretofore noted for the improvement of highways under the benefit-district plan remained in force. The statute creating the state highway commission was amended in 1919 (Laws 1919, ch. 245) and again in 1921 (Laws 1921, ch. 217). This last-mentioned statute created what was called a “state-aid road fund in each county with a part of the moneys received for motor-vehicle registration fees and motor-vehicle-fuel tax. It provided (sec. 8) for reimbursement of the cost of the construction of roads under the benefit-district plan. This statute was amended in 1923 (Laws 1923, ch. 175), and under it the highways continued to be classed as county roads and township roads. In 1925 the legislature passed an act (Laws 1925, ch. 214) providing for the “construction, reconstruction and maintenance of a system of state highways.” Section 2 of the act reads:
“That the state highway commission, in conjunction with the boards of county commissioners, shall designate in every county in the state certain highways, the total mileage of which shall not exceed 8,690 miles, and the total mileage of which in each county shall not be less thap the sum of the north to south and the east to west diameters of the counties and which shall connect the county seats and principal cities and market centers. Which highways shall constitute the state highway system. Said state highway system shall include all roads heretofore approved by the state highway department and the federal government under the federal highway act. The system of roads thus designated shall be constructed, reconstructed, improved and maintained by the boards of county commissioners of the several counties subject to the supervision of the state highway commission from funds hereinafter provided.”
The funds used were derived from the tax on motor-vehicle fuel and motor-vehicle registration fees. The work on the road was done under contracts let by the county, approved by the state highway commission, and a provision was made for the reimbursement for roads constructed under the benefit-district plan. This act was amended by chapter 255 of the Laws of 1927, in many respects, but carrying out the same general plan.
At the general election in 1928 a constitutional amendment was adopted (art. 11, § 8) which authorized the state to “adopt, construct, reconstruct and maintain a state system of highways . . .” This was the first time the state had full authority under the constitution to construct and maintain a state highway system.
The next session of the legislature passed an act (Laws 1929, ch. 225) to carry out that constitutional provision. By this act, generally speaking, the state took over the work of constructing, improving and maintaining the state highway system formerly done by the county under the supervision of the state highway commission. Funds for that purpose were provided. Section 3 of the act reads:
“That the state highway commission shall designate, adopt and establish and may lay out, open, relocate, alter, vacate, redesignate and reestablish highways in every county in the state, the total mileage of which shall not exceed 8,690 miles, and the total mileage of which in each county shall not be less than the sum of the north to south and east to west diameters of the county, and which shall connect the county seats and principal cities and market centers which highways and all bridges and culverts thereon shall comprise the state highway system: Provided, That the highways heretofore designated as state highways shall be a part of the state highway system and no substantial change therein shall be made except when the public safety shall require such substantial change. Highways designated under this act shall be state highways, and all other highways shall be either county roads or township roads as provided for elsewhere in the Kansas statutes. The state highway system thus designated shall be constructed, improved, reconstructed and maintained by the state highway commission from funds hereinafter and otherwise by law provided. In addition to the designation of highways as herein provided, the state highway commission shall designate in those cities on the state highway system certain streets as connecting links in such system.”
With respect to reimbursement of the cost of roads built under the benefit-district plan, section 17 (3) provides that certain of its funds
“. . . be used by the state highway commission in the county to which it is apportioned as follows: First, where roads on the state highway system have been built under the benefit-district plan to payment and reimbursement of benefit-district assessments as provided in section 18 of this act; and for the payment of the principal sum of outstanding warrants issued by any county for the construction, improvement or reconstruction of the state highway system; . . .”
Section 18 of the act provides in detail how the reimbursement should be made, and this section was amended by chapter 247 of the Laws of 1931. ' The city of Galena and the county of Cherokee contend that the statutes last referred to (Laws 1929, ch. 225 and Laws 1931, ch. 247) make it the duty of the state highway commission to reimburse them for the cost of the improvement1 in question, while the state highway commission contends these statutes do not have that effect. Our statutes and decisions have at all times made a distinction between streets in incorporated cities and roads or highways in the country with respect to their construction or improvement. (State, ex rel., v. State Highway Comm., 136 Kan. 652,17 P. 2d 839.) A consideration of the provisions of chapter 225 of the Laws of 1929 makes it clear that the act applies to highways outside of incorporated cities. The “state highway system” which the state highway commission by the act was authorized to designate and establish is one “which shall connect the county seats and principal cities and market centers.” It applies to roads or highways between cities — not within them. It recognized the distinction of city streets by providing (last sentence, sec. 3), “In addition to the designation of highways as herein provided, the state highway commission shall designate in those cities on the state highway system certain streets as connecting links in such systems,” and by section 17, (4) it is provided that the state highway commission shall apportion to the cities $250 per mile for maintenance of streets designated as connecting links, or in lieu thereof maintain such streets in cities of the third class. It is clear that our highway system, authorized'by our present constitution, constructed and maintained by the state through its state highway commission, has to do only with highways outside of the corporate limits of cities, except as to certain city streets used as connecting links, and perhaps some other specific instances specially provided for.
It is clear, also, that the provisions of sections 17 and 18 (Laws 1929, ch. 225), above referred to, for the reimbursement of benefit-district assessments for highway improvements under the benefit-district plan, referred to those improvements made under the general law for the improvement of country roads by the benefit-district plan provided for in chapter 265 of the Laws of 1917, with amendments thereto, which were incorporated in our Revised Statutes of 1923 as sections 68-701 to 68-709, for in the earlier part of section 17 it is provided that the funds received by the-various counties from the salé of benefit-district bonds issued under R. S. 68-701 to 68-709 should be transferred from the county treasurer to the state treasurer, and by him placed in the state highway fund; and further provided that the county in which benefit districts had been organized under R. S. 68-701 to 68-709 should not be relieved from the duty and liability to issue and sell bonds under those statutes. In other words, the state highway commission was required to complete any unfinished improvement made in the roads or highways under the benefit-district plan, but it was to have the money or bonds-with which to make such improvement. No such transfer of bonds was made with reference to the work done under chapter 211 of the' Laws of 1925, as the work in question here was done. We conclude the state highway commission has no obligation or duty to' perform with respect to the payment of the improvements in question.
' As between the city of Galena and the county of Cherokee there is a controversy as to how the $5,000 donated by the Joplin good-roads committee should be applied — whether to the cost of the construction of the improvement as a whole, or alone to the county’s share of such cost. The statute under which the improvement was made (Laws 1925, ch. 211) provides for the apportionment of the cost as follows:
(a) “If all or any portion of said improvement is entitled to and does receive federal or state aid or donations, the same shall be applied to the cost of the improvement for the purpose and to the extent for which the same was given. (b) The remainder of the cost shall be apportioned, fifty per cent to the county and fifty per cent to the city. . . .” (§ 4.)
By the resolution passed after this statute took effect the city agreed to join with the county in constructing the improvement in question, “and to bear its proportion of expense . . . as is provided for” by this statute. This was presented to the county commissioners in April, but consideration of it was continued from time to time until September 14, 1925, at which time the board of county commissioners accepted the proposal of the Joplin good-roads committee and the St. Louis-San Francisco Railway Company and resolved to proceed to sign the contract with the city. The agreement with the Joplin good-roads committee recited the interest of that committee in the federal-aid project No. 96, located in the city of Galena, being the project the cost of which is in question, and by it the committee agreed, among other things, “to pay to the county of Cherokee $5,000 to assist the county in paying their share of the costs of the whole project, as provided by law and described in the petition and shown by plans prepared by the county.” The county commissioners entered this agreement and the acceptance thereof on its journal and received the money. There is no agreement on behalf of the city that this money should be applied upon the county’s share alone, nor is it clear from the offer and acceptance that it was so intended. As between the city and the county, the county was to finance the project and issue warrants for the payment of the work and apportion the same after the work was completed. The donation was to apply upon “their share of the cost of the whole project, as provided by law.” It will be noted that the plural pronoun is used, and the cost of the whole project was within the contempla-, tion of the parties, as well as the provisions of the statute which, as we have heretofore seen, provide that donations as well as federal or state aid shall be applied to the cost of the improvement and the remainder apportioned, one-half to the county and one-half to the city. We conclude that this donation should have been applied upon the entire cost before a division of the remaining cost was made between the city and the county. ,
For the purpose of illustrating our views on the apportionment between the city and the county we shall use the figures heretofore set out, although we understand they are subject to correction, and interest computations may need to be taken into account. The total cost of the project was $74,064..65. Federal aid received and applied was $19,256.63, leaving a balance of $54,808.02. From this should be deducted the $5,000 donated by the Joplin good-roads committee, leaving $49,808.02. The city and the county each was obligated to pay one-half of that. The city’s share was $24,904.01. Gn this the city should have credit from the county for $3,711.87 taxes levied by the city and collected and retained by the county, leaving a balance due from the city of $21,192.14. The city should pay this sum, and if it does not have the money to do so it should issue its bonds for that purpose, as provided by statute (Laws 1925, ch. 211). The county should pay the rest of it. It has heretofore issued bonds for a part of the amount and should issue bonds for the balance if it does not have money with which to pay it.
We understand the parties desire, principally, an adjudication of their respective duties and liabilities, and these have been determined. The writ of mandamus will issue only on the praecipe of the plaintiff.
Writ allowed as to the county and city and denied as to the state highway commission. | [
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The opinion qf the court was delivered by
Thiele, J.:
This was an action brought by the receiver of a failed state bank to recover a stockholder’s statutory liability.
Among other allegations the petition filed February 5, 1931, charged that 120 shares of the capital stock of the Lebanon State Bank stood in the name of the estate of I. J. Finch, deceased, and that the same were held, possessed and voted by the defendant Herbert I. Finch, as owner; that the estate of I. J. Finch was administered in the state of Missouri, and that no property remains in said estate, “all of his property, including the aforesaid stock . . . having passed to and now being held by his heirs at law, and said stock being held by the defendant as heir at law of said I. J. Finch, deceased”; that the defendant is liable to the plaintiff in a sum equal to the par value, or $12,000, and has failed to pay the same; that defendant is the owner of real estate hereinafter referred to, and had on deposit in said bank $6,443.65; that plaintiff claims and has a lien upon said property of said defendant superior and prior and entitled to be preferred to all liens, etc., which may have attached subsequent to June 10, 1930, the date of closing of said bank; and setting up a copy of the notice of lien filed June 13, 1930, in the Smith county register of deeds’ office. Judgment for $12,000 and foreclosure of the lien was sought. At the time of filing the petition, an affidavit for service by publication was likewise filed, setting up the nonresidence of the defendant Herbert I. Finch. On April 6, 1931, an amended petition was filed, making Sylvia T. Finch a defendant and alleging that Herbert I. Finch was a director, of the failed bank and acquired title to the real estate in dispute in a foreclosure action brought by the bank against one Amis in the district court of the United States for Kansas, and with funds of the bank, and for its convenience, and in equity was and is the trustee of the title to said real estate for the use and benefit of said bank; that in acquiring the title he used some of his own funds and is entitled to some right' in the real estate to indemnify himself; that in January of 1930, while said bank was in a failing condition and known by him to be so, he wrongfully attempted to transfer title to his wife, Sylvia T. Finch, in violation of his trust obligation, for the purpose of hindering and delaying his creditors, including said bank and its receiver and creditors, and that the transfer is and was without consideration; that Sylvia T. Finch’s interest, the exact nature of which is unknown to plaintiff, is junior and inferior to plaintiff’s right; that she should be required to answer, disclosing her claims, or be barred from judgment. The defendant Herbert I. Finch made a special appearance for the purpose of quashing service, his motion was overruled, and he appears no further in said action. On July 15, 1931, Sylvia T. Finch filed her verified answer, admitting the incorporation of the plaintiff, the residence of the parties plaintiff and. defendant, the closing of the bank, and the appointment of the receiver; that I. J. Finch died possessed of shares of stock as alleged, and that she received a deed for the real estate involved in January of 1930, and denying other allegations. Answering further, she alleged matters with reference to the estate of I. J. Finch; that neither of the defendants owmed said stock and had no liability, statutory or otherwise, and that they were not proper parties defendant. She alleged further:
“For further answer to the petition of the plaintiff this defendant says that the real estate involved in this action, located in Smith county, Kansas, and described in the amended petition of the plaintiff, was at the time of the institution of this action, has ever since been and still is, the absolute property of this defendant, the same being her sole and separate property; that the same was purchased and paid for wholly with the money of this defendant; that Herbert I. Finch never had the ownership thereof or the control of the same, and that although the same was at one time in the name of Herbert I. Finch by virtue of deed it was the understanding of the parties that the same was purchased with the money of this defendant and belonged to her and by deed of date February 15, 1929, and recorded in the office of the register of deeds of Smith county, Kansas, oni January 29, 1930, and appearing of record in book 42 at page 130 in the records of said office, the title of record was by Herbert I. Finch transferred to this defendant, she being at all times the owner of the equitable title thereto.
“For further answer to the petition of the plaintiff this defendant says that the above-described real estate is not subject to the payment of the debts of Herbert I. Finch, he having no interest therein, and while it was in his name as of record it was only for the convenience of the parties, both parties understanding and agreeing that the actual title to said real estate belonged to this defendant.”
She prayed that the claim of the plaintiff be held for naught and that she be decreed to be the owner in fee simple of the property involved. To this answer plaintiff filed a reply (1) denying allegations of new matter; (2) alleging that Sylvia T. Finch and her husband are estopped to deny that he was the owner of the shares of stock; and (3) that Herbert I. Finch held title to the lands involved in trust for the plaintiff, which fact was at all times known to the defendant Sylvia T. Finch, who has no right, etc., therein. Defendant Sylvia T. Finch filed a motion to strike out the allegations of number (3) of the reply as setting up a new and separate cause of action, which motion was overruled.
In so far as the real estate involved is concerned, plaintiff started out on the assumption that Herbert I. Finch owned the same, then filed its amended petition that Finch held title as trustee for the bank, and then, by reply, alleged that he held title to the land as trustee for the bank, which fact was known to Sylvia T. Finch, who had no right, etc., therein; and after defendant rested her case plaintiff obtained permission to amend to conform to proof, and alleged that Herbert I. Finch, under an alleged contract of January, 1929, claimed to be the owner.
During the course of the trial contention was made that the issues were being enlarged and testimony offered was being improperly admitted; that a departure was made between pleadings and proof, and that the court erred in permitting amendments after proof, etc., but, in view of our conclusion, the error, if any, was immaterial. Perhaps due to this contention, the court made forty-seven findings of fact, many of which were not material and some of which pertain to matters of evidence rather than to ultimate facts. The original conclusions of law were later modified and now are as follows:
“1. That defendant, Herbert I. Finch, is the beneficial owner of forty shares of stock in the Lebanon State Bank appearing on the stock book of said bank as owned by the estate of I. J. Finch. . . .
“2. That the deposit in controversy of $6,443.45 in the Lebanon State Bank is the property of Herbert I. Finch and subject in this action to appropriation for the liability of said Finch as a shareholder in said bank, to the extent, of said liability.
“3. (Eliminated by the lower court.)
“4. That the contract between Herbert I. Finch and the Lebanon State Bank with reference to the Amis land and the deed made in the foreclosure proceedings in the United States district court to the Lebanon State Bank for said land are each valid as far as the issues submitted by the parties to this case are concerned.
“5. That the deed purporting to be executed by Herbert I. Finch to Sylvia T. Finch to the Amis land is void by reason of the fact that said deed was never delivered by the grantor to the grantee, and the deed is void as far as conveying legal title to the land mentioned in the said deed by reason of the fact that the grantor at said time had no legal title thereto.
“6. That the plaintiff is entitled to judgment against the $6,443.45 on deposit in the Lebanon State Bank in the name of Herbert I. Finch for $4,000, with interest at six per cent from the 5th day of February, 1931, and the costs of this action.”
The court rendered judgment consistent with conclusion No. 6, and further that the defendant Sylvia T. Finch be barred from any interest in the real, estate involved.
The defendant Sylvia T. Finch appeals. No notice of appeal was served upon her .codefendant, Herbert I. Finch. The plaintiff served notice of crossappeal upon the appellant, but served no notice or appeal in so- far as the defendant Herbert I. Finch is concerned. In this situation Herbert I. Finch is not an adverse party to Sylvia T. Finch. (R. S. 60-3306; Peoples State Bank v. Hoisington Mercantile Ass’n, 118 Kan. 61, syl. ¶ 3, 234 Pac. 71.) The bank’s cross appeal and notice (R. S. 60-3314) was to the appellant Sylvia T. Finch and not to the defendant Herbert I. Finch; and the bank, not having appealed against Herbert I. Finch, cannot now question the correctness of the judgment with respect to Herbert I. Finch’s liability. The matters which can be examined are therefore those existing between the bank and Sylvia T. Finch. The defendant Sylvia T. Finch did not in any manner allege any claim of ownership of the moneys on deposit, and while under appropriate pleadings and proof she might have been declared the owner thereof, the issue was not presented to the lower court and cannot be urged here. However, an examination of the record shows the court’s finding of fact No. 8 to the effect that Herbert I. Finch is the owner of 40 shares of stock, and his conclusion of law No. 2, apparently based on findings of fact No. 13 and No. 44, and the judgment against the deposit of Herbert I. Finch for $4,000 and interest, to _ be satisfied out of said deposit, are supported by the evidence, even though there was evidence from which a different conclusion might have been reached. Findings of fact based on conflicting evidence are conclusive on appeal — a rule too well known to require citation of authorities.
The correctness of the court’s ruling with respect to the real estate involved depends on the findings of fact and the conclusions of law to be drawn therefrom. The findings are too voluminous to set out verbatim but are summarized as follows:
In January, 1919, the defendant Herbert I. Finch transferred to his wife, the defendant Sylvia T. Finch, real-estate mortgages which had prior to that time been handled by the Lebanon State Bank for him. This transfer was a gift and without a money consideration, the original gift approximating $58,000. Later in the same year about $4,500 of mortgages was added to the gift. After this transfer, in so far as the Lebanon State Bank is concerned, there was no change, and interest from the mortgages and payments thereon were credited to a checking account of Herbert I. Finch in said bank or remitted direct to him. The income from the transferred property was reported by her in a separate income-tax return pre pared by her husband and signed by her. The court specifically found that the transfer was a valid executed gift. Prior to October, 1924, the bank had loaned to William B. Amis in excess of $20,000, which was secured by a second mortgage on the southeast quarter of section 21 and the southwest quarter of section 22, township 4, range 11, excepting a cemetery tract, in Smith county. Amis also had other land, but it is not involved so far as Finch is concerned. On October 11, 1924, the holder of the first mortgage obtained a judgment in the United States district court for Kansas foreclosing its mortgage. Prior to sale by a special master, arrangements had been made with Herbert I. Finch to purchase the rights of the first mortgagee, which he did in November, 1924, for $17,700. At the sale he purchased the lands for a total consideration of $22,304.18, of which amount $17,700 was supplied from the account in the Lebanon State Bank, and the further sum of $1,037.94 was supplied by Finch. The arrangement for Finch so to act was made with the bank to help the bank realize on its loan. The court specifically found that the $17,700 paid by Herbert I. Finch to procure assignment of the first-mortgage claims against the Amis lands was mostly from proceeds of mortgages that Finch had given his wife. On August 15, 1927, a written agreement was made between the Lebanon State Bank and Herbert I. Finch in reference to the above land and foreclosure, which recited the proceedings, the judgments rendered, the issuance of certificates of purchase to Finch, and the rights of the Lebanon State Bank under R. S. 60-3440 and R. S. 9-151, and that the bank was desirous of exercising its rights thereunder, that all of the sums of money due the bank from Amis and merged in judgment were wholly unpaid, and that said bank might have the right to obtain said real estate from Herbert I. Finch by paying him the amount due and paid by him as provided by R. S. 60-3446, and reciting further that the redemption by the bank was for the purpose of protecting its interest, and that the considerations for the assignment of the certificate by Finch had not been paid to him by the bank, in consideration of which the bank obligated itself that promptly on the sale of the Amis land or any part thereof, or in event of redemption by the defendant owners, it would cause to be paid to Herbert I. Finch the sums due him by reason of his purchase of the Amis lands at the foreclosure sale, to wit, $17,700 and $1,037.94 and interest, and that if said lands were not sold by the bank within the limit of five years, that the land should be conveyed by the bank to Herbert I. Finch, his heirs, devisees or assigns. At the same time the contract was entered into Finch filed his receipt with the clerk of the United States district court stating that the amount due him had been paid by the Lebanon State Bank, and on the same day he made an assignment of his certificates of purchase to the bank. Later, the special master conveyed the land to the bank. The court specifically found that the execution of the above contract, the assignment of the certificate of purchase to the bank, with the collateral papers, were all executed at the same time as a part of the same transaction, the execution of the assignment and receipt depending upon the execution of the contract. Under date of January 25, 1929, Herbert I. Finch procured from the bank a deed to the above described land, which was duly acknowledged by the president of said bank. The deed was not authorized by the directors, except Finch and two others. The deed was prepared and delivered at the request of Finch, who told the president not to await the action of the board as to the execution of the deed. The deed was made a matter of record February 9,1929. Herbert I. Finch executed a quitclaim deed for the above land to Sylvia T. Finch, his wife, reciting a consideration of one dollar and other valuable considerations. The deed was dated February 15, 1929, acknowledged January 27, 1930, and recorded January 29, 1930. The recording fee was paid by Finch and thereafter he continued to manage the land, collect the rents and pay the taxes. The court further found “there is no evidence that Sylvia T. Finch made the claim that she owned said land until after the filing of this suit, and the court finds that said deed was not delivered to her and accepted by her.” As to this quoted finding, more will be said later. The court further found that in handling the Amis land, as between Herbert I. Finch and Sylvia T. Finch, he was her agent, that the business and property of Sylvia T. Finch was at all times accounted for by Herbert Finch in a book kept for that purpose. The court further found that in January of 1919 the Lebanon State Bank was solvent; and that at the time of the execution of the deed from the bank to Finch the bank was insolvent. There are many other findings of fact, a recital of which is not necessary to a decision in this case.
In the briefs a great deal of space is devoted to whether the transaction between the bank and Herbert I. Finch following the foreclosure proceedings was a conditional sale, resulted in an equitable lien in favor of Finch and against the bank and other kindred matters, and whether the bank had made an election of remedies, but in our view of the matter a discussion thereof, while it might be interesting, is not necessary to a conclusion as to the rights of the parties. In view of the finding that Herbert I. Finch acted as the agent of Sylvia T. Finch in these transactions, unless otherwise indicated, they will be referred to simply as Finch.
Prior to the foreclosure proceedings the bank’s interest in the real estate was that of a second mortgagee, and its rights subsequent thereto are fixed by the contract of August 15, 1927. The lower court, in adjudging that Sylvia T. Finch had no interest in the real estate, evidently concluded that if the deed from the bank to Finch was unauthorized, and the deed from Finch to his wife was undelivered, she obtained no title, but such a conclusion about the two deeds, even if it were correct, is not decisive of the matter, for Finch’s interest is determined by the contract and the other documents executed as a part of the same transaction. After the foreclosure proceedings were had Finch was the owner of the certificate of purchase and would in time be reimbursed for the amounts expended by him, either by redemption or by acquisition of the real estate. In this situation, and for the expressly stated purpose of permitting the bank to protect itself as a junior lienholder, the contract was entered into whereby he transferred his interest in the certificate of purchase to the bank on its express agreement that “following the sale of said lands or any sufficient part or portion thereof or the redemption by the defendant owners or their successors in interest, it will pay or cause to be paid to party of the second part” (Finch) the amount which he advanced, plus interest, and in the event of no redemption and no sale within five years to convey “all of the right, title and interest it shall acquire under the deed of the special master in chancery and without further encumbrance” to Finch., It is immaterial whether the bank as a junior lienholder could or could not have forced the judgment debtors to pay its claim, for no redemption was attempted. No reason appears from the contract and contemporaneous documents, nor from anything which appears of record, nor from anything said in the briefs, why this contract should not be enforced according to its terms. It is argued, in support of the lower court’s judgment, that under the contract Finch had a claim against the bank or its receiver, and that the claim not having been filed within one year from the date of appointment of the receiver, is barred. The difficulty with this argument is that while under R. S. 1931 Supp. 9-130, it is provided that “all claims of depositors and other creditors must be filed with the receiver within one year after the date of his appointment, and if not so filed, such claims shall be barred from participation in the estate of such bank,” the bank’s right and interest in this real estate is strictly limited by the contract and contemporaneous documents. It did not own the entire tract free and clear, but it had only such interest as was evidenced by the commissioner’s deed, the contract and other contemporaneous documents, and its estate will not be diminished in any particular if Finch’s rights under the contract are protected. Neither under this contract can it be said that Finch is a creditor of the bank any more than it can be said that the bank is trustee for Finch. Finch’s rights in the real estate are just as firmly established as are those of the bank. In this view of the matter, it is immaterial whether the Finch right now belongs to Herbert I. Finch or Sylvia T. Finch. Regardless of what theory is taken, the record shows without dispute that when the contract was made Herbert I. Finch had rights and interest in the real estate, the amended petition conceding that he has rights therein. The record also shows without dispute that Herbert I. Finch was acting for his wife, Sylvia T. Finch, and that the consideration which purchased such right and interest was mostly hers. Conceding that the bank’s deed to Herbert I. Finch was not authorized and therefore is not good, it does not follow that Plerbert I. Finch had nothing to convey to his wife. The record shows the converse. And even if he did not have any personal right in the real estate, his deed was made to clear up the title of his wife and to vest in her legal title to that to which she already had an equitable title. A deed is not void because a grantor may attempt to convey more than he owns. 18 C. J. 291 (Deeds § 264). The court’s finding that the deed from Herbert I. Finch to Sylvia T. Finch was never delivered is contrary to the undisputed evidence, which shows that Herbert I. Finch was acting as the agent of Sylvia T. Finch; that after the contract was executed, he caused to be prepared the deed to Sylvia T. Finch; that he made no formal or manual delivery to her but that he did cause it to be recorded and put with her papers, because he took care of all her financial affairs and handled them for her. Her pleadings and the record show that she claims title. It was held in Miller v. Miller, 91 Kan. 1, syl. ¶ 5, 136 Pac. 953, that the recording of the deed made it effective as to all persons benefited by it who did not dissent; and in Conner v. Cole, 112 Kan. 517, syl. ¶¶ 2, 3, 211 Pac. 615, that execution, acknowledgment and recording of a deed raises a presumption of delivery; and in Turner v. Close, 125 Kan. 485, syl. ¶ 2, 264 Pac. 1047, that the execution, acknowledgment and recording of a deed by the grantor raises a strong presumption of delivery. It was not necessary that Herbert I. Finch make a formal delivery of the deed to his wife; what he did was sufficient under the circumstances. The deed complained of was valid and sufficient to vest in Sylvia T. Finch, the equitable owner, such title as may have remained in her husband and agent, Herbert I. Finch, either from his having used her funds or on account of his contract with the bank. And it may well be questioned whether the bank has any standing to raise any question concerning the same in view of the fact that neither delivery nor nondelivery of the deed affects its rights in any particular.
There is also considerable argument predicated upon the proposition that when Herbert I. Finch conveyed to Sylvia T. Finch, the bank of which he was a director was insolvent, and that he knew it. Assuming this to be true, it made no difference. Estoppel is not pleaded nor proved, if it had any place in this action. The bank was not prejudiced in any manner, because of the fact it did not know that in so far as the Amis land matters are, concerned, Herbert I. Finch was acting for his wife, Sylvia T. Finch, and that it was her money that was being used. Its rights under the contract were the same, whether Herbert I. Finch or his wife were to receive cash in event of redemption or sale, or the land if no sale were had within the five-year period. There is no showing that the bank had any claim of any kind or character against Herbert I. Finch other than the claim for statutory liability above discussed and on which it is fully protected. Under the undisputed evidence, Finch furnished the moneys with which the real estate involved was acquired, he made the deed to the bank for the primary benefit of the bank, under conditions agreeable to it, and the bank cannot now say it is owner of the real estate freed from the conditions and obligations under which it acquired the title. No reason is disclosed why performance should not be had of the contract between the bank and Finch according to its terms, and if the real estate has been sold within the time fixed, five years from August 15, 1927, why the receiver of said bank should not pay to Sylvia T. Finch the amounts stipulated to be paid upon sale, and if said real estate was not so sold why the same should not now be conveyed to her.
Various errors assigned have been examined, but on account of our conclusions, discussion thereof would serve no purpose. It might be remarked that motions to make certain findings of fact and of law and to strike or modify others should have been sustained.
The judgment of the lower court with respect to the extent of liability of the defendant Herbert I. Finch, and that the deposit of $6,443.45 is the property of Herbert I. Finch and subject to appropriation for said liability, is affirmed.
The judgment of the lower court with respect of Sylvia T. Finch, barring her from any interest in and to the Amis land above described, is reversed, and the cause is remanded with instructions to determine whether the Lebanon State Bank has sold said real estate and, if so, to order and direct the receiver of said bank to pay to Sylvia T. Finch the sum of $17,700 with interest at six per cent per annum from November 15, 1924, and the further sum of $1,037.94 with interest at six per cent from August 24, 1926; and if said real estate has not been sold, to convey to said Sylvia T. Finch the above-mentioned real estate, as provided in the contract here under consideration. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Will Beck brought this application to obtain release from custody. He was charged with violations of the prohibitory liquor law in two counts, and on November 20, 1930, was tried by a jury and found guilty on both counts. A motion for a new trial was filed and denied. On December 30, 1930, the court imposed the sentence of six months in the county jail and that he pay a fine of $100 on each count, the jail sentences on the two counts to run concurrently. Thereupon Beck served a notice of appeal and procured a stay of execution. On November 28, 1931, the appeal was dismissed for lack of prosecution.
On December 29, 1930, Beck was arrested again upon a separate charge of violations of the prohibitory liquor law, and on January 15, 1931, was found guilty by a jury. The penalty on this conviction was adjudged to be a term of 90 days in the county jail and a fine of $100. The appellant also took an appeal to the supreme court on this conviction and caused a stay of execution to issue. This appeal was dismissed on the 28th day of November, 1931, by the supreme court for want of prosecution.
In pronouncing the second sentence in March, 1931, the court did not refer to the former sentence nor state that it should be served consecutively or concurrently with the first sentence pronounced in December, 1930. After the dismissal of the appeals in the supreme court on November 28, 1931, commitments were issued and the petitioner was taken into custody thereon.
On March 22, 1931, the court determined on application that defendant was entitled to thirty-six days of good time upon the imprisonment under the first sentence, which was imposed December 30, 1930, and that as the time of this imprisonment had expired, the fine and costs having been paid by defendant, he was discharged so far as the first sentence was concerned. He was still in custody on the second sentence imposed on March 21,1931, and he then applied for release upon a writ of habeas corpus. After a hearing the writ was denied, and defendant has appealed.
The defendant contends that the question involved is:
“Where two sentences are imposed by the same judge in the same court one after the other, at different terms, and there is nothing in the sentences as to whether they are to run consecutively or concurrently to each other, will the sentences run consecutively or concurrently?”
He contends that the second sentence imposed ran concurrently with the first and that the expiration of the service under the first expiated and satisfied the second sentence. It will be observed that the penalties imposed on the defendant were upon separate offenses in two distinct prosecutions about three months apart, and were imposed at different terms of the court. It is not shown that at the time of the second conviction and sentence attention of the court was called to the fact that a previous sentence had been rendered against defendant, nor as to the status of the defendant under the first sentence. While the prosecutions and the sentences under them were for violations of the intoxicating liquor laws, they were distinctly separate offenses and were prosecuted under different informations at different teims of the court. In the second conviction the sentence from which defendant seeks release does not state whether the imprisonment shall be concurrently or consecutively served, and he contends that in the absence of such a provision in the sentence they necessarily ran concurrently and, therefore, he is entitled to a discharge. The common-law rule and many of the earlier decisions following the rule are tó the effect that if several 'sentences of imprisonment are imposed upon- a person, covering the same- period of tipie, they will run concurrently unless the court expressly directs that they be served consecutively. (In re Breton, 93 Me. 39; Harris v. Lang, 7 L. R. A., n. s., 124, and note; 8 R. C. L. 242; 16 C. J. 1307; 1 Bishop Criminal Procedure, 3d ed., § 1327.) See the numerous cases cited in the foregoing authorities.
In most of the cases following the common-law rule it is held that it should be applied in the absence of a statute governing the subject, thus recognizing that the statute, if enacted, is controlling. In this state the following statute, touching the subject of the sentencing of a convict who has committed two or more offenses about the same time, was enacted:
“When any person shall be convicted of two or more offenses before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior convictions.” (R. S. 62-1512.)
The provisions of R. S. 62-1528 pertinent to the question provide:
“Any prisoner at large upon parole or conditional release, who shall commit a fresh crime, and upon conviction thereof shall be sentenced anew to the penitentiary, shall be subject to serve the second sentence after the first sentence is served or annulled, said second sentence to commence from the termination of his liability upon the first or former sentence.”
These provisions indicate the legislative purpose to depart from the rule of the common law, and provide a different policy and procedure for imposing and enforcing sentences similar to the one in question here. In State v. Finch, 75 Kan. 582, 89 Pac. 922, it was said:
“While our statute only provides for cumulative punishment of an offender who has been convicted of two or more offenses at the same term of court, it indicates the legislative policy and the justice of adapting the punishment to the number as well as to the enormity of crimes committed by one person, and, without regard to strict technicality, it is incumbent upon the courts of the state so to conform the procedure as to make the purpose of the law effective.” (p. 584.)
Under a statute where a person is convicted of several offenses, the court in sentencing the defendant on the second or subsequent conviction is expressly directed to impose the penalty of imprisonment to commence at the termination of the former imprisonment. In such a case the court must render judgment in conformity with the statutory policy and is without authority to adjudge that it shall run concurrently. The policy of the state under the statute has received consideration and approval in a number of cases. (State v. Carlyle, 33 Kan. 716, 7 Pac. 623; In re White, 50 Kan. 299, 32 Pac. 36; State v. Finch, supra; State v. Lewis, 63 Kan. 268, 65 Pac. 257; State v. Woodbury, 133 Kan. 1, 298 Pac. 794.)
Our attention is called to In re Weisman, 93 Kan. 161, 143 Pac487, as supporting a contrary view. There the accusations were for contempt of court for the violation of an injunction to which the defendant had pleaded guilty. There were two accusations and two penalties of imprisonment imposed on each accusation, and it was held that the terms of imprisonment ran concurrently. This case, though not strictly criminal, was treated as governed by criminal procedure, and is clearly out of line with the statute and the policy of the state. Doubtless it may have had the effect of misleading litigants and may have led to the bringing of this proceeding, but it cannot be followed or approved. It proceeds on the theory that the cómmon-law rule has not been abrogated or changed. Inadvertently the statute was overlooked in the decision, and the case was determined as if the legislature had not enacted and declared the policy of the state on the subject. It must therefore be overruled.
We hold the ruling of the district court in denying the writ was correct, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:'
This is an action to recover damages at common law for personal injuries sustained while the plaintiff, as a saleswoman, was in the employ of the defendant at its five- and ten-cent store in Atchison.
The real question involved is whether the defendant was by election operating under the workmen’s compensation law at the time of the accident, it being conceded that the defendant belonged to the nonhazardous class as defined by that law.
The answer admitted the employment of the plaintiff and that it maintained a mercantile business at Atchison, as alleged, but-denied all other allegations of the petition, and then pleaded that on March 6, 1928, more than three years before the time of the accident, the defendant had filed of record in the office of the commissioner of workmen’s compensation of the state of Kansas, at Topeka, its election to come within the provisions of the workmen’s compensation law of this state and has at no time since filed a withdrawal therefrom, and it has been regularly since that time operating under the provisions of that law, and the plaintiff has never filed a declaration not to come within the provisions of the law. Defendant further alleged that plaintiff had regularly for eight weeks after the accident received a compensation each week of sixty per cent of her weekly wage.
Plaintiff filed a reply denying that she ever had notice or knowledge of the election of the defendant to come under the compensation law, and that R. S. 1931 Supp. 44-505 and 44-542 are unconstitutional, as being in violation of sections 1 and 18 of the bill of rights of Kansas and the fourteenth amendment to the constitution of the United States.
A demurrer to the reply and a motion for judgment for defendant on the pleadings were filed but no action was taken on them, but on the suggestion of the court a preliminary hearing was held without a jury to determine whether the parties were or were not operating under the compensation law.
The court placed the burden upon the defendant and heard the evidence offered by both parties and found that the defendant’s election to come under the compensation law was valid, sufficient and effectual and that the challenged sections of the compensation law are constitutional and that the plaintiff’s action should be dismissed for want of jurisdiction, but without prejudice, and it was so ordered. From this ruling the plaintiff appeals, assigning error in the ruling because the attempted election was defective and not binding, that it was not filed in the proper office, that it was rendered ineffectual by subsequent changes in the law, and that no notice of such election was given to plaintiff, and if no notice was intended by the statute it is unconstitutional.
The objections noted to the form and filing of the document signed by defendant for its election to come under the act are as follows:
“An examination oí this document shows that it was executed and acknowledged in New York. It is addressed to the ‘Commissioner of Compensation.’ (No mention of Kansas.) States that Woolworth Company elects to come within ‘chapter 232, Laws of 1927.’ (No mention of Kansas.) States that it is of New York City, and is ‘engaged in operating five and ten cent stores in Kansas.’ (No mention of Atchison.) Both the city and county are crossed out from the form. Exhibit 3 of defendant has no place of filing, or showing by whom filed.”
It is further claimed the election paper or document was not filed with the proper officer, there being a confusion of names in the statute between commission, commissioner, workmen’s compensation commission, commissioner of compensation and others. None of the omissions or defects pointed out by appellant are of a misleading or serious nature, and certainly the exhibit which is set out fully in the abstract readily conveys the information intended as wéll as the information prescribed by the statute.
“Notice required to be given to the designated state official is not required to be in any precise or technical form, and does not need to be evidenced with the same formality as a deed or other instrument which transfers property.” (28 R. C. L. 735.)
As to the confusion of names of officers, the legislature took care of that matter by section 33 in chapter 232 of the Laws of 1927, now R. S. 1931 Supp. 44-548, by explaining therein the reference in the law itself to the different names of officers and their connection with a commission or department.
The next point raised to show the election document to be insufficient is the fact that the law had been twice, amended before this accident, and Railway Co. v. Fuller, 105 Kan. 608, 186 Pac. 127, is cited as showing the effect of an amendment on the situation of an earlier election to come or not to come under the law. In that case an employer had elected under the 1913 law, chapter 216, not to come under the law, and by the enactment of the 1917 law, chapter 226, where the entire law was reenacted, making radical changes, it was held he was placed under the law by the act itself regardless of his former election. This would have been very appropriate if- any substantial changes had been made in the law after the election made by the defendant in this case. However, chapter 206 of the Laws of 1929 made no change in the law except in section 42, which concerned the taking of appeals, and the only change made by the 1931 law, chapter 217, was to amend section 10, which prescribed the rate and amount of compensation to be allowed — nothing in either to disturb or disarrange the election attempted to be made by the defendant in this case in 1928.
Appellant claims that the statute requires notice to be given. If not, then it should be read into the statute as an intended part of it by proper construction, and, if it is neither in it now nor properly read into it, then it is unconstitutional. • R. S. 1931 Supp. 44-505 distinguishes between the employments defined as hazardous and nonhazardous, placing automatically under the operation of the law all employers engaged in the hazardous group and giving to the employers in the nonhazardous class the privilege of electing to come in under the operation thereof, if they so desire, and specifying how they shall make such election, viz., “by filing with the commission a written statement of election to accept thereunder.” Then immediately follows this statement, “and such election shall be effective when so filed.” The closing part of the section provides for withdrawals.
R. S. 1931 Supp. 44-542 is the one in particular that appellant says requires the posting or giving of notice by one electing to come in, or such requirement should be read into the statute, or if not either, then the section and also R. S. 1931 Supp. 44-505 must be declared unconstitutional. R. S. 1931 Supp. 44-542 is as follows:
“Every employer entitled to come within the provisions of this act, as defined and provided by this act, shall be presumed to have done so, except such employers privileged to elect to come within the provisions of this act, as hereinbefore provided, unless such employer shall file with the commissioner a written statement that he elects not to accept hereunder, and thereafter any such employer desiring to change his election shall only do so by filing a written declaration thereof with the commission. Notice of such election shall forthwith be posted by such employer in conspicuous places in and about his place of business.”
Appellant reasons that an employer in a nonhazardous business is, in the language of the statute, “entitled to come within the provisions of this act,” and therefore is not in the exception noted in the clause immediately following; also, that being in the class privileged to remain out or come in such cannot be any longer privileged after deciding to come in, and therefore is not within the exception. These terms are naturally used to describe the status of the employers before any steps are taken by them to change their situation. We think all of both classes, hazardous and nonhazardous, are “entitled to come within,” but they are not all privileged. All the first group are presumptively in or brought in by direct legislation, whether they wanted to be in or not. The nonhazardous are “privileged to elect” and are excepted from the general provision of the section, or the exception clause would be useless and serve no purpose. We must assume the legislature intended to except some parties by the insertion of this exception clause, and since the nonhazardous class is the only class that is privileged, the use of the term “employers privileged to elect” meant all employers in the nonhazardous class just as much as if it had used the term, nonhazardous class.
This class is therefore specifically excepted from the requirements of section 44-542, and they are not required by this section to post notices, as others are. This is- quite in harmony with the provision heretofore quoted from R. S. 1931 Supp. 44-505, that the election by an employer of the nonhazardous class “shall be effective when so filed.”
Another strong reason in favor of this construction is that there was no such exception made in the 1917 law, chapter 226, and it must be presumed the legislature purposely intended to except this class in the law of 1927, chapter 232.
“When a statute is revised, some parts being omitted, the omitted parts are not readily to be supplied by construction, but are ordinarily to be considered as annulled.” (Hauserman v. Clay County, 89 Kan. 555, syl. ¶ 1, 132 Pac. 212.)
“The fact that two laws passed at different sessions of the legislature are reenacted in a later revision of the statutes does not preclude resort to the history of the acts or the use of any other proper rule of construction to determine the legislative intent, where a claimed right or authority does not clearly appear in the laws as set forth in the revision.” (Chicago, R. I. & P. Rly. Co. v. Nichols, 130 Kan. 509, syl. ¶ 2, 287 Pac. 262.)
But appellant suggests this history can only show the intent of the legislature when the new law is an amendment of the old law and not when the new law is a complete revision of the old, but the last case above cited is a direct refutation of that claimed limitation.
Appellant claims notice is necessary to the validity of the law because it has been held the compensation law is virtually a contractual relationship and necessarily implies notice for .the purpose of knowledge, and in the same connection admits a notice is not necessary as to the hazardous class, being placed within the act directly by legislation and without any choice. It has been held in several Kansas cases that the statute is a part of the contract between the employer and employee under the compensation act. Both parties must take notice of the law and its provisions. As to the hazardous class, the statute as part of their contract requires neither filing nor notice in the first place. As to the nonhazardous, the statute is a part of their contract and the employer is in under the law when he files his election, and the law says it is effective when he so files, and requires no notice. The employee knows that a filing is all that is necessary to effect a change and is therefore put upon his inquiry to learn of a possible change. An inquiry at the office where he gets his check for services is both natural and convenient, and, if misinformed, he would doubtless be protected later. He also has the sure source of reliable information at the office of the commission at the state capitol where the filing must be made.
“ 'Notice/ in its legal sense, may be defined as information concerning a fact actually communicated to a person by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent in its legal effects to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge.” (46 C. J. 538.)
Are these two sections, 44-505 and 44-542, unconstitutional? Do they deprive the plaintiff of life, liberty or property without due process of law, or deny her or any person the equal protection of the law?
Appellant cites Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781, where a property owner sought to enjoin the county clerk and county treasurer from collecting a sewer tax, and it was held:
“Where a statute authorizes a city to provide for the construction of sewers and drains, and to tax the costs thereof upon the adjacent property owners, but does not require that any notice shall be given to the-property owners, held, that such failure to require notice does not render the -statute unconstitutional, or void; but notice must nevertheless be given, and the city would have a broad discretion with reference to the kind of notice, and the manner of giving the same.” (Syl. ¶[ 4.)
Appellant also cites Hill v. Johnson County, 82 Kan. 813, 109 Pac. 163, where it was held in an injunction action against the county board that the rock-road law was not unconstitutional because it omitted to provide for a preliminary notice to the property owners. In the opinions in both cases it was held a notice should have been given, that it was implied by the statute although not strictly required. Both these cases have reference to the duties of county officers and in the opinions the duty of notice is emphasized although not specifically required.
The case of Railroad Co. v. Abilene, 78 Kan. 820, 98 Pac. 224, cited by appellant, involved the right of a city to adopt the front-foot rule for apportioning benefits accruing to property owners, including street-sprinkling benefits, without affording the property owners an opportunity to be heard, and it also involved the question of delegation of legislative authority, and the act was held to be in violation of the fourteenth amendment.
Two cases cited by appellant may be for the purpose of distinguishing, but both uphold the constitutionality of the acts involved. They are Railway Co. v. Railway Commissioners, 85 Kan. 229, 116 Pac. 896, and Balch v. Glenn, 85 Kan. 735, 119 Pac. 67. The former held the law constitutional which failed to require a notice to be given a railroad company before the railway commission ordered terminal facilities. The latter held the statute for the extermination of orchard pests to be valid and constitutional as against the fourteenth amendment where it permitted the officer to destroy the trees belonging to a landowner and levy a lien on his property for the expense thereof, all without notice of any kind.
This court held the workmen’s compensation law to be constitutional and not in violation of the provisions of the fourteenth amendment in the following three particulars: In Potican v. Hamilton Coal and Mercantile Co., 120 Kan. 326, 243 Pac. 537, that the limitation upon the right to an appellate review was not a denial of due process or equal protection. In the case of Smith v. Packing Co., 115 Kan. 874, 225 Pac. 110, it was upheld against an attack as to the schedule for injuries and the necessary inequality thereof and as to damages otherwise obtainable. In Hovis v. Refining Co., 95 Kan. 505, 148 Pac. 626, it was upheld in giving certain defenses to employers within the act that were denied to those not within it. In this case it was said in the opinion:
“We do not see how this provision of the law in any way violates any part of the constitution of the state of Kansas or of the United States. It is a matter clearly within the province of the legislature. Industrial conditions have become such that legislation upon the subject is an imperative necessity. No constitutional provision prohibits it.” (p. 512.)
We conclude that neither of the sections above noted is unconstitutional or void as being in violation of the provisions of the fourteenth amendment of the constitution of the United States or in violation of sections 1 and 18 of the bill of rights of the state of Kansas, because they omit a requirement that employers of the nonhazardous class, privileged to elect to come within the provisions of the workmen’s compensation law, give notice of their election.
No ruling seems to have been made by the trial court on the question of waiver and it will therefore need no consideration here.
We think the ruling of the trial court in dismissing without prejudice the plaintiff’s cause of action for want of jurisdiction was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was commenced by plaintiff to obtain three kinds of relief: First, to- recover on an account for the price of petroleum products furnished to a filling station; second, to enjoin breach of a contract relating to operation of the filling station; and third, to recover damages suffered from breach of the operating contract. Plaintiff also commenced a separate action against White head alone for the same kinds of relief, based on transactions relating to operation of another filling station. The cases were con-.solidated for trial, and injunction was denied. The court rendered no money judgment, and plaintiff appeals in the case against the Iola City Oil and Supply Company and Whitehead. The contention is the court should have rendered judgment in favor of plaintiff on the account.
In each case plaintiff verified its petition, setting up an itemized account which was confessedly incorrect. Regarding the injunction feature of the cases of primary importance, defendants answered fully respecting that subject, but they came to the trial unprepared to meet the actions on account. After discussion between court and counsel it was agreed the trial should proceed on the injunction issues only. Plaintiff had witnesses present to testify concerning the accounts, and to save trouble and expense of bringing them back they were permitted to give their testimony. The witnesses admitted the accounts in both cases were wrong. In the Whitehead case the testimony was that instead of Whitehead owing plaintiff, plaintiff owed Whitehead a sum of money. In the other case the testimony was that defendants owed plaintiff more than the sum claimed in the petition. Plaintiff asked leave to amend both petitions to conform to the proof, and leave to amend was granted. There the trial stopped so far as the actions on account were concerned.
Before plaintiff examined his witnesses with respect to the accounts, it was understood, as counsel for plaintiff expressed it, there would be no trial of the question “of who owes who and how much.” In the course of the proceeding Whitehead indicated that plaintiff owed him more money than plaintiff admitted. Whitehead also stated he had a claim for damages against plaintiff which he desired to present by way of cross petition, but he was not ready to plead. Of course the unverified amended petition in the other case was not answered. At the conclusion of the evidence relating to the accounts, it was understood by counsel for both sides that questions relating to indebtedness were reserved, and the court made the following announcement:
“All right, we will go .ahead and consider the matter on the question of equity only, and not on the money judgment part of it.”
The trial then proceeded on what had been called the equity feature of the cases only. The journal entry of judgment reads:
“It is by the court considered, ordered and adjudged:
“First. That the plaintiff’s petition for an injunction be and is hereby denied.
“Second. It is further considered, ordered and adjudged that the plaintiff do not recover herein, and that the defendants recover of plaintiff their costs. ...”
In announcing its decision the court said:
“Your application for injunction is denied because you have not made out a case nor any reason therefor.”
The court then proceeded to discuss the equity feature of the cases only, and concluded as follows:
“Therefore, your application for affirmative relief by way of a money judgment is not considered for the reason you cannot join an action in law with an action for relief in equity, and no judgment is rendered thereon. Your application for an injunction is denied.”
In this court plaintiff abandons its appeal so far as the injunction feature of the judgment is concerned. The result is, the only portion of the case which was tried is eliminated from consideration, and the only claim of error is that a money judgment was not rendered on the account feature of the case, which was not tried.
The code of civil procedure provides that the plaintiff may join causes of action both legal and equitable in the same petition whenever, except in suits to foreclose mortgages, the causes of action affect all the parties to the action. (R. S. 60-601.) The Whitehead case is a typical case of proper joinder of causes of action for legal and equitable relief, and it would be very strange if the court intended to deny judgment in favor of Whitehead, enforcing a liability admitted by plaintiff’s amended petition, just because plaintiff made a procedural mistake at the beginning. There was a misjoinder in the other case. Whitehead was not charged with liability on the oil and supply company account. The misjoinder, however, was waived by defendants in two ways. They did not raise the question of misjoinder by demurrer or by answer (R. S. 60-707), and defendants themselves proposed that the causes of action on the accounts in both cases should not be tried until after determination of the equitable feature of the cases, and defendants had opportunity to plead. The result is, the actions on the accounts were before the court, but at the conclusion of the equity hearing they were not before the court for determination on any ground.
It was perfectly proper for the court, at the conclusion of the equity hearing, to order that plaintiff should not recover a money judgment. The true reason was that the action for money judgment had not been tried, except that, as indicated, some testimony was heard out of order, to accommodate plaintiff. After reading the entire transcript, this court is in some doubt about the position of the district court relating to misjoinder of causes of action for legal and equitable relief. There are indications in the record the court had in mind the inconsistency in pleading breach of a contract and reliance on the breach as a basis for relief by way of damages, and then praying for injunction to prevent breach. In any event, this court declines to interpret the judgment which was rendered as referring to anything except what, by clear agreement of counsel and by consent of the court expressly declared, was submitted for determination. The result is that when issues are made up, the court will proceed with trial of the actions to recover on the accounts.
Because the appeal is abandoned with respect to the only matter which the court did try, and the only matter which this court holds the district court did determine, the appeal is dismissed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a vendor to enforce performance of contracts of sale of land. Defendant prevailed, and plaintiff appeals.
A number of persons went from Kansas City, Mo., and vicinity, to Miami, Fla., before the Florida real-estate bubble burst. Twelve of them joined informally in an association to speculate in land. The members contributed to a fund of $51,000, in amounts ranging from $1,000 to $10,000. One contributor was worth two million dollars. All of them were prosperous, and each one was willing to lose what he put in. One member of the group described the venture as a “lark.”
Charles E. Phillips was a member of the Kansas City party, but was not a member of the syndicate. He was an experienced real-estate operator in Kansas City, and had property of his own in Florida. The members of the syndicate, who were all friends of Phillips, were willing to buy if he would act for them, and he consented to act, without compensation or share of profit.
The Miami Ocean View Company, of Miami, Fla., was a corporation which dealt in real estate. This company had sold four lots, on separate installment contracts, to Benz and Christiansen. John H. Levi, president of the Miami company, had sold another lot, on an installment contract, to the same purchasers. To simplify the narrative, which if expanded would reach the same result, the Miami company contracts alone will be considered.
Phillips took assignments of the Benz and Christiansen contracts for a total consideration of $135,000. Five thousand dollars were paid when preliminary negotiations were concluded, and $45,625 were paid when the assignments were effected. Incidentally, it may be noted the Benz and Christiansen contracts were dated June 24, the assignments were dated July 20, and Benz and Christiansen made a cash profit of $22,500 in less than thirty days. Benz and Christiansen had given notes for deferred installments of the sale price to them, payable at intervals of six months, as provided in the sale contracts. In the assignments to Phillips, Phillips assumed payment of these notes. When the first notes fell due, Phillips paid them, in the sum of $17,016. After that the members of the syndi cate lost interest in the Florida land game, and no further payments were made.
Phillips’ residence was in Johnson county, Kansas. The Miami company sent an agent to Kansas who tendered a deed of each lot to Phillips, the grantee being “Charles E. Phillips, trustee.” Phillips refused to accept the deeds. The Miami company then sued Phillips individually for the sum of $73,000 and interest, the unpaid portion of the purchase price of the lots, and for $2,000, taxes paid by the Miami company. The district court made findings of fact and conclusions of law relating to the capacity in which Phillips acted, and knowledge of plaintiff of such capacity, pursuant to which judgment was rendered for Phillips.
Phillips’ first negotiations were with Duke Baird, who represented Benz and Christiansen. Phillips paid Baird the initial sum of $5,000, referred to above, and received from Baird an instrument which acknowledged receipt of the money and contained the terms of sale of the land. The instrument ran to “Charles E. Phillips, trustee,” and was signed by “Charles E. Phillips, trustee,”, and by Baird. This instrument contained the following provisions:
“The full purchase price of same being One Hundred Thirty-five Thousand Dollars, to bo paid as follows: Fifty Thousand Six Hundred Twenty-five ($50,625) cash, of which the above Five Thousand ($5,000) is a part, and the balance in the assumption of contracts already on lots.
“It is understood that there shall be no personal liability against Mr. Phillips in so far as the closing of this deal is concerned.”
Phillips paid the remainder of the cash payment, $46,625, to Benz and Christiansen, and received from them written assignments of the contracts. Each instrument of assignment named Charles E. Phillips, trustee, as assignee. Each contract provided it should not be transferred by the vendee for any purpose without consent of the Miami company. Consent to the assignment to Charles E. Phillips, trustee, was requested, and written consent was given.
The written consent of the Miami company to assignment of each contract was at the bottom of a sheet of paper some twenty-six inches long, which originally was a printed blank form prepared specially for use by the Miami company. When the blanks were filled, the paper presented the following:
(1) The heading, “Installment Sales Contract.”
(2) The contract of sale between the Miami company and Benz and Chris tiansert. The contract was executed by The Miami Ocean View Company, by John H. Levi, president; was attested by Charles E. Clark, secretary; and the corporate seal was affixed. The contract was also signed by the purchasers, John S. Benz and E. B. Christiansen, and their signatures were witnessed by two witnesses.
(3) The notary public’s certificate, under seal, of acknowledgment of execution of the contract by the parties.
(4) The assignment of the contract to Charles E. Phillips, trustee, executed by Benz and Christiansen and their wives, whose signatures were witnessed by two witnesses.
(5) The notary’s certificate, under seal, of acknowledgment of execution of the instrument by the assignors.
(6) Consent of the Miami company to the assignment, executed by The Miami Ocean View Company, by Charles E. Clark, secretary, under the company’s corporate seal.
The assignment by Benz and Christiansen, consented to by the Miami company, reads:
“For value received, the undersigned do hereby bargain, sell, assign, transfer, quit-claim, and set over unto Charles E. Phillips, trustee, of the county of Dade, in the state of Florida, the installment sales contract hereto attached and made a part hereof.
“The assignee herein assumes and agrees to pay all outstanding promissory notes mentioned in said contract, and agrees to perform any and all other obligations described in said notes or contract.”
Plaintiff’s position is in effect this: The assignment was to Charles E. Phillips, trustee, and Charles E, Phillips, trustee, assumed payment of the notes referred to in the contract as they fell due. The word “trustee” is perfectly unambiguous. It needs no explanation, and could not be explained by extrinsic evidence. Therefore, Charles E. Phillips was incontestably a trustee. A trustee is personally liable on his contracts. If he desires to protect himself against personal liability, he must so stipulate, and the mere addition to his name of the word “trustee” will not absolve him.
The defect in the Miami company’s position is that its major premise is unsound. The word “trustee” following the name of Charles E. Phillips, in. the designation of the assignee of Benz and Christiansen, was ambiguous. It indicated qualified title and fiduciary relationship (Loan Co. v. Essex, 66 Kan. 100, 106, 71 Pac. 268), but the precise nature of the qualification and the precise' nature of the relationship were not indicated.
In both legal and popular speech, the words “trust” and “trustee” are applied to a number of widely varying relationships, such as executorship, administratorship, guardianship, partnership, agency, bailment and others, which are not true trust relationships. Indeed, the words are commonly used whenever a fiduciary relationship is involved, irrespective of whether a trust is involved. This has led courts to speak of “technical trusts,” to distinguish trusts from relationships loosely called trusts because they bear more or less resemblance to trusts. There is no more technicality about a trust than there is about an agency, which is not a trust, and because one who is merely an agent is often called a trustee, and in dealings for his principal often calls himself a'trustee, the description in an instrument of a party to the instrument, as “A. B., Trustee,” does not definitely disclose A. B.’s capacity. He may be an agent, or he may be a trustee. The same ambiguity may arise upon a signature: “A. B., Trustee;” “A. B., Agent;” “A. B., President.”
In the absence of explanation, the mere addition to the name “A. B.” of the word “Trustee” or “Agent” or “President,” does not forbid an inference that “A. B.” is personally liable. But extrinsic evidence is admissible to show he was not acting in his individual capacity and, therefore, was not personally liable. The reason is that intention of the parties, and not a strait-jacket for expression of intention, ought to control in fixing liability. The rule applies to original parties to an instrument not sealed nor negotiable, and to any one who seeks to recover on the instrument who knew or had reason to know the facts.
Before enactment of the negotiable instruments law, the foregoing was settled law of this state, even with respect to negotiable instruments. (Kline v. Bank of Tescott, 50 Kan. 91, 31 Pac. 688; Benham v. Smith, 53 Kan. 495, 36 Pac. 997; Grocer Co. v. Lackman, 75 Kan. 34, 88 Pac. 527.)
In the case of Kline v. Bank of Tescott the syllabus reads:
“Where a note is executed by a corporation, and is signed by its president and secretary, and its directors write their names upon the back thereof as directors, before delivery, extrinsic evidence is admissible between the original parties or any subsequent holder of the note, accepting the same as collateral, with full notice of all the facts and circumstances connected with the execution and delivery thereof, not only to show that the president and secretary executed the instrument in their official capacity as officers of the corporation, but also that the directors signed the note on the back thereof solely as officers of the corporation, and to bind the corporation only.”
In the opinion the court cited the case of Metcalf v. Williams, 104 U. S. 93, in support of the decision. In that case a check was signed “W. G. Williams, V. Pres’t, E. P. Aistrop, Sec’y.” In the opinion it was said:
“Where a person acts merely as agent of another, and signs papers in that ■capacity, that is, signs them as agent, and the party with whom he deals has full knowledge of his agency and of the principal for whom he acts, an express disclosure of the principal’s name on the face of the papers, or in the signature, is not essential to protect the agent from personal responsibility.” (p. 97.)
In the case of Bank v. Trust Co., 107 Kan. 700,193 Pac. 316, L. A. Mergen was sued personally on a “we promise to pay” note, signed as follows:
“The Salina Trust Company
“W. B. Middlekauff. L. A. Mergen, Treas.”
Mergen answered that he was authorized to sign the note for the trust company, signed purely in the representative capacity of treasurer of the corporation, and the holder of the note knew the facts. The district court overruled a demurrer to the answer, and this court affirmed the ruling. The court considered section 27 of the negotiable instruments act, which reads:
“Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative ■capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.” (B,. S. 52-220.)
In the opinion the court said:
“The name of the corporation mentioned in the answer is signed to the note. It appears that L. A. Mergen signed as treasurer. One and probably the best construction of the signature is that L. A. Mergen signed as treasurer of the Salina Trust Company, although another construction may be that he signed individually, and added the expression ‘Treas.’ as descriptive of himself. The statute says that Mergen is not liable if he was duly authorized to sign the note for the trust company and signed in the representative capacity. The answer alleges that he was so authorized and did so sign.” (Bank v. Trust Co., 107 Kan. 700, 701, 193 Pac. 316.)
The decision was in accord with section 547 of the Restatement ■of the Law of Agency, subsection 3 of which reads:
“(3) If the name of the principal appears upon a negotiable instrument, ■and the agent does not appear unambiguously as a party, extrinsic evidence of ¡an understanding that the agent shall not be a party to it is admissible as against any holder of the instrument who has notice of the agreement or who is not a holder in due course.”
In the case of Lonnon v. Batchman, 103 Kan. 266, 173 Pac. 415, a note was signed thus:
• It was held that under section 70 of the negotiable instruments law, parol evidence was not admissible to show an understanding that the signers bound the corporation and not themselves as individuals. The section reads:
“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.” (R. S. 52-604.)
; • While it is not material here, it is conceivable the section was misapplied. It does not apply to maker, drawer, or acceptor, and “some other capacity” does not refer to the distinction between personal capacity and representative capacity, but to the distinction between indorser and surety or indorser and guarantor.
It- will be observed the negotiable instruments act contemplates that the name of the principal shall appear on the instrument. With respect to contracts not negotiable nor sealed, this is not necessary, and the rule applicable to such contracts is stated in subsection 2 of section 546 of the Restatement of the Law of Agency, which reads:
“(2) If the fact of agency appears in an integrated contract, not sealed nor negotiable, and there is no unambiguous, expression of an intention either to make the agent a party, thereto or not to make him a party thereto, extrinsic evidence may be introduced, to show the intention of the parties.”
Comments b. and d. to this section-read as follows:
“b. The fact of agency appears if the writing indicates' that one of those engaging in the transaction was acting as agent for another in so doing. For the fact of agency to appear it is not necessaiy that the name of the principal should be disclosed upon the document.”
“d. The addition of the word ‘agent’ to the agent’s personal signature does not thereby ’rebut the inference that the agent is a party to the contract so signed; such addition does, however, render the signature ambiguous and, unless the instrument as a’ whole is unambiguous, extrinsic evidence is ad missible to show the understanding of the parties, except in the case of a negotiable or sealed instrument.”
In this instance there is no room for dispute that as between Phillips and the syndicate, Phillips was simply an agent giving to ■his friends the benefit of his expert service. While Phillips could invest the funds furnished by the syndicate, he did not have title to the money. While Phillips had power to buy and sell land, he was acting all the time on behalf of the syndicate as principal, and not as a trustee, pursuant to stated terms of a trust, created by a settlor, for benefit of a third person, the beneficiary. Phillips could subject the members of the syndicate to personal liability to third persons. A trustee may not subject the beneficiary to such liability. (Restatement of the Law of Trusts, § 11, and comments.)
There is no dispute in the evidence that Baird, who represented Benz and Christiansen, was fully informed of the capacity in which Phillips acted. After Baird had been told the facts, and before the contract between Phillips, trustee, and Baird, was signed, Baird inserted in the contract the provision exempting Phillips from personal liability in closing the deal. By express provision of the Baird contract, printed above, closing the deal included assumption of the contracts “already on the lots,” and the provision exempting Phillips from personal liability governed the entire transaction between Phillips and Benz and Christiansen, including the assumption clauses contained in the' assignments. The result was, there never was any assumption by Phillips, as an individual, of payment of the Benz and Christiansen notes, on which the Miami company could sue Phillips personally, and the Miami company was fully apprised of all the facts when it consented to the assignment.
When consent of the Miami company to assignment of the Benz and Christiansen contracts to Phillips, trustee, was requested, Phillips explained fully to Charles E. Clark, secretary of the Miami company, that Phillips was acting for the syndicate and not for himself. Phillips testified as follows:
“On August 18, 1925, accompanied by Mr. Richmond, who was associated with me in a business way, I called at the Miami office, that being the date of the assignment of the contract, and there met Mr. Clark, the secretary of the Miami, and one or two other parties, in their office. And I stated to him very explicitly that I was acting as trustee for a crowd of people, and I wanted him to know I assumed no personal responsibility. We discussed with his officers who our shareholders were, and told them their names, and told them the circumstances of the men who were shareholders.
“When I was talking to Clark I told him about these people being members of the syndicate for which I was acting as trustee. I mentioned to him the most important of them. ... I furnished all [the information] he requested.
“When I paid that $46,000 at the Miami office, I had told both Baird and the Miami company many times that this money came from my syndicate people. Prior to that payment I had been at the Miami office several times, inquiring about restrictions and maturities. On those .several visits I never failed to tell them I was acting as trustee only for these shareholders. Clark and Levi both knew it.”
Richmond testified as follows:
“I presonally discussed with the Miami people who the members of the Phillips Syndicate were. ... I know I mentioned the outstanding members of the syndicate.”
This testimony was not contradicted by anybody. The result was that when the Miami company approved the assignments to Charles E. Phillips, trustee, it knew Phillips was not acting for himself, but was acting as agent for a principal. Whether or not Phillips named all the members of the syndicate, it was described as the Phillips Syndicate, consisting of shareholders, the most important of whom were named. If Clark wanted a list, all he needed to do was to ask for it, and Phillips’ principal was a disclosed principal.
“c. A principal is a disclosed principal if the agent has made such a manifestation or the third person has information which if pursued would enable him to distinguish the principal from all others.” (Restatement of the Law of Agency, § 370, comment c.)
The burden of proof rested on the Miami company to show that Charles E. Phillips as an individual was liable on the contracts of sale by the Miami company to Benz and Christiansen. This initial burden was discharged by producing the assignments to Charles E. Phillips, trustee, containing the assumption clauses. While designation of the assignee as Charles E. Phillips, trustee, was ambiguous, the inference was that Charles E. Phillips acted in his individual capacity. This inference could be rebutted by extrinsic evidence. The burden rested on Phillips to produce rebutting evidence. He did so, and the court found in his favor.
The foregoing fully disposes of the merits of this case. Portions of the brief for the Miami company relate to some matters of fact, law and practice, which have not been specifically referred to. Each subject has been considered. It would unduly prolong this opinion to discuss each one separately, and it must suffice to say the court regards each one either as of no importance or as lacking substantial merit.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The main question involved in this appeal is the extent of the liability of one who indorses a promissory note without recourse when one of the signatures on the note is a forgery. The trial court held that the indorser was liable, but only to the extent of a possible recovery from-the party whose name was forged. Both parties appeal.
The plaintiff loan company, after having sued the makers of a note for $1,230 and failed to collect anything thereon, brought this action against the party who had indorsed the note without recourse. Attached to the petition was a copy of the note, which embodied in its terms a chattel mortgage by the makers thereof, Roscoe C. Charles and his wife, Gladys E. Charles, upon a two-thirds interest in a growing crop of wheat and certain household goods belonging to them.
The petition recited at length the transaction of a sale of land by plaintiff company to defendant wherein this combined note and mortgage was indorsed to plaintiff as part of the purchase price, and to the petition was also attached a copy of the land sale contract, containing the following qualified guarantee of the notes indorsed by defendant:
“While second party is not to guarantee these notes, he is to aid first party and give his cooperation and information which first party may need in the collection thereof, either in or out of court. Subject to the following exceptions: second party agrees that these notes are bona fide with genuine signatures and given for valuable consideration.”
The petition also alleged that defendant knew when the note was made to him by Roscoe C. Charles that the name of the wife had been signed by her husband without her knowledge: or consent, and also recited the history of the earlier suit on the note against the makers thereof and the failure to realize anything in the collection of the note and judgment thereon against the husband.
The answer of the defendant was a general denial and an allegation of a mutual mistake in the written contract of sale attached to the petition, and the knowledge of plaintiff company, before consummation of the land deal and acceptance of the note, that the signature of the wife on the note had been forged by her husband. The defendant, by way of cross petition, alleged that misrepresentations as to value of land sold to him had been made by plaintiff and asked damages therefor.
The trial court held defendant was liable in damages to the plaintiff for breach of his warranty, but only to the extent of the ability of plaintiff to have collected on the note and chattel mortgage if the signature of the wife had been genuine, which it found was limited to the value of the household goods included in the mortgage, which without her signature were exempt, and were found to be worth $300. Other findings were in favor of the plaintiff, and judgment was rendered against defendant for $300 with interest, instead of $1,230. Plaintiff appeals. Defendant has filed a-cross appeal.
Plaintiff claims the trial court erred in not awarding it a judgment for the face value of the note and in not holding the indorser liable for the consideration paid him for the note by the plaintiff, the indorsee.
Appellant strongly reasons along the line of the liability of an indorser under the negotiable instruments statute, which liability the defendant took definite pains to avoid, both by the inclusion of the paragraph above quoted in the real-estate contract and also by using in the indorsement of the note the words “without recourse,” following his name, which make it a qualified indorsement under R. S. 52-606, which is as follows:
“Every person negotiating an instrument by delivery, or by a qualified indorsement, warrants: (1) That the instrument is genuine and in all respects what it purports to be; (2) that he has a good title to it; (3) that all prior parties had capacity to contract; (4) that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. . . .”
It was said by Judge Brewer, in the case of Challiss v. McCrum, 22 Kan. 157, before the statute above quoted was enacted, where these two words were used in connection with the transfer of the note to another:
“Of course no action will lie on the indorsement, for by his written contract Challiss expressly declines to assume the liabilities of an indorser. If sustainable at all, it must be as against him as a vendor, and not as an indorser, and upon the doctrine of an implied warranty.” (p. 160.)
Further in the opinion it is stated that there is an implied warranty of the genuineness of the signature and that there is no warranty of the solvency of the parties. Our statute, above quoted, imposes other warranties, but here we are only concerned with the one that the instrument is genuine and in all respects what it purports to be, and, as stated in the contract, "that the notes are bona fide with genuine signatures.”
In the case of Kaill v. Bell, 88 Kan. 666, 129 Pac. 1135, it was said:
“Even in the case of commercial paper indorsed without recourse, the vendor impliedly warrants that the instrument is a valid obligation of the kind it purports to be.” (p. 668.)
Such an indorser, under this statute and under the special contract in this case, becomes merely a vendor with an implied warranty under tire statute, and express warranty under his definite contract that the signatures to the note were genuine, and is liable in damages to the plaintiff for such amount as it has suffered by reason of the breach of such warranty.
Had there been no breach of warranty and both signatures to the note had been genuine, what could the plaintiff have recovered? The finding is that both husband and wife are insolvent and execution proof. The plaintiff took its chances on this and does not now claim that defendant is in any way liable because of the inability of the makers of the note to respond. Should the plaintiff profit in the transaction by reason of a breach of the warranty? That has never been the rule with damages. It should be placed just where it would have been had there been no breach. If there should be any question as to this general rule under the statute there can be no possible question under the specific statement of his contract with the plaintiff that "While second party is not to guarantee these notes he is to aid first party and give his cooperation and information which first party may need in the collection thereof, either in or out of court.”
In Bigelow on Bills, Notes and Checks, 3d ed., at page 216, an indorser without recourse is spoken of as a vendor. It is there said that the liability of the vendor is not on the paper itself, the warranties are in analogy to warranties on the sale of chattels, they are collateral undertakings, they refer to conditions of fact existing or not existing at the time of the transfer without relation to the maturity of the instrument.
The situation under a qualified indorsement is described as follows in 3 R. C. L. 1155:
“ ‘Without Recourse.’ — If the transferor of a bill of exchange or promissory-note desires to escape the liability expressed by the contract of indorsement, he has available one sure means; by indorsing in the form of a qualified indorsement. The words ‘without recourse’ accompanying an indorsement clearly indicate that the party making the transfer does not intend to assume the position of an unconditional indorser, or to incur any liability if the note is not paid at maturity upon due demand, or even if all the parties to the paper should prove to be wholly insolvent. No action will lie on the indorsement, for by his written contract the indorser expressly declines to assume the liability of indorser. The indorsement effects a transfer of the title to the paper without imposing the liability of an indorser. In this particular the negotiable-instruments law declares that ‘a qualified indorsement constitutes the indorser a mere assignor of the title to the instrument.’ ”
The same matter is described in 8 C. J. 392 as follows:
“One who transfers a bill or a note impliedly warrants certain things and is liable for breach of warranty in a proper case. This liability is wholly independent from any liability as indorser and exists, although the instrument is indorsed ‘without recourse,’ except as to the solvency of the parties.”
Several cases are cited by appellant to show that the liability of such vendor is for the face value of the instrument or the full amount paid for the note, but a plain distinction and difference exists between the facts in those cases and the case at bar. The case of Smith v. McNair, 19 Kan. 330, was where forged school-district bonds were sold by the vendor and he was held to be liable for what he received for them. The case of Robertson v. Talley, 84 Kan. 817, 115 Pac. 640, was where the vendor innocently delivered a forged deed to a purchaser and was held liable for the full am mint, paid therefor without deducting the amount the vendor had paid for the deed from one he mistakenly believed to be the owner of the land. The case of Kaill v. Bell, 88 Kan. 666, 129 Pac. 1166, was where the vendor gave for the purchase of land invalid school-district orders and was held liable on his implied warranty for the full value of them. The Challiss case, supra, was a usury ease, and only part of the note was affected by that defense or invalidity, which shows the distinction between it and the three just previously mentioned, where the invalidity applied to the entire property and did, in fact, leave no partial salvage.
Here the very fact that defendant declined in writing to guarantee this note showed that the solvency of the makers was questionable, and his offer to aid plaintiff in collecting it made its value from that very moment uncertain. The breach of warranty only lost the plaintiff what could have been recovered if the wife’s signature had been genuine as represented. Plaintiff was knowingly taking his chances, with the promised aid of the defendant in possibly collecting something on this note of questionable value. -Its officers speculated by taking the note as part of the consideration for the farm sold to the defendant at a greatly enhanced price.
Damages are defined, without any of the many qualifying features thereof, as a just compensation or reparation for a loss or injury sustained. (17 C. J. 716.) The court found that the maker of the note and his wife own and reside on a quarter section of land in Stafford county, that the household furniture described in the note was worth $300, and that the judgment obtained by plaintiff against the husband was of little or no value. If, as stated above, the breach in such cases is to be regarded as a breach of warranty in the sale of chattels, the measure of damages as stated in 55 C. J. 866 is — ■
“Where there has been, a breach of a warranty in a contract of sale, the buyer can be compensated in damages. . . . The buyer is entitled to recover the actual damages he has sustained, both general and special, which are the natural and direct or proximate result of the breach, and which may reasonably be regarded as within the contemplation of the parties at the time of the sale as the probable consequence of a breach.”
In Isaacs v. Motor Co., 108 Kan. 17, 193 Pac. 1081, it was held:
“The machinery purchased being defective and not in compliance with the warranty given, the plaintiffs were entitled to recover as damages the difference between the value of the machinery as warranted and its value as delivered, and also for the reasonable and necessary repairs made by the plaintiffs in a bona fide endeavor to make it work.” (Syl. IT 4.)
We think the plaintiff had no right whatever to recover from the defendant the face value of the note when it is found it could not have collected that amount if the signature of the wife had been genuine, and at most can recover the value of the household goods which were exempt without the signature of the wife to the note.
There may be some question as to the negotiable character of the note here under consideration, because of the possibility of the provisions thereof pertaining to the security on chattels being in effect a promise to do an act in addition to the payment of money restricted by R. S. 52-205, but that point is not here raised, and perhaps because, aside from the implied warranty under the statute (R. S. 52-606), there is here the express warranty in the written contract.
Appellee strenuously insists that plaintiff should not even recover the $300 as the value of the exempt household furniture, because plaintiff was estopped by reason of having been informed of the forgery before it delivered the deed to the defendant and closed the land deal, citing R. S. 52-502 and 52-504 and Callahan v. Bank, 113 Kan. 577, 215 Pac. 831. The last section above cited is as follows:
“Where the transferee receives notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him.”
These sections do not apply to a case of this kind, because, as stated before, this is not an action upon a negotiable instrument. Likewise the Callahan case, above cited, was an action to cancel certain notes and it was decided upon the strength of the above sections and succeeding ones in the same article.
The court in the case at bar found that the contract was entered into by plaintiff in good faith, but before the deed was delivered its officers learned that the wife claimed her signature to the note was a forgery. The record also shows that the defendant knew of this claim before the deal was closed and was threatening the plaintiff with an action if the contract was not complied with by the plaintiff at once. We do not think this comes within the requirements for estoppel. The act of the plaintiff did not in any way mislead the defendant. He was in no way prejudiced by the closing of the deal. (See Dent v. Smith, 76 Kan. 381, 92 Pac. 307; Jacquart v. Jennings, 118 Kan. 224, 235 Pac. 101; and In re Town of Olsburg, 118 Kan. 440, 235 Pac. 845.)
Appellee claims the court erred in not giving credit for the value of a certain radio mentioned in the chattel mortgage and also in finding against him on his cross petition for damages on account of representing the farm to have been worth $10 per acre more than the court found it to be worth, but the court found that, while such representations were made, the contract provided each party was to act upon his own judgment' and.that the defendant had personally visited the land before executing the contract.
We think the findings of the trial court are supported by the evidence and the conclusions of law are proper.
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 wife of a workman to recover compensation, resulting from the injury and death of the workman. Charles E. Gamble had been employed in the electric light plant of Kansas City ever since its construction about thirty-eight years ago, and continued to work in and about the plant since it was acquired by the city of Kansas City about twenty-two years ago. On November 19,1931, he sustained an accidental injury while he was enrolled as a machinist helper. The injury was sustained by him when he fell from a chair in the main room of the plant, which had a tile floor, and in some way he fell on the tiling causing injury to his shoulder. He was picked up by other employees and taken to his home, suffering from injuries to hi's leg and hip. After the injury he at once developed a cough which continued to grow worse and finally developed into pneumonia, from which he died on December 11,1931, about three weeks after the injury. A claim for compensation was presented, but the commissioner found that deceased’s death did not arise out of his employment and denied compensation. On an appeal to the district court the findings and award of the compnissioner were affirmed in all respects.
The evidence upon which the finding of the commissioner was based appears to be that Gamble, who was about eighty years of age when injured, had sustained an earlier injury in an automobile accident on July 15, 1931, which was in no way connected, with his employment, and he did not return to the light plant until August 30, 1931. He was then feeble and infirm and thought to be unfit for work. The foreman with whom he had previously worked testified that when he came back to the plant, about a week before his fall and injury, he had ordered Gamble not to do any work as he was physically unable. That order to cease work, the foreman said, was due to fear that he would injure himself, and practically no work was done by him. He sat in a chair in the main room of the plant, and the foreman had directed a fellow employee to keep him sitting until he could find something to do with him. It appears that he was kept on the rolls and was paid wages after he returned to the plant; and these wages, the commissioner found, amounted to a pension or a gratuity. The commissioner found, among other things, that the injury of November 19, 1931, arose in the course of the employment—
“But when the question is considered as to whether or not it arose out of that employment, we meet with this difficulty: Although the finding is made herein that deceased was an employee of respondent at the time of the injury in November, there is absolutely nothing in the record to indicate what sort of employment that was or what his duties at the plant consisted of. Not knowing what was expected of him at his work, it is impossible to say that any sort of an accident arose out of his employment. In addition to that, there is in this case the proposition that there is no evidence as to what caused the fall or what deceased was doing at the time of the fall. Claimant attempted to show that the floor where deceased fell was slippery, but the evidence does not substantiate that theory, and, in fact, is to the effect that the floor was an ordinary tile floor, not particularly slippery, and it was compared by various witnesses to the floor in the court room where the hearing was had. The evidence also shows that deceased was infinn and feeble and had fallen several times at the plant since his injury in July. If his own physical condition was the cause of his fall on November 19, 1931, no recovery can be had herein, on the authority of Cox v. Refining Company, 108 Kan. 320, cited by respondent in its brief. Nothing in the evidence negatives this proposition. The burden is upon claimant to show that the injury arose out of the employment by a preponderance of evidence, and she having failed to sustain this burden, the decision must be against her.”
The case turns upon whether the injury sustained arose out of the workmen’s employment. Unless it did so arise, it cannot be regarded as a liability upon industry nor within the compensation act. So far as the record shows, the workman was doing nothing within his employment when he fell from the chair and practically had done nothing since he returned from his former injury. In Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863, the court considered the phrase, “arising out of the employment,” and. in that connection said:
“But it is not sufficient to impose liability upon the injured workmen’s employer that the injury arose in the course of the employment. There is another and more important prerequisite. The injury must also arise out of the employment. It must arise because of it, or in some reasonable way be traceable to it. The injury must in some sense be due to the employment. The philosophy on which the workmen’s compensation act is founded is that the wear and tear of human beings in modern industry should be charged to the industry just as the wear and tear of machinery has always been charged. And while such compensation is primarily chargeable to the industry and consequently to the employer or owner of the industry, eventually it becomes a part of the fair money cost of the industrial product, and to be paid for by the general public patronizing such product.” (p. 322.)
Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, is an instructive case wherein the phrase “out of the employment” is interpreted and its application under differing circumstances stated. There an employee of a ditching company noticing that his foreman had parked his automobile at a place where he thought it would be in danger by an approaching truck loaded with timbers, left his work and obtained from the foreman a key to the car and started to move it to what he thought would be a safer place. In doing so he drove a short distance to and across a railroad track where he was struck by a passing railroad-train and was killed. Compensation was sought, and the question presented was, Did the injury arise out of his employment? It was held that Sellers was employed to do construction work and not to look after the foreman’s car, and after discussing causal relation and that the injury must be reasonably traceable to the employment or an incident of it, remarked:
“The real question involved in such cases is whether the risk was one within the purview of the statute and, generally speaking, it is sufficient if the injury result from causes originating within the employment, considered as a protected field. If in any case the cause of injury takes its rise from something extraneous to the employment, the injury does not arise out of the employment, and recovery should be denied on that ground, not on the ground that the employment is not proximate cause.” (p. 554.)
On the same line see, also, McNicol’s Case, 215 Mass. 497; Coronado Beach Co. v. Pillsbury, 172 Cal. 682.
What was Gamble doing towards his employment when he was injured? It may be assumed that his injury resulted from a fall from the chair he was occupying, but what was he undertaking to do when he fell and what, in fact, caused the fall? On these questions the record is silent. The burden was upon the claimant to prove, not only that he was an employee of defendant, but that the injury which caused his fall arose out of his employment, and the court held that in the absence of evidence the court was left to guess how he fell and what he was doing when he fell and remarked that:
“The court does not feel that it is justified in supplying testimony which is lacking and basing a finding only upon speculation and not supported by any evidence whatever, to the effect that it arose out of his employment. And does not believe that a failure on the part of the claimant to sustain the burden of proof that the injury arose out of the employment can be remedied by a finding of the court, based only upon guess, conjecture or surmise.”
The case of Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818, relied on by the plaintiff, is not an applicable authority in the present case. There the injury was sustained after the employee had been checked in to the premises and had gone to a dressing room to change clothes and while doing so fell and sustained an injury. The dressing room was provided by the employer for the purpose of accommodating employees and facilitating the work. It was a preparation necessary to beginning work and was so recognized by the employer. It was therefore held to be an incident of the employment and the injury a compensable one. It is clearly distinguishable from the circumstances of the instant case, and in the absence of evidence to show that the injury arose out of the employment it must be held that the decision of the district court was correct, and it is. therefore affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Edgar Searcy appeals a jury finding that he is a sexually violent predator, as defined under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. After the issues were briefed on appeal, Searcy for the first time claimed that the district court lacked jurisdiction because he had not been brought to trial within the mandatory time period set forth in K.S.A. 2001 Supp. 59-29a06.
On April 17, 2000, a petition was filed to have Searcy declared a sexually violent predator under the Kansas Sexually Violent Predator Act. At the time the petition was filed, Searcy was less than 40 days from his scheduled release from Hutchinson Correctional Facility, where he was serving a sentence for sexual exploitation of a child under the age of 16. On May 17, 2000, Searcy waived his right to contest the probable cause finding and was sent to Larned State Security Hospital (Larned) for an evaluation to determine whether he was a sexually violent predator. The district court granted Searcy’s motion for an independent psychological evaluation. A jury trial was held February 15 and 16, 2001.
The parties stipulated that Searcy had been adjudicated guilty by a Florida state court in 1988 following a plea of nolo contendere to two counts of sexual acts with a child and one count of a lewd and lascivious act with a child under the age of 16. They stipulated that Searcy had been adjudicated guilty by the district court in Barton County, Kansas, in 1996, following a plea of nolo contendere to the crime of sexual exploitation of a child under the age of 16. The parties also stipulated that these were sexually violent crimes. Searcy was originally charged in Barton County with one count of aggravated indecent liberties with a child, aggravated indecent solicitation of a child, and lewd and lascivious behavior.
Searcy’s Florida convictions arose out of allegations that he sexually molested his step-daughter. Searcy informed the evaluators at Lamed that he had pled no contest to these charges because he was having a nervous breakdown, was mentally unstable at the time, and did not want the child to have to testify. While in prison in Florida, a newspaper ad, run either at Searcy’s direction or at the direction of a friend of Searcy’s, led to the development of a relationship between Searcy and another woman. Soon after being released from his incarceration, Searcy married the woman. Within 3 months, it was alleged that Searcy sexually molested his new stepdaughter. Searcy’s conviction in Kansas arose out of these allegations, although the allegations were not made until a year later when Searcy filed for custody of his son. While in Florida, Searcy underwent treatment for sex offenders, but made little progress and did not successfully complete the program. Searcy could not receive treatment in Kansas for his sex offenses because he would not admit that he committed the offenses.
After the evidence was presented, the jury found Searcy to be a sexually violent predator. Searcy was committed into the custody of the Secretary of Social and Rehabilitation Services to be held in a secure facility for care, treatment, and control, until such time as he is safe to be released. A timely notice of appeal was filed. This court has jurisdiction by transfer of its own motion pursuant to K.S.A. 20-3018(c). As stated previously, Searcy first claimed the trial court did not have jurisdiction over him on appeal and after submitting his appellate brief. An objection based on lack of subject matter jurisdiction may be raised for the first time on appeal. Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999). This court granted Searcy leave to brief this additional issue.
STATUTORY PROVISIONS
The Kansas Sexually Violent Predator Act was enacted by the legislature in 1994 to create a separate involuntaiy civil commitment process for long-term control, care, and treatment of sexually violent predators. K.S.A. 2001 Supp. 59-29a01. Three statutes which impose timelines for events under the Act and which affect our decision are set forth below:
“When it appears that a person may meet the criteria of a sexually violent predator as defined in K.S.A. 59-29a02 and amendments thereto, the agency with jurisdiction shall give written notice of such to the attorney general and the multidisciplinary team established in subsection (d), 90 days prior to:
(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense . . .;
(2) release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial. . .;
(3) release of person who has been found not guilty by reason of insanity of a sexually violent offense . . .;
(4) release of a person who has been found not guilty of a sexually violent offense. . . .” (Emphasis added.) K.S.A. 2001 Supp. 59-29a03(a).
‘When it appears that the person presently confined may be a sexually violent predator and (he prosecutor’s review committee appointed as provided in subsection (e) of K.S.A. 59-29a03 and amendments thereto has determined that the person meets the definition of a sexually violent predator, the attorney general may file a petition, within 75 days of the date the attorney general received the written notice by the agency of jurisdiction as provided in subsection (a) of K.S.A. 59-29a03 and amendments thereto, alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation.” (Emphasis added.) K.S.A. 2001 Supp. 59-29a04(a).
“Within 60 clays after the completion of any hearing held pursuant to K.S.A. 59-29a05 and amendments thereto, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial maybe continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced.” (Emphasis added.) K.S.A. 2001 Supp. 59-29a06.
K.S.A. 2001 Supp. 59-29a05 provides for aprobable cause hearing to be held after a petition has been filed to declare an individual a sexually violent predator.
Searcy contends the trial court lacked jurisdiction under K.S.A. 2001 Supp. 59-29a06 to declare him a sexually violent predator. He asserts that jurisdiction to proceed under the Act was lost when he was not brought to trial within 60 days after waiver of his right to contest the probable cause finding. The State first argues that the statute’s 60-day requirement is not jurisdictional and, secondly, that Searcy clearly and explicitly waived the requirement. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. State v. Murry, 271 Kan. 223, 224, 21 P.3d 528 (2001); In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 529, 957 P.2d 473 (1998).
Because Searcy claims he was not brought to trial within the 60-day period as required by K.S.A. 2001 Supp. 59-29a06, it is necessary to review the district court record. After the State’s petition to declare Searcy a sexually violent predator was filed on April 17, 2000, Searcy filed a pro se notice of removal from state court in the United States District Court of Kansas on May 1,2000. In filing this notice, Searcy also attached a pro se motion to treat as an original action and an unsigned motion for writ of habeas corpus.
On May 9, 2000, the state district court set Searcy’s hearing to contest probable cause for May 11, 2000. Searcy filed a motion for continuance of the May 11,2000, hearing. The motion was granted on May 15, 2000, and the hearing to contest probable cause was rescheduled for June 5, 2000. On May 9, 2000, Searcy filed a motion objecting to and requesting a change of venue in the state action. At a hearing on May 17, 2000, Searcy waived his right to a hearing to contest probable cause in the state action and filed a pro se request for discovery and admittances. K.S.A. 2001 Supp. 59-29a06 required the trial to be set within 60 days of May 17, 2000.
On May 23, 2000, the district court set the matter for hearing on August 11, 2000. Searcy filed a pro se motion to disqualify the judge in the state action on May 25,2000. On June 5,2000, Searcy’s motion to remove the case was denied by the federal court, and the case was remanded back to state court. On June 14, 2000, the district judge in the state action set the matter for trial and for hearing on the outstanding motions on August 11, 2000. The August 11, 2000, trial date exceeded the statute’s 60-day limitation as calculated from the May 17, 2000, waiver of the probable cause hearing.
On June 16, 2000, Searcy filed a pro se motion for rehearing in the United States District Court of Kansas. Searcy’s psychological evaluation at Lamed was completed on of around June 27, 2000. On July 6, 2000, Searcy filed a motion for independent psychological evaluation and a demand for juiy trial. On July 19, 2000, Searcy requested that the independent evaluation be performed by a different evaluator than originally requested. On that same day, Searcy filed a pro se motion for a discovery conference. On July 20, 2000, a hearing on Searcy’s motion for independent evaluation was set for July 31, 2000. On July 22, 2000, Searcy wrote a letter to State’s counsel giving notice of his intent to take depositions on August 4 or 5, 2000. On July 24, 2000, Searcy’s request for rehearing was denied by the federal court.
At a hearing on August 2, 2000, the state district court, among other things, found Searcy’s motion to remove from state court moot, denied Searcy’s motion to change venue, allowed Searcy to depose witnesses, granted Searcy’s motion for jury' trial, and granted Searcy’s motion for independent evaluation. On August 10, 2000, without stating the reason, the district court rescheduled the August 11,2000, trial date for October 10,2000. It is important to note that the October 10,2000, trial setting once again exceeded the statutory 60-day limitation.
The State filed motions for continuances on October 10, 2000, and November 22, 2000, which were granted by the district court. Searcy’s trial began on February 15, 2001-274 days after Searcy waived his right to a hearing to contest probable cause. The court record does not indicate that the 60-day period to conduct a trial was exceeded for good cause.
JURISDICTION
When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed in the language of the statute, rather than determine what the law should be. In re Care and Treatment of Ingram, 266 Kan. 46, 48, 965 P.2d 831 (1998); Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 682, 847 P.2d 1292 (1993). It is presumed that the legislature understood the meaning of and intended the words used and that the legislature used the words in accordance with their ordinary and common meaning. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 245, 834 P.2d 368 (1992). “In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible.” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
Is the 60-day period in K.S.A. 2001 Supp. 59-29a06 jurisdictional? Searcy relies upon In re Care and Treatment of Blackmore, 30 Kan. App. 2d 90, 39 P.3d 89 (2002), and In re Care and Treatment of Brown, 26 Kan. App. 2d 117, 978 P.2d 300 (1999), in support of his contention that the 60-day period is jurisdictional.
We note that there are at least two reasons why Searcy benefits from the 60-day period being jurisdictional. First, the question of whether subject matter jurisdiction exists is a question of law over which this court has unlimited review, and an objection based on lack of subject matter jurisdiction may be raised at any time, even when it is raised for the first time on appeal. Rivera, 267 Kan. at 868; State ex rel. Secretary of SRS v. Mayfield, 25 Kan. App. 2d 452, 455, 966 P.2d 85 (1998). Thus, Searcy’s failure to raise this issue below does not preclude review on appeal. Secondly, a party cannot waive or consent to the jurisdiction of a court if the court lacks or has lost subject matter jurisdiction. In re Marriage of Mosier, 251 Kan. 490, Syl. ¶ 1, 836 P.2d 1158 (1992); Harris v. Christy, 166 Kan. 395, Syl. ¶ 5, 201 P.2d 1067 (1949). If jurisdictional, failure to bring a respondent to trial within 60 days of the probable cause determination would deprive the court of jurisdiction and require the court to dismiss the action for violation of the respondent’s right to be brought to trial within 60 days, rendering the State’s contention that Searcy waived the 60-day limitation by his actions meritless.
K.S.A. 2001 Supp. 59-29a04 75-day Limitation
In Ingram, 266 Kan. 46, the State appealed the dismissal of its petition charging Ingram as being a sexually violent predator under the Kansas Sexually Violent Predator Act. At the time the petition was filed, Ingram was confined, serving a sentence for rape. However, the petition was not filed within 75 days of the attorney general receiving the written notice as provided for by K.S.A. 1997 Supp. 59-29a04. The attorney general had filed the petition 88 days after receiving written notice, rather than within the 75-day period. Ingram asserted that tire 75-day period was jurisdictional. The district court agreed, and the petition was dismissed. The State appealed.
The Ingram court noted that there was no dispute as to whether the agency with jurisdiction complied with the notice provision of K.S.A. 1997 Supp. 59-29a03. The Secretary of Corrections sent written notice that Ingram fit within the definition of a sexually violent predator to the attorney general and the multidisciplinaiy team 90 days prior to Ingram’s release date. The court then observed that the attorney general failed to take action within the time specified under K.S.A. 1997 Supp. 59-29a04, which provided:
“When it appears that the person presently confined may be a sexually violent predator and the prosecutor’s review committee appointed as provided in subsection (e) of K.S.A. 59-29a03 and amendments thereto has determined that the person meets the definition of a sexually violent predator, the attorney general may file a petition, within 75 days of the date the attorney general received the written notice by the agency of jurisdiction as provided in subsection (a) of K.S.A. 59-29a03 and amendments thereto, alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation.” (Emphasis added.)
The Ingram court noted that the question of whether the petition must be filed within the 75-day period was a question of law; therefore, review was unlimited. 266 Kan. at 48; see State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998). The court observed that the statute plainly and unambiguously authorized the attorney general to “file a petition, within 75 days of the date the attorney general received the written notice.” K.S.A. 1997 Supp. 59-29a04; see 266 Kan. at 48. Finding that there was no provision in the Act for a petition to be commenced outside of the 75-day period, the court held that K.S.A. 1997 Supp. 59-29a04 provided the sole authority for the State to file a petition to have a person declared a sexually violent predator. The court determined that the 75-day limitation was jurisdictional, determined that the district court had no jurisdiction to entertain a petition filed beyond the time provided for in K.S.A. 1997 Supp. 59-29a04, and affirmed the district court. 266 Kan. 48-49.
The legislature’s response to the decision in Ingram is instructive. Less than 1 year after the Ingram decision, the legislature amended 59-29a04 to include a provision stating that the failure to comply with the provisions of that statute, including the 75-day period, was not jurisdictional. L. 1999, ch. 140, sec. 4; see K.S.A. 2001 Supp. 59-29a04(b); Blackmore, 30 Kan. App. 2d at 95. At the same time, the legislature also amended 59-29a03, which requires that the attorney general be given 90 days’ notice that an individual might meet the criteria of a sexually violent predator, by including a provision stating that the provisions within that statute were also not jurisdictional. L. 1999, ch. 140, sec. 3; see K.S.A. 2001 Supp. 59-29a03(f).
Strict compliance with the 60-day period under K.S.A. 2001 Supp. 59-29a06 is essential to the preservation of the rights of those against whom a petition has been filed and a probable cause finding has been made. Even though the term “shall” is not conclusive, it indicates the legislature intended the 60-day period to be more than directory. The intent for the 60-day provision to be mandatory may also be inferred from the legislative history of the Act. The fact the legislature amended both the provision specifically addressed in Ingram, as well as another statute within the Act, but did not amend the statute in question, is supportive of the assumption that the 60-day period provided for in K.S.A. 2001 Supp. 59-29a06 was intended by the legislature to be mandatory. When the legislature fails to modify a statute to avoid the standing judicial construction of that statute, it is presumed that the legislature agreed with the court’s interpretation. In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000).
Prior Decisions Interpreting 59-29a06
Two Court of Appeals decisions have held that the requirement in 59-29a06 that trial be conducted within 60 days after the probable cause determination is jurisdictional.
In Brown, 26 Kan. App. 2d 117, the trial court found probable cause to believe that Brown was a sexually violent predator and ordered him to be taken into custody for an evaluation on May 16, 1996. On October 15,1997, Brown moved to dismiss the proceeding, asserting that K.S.A. 1995 Supp. 59-29a06 mandates that a trial be conducted within 60 days of the probable cause hearing and that he had been substantially prejudiced by the delay. No motion for extension of time had been filed in the case. The district court denied the motion. At the hearing, the court stated that the delay between the probable cause hearing held in May 1996 and June 1997 was to await the United States Supreme Court decision on the constitutionality of the Kansas Sexually Violent Predator Act. The court also ruled that the 60-day limitation was directory and that Brown was not prejudiced by the delay. Brown remained in detention until trial. On January 26, 1998, over 600 days after the probable cause determination, the district court held a hearing and determined that Brown was a sexually violent predator. On appeal, Brown alleged a violation of a timely hearing pursuant to K.S.A. 1995 Supp. 59-29a06, contending that the 60-day limitation in K.S.A. 1995 Supp. 59-29a06 was mandatory and that the trial court erred in overruling his motion to dismiss.
The Brown court observed that in construing a statute, the court must interpret the statute to give the effect intended by the legislature. 26 Kan. App. 2d at 119 (citing West v. Collins, 251 Kan. 657, 661, 840 P.2d 435 [1992]). “ Tn construing statutes, statutory words are presumed to have been and should be treated as consciously chosen, with an understanding of their ordinary and common meaning and with the legislature having meant what it said. [Citation omitted.]’ ” 26 Kan. App. 2d at 119 (quoting International Ass’n of Firefighters v. City of Kansas City, 264 Kan 17, 31, 954 P.2d 1079 [1998]). It noted that when a statute is plain and unambiguous, the court will not speculate as to the legislative intent behind the statute and will not read such a statute so as to add something not readily found in the statute. 26 Kan. App. 2d at 119-20 (citing In re Marriage of Killman, 264 Kan. 33, 43, 955 P.2d 1228 [1998]).
The Brown court observed that in construing the language of K.S.A. 1997 Supp. 59-29a04, this court held that the “ ‘75-day provision is jurisdictional, and a district court has no jurisdiction to entertain a petition filed beyond the time provided,’ ” noting that this was done despite the word “shall” not being used in the statute. 26 Kan. App. 2d at 120 (citing Ingram, 266 Kan. at 49). The Brown court stated that the language of K.S.A. 1995 Supp. 59-29a06 was clear and that the use of the term “shall” indicated that the legislature had mandated that the commitment trial be held within 60 days after the probable cause hearing. The court held the inclusion of the language “[t]he trial may be continued” does not render the term “shall” discretionary. 26 Kan. App. 2d at 120.
The court also observed that continuance is conditional. “A continuance (1) must be considered upon a motion; (2) must be granted for the purpose of due administration; and (3) cannot substantially prejudice the defendant.” 26 Kan. App. 2d at 120. After noting that neither the district court nor the parties had filed a motion for continuance of trial, the Brown court held that the 60-day requirement specified in K.S.A. 1995 Supp. 59-29a06 was mandatory and jurisdictional. 26 Kan. App. 2d at 120.
In Blackmore, 30 Kan. App. 2d 90, the attorney general filed a petition seeking to have Blackmore declared a sexually violent predator on April 13, 2000. On April 28, 2000, the trial court held a hearing pursuant to K.S.A. 2000 Supp. 59-29a05 and found there was probable cause to believe Blackmore was a sexually violent predator. A journal entry was filed which ordered that the matter be “ ‘scheduled for jury trial within sixty (60) days or whenever the parties advise the Court that they are prepared to proceed to trial.’ ” 30 Kan. App. 2d at 91. The Blackmore court noted that the journal entry was apparently filed without a clear waiver of the 60-day period under K.S.A. 2000 Supp. 59-29a06 being obtained from Blackmore. The record appeared to indicate that Blackmore’s case was set for a trial on August 14, 2000, after Blackmore filed a motion requesting a jury trial on August 2, 2000, which was later waived. The trial court granted Blackmore’s motion that day. The Blackmore court noted, however, that by that time, the 60-day limitation had already been exceeded. 30 Kan. App. 2d at 91.
On August 8, 2000, Blackmore moved for continuance of the trial for the following reasons: (1) defense counsel had learned that an essential witness was unavailable on August 14, 2000; (2) the State did not oppose the continuance; and (3) Blackmore would suffer undue prejudice and harm if compelled to be tried without the attendance of the witness. The motion for continuance was granted.
Blackmore’s trial was held on October 5, 2000. The trial court found beyond a reasonable doubt that Blackmore was a sexually violent predator. At trial, Blackmore did not challenge his trial as being outside the 60-day period provided for under K.S.A. 2000 Supp. 59-29a06. Blackmore was committed to the custody of the Secretary of Social and Rehabilitation Services for control, care, and treatment at an appropriate facility until such time as his mental abnormality had so changed that he was safe to be at large.
Blackmore pointed out for the first time, on appeal, that more than 60 days had elapsed between the probable cause determination and his original trial date and argued that the trial court did not have jurisdiction under K.S.A. 2000 Supp. 59-29a06 to find he was a sexually violent predator. The Blackmore court observed that under K.S.A. 2000 Supp. 59-29a06, a court is required to conduct a trial within 60 days after completion of the probable cause hearing under K.S.A. 2000 Supp. 59-29a05. It noted, however, that the trial may be continued upon the request of either parly and a showing of good cause, or by the court on its own motion in the due administration of justice and when the respondent will not be substantially prejudiced. 30 Kan. App. 2d at 92-93; see K.S.A. 2000 Supp. 59-29a06. In reaching this decision, the court noted two cases that had previously addressed this 60-day limitation — In re Care and Treatment of Goracke, 27 Kan. App. 2d 837, 9 P.3d 595 (2000), and Brown, 26 Kan. App. 2d at 117.
The Blackmore court noted that in both Brown and Goracke the issue of the 60-day period had first been addressed by the trial court. In Blackmore, the issue was being raised for the first time on appeal. Blackmore argued his case raised jurisdictional issues based on the Brown court’s decision that the 60-day limitation under K.S.A. 1995 Supp. 59-29a06 was mandatory and jurisdictional. The Blackmore court observed that it had unlimited review to determine jurisdiction, regardless of whether the issue was previously raised in the district court. It noted that the appellate courts may raise the issue of jurisdiction at any time and whether jurisdiction exists is a question of law over which the appellate court’s scope of review is unlimited. 30 Kan. App. 2d at 94 (citing Maggard v. State, 27 Kan. App. 2d 1060, Syl. ¶ 1, 11 P.3d 89 [2000]).
The Blackmore court held that unless the statutory provisions to continue the trial of an action brought under the Kansas Sexually Violent Predator Act are followed, district courts are without juris diction to entertain actions after the expiration of 60 days. 30 Kan. App. 2d 90, Syl. ¶ 2. The Blackmore court pointed out that “a defendant does not acquiesce to an extension beyond 60 days by requesting a continuance after the 60 days have already run.” 30 Kan. App. 2d 90, Syl. ¶ 3. The district court’s decision that Black-more was a sexually violent predator under K.S.A. 2000 Supp. 59-29a02(a) was reversed due to the district court’s lack of jurisdiction to hear the proceeding because of the failure to bring the matter to trial in a timely fashion. 30 Kan. App. 2d at 95-96.
ANALYSIS
The mandatory language of K.S.A. 2001 Supp. 59-29a06 is analogous to the statutory right to speedy trial in criminal cases. This analogy was recognized by the Court of Appeals in Blackmore in holding that the State bears the obligation to ensure that an accused is brought to trial under the Kansas Sexually Violent Predator Act within the 60-day period. In arriving at this decision, the court analogized the 60-day period to that of the statutory right to speedy trial in Kansas under to K.S.A. 22-3402. 30 Kan. App. 2d at 96. See City of Elkhart v. Bollacker, 243 Kan. 543, 546, 757 P.2d 311 (1988) (State bears burden of bringing accused to trial within allotted time for speedy trial and accused is not required to take affirmative action to see that his or her right is observed).
K.S.A. 22-3402(1) provides in part:
“If any person charged with a crime and held in jail solely for reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall to be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court . . . .”
It is also noteworthy that K.S.A. 2001 Supp. 59-29a06 and K.S.A. 2001 Supp. 59-29a07 grant a respondent under the Act the right to such things as court-appointed counsel, a jury trial, and a unanimous jury verdict. See In re Care and Treatment of Hay, 263 Kan. 822, 831, 953 P.2d 666 (1998) (the Act provides for all necessary basic protections to meet due process requirements). As the United State Supreme Court recognized in Kansas v. Hendricks, 521 U.S. 346, 364, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), the procedural and evidentiaiy protections afforded under the Act demonstrate the legislature’s intent to confine only a narrow class of individuals and only upon the meeting of the strictest procedural standards.
Pursuant to K.S.A. 2001 Supp. 59-29a06, the only exception to the requirement that the respondent be brought to trial within 60 days is if the matter is continued upon the request of either party and a showing of good cause is made or is continued by the court on its own motion for due administration of justice, and the respondent will not be substantially prejudiced. The State contends Searcy was the direct cause of the expiration of the 60-day period because he made numerous attempts to delay the matter from proceeding to trial. The State asserts that Searcy’s filing' of the notice of removal and motion for rehearing in federal court stayed or tolled the 60-day period. The State contends Searcy further delayed the matter from proceeding to trial by filing discovery requests, a motion to disqualify the judge, a demand for jury trial, and a motion for independent psychological evaluation. None of these requests, however, appear to have had any effect upon the trial court’s initial setting of trial beyond the 60-day period.
The State contends it was ready to proceed to trial after Searcy’s psychological evaluation was completed on June 27, 2000, but contends Searcy’s pro se motions caused the delay. If trial had been set for June 27, 2000, the State would have a persuasive argument. Trial, however, was set for August 11, 2000. The State’s claim that this matter could have proceeded to trial within the 60-day period is clearly not supported by the record because there was no attempt on behalf of the district court or the State to set trial during that period. The State cannot on appeal attempt to allege that Searcy’s actions caused the delay when there is no evidence in the record to support this claim. The State also asserts that under the circumstances Searcy cannot claim he was prejudiced by the failure of the matter to proceed to trial within the statute’s 60-day limitation.
Waiver
This case differs from Goracke, 27 Kan. App. 2d 837, in which the respondent objected to the failure of the trial court to bring him to trial within the 60-day period. The delay in Goracke resulted from withdrawal of two of the respondent’s attorneys and the respondent’s motion for an independent psychological evaluation. After Goracke objected to the delay, the trial court made the requisite finding and determined that any delay was for the due administration of justice and that Goracke had not been prejudiced.
The Goracke court noted a court is required to conduct a trial within 60 days after the completion of a K.S.A. 1999 Supp. 59-29a05 hearing to determine whether the person is a sexually violent predator. The Goracke court concluded that in order for the statutory 60-day period to be extended, there must be a request with a showing of good cause or a motion by the court. A continuance is conditional and (1) must be considered upon a motion, (2) must be granted for the purpose of due administration; and (3) cannot substantially prejudice the defendant. The Goracke court upheld the juiy’s finding that Goracke was a sexually violent predator. 27 Kan. App. 2d at 839-40.
In reviewing the record, there is no indication that the filing in federal court affected the scheduling of Searcy’s trial date. Shortly after Searcy’s waiver of his right to contest the probable cause finding, the district judge set the matter for hearing on August 11, 2000, 86 days after the probable cause determination. Approximately 3 weeks later, the case was then specifically set for trial on this same date. There is no indication in the record that the 60-day period was ever considered by the district judge, the State, or the respondent, nor was there any attempt by the judge or by the State to set the matter for trial within 60 days.
We conclude that the 60-day period stated in K.S.A. 2001 Supp. 59-29a06 is jurisdictional, mandatory, and a statutory right granted to respondents under the Act. Therefore, because Searcy was not brought to trial within 60 days of his waiver of the right to contest the probable cause finding and the record contains no indication that the trial court granted a continuance prior to the expiration of those 60 days, Searcy’s rights under the Act were violated.
Reversed. | [
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In a letter dated August 31, 2002, to Carol Green, Clerk of the Appellate Courts, respondent James K. Craig, of Wichita, an attorney admitted to the practice of law in the State of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2001 Kan. Ct. R. Annot. 272).
At the time the respondent surrendered his license, there were 11 docketed complaints against him under investigation. The complaints from clients involved allegations of lack of communication, lack of diligence, and failure to return unearned retainers. Further, the respondent was suspended from the practice of law for a period of 1 year by this court effective October 19, 2001.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that James K. Craig be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of James K. Craig from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276).
Dated this 7th day of October, 2002. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Stanley L. Wiles of Kansas City, Missouri, an attorney who has been admitted to the practice of law in Kansas. The hearing panel concluded that respondent had violated Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2001 Kan. Ct. R. Annot. 323), 1.4 (communication) (2001 Kan. Ct. R. Annot. 334), 1.5 (fees) (2001 Kan. Ct. R. Annot. 345), and 1.15 (safekeeping property) (2001 Kan. Ct. R. Annot. 376). The hearing panel also concluded that respondent had violated KRPC 1.1 (competence) (2001 Kan. Ct. R. Annot. 312), citing State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984). The panel recommended published censure. We adopt and impose the panel’s recommendation.
On May 16, 2002, the hearing panel met and deliberated on the issues in this case. Prior to the hearing, pursuant to a written stipulation entered into by respondent and his counsel, Jerry R. Palmer, respondent agreed to waive his right to a hearing on this matter.
The hearing panel made the following findings of fact and conclusions of law:
“1. Stanley L. Wiles (hereinafter ‘the Respondent’) is an attorney [practicing in Kansas] .... The Respondent’s last registration address with the Clerk of the Appellate Courts of Kansas is . . . Kansas City, Missouri ....
“2. In January 1996, Lindy S. Painter sustained injuries to her back when the elevator that she was riding in, at the University of Kansas Medical Center, fell several floors. Ms. Painter retained an attorney to file suit against the University of Kansas Medical Center, the Kansas State Board of Regents, and MontgomeryKone, Inc. (Montgomeiy-Kone, Inc., was the company that installed and maintained the elevator.)
“3. On September 9, 1998, Ms. Painter’s lawsuit was dismissed without prejudice.
“4. Thereafter, on February 24, 1999, Ms. Painter retained the Respondent to refile tire lawsuit. Ms. painter and the Respondent entered into a contingency fee agreement. The agreement provided as follows:
‘For such professional services rendered, I also hereby agree to pay said Stanley L. Wiles 45% of the gross amount recovered on my behalf on this claim, 45% if my case goes to trial.’
The agreement did not advise Ms. Painter of her right to have the fee reviewed by the District Court. Additionally, tire agreement did not properly state that expenses were to be deducted before tire settlement was divided between the Respondent and Ms. Painter.
“5. On March 5, 1999, the Respondent refiled Ms. Painter’s lawsuit against the University of Kansas Medical Center, the Kansas State Board of Regents, and Montgomery-Kone, Inc., in Wyandotte County District Court case number 99-C-1033.
“6. On July 20, 1999, the University of Kansas Medical Center and the Kansas State Board of Regents filed a motion to dismiss the lawsuit. Thereafter, on January 19, 2000, the court granted the motion and dismissed Ms. Painter’s case as against the University of Kansas Medical Center and the Kansas State Board of Regents. In its journal entry, the court found the following facts to be true:
‘3. Plaintiff re-filed the current case on March 5,1999.
‘4. Plaintiff sent a letter on May 21, 1999, to tire State Attorney General, Carla Stovall, stating “I am [sending] you a copy of the Petition for Damages and Praecipe on this case.” Plaintiff s counsel sent the letter by certified mail. The contents of the letter did not include either the court where the petition had been filed or a case number.
‘5. The moving defendants admit that they received the above letter but deny that the petition' or any other documents were attached to it.
‘6. Plaintiff s counsel sent another letter to the office of the State Attorney General, Carla Stovall, dated June 30, 1999. In that letter he stated: “According to your attorney when I served you by certified mail on May 21, 1999, I did not serve you with the Petition and Summons on this case. I am now serving you the Summons and Petition on this case.”
Again the face of the letter did not mention the court in which the petition was filed or a case number.
‘7. Plaintiff s counsel has never filed a return of service.’
In addition, the court concluded as follows:
‘A. The filing of the first case on January 23, 1997, occurred prior to the running of the applicable statute of limitations.
'B. Even though the statute of limitations had expired prior to dismissal of the first case, plaintiff had 6 months from the date of the dismissal in which to re-file the case (or until April 9, 1999) pursuant to K.S.A. 60-518.
‘C. Plaintiff filed the petition in the current case on March 5, 1999, within 6 months of the dismissal of her first case.
‘D. Pursuant to K.S.A. 60-203(a) the filing of the current Petition on March 5,1999, would not constitute a tolling of the statute of limitations unless service was obtained within 90 days of the filing of the petition (or within 120 days if the court had granted an extension of this time period for an additional 30 days).
‘E. Plaintiff s letter to the Kansas Attorney General dated May 21,1999, did not constitute service of process as required in K.S.A. 60-303(b).. . .
‘F. Any purported service of process by plaintiff on defendants by virtue of the letter of June 30,1999, was beyond the 90-day period within which service had to be accomplished in order for this action to be deemed filed on the date of the filing of the petition. Since plaintiffs counsel never requested that this 90-day period be extended, the matter was not “commenced” until defendants received the letter of June 30th with enclosures at the very earliest. This clearly was more than six months after the dismissal of the first case.
‘G. K.S.A. 60-204 provides that in certain circumstances a party’s substantial compliance with the requirements of service of process can be valid service if the party served was:
“made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.” Here, plaintiffs counsel did not substantially comply with the requirements for service of process since he never forwarded a summons to the defendants nor can he provide proof that he sent them a copy of the petition prior to the running of the statute of hmitations. The letter of May 21,1999, by itself does not adequately notify defendants of litigation against them such that it can be deemed “substantial compliance.” ’
“7. The Respondent informed Ms. Painter that the case had been dismissed as against the University of Kansas Medical Center and the Kansas State Board of Regents. However, the Respondent failed to inform Ms. Painter that the claims against the University of Kansas Medical Center and the Kansas State Board of Regents were dismissed because he failed to achieve timely service of process.
“8. On August 17, 2001, Montgomery-Kone, Inc., offered to settle the pending claim against it for $5,000.00. Ms. Painter accepted the offer, and on August 26, 2001, a journal entry of judgment was entered against Móntgomery-Kone, Inc., in the amount of $5,000.00.
“9. On October 4, 2001, the court directed the Clerk of the District Court pay to the Respondent a judgment amount of $5,066.50. The Clerk issued a check, made payable to Ms. Painter and the Respondent. The Respondent deposited the check into his law office operating account at the Bank of America. At the time of the settlement, the Respondent did not have a trust account and was of the opinion that because he was a personal injury attorney, he did not need to have a trust account. However, the Respondent now understands that he needs to deposit the settlement checks into a trust account and then disburse the funds from the trust account. The Respondent now has a trust account.
“10. On October 5, 2001, the Respondent provided Ms. Painter with a settlement statement, setting forth an accounting of the expenses and distribution of the proceeds from the settlement. The Respondent’s fee in this case was 40%. The settlement statement did not advise Ms. Painter of her right to have the fee reviewed according to KRPC 1.5(e).
“11. On October 15, 2001, tire Respondent provided Ms. Painter with a check drawn on his law office operating account for her share of the settlement proceeds. However, when Ms. Painter attempted to cash tire check on October 15, 2001, October 16, 2001, and October 18, 2001, the bank refused to pay the check because there were insufficient funds in the account to cover the check.
“12. On October 22, 2001, the Respondent provided Ms. Painter with a cashier’s check for her share of the settlement proceeds. The Respondent explained that the reason Ms. Painter’s check was not honored was because he had deposited another check in an unrelated case into his law office operating account but had inadvertently forgotten to endorse that check and, as a result, the unrelated check was returned for his signature, leaving insufficient funds to cover outstanding checks.
“13. By depositing the settlement check into his law office operating account, the Respondent commingled Ms. Painter’s funds with his own funds.
“CONCLUSIONS OF LAW
“1. It is appropriate to consider violations not included in the Formal Complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, 390 U.S. 544, [20 L. Ed. 2d 117, 88 S. Ct. 1222] (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘ “It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.” ’
235 Kan. at 458-59 [quoting State v. Turner, 217 Kan. 574, 579-80, 538 P.2d 966 (1975)]. Thus, only when the Formal Complaint alleges facts that would support findings of additional violations, will considering additional violations be allowed. In this case, the Formal Complaint contains sufficient facts to support a finding that the Respondent violated KRPC 1.1. Thus, in the opinion of the Hearing Panel, the additional violation of KRPC 1.1 should appropriately be considered.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessaiy for the representation.’ Id. The Respondent failed to provide competent representation when he . . . failed to timely obtain service of process on the defendants in the personal injury case for Ms. Painter. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Ms. Painter when the Respondent failed to timely obtain service of process on the defendants in the personal injuiy suit. Because the Respondent failed to act with reasonable diligence and promptness in representing Ms. Painter, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ Id. The Respondent failed to inform Ms. Painter regarding the status of her case and the reason for the dismissal. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. When a lawyer enters into a contingent fee agreement, the agreement: ‘shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in tire event of settlement, trial or appeal, and the litigation and other expenses to be deducted before the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the client’s share and amount and the method of its determination. The statement shall advise tire client of the right to have the fee reviewed as provided in subsection (e).’
KRPC 1.5(d). In this case, the Respondent’s contingent fee agreement did not advise Ms. Painter of her right to have the Respondent’s fee reviewed pursuant to KRPC 1.5(e). As such, the Hearing Panel concludes drat the Respondent violated KRPC 1.5(d).
“6. A lawyer must safeguard the property of his client and a lawyer must also ‘hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.’ KRPC 1.15(a). Additionally, a lawyer must hold client funds in a ‘separate account maintained in the state of Kansas.’ Id. In this case, the Respondent deposited the settlement proceeds paid by Montgomeiy-Kone, Inc., into the Respondent’s operating account. The Respondent then issued a check to Ms. Painter for her share of the settlement. However, the bank did not pay the check issued to Ms. Painter because there were insufficient funds in the account to cover the check. Because the Respondent failed to deposit the settlement proceeds into a ‘separate’ or trust account, and because the Respondent commingled his funds with his client’s funds, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a).
“RECOMMENDATION
■ “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to provide competent and diligent representation to his client. Additionally, the Respondent violated his duty to safeguard his client’s property.
“Mental State. The Respondent negligently violated his duties.
“Injury. As a result of the Respondent’s negligence, Ms. Painter lost her cause of action.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has previously been informally admonished on two occasions.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in 1985. At the time he committed the misconduct, the Respondent had been practicing law for fourteen years. Accordingly, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Dishonest or Selfish Motive. There is no evidence that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. After tire check to Ms. Painter was returned because of insufficient funds, the Respondent immediately forwarded certified funds to Ms. Painter.
“The Present and Past Attitude of the Attorney as Shown by his Cooperation and his Full Acknowledgment of the Transgressions. The Respondent fully acknowledged his wrongdoing by stipulating to the facts and violations.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.43. That standard provides that ‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’ Id. In this case, the Respondent failed to timely obtain service of process on the defendants in the personal injury case and, as a result, Ms. Painter lost her cause of action.
“According to the written stipulation, the Disciplinary Administrator recommends that the Respondent be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports. Also according to the written stipulation, the Respondent does not object to the Disciplinary Administrator’s recommendation. As a result, the Hearing Panel unanimously recommends that Respondent be censured by the Kansas Supreme Court. Additionally, the Hearing Panel unanimously recommends that the Kansas Supreme Court publish the censure in the Kansas Reports.”
A finding of attorney misconduct requires proof “by clear and convincing evidence.” Supreme Court Rule 211(f) (2001 Kan. Ct. R. Annot. 259). The panel’s findings of fact are supported by clear and convincing evidence and, with the conclusions of law, are adopted as the findings of this court.
It Is Therefore Ordered that respondent Stanley L. Wiles be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2001 Kan. Ct. R. Annot. 224) for his violations of the KRPC.
It Is Further Ordered that the costs of the proceeding be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Davis, J.
Lindsay Cannon and her passenger Adam Hipp were injured in a one-car accident allegedly caused by the negligent driver of a phantom vehicle. Farmers Insurance Company, Inc. (Farmers) settled with Hipp on his liability claim against Cannon. However, Farmers denied Cannons uninsured motorist claim based on a policy exclusion preventing Hipp, as one having a claim from the same accident, from verifying die facts of the accident. The trial court held that Hipp’s liability claim did not disqualify him as a witness under statutory mandated uninsured motorist coverage. K.S.A. 40-284 et seq. We affirm.
Cannon sustained severe injuries early one December morning on her way to school when a dark sports utility vehicle stopped immediately in front of her vehicle, causing her to swerve, slip on ice, veer off the road, and crash into a utility pole. She and Hipp, who was also injured in the accident, were the sole occupants of Cannon’s vehicle. There was no contact with the phantom vehicle. Hipp verified that the phantom vehicle caused the accident.
On behalf of Cannon, Farmers settled Hipp’s claim for injuries against Cannon. Farmers refused to cover Cannon’s uninsured motorist claim based upon a policy exclusion requiring verification of the facts of the accident from one not making a claim from the same accident. Cannon prevailed in the trial court, and Farmers appeals from summary judgment granted Cannon on her uninsured motorist claim.
The phantom vehicle is an uninsured vehicle under Farmers’ policy which defines an uninsured motor vehicle in part as “[a] hit- and-run vehicle whose operator or owner has not been identified and which causes bodily injury with or without physical contact.”
Farmers argued before the trial court that Hipp was not a witness who qualified to verify the facts of the accident under the policy exclusion because he had made a claim from the same accident against Cannon for his injuries. Farmers makes a similar argument on appeal under its policy and under K.S.A. 40-284(e)(3). Cannon claims that the trial court was correct that Hipp is qualified because his claim was not an uninsured motorist claim, but rather a liability claim against Cannon. Farmers and Cannon agreed that if coverage was found to exist, Cannon would be entitled to uninsured motorist policy limits in the amount of $100,000. We have jurisdiction by reason of our transfer of this case under K.S.A. 20-3018(c).
The questions raised by this appeal involve the interpretation of the contractual exclusion provisions of Farmers’ policy, as well as the interpretation of Kansas statutory law relating to the permissible exclusions of mandatory uninsured motorist coverage, specifically K.S.A. 40-284(e)(3). Both are questions of law for which this court’s review is unlimited. Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 124, 992 P.2d 800 (1999); First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998).
Uninsured Motorist Coverage
Uninsured motorist coverage became mandatory when K.S.A. 40-284 was adopted in 1968. L. 1968, ch. 273, sec. 1. Following a 1981 amendment, if the other motorist had liability insurance but the limits of liability were less than the insured’s damages and less than the insured’s uninsured motorist converge, the insured could recover the excess damages from his or her own insurer up to policy limits. L. 1981, ch. 191, sec. 1; Jerry, New Developments in Kansas Insurance Law, 37 Kan. L. Rev. 841, 878 (1989); Jerry, Recent Developments in Kansas Insurance Law: A Survey, Some Analysis, and Some Suggestions, 32 Kan. L. Rev. 287, 343-44 (1984).
The purpose of uninsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation mandated by the State of Kansas. Degollado v. Gallegos, 260 Kan. 169, 172-73, 917 P.2d 823 (1996). Thus, the statutory mandate is remedial in nature and is to be liberally construed to provide broad coverage:
“The uninsured and underinsured motorist statutes are remedial in nature. They should be liberally construed to provide a broad protection to the insured against all damages resulting from bodily injuries sustained by the insured that are caused by an automobile accident and arise out of the ownership, maintenance, or use of the insured motor vehicle, where those damages are caused by the acts of an uninsured or underinsured motorist.” Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. 209, 215, 824 P.2d 955 (1992).
See Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988).
Any attempts not authorized by statute to condition, limit, or dilute the broad, unqualified mandated uninsured motorist coverage are void and unenforceable. Allied Mut. Ins. Co. v. Gordon, 248 Kan. 715, 730, 811 P.2d 1112 (1991). Where an uninsured motorist coverage insurance policy is overbroad and thus unenforceable, the statutory exclusions provided for by K.S.A. 40-284(e) are applied in place of the unenforceable provisions. Ball v. Midwestern Ins. Co., 250 Kan. 738, 741, 829 P.2d 897 (1992).
Simpson v. Farmers Ins. Co., 225 Kan. 508, 592 P.2d 445 (1979), provides an early example of a policy provision excluding uninsured motorist coverage contrary to law. The policy in Simpson excluded coverage when there was no physical contact between the insured and the uninsured phantom vehicle. This court held that the “physical contact” requirement in the “hit and run” provisions of the automobile liability policy was in derogation of the uninsured motorist statute and was, therefore, void as against public policy. 225 Kan at 515. In 1981, the legislature, primarily in response to Simpson, amended the law to permit, among other exclusions, the one we consider in this case regarding the phantom hit-and-run vehicle. See Scott, Uninsured/Underinsured Motorist Insurance: A Sleeping Giant, 63 J. K. B. A. 28, 31 (May 1994). The provision relating to the phantom vehicle is designed to protect against fraudulent claims in one-car accidents when there is no independent proof of the existence of the phantom driver. See Jerry, 32 Kan. L. Rev. at 343-44.
The 1981 amendment is set forth in K.S.A. 40-284(e)(3) and provides that uninsured motorist coverage may exclude coverage under the following circumstance:
“(3) when there is no evidence of physical contact with the uninsured motor vehicle and when there is no reliable competent evidence to prove the facts of the accident from a disinterested witness not making claim under the policy.”
Farmers’ policy is somewhat similar to the statutory exclusion in providing coverage under the following circumstances:
“If there is no physical contact, the facts of the accident must be verified by someone other than you or another person having a claim from the same accident.”
Farmers denied coverage based upon the above exclusion. While the above statutory exclusion and Farmers’ policy exclusion are similar in nature, Farmers’ exclusion appears to exclude more than the statute allows. The trial court in its summary judgment reached this conclusion and replaced Farmers’ exclusion with the language of the statutory exclusion.
Farmers Policy Exclusion
Farmers’ exclusion is set forth in that part of the policy dealing exclusively with uninsured motorist coverage as follows:
“PART II-UNINSURED MOTORIST
Coverage C-Uninsured Motorist Coverage
(Including Underinsured Motorists Protection)
3. Uninsured motor vehicle means a motor vehicle which is:
b. A hit-and-run vehicle whose operator or owner has not been identified and which causes bodily injury with or without physical contact to:
(1) You or any family member.
If there is no physical contact, the facts of the accident must be verified by someone other than you or another person having a claim from the same accident.”
Trial Court Decision
Based upon the undisputed facts, the trial court concluded that Farmers’ exclusion was overbroad and applied the statutory exclusion in analyzing the question of coverage. Based on the statute, the trial court determined that Flipp was a witness who could provide corroborating evidence concerning the facts of the accident. It found that (1) Hipp settled his claim against the bodily injury provisions of the policy and that this claim was against Cannon, the driver of the vehicle; and (2) the statutory exclusion providing for a claim under the policy applies only where the witness actually makes a claim under the uninsured motorist coverage of the policy. The court concluded that its interpretation was consistent with the purpose of the exclusion to protect against fraud and that it gave broader effect to uninsured motorist coverage required by law.
Farmers argues in this appeal that the trial court did not find the policy or the statute ambiguous. However, our standard of review is unlimited. “Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.” City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998). We, therefore, examine Farmers’ policy provision to determine whether there is ambiguity and whether Farmers’ exclusion is overbroad compared to the authorized statutory exclusion set forth in K.S.A. 40-284(e)(3).
Policy Ambiguity
Cannon claims that the policy language incorporating the exclusion is ambiguous in several respects. An insurance policy is ambiguous if there is genuine uncertainly as to which of two or more possible meanings is proper. Steinle v. Knowles, 265 Kan. 545, 549, 961 P.2d 1228 (1998); Spivey v. Safeco In. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993). “To be ambiguous, ‘a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its lan guage.’ ” Steinle, 265 Kan. at 551. “ ‘Where terms are ambiguous, the policy shall be construed to mean what a reasonable person in the position of the insured would have understood them to mean.’ ” 265 Kan. at 549. “The test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.” Union State Bank v. St. Paul Fire and Marine Ins. Co., 18 Kan. App. 2d 466, 470-71, 856 P.2d 174 (1993).
The insured argues that the exclusionary language in the policy is ambiguous because the word “having” makes no distinction between being able to make a claim, actually being in the process of making a claim, or previously having made a claim. Cannon suggests the most reasonable interpretation of the policy exclusion would require her to present a witness other than one who has a pending uninsured motorist claim. Because Hipp’s liability claim was settled before Cannon filed her uninsured motorist action against Farmers, Cannon contends, he did not have a pending claim. In this sense, while Hipp “had a claim,” he is not someone “having a claim.” Cannon argues that the suffix “-ing” forms the present participle of the verb “have.” Webster’s Third New International Dictionary 1039 (1993). Hence, according to Cannon’s argument, the present tense of the verb-form “have” was chosen by Farmers and necessarily excludes Hipp because he no longer had a pending claim.
Farmers takes the position that the policy language excludes a witness who ever had a claim arising out of the same accident. Farmers interprets its own policy as saying “having or ever had a claim.” Thus, the fact that Hipp’s claim was settled prior to Cannon’s action does not make Hipp qualified to corroborate the facts of the accident.
Cannon further argues the word “claim” is ambiguous as that word is used in the policy. She argues that “claim” must mean an uninsured motorist claim. As noted above, the exclusion appears in Part II of the policy, which deals exclusively with uninsured motorist coverage. Farmers interprets the word “claim” to mean any claim arising from this same accident. Thus, Farmers asserts that Hipp’s liability claim against Cannon is included in the definition of “claim.”
We agree that ambiguity exists both in the use of the words “having a claim” and in the use of the word “claim.” “Having” is susceptible to the following interpretations: (1) A person with a pending claim is someone “having a claim”; (2) a person who is capable of making a claim, even if he or she chooses not to, may be someone “having a claim”; and (3) a person who at one time made a claim, but resolved the claim, may still be someone “having a claim.” Moreover, by its use of the word “claim,” the policy language is susceptible to varying interpretations. It could refer to uninsured claims only based upon its location in Part II of the policy. Further, the statutory language exclusively concerns uninsured motorist coverage, which strengthens Cannon’s interpretation that “claim” refers only to uninsured motorist claims. However, as we discuss below, the policy excludes more than is permitted by statute.
If we limit our consideration to the policy exclusion, the exclusionary language used by Farmers is ambiguous. Under such circumstances, we interpret the policy exclusion against Farmers and in favor of the insured, Cannon. See Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 23, 804 P.2d 1374 (1991). Since Hipp’s claim was not an uninsured motorist claim under the policy but, rather, a claim against Cannon, he would be qualified as a witness to verify the facts regarding the phantom vehicle. In addition, the phrase “having a claim” would refer to someone presendy having a claim, which would exclude Hipp because, although he had a claim, Hipp’s claim against Cannon had been settled by Farmers. Thus, under the interpretations most favorable to the insured, summary judgment for Cannon was correctly entered by the district court.
Comparison of Policy and Statutory Exclusions
Cannon argues that the policy exclusion is broader than is permitted by the statutoiy exclusion and is, therefore, void. Citing familiar law, Cannon points out that when a contractual exclusion is broader in scope than its authorizing statute, the policy provisions are void and unenforceable. Degollado v. Gallegos, 260 Kan. at 171. Uninsured motorist coverage is mandated under Kansas law and any attempt to condition, limit, or dilute uninsured motorist coverage beyond the exclusions and limitations expressly allowed by statute are contrary to public policy and void. Ball v. Midwestern Ins. Co., 250 Kan. at 740-41. The question remains whether Farmers’ policy provisions are broader than those provided by K.S.A. 40-284(e)(3) and, if so, what is their effect in this case.
K.S.A. 40-284(e)(3) allows exclusion of uninsured motorist coverage when: (a) there is no evidence of physical contact with the uninsured motor vehicle and (b) there is no reliable competent evidence to prove the facts of the accident from a disinterested witness not making claim under the policy. Farmers’ policy exclusion reaches beyond the statute by preventing any person having a claim from the same accident from verifying the facts of the accident.
The district court based its decision upon K.S.A. 40-284(e)(3), thereby implicitly concluding that Farmers’ policy exclusion was broader than allowed by the statute:
“The facts admitted show that Mr. Hipp settled a claim against the bodily injury provisions of the policy, that is, a claim against the driver of the vehicle. The issue here is whether such a claim is ‘under the policy’ as that term appears in K.S.A. 40-284(e)(3). K.S.A. 40-284 is a statute dealing with uninsured motorist coverage and subparagraph (e) contains authorized exclusions from such required coverage.
“The court reads the provisions of K.S.A. 40-284(e)(3) to allow exclusion only where the witness actually makes a claim under the uninsured motorist coverage of the policy. The court finds that this interpretation is more consistent with the purpose of the exclusion to protect against fraud. This interpretation further gives broader effect to uninsured motorist coverage required by law. Therefore, defendant’s motion for summary judgment should be denied.”
Farmers’ policy requires verification by someone other than the insured or another person having a claim from the same accident. The statute authorizes exclusion “when there is no reliable competent evidence to prove the facts of the accident from a disinterested witness not making a claim under the policy.” K.S.A. 40-284(e)(3). Notwithstanding the ambiguity of the phrase in tire policy “having a claim from the same accident,” it is apparent that this language is broader than “making claim under the policy.” For example, Hipp may be automatically excluded under policy pro visions from offering evidence of the accident based upon his claim against Cannon. His claim was against Cannon for injuries he sustained based upon her alleged negligence. This claim was a third-party claim not under or against the policy but rather against Cannon. Farmers paid Hipp its policy limits under the liability portion of the policy by way of indemnifying Cannon. However, Hipp would not necessarily be excluded as a witness under the statute because he was not, at the time Cannon filed suit, making a claim against Farmers; rather, his claim was against Cannon.
In comparing the policy language to the statutory language, we question the meaning of the statutory phrase “under the policy.” The policy language excludes persons having a claim from the same accident. The meaning of “under the policy” in the statute is important if that language is to be applied in place of the policy language. The trial court concluded “under the policy” refers to an uninsured motorist claim. We agree with the trial court.
Hipp’s claim is commonly referred to as a third-party claim, that is, a claim against another person as opposed to a first-party claim, which is a claim directly against the insurance company. In this case, Hipp’s claim is one sounding in tort against Cannon based on her own negligence in the operation of her vehicle. Hipp seeks to obtain judgment against Cannon for his injuries. She purchased a policy of insurance which indemnifies her in the event such a judgment is obtained against her by Hipp. In that event, Farmers pays the claim. In the present case, Farmers settled with Hipp, paying him the policy limits of $100,000. On the other hand, Cannon’s claim is a first-party claim, that is, one directly against Farmers. In her action, Farmers becomes the defendant. Cannon’s action is one sounding in contract seeking to enforce the contractual provisions in the policy between herself and Farmers.
The difference in the separate actions discussed above serve to enlighten us on the meaning of the statutory phrase “under the policy.” Hipp’s action is against Cannon. Cannon’s action is against Farmers, based upon the policy. As such, Cannon’s action is one “under the policy” while Hipp’s action only relies on the policy for indemnification of Cannon’s liability to him. Moreover, the exclusion we deal with appears in K.S.A. 40-284, which exclusively con cems uninsured motorist coverage. The same holds trae in Farmers’ policy. Part II as quoted above deals exclusively with uninsured motorist coverage. Thus, based upon the meaning of the phrase “under the policy” and the location of that phrase in the statute, and based on the location of the word “claim” in Part II of the policy, it is clear that the statute, as well as the policy, refers to first-party uninsured motorist claims and not third-party claims. Hipp is, therefore, not precluded from serving as a witness for Cannon under the exclusion because he made a third-party claim.
Disinterested
K.S.A. 40-284(e)(3) authorizes exclusion of uninsured motorist coverage where there is no rehable competent evidence to prove the facts of the accident from a disinterested witness. The statute does not define “disinterested,” and there are no Kansas cases defining the term as it is used in the statute. This case presents a question of first impression for this court.
The purpose of the statutory exclusion where there is no physical contact between the insured’s vehicle and the phantom vehicle is the prevention of fraudulent claims. Clements, 243 Kan. at 127. In a one-vehicle accident with no witnesses, an insurance carrier has no way to refute the insured’s statement that he or she swerved to avoid an on-coming vehicle. Thus, in 1981 the Kansas Legislature amended the mandatory uninsured motorist coverage provision and authorized insurance carriers to require, from the insured, a disinterested witness.
As we have stated, the mandated coverage is intended to provide recompense to innocent persons injured through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot compensate innocent persons for the damages. We recognize the remedial nature of this coverage and liberally construe the legislation to provide the intended protection. Ball v. Midwestern Ins. Co., 250 Kan. at 738-41. We also recognize that fraud prevention is a legitimate and important consideration. Clements, 243 Kan. at 127. Other states have attempted to limit or exclude recovery in cases involving phantom vehicles. While authority from other jurisdictions provides some help, the cases in different states vary widely based on individual states’ statutory language.
The issue is whether Hipp is a disinterested witness who may corroborate Cannon’s version of the facts of this accident. As indicated above, the trial,court found Hipp could provide evidence of the facts of the accident based upon its determination that Hipp was not making an uninsured motorist claim under the policy and was, therefore, qualified. There was no discussion of the meaning of the term “disinterested” in tire trial court’s decision. We are advised in the interpretation of a statute to give words their accepted and usual meaning in the absence of an expressed contrary legislative intention. See Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 686, 847 P.2d 1292 (1993) (holding subsections of K.S.A. 40-284[e] should be interpreted consistently and harmoniously).
“Disinterested” is defined as “not influenced by regard to personal advantage,” “free from selfish motive,” and “not biased or prejudiced.” Webster’s Third New International Dictionary 650 (3d ed. 1993). Black’s Law Dictionary defines “disinterested” as “[f]ree from bias, prejudice, or partiality; not having a pecuniary interest.” Black’s Law Dictionary 481 (7th ed. 1999). Black’s defines the phrase “disinterested witness” as “[a] witness who is legally competent to testify and has no private interest in the matter at issue.” Black’s Law Dictionary 1596. The Iowa Supreme Court, in a different context, defined “disinterested witness” as “[o]ne who has no right, claim, title, or legal share in the cause or matter in issue.” Post-Newsweek Cable v. Bd. of Review, 497 N.W.2d 810, 813 (Iowa 1993).
Other jurisdictions interpreting their own statutes regarding the exclusion we now consider have defined “disinterestedness” within the context of specific facts. See generally, Annot., Uninsured Motorist Indorsement: Construction and Application of Requirement That There Be “Physical Contact” with Unidentified or Hit-and-Run Vehicle; “Miss-and-Run Cases,” 77 A.L.R.5th 319, § 5[c] and § 6 [d]; Annot., Uninsured Motorist Indorsement: General Issues Regarding Requirement That There Be “Physical Contact” with Unidentified or Hit-and-Run Vehicle, 78 A.L.R.5th 341.
Consistent with the avowed purpose of preventing fraud, the definitions of disinterested, and case law, we perceive two distinct aspects involved in the determination of whether a witness is disinterested. The first pertains to the relationship of the parties and the second pertains to the lack of a pecuniary interest in the outcome of the case. As noted by most cases on this subject, the determination is fact intensive and in most instances will be made on a case-by-case basis. However, there are those cases where the answer is self evident, as it would be, for example, if Hipp were making, along with Cannon, an uninsured motorist claim against Farmers. However, since his claim is a liability claim against Cannon, the answer becomes more difficult and depends upon the relationship between Hipp and Cannon and upon Hipp’s pecuniary interest in the outcome of Cannon’s claim against Farmers.
The record in this case contains no evidence regarding the relationship between Hipp and Cannon. Farmers settled Hipp’s liability claim against Cannon without any evidence of their relationship. We know that Hipp was a passenger and Cannon was driving early one December morning to school. Beyond this, we have no additional information about their relationship. Based upon the record, we conclude that the relationship is one of driver-passenger, a relationship that would not prevent Hipp from being disinterested and from providing evidence as to the facts of the accident.
We also note that Hipp’s initial response was that the dark sports utility vehicle stopped abruptly in front of Cannon’s vehicle, causing her to lose control of her vehicle. Hipp’s initial response and his stance throughout Cannon’s action did not change. While not determinative, his initial response as well as his consistency throughout militates against a finding of fraud.
The second inquiry involves Hipp’s pecuniary interest in the outcome of the case. Certainly, Hipp had a pecuniary interest in the outcome of his own claim, but his interest was not necessarily aligned with Cannon’s. Hipp’s third-party claim is against Cannon, with indemnification of Cannon by Farmers. In a comparative fault jurisdiction such as Kansas, see K.S.A. 60-258a, Hipp and Cannon have divergent interests based upon the claims asserted. Hipp’s interest would be to establish that Cannon was solely responsible for the accident. To the extent Farmers’ representation of Cannon could establish that the phantom vehicle was the cause of the accident, Hipp’s recovery against Cannon would be diminished by the percentage of fault attributed to the driver of the phantom vehicle. Cannon’s interest in her uninsured motorist claim against Farmers would be enhanced by the percentage of fault she was able to posit against the phantom vehicle, the uninsured vehicle defined as such under Farmers’ policy. We conclude that Hipp’s pecuniary interest is opposite of Cannon’s. Thus, Hipp’s interest would not prevent him from providing facts of the accident under K.S.A. 40-284(e)(3).
Finally, most jurisdictions dealing with this question conclude that the time for making a determination regarding a witness’ qualifications under statutory exclusions, including his or her disinterested status, is at the time such witness’ testimony is given. The Supreme Court of Oregon is representative of this conclusion:
“In the absence of an express temporal qualification in the text of ORS 742.504(2)(g)(B) itself, we believe that the corroboration requirement set out in that subparagraph should be read consistently with the companion requirements set out in subparagraphs (A) and (C). Accordingly, we conclude that, based on text and context, the operative phrase in ORS 742.504(2)(g)(B) — ‘any person having an uninsured motorist claim resulting from the accident’ — is most reasonably read as referring to a person who has such a claim at the time that the determination of uninsured motorist coverage is being made — i.e., the time when the person’s testimony is offered to corroborate the facts of the ‘phantom vehicle’ accident — rather than to a person who has such a claim at the time of the accident.” To v. State Farm Mutual Ins., 319 Or. 93, 101, 873 P.2d 1072 (1994).
Farmers setded with Hipp on his claim against Cannon. At the time of Cannon’s action against Farmers, and under the provisions of K.S.A. 40-284(e)(3), Hipp is “not making a claim under the policy,” for his claim had been settled by Farmers. Hipp, at that time, had absolutely no pecuniary interest in the outcome of the case. We conclude that the trial court properly entered summary judgment in favor of Cannon.
Affirmed.
Abbott, J., not participating.
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent Debra J. Arnett, of Paola, an attorney admitted to the practice of law in the state of Kansas.
The formal complaint filed against the respondent alleged violations of KRPC 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence and promptness); KRPC 1.4 (2001 Kan. Ct. R. Annot. 334) (communication); KRPC 1.15 (2001 Kan. Ct. R. Annot. 376) (safekeeping property); KRPC 1.16 (2001 Kan. Ct. R. Annot. 387) (terminating representation); KRPC 8.1 (2001 Kan. Ct. R. Annot. 433) (failure to respond); KRPC 8.4 (2001 Kan. Ct. R. Annot. 437) (misconduct); and Supreme Court Rule 207 (2001 Kan. Ct. R. Annot. 246).
Respondent answered, admitting violations of KRPC 1.3, 1.4, 8.1(b), and 8.4 as to Count' 1 and KRPC 8.1 and Supreme Court Rule 207 and requested supervised probation pursuant to Supreme Court Rule 211(f) (2001 Kan. Ct. R. Annot. 259).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on October 16, 2001, in the hearing room of the Kansas Board for Discipline of Attorneys. The Disciplinary Administrator, Stanton A. Hazlett, appeared for petitioner. The respondent appeared in person and through counsel, Jonathan C. Becker.
The hearing panel admitted the exhibits submitted by the Disciplinary Administrator and the respondent. The Disciplinary Administrator called Jennifer J. Burkhart as to the merits of the complaint.
During tbe hearing, evidence was received regarding the respondent’s mental health as it related to her practice of law. While in the course of its deliberations, the hearing panel concluded medical evidence was essential to properly consider respondent’s request for probation. The hearing panel ordered respondent to submit to a complete evaluation from a licenced psychiatrist within 30 days, make the psychiatrist available for a deposition, provide a modified plan of probation incorporating the recommendations of the psychiatrist, provide written verification of the person to serve as supervising attorney, and set time schedules for response by the Disciplinaiy Administrator.
The respondent on November 16, 2001, provided a letter from Faye Heller, MS., CS, ARNP, CST, opining that respondent experiences major depression without psychotic features and generalized anxiety disorders but with treatment, there is no indication she cannot practice law. Taylor Porter, M.D., a psychiatrist, signed below Faye Heller’s signature but was not the evaluator. No additional information was apparently submitted by the respondent, and the hearing panel found by clear and convincing evidence the following:
“FINDINGS OF FACT
“1. Debra J. Arnett (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 11265. Her last registration address with the Clerk of the Appellate Courts of Kansas is . . . Paola, Kansas ....
“2. On June 2, 2000, Jennifer Burkhart retained the Respondent to file a motion to change custody and limit visitation. At that time, Ms. Burkhart paid the Respondent a retainer of $350.00. Ms. Burkhart sought to change custody and limit visitation, because her former husband had been convicted of child endangerment and driving under the influence. The Respondent agreed to file a motion to change custody in Miami County District Court. The Respondent assured Ms. Burkhart that she would file the motion and have Ms. Burkhart’s former husband served when he returned from a treatment program.
“3. On June 30, 2000, Ms. Burkhart informed the Respondent that Ms. Burk-hart’s former husband would be returning to Miami County on July 7, 2000, for a court appearance. The Respondent agreed to file the motion on July 3, 2000, and have Ms. Burkhart’s former husband served while he was in Miami County.
“4. The Respondent failed to file the motion to change custody.
“5. Ms. Burkhart called the Respondent to find out whether her former husband had been served. Because the Respondent was not available, Ms. Burkhart left a telephone message. On July 10, 2000, the Respondent returned Ms. Burk-hart’s telephone call. The Respondent falsely informed Ms. Burkhart that the motion was to have been served, but that the court did not serve the motion. The Respondent asked Ms. Burkhart for her former husband’s address for purposes of service.
“6. On July 11, 2000, Ms. Burkhart left a telephone message for the Respondent, providing the Respondent with Ms. Burkhart’s former husband’s address and telephone number.
“7. Ms. Burkhart called the Respondent on numerous occasions and left telephone messages for the Respondent. The Respondent failed to return Ms. Burk-hart’s telephone calls. Ms. Burkhart never heard from the Respondent again.
“8. On July 31,2000, Ms. Burkhart called tire Respondent again. Ms. Burkhart left a voice mail message indicating that Ms. Burkhart’s former husband called and threatened Ms. Burkhart’s current boyfriend. Additionally, Ms. Burkhart informed the Respondent that the threat was recorded on a cassette tape. The Respondent failed to return Ms. Burkhart’s telephone call.
“9. On October 11, 2000, Ms. Burkhart sent the Respondent a letter via certified mail. Someone from the Respondent’s office signed for the letter. In the letter, Ms. Burkhart informed the Respondent of her dissatisfaction with the representation. Ms. Burkhart asked tire Respondent to either file the motion or return the unearned fees. The Respondent did not respond to Ms. Burkhart’s letter, did not file the motion, and did not return the unearned fees.
“10. On November 15, 2000, Ms. Burkhart filed a written complaint with the Disciplinary Administrator’s office. Thereafter, on November 21, 2000, and on January 11, 2001, the Disciplinary Administrator wrote to the Respondent, requesting a response to the initial complaint filed by Ms. Burkhart. The Respondent failed to respond to dre two letters sent by the Disciplinary Administrator’s office.
“11. The matter was then referred to the Kansas Bar Association’s Professional Ethics and Grievance Committee for investigation. Attorney Jeffrey Jack was assigned to investigate. On February 13, 2001, and on March 8, 2001, Mr. Jack wrote to the Respondent, requesting that the Respondent respond to the complaint filed by Ms. Burkhart. The Respondent failed to respond to Mr. Jack’s requests.
“12. On August 15, 2001, the Disciplinary Administrator filed the Formal Complaint in this matter. The hearing on the Formal Complaint was scheduled for October 16, 2001, at 9:30 a.m.
“13. On October 16, 2001, at 9:30 a.m., the hearing was called to order. At drat time, the Respondent did not appear. The Respondent appeared approximately five minutes later. At tire hearing, tire Respondent failed to address the Hearing Panel regarding dre merits of the complaint or any feelings of remorse drat she might have.
“14. Following the hearing, in an Order dated October 18, 2001, the Hearing Panel agreed to allow the Respondent to present medical evidence regarding her mental status, all in connection with possible supervised probation. In that order, the Hearing Panel ordered, in part, the following:
‘The Respondent shall immediately submit to a complete evaluation by a licensed psychiatrist. The psychiatrist shall prepare a report of the evaluation, including his or her findings and recommendations regarding (1) whether the Respondent suffers from a mental disability, (2) whether the Respondent is currently able to practice law without causing harm to her clients, (3) what services the Respondent needs to achieve recovery, and (4) what the long-term prognosis for the Respondent is, as it relates to the continued practice of law. The report of the psychiatrist shall be filed with the Disciplinary Administrator, and distributed to the Hearing Panel on or before November 19, 2001.’
“Order, dated October 18, 2001 (emphasis added).
“15. In a letter dated November 16, 2001, but received by the Disciplinary Administrator on November 21, 2001, Faye Heller wrote to the Disciplinary Administrator regarding the Respondent. Apparently, Ms. Heller has a Master’s level degree, but is not a medical doctor. While Ms. Heller had caused her report to also be signed by one ‘Taylor Porter, M.D., Psychiatrist,’ there was no indication that the Respondent had submitted to a complete evaluation by a licensed psychiatrist or that such specialist had prepared the subject report, all in violation of the Hearing Panel Order.
“CONCLUSIONS OF LAW
“1. Based upon the above findings of fact, the Hearing Panel concludes, as a matter of law, that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15(b), KRPC 1.16(d), KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207(b), as detailed below:
“2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Ms. Burkhart when she failed to timely file the custody motion. Because the Respondent failed to act with reasonable diligence and promptness in representing Ms. Burkhart, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“3. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’
Id. The Respondent failed to keep Ms. Burkhart informed regarding the status of her case. Additionally, tire Respondent failed to return numerous telephone calls to Ms. Burkhart. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“4. The Respondent violated KRPC 1.15(b). That subsection provides as follows:
‘Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall prompdy notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’
Id. The Respondent violated KRPC 1.15(b) when she failed to return the unearned fees to Ms. Burkhart. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(b).
“5. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
Id. In her October 11, 2000, letter, Ms. Burkhart requested that the Respondent either complete the work or return the unearned fees. The Respondent did neither. Because the Respondent failed to return the unearned fee, the Hearing Panel concludes that the Respondent violated KRPC 1.16(d).
“6. The Respondent also violated KRPC 8.1(b). That rule provides:
‘[A] lawyer ... in connection with a disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from [a] disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.’
Id. The Respondent failed to respond to letters from the Disciplinary Administrator’s office and die attorneys assigned to investigate the disciplinary complaint. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b).
“7. KRPC 8.4 provides, in pertinent part, as follows:
‘It is professional misconduct for a lawyer to:
‘(a) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
‘(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
‘(d) engage in conduct that is prejudicial to the administration of justice;
‘(g) engage in any other conduct diat adversely reflects on die lawyer’s fitness to practice law.’
Id. The Respondent violated KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g), as detailed below:
“a. The Respondent violated KRPC 8.4(a) by violating KRPC 1.3, KRPC 1.4, KRPC 1.15(b), KRPC 1.16(d), and KRPC 8.1(b).
“b. On July 10, 2000, the Respondent falsely told Ms. Burkhart that the motion had been filed and was to be served on Ms. Burkhart’s former husband. Because the Respondent provided false and misleading information, the Hear ing Panel concludes that the Respondent ‘engage[d] in conduct involving dishonesty, fraud, deceit or misrepresentation,’ in violation of KRPC 8.4(c).
“c. The Respondent engaged in conduct that was ‘prejudicial to the administration of justice,’ when she failed to file the custody motion in behalf of Ms. Burkhart. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“d. Falsely informing a client that a custody motion had been filed and failing to cooperate in a disciplinary investigation adversely reflects on the Respondent’s ability to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“8. Kan. Sup. Ct. R. 207(b) provides as follows:
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Id. Kan. Sup. Ct. R. 211(b) provides, in pertinent part:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
Id. In this case, the Respondent violated Kan. Sup. Ct. R. 207(b) and Kan. Sup. Ct. R. 211(b) by failing to provide . . . written responses to the initial complaint and by failing to timely file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b) and Kan. Sup. Ct. R. 211(b).
“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated several duties: First, the Respondent violated her duty to her client to provide diligent representation and reasonable communication. Next, the Respondent violated her duty to tire public to maintain personal integrity. Finally, tire Respondent violated her duty to the legal profession to maintain personal integrity.
“Mental State. The Respondent knowingly violated her duties.
“Injury. Ms. Burkhart suffered actual injury as a result of the Respondent’s misconduct. To date, no motion to change custody has been filed in behalf of Ms. Burkhart.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent was previously informally admonished on May 5, 1999, for violating KRPC 1.1, KRPC 1.3, and KRPC 1.4. See Exhibit F.
“Dishonest or Selfish Motive. The Respondent engaged in dishonest behavior when she provided false and misleading information to Ms. Burkhart.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15(b), KRPC 1.16(d), KRPC 8.1(b), Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211. As such, the Respondent committed multiple offenses.
“Vulnerability of Victim. Generally, domestic relations clients are vulnerable. Ms. Burkhart is no exception.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1982. At the time the Respondent committed the misconduct, the Respondent had been practicing law for 18 years. As such, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law.
“Indifference to Making Restitution. Prior to the hearing held on this matter, the Respondent has made no attempt to provide restitution to the victims.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.42(a). That standard provides, in pertinent part:
‘Suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client.’
Id.
“The primary aim of tire disciplinary process is to protect tire client public of this state from abuses related to violations of the Kansas Rules of Professional Conduct by attorneys. In the instant case, the Respondent admits to mental illness which has rendered her unable to serve her clients and to respect and honor the rules of the Kansas Supreme Court pertaining to the discipline of attorneys.
“The Respondent was disciplined by way of informal admonition for similar violations on May 5, 1999, at which time she claimed to be suffering from depression for which she was then purportedly receiving treatment. It is apparent that the Respondent’s mental illness is ongoing and not responding to her current efforts at treatment.
“The Hearing Panel cannot recommend that the Respondent be permitted to continue in the active practice of law while suffering from a disabling mental illness that has not responded to treatment for a number of years. No amount of supervision by another attorney under a plan of probation can assure the client public of this state the protection owing by the disciplinary process.
“The Hearing Panel unanimously recommends that Respondent be suspended from the practice of law in the state of Kansas for a period of one year. The Hearing Panel also recommends that, prior to reinstatement, the Respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. At die reinstatement hearing, the Respondent should be required to establish that she has received the appropriate professional help to enable her to prevent a repeat of the misconduct present in this case.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Respondent did not object to the findings of fact and conclusions of law which, pursuant to Supreme Court Rule 212(d) (2001 Kan. Ct. R. Annot 263), are deemed to be admitted. Respondent informed the court she had voluntarily stopped practicing law effective January 1, 2002, and requested the imposition of the recommended discipline of the hearing panel be effective as of that date.
The court, having considered the record herein, the report of the hearing panel, and the arguments and statements of counsel, concurs in the findings, conclusions, and recommendation of the panel. While a minority of the court would begin the period of suspension as of January 1, 2002, as the respondent requests, the majority of the court finds the suspension period should commence on the date this opinion is filed.
It Is Therefore Ordered that Debra J. Arnett be suspended from the practice of law in the State of Kansas for a period of 1 year, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2001 Kan. Ct. R. Annot. 224).
It Is Further Ordered that in the event respondent should seek reinstatement, she shall be subject to all reinstatement requirements of Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285), including establishing that she has received the appropriate professional help to enable her to prevent a repeat of the misconduct present in this case.
It Is Further Ordered that respondent comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Larson, J.:
This case involves a first impression question dealing with the statutes governing the recall of locally elected officials, K.S.A. 25-4318 et seq.
The facts are not in dispute and are stipulated to by both parties. The timing of events and the actions of the parties explain the precise issue we face.
The City of Merriam, Kansas, has four wards with two councilpersons representing each ward. Gary Glenn was elected in Ward 4 in the April 1999 general election. In that election, 424 votes were cast for all the candidates to that position. K.S.A. 25-4325 states that the number of signatures required for a valid recall petition is 40% of the votes cast in the “last general election.”
Gary T. Richards initiated a recall petition against councilman Gaiy Glen. The grounds for the petition were approved by the Johnson County attorney upon its submission by the Johnson County election officer, as required by K.S.A. 25-4322. Richards was given permission to proceed with the gathering of signatures by the election officer on January 17, 2001.
On April 3, 2001, a general election was held for the second council position in Ward 4. Gayle Stephens was elected. In this election, a total of 675 votes were cast for all the candidates for that position. Forty percent of 424 votes, rounded to the nearest number, is 170, while 40% of 675 votes is 270.
Richards submitted the recall petition on April 16, 2001, with 181 signatures. On May 1, 2001, Connie J. Schmidt, the Johnson County election officer, notified Richards that his recall petition was invalid because it lacked a sufficient number of signatures.
Richards filed the present action, as is permitted by K.S.A. 25-4331. Both parties requested summary judgment. The trial court ruled for Schmidt. It found that under a plain reading of K.S.A. 25-4325, the term “last general election” referred to the most recent election as of the day the completed recall petition (with signatures) was filed with the county election officer. This was deemed to be the April 3, 2001, election, with 675 votes cast and 270 signatures required. The petition with 181 signatures was deemed clearly insufficient. Richards appealed.
The precise issue as framed by the parties is whether the number of signatures required was established at the time the recall petition was approved and allowed to be circulated under K.S.A. 25-4322, K.S.A. 25-4323, and K.S.A. 25-4324 or whether an intervening general election which occurs before the petition is filed becomes the “last general election” as the term is used in K.S.A. 25-4325.
Questions of statutory construction are subject to unlimited review by an appellate court. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). In Todd v. Kelley, 251 Kan. 512, 515-16, 837 P.2d 381 (1992), we set forth several standards by which we are bound when interpreting statutes:
“The function of the court is to interpret the statutes, giving the statutes the effect intended by tire legislature. State ex rel. Stephan v. Kansas Racing Comrn’n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
“ In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).”
We first summarize the constitutional and statutory provisions which frame the issue of this appeal.
Article 4, § 3 of the Kansas Constitution states: “All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by law.” K.S.A. 25-4318 et seq. sets forth the statutory procedures for recalling a local official.
K.S.A. 25-4320 establishes the requirements for what must be contained in a recall petition. K.S.A. 25-4322(a) directs that the petition must be first filed with the county election officer by the recall committee. Subsection (a) goes on to state: “The county election officer, upon request, shall notify the recall committee of the official number of votes cast for the office of the officer sought to be recalled in the last general election at which a person was elected to such office.” The record does not reflect that such a request was made in this case, but the recall committee knew the number of votes cast in the April 1999 election when the petition was submitted to the election officer in January 2001.
K.S.A. 25-4322(b) requires the county or district attorney to determine the sufficiency of the grounds stated in the petition for recall. The grounds of the recall petition were approved, and the recall committee was notified of that determination on January 17, 2001, pursuant to K.S.A. 25-4322(b). At that point, the committee had 90 days to gather the necessaiy signatures under K.S.A. 25-4324, which states: “The necessary signatures on a petition shall be secured within 90 days from the date that the recall committee receives notice that the county or district attorney has determined that the grounds for recall as stated in the petition are sufficient as required by K.S.A. 25-4322, and amendments thereto.”
The determination of whether a petition has sufficient signatures is determined by the provisions of K.S.A. 25-4325, which states:
“The recall committee may file the petition only if signed by registered electors in the election district of the local officer sought to be recalled equal in number to not less than 40% of the votes cast for all candidates for the office of the local officer sought to be recalled in the last general election at which a person was elected to such office.” (Emphasis added.)
K.S.A. 25-4326 next requires the county election officer to determine the sufficiency of each petition within 30 days of its filing and notify the recall committee if he or she determines that “there is an insufficient number of subscribing qualified registered electors.” This is exactly what happened in the facts we face. The petition was approved for circulation on January 17, but was not filed until April 16. In the interim, a general election was held on April 3 for the other councilperson position in the same ward as the councilman sought to be recalled occupied.
The issue is simply stated. Which election is the “last general election” for purposes of computing the number of signatures required? Is it the “last general election” at the time circulation of the petition is approved and commenced or is it the “last general election” at the time the petition with signatures is filed?
The trial court’s reasoning and holding applied the plain language of K.S.A. 25-4325 relating to “the last general election at which a person was elected to such office.” (Emphasis added.) The trial court’s memorandum decision made no mention of provisions other than K.S.A. 25-4325 and stated:
“The statute clearly delineates between the office and the office holder. If the legislature had intended for the 40% rule to apply to the number of votes cast at that time the officeholder was elected, they could easily have changed the language to read at ‘the last general election at which the person was elected to such office.’ ”
Unfortunately, whether “the last general election” is meant to be a reference to the time of commencing circulation or the actual filing of the signed petition is not plainly stated. K.S.A. 25-4325 references both circulation as well as the filing of the petition.
“Before being filed, each petition shall be certified by an affidavit by the sponsor who personally circulated the petition. . . . The recall committee may file the petition only if signed by registered electors in the election district of the local officer sought to be recalled equal in number to not less than 40% of the votes cast for all candidates for the office of the local officer sought to be recalled in the last general election at which a person was elected to such office.” (Emphasis added.)
The statute clearly states “before being filed.” But, it also references the time of circulation when speaking of “the sponsor who personally circulated the petition.” Even the sentence which discusses the 40% requirement twice repeats the phrase “the local officer sought to be recalled.” The proceedings by which an officer is “sought to be recalled” begins prior to the subsequent filing of the signed petition. Thus, it is unclear whether the statute’s reference to “the last general election” is meant to be based on the final filing date or the date the petitioning process is commenced and the petition is approved for circulation. Furthermore, if we follow our requirement to construe the entire Act in pari materia, we must not limit our decision only to tire language of K.S.A. 25-4325.
We have previously shown that “the last general election” wording is contained in K.S.A. 25-4322(a), which empowers an individual seeking recall to find out the official number of votes cast at the last general election with the obvious intent of establishing the exact number of signatures necessary to obtain tire recall election. Schmidt admits Richards had the right to find out the number of votes in the last general election but argues the legislature intended for that number to change if there is an intervening election. Schmidt further argues any problem could be avoided by the recall committee timing its petition to not fall within 90 days of a general election. A further review of the Act does not really support or clearly disapprove this argument.
The legislature has prescribed certain time limits for recall petitions for local officials in K.S.A. 25-4323. Subsection (a) states that recall cannot be sought less than 120 days after the official is elected, nor less than 180 days before his or her term expires. Also, only one recall petition is permitted within each officials elected term. K.S.A. 25-4523(b). Had an additional time limit been intended, the legislature could have prevented individuals from seeking recall during the time frame which encompasses a general election. It clearly did not do so. So long as it does not work to defeat clear legislative intent to the contrary, under the doctrine of ex-pressio unius est exclusio alterius, we are to presume that when legislation expressly includes specific terms, it also intends to exclude those items not listed. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). We cannot interpret K.S.A. 25-4323 to restrict the time when recall petitions can be instituted and filed beyond its stated restrictions.
In Eveleigh v. Conness, 261 Kan. 970, 977, 933 P.2d 675 (1997), when discussing the local official recall statutes, we said:
“ ‘Where a state constitutional provision provides for tire recall of public officials, recall is viewed as a fundamental right which the people have reserved to themselves. When the power of recall is a fundamental right, statutes governing the exercise of the power are to be liberally construed in favor of the ability to exercise it, and any Kmitations on that power must be strictly construed.’ Unger v. Horn, 240 Kan. 740, 741, 732 P.2d 1275 (1987).”
The true purpose of the liberal construction doctrine, as articulated in Unger and repeated by Eveleigh, is to carry out the intention of the legislature. In Board of Trustees of Butler Co. Comm. College v. Board of Sedgwick Co. Commrs, 257 Kan. 468, 476, 893 P.2d 224 (1995), we said: “The function of liberal construction is called into use where there is ambiguity in the language of the statute or, in other words, where there are two or more interpretations which may fairly be made.”
In that we are under a duty to liberally construe the constitutional right of recall as set forth in K.S.A. 25-4318 et seq. in favor of the exercise of that right, such a construction supports our finding that “the last general election,” as mentioned in both K.S.A. 25-4322(a) and K.S.A. 25-4325, is intended to be based on the date the petition is approved by the county or district attorney or submitted for approval.
Legislative history offers little guidance in determining the issue we face. The Act was originally enacted in 1976 as part of House Bill 2661. See L. 1976, ch. 178. There were discussions about a requirement to limit signatures to those who actually voted for the official but that suggestion was not followed. See, Minutes of Sen. Elections Comm., March 9, 1976. There were also suggestions which turned on whether the number of votes related to the officer sought to be recalled or the last general election in which anyone was elected to the office. That question was resolved by language which relates to the office and not the officeholder. See K.S.A. 25-4322(a).
The parties attempt to utilize Attorney General Opinion No. 99-38, but it does not provide direct guidance and, as we said in City of Junction City v. Cadoret, 263 Kan. 164, 173, 946 P.2d 1356 (1997), it is not binding on us.
If we limit our analysis to the language of K.S.A. 25-4325 and the plain meaning of “last general election” as Schmidt argues, we would of necessity reach the same conclusion that the trial court did. Such a narrow interpretation, however, clearly violates our obligation to construe all parts of an enactment in pari materia and, further, to construe an entire act according to its spirit and reason. Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975). We further have the specific direction of Unger and Eveleigh that in viewing the power of recall as a fundamental right we are obligated to liberally construe statutes governing the exercise of that power. We are further directed to strictly construe any limitations on that power.
For the reasons stated above, we construe together all of the provisions of K.S.A. 25-4318 et seq. and hold that the term “the last general election” in K.S.A. 25-4325 refers only to the general election for the office of the local officer sought to be recalled held prior to the circulation of the recall petition.
The legislative language most persuasive is that empowering the recall committee to be notified as to the official number of votes at the last general election and therefore the number of signatures required, which is determined when the recall committee first submits the petition to the county election officer. See K.S.A. 25-4322(a). It would be contrary to legislative intent to deprive the recall committee of the meaning of these statutory provisions by allowing the number of required signatures to change in the midst of the petitioning process.
The district court is reversed, and this matter is remanded to the district court with instructions to order the Johnson County election officer to proceed with the recall election as is statutorily provided.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by'
Porter, J.:
The first claim of error we shall notice is that the court erred in the admission of evidence in support of the motion to correct the journal entry. As to this contention we need only refer to the language of the court in Martindale v. Battey, 73 Kan. 92, 84 Pac. 527, and Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594, to the effect that the record of a judgment can always be corrected so as to speak the truth' after, as well as during, the term at which it was rendered, and upon any satisfactory evidence, parol as well as written. The evidence objected to here consisted of the certified copies of the journal entry of the trial, of the abstract of the judgment docket and of the judge’s trial docket. These were all competent for the purpose of establishing what in fact occurred at the trial, and furnished what may be said to be quite satisfactory evidence. (Pennock v. Monroe, 5 Kan. 578, 583.)
The next contention, which raises the principal question in the case, is that the court erred in overruling the demurrer to the motion. The contention is stated in the briefs, in substance, as follows: The district court had no jurisdiction to correct the proceedings or records of the Allen county district court, for the reason that the only proceedings transferred by the change of venue were the application for an injunction and the motion to dissolve the restraining order. Defendants are contented with merely stating the proposition. No argument is made or authorities cited in support of it. And none are cited in the brief of the plaintiff against it. The objection is technical. The application for a change of venue asked that the place of trial of the action and all matters connected therewith be changed; and the order is broad enough in its terms to transfer the whole cause. The general rule is stated in Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096, 93 Am. St. Rep. 276, as follows:
“A court to which a cause is properly removed by change of venue acquires jurisdiction of the cause and subject-matter coextensive with that of the court from which the venue was removed, and may inquire into anything connected with the subject-matter of the action and render any judgment which might have been rendered by the court in which the case originated.” (Syllabus.)
This was approved in Young v. McWilliams, 75 Kan. 243, 89 Pac. 12.
The motion was not that a judgment be rendered. It was for the correction of the record so that it would speak the truth and show a judgment actually rendered on the day that the verdict was entered. The district judge of Allen county was disqualified from acting. It must be conceded that if he had not been disqualified and no change of venue had been taken the district court of Allen county possessed authority to order the record corrected to show that a judgment was .duly entered. (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594.) When the venue of the case was transferred to Bourbon county the court there was .given all the authority and powers in respect of this case that were possessed originally by the district court .of Allen county, and the latter court had thereafter no jurisdiction of the cause or of the parties for any purpose until the action was finally disposed of by the court to which the venue was changed. A motion of this kind to correct the record could not have been entertained by the Allen county district court while the action was pending in Bourbon county, even though a judge otherwise qualified to sit had taken his seat in the Allen county district court. The case and the parties were then under the jurisdiction of the court to which the venue had been changed. (Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096, 93 Am. St. Rep. 276; Young v. McWilliams, 75 Kan. 243, 89 Pac. 12.)
There must be some court with authority over the record in a cause and with power to make it speak the truth or absurd consequences and results would follow. We are of the opinion that the court which possessed this power was the court which by the change of venue acquired jurisdiction of the entire proceedings, including the record of what had, up to that time, taken place in the court from which the venue was taken. If the venue had been changed before the trial the district court of Bourbon county could have entertained a motion to quash the-summons or to permit the return thereon to be amended to conform to the truth. And we think it had power to make any order necessary to be made in the progress of the cause after the venue was changed. The other theory would leave part of the cause in the court where it was originally brought and part in the court to which it was transferred.
A considerable portion of the brief of plaintiffs in error is taken up with an argument on the merits of the original action, in which the judgment was rendered. It is insisted that plaintiff had waived all. damages sustained in the attachment proceedings and was not entitled to recover a judgment in this action. With the merits of the action in which the judgment was rendered we have no concern. Upon the dismissal of the former proceedings in error the judgment became final. The merits of this controversy are with the plaintiff. The defense is extremely technical. After a regular trial and verdict of a jury a judgment was in fact pronounced against the defendants. By a mere technical omission it was not properly recorded in the journal entry of the trial, although the defendants considered it so far a valid judgment that they attempted to reverse it by proceedings in error. “Mere irregularities or errors in judicial proceedings afford no ground for an injunction to restrain the collection of a judgment.” (Burke v. Wheat, 22 Kan. 722. See, also, Muse v. Wafer, 29 Kan. 279.) The clerical omission was one which courts regard as of little consequence and easily remedied? It affected none of the substantial rights of the defendants, and furnished no ground for enjoining the executions. Suppose the motion to correct and amend the record had been filed in the cause before the change of venue: it could hardly be denied that under such circumstances the district court of Bourbon county would have been the only court to'pass upon the motion. The mere fact that it was filed after the venue was changed is unimportant.
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The opinion of the court was delivered by
Mason, J.:
On May 1, 1900, W. H. Stevenson recovered a judgment against the Consolidated Barb Wire Company, a Kansas corporation, in an action founded upon a tort. On December 7, 1900, an execution was issued, which was returned unsatisfied January 2, 1901, because no property could be found on which to levy. On June 27, 1903, Stevenson filed a motion for the appointment of a receiver to close up the affairs of the corporation. On September 12, 1903, E. E. Myers was appointed as such receiver. On October 6, 1903, the receiver sued several stockholders to collect the amounts for which they were liable in addition to their subscriptions, the action being based upon sections 1302 and 1315 of the General Statutes of 1901 (now repealed — Laws 1903, ch. 153), which authorized such procedure for the benefit of creditors. He recovered a judgment, from which the defendants prosecute error.
The most difficult question presented is whether the statute referred to protected the owner of a judgment founded on tort as well as claimants whose demands originated in contract. So much of it as is here important reads as follows:
“Sec. 1315. The stockholders of. every corporation, except railroad corporations or corporations for religious or charitable purposes, shall be liable to the creditors thereof for any unpaid subscriptions, and in addition thereto for an amount equal to the par value of the stock owned by them, such liability to be considered an asset of the corporation in the event of in solvency, and to be collected by a receiver for the benefit of all creditors.
“Sec. 1302. If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property upon which to levy such execution, such corporation shall be deemed to be insolvent; and upon application to the court from which said execution' was issued, or to the judge thereof, a receiver shall be appointed, to close up the affairs of said corporation. Such receiver shall immediately institute proceedings against all stockholders to collect unpaid subscriptions to the stock of such corporation, together with the additional liability of such stockholders equal to the par value of the stock held by each. All collections made by the receiver shall be held for the benefit of all creditors, and shall be disbursed in such manner and at such times as the court may direct.”
This statute was enacted while section 2 of article 12 of the state constitution was in force, reading:
“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. 1901, § 211.)
The constitutional provision was not self-operating (Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331), but may aid in the interpretation of the act passed in pursuance of'it.
A similar question arising upon similar statutes has frequently received the attention of the courts, but the authorities are not in entire harmony on the subject. In volume 1 of the fourth edition of Cook on Corporations, section 217, it is said:
“The statutory liability imposed upon the stockholders in corporations is a liability exclusively for debts and demands accruing against the corporation by reason of its contracts. It cannot, therefore, be enforced to pay damages recovered against the corporation in an action in tort.”
An.d in volume 26 of the American and English Encyclopaedia of Law, at page 1024:
“Unliquidated damages arising from the commission of a tort by the corporation or its agents are usually held not to be ‘debts’ within the meaning of that term as used in the statutes imposing liability upon stockholders. But in Ohio and South Carolina they have been held to be ‘dues’ within the purview of their statutes.”
On the other hand, the discussion of the subject in the valuable article on “Corporations” by the late Seymour D. Thompson in the Cyclopedia of Law and Procedure includes this statement:
“A judgment against a corporation is certainly a debt of the corporation, without reference to the question whether it was founded upon a tort or upon a contract. Hence, where it is sought merely to subject what remains unpaid by the shareholder in respect of his shares, it is clear that any demand against the corporation which has been reduced to a judgment will be available as a basis of such a proceeding without reference to the nature of the original claim. If it is merged in the judgment it becomes a ‘debt of record’ in the language of the common law; and upon this point there will be no difference of judicial opinion. So as already seen constitutional provisions and statutes securing to creditors dues from corporations by a superadded individual liability of their shareholders are remedial in their nature, and hence embrace judgments against the corporation for damages in actions for its torts.” (10 Cyc. 684.)
Manifestly the question whether a stockholder must respond to a demand of the character here involved depends upon the language of the constitutional or statutory provisions in virtue of which the liability is asserted. The decisions for the most part turn upon the force to be given to the word “debt.” While the statute under consideration does not use that word, much the same effect is produced by its employment of the term “creditors” to describe those for whose benefit the remedy is furnished. The word “debt” has several recognized meanings. Any financial obligation is a debt in a broad and general sense; but where the term is used technically and restrictively it implies an ascertained amount, and sometimes as well a foundation in contract. The same distinction exists in the use of the word “creditor,” which may mean one having any character of claim against another, or one having a liquidated demand based on an agreement. Illustrations of the various uses of these words may be found in volume of Words and Phrases Judicially Defined, at pages 1713, 1714, 1718-1721, 1891-1892; also in volume 8 of Words and Phrases Judicially Defined, at page 7628.
The cases in which stockholders have been held not'liable for demands against the corporation arising out of tort are collected in the works from which the foregoing quotations are made. (See, also, cases cited in Marshall, Corp. § 406.) They proceed upon the theory that such liability exists only with respect to obligations originating in contract. Where that view prevails it can make no difference that the claim has been placed in judgment, although that consideration is often spoken of as affecting the matter, for a judgment is not a contract in the sense that it can be regarded as in the nature of an agreement. (23 Cyc. 673, 674.) Nearly all of these cases are controlled by one or the other of these two reasons: (1) That the statute to be construed is penal, the stockholder’s liability being incurred only as a penalty for some act or omission of the directors, and on that account a strict construction is required; (2) that the statute uses some expression beyond the mere word “debt” — for instance, “debt contracted” — indicating that only contractual obligations are within its purview.
Neither of these reasons can have any application here. The statute quoted is clearly remedial, and beyond the bare use of the word “creditors” there is nothing in its language to suggest a limitation of its benefits to any particular class of claimants; indeed the clause making the double liability an asset of the corporation tends strongly against such restriction.
In Ward v. Joslin, 100 Fed. 676, 105 Fed. 224, 44 C. C. A. 456, it was held that under the Kansas laws as they existed prior to 1899 a judgment against a corporation, to be available as a demand against a stockholder, must have been based not only upon a contract but upon such a contract as the corporation had legal authority to make, and the decision was affirmed by the supreme court. (Ward v. Joslin, 186 U. S. 142, 22 Sup. Ct. 807, 46 L. Ed. 1093.) The statute there considered (Gen. Stat. 1889, § 1192) provided that if any execution against a corporation proved fruitless liability should attach to the stockholders, but in other sections of the same act (Gen. Stat. 1889, §§ 1204, 1206) the liability was described as one for the payment of debts. In each opinion the word “dues,” occurring in the constitution, was treated as relating only to contractual obligations. The statute now under consideration differs materially from the earlier one, and the presence of the provision making the double liability an asset of the corporation affords especial ground for applying the arguments thus made in favor of giving the word “dues” a broad meaning in Rider v. Fritchey, Adm’r, 49 Ohio St. 285, 30 N. E. 692, 15 L. R. A. 513:
“Can the stockholders of an Ohio corporation be held for obligations of the corporation growing out of.torts? It follows from what has already been stated that we must' assume that this street-railroad company was' organized under a law which imposed upon stockholders just such liability as the constitutional provision requires. We look, therefore, to the constitution as our guide. The provision, section 3 of article 13, is: ‘Dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.’ The question turns upon the import of the word ‘dues.’
“It has been contended that provisions creating individual liability on the part of the stockholders are in derogation of the common law, and are, therefore, to be construed strictly. Authorities in support of this rule are not wanting, and, in so far as such liability is attached by way of penalty for the omission of some act required by the statute, as in some of the states, it is probable that the weight of authority favors the proposition. But all concede that this is a remedial provision, and to hold that there must be applied to it the same test as if it were a penal law is to hold that all remedial laws must be so construed, for every remedial law must of necessity be in derogation of the common law. Where the provision is simply remedial, though it .does impose an obligation which did not attach at common law, we see no reason to insist upon what is called a strict construction, but believe that the ordinary rule which requires the court to inquire simply as to the intent of the lawmakers, reading the provisions as they were intended to be read, will best attain the ends of justice. This leads us to look to the intent of the section quoted. Speaking in general terms, it must be manifest that the intent was to provide that’those who derive advantage from the authority of the state, given by our incorporation laws, shall, at the same time, assume responsibility for the acts of the artificial creature which they have called into legal being affecting the rights of others. Having in mind this general intent, and the provision being remedial, it should, we think, be construed with a view to remove the evil and extend the benefit proposed. . . . It would seem to be the undoubted duty of the court to give the word ‘dues,’ as found in the section quoted, such construction as will secure the apparent object of the constitution makers in its adoption. Constitutions are necessarily couched in terse language, and we look there for the use of words in a broad, comprehensive sense. . . . It is difficult to see any reason why the framers of the constitution should intend to afford one who gives credit for goods or money to. a corporation a right to demand compensation of the stockholders in case of insolvency, and deny a like right to one who entrusts it with the care of his person, as in the case of a passenger, or to one, even a stranger, who, without fault on his part, is injured by the negligence of the corporation’s agents. It may well be asked: Are the rights of things more sacred than the rights of persons? Is there any rule of public policy which would justify the protection of rights arising ex .contractu, which would not equally call for protection of rights arising ex delicto, or any claim for unliquidated damages? ... As conclusion, we are of the opinion that the word, ‘dues’ should receive a beneficial construction, one which will include within its scope as well a demand fof unliquidated damages for a tort as a claim for a debt arising upon contract.” (Pages 292, 294, 295.)
This reasoning was approved and adopted in Flenniken v. Marshall, 43 S. C. 80, 20 S. E. 788, 28 L. R. A. 402. We regard it as sound and convincing, and in principle decisive of the question here presented in favor of the view taken by the trial court.
A further contention made by plaintiffs in error is that, granting a judgment against a corporation for a tort to be an obligation for which under any circumstances a stockholder might be held upon his additional liability, the present action cannot be maintained because the section referred to was repealed before its benefit had been invoked by the making of an application for a receiver. (See Laws 1903, ch. 152, effective March 17, 1903.) As the judgment was not based upon a contract, the legislature doubtless had power by taking away the remedy to deprive the creditor of the means of enforcing its payment. (Louisiana v. Mayor of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936.) But such power was not attempted to be exercised in this instance; for, while the repealing act itself contains no saving clause, there must be read into it a reservation in favor of any right accrued as well as of any proceeding commenced, in consequence of the first paragraph of section 7342 of the General Statutes of 1901, which reads:
“The repeal of a statute does not . . . affect any right which accrued, any' duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.”
When the judgment had been rendered and the insolvency of the corporation had been demonstrated by the issuance and return of an execution nulla bona a right at once accrued to its owner, under the existing statute, not only to have a receiver appointed for the coi-poration, but by this means to enforce the stockholders’ liability to him. This right by the terms of the statute quoted survived the repeal, although no proceeding had been begun to assert it. This proposition is substantially covered by the decision in Wire Co. v. Stevenson, 71 Kan. 64, 79 Pac. 1085, although there the question presented was only whether a receiver could be appointed, his right to maintain an action against the stockholders not being involved.
It is next claimed that if any cause of action of the character here presented ever existed against the plaintiffs in error it had been barred by the statute of limitations before steps were taken to enforce it. The corporation permanently suspended business January 15, 1899. It is argued that with the expiration of one year from that date a right accrued to Stevenson to bring action directly against the stockholders of the corporation under sections 1200 and 1204.of the General Statutes of 1889, which authorized such a proceeding; that this right was barred by limitation because not exercised within three years; and that, under the authority of Cottrell v. Manlove, 58 Kan. 405, 49 Pac. 519, when the bar was permitted to fall against this remedy it excluded every other as well. A fatal fault with this argument is that the sections referred to were repealed January 11, 1899, several days before the corporation ceased to do business, and more than a year before such cessation had continued long enough to warrant a direct action against the stockholders. (Laws 1898, ch. 10, § 17.) Therefore no right of action accrued to Stevenson under them prior to their repeal, and after their repeal the only remedy against stockholders left to eorporate_ creditors whose claims were based upon torts was that by the appointment of a receiver. (Henley v. Stevenson, 67 Kan. 4, 72 Pac. 518.) To pursue this remedy it was necessary that he should first of all reduce his claim to judgment. This he accomplished May 1, 1900, and no want of diligence can be attributed to him prior to that time.
It is further contended, however, that it was incumbent upon Stevenson to cause the commencement of an action against the stockholders, or at least to apply for the appointment of a receiver, within three years from the time judgment was obtained. The application was not made until September 12, 1903, and the action was not begun until October 6, 1903. Before he could ask for a receiver, however, it was necessary that the insolvency of the corporation should be exhibited by the issuance and return of an execution. It was within the power of the judgment creditor to cause these preliminary steps to be taken at any time, and he could not extend the statute of limitations indefinitely by neglecting to act. It was incumbent upon him to perfect his right of action within a reasonable time, which could never be more than the statutory period. (West v. Bank, 66 Kan. 524, 527, 72 Pac. 252, 63 L. R. A. 137, 97 Am. St. Rep. 385.) He took out an execution December 7, 1900. Whether this would under all circumstances be deemed reasonable promptness need not' be determined. Pending the settlement of a case-made a stay of execution was granted, which expired October 9, 1900. Until that time, therefore, no attempt could have been made to enforce the judgment. The record shows that the defendant in error consented to the stay order, but even if this can be regarded as a voluntary submission to a suspension of proceedings the delay so occasioned, in view of its purpose to facilitate a review, cannot be deemed an unreasonable one. The interval between the expiration of the stay and the issuance of an execution — from October 9 to December 7 — was hardly long enough to show a lack of diligence; but even this need not be decided, for the present action was begun not'only within three years from the return of the execution but within three years from the end of the stay, and was therefore brought within due time, irrespective of ■ any further allowance for the taking of the preliminary steps.
The plaintiffs in error were stockholders in the Consolidated Barb Wire Company from some time in 1887 until January 15, 1899, when they sold their stock in good faith. The transfer was duly entered upon the books of the company, but no statement of such change of ownership was ever filed with the secretary of state. Section 1283 of the General Statutes of 1901, which took effect January 11, 1899, provides:
“It shall also be the duty of the president and secretary of any such corporation organized under the laws of this state, as soon as any transfer, sale or change of ownership of any such stock is made as shown upon the books of the company, to file with the secretary of state a statement of such change of ownership, giving the name and address of the new stockholder or stockholders, the number of shares so transferred, the par value, and the amount paid on such stock. No transfer of such stock shall be legal or binding until such statement -is made as provided for in this act.”
In the original act there followed this proviso, which has since been repealed, but which is of importance as indicating clearly that the restriction on the transfer of stock was intended to affect the matter of the personal liability of stockholders:
“Provided, however, that no transfer of stock shall release the party so transferring from the liability of the laws of this state as to stockholders of corporations for profit, for ninety days after such transfer and the filing and recording thereof in the office of the secretary of state.” (Laws 1898, ch. 10, § 12.)
The ground of the claim against the plaintiffs, in error is that by reason of the statute quoted the sale of their stock was not effective to relieve them from liability for the debts of the corporation because no record of it was ever made in the office of the secretary of state. English and federal cases hold that, where one who has transferred his stock- remains charged with corporate debts because the transfer is not properly registered, it is upon the principle of negligence on his part, and that he can relieve himself from liability by showing that he has been reasonably diligent in the matter and that the fault has been that of the company’s officers. (10 Cyc. 716, 717.) The statute here involved is too explicit to leave room for construction. It makes the liability absolute until the required statement is filed. The duty to supply such record is imposed upon the president and secretary and not upon the stockholders, but this is true as well of the ordinary requirement that to be effective transfers must be entered in the books of the company. In either case it can hardly be doubted that the transferrer can if necessary have the aid of the courts to see that the duty is performed. (19 A. & E. Encycl. of L. 881, 882.) Probably if a stockholder were driven to that remedy, the registration, when made in pursuance of an order so obtained by him, would by relation be effective from the time his proceeding was begun. Or it may be that any affirmative action on his part — a mere request or demand that the officers perform their duty — might relieve him from liability. . But no such question is here presented, for it is not shown that any step was taken by the plaintiffs in error to compel or to urge a compliance with the law.
The argument is strongly pressed, however, that the statute is invalid as to those who already owned corporate stock at the time of its enactment, for the reason that it seeks to change their contractual liability— to impair the obligation of the contract which resulted from such ownership. We cannot agree to this contention. Before the act was passed one who had sold stock of a corporation, in order to relieve himself from liability for its debts, was obliged to see that the transfer was noted by its officer upon its books; the enactment merely imposed an additional duty to see that a similar notation was made upon a public record. The change imposed no restraint upon the transfer of the stock, but related only to the means by which it should be accomplished and the manner in which it might be evidenced; it is essentially a matter of method — of procedure — rather than of ultimate substantial rights.
(93 Pac. 173.)
SYLLABUS BY THE COURT.
1. Corporations — Liability of Stockholders — ‘‘Dues.” In the provision of the Kansas constitution (Art. 12, § 2; Gen. Stat. 1901, § 211, repealed in 1906) that “dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder” the word “dues” was used in a sense broad enough to cover a judgment rendered against a corporation in an action founded upon tort.
2. -Rights of Creditors — Unsatisfied Execution — Judgment for Tort. In view of such interpretation of the constitutional provision referred to, section 1192 of the General Statutes of 1889 (repealed by chapter 10, Laws of 1898), authorizing the owner of a judgment against a corporation upon which an execution had been returned unsatisfied to proceed against any of the stockholders and hold them liable thereon to the extent of the amount of their stock, applied to judgments founded on tort as well as upon contract, notwithstanding that elsewhere in the sainé act the person to whom the right is given is described as a creditor of the corporation and the claim against it as a debt.
“Whether the state may impose added conditions or duties upon individuals with regard to their contracts depends upon the nature of such requirements; if they amount to a change of the obligation itself they are of course ineffectual; but an obligation cannot be said to be impaired by a statute which merely imposes an additional duty on the owner in order that he may preserve it; therefore recording acts and acts of kindred nature are constitutional.” (8 Cyc. 994.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This suit was brought by plaintiff in error and her daughter against S. G. Shelton and A. W. Hershberger, to set aside a contract for the conveyance of land owned in equal interests by them. The contract to convey the land to the defendants in error was signed by the mother for herself and her daughter, during the minority of the daughter, and without legal authority therefor. The-trial resulted in a judgment in favor of the daughter and against the mother, and of this adverse judgment the mother complains.
The defendants in error challenge the sufficiency of the record to bring up the errors alleged in the giving of instructions and the refusal of requests therefor. The plaintiff in error, conceding the ground for the objection, moves to amend; and we will first consider whether this motion should be allowed.
The record was evidently prepared with the intention of having it settled and signed by the judge as a case-made, but this was not done. Nor was there any bill of exceptions allowed by the court, nor were the instructions which were given and to which the plaintiff in error objects marked “excepted to by plaintiff” and signed by the judge, - nor were the instructions requested and refused so marked and signed. The attorney for the plaintiff in error, however, shows by his affidavit that at the time of the giving and the refusal of the instructions in question he did except thereto respectively; that the judge told him to file his exceptions with the clerk; and that he did prepare and file the instructions given and refused, with his exceptions thereto in writing. He does not show, however, that the judge allowed and signed such exceptions. Had the judge signed and allowed these exceptions it would have so far constituted a bill of exceptions. The only other way of making exceptions to instructions or to requests therefor a part of the record is prescribed by section 276 of the civil code (Gen. Stat. 1901, § 4723), and is a statement of the exception on the instruction or request, signed by the judge and filed with the clerk. No other proof of the taking of the exception can make such exception a part of the record, and a transcript brings up nothing but the record. The motion to amend is therefore denied, and we cannot consider the plaintiff in error’s assignments of error Nos. 4 to 11, inclusive.
It is charged in the petition, and there is some evidence tending to support the charge, that one of the defendants, while acting as the agent of the plaintiff in error, concealed and misrepresented facts which affected the value of the land — she never having seen the land or having known anything in regard to the same except through his representations — and thereby secured from her the contract to convey the land to him and his partner at a grossly inadequate price.
It is familiar law that it is the duty of an agent in buying or procuring of his principal property which is subject to his agency to make known to the principal all facts which affect the value thereof and of which the agent has the more complete knowledge. Any concealment of such facts is fraudulent, and vitiates the transaction secured thereby. It is also trite that upon the trial of a charge of fraud great latitude should be granted in the introduction of evidence in support of the charge. Fraud is secretive, and relies upon concealment for success, and he who would expose it must delve. No obstacles merely technical should be allowed to impede him. Under the circumstances of this case we' think the court erred in too rigidly excluding evidence. The plaintiff iii error’s husband*'owned this land, and upon' his death the title devolved- upon the plaintiff in error and her minor daughter. The plaintiff in-error was not-a'-witness in-the- case,- never saw! thé lánd, and evidently had'no information"of facts determinative‘of-its value-except such as came; to her from defendant Shelton» through-her late husband, or through another agent, Hoyt. In the* absence-of-■ the-plaintiff-in error as a- witness -it was desirable,-if-not essential,■ to prove that in-making the contract she relied upon the'representations of this defendant as'to the character and value of the'lánd» and- her-'agent,Hoyt, was interrogated as a -witness, for this -purpose. As before suggested,'it had been’shown-that’he was the sole intermediary' between the plaintiff in1 error and defendants in error. The questions asked for this - purpose, with the objections thereto and rulings thereon, are as-'follów-:*
“Qu'es. You may state‘whether or not in making' this bond'for'deed she-relied-upon the representations made to you by Mr. Shelton-. [Objected tO- by- the .'defendants as incompetent, and not the - best evidence, and for the further reason- that it calls for a. conclusion and state of - mind of a third person. Objection- sustained.]
“Q. I wil-1 ask- yotí' to'- state whether" or' not- Mrs; Brakefield would ever-have signed this bond for deed or made this- contract had-it not-.been, for the. states ments contained in Mr; Shelton’s letters which have been introduced in evidence and the. oral'statements which' he made to you. [Defendants object to the question -as incompetent- and 'calling for' 'a' conclusion -of- the witness. Obj éc-tion sustained.]:
“Q.- Would' you,; as- agent of- the;-plaintiff, would-you have permitted*Mrs. Brakefield.to have, executed this instrument to Mr. Shelton, .had it' not been for. the letters you had received from Mr. Shelton an’d for the oral‘statements’he made to you which you have testified about ?' [Obj ecte'd to 'by- defendant -for-the; reason that-it is calling-for a-.conclusion*of the witness. ON jection sustained.]’’
These questions were, perhaps, not very fortunately framed, yet their purpose was obvious; and while it is not usually proper for one person to testify, directly to the state of mind of another, or to the effect of 'a certain cause upon the mind of another,.it is a general but not an invariable rule to exclude such evidence, depending, upon the witness’s opportunity of knowing whereof he speaks. (1 Wig. Ev. §§ 658-661.) A credit man may testify that his principal would not have sold a man goods on.credit had he known the man’s financial condition. (Jandt v. Potthast, 102 Iowa, 223, 71 N. W. 216.) If A and B .walk on the.street talking politics,- and C rushes up and shouts to B that, his house is on fire, and thereupon B turns and runs in the opposite direction, toward his home, crying “Fire! Fire!” it would seem that'A might well testify that B . relied upon the information given him by C and started.home by reason of it. ■ •
The third question which was excluded is in effect an inquiry as to the effect of the communications on the mind of the witness at a time when he was the confidential agent of the plaintiff in error, and was susceptible of an answer which might be materially beneficial to her as circumstantial evidence.
Evidence that defendant Shelton acted as agent for plaintiff in error’s husband in regard to the land. was. also material.
The judgment is reversed and a new trial granted. | [
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The opinion of the court was delivered by
Mason, J.:
Lewis Billings brought an action against the Atchison, Topeka & Santa Fe Railway Company for malicious prosecution. A jury trial resulted in a general verdict for the plaintiff for one dollar. In answer to a special question a finding was made that he had been put to an expense of $180 in his defense against the prosecution of which he complained. The court rendered judgment for $181, from which the plaintiff prosecutes error.
It is argued that according to the uncontradicted and unimpeached evidence adduced by the plaintiff he had suffered substantial injury outside of the specific item for which $180 was assessed as compensation, and that justice requires that a new trial be granted on that account. In the brief of the plaintiff it is said:
“Neither the jury nor the judge sitting as a juror in the hearing of the motion' for a new trial allow plaintiff anything for the ‘extreme humiliation and disgrace’ that his undisputed testimony shows he suffered ; and yet this was, without doubt, the actual damage from which plaintiff suffered most.”
The former provision of the statute (Gen. Stat. 1901, § 4755) that “a new trial shall not be granted on account of the smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained,” has been repealed. (Laws 1905, ch. 332.) Therefore the trial court doubtless had the power, if convinced that there was just occasion for such action, to set aside the verdict on the theory that its amount was inadequate and that it was on that account contrary to the evidence. But there is nothing for this court to act upon in that connection. We cannot say that because there was no direct contradiction of certain testimony offered in behalf .of the plaintiff the jury were bound to give it full credit, nor is their determination in that regard subject to review here. This is the general rule (Taylor v. Modern Woodmen, 72 Kan. 443, 83 Pac. 1099, 5 L. R. A., n. s., 283), and it applies with especial force to the plaintiff’s personal statement of the extent of his mental suffering.
There is an obvious inconsistency between the general verdict and the special finding referred to. It is not clear why the jury, having decided in faVor of the plaintiff and estimated his actual loss through the defendant’s wrongful act at $180, returned a general verdict for only one dollar, but it does not follow that they wer,e actuated by any unworthy motive. They may have been under a misapprehension as to the relation between the verdict and the finding — they may have supposed that the amount stated in the one need not be included in the other. Unless the trial court was convinced that the jury were guilty of some intentional misconduct in the matter, or acted under the influence of passion or prejudice, there was no occasion for granting a new trial; and unless a new trial were granted nothing remained to be done but to render the very judgment that was entered. The verdict and special findings alike established that the plaintiff was entitled to a judgment to the extent of the damages he had suffered. The finding with regard to the expenses of his defense established that he was entitled to $180 on that account, and the general verdict established that he had sustained no substantial injury in any other respect. The requirements of all parts of the jury’s return were met by a judgment for $181.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
On February 16, 1906, a complaint was filed before a justice of the peace charging the appellant with taking, stealing and carrying away two steers, the property of J. M. Hale, on the “blank day of February, 1904.” A warrant was issued and immediately executed which stated the offense in the same language as the complaint, except that the date was given as “the ———• day of February, 1904.” By agreement of parties further proceedings were postponed until March 1, 1906, and appellant entered into a recognizance to appear before the justice on that day to answer the complaint made against him. On the day fixed a preliminary examination occurred, and appellant was held for trial. On May 14, 1906, an information was filed in the district court charging appellant with larceny of the steers described on February 29, 1904. At the commencement of the preliminary examination the complaint and warrant were attacked by a motion to quash, which was denied; and a motion in the district court to quash the information was denied. Appellant was tried and convicted, a motion in arrest of judgment was denied, and he appeals. The foregoing proceedings furnish the basis for the first assignment of error.
It is argued that the face of the information disclosed the fact that the prosecution was barred by the statute of limitations. It has been decided that the commencement of a criminal proceeding does not date from the filing of the information, but from the issuance of the warrant which is served. The information need not allege the facts relied on to avoid the bar, but the court will look into the prior proceedings and from them ascertain the point at which the running of the statute was arrested. (See The State v. Waterman, 75 Kan. 253, 88 Pac. 1074, and cases cited in the opinion.)
Appellant says that an 'examination of the prior proceedings discloses that the complaint-and warrant were void because the date of the offense was charged in blank, so that it did not appear but that prosecution was barred. The attack made upon the complaint and warrant came too late. The motion to quash was not filed until the day of the preliminary examination. The complaint and warrant had then spent their force. On February 16 appellant agreed to a continuance, and undertook to respond to the charge made against him. From that time he was held upon his recognizance. Having submitted to the arrest made under the warrant, and having given bond without objection to appear and answer, he waived all defects in the complaint and warrant. (The State v. Bjorkland, 34 Kan. 377, 8 Pac. 391; The State v. Longton, 35 Kan. 375, 11 Pac. 163; Junction City v. Keeffe, 40 Kan. 275, 19 Pac. 735; The State v. Moseli, 49 Kan. 142, 30 Pac. 189; The State v. Dugan, 52 Kan. 23, 27, 34 Pac. 409; Topeka v. Kersch, 70 Kan. 840, 79 Pac. 681, 80 Pac. 29.) Thereafter he could not be heard to say no proceeding was pending against him, and under the well-known rule he could be bound over for any felony which the preliminary examination disclosed. It makes no difference that he was not apprised of the date of the larceny charged until the preliminary examination. The prosecution nevertheless had been commenced and the running of the statute of limitations had beén suspended.
Besides what has been said, the court is unable to agree with appellant upon the merits of his claim. The complaint and warrant were merely indefinite in respect to a matter upon which neither of them need be exact. They charged a larceny in February, 1904. Since under this charge the prosecution might not be barred they were not nullities or even subject to a motion to quash. If they had fixed the date of the crime so that apparently a prosecution would be barred, still they would not be void. It was expressly so held in thé case of In re Stewart, 60 Kan. 781, 57 Pac. 976. The decision is based upon the reiterated doctrine that the chief purpose of a warrant is not notice, but the detention of a person charged with crime until a preliminary examination can be held; that it may merely state the imputed offense by name and be sufficient; that technical accuracy, formal precision and exhaustive detail are not necessary in either the complaint or warrant, and that the party charged receives his notice of the nature of the .offense not from the complaint and warrant alone but from all the proceedings, and even then only in its general character and outlines, the full and formal statement being reserved for the information. This being true, no matter how indefinite, defective and irregular the charging part of the complaint and warrant may have been they initiated a prosecution and arrested the running of the statute of limitations.
Appellant lived in Oklahoma.. While the steers in question were in the custody of their owner they were kept part of the time in Oklahoma and part of the time in Kansas. Under the evidence they might have been stolen in either jurisdiction. They were sold in Oklahoma by appellant and his partner (with whom he was jointly charged), and were delivered to the purchaser at Kiowa, Kan., on February 29, 1904. Therefore the matter of venue became important. The court instructed the jury as follows:
“In order to convict the defendants, or either of them, of the crime of grand larceny as charged in the information, the burden of proof is upon the state to establish to the satisfaction of the jury, beyond a reasonable doubt, each and all the following material allegations, to wit:
“(1) That the defendants, Frank White and Elmer Williams, or either of them if they were acting in concert, as partners, or counseling, aiding and abetting each other in the commission of the crime, did wilfully, unlawfully and feloniously, take, steal and carry away the two steers charged to have been stolen in the information, or either of them, branded with g (commonly called 76 connected) on the left hip and with a bar as follows / (commonly called bar) on the left jaw, ear marked with an underbit in each ear.
“(2) That said offensé was committed in Barber county, Kansas, or if not committed in Barber county, Kansas, then that the steers, or either of them, the property of James M. Hale, having been stolen by the defendants, or either of them, in Oklahoma Territory, were brought by the defendants, or either of them, when acting in concert, as partners, or while counseling, aiding or abetting each other in the .commission of the crime, into the state of Kansas; or that the defendants counseled, aided, abetted, or assisted others in bringing said steers, or either of them,- from Oklahoma Territory, where they were stolen, into Barber county, Kansas.
“(3) That said offense was committed within two years immediately prior to the bringing of this action, which was brought on;the 16th day of February.”
Appellant complains of the last clause, of the second subdivision of this instruction, and asserts that under it the jury did not need to be satisfied that the defendants or either of them stole the cattle, or assisted any one else in stealing them, or even knew that they were stolen when they were brought into Kansas. This argument ignores the canon that the entire instruction must be considered in ascertaining the meaning of any portion of it. The clause impugned is an alternative of the concluding portion of the one immediately preceding it. The defendants, having stolen the cattle in Oklahoma, must have brought them into Kansas or must have counseled, aided, abetted or assisted others in bringing them into Kansas. The meaning is unmistakable in the light of all that precedes and follows. In the first subdivision the court told the jury they must find that the defendants or one of them stole the cattle; the second was devoted to venue; and the third fixed the limit of time within which the stealing must have taken place. In the discussion of venue and in the discussion of time the “offense” referred to is the offense committed by the defendants mentioned in the first subdivision, and in the venue portion of the charge all references to stolen cattle are references to cattle stolen by the defendants as described in the first subdivision. So interpreted, as it clearly must be, the clause objected to means: “or that the defendants counseled, aided, abetted or assisted others in bringing said steers or either of them from Oklahoma Territory when they were stolen by the defendants, or either of them if acting in concert, into Barber county, Kansas.”
One of the contested questions in the case was the mutilation and change of brands and marks upon the cattle. The court charged the jury that if the defendants knowingly and wilfully changed and altered the brands and marks upon the steers with intent to steal them or to convert them to their own use, and sold and disposed of them and delivered them to the purchaser in Barber county, Kansas, such conduct would clearly amount to grand larceny. Appellant argues that under this instruction it was open to the jury to convict him for acts done in Oklahoma, and that, too, without any evidence having been introduced showing that such acts were criminal in the foreign jurisdiction. The instruction was evidently drawn under section 285 of the crimes act (Gen. Stat. 1901, § 2286), which reads as follows:
“Every person who shall steal dr obtain by robbery the property of another in any other state, territory or country, and shall bring the same into this state, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or taken within this state; and in any such cases the larceny may be charged to have been committed, and may be indicted and punished, in any county into or through which such stolen property shall have been brought.”
The gravamen of this offense is the bringing into this state of property which has been feloniously appropriated. Section 88 of the crimes act (Gen. Stat. 1901, § 2076) makes the alteration of brands with intent to steal or convert the branded animal larceny. Such conduct, being a manifestly dangerous depredation upon the right of private property, is deemed by the legislature of this state meet for punishment in the same manner as an ordinary stealing, and no matter what may be the law of the place where an alteration of brands occurs, if the property then be brought into this state the asportation and possession here constitute larceny here. The section quoted is section 274 of the crimes act of 1859 and of the Compiled Laws of 1862. In a case decided in 1866 involving the same point Mr. Justice Bailey, speaking for the court, said:
“We have no doubt as to the power of the legislature to provide for the punishment of the offense defined by section 274 of the crimes, and punishment act, which consists, not in stealing property in another state or territory, but in bringing property thus feloniously taken within the limits and jurisdiction of this state, to the manifest detriment of the public morals. The original taking may have been a crime against the laws of the state where it was committed, but of that the laws of this state take no cognizance; but, surely, every civilized community must have the right to prevent its soil and territory from being converted to the vile uses of thieves and robbers, a receptacle of stolen goods, and to protect its citizens against the demoralizing effects of such depraved examples.” (McFarland v. The State, 4 Kan. 68, 74.)
The doctrine of this decision has been criticised as an unwarranted extension of the fiction of constructive larceny beyond the purpose for which it was originally intended (editorial note, 15 L. R. A. 722), and it does not obtain in some states; but its standing with the courts is fairly stated in the recent case of Barclay et al. v. The United States, 11 Okla. 503, 69 Pac. 798, as follows:
“It is well settled by the great weight of authority that we do not look to the law of the place from which the property was brought, nor to the common law, to determine the question of the larceny, but to our own statutes. We do not seek to punish for crime committed in the Indian Territory, but for a new offense committed in the Osage nation, in Oklahoma territory, and against the laws of Oklahoma. The question as to whether the original taking constituted larceny is to be determined by our own laws, and not by the laws of the place where the property was first taken. This principle is settled by the following authorities: People v. Burke, 11 Wend. 129; Murray v. State, 18 Ala. 731; People v. Staples, 91 Cal. 23, 27 Pac. 523; State v. Underwood, 49 Me. 181, 77 Am. Dec. 254; Worthington v. State, 58 Md. 403, 42 Am. Rep. 338; State v. Knief, 12 Mont. 92, 29 Pac. 654, 15 L. R. A. 722; Hemmaker v. State, 12 Mo. 454, 51 Am. Dec. 172; State v. Butler, 67 Mo. 61. The courts of the state of Ohio, Texas and Massachusetts have held to a different rule, but they are not sustained by the weight of authority.” .(Page 512.)
Pursuing further his line of argument, appellant says that the offense denounced by section 83 of the crimes act consists of certain enumerated elements which if relevant to his case should have been recited at length in the information, citing The State v. Bellamy, 63 Kan. 144, 65 Pac. 274, and other decisions of like.import. The suggestion would be more forceable if appellant had been on trial for altering brands with intent to steal or convert, but he was not. He was charged with, and tried for, the distinct offense of larceny committed in Kansas by bringing stolen property into the state, and by the express terms of section 285, supra, this crime may be charged in the information as simple larceny committed in this state. To convict under this statute the prosecution must establish larceny or robbery committed before the property is brought "into the state. Here larceny was shown by proof of alteration of brands with intent to steal and convert. The foundation was thus laid for punishing the unlawful asportation into this state, and the instruction was not only pertinent to material evidence but was correct.
Upon these propositions the decision in McFarland v. The State, 4 Kan. 68, is conclusive. The information was for taking, stealing and carrying away in the county of Leavenworth certain animals. The evidence was that the property was taken in Platte county, Missouri, and was found in the defendant’s possession in Leavenworth county, Kansas. In affirming a verdict of guilty of larceny the court said:
“The legislature of Kansas has not transcended its legitimate authority in the enactment above cited. [Section 274, quoted above.] That act makes the retaining possession of the stolen property within this state equivalent to an original act of theft, and declares it may be punished in the sarnie manner as an original larceny. It régards every asportation of the property animo furandi as a new taking, and in this it but echoes the settled principles of the common law. . . . Second, as to the ruling of the court in admitting the evidence of the witness, Baldwin, we think it entirely unexceptionable, from the fact that it was necessary, first to prove the wrongful means by which McFarland came into possession of the property, before he could be punished for its continued wrongful possession.” (Page 75.)
The McFarland case has been cited with approval in The State v. Price, 55 Kan. 606, 609, 40 Pac. 1000, The State v. Wade, 55 Kan. 693, 41 Pac. 951, The State v. Suppe, 60 Kan. 566, 570, 57 Pac. 106, and in some other decisions.
The court instructed the jury upon the subject of the recent possession of stolen property as follows:
“The possession of stolen property recently after it has been stolen is prima facie evidence of guilt, and throws upon the possessor the burden of explaining his possession of the said stolen property, and if unexplained, or if his explanation is not satisfactory, it is sufficient of itself to warrant a conviction.”
Appellant duly excepted, and it may be conceded that the rule stated is subject to some criticism in view of the present state of the criminal law. Technically the unexplained possession of recently stolen property does not make a prima facie case of guilt. It is merely an evidential fact which should be submitted to the jury to be considered in connection with all other facts and circumstances disclosed by the evidence, but which, if the jury so regard it, is sufficient to warrant a conviction; and technically, the burden of proof in a criminal case never shifts.
However, the instruction states the common law upon the subject. With some unimportant verbal changes and the not improper addition of the phrase “or if his explanation is not satisfactory” it follows the fifth .paragraph of the syllabus of the'case of The State v. Cassady, 12 Kan. 550, decided in 1874. That syllabus has served as a model to district judges in the preparation of instructions in larceny cases ever since it was formulated. In 1894 it was expressly approved in the case of The State v. Hoffman, 53 Kan. 700, 37 Pac. 138. The objections to it noted above were adverted to in the case of The State v. Powell, 61 Kan. 81, 58 Pac. 968, and the court refused to extend its application to burglary, but it still remains an unmodified expression of the settled law of this state. This being true the instruction cannot be condemned.
The court gave a brief instruction pointing out the necessity of additional evidence as the time of possession becomes remote from the stealing, which appellant says the jury may have taken as an addition to his burden, but the plain import of the language used is otherwise.
The court also gave an instruction relating to the sale or conversion, in violation of the rights of the owner, of property known by the brands to belong to another, which does hot specifically speak of felonious intent, but when considered as a whole and read with other instructions given its meaning is plain and could not have been misunderstood. Evidently it was not drawn under section 92 of the crimes act (Gen. Stat. 1901, § 2085), as appellant suggests.
The verdict is sustained by sufficient evidence, and the claimed variance between the information and the proof is unsubstantial.
The foregoing disposes of all assignments of error except those relating to testimony received and rejected. The court has not only examined each item of evidence presented but has carefully read the entire record. . To state its views upon the various rulings complained of would' require many pages of manuscript which when printed would be of no value in any other proceeding. Nearly all the rulings were correct, and those which are questionable could not have been sufficiently prejudicial to affect the result of the trial.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The first error specified by the defendant company is in refusing the instruction requested •and previously quoted. The instruction, if given, would have limitéd the province of the jury in determining the question of negligence to a situation where the company would be bound to anticipate just such an accident, occurring in the precise manner that this occurred. This rule, if adopted, would unduly restrict the functions of a jury. It may be conceded that the -defect, in order to be the basis of an action, should be such that injuries therefrom might reasonably be anticipated; yet it is not necessary that the particular circumstances attending such injuries should be an ticipated. The unusual nature of the accident and the attending circumstances are factors to be considered by the jury in determining the master’s exercise of due care. (1 Lab. Mast. & Ser. § 145.) The instructions given were clear and comprehensive, and fairly presented the issues to the jury in the light of all the evidence, and no error is presented in the refusal to charge further, as requested.
It is urged that judgment for the defendant should have been rendered upon the findings. It is argued that the first five findings, taken in connection with the admissions of the plaintiff in his testimony, would support such a judgment. It is stated that the plaintiff ran in front of the car without looking to see whether there was a brake or handhold upon it or not, and that he negligently went so close to the car that he could not get away without injury, or that he negligently failed to attempt to get away. A careful reading of the evidence in connection with the findings leads to the conclusion, however, that the findings have their warrant and support in the evidence, although the evidence is conflicting.
The principal reliance of the defendant in asking for a reversal seems to be the alleged error of the court in refusing a new trial. It is claimed that the plaintiff failed to show any negligence of the company, and, upon all the evidence, that contributory negligence on his part was shown. Attention is called to the fact that the absence of a handhold does not prove negligence, because there was no evidence as to the time when it had been removed, and the rule announced in Railway Co. v. Dorr, 73 Kan. 486, 85 Pac. 533, that unless the defects were of such a nature, or had existed for so íong a time that they should have been discovered and remedied, applies. In this case, however, if the theory of the plaintiff was sustained by the evidence, the employee was suddenly called to a place of danger by the order of his superior. In such, a situation the master is presumed to know whether the place or instrumentality is reasonably safe, and the servant may rely upon that assumption, unless the. danger is so obvious that a prudent man in the same circumstances would not encounter it, even with the assurance that such presumption affords. The servant acting in good faith upon an order of his superior may rely upon the instrumentalities being in their usual condition and fit for use, where he does not have knowledge and is not chargeable with notice to the contrary. In such a situation he may rightly rely upon the assumption that his employer has done his duty by furnishing reasonably safe machinery, appliances and surroundings. (4 Thomp. Com. Law of Neg. § 3765; Mo. Pac. Rly. Co. v. Barber, 44 Kan. 612, 24 Pac. 969.) The ‘order is considered to be an implied assurance that there is no abnormal danger. (1 Lab. Mast. & Ser. § 440c.)
Whether the plaintiff was negligent in the performance of the duty assigned to him must be determined in the light of the situation in which he was placed. If his act was such as a reasonably prudent man would have done, it was not negligent, although some other course would have been absolutely safe. (Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586.) It must be remembered that this was a sudden call to a dangerous service, which had to be performed then or not at all. Plaintiff was bound to use the discretion and judgment that a prudent man would in that situation. If it was a palpably reckless or foolhardy risk, he cannot be excused. If it was such as a prudent man would have performed, he might undertake it, although hazardous. The same rule applies to the manner in which the service was performed; called to the service, he was bound to use such means as reasonable prudence dictated in the emergency in which he was placed. Whether he ought to have undertaken the work, and whether he made use of reasonable means in performing it, were questions properly submitted to the jury.
In volume 1 of Labatt on Master and Servant, in section 358, it is said:
“In other cases the essence of the situation to be considered is that the servant was confronted by a serious danger; that he had. not sufficient time to deliberate upon the comparative safety to the alternative courses of action open to him for the purpose of avoiding injury; and that the alarm or nervous excitement produced by the conjuncture impaired his reasoning faculties to such a degree that it was unjust to' gage the quality of his conduct by the ordinary standards. It is well settled that a servant who is suddenly exposed to great and imminent danger is not expected to act with that degree of 'prudence which would otherwise be obligatory. Or, as the doctrine is also expressed, a servant is not necessarily chargeable with negligence because he failed to select the best means of escape in an emergency.”
Where a conductor ordered a brakeman to cut off cars from a moving train it was held that, even if he was not directed to go in between the cars, he might nevertheless do so, if such a mode appeared to him, in the exercise of ordinary care, to be necessary. (Hannah v. Connecticut River Railroad, 154 Mass. 529, 28 N. E. 682.) The same rule was applied when on a dark, stormy night a brakeman, who was required to act promptly, complied with an order to use a defective link. (Denver, T. & G. R. Co. v. Simpson, 16 Colo. 55, 26 Pac. 339, 25 Am. St. Rep. 242.) In Wurtenberger v. Railway Co., 68 Kan. 642, 75 Pac. 1049, it was held:
“Where a master orders a servant into a situation of danger, and, in obeying the command, he is injured, the law will not charge him with contributory negligence or with an assumption of the risk, unless the danger was so glaring that no prudent man would have encountered it, even under orders from one having authority over him.” (Syllabus.)
In Railroad Co. v. Langley, 70 Kan. 453, 78 Pac. 858, it was said:
“Again, where one, by the negligent act of another, is placed in a position of danger which requires immediate and rapid action, without time to deliberate as to the better course to pursue, he is not held to the strict accountability that is required of one situated in more favorable circumstances. Contributory negligence is not necessarily chargeable to one who fails to exercise the greatest prudence, or best judgment, in a case where he. is required to act suddenly or in an emergency.” (Page 461.)
The following cases are illustrative of the duties of á railroad company and its employees in similar cases: Settle v. St. L. & S. F. R’y Co., 127 Mo. 336, 30 S. W. 125, 48 Am. St. Rep. 633; Fox v. C., St. P. & K. C. R’y Co., 86 Iowa, 368, 53 N. W. 259, 17 L. R. A. 289; Mason v. Railroad Co., 111 N. C. 482, 16 S. E. 698, 18 L. R. A. 845, 32 Am. St. Rep. 814; Coates v. Boston & Maine Railroad, 153 Mass. 297, 26 N. E. 864, 10 L. R. A. 769.
The company by its rule required the plaintiff to unite with other employees to protect its property. He was suddenly called to that duty by his superior. He was not only'bound to use ordinary care but he was also bound to make all reasonable effort to save his employer’s property. He was required to be loyal as well as to be careful. The facts were fairly submitted to a jury, and, finding no error in the proceedings, the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The First National Bank of Cobleskill, New York, recovered judgment upon a verdict in a replevin action brought by it against Dendy & Peck for the possession of a number of cattle, and the defendants prosecute error. The plaintiff claimed as assignee of a chattel mortgage executed by L. M. Hyre to the Zeb F. Crider Commission Company. Three defenses were interposed: (1) That the mortgage was void; (2) that the cattle replevied were not in fact, those referred-to in the mortgage; and (3) that even if they were the description was so defective that the record did not impart constructive notice of the fact, it being admitted that the defendants purchased them without actual notice of the mortgage.
The attack upon the validity of the mortgage is based upon the circumstance that' Hyre, the nominal mortgagor, never had any real interest in the cattle. They were owned by the commission company, of which Hyre was an employee. He signed the note and mortgage at the request of the company, and for its purposes. The defendants argue that as Hyre had no title a mortgage executed by him could create no lien. There was an effort on the part of the plaintiff to show that as a part of the transaction the company gave Hyre a bill of sale of the cattle — thereby vesting in him the legal title as a basis for his making the mortgage. Probably the execution of this bill of sale was not established, the reference to it in the evidence falling short of technical proof of that fact. But the omission is not important. The company was the actual owner of the cattle. In accepting and assigning the mortgage it recognized Hyre as their formal owner —as the holder of the legal title. The execution of a bill of sale could add nothing to the force of such recognition. By the purchase of the note the bank acquired a valid lien on the cattle. That the mortgage secured accommodation paper was not a matter of any concern to the parties to this litigation.
The question of the identity of the cattle replevied with those mortgaged was fairly submitted to the jury, and their verdict is conclusive. It is true that a representative of the commission company was permitted to testify to matters in this connection of which he had no personal knowledge, and technical error may have been committed in this respect. But the sources of his information were fully brought out, and upon consideration of the entire record we see no reason to believe that any substantial prejudice to the defendants could have resulted.
The description which the mortgage gave of the cattle was defective. They were described as kept at a particular ranch, whereas they were in fact in another part of the county. Whether notwithstanding this partial misdescription the mortgage still gave sufficient information by which the cattle could with reasonable inquiry have been identified was a question for the determination of the jury. (6 Cyc. 1037.) Although complaint is made of the instructions, we think they fairly presented this and the other questions involved and that no ground is shown for disturbing the verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Studyvin sued the city for damages alleged to have been caused to his building by the negligence of the city in blasting a ditch for a sewer in an alley at the side of the building. He recovered judgment for $554, and the city claims that he was entitled to recover only the value of two panes of glass, broken by a rock thrown while blasting.
Whether the city was negligent in doing the blasting is practically the only issue under the pleadings, unless it be said that the allegation of the answer that if any injury occurred to Studyvin’s building it resulted from the faulty and unworkmanlike manner in which it was constructed and the denial thereof constitute an issue.
The ownership of the building by Studyvin and the making of the sewer by the city are admitted.
A number of trial errors are assigned, but are grouped by counsel for the city as follow:
“Studyvin cannot recover in this case, except as to the two glass broken by projected stones, because the work then being done was a work of public necessity, and was being done in the usual customary way employed for doing such work under like circumstances, and the damage was caused by the jarring of the ground, which is a necessary consequence of the use of such means and methods in such work, and the damage resulted from inherent defects in the building itself, there being a failure to prove negligence on the part of the city.”
The contention of the city that the injury to the building occurred by the fault of Studyvin and not through the negligence of the city is based upon the following statement in the petition, viz.: “That at the time of the damage herein the walls of said building were not well settled, that they were green and the mortar used in laying the brick had not become well seasoned.” This allegation was made in the petition in connection with a statement that the employees of the city had notice of the condition of the building and were therefore under obligation to exercise care commensurate with the evident danger. If the condition of the building was as alleged, and the employees had notice thereof, these facts were pertinent in determining the degree of care required to be observed in the 'blasting. It is certainly a novel proposition that the fact of owning a new building is per se contributory negligence.
The proposition that the work being done was of public necessity, and was being done in the usual, customary way of doing such work, and that the damages, other than the breaking of the window-panes, resulted from the jarring of the ground and the concussion of the air, and that the individual suffering damage thereby cannot recover from the government or municipality therefor, is not without the support of some authority. (See Benner v. A. D. Co., 134 N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701.) However, later New York cases, while perhaps attaching greater importance to the fact that work of this character is prosecuted by the public and is of public utility than we might be inclined to give it, lay down the rule that negligence will not be presumed from the jarring of the earth or the concussion of the air, but the burden is upon the claimant to make it appear “that the explosion was unnecessarily violent and carelessly prepared for, having regard to the place and the surroundings.” (Holland House Co. v. Baird, 169 N. Y. 136, 142, 62 N. E. 149. See, also, Boothe v. R., W. & O. T. R. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552.) This rule we accept as a correct statement of the law. It is, of course, a general proposition that wherever an individual, a corporation or a municipality has the right to do, and does, a work of this character, and injury results therefrom to the property of another, without trespass thereon, it is incumbent upon the party injured, before he can recover for the injury, to allege and prove that such injury resulted from negligence in the doing of the work; in other words, that, with proper care and with regard to the place and surroundings, the work could have been accomplished without injury, but that in fact the work was done without, such care and by reason thereof the injury resulted.
In this case the negligence of the city and its employees, after being warned of the greenness of the building and after being requested to put in lighter charges, was fully pleaded and was' sustained by competent evidence, although some of the evidence was conflicting. -The man in charge of the blasting testified, in part, that when blasting in the alley by the side of the building in question he generally exploded, at one time, what he called a round consisting of five holes, sixteen inches to two feet deep, in each of which was a stick and a quarter of dynamite, a stick being eight inches long. He also testified, in substance, that the rock at that place could have been blasted out by the use of one stick of dynamite at one blast — “for a little ways.” We understand his answer to indicate that by the use of one stick at a time the work would be slower. He also said that one stick would not cause as great concussion as two, and probably this is common knowledge, as well as that six sticks would cause a much greater concussion, which the jury had a right to take into consideration. In connection with the proved effects of the explosions on the building, this evidence was sufficient of itself to justify the jury in finding him guilty of negligence.
We have considered all the trial errors urged and-find nothing therein to justify a reversal. The verdict is sustained by the evidence, was approved by the court, and the judgment rendered thereon is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In 1903 Mrs. M. E. Dyer brought an action against school district No. 111 of Sedgwick county to recover possession of an acre of ground upon which the schoolhouse stood. The petition • merely alleged title and right of possession by the plaintiff and wrongful occupancy by the defendant. The answer was a general denial. The evidence developed a claim on the part of the district that in 1886 Mrs. Dyer had orally offered to give the ground in controversy as a schoolhouse site for so long as it should be used for that’ purpose; that the district had accepted the offer and •érected a permanent building at a cost of $500; that thereby, although no deed or other writing was ever executed, the district had acquired an equitable title and the right of possession. The trial court submitted to the jury the question whether this claim was well founded in fact, instructing them that if so it was sufficient in law. A verdict for the defendant' was returned, on which judgment was rendered, and the plaintiff prosecutes error.
When the case was called for trial the plaintiff moved that the attorney who appeared for the defendant be required to show his authority .for such appearance, and asked leave to present evidence in support of the motion. The court refused to hear evidence and denied the motion, and of this complaint is made. Section 394 of the General Statutes of 1901 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.”
The statute also provides that the director shall appear for the district in all suits brought by or against it, unless other directions shall be given by the voters at a district meeting. (Gen. Stat. 1901, § 6162.) The plaintiff’s husband was himself the director, and it may be assumed that he did not employ the opposing counsel. The plaintiff may have been prepared to prove that no formal action in the matter had been taken at a school meeting or at a meeting of the district' board. It is said in the defendant's brief that the school treasurer and clerk were present with the attorney who was acting for the district. Under such circumstances the court may well have concluded that no reasonable grounds could exist for requiring him to show his authority to represent the district. But even if the ruling were erroneous it could not have been prejudicial. It had no effect on the verdict. The district was entitled to the best defense that could be made in its behalf, and if it received the benefit of the services of a lawyer who was not regularly authorized to act for it this would not justify setting aside the judgment.
The plaintiff assigns error with respect to the instructions given, but the controversy in this regard really turns rather upon what the facts were than upon what legal rights resulted from them. We think the evidence warranted the jury in finding the facts to be as claimed by the defendant, and that the court correctly applied the law thereto. An accepted oral offer to give land, followed by the making of valuable per manent improvements by the donee with the acquiescence of the donor, certainly vests in the former an equitable title, whether or not it was intended that a deed should be made. (Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56; Schwindt v. Schwindt, 61 Kan. 377, 59 Pac. 647; McCullough v. Finley, 69 Kan. 705, 77 Pac. 696.)
The plaintiff further complains of the rejection of her offer to prove that after the action was begun the school district instituted proceedings to condemn the land in question. It was shown, however, that these proceedings were ended by virtue of an agreement which included this provision:. “The title to said property and all rights and benefits by reason of the same shall be and remain as if no condemnation proceedings had ever been instituted.” For this reason, if for no other, the evidence was properly rejected.
Other assignments of error have been examined but. found not to warrant a reversal. They relate to the admission of evidence and to 'the refusal to require the jury to answer several special questions submitted by the plaintiff. The testimony of witnesses as to what, took place at the meeting at which the site was offered was unobjectionable, for it was shown that no record of the proceedings had been preserved. The special questions rejected related either to the matter of dedication, which was not in issue, to the condemnation proceedings, evidence of which had been ruled out, or to negotiations had between the plaintiff and the district officers after the rights of the parties had become fixed, which had no important bearing upon the result..
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Harry T. Phillips claimed a mechanic’s lien on account of labor performed in drilling oil- and gas-wells under a subcontract, and brought his suit to foreclose the same upon the interest of the lessees in the lands under an oil-and-gas lease. The trial court found for defendants. Plaintiff prosecutes error. The owners of the lease, the contractor who drilled the wells and the owners of the land were all made defendants. The mechanic’s lien statute, upon which the claim is based, was strictly followed in the proceedings for obtaining a subcontractor’s lien.
The question whether a mechanic’s lien will attach to the interest acquired in lands by the lessee under an ordinary oil-and-gas lease has been determined adversely to the contention of plaintiff and is no longer an open question in this state. (Oil Co. v. McEvoy, 75 Kan. 515, 89 Pac. 1048.) An oil-and-gas lease conveys no present vested interest in the oil and gas in place. The interest conveyed is a mere license to explore — an incorporeal hereditament—a profit a prendre. (Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398; Rawlings v. Armel, 70 Kan. 778, 79 Pac. 683; Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750; McCullagh v. Rains, 75 Kan. 458, 89 Pac. 1041; Oil Co. v. McEvoy, 75 Kan. 515, 89 Pac. 1048. See, also, Funk v. Haldeman, 53 Pa. St. 229; Venture Oil Co., Appellant, v. Fretts, 152 Pa. St. 451, 25 Atl. 732; Wettengel v. Gormley, Appellant, 160 Pa. St. 559, 28 Atl. 934, 40 Am. St. Rep. 733; Kelly v. Keys, Appellant, 213 Pa. St. 295, 62 Atl. 911, 110 Am. St. Rep. 547; Steelsmith v. Gartlan et al., 45 W. Va. 27, 29 S. E. 978, 44 L. R. A. 107.)
It is sought, however, to distinguish the present case from Oil Co. v. McEvoy, supra. In that case no oil or gas had been discovered and the wells had been abandoned ; in the present case oil had beén discovered. The cases, however, in • our opinion, rest upon the same propositions of law. The discovery of oil or gas under the lease authorizes the lessee to sever the mineral from the soil, and after he has done this, and not before, he acquires the ownership of the thing severed. This may then become .subject to taxation and to the usual liabilities which ownership of personal property .carries with it; but his rights under the lease never ripen into an interest in the real estate sufficient to support a mechanic’s lien for labor or material furnished in the process of discovery or in severing the mineral from the land.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Frederick R. Hubbard, Leverett W. Hubbard and Belle Hubbard Ransom, cousins and only surviving heirs to Jennie E. Cheney, against Ernest and Maud Cheney to recover an eighty-acre tract of land in Shawnee county. Henry W. Cheney was the husband of Jennie E. Cheney. In 1879 Henry W. Cheney purchased the land in controversy for $1600, and $300 of the purchase-price was furnished by his wife, Jennie E. Cheney. Both husband and wife were named as grantees in the deed of conveyance.
In May, 1904, Henry W. Cheney executed a will, leaving all of his estate to Jennie E. Cheney, his wife, and in one of the clauses stated that it was his desire that his wife should remember his nephew, Ernest Cheney, when she had no further use for the property, and make such provision for him as she thought just and equitable. About a month later Jennie E. Cheney made a will, which contained a number of specific devises and bequests, and left the residue of the estate to her husband. In her will it was provided:
“It is also my desire that in case of the death of my husband, Henry Warren Cheney, while I am still living, that his estate shall go to Ernest and Maud Cheney. It is my express desire that my cousin Charles E. Hubbard, his wife and children, are not to receive anything from my estate. . . . All of the residue of my estate, real, personal and mixed property, I give, devise and bequeath to my husband, Henry Warren Cheney, with no conditions or restrictions, having full confidence that when he shall have no further use for the property he will remember my cousins named in paragraph two of my will [being the plaintiffs], and make such provision and distribution of whatever remains of my estate among said cousins as to him may seem just and equitable.”
On June 14, 1904, Henry W. Cheney died, and eighteen days later his wife passed away. The will of each was duly probated, and the validity of neither has never been questioned.
The plaintiffs insist that they have a perfect title to the land; that the deed of 1879 to Henry W. Cheney and Jennie E. Cheney created an estate by the entirety; that when Henry W. Cheney died his surviving wife became the absolute owner; and that at her death it necessarily went to the plaintiffs, as the residuary legatee under the will was dead, and, the land not having been disposed of by will, and Charles E. Hubbard, one of her four cousins, having been expressly excluded by the will, the three remaining cousins inherited the property.
On the, other side it is contended that the deed, although executed jointly to the husband and wife, was a mere security to the wife for the $300 which she had advanced toward the purchase-price, and that the wife merely held the property in trust until the repayment of the borrowed money; that when the money was repaid the husband became the sole owner of the property, and under the wills, of both husband and wife it passed to the defendants.
Whether the naming of Jennie E. Cheney in the deed was intended as a conveyance to her or only as a means of securing the payment of the money borrowed from her was the principal question in the trial of the cause. The following interrogatories were submitted and answered by the jury:
“ (1) Ques. Did Henry W. Cheney purchase the real estate in controversy about 1879? Ans. Yes.
“ (2) Q. If you answer question No. 1 in the affirmative, then you may state whether or not Jennie E. Cheney, his wife, loaned him $300 or any other amount with which to make the purchase. A. Yes.
“(3) Q. If you answer question No. 2 in the affirmative, then you may state whether or not there was an arrangement, agreement or understanding between Henry W. Cheney and Jennie E. Cheney, his wife, at the time of said purchase, that the title of the real estate should be taken in the name of Henry W. Cheney and Jennie E. Cheney jointly for the purpose of securing Jennie E. Cheney in the money she had loaned to Henry W. Cheney. A. Yes.”
In addition to the special findings the jury found generally in favor of the defendants, and upon these findings judgment against the plaintiffs was given. Plaintiffs contend here that the conveyance to the husband and wife jointly created an estate by the entirety, which could only be devested by a conveyance or by a written contract legally made. It is well settled that a deed to land absolute on its face and taken as a security is no more than a mortgage. If the land in question was purchased by Henry W. Cheney, and Jennie E. Cheney was only named as a grantee to secure the payment of the $300 loaned to her husband to make up the purchase-price, she would only hold in trust for her husband, and when her loan was paid her interest would cease and his title become clear and complete. It was competent, then, to show the resulting trust — that the deed was intended to operate as a mortgage — by parol evidence; and the rule applies where the instrument is in form a joint deed the same as if it had been made to Mrs. Cheney alone. Equity looking back of forms 'to the substance of things regards the transaction as the parties themselves regarded it, namely, the giving and taking of security for borrowed money. The purpose of the parties in having the deed made to her, and that it was intended as a mere security, which had been discharged, could be proved without writings or records. (Moore v. Wade, 8 Kan. 380; Glynn v. Building Association, 22 Kan. 746; Bennett v. Wolverton, 24 Kan. 284; McDonald & Co. v. Kellogg, Trustee, 30 Kan. 170, 2 Pac. 507; Marsh v. Davis, 33 Kan. 326, 6 Pac. 612; Hutchison v. Myers, 52 Kan. 290, 34 Pac. 742.)
It is claimed, however, that the evidence received was insufficient for that purpose, and further that the court admitted testimony that was incompetent. Objections were unsuccessfully made to the admission of letters written by Henry W. Cheney to his wife and sister about the time the land was purchased, and also to declarations by him and his wife respecting the purchase and ownership of the land, some of which were made long after the purchase but during their possession of the land. These rulings are not good grounds for a reversal of the judgment. The declarations of persons in possession of real property which illustrate the character of their possession and explain their claims of ownership are admissible to show the character and extent of their claims. (The State v. Gurnee, 14 Kan. 111.) The rule has been applied in cases where the possession and ownership of personal property was in controversy. (Stone v. Bird, 16 Kan. 488; Reiley v. Haynes, 38 Kan. 259, 16 Pac. 440, 5 Am. St. Rep. 737.)
In an action of ejectment by the grantee against the heirs of the grantor, where the question was whether a deed absolute on its face was intended as a mortgage, the supreme court of Indiana held that the declarations of the grantor while in possession of the land, explanatory of the possession and of the rights claimed in the land, might be received in evidence. It was also held that the declarations need not have been made while the claimant was actually on the land, but that it was sufficient to establish their competency to show that they were made in connection with some act relating to the character of the possession and evidencing ownership. To that end the declarations of the deceased grantor while negotiating for buildings arid insurance and while making improvements were held to be admissible. (Creighton v. Hoppis et al., 99 Ind. 369. See, also, Bennett v. Camp, 54 Vt. 36; Maus v. Bome, 123 Ind. 522, 24 N. E. 345; McDaneld v. McDaneld et al., 136 Ind. 603, 36 N. E. 286; Fyffe v. Fyffe, 106 Ill. 646; Duffey v. Presbyterian Congregation of Bellefonte, 48 Pa. St. 46; Stockton Sav. Bank v. Staples, 98 Cal. 189, 32 Pac. 936; Kingsford v. Hood, 105 Mass. 495; 3 Wig. Ev. § 1779; 24 A. & E. Encycl. of L. 690.)
The letters written by Henry W. Cheney to his wife and sister- about the time of the purchase of the land were competent evidence in the case, not to show that the statements contained in them were true, but to illustrate and explain the accompanying acts of purchase and possession. One of them, it is true, had very little in it that was material to the case, but its weight and force in showing that the title was' in the husband and that the wife only held a lien on the land was for the determination of the jury. There is no force in the objection that it was not shown that the letters were mailed by Henry W. Cheney or that his wife ever received or saw them. They were identified as the letters of Henry W. Cheney, were shown to be in his handwriting, and to have been in the possession of Mrs. Cheney. The fact that she received the letters or the time of their reception is not as important •as if the letters had been offered to show a contract or some like purpose. „ Since they were offered to illustrate and qualify the purchase and possession of the land, it is only important that they be shown to have accompanied the acts of purchase and possession, and hence it is immaterial whether they were received and acted upon by Mrs. Cheney.
The oral declarations of Henry W. Cheney while he was in possession, testified to by a number of witnesses, were admissible under the rule stated. The declarations made by Mrs. Cheney while living on the land, to the effect that she had no title in the land and that the only interest she ever had was a lien thereon for the $300 loan, were declarations against interest, and were therefore admissible under another rule. Some of the statements given in evidence were rather remote from the question in issue, and some of them were immaterial, but we do not regard their admission to have been prejudicial or to furnish cause for reversal.
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The opinion of the court was delivered by
Johnston, C. J.:
C. C. Walker brought an action against the Chicago, Rock Island & Pacific Railway Company, alleging that sparks were thrown from a locomotive of a passing freight-train, starting a fire on his farm which ran through his young orchard, destroying some of the trees and damaging others.
By the testimony it appears that the railroad of the defendant passes diagonally through plaintiff’s farm. On one side of the track plaintiff had planted several hundred young apple trees, in the spring of 1903, and in that year had raised a crop of corn in the same field. The corn had been cultivated in the growing season, but afterward crab-grass and some weeds had grown in the field. The corn was gathered, leaving the stalks where they had grown, and the crab-grass, which had dried up in the fall, was left upon the ground.
On March 9, 1904, the fire occurred which burned the trees, and the.testimony tends to show that the sparks and cinders from defendant’s engine started the fire in the dry grass in the plaintiff’s field and not on the right of way of the railway company. The verdict was in favor of the defendant, and the plaintiff complains of the following instruction given by the court on the subject of contributory negligence:
“The defendant in this case claims that if the fire did originate from the defendant’s train the plaintiff himself was guilty of contributory negligence, and that by reason of such contributory negligence he cannot recover in this cause. And the contributory negligence of which the defendant alleges and claims the plaintiff to be guilty is that he permitted combustible grass and stalks to grow and accumulate and become dry in very close proximity to the right of way of the* defendant company, and that he did not exercise, ordinary and reasonable care in protecting his own property from fires that are liable to originate from the ordinary operation of a railroad-train over the plaintiff’s farm. Upon that question you are instructed that persons who own property adjoining or near a railroad are bound to take notice of the increased danger to their property from fire, and to exercise a proportionate amount of care to protect it ; and if the plaintiff in this case allowed dry grass and weeds and dry corn-stalks to remain on his premises adjoining the defendant’s right of way, so that the fire could readily start therein, then I instruct you that this is a circumstance for you to consider as tending to prove contributory negligence on the part of the plaintiff. But the question of contributory negligence, of course, is entirely for the jury to determine, from all the evidence in the case. If you find that, the plaintiff was guilty of contributory negligence but- for which the fire would not have caught, then he cannot recover in any event.”
This instruction is drawn and was given upon the theory that it is the duty of the owner of land adjoining a railroad to keep it free from all combustible material, so that sparks and cinders thrown out by a locomotive will not readily start a fire on his land, and that the failure to do this is such contributory negligence as will bar a recovery for loss resulting from such a fire. The rule of responsibility is not correctly stated, and the instruction was not applicable to the facts of the case. The building of a railroad through the plaintiff’s land did not deprive him of any beneficial use to which it is adapted. He can still farm it in the usual and ordinary way, and is not required to abandon any proper use, nor to take special precautions against fire negligently set out by the railway company. Nothing in the testimony indicates that the plaintiff’s farming operations were unusual. He cultivated his corn and gathered it from the stalks, as is the custom of the country. After the cultivation of the corn the usual crop of wild grass sprung up, which in the course of time ripened and dried,' and this was left where it had grown. It was no more his duty to remove the stalks and dry grass from the field than it would have been to remove the dry grass from an adjacent pasture, meadow, or prairie land in its natural state. The stubble of harvested wheat is easily ignited by fire thrown from a locomotive, but it would hardly be contended that an owner of a wheat-field should abandon-wheat growing or be required to remove the stubble from the field because of the risk from fire negligently set out.
In Ft. S. W. & W. Rly. Co. v. Tubbs, 47 Kan. 630, 28 Pac. 612, a fire case, it was held that an adjacent owner was entitled to use his land in the ordinary way, and was not chargeable with contributory negligence for the mere failure to take precautions against the negligence of the railway company, and in deciding the case the rule of liability stated by Mr. Chief Justice Agnew, of Pennsylvania, was quoted:
“The conclusion from the case is very clear that a plaintiff is not responsible for the mere condition of his premises lying along a railroad, but in order to be held for contributory negligence must have done some act or omitted some duty, which is the proximate cause of his injury, concurring with the negligence of the company. Farmers may cultivate, use and possess their farms and improvements in the manner customary among farmers, and are not bound to use unusual means to guard against the negligence of the railroad company; indeed, are not bound to expect that the company will be guilty of negligence.” (Page 636. See, also, Phila. & Reading Railroad Co. v. Schultz, 93 Pa. St. 341; Patton v. The St. L. & S. F. Ry. Co., 87 Mo. 117, 56 Am. Rep. 446; Kendrick v. Towle, 60 Mich. 363, 27 N. W. 567, 1 Am. St. Rep. 526; Gulf, C. & S. F. Ry. Co. v. Johnson, 54 Fed. 474, 4 C. C. A. 447; New York, etc., Railroad Company v. Grossman, 17 Ind. App. 652, 46 N. E. 546; C., C., C. & St. L. Ry. Co. v. Stephens, 173 Ill. 430, 51 N. E. 69; The Chicago and, Erie Railroad Company v. Kern, 9 Ind. App. 505, 36 N. E. 381; The Pittsburgh, Cincinnati and St. Louis Railway Company v. Jones, 86 Ind. 496, 44 Am. Rep. 334; Strawboard Co. v. C. & A. R. R. Co., 177 Ill. 513, 53 N. E. 97; Kellogg v. The Chicago & Northwestern Railway Company, 26 Wis. 223, 7 Am. Rep. 69; 2 Thomp. Neg. §2314.)
If the plaintiff used his land for legitimate purposes, and in the manner usually followed by other farmers, he cannot be deprived of redress for injuries resulting from the negligence and wrong of another. Of course, this does not mean that a person can invite and increase peril or needlessly and recklessly put his property in a position of known danger and be free from fault. That is not the usual or reasonable method of farming, and therefore if it were shown that the owner needlessly stacked or stored combustible material unnecessarily close to a railroad, and perhaps if it appeared that he placed or permitted accumulations perilously close to the track, and contrary to the practical and customary method of farming in the country, it would be such evidence of contributory negligence as should be submitted to a jury. A landowner, of course, takes all the risks of losses resulting from fire where the railroad is operated with due care; but all know that even with the exercise of proper care fire sometimes does escape from locomotives, and hence it is not practical or sensible for any one needlessly to deposit combustible material unnecessarily close to a railroad track. For that reason, probably, it is not a common practice of farmers owning lands adjacent to a railroad to pile up or permit accumulations of material easily ignited unnecessarily close to a railroad and thus enhance the risk of bringing on the destruction of their own property. As has been seen, an owner cannot needlessly thrust his property in the way of danger, nor safely depart from the customary methods employed by others. This view has already been recognized, as well as the rule that after a fire has been started an owner should use reasonable diligence and effort to protect his property from destruction. (St. Jos. & D. C. Rld. Co. v. Chase, 11 Kan. 47; K. P. Rly. Co. v. Brady, 17 Kan. 380; C. B. U. P. Rld. Co. v. Hotham, 22 Kan. 41; K. C. Ft. S. & G. Rld. Co. v. Owen, 25 Kan. 419; Mo. Pac. Rly. Co. v. Kincaid, 29 Kan. 654; A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Railroad Co. v. League, 71 Kan. 79, 80 Pac. 46.)
Here, however, there was no piling up of dry grass, weeds, or corn-stalks — no accumulation of combustible rubbish unnecessarily close to the track, nor was there any attempt to show that the plaintiff’s methods of farming and caring for his fields were not in line with the common usage among the farmers of the country. In the absence of such testimony there was no occasion or excuse for submitting the question of plaintiff’s negligence to the jury.
It is equally clear that the instruction to the effect that the mere leaving of stalks and dry grass on the land where they grew should be treated as proof of ■contributory negligence was not a correct rule.
For the error in charging the jury the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
The Western Furniture & Manufacturing Company prosecutes error from a judgment against it obtained by Max Bloom on account of injuries received while in its employ by reason of its failure to comply with the statute requiring manufacturers safely to guard their machinery for the purpose of protecting their employees. (Laws 1903, ch. 356, § 4.)
Complaint is made that although the plaintiff during the examination of jurors as to their competency was permitted to ask certain questions regarding their relation to an insurance company, the defendant was denied the right to ask similar questions as to their connection with a law firm. The limitation of such inquiries is necessarily committed to the sound discretion of the trial court (Swift v. Platte, 68 Kan. 10, 72 Pac. 271, 74 Pac. 635), and there is nothing in the record that suggests an abuse of discretion in the present instance.
Complaint is also made of the refusal to give several special instructions asked relating to contributory negligence. While the charge as given was somewhat general, we think it sufficiently covered this subject and therefore that no error is shown in that connection.
The important question presented arises upon the refusal of the court to submit to the jury any issue with respect to the assumption by the plaintiff of the risk of injury arising from the defendant’s failure to observe the statute. Whether the defense of assumption of risk is ever open in an action founded upon statutes of the kind here relied upon, commonly known as “factory acts,” or upon any statute giving a right of action to an employee on account of injuries resulting from the negligence of his employer, is a question upon which there is great difference of judicial opinion. It has not heretofore been passed upon by this court. In Creamery Co. v. Daniels, 72 Kan. 418, 83 Pac. 986, the negligence for which a recovery was sought was within the terms of the statute, but the case was submitted to the jury .under an instruction embodying the ordinary rule as to assumed risk. The plaintiff, having recovered judgment, did not attack the instruction. As the defendant also accepted it, it became the law of the case. The effect of the statute on this defense was therefore not involved in the proceeding in this court, and was not argued or suggested. In Madison v. Clippinger, 74 Kan. 700, 88 Pac. 260, the question was argued, but as its decision could not affect the disposition of the case it was not passed upon. In sections 116 and 117 of Dresser’s Employers’ Liability, in the course of a full discussion, the opinion is expressed that the servant may under some circumstances be held to have assumed the risk occasioned by the breach of an obligation imposed upon the master by statute. This view is approve'd in sections 205 and 235 of White’s Personal Injuries in Mines, but upon somewhat different grounds. In section 229 of Reno’s Employers’ Liability Acts, section 650 of volume 2 of Labatt’s Master and Servant and sections 4702 and 4704 of volume 4 of Thompson’s Commentaries on the Law of Negligence the conflict is noted, and the authors, without avowing any strong convictions of their own, indicate that the rule generally adopted is that the statutes do not abolish the defense.
A collection of cases bearing upon the matter is to be found in volume 20 of the American and English Encyclopaedia of Law, at page 121, and volume 3 of the Supplement to the American and English Encyclopædia of Law, at pages 1304 and 1305, which can be made practically complete by the addition of Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68, the leading case in favor of the view that the defense is not available, and Birmingham Railway & Electric Co. v. Allen, 99 Ala. 359, 13 South. 8, 20 L. R. A. 457, and Denver & R. G. R. Co. v. Norgate, 141 Fed. 247, 72 C. C. A. 365, 6 L. R. A., n. s., 981, 5 A. & E. Ann. Cases, 448, holding the contrary. In a note to the last-named case in 6 L. R. A., n. s., 981, the authorities are classified and reviewed in detail, and the result is thus summarized:
“The jurisdictions are well-nigh equally divided on this question. Of the effect of the statute imposing duties on a master to abolish by implication the defense of assumption of risk, Alabama, Iowa, Massachusetts, Minnesota, New York, Ohio, Rhode Island, and Wisconsin 'hold that such statutes do not abolish that defense.
“On the other side, holding that the defense of assumption of risk is abolished in such cases by implication, are the courts of Illinois, Indiana, Louisiana, Michigan, Missouri, Vermont, and Washington. ’ ’ (Page 988.)
Where the defense is held to be unavailable it is usually upon the grounds stated with great force by Judge Taft in Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68: First, that assumption of risk is essentially a contract by the employee to waive the benefit of the statute; and, second, that considerations of public policy will not permit such a contract to be given effect. If both of these propositions are sound the conclusion reached obviously follows. Therefore, where the' defense is permitted, one or the other of them is denied — sometimes both, as in O’Maley v. South Boston Gas Light Co., 158 Mass. 135, 32 N. E. 1119, 47 L. R. A. 161, the leading American case upon that side of the controversy, where it is maintained that assumption of risk is not strictly speaking a contract, but that if it is so regarded it is one which the employee is competent to make. The essential character of assumption of risk, and its connection with considerations of public policy and with the maxim volenti non fit injuria, are discussed in a note to that case in 47 L. R. A. 161, and in sections 82, 88, 116 and 117 of Dresser’s Employers’ Liability, as well as in many of the cases cited in the notes referred to. It is unnecessary to enter upon a consideration of the matter at this time, for this court has already committed itself to the view, with which it is entirely satisfied, .that as applied to the relation of master and s'ervant the term is one of contract.
“The doctrine of ‘assumption of risk’ rests for its support upon an agreement of the employee with his employer, express, or implied from the circumstances of his employment, that his employer shall not be liable to him in damages for any injury incident to the service he is employed to perform,- resulting from a known or obvious danger arising in the performance of the service.” (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253, syllabus.)
“Reduced to its last analysis, the doctrine of assumed risk must rest for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for resulting injury.” (Id., p. 88, opinion.)
It is also unnecessary at this time to enter upon an independent examination of the second of the two subsidiary questions upon which the solution of the problem presented depends. Upon that, also, this court is definitely and finally committed. In K. P. Rly. Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630, where the statute making a railway company liable to its employees for injuries resulting from the negligence of any of its agents or servants (Gen. Stat. 1901, § 5858) was under consideration, it was said:
“If the statute was enacted for the better protection of the life and limb of railroad employees, it would be against public policy for the courts to sanction contracts made in advance for the release of this liability, especially when we consider the unequal situation of the laborer and his employer. Take this illustration: In some states — and in our own — the owners of coalmines which are worked by means of shafts are required to make and construct escapement-shafts in each mine, for distinct means of ingress and egress for all persons employed or permitted to work in the mines.. Such a statute is for the benefit of employees engáged in working in coal-mines; but the owner of such a mine would not be permitted to contract in advance with employees for operation of the mine in contravention of the provisions of the statute. The state has such an interest in the lives and limbs of its citizens that fit has the power to enact statutes for their protection, and the provisions of such statutes are not to be evaded or waived by contracts in contravention therewith. The general principle deduced from the authorities is, that an individual shall not be assisted by the law in enforcing a contract founded upon a breach or violation on his part of its principles or enactments; and this principle is applicable to legislative enactments, and is uniformly true in regard to all statutes made to carry out measures of general policy; and the rule holds equally good, if there be no express provision in the statute peremptorily declaring all contracts in violation of its provisions void, in regard to statutes intended generally to protect the public interests, or to vindicate public morals.” (Page 176.)
It is not important whether the result there reached might have been justified upon other grounds. The broad principle announced — that a workman employed in a dangerous occupation may not by agreement waive the provisions of an act intended for his protection or relieve his employer from a statutory liability in that connection — has become a settled tenet of this court. This fact was recognized in a subsequent hearing in the same case by the justice whose individual opinion led him to a contrary view (K. P. Rly. Co. v. Peavey, 34 Kan. 472, 479, 8 Pac. 780); and the doctrine was again declared and applied in the recent case of Railway Co. v. Fronk, 74 Kan. 519, 87 Pac. 698, which arose upon the same statute, in these words:
“The state has an interest in the lives, health and safety of its citizens, and whenever a business,' al though lawful in'itself, is ‘dangerous to the lives or injurious to the health of the employees engaged in conducting such business it becomes a question of public concern and the state may intervene in the interest of the public welfare. We have many such statutes enacted in the interest and for the protection of different classes of citizens. The owner or lessee of coal-mines worked by means of shafts is required to maintain escapement- and ventilating-shafts in accordance with certain prescribed rules, and no person is permitted to take more than five pounds of powder in any such mine at one time. The protection thus provided by the state for the safety of its citizens is a matter of public concern and cannot be contracted away by the individual. . . . For the reasons suggested, a contract by one-entering the service of a railroad company waiving his right of action for damages which he may receive in consequence of the negligence of its agents, servants or employees is void.” (Pages 526, 527.)
It is clear, therefore, that unless the court recedes from its position that assumption of risk is one of the terms of the contract of employment, or from its position that the protection vouchsafed to employees by statute against the negligence of their employers cannot be contracted away, it must hold that assumption of risk is not available-as a defense to an action founded upon the factory act. These positions are adhered to, and it results that the judgment must be affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action in mandamus to compel the defendant to pay over to A. C. Wheeler, who claims to be treasurer of Finney county, the money in the defendant’s hands or in his control, as former treasurer, and to deliver to Wheeler the books, records and papers belonging to the office of county treasurer of Finney county. An alternative writ has been issued and an answer filed. The case is submitted upon the pleadings and an agreed statement.
The material facts are as follow: At the general election held in Finney county in November, 1904, the defendant was duly elected treasurer of said county, and qualified and acted as such, for the official term beginning on the second Tuesday of October, 1905. At the general election held in November, 1906, the defendant and A. C. Wheeler were opposing candidates for election to that office. On the canvass of the votes it was determined that A. C. Wheeler had received the greatest number of votes and was duly elected county treasurer, and a certificate of election was issued to him on the 10th day of November, 1906, and he qualified as such county treasurer. The defendant contested the election in a trial before the county contest court, which resulted in a judgment that the contestee, A. C. Wheeler, was duly elected. This judgment was affirmed in the district court of Finney county. The case was then taken to this court upon proceedings in error, by the defendant, and is now pending here.
On the completion of the tax-roll for the present year the board of county commissioners of Finney county caused it to be placed in the hands of A. C. Wheeler, as county treasurer; all other records of the treasurer’s office are in possession of the defendant, in the room occupied by him' as treasurer during his term. Wheeler demanded of the defendant the money, books and papers in his hands as treasurer, which demand was refused. The county attorney then brought this action.
Upon these facts the defendant contends: First, that the action cannot be maintained by the county attorney —that it is really an action for the possession of the office, and that Wheeler is the real party in interest; second, that mandamus will not lie in any event, quo warranto being the only appropriate remedy; and, third, that even if properly brought the action ought not to be maintained because the title to the office will be soon determined in the case now pending in this court.
That the county attorney may maintain proceedings in quo warranto to determine the title to a public office was decided in Bartlett v. The State, 18 Kan. 99. The court there said:
“Whenever any person usurps an office, and attempts to hold it wrongfully and without any legal authority, as the county attorney alleges that the defendants have clone and are doing in this particular case, then we suppose that not only the state, but also any individual who may be entitled to hold the office, may maintain an action in the nature of quo warranto to oust such usurper from such office. . . . Hence, although the state is the only plaintiff in this case, and the persons entitled to hold the different offices are not made parties thereto, still there is no defect of parties plaintiff. . . . Now, as we have before stated, any individual in this state entitled to hold an office has such an interest therein that he may maintain ah action in the nature of quo warranto to oust any intruder therefrom, and he may maintain the action in his own name and not in the name of the state. (Laws 1871, p. 277, § 2.) But this right of action on the part of the individual does not oust the state from its right of action. Their separate rights of action are founded upon separate and distinct interests. The individual may prosecute the action because he is interested in the emoluments of the office, and entitled to receive the same. Thé state may prosecute the action because it is interested in the good government and general welfare of all its citizens. It is the duty of the state to see that no intruder shall usurp and hold an office that should be legally filled by some other person.” (Page 102.)
In Bobbett v. The State, ex rel. Dresher, 10 Kan. 9, which was an action of mandamus, this court said:
“So, where a public duty is neglected, the party wronged — the public — should be the complainant, and her officers should conduct the suit. The great business of the public is carried on by agents — officers whom the people select; and if the public suffers wrong' it is the duty of those agents to see that such wrong is righted. The county attorney and attorney-general are the officers specially charged with the duty of representing the public in all litigation.” (Page 15.)
The facts in this case show that two persons are-claiming to exercise the duties of the highly important office of county treasurer; one is in possession of the tax-roll and the other has the remaining records. It is inevitable that the public must suffer great inconvenience and the proper dispatch of public business: be obstructed and delayed if these conditions continue. In such a situation the county attorney may very properly maintain an appropriate action to restore the public service to harmony and efficiency. And this is true even if the individual holding the certificate of election might also have a standing in court to protect his individual rights.
It is further contended that quo warranto proceedings only can be maintained. If this is an action to try the title to an office the claim must be conceded. That quo warranto and not mandamus is the proper, remedy to try the title to an office has been so often. decided that citations are unnecessary. The title to the office, however, has been determined by a court of competent jurisdiction, whose judgment must have full force and effect. The contest court decided in favor of the contestee, and the district court, upon proceedings in error instituted by the defendant, affirmed the decision. True, the defendant is seeking a review of that judgment in this court, but its execution has not been stayed, and its legal consequences must not be obstructed. In Anthony, v. Halderman, 7 Kan. 50, Mr. Justice Brewer said:
“It is a general rule, which none will gainsay, that where any tribunal has jurisdiction of the subject-matter of and the parties to any controversy, and renders a judgment thereon, such judgment is conclusive between the parties. If the rulings of that tribunal are adverse to one party, and wrong, he should seek to correct that judgment by error or appeal.” (Page 63.)
This was said of the proceedings in a' contest over a city office. In a contest over the office of county treasurer the court said:
“When a tribunal having jurisdiction of the subject-matter and the parties has once decided a question, it is res judicata between those parties, and cannot be relitigated by them in an original proceeding before another tribunal.” (Norton v. Graham, 7 Kan. 166, syllabus.)
The district court having determined the rights of the parties to this office, its adjudication remains in .full force pending the proceedings here. (Willard v. Ostrander, 51 Kan. 481, 32 Pac. 1092, 37 Am. St. Rep. 294; Bank of Santa Fe v. Haskell County Bank, 51 Kan. 50, 32 Pac. 627; C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96.) Wheeler should not only have possession of the office, but also of the money, books and records pertaining thereto. That mandamus will lie in such a case was long since decided in this court. (Huffmam v. Mills, 39 Kan. 577, 18 Pac. 516.) True, in that case the suit was in the name of the individual, but, as we have seen, when the public interests are in jeopardy, as in thjs case, the county attorney may act.
We are asked in the exercise of judicial discretion to refuse the writ at this time and await the hearing and judgment in the pending proceedings in error. It seems to be our duty, however, to give effect to the judgment of the district court, and to relieve the embarrassment of the present situation, leaving the defendant to his legal rights as they may be determined hereafter in the proceedings referred to.
The peremptory writ is allowed as prayed for. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The appellant contends that the discharge of the jury in the manner and for the reasons stated and without his consent bars further prosecution. It is a well-settled principle of common and constitutional law that a person cannot be put in jeopardy a second time upon the same charge. It is a maxim of the common law that no one should be twice vexed for the same cause, and this rule has been incorporated in the federal and state constitutions. It finds expression in our own constitution in these words: “No person shall ... be twice put in jeopardy for the same offense.” (Bill of Rights, § 10; Gen. Stat. 1901, § 92.) Would a further trial of the appellant after the discharge of the jury constitute a double jeopardy? When an accused is placed upon trial, before a competent court and jury, upon a sufficient information or indictment, jeopardy is- said to attach, and he cannot be put in jeopardy a second time unless the jury be discharged from rendering a verdict by reason of some overruling necessity or the consent of the defendant. In this instance there was neither express nor implied consent, and the question remains, Did the interruption of the trial and the continuance of the prosecution at a later time subject the defendant to a second jeopardy, or was it any more than the continuance of the sainé jeopardy? He insists that there was no imperative necessity for discharging the jury from rendering a verdict, nor sufficient reasons to warrant the court in declaring a mistrial. The disclosure of the juror revealed the fact that he was disqualified to sit in the case and that the trial was proceeding with only eleven qualified and competent jurors.
It is conceded that the sickness or other- physical disqualification of a juror or a judge which would unfit him for the performance of his duties would constitute a manifest necessity for a discharge of the jury. He would be equally disqualified by insanity or other mental disability, and when it is satisfactorily shown to the court by proper evidence that a juror is not in a fit condition of mind and has not the qualifications which the law requires it is clearly within its power and discretion to discharge the jury and declare a mistrial. If the disqualification is such as would frustrate the ends of justice and prevent a lawful verdict the rights of the defendant, as well as the interests of the public, require -the court to arrest the progress of the trial and start afresh with a legal and impartial jury. If during the trial the court should learn of a corrupt interference with a juror or that through some outside sinister influence one of the jury had agreed to vote for conviction regardless of the testimony it would be conceded that a pressing-necessity for the discharge of the jury had occurred. When a juror, as in this case, confesses to an incurable prejudice which disqualifies him from exercising the functions of a juror or acting impartially as between the parties a continuance of the trial would be a farce, as the object of a trial— a fair and impartial verdict — becomes an impossibility. After learning of this situation by a judicial inquiry nothing was left for the court except to discharge that jury and impanel another.
In Simons v. United States, 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968, one of the jurors swore on his voir dire that he had no acquaintance with the defendant. During the trial it was brought to the attention of the court by an affidavit that there had not only been acquaintance but conversation between this juror and the defendant, and also it was undisputed that a letter since written and published in the newspapers commenting on that evidence had been read by that juror and other members of the jury. The trial court discharged the jury and held the defendant for further trial. The decision of the supreme court as to the right to discharge the jury was given in the syllabus of the case, as follows:
“When it is made to appear to the court during the trial of a criminal case that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused, the jury may be discharged, and the defendant put on trial by another jury; and the defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States.”
In Thompson v. United States, 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146, it appears that after the trial had begun it was disclosed that a member of the jury was disquálified by having been a member of the grand jury that found the indictment on which the prosecution was based. When that jury was discharged and another impaneled the defendant pleaded that he had been once in jeopardy upon the same charge, but this was overruled and the trial resulted in a verdict of guilty. It was held on appeal, following a number of earlier cases, that “courts of justice are invested with authority to discharge a jury from giving any verdict whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and a defendant is not thereby twice put' in jeopardy.” (Syllabus.)
The case of In re Ascher, 130 Mich. 540, 90 N. W. 418, 57 L. R. A. 806, was one where after the jury were sworn and some of the witnesses had testified information came to the trial judge of the prejudice and misconduct of jurors after they were impaneled. An investigation was made which disclosed that a juror on his voir dire examination had wilfully concealed a material fact, and further that he entertained strong bias and prejudice in the case. It also appeared that he had been guilty of misconduct which betrayed his prejudices. Another juror and the officer in charge of the jury were found to have been also guilty of misconduct. The court concluded that it was within its power and was its imperative duty to discharge the jury and declare a mistrial. A question of jeopardy arose upon the appeal, and it was held that “where, after the jury is sworn in a criminal case, the court finds that a juror is so biased that he is unfit to sit in the cause, the jury may be discharged, and the respondent will not be deemed to have been placed in jeopardy by the proceedings.” (Syllabus. See, also, United States v. Perez, 22 U. S. 579, 6 L. Ed. 165; Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Dilworth v. The Commonwealth, 12 Grat. [Va.] 689, 65 Am. Dec. 264; State v. Allen, 46 Conn. 531; Commonwealth v. McCormick, 130 Mass. 61, 39 Am. Rep. 423; United States v. Morris, 1 Curt. [U. S. C. C.] 23, 26 Fed. Cas. p. 1323; State v. Davis, 31 W. Va. 390, 7 S. E. 24; Roberts v. State, 72 Miss. 728, 18 South. 481; Ochs v. The People, 25 Ill. App. 379; State v. Diskin, 34 La. Ann. 919, 44 Am. Rep. 448; The People v. Reagle, 60 Barb. [N. Y.] 527; Cluverius v. The Commonwealth, 81 Va. 787; State v. Cason, 41 S. C. 531, 19 S. E. 918; State v. Bell, 81 N. C. 591; State v. Vaughan, 23 Nev. 103, 43 Pac. 193; 1 Bishop’s New Crim. Law, § 1039.)
There is a contention that the statute prescribes the only, grounds which justify the discharge of a jury from rendering a verdict, and that the ground upon which the discharge was based in the present instance is not one of those enumerated in the statute. In behalf of the state it is plausibly argued that the statute does not undertake to specify all of the instances which would justify the discharge of a jury; that under the constitutional provision as to jeopardy, and the common-law rules in vogue when it was adopted, a jury may be discharged not only for reasons named in the statute but whenever it appears to the court that there is a manifest necessity for the act or that the ends of justice would otherwise be defeated. However that may be, the grounds specified in the statute appear to be sufficient to include the one upon which the court based its ruling in this case. It provides:
“The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there .is no probability of their agreeing.” (Gen. Stat. 1901, § 4728.)
The word “accident,” as used in the section, fairly admits of an interpretation covering the occurrence in question. It is variously defined as an undesigned contingency; a happening without intentional causation; that which exists or occurs abnormally; something unusual or phenomenal; an uncommon occurrence. The discovery and disclosure by the juror of his unfitness to sit in the case was an unexpected and. unusual happening. It could not have been anticipated by the court or counsel. His answers on his voir dire exam ination did not develop the disqualification, and apparently the juror did not learn the nature of the case sufficiently to recall the prejudice which he had in cases of this character. It was a contingency which could not have been foreseen or well avoided by any one connected with the trial, unless it was the juror himself, and his examination does’ not betray any dishonesty of purpose. It therefore appears to have been an accidental occurrence — one which showed a manifest necessity for the discharge of that jury and the impaneling of one which could render a just and impartial verdict.
The sufficiency of the inquiry and of the finding of a necessity for the discharge is challenged. To warrant a discharge it has been decided that there must be, “first, an absolute necessity for such discharge; second, the court must make inquiry and find’ and determine that such necessity existed at the time of the discharge; and, third, the essential facts as to such necessity and the finding of the court thereon must be made a matter of record; or the defendant may successfully plead former jeopardy when placed on trial on the same charge.” (The State v. Allen, 59 Kan. 758, 761, 54 Pac. 1060.) The particular contention here is that the statement made by this juror was not upon oath, and that the question of the necessity for the discharge was therefore not heard and determined by judicial methods. There is little room for this contention. In the preliminary part of the trial this juror was sworn to make true answers in response to questions as tp his qualifications as a juror. It was not necessary that this juror should be resworn each time that he was called upon to answer questions as to his qualifications during the trial. The obligation and virtue of the oath remained with him, and the inquiry in question was made under it. Aside from that, he had taken an oath well and truly to try the case. The court made a finding of the necessity for a discharge of the jury. The facts brought out in the inquiry, as well as the findings of the court, were made a matter of record, thus complying with the rule stated in The State v. Allen, supra.
The court correctly sustained the demurrer to the plea of former jeopardy, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The Standard Stock Food Company brought an action in the district court of Coffey county against A. J. Jasper upon an account for merchandise, which it alleged it had sold and delivered upon á written order signed by him and addressed to it at Omaha, Neb., a copy of which order it attached to its petition. The defendant’s answer contained a general denial, and a plea that the plaintiff was a foreign corporation, as alleged in its petition; that it had never been authorized to do business in the state of Kansas, hfid had not filed any of the statements in the office of the secretary of state as required by law, and was therefore not entitled to maintain the action. No reply was filed.
On the trial evidence was introduced tending to show that the order had been received and accepted by the officers of the plaintiff at Omaha; that it had shipped the goods in accordance therewith; that the same had been received by the defendant in Kansas; and that the purchase-price was due and unpaid.
The fact that the plaintiff was a foreign corporation being admitted by the pleadings, the defendant introduced evidence tending to show that the plaintiff had not been authorized to do business in this state and had not obtained the certificate of the secretary of state that it had made the statements required by law.
Thereupon the court, at the request of the defendant, instructed the jury to return a verdict in favor of the defendant, which was done. The plaintiff duly filed its motion for a new trial, which was denied, and judgment for costs was entered against it. It brings the case here for review.
There is no evidence that the plaintiff kept any merchandise for sale in the state, or maintained any place of business therein, or ever had any business transaction therein, unless it be the one in question.
The authorities are too uniform and too numerous to require citation that in the sale of goods upon an order the contract is completed where the order is received and accepted, and the sale is completed and delivery made to the purchaser by delivery of the goods to a common carrier for conveyance to the purchaser, unless a contrary intention of the parties is shown.
To debar the plaintiff of the right to maintain the action it was requisite that three facts should have been pleaded and proved as existing at the time of the trial: (1) That plaintiff was a foreign corporation; (2) that it was doing business in this state; (3) that it had not complied with the laws of the state relating to such corporations and had not obtained the required certificate of the secretary of state. The first was admitted ; the third may be said to have been pleaded and proved; as to the second, there was a total failure of both pleading and proof.
The judgment is reversed, the verdict set aside, and the case is remanded for furthér proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The principal question involved in this litigation is the meaning and effect of an employer’s liability policy. It arises on a demurrer to the plaintiff’s petition, in which it is averred that the 1Etna Life Insurance Company issued a policy to the Wichita Bridge Company agreeing to indemnify the bridge company “against loss from common-law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any employee or employees of the assured.” The policy contained stipulations that in case- of accidents to employees the assured should notify the' insurance company, and if an action for damages was brought against the assured for injuries to employees the summons and other processes served upon it should be sent at once to the insurance company, that company to defend against the proceeding in the name of the assured. . It was also provided that “no action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judg ment within sixty days from the date of -such judgment, and after trial of the issue.”
While the policy was in force C. W: Carter, an employee of the bridge company, was injured, and within a few days he brought an action against that company to recover for the negligent injury. The insurance company was notified of the injury, and also of the commencement of the action, and it at once assumed control of the defense against the claim and its attorneys tried the case in behalf of the bridge company, the result being a judgment in favor of Carter against the-bridge company for $1000. While that action was pending, and before judgment was rendered, the bridge company was'adjudged a bankrupt and its assets were seized and administered in that proceeding, with the result that the bridge company is now insolvent and without assets of any kind. Carter did not participate in the bankruptcy proceedings, and he alleges that the answer and defense made by the insurance company prevented him from securing payment of his claim and sharing in the distribution of that estate. He therefore prays that the insurance company be adjudged to pay his judgment against the bridge company and the further sum of $350 as attorney’s fees expended in the prosecution of the fiction. The trial court rightly held that no cause of action is stated in his petition and gave judgment for the defendant.
The liability of the insurance company under the. policy must be measured by its terms. It will be observed that the contract of the insurance company was with the bridge company, and not with the employees. ■The contract was indemnity against loss from liability,'and not insurance against liability. In its general features it provided for’making good the loss suffered by the assured, or rather for reimbursing it to the extent of its loss. Until the assured had met with a loss there was no occasion to pay indemnity — no reason to reimburse until' something had been paid by the assured. Aside from the fact that in its general characteristics the contract was one of indemnity, it contained the specific provision that no recovery could be had against the insurance company under the policy unless the action was brought by the bridge company itself to reimburse it for the loss actually sustained and paid in satisfaction of a judgment. This provision leaves no doubt of the intention of the parties, which was that the insurance company was not required to pay anything because of the policy until losses had been paid by the assured in satisfaction of a judgment. It is a provision which the parties had a right to insert in their contract. The obligations of the policy did not extend beyond the two contracting parties. The bridge company, on the one hand, was procuring indemnity to protect itself from loss, and the insurance company, on the other, was undertaking to make good the losses which the bridge company should be compelled to pay; and as an assurance that these losses should not be excessive it reserved the right to go into court and resist the claims presented against the assured. A similar contract was involved in the case of Frye v. Gas & Electric Co., 97 Me. 241, and in the head-note to the case, as reported in 59 L. R. A. 444, it is stated that such a contract “does not inure to the benefit of an injured employee so that he can enforce payment of it in case the employer becomes insolvent and makes an assignment for creditors before he receives his judgment, so that the judgment cannot be enforced — especially where the contract provides that no action shall lie against the insurer, as respects any loss under the policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue.”
(See, also, Allen v. Gilman, M’Neil & Co., 137 Fed. 136; Cushman v. Fuel Co., 122 Iowa, 656, 98 N. W. 509; Connolly v. Bolster, 187 Mass. 266, 72 N. E. 981; Allen v. Ætna Life Ins. Co., 145 Fed. 881, 76 C. C. A. 265; Texas Short Line Railway Co. v. Waymire, [Tex.] 89 S. W. 452; Bain v. Atkins, 181 Mass. 240, 63 N. E. 414, 57 L. R. A. 791, 92 Am. St. Rep. 411; Finley v. Casualty Co., 113 Tenn. 592, 83 S. W. 2; Travellers Insurance Co. v. Moses, 63 N. J. Eq. 260, 49 Atl. 720, 92 Am. St. Rep. 663.)
This case is quite unlike those based on policies agreeing to pay damages for which the assured may become liable. The distinction is well stated in one of the cases cited by plaintiff, in these words:
“The difference between a contract of indemnity and one to pay legal liabilities is that upon the former an action cannot-be brought and a recovery had until the liability is discharged, whereas upon the latter the cause of action is complete when the liability attaches.” (American Employers’ &c. Ins. Co. v. Fordyce, 62 Ark. 562, 36 S. W. 1051, 54 Am. St. Rep. 305.)
Most of the cases cited by plaintiff rest on contracts insuring against liability, some are affected to some extent by statutory provisions, and one, Sanders v. Insurance Co., 72 N. H. 485, 57 Atl. 655, 101 Am. St. Rep. 688, appears to be out of line with the current of authority.
The fact that the insurance company made the defense for the bridge company against plaintiff’s claim for damages does not estop it from denying liability under its contract. The right to defend was specifically given by the contract, and this burden was assumed for the reason that the award to be made in the proceeding might ultimately be the measure of its own liability. To defend the action in behalf of the assured was in no sense an agreement to pay the plaintiff’s judgment, and could not have misled the plaintiff. (Connolly v. Bolster, 187 Mass. 266, 72 N. E. 981.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
W. P. Harris brought a suit to enjoin the Traders Live Stock Exchange from giving effect to an order expelling him from membership in that body. Having been denied relief, he prosecutes error. The case was heard before a referee, who made full findings of fact, which are accepted by the parties. The question presented is whether the facts so found show that Harris was lawfully expelled. The exchange is not incorporated, and is not an organization for profit, but it owns some personal property, and its members enjoy certain trading privileges at the Kansas City stock-yards, so that a membership has a value of about $750. The association is based upon a code of rules, or by-laws, vesting the general management of its affairs in an executive committee of nine members, which also constitutes a committee on arbitration, whose duties are thus defined:
“It shall be the duty of the committee of arbitration to investigate all grievances of the members of this exchange relative to business at the stock-yards, and adopt such measures as they deem best, to amend the same, and their decisions shall be final.”
Nowhere else in the by-laws is there any reference to the discipline of members, excepting for the following rule:
“All members convicted of any violation of any of these rules shall be'subject to h fine, suspension or expulsion, as recommended by the executive board.”
The proceedings against Harris originated in information which came to members of the executive board that a conspiracy had existed between several weighmasters employed by the Kansas City Stockyards Company and certain members of the exchange in pursuance of which false weights were registered in favor of the latter. Three members of the committee began an investigation, in the course of which a weighmaster, one Bruce Reichelderfer, made a statement to them that he had favored Harris by returning false weights in transactions to which the latter was a party, and exhibited memoranda purporting to show this; he did not, however, profess to have personal knowledge that Harris was cognizant of the fraud. The further proceedings are thus recited in the findings :
“At this point Messrs. Downs, Farrar and Orvis reported the above information to the full executive committee of nine members, and thereupon the plaintiff was notified verbally, by a messenger sent for that purpose, that the executive committee desired to see him. The plaintiff went before the full committee, at which time and place Mr. Farrar, who was presiding, stated in detail the charges made against the plaintiff in the statement of the weighmaster of scale No. 2, giving the plaintiff the date of each transaction, the number of cattle bought or sold on each date, the true weight, the false weight, and the amount of money paid to the weighmaster for his criminal services.
“The plaintiff promptly denied having either directly or. indirectly procured. any false weight to be made, and denied all knowledge of any such transaction.
“The chairman of the executive committee then and there, in the presence of the full committee, informed the plaintiff that the committee were endeavoring to ascertain the truth or falsity of the statement made by Bruce Reichelderfer, for the purpose of vindicating the innocent and punishing the guilty, and asked the plaintiff to produce his books of accounts, in order that the board might see whether his books threw any light upon the matter under investigation.
“The plaintiff at first refused to produce his books, then said he would consider the matter, and in the course of a few days produced the books of the firm of P. H. Harris & Co., of which the plaintiff was a member. These books recorded the purchases and sales set forth in Reichelderfer’s memoranda and corresponded in all particulars with the memoranda, except that there was nothing to indicate that false weights entered into any of the transactions.
“The books of P. H. Harris & Co. showed an item of expense of eighty-five dollars, paid during the first week of May, 1904, the period during which the false weighing was said to have been done. The committee insisted upon an itemized statement of this expense and an explanation of it, but the plaintiff was unable to itemize this charge and to explain it to the satisfaction of the committee. The plaintiff was asked by the committee if he had any further evidence which he desired to offer, to which inquiry he answered that he had not.
“One or more members of the éxchange implicated by the statement of Bruce Reichelderfer confessed the truth of the charge made against the confessing member, but none of these persons claimed to have any knowledge of W. P. Harris’s connection with any such transaction.”
Upon this evidence the executive board found Harris guilty of participating in a conspiracy to obtain false weights, ordered his expulsion, and notified him that he had been expelled. Afterward this action was reported to the exchange at a regular meeting, and a resolution was adopted approving and commending it.
We perceive no substantial grounds for questioning the regularity and sufficiency of the proceedings against Harris. The authorities recognize differences in the rules governing the expulsion by an association of one of its members, depending upon its character. In the case of a corporation organized for profit the offense upon which such action is based must be one prohibited by the written laws of the body, and perhaps a more rigid adherence to the prescribed method of procedure is required than’ is essential where the organization is of a mere social character. (See 3 A. & E. Encycl. of L. 1072, 1073.) This Traders Life Stock Exchange, however, in spite of the fact that a membership therein has a pecuniary value, falls into the latter class rather than into the former, for its purpose is stated as being “to' promote and protect all interests connected with the buying and selling of live stock at the Kansas City stock-yards, and to cultivate courteous and manly conduct [on the part of the members] toward each other and give dignity and responsibility to yard traders.”
Moreover, nothing really necessary to effect a valid expulsion in any case appears to have been wanting here. We do not understand that it is even claimed that the charge against Harris was not such as justified expelling him if it was properly substantiated. Although the language of the by-laws already quoted is very general, it seems to warrant all that was done and the manner of doing it. Notwithstanding property rights may be involved, an association may sever relations with an offending member upon these conditions: That he is charged with conduct for which expulsion is a proper penalty if he be guilty; that he has reasonable notice of the charge and opportunity to defend himself against it; that he is given a fair hearing; that a decision is rendered against him in good faith; and that he is not denied the benefit of any special rule that may exist relating to the matter. All these conditions seem to be met here.
The objections urged by the plaintiff are: That he was not given a written notice of the proceedings against him; that he was not furnished with a written copy of the charge; that the action of the committee which conducted the investigation was influenced by information obtained from persons who did not appear at the hearing and whom he had no opportunity to cross-examine; that three members of the committee were the persons who began the investigation and whose attitude was that of prosecutors rather than triers; that the order of expulsion was made by the committee and not by the exchange itself. Of these in order it may be said: Harris appeared before the committee and it was therefore immaterial what kind of a notice he had or whether he had any. (Moore v. National Council, 65 Kan. 452, 70 Pac. 352.) He was given explicit and full information as to the precise character of the wrong-doing alleged against him, and his complaint of the want of a written accusation is wholly without merit — in no possible way could his substantial rights have been affected by such omission. It was not at all necessary that the hearing before the-committee should have been conducted with the formalities attendant upon court proceedings or that the ordinary rules of evidence should have been enforced. (4 Cyc. 303.) Harris was sent for to give an account of himself in consequence of hearsay information— allegations made by persons who did not profess to have knowledge- at first hand of his complicity in the conspiracy, and whose testimony on that account would not have been competent in court, and the cross-examination of whom could consequently not have been of vital importance. He was not denied the right to present anything he desired in his own behalf. He was the only witness before the executive board, the members of which obviously found in his own bearing and statements convincing proof of his guilt. There is nothing in the record tending to impugn the good faith of any member of the board, and the fact that three of them in pursuance of their duties and acting in the interest of the exchange started the investigation which resulted in the hearing and condemnation of Harris did not incapacitate them from sitting in judgment upon him. It is held to be competent for a society to delegate to a committee the authority to expel a member, making such action final. (See cases cited in note to Ponte v. Marconi, 27 R. I. 1, 60 Atl. 237, in 114 Am. St. Rep. 17, 26.) The rule relating to the executive board while acting as a committee of arbitration seems to delegate the right of final action in such matters to that body; but however that may be, the subsequent approval of its course by the exchange amounted to a ratification of the order of expulsion.
It is unnecessary to review in detail the decisions bearing upon questions of the general character of those here involved. Cases have been cited which appear to tend to support some of the claims of the plaintiff. _ For the most part they are affected by peculiarities of statutes, charters or circumstances. But the present case does not approach near enough to the line ;of debatable ground to make it worth while to discuss nice distinctions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Felix Thompson appeals from a conviction upon a charge of maintaining a statutory nuisance by keeping a place where intoxicating liquors were unlawfully sold.
Complaint is made of the admission of the testimony of a witness whose name was, not indorsed on the information. The witness in question was the assistant attorney-general, who had verified the information by his positive aifidavit. He was the complainant, and it was not necessary that his name should be so indorsed in order to warn the defendant to be ready to meet such testimony as he might be able to give. The case is within the reason of the rule applied in The State v. Bundy, 71 Kan. 779, 81 Pac. 459, where in a prosecution under the prohibitory law based upon testimony taken before the county attorney it was held to be unnecessary to indorse upon the information the names of witnesses whose sworn statements so obtained were attached thereto.
The further contention is made that the evidence did not support the verdict. It was sufficiently shown that a nuisance had been maintáined for some time at the place described in the information. The only evidence, however, connecting the defendant with it was the testimony of one witness that “they say” it was his, and that he had seen him there “standing around,” “not doing anything in particular,” and of another that four days after the information was filed the defendant was found there acting as proprietor. The defendant, of course, could not be convicted upon rumor; the mere fact of his presence in a place where the law was being violated had no tendency to connect him with its management; and no presumption that he was its keeper before the prosecution was begun arose from a showing that such relation existed four days later. (Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843; The State v. Durein, 70 Kan. 1, 7, 78 Pac. 152.)
The judgment is therefore reversed. | [
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The opinion of the court was delivered by
Graves, J.:
On January 9, 1906, the attorney-general duly appointed an assistant attorney-general for Crawford county, under the provisions of the law relating to intoxicating liquors, being part of section 2476 of the General Statutes of 1901, which reads:
“And whenever the county attorney shall be unable or shall'neglect or refuse to enforce the provisions of this act in his county, or for any reason whatever the provisions of this act shall not be enforced in any county, it shall be the duty of the attorney-general to enforce the same in such county, and for that purpose he may appoint as many assistants as he shall see fit, and he and his assistants shall be" authorized to sign, verify and file all such complaints, informations, petitions and papers as the county attorney is authorized to sign, verify, or file, and to do and perform any act that the county attorney might lawfully do or perform.”
On November 28, 1906, the assistant attorney-general commenced this suit against the defendants in error, charging them with keeping and maintaining a public nuisance. At the time of the commencement of this suit application was made by the assistant attorney-general to the judge of the district court of Crawford county for a temporary injunction. The application was denied, for the reason that notice thereof had not been given to the defendants. It was ordered that the hearing be set for November 27, 1906, and notice thereof be served upon the defendants. Notices were duly served, and the application at the appointed time was presented to the court, it then being in regular session. Each party appeared by attorney at the hearing. The state made the same showing as at the former presentation of the application. The defendants made no showing, but rested upon the case made by the state. The application was again denied. To this action of the judge and court the state duly excepted, and brings the questions Jiere for review by petition in error. The case was orally argued, in this court by the state, but was presented for the defendants by brief only.
It is contended by the defendants that an assistant attorney-general has no authority to commence a suit for an injunction to suppress a public nuisance or to make application for a temporary order of injunction to prevent the continuance of such a nuisance. This condition of the law results, it is claimed, from the repeal of section 4 of chapter 165 of the Laws of 1887, being section 2463 of the General Statutes of 1901, by the passage of section 1 of chapter 232 of the Laws of 1901 (Gen. Stat. 1901, § 2493). (The State v. Estep, 66 Kan. 416, 71 Pac. 857.)
It is argued that the language used in the section providing for the appointment of an assistant attorney-general, hereinbefore copied, limits his duty to assisting the attorney-general in the enforcement of the provisions of that act. The words “this act,” it is urged, refer to the then existing provisions of the prohibitory law, and cannot be applied to subsequent enactments, and, therefore, when section 4 of chapter 165 of the Laws of 1887 was repealed such repeal, to that extent, reduced the duty and authority of the assistant attorney-general. This argument is not new in this court. It was summarily disposed of in the case of The State v. Storm, 74 Kan. 859, 86 Pac. 145, and no other authority need be referred to here. In that case it was said:
“The fact that section 2470 of the 1901 compilation refers to prosecutions ‘under this act,’ while the act of 1901 relates to nuisances maintained ‘in violation of law,’ does not affect the case. This phraseology was of slight importance in the case of The State v. Estep, 66 Kan. 416, 71 Pac. 857, as indicating the purpose of the legislature to substitute a new nuisance law for the old, but the act of 1901 was designed to take its place as a part of the entire scheme of liquor legislation of the state, and all laws upon the subject are to be construed together and harmonized as far as possible. When section 2470 of the 1901 compilation was adopted it was a part of the only liquor act on the statute-book. Now that there is another the general purpose of both controls the interpretation of special provisions of each.” (Page. 860.)
See, also, section 7342 of the General Statutes of 1901, a part of which reads: “The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
The prohibitory law as it now stands is the result of more than twenty-five years’ growth. Amendments and changes have been made in its provisions as seemed necessary to overcome the difficulties met with in its enforcement and to make it more efficient and effective. These various provisions, taken together, constitute the present prohibitory law of this state, and are to be considered and construed as if the entire enactment had occurred at the same time. It follows that the assistant attorney-general now has the same power and authority in the enforcement of any and all of these provisions that he possessed immediately after the office was created to enforce the provisions then existing.
It is also contended that an assistant .attorney-general, before he has the right to'present an application to the district court for a temporary injunction in behalf of the state, must affirmatively show that prior to his appointment the attorney-general, upon notice to the county attorney, made due inquiry and determined thereon that the conditions prescribed by the statute for the appointment of an assistant attorney-general existed, and as it does not appear from the record that such showing was made in .this case it must be assumed that the court refused to grant the writ for this reason. The appointment by the attorney-general of the person who appeared in this case for the state as assistant attorney-general is conceded, and no controversy on the part of the county attorney is claimed to exist. This question is one in which these defendants have no interest. If the appointment for any reason is contrary, to law the state or the county attorney might in a proper proceeding have the matter litigated, but it has no place here. The attorney-general had full authority to make the appointment, and, having done so, it will be presumed to have been made regularly and according to law. If the authority of an assistant attorney-general, so appointed, is chai lenged under section 394 of the General Statutes of 1901, the certificate of appointment will be sufficient to establish prima facie his right to represent the state.
The application for a temporary injunction was denied by the judge for the reason that no notice had been given thereof to the defendants. The state insists that the law does not contemplate the giving of any notice. We are inclined to this view. Delay has always been one of the formidable obstacles interposed against the effective enforcement of this law, and the provision requiring a temporary injunction to be issued at the commencement, of the action was enacted advisedly and with the intent that it should be promptly enforced. By this means a harmless but effective restraint is placed upon offenders at the earliest possible moment. The innocent are not affected by such a writ. If the order is violated, the delinquents will be dealt with by the court issuing the writ, which has full power to protect .them from undeserved consequences. We are unable to see how any right will be invaded, any wrong done or any principle of justice violated by allowing such a writ without notice. A more harmless proceeding could hardly be devised. Unless the party enjoined is engaged in crime as a business, he is not affected thereby. If he is so engaged there is no» occasion for the conscience of the chancellor to be aroused in his behalf. It is evident that the legislature regarded this writ as harmless, or a bond would not have been expressly dispensed with. We conclude that notice is unnecessary, and should not be required.
Why the district court, on November 27, after due notice had been given to the defendants, refused to allow the temporary injunction does not appear from the record. It merely shows that the state presented the same evidence as at the hearing before the judge, and the defendants offered nothing, but rested upon the case made by the state. We are compelled, there fore, to assume that the writ was denied for the reason that the showing made by the state was insufficient. The application was supported by four affidavits. Elmer E. Long stated in an affidavit that at the place in question, describing it, the defendants were keeping and maintaining “a place where intoxicating liquors as a beverage were and are sold, bartered and given away in violation of law, and where persons were and are permitted to resort for the purpose of drinking intoxicating liquors as a beverage; and where intoxicating liquors were and are kept for sale, barter and delivery in violation of law, and where intoxicating liquors, bottles, glasses, kegs and other property were and are kept and used in maintaining said place, which said place and said intoxicating liquors, bottles, glasses, kegs, bars and other property kept and used in maintaining said place were and are a common nuisance.” The affidavit of T. B. Stearns reads:
“T. B. Stearns, being first duly sworn, on oath deposes and says: That he lives at 903 East Washington street, in Pittsburg, Kan.; that on the 23d of November, 1906, about noon, he went into a saloon known as the ‘Monarch,’ and run by Lontkowsky and Rolóff, a one-story brick building on East Seventh street, in Pittsburg, Kan.; that this place has every appearance of being an ordinary saloon, and that affiant saw a bar, back-bar, mirror, bottles and glasses, an ice-chest,' pump or faúcet attached near the ice-chest, and numerous bottles containing liquor labeled ‘whisky’ sitting on the back-bar; that he seated himself at the stove for a few moments and engaged in conversation with a one-legged man, who told affiant that Louie Lontkowsky was the proprietor of the place, and that it was Louie and his son who were tending bar at the time; that affiant walked up to the bar and called for a ‘small glass of beer’ and a ‘small bottle of whisky’ and that the boy bartender drew a glass of beer at the pump and delivered it to affiant, and that affiant drank it; affiant says that he has drunk beer before and knows beer when he tastes it; that it was ‘beer’ which he called for, and he is positive that this was beer; that the older Lontkowsky showed affiant three bottles of whisky, which he got from the back-bar, of various sizes and prices, and affiant said he would take the half-pint bottle, which the. bartender priced to him at 40 cents and delivered it to affiant; that affiant paid said bartender 45 cents in payment for the said whisky and beer; that there was a drunken man also sitting at the fire.
“And affiant further says that there was a man, employed [by] the Collum Commerce Company, standing at the bar drinking beer and talking to two or three other men drinking beer, and that affiant believes this person’s name to be John Tolliver; that he saw the bartender deliver a glass of beer to one of these men, and that affiant is positive that Tolliver and these men were all drinking beer and that it was purchased or bartered in said saloon.
“And affiant says that two other men, unknown to affiant, came in, who looked like working men, and stepped to the bar and called for ‘beer’; that one of the bartenders drew and delivered two glasses of beer ’to these men and that affiant saw them place some money on the counter in payment therefor. And affiant says that he is positive this was beer, as it looked and foamed like beer, and that it was ‘beer’ which was called for.
“And affiant further says that before leaving said saloon he called for a ‘half-pint of gin’; that the boy bartender took a large bottle of gin from back of the bar, filled a half-pint bottle therefrom and delivered this half-pint bottle of gin to affiant, who paid said bartender 25 cents for the same; that affiant carried this gin away with him, and has tasted it, and he positive that it is gin and that it is intoxicating.
“And affiant further says that this place is a place where beer, whisky and other intoxicating liquors are being sold, bartered and given away in violation of law, and where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage; and that said place is a nuisance to the people of the state of Kansas, and more, particularly to the people of the vicinity where said place is located.”
The affidavit of C. W. Jackson reads:
“On January 20, 1906, I called at a place known as the ‘Monarch,’ on East Seventh street, in Pittsbfirg, Kan. It was at night. This, is a one-story brick build ing, just east across the alley from the other saloon. There was a bar, ice-chest, mirror, bottles and glasses and pump. Men were standing about bar drinking, but I knew only one of them. This was Jim Wadkins. Some of the strangers called for beer, and Ben Roloff, the bartender, drew it at pump. Jim Wadkins also called for beer, and Roloff drew it at pump and brought it to him. I saw him pay 5 cents for this. I also called for beer for two, as I had to treat Jim Wad-kins. The bartender drew it at pump, brought it to us, and I paid 10 cents for the two glasses. I have drunk beer before, and know this -was beer I drank at this place. I also called for a bottle of whisky, and bartender got it off the back-bar and delivered it to me. It was a half-pint bottle and I paid 25 cents for it, labeled it after taking it away from there. This place was on the ground floor.”
The last-named affidavit was taken before the assistant attorney-general, upon an examination held under section 2472 of the General Statutes of 1901, and, while not an affidavit in a strict sense, should be regarded at least as a statement under oath equally trustworthy with an ordinary affidavit. It is argued that in determining the sufficiency of an application of this nature the court sits as a chancellor and exercises that judicial discretion which under ancient usage is applicable to courts of equity, and that the allowance or denial of this extraordinary writ will not ordinarily be disturbed by a reviewing court. The proposition as stated in the brief of counsel reads:
“We learn from the books that these extraordinary remedies of a court of equity were invoked when a case was presented which appealed to the conscience of the chancellor. They had their origin not in statutory law but in the creation of a system which was to correct evils which could not be corrected at law by reason of its universality. When the legislature commands a court to issue an order of injunction, and by this act removes this particular cause of injunction, and by this act removes this particular cause from whence it should never be removed, and places it in the catalogue of statutory remedies, the language by which it is commanded must be clear and concise and capable of no other meaning. In short, the legislature stands over the judge with a club and says, ‘No matter what your conscience may dictate in the premises, you must issue this order.’ Now while the legislature may do this, yet it is difficult to believe that they would do it, and in the case at bar, and in the construction of this statute, there is no doubt in my mind that they never intended any such thing.”
The statute upon this subject reads:
“The attorney-general, county attorney, or any citizen of the county where such a nuisance as is defined in section 1, chapter 232, Session Laws of 1901, exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required.” (Laws 1903, ch. 338, § 1.)
But. this is not an ancient suit in equity. It is a proceeding created by statute for the purpose of obtaining prompt and effective results, and must be construed and administered in furtherance of this purpose. The discretion which a court has under this law is the same that it possesses in other cases where questions of fact are determined. Whenever a fairly reasonable showing is made for a temporary injunction at the commencement of the suit it is the imperative duty of the court or judge promptly to allow the writ. And it is supposed that in the consideration of this question the language of the law will be liberally construed, with the view of upholding and promoting its objects, and that all strained and technical interpretations which tend to subvert its purpose and defeat its effective enforcement will be avoided.
The showing made by the state in this case, both before the judge and the court, was ample. If the petition, which is verified upon information and belief, be disregarded as hearsay, and the affidavit of Long be passed because consisting of conclusions, neither of which can be insisted upon by the defendants because no objections were made to them, the other affidavits, by facts given in detail, show clearly that the defendants Lontkowsky and Roloff were, and had been for months, running an open saloon. These facts were undisputed — practically confessed by the silence of the accused parties, who were present at the hearing. To disregard the facts here shown amounts to an abuse of discretion, which makes the ruling erroneous.
The judgment of the district court is reversed, with direction to grant a temporary injunction and proceed with the case in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Porter, J.:
It is claimed that the court erred in refusing to strike from the files the affidavits and in admitting oral evidence in support of the motion. This claim of error is based upon the contention that the “misconduct of the prevailing party,” which is one of the statutory grounds for a new trial, has no application to any acts of a party except such as occur at the trial, and especially that it has no reference to something that may have occurred long prior to the trial. To this we cannot agree. The language of the statute contains no such restrictions. Nor is there any substantial reason why the acts of a party which were designed to and did operate at the trial to secure to him an undue advantage, by means which the law regards as reprehensible, should not furnish grounds for setting aside the verdict merely because they were set in motion before the trial. In May, Weil & Co. v. Ham, 10 Kan. 598, the syllabus reads:
“Where it is shown, on a motion for a new trial, that the prevailing party in the cause prior to the commencement of the trial attempted to pack the'jury, the verdict should be set aside for such misconduct, unless it should also appear, clearly and beyond all reasonable doubt, that the other party was not prejudiced by such conduct.
“And where such misconduct was discovered by the other party during the trial it is sufficient for such party to raise any question connected therewith, after verdict, on a motion for a new trial.”
The statute makes misconduct of the prevailing party a ground for a new trial,. provided the substantial rights of the complaining party have been materially affected. This does not require an affirmative showing that but for the misconduct the verdict would have been different, for it is obvious that such a showing would be ordinarily impossible.
Both parties have equally the right to a fair and impartial trial, which includes the right to have the jury drawn without one party having exercised a choice or selection of the men who shall serve thereon, except as provided by law, when the jurors are examined upon their voir dire. Where one of the parties unlawfully secures the selection of certain men for the regular panel, and prevents certain others from being drawn who were regularly chosen for jury service, it can hardly be seriously contended that the rights of the other party have not been materially affected thereby. In May, Weil & Co. v. Ham, supra, it was said, in the opinion:
“It may also be that the seeming misconduct of the plaintiffs did not affect the verdict of the jury; but it may be that it did,' and we cannot say that we feel clear that it did not, and this is all that is necessary to require a reversal of the judgment. When a party has committed a flagitious act in order to obtain some undue advantage over his adversary, as it would seem one of the plaintiffs in this .case did, such party should not ask that the other parties should show that they were in fact prejudiced by his-acts. On the contrary, he should be compelled to show clearly and beyond all reasonable doubt, if not beyond all doubt, that such parties were not prejudiced by his unwarranted and reprehensible misconduct.” (Page 601.)
It is seriously urged that the objections to the manner in which the jury were drawn amounts to a challenge to the array and comes too late. It is doubtless true that the irregularities could have been shown in support of such a challenge, and the proof would have warranted the court in quashing the panel, but that fact does not in any sense give character to a showing made, not for the purpose of quashing the panel, but for the purpose of setting aside a verdict and obtaining a new trial. If the charges set forth ip the motion were true, plaintiff in error might have been prose cuted criminally, but it would hardly be said that for that reason the truth of the charges could not be shown for any other purpose, or could not be used to support a motion for a new trial.
Another contention is that what plaintiff in error chooses to call “irregularities” and “informalities” were waived because the objections were not taken sooner; that by ordinary diligence the objections to the manner in which the jury were drawn could have been made before the trial. It is a sufficient answer that defendants in error, according to the evidence, had no notice or knowledge of the facts relied upon until after the trial. Besides, they were certainly not bound to assume that a county officer who happened to be a party to the action might falsify the records and tamper with the jury-box. And it is a misuse of the English language to characterize the acts charged against plaintiff in error as mere “irregularities” and “informalities.” .
It is true, as contended, that there was no direct evidence that plaintiff in error was responsible for the alterations in the lists of jurors or had tampered with the jury-box. But we do not agree with the claim that there was no evidence which tended to show a motive on his part to secure an unfair and unlawful advantage. On the contrary, there was direct evidence showing a disposition to obtain an unfair advantage with the jury and showing an attempt to influence some who might be called to serve on the case, and direct evidence of an attempt to conceal and distort the facts with respect to the jury-lists after an investigation had begun. The jury-box and the jury-lists were in his official custody, and were undoubtedly altered and tampered with; and, while no witness testified to seeing him in the act of making the alterations or changes, the circumstances in evidence were very suspicious, and beyond any question, in our opinion, were sufficient to require the court to set aside the verdict and order a new trial. This is especially true in view of the failure of plaintiff in error to contradict the direct testimony of the four trustees, the justices or the sheriff as to what transpired at the time the returns were made and the drawings took place, or to contradict the testimony of the trustees that he attempted to induce them to suppress the facts; and in view also of his willingness to rely upon technical objections to the consideration of the evidence rather than to attempt to explain the suspicious circumstances.
It is finally insisted that the reason assigned by the trial court for allowing the motion amounts to a finding that the charges of misconduct were not established by the evidence, and that a new trial was in fact granted upon grounds not included either in the motion or provided for in the statute. The remarks of the court were as follow:
“I have no criticism to make upon any one connected with this case, nor am I going into the question of the manner in which certain names got into that jury-box, but I want to say this: that there is a suspicion caused by the manner of drawing that jury which should not exist in any court on earth.
“It is possible that the instructions of the court were not clear enough. It is barely possible that the jury did not weigh and consider the evidence as they should have done; but I have no criticism to make upon the jury. They did as they thought was right; but, on account of the suspicion that is raised that the plaintiffs did not have a fair and impartial trial, and the jury were not fairly drawn, I am of the opinion that a new trial should be had, and that the judgment should be set aside and a new trial ordered.”
In the light of the uncontradicted evidence we cannot regard the language of the court as a finding that the charges were not established, but are rather inclined to view the language used as showing a disposition on the part of the trial judge to avoid unnecessary harshness in characterizing what appeared to be reprehensible conduct by one of the parties. .
Courts are created to secure , the administration of justice between contending parties; and where, after a trial, evidence is produced which arouses well-grounded suspicion that the prevailing party may have exercised an unlawful and corrupt interference with the selection and drawing of the jury, it is the duty of the court promptly to set aside the verdict and order a new trial, without proof that the rights of the other party have been materially affected by such misconduct. Upon the showing made on the motion in this case we think it would have been error not to have ordered another trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This case turns upon the question whether the trial court erred in .holding a tax deed which had been of record more than five years to be good upon its face. Two deeds were in fact involved, ■covering different tracts, but as they were substantially similar in form the discussion may be confined to one of them. The deed covered several separate tracts and contained these recitals:.
“And whereas, at the said sale, no person bid the .said amount of taxes and charges on said tracts, . . . and whereas, said lands have remained unredeemed for three years and no person has offered to purchase the same for the taxes, charges and interest thereon.”
It is argued that this language implies merely that all of the tracts together could not be sold for the total amount against them, and falls short of showing that as to each description there was a failure to sell because no one would bid the amount charged against that particular tract. It is true that inasmuch as the ¿statutory form of tax deed relates only to a single tract it ought to be changed where several parcels are conveyed together, by inserting words showing that they .are referred to distributively rather than collectively, in order to avoid all ambiguity. But, in view of the liberality of interpretation to which a five-year-old deed is entitled, there is no difficulty in the present •case in reaching the same result by adopting a construction which upholds the acts of the public officers and sustains the deed upon the theory that by fair intendment it shows the proper proceedings to have been taken in respect to each tract referred to.
The deed was made under the “compromise act” (Gen. Stat. 1901, §§ 7672, 7673) to an assignee of the person to whom the certificate was issued. It is ■claimed that inasmuch as the general statute relating to tax-sale certificates (Gen. Stat. 1901, § 7648) in express terms declares that they shall be assignable, and these words are omitted in the compromise act, the certificates there provided for are not assignable. This act, however, provides for the payment of the .redemption money to the purchaser or holder of the certificate, his heirs or assigns (§7673), thereby recognizing the assignability of the instrument. Moreover, certificates issued upon a compromise, although possessing some peculiar features, are still of the same general character as ordinary certificates, and recourse must be had to the general law (§ 7648) to determine their contents and effect.
The deed did not mention the residence of the grantee. The plaintiff in error urges this as a fatal defect notwithstanding this court has decided in Havel v. Abstract Co., ante, p. 336, that although in the statutory form blanks are left after the names of the purchaser and his assignee in which to insert the counties of their residence this does not amount to a requirement that such blanks must be filled or that such residence must be stated. It is contended that the rule there laid down should not apply to a deed made in pursuance of a compromise, because in such case the owner of the land is interested in knowing the residence of the purchaser, inasmuch as if he desires to redeem after the compromise is effected and before the deed is issued he must pay the redemption money to the holder of the certificate — not to the county treasurer. This reasoning might have force if the statute provided for a public record being made before the issuance of the deed of the residence of the holder of the certificate. The fact that no such record is required is one of the reasons for believing that the legislature did not intend to insist that such residence should be stated in the deed. The deed does not issue until the time for redemption has expired, and stating the residence of the grantee therein could be of no advantage to the owner so far as relates to the exercise of his statutory right to. redeem. In this respect there is no difference between a tax deed based on the compromise act and one issued under the general law.
The only remaining questions relate to the validity of the compromise act, its- constitutionality being as sailed upon three several grounds. The first of these is that it violates the requirement of section 1 of article 2 of the state constitution (Gen. Stat. 1901, § 202) that the rate of assessment and taxation shall be uniform and equal. In Ide, Receiver, v. Finneran, 29 Kan. 569, it was held that the act was not open to this ob-' jection so far as related to taxes which accrued before the law was enacted, but two members of the court expressed the opinion that it could not be sustained as to< taxes levied thereafter. That question was not there involved, but must now be decided, for the deed under consideration was based upon taxes of 1894 and subsequent years, while the statute in its present form was passed in 1893.
It is too clear for controversy that where real property offered for sale for delinquent taxes has remained unsold for three years for want of a buyer at the amount charged against it, the ordinary method having failed to enforce from it any contribution to the expenses of government, some other way must be found to accomplish that end. Probably the better and more logical plan in such case is that embodied in the act permitting the foreclosure of the tax lien and sale of the property outright for whatever it will bring. (Gen. Stat. 1901, §§ 7718-7724.) To allow the commissioners to order the issuance of a tax certificate at a reduced price is not objectionable so far as the amount received is concerned, since the officers may be presumed to protect the interest of the public and drive as good a bargain as circumstances will admit. But there is just ground for criticising the feature of the compromise act that offers to the owner the advantage of the reduction, thereby enabling him to reap a benefit from his own delinquency. To permit the owner to challenge the validity of the act on this ground by attacking the sufficiency of a tax deed based upon it seems to violate the rule that the constitutionality of a law may not be questioned excepting by one who is injured by it. Waiving this consideration, how ever, we find no difficulty in upholding the statute upon the authority of the Ide case. That decided in effect that the legislature may, without violating the principle that the rate of assessment and taxation must be uniform and equal, allow a remittance of a part of the tax against delinquent lands which have already remained unsold for three years. That being so, we discover no reason why, equally without violating that principle, the legislature may not vest in the board of commissioners the power to take similar action whenever a like situation may arise in the future. Whether to provide in advance for such a contingency may tend to encourage landowners to suffer their taxes to become delinquent in the hope of later obtaining a favorable settlement is a question which, as suggested in Baker v. Atchison County, 67 Kan. 527, 73 Pac 70, seems addressed to the expediency, rather than the validity, of such provision. It is to be remembered, however, that delinquent property is exposed to sale for the full amount charged against it, and its owner who delays payment long enough, to give opportunity to procure a discount does so at the risk of losing it altogether, for the compromise can only be effected after the time has arrived when any one willing to pay the tax in full can by doing so obtain a deed at once which, if the proceedings have been regular, conveys a perfect title, cutting off all right of redemption. Whether a statute authorizing the acceptance of a part of the tax for the whole is passed before or after the levy, it is obnoxious to the constitution if regarded as a favoritism extended to the property owner, but not if regarded as a permission granted to the local officers to accept less than the full amount due only because experiment has demonstrated that no more can be obtained. It has been treated in the latter aspect in the one case, and consistency requires that the same view shall be taken in the other.
It is claimed that the act of 1893 contains more than one subject and that the title does not sufficiently ex press its purpose. The title includes' the words “relating to taxation and redemption,” and everything in the act, including the provisions regarding compromise tax deeds, has some relation to taxation. The objection, therefore, is not well taken.
Finally, it is insisted that the act is void as an attempt to devolve judicial power upon the board of commissioners, the argument being that the board must act judicially in determining whether a compromise should be effected in a given case. Their action in such matter is judicial only in the sense that any act may be considered judicial or qwctsi-judicial which involves an inquiry into facts and the exercise of judgment based thereon. These qualities are characteristic of practically all actions of administrative officers calling for the exercise of discretion, and this objection is likewise unfounded.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This proceeding in error raises the sufficiency of a petition and answer and various rulings of the' court thereon. Plaintiffs in error were plaintiffs below. Their petition was filed January 31, 1905, by which it was sought to enjoin a sheriff’s sale. It was supported by affidavits, and the temporary injunction was allowed by the court on the same day.
Subsequently, upon motion, the court required plaintiffs separately to state and number their causes of action, and an amended petition was filed. This petition alleged that plaintiffs owned certain real estate in the city of Topeka; that they were defendants in a suit to foreclose a mortgage in the district court of Shawnee county, in which Maria H. Hotchkiss was plaintiff, and in which, on January 26, 1900, she recovered judgment against them; that the real estate covered by the mortgage had been sold under the foreclosure, leaving a balance due thereon of $220, which had not been paid; that Maria H. Hotchkiss, plaintiff in the foreclosure proceedings, died in the city of New York on the 10th day of November, 1901, without .leaving any last will and testament; that an administrator of her estate was duly appointed in December, 1901; that the judgment rendered in the foreclosure suit was never revived nor made a lien upon plaintiffs’ real estate, and thereby became and was dormant; that, notwithstanding the dormancy of the judgment, defendants, in violation of the rights of plaintiffs, and in order to subject them to the annoyance of an action at law for the protection of their property, had sued out an execution on the judgment in December, 1904, directed to the sheriff of Shawnee county, and that the sheriff in obedience thereto levied upon the real estate belonging to plaintiffs and advertised the same for sale, and that unless restrained by the court would on a certain day sell the same at sheriff’s sale to satisfy the execution. It was also alleged that the judgment constituted a cloud on plaintiff’s real estate.
In the prayer for relief plaintiffs asked that their title to the real estate be established against the adverse claims of defendants and that the latter be barred and forever estopped from claiming any right or title adverse to plaintiffs in the real estate, and that defendants be enjoined by the order of the court from, proceeding ■any further in the action, and. for costs.
To this an answer .was filed which admitted the death ■of Maria. H. Hotchkiss but alleged that she only appeared to be plaintiff in the foreclosure proceeding?, ■and that the real parties in interest were Charles H. Bissell and William L. Bissell;. that long before the foreclosure proceedings were commenced Maria H. Hotchkiss, by a deed of trust, a copy of which was attached to the answer, had conveyed all her interest in the note and mortgage to them as trustees, and had authorized them by the deed of trust to maintain an action in her name thereon, and that the cause of action, although prosecuted in the name of Maria H. Hotchkiss, was, in fact, the cause of action , of Charles H. Bissell and William L. Bissell, who were then and ■ever since haye been and are now the owners of the estate and property rights, real and personal, of Maria H. Hotchkiss, and of the judgment rendered in her name; that the foreclosure.had been commenced long ■ after the acceptance by them .of the trust created by the ■deed of trust.
Plaintiffs.demurred.to the answer. The court over- . ruled the demurrer as to . the answer, and carried the ■demurrer back to the petition and.sustained it.
Afterward, another petition, was filed, setting up the same facts, except that it omitted certain allegations in the former with reference to damages sustained, and asked that the injunction be made perpetual. This the court ordered stricken from the files, oh the,ground that it -was inconsistent with the former petitions and ■constituted a departure. The court made an order dissolving the temporary injunction, and rendered judgment against plaintiffs for costs.
The merits of the controversy can best be determined by considering the, sufficiency of. the petition and the answer. It is. the contention of defendants that the petition is demurrable because it sets up an affirmative cause of action based upon the statute of limitations, and such appears to be the conclusion reached by the ■court.
There are cases-holding that equity will, not enjoin an execution upon a dormant judgment, (See 16 A. & E. Encycl. of L. 404.) We fail to find in any of them, however, a suggestion that the suit-, cannot be maintained because plaintiff thereby seeks to use the statute ■of limitations as a sword instead .of a shield, or seeks affirmative relief based upon the statute. They proveed upon the theory, that plaintiff has ap- adequate remedy at law by motion in the- original action to recall the execution, or, as, in Hanson v. Johnson, 20 Minn. 194, that a sale under such an execution, would not cast any cloud on plaintiff’s land. The weight of authority, however, is that a suit will lie to enjoin an execution on a dormant judgment, notwithstanding plain-biff may have a different remedy by proceeding, by motion in the original action. (See 16 A. & E. Encycl. of L. 404; 2. Freeman, Judg., 4th ed., § 497.)
By this proceeding plaintiffs do not seek to use the statute for the purpose of securing anything, except that to which they are already entitled; they seek to hold what the law has already given them — the right to their property as against a void execution.-
The prayer for relief does not determine the nature or extent of the relief to which plaintiffs are entitled. It is not a part, of the cause of action in that sense. (Smith v. Smith, 67 Kan. 841, 73 Pac. 56, and cases cited.). The law determines the relief to which a plaintiff is entitled upon, the facts averred. Nor does, a petition become demurrable because from its averments it seeks to recover more than plaintiff is entitled to, if it •otherwise states a cause of action.
The petition alleged that an execution had been issued! upon a dormant judgment, and that unless, restrained by the court the sheriff would-proceed.to.sell .at public sale the real estate belonging to plaintiffs. The fact that it contained other averments upon which plaintiffs asked that their title be quieted against the judgment does not affect the former averments. We think the petition stated a good cause of action, and that the court erred in sustaining the demurrer.
(94 Pac. 121.)
The demurrer to the answer should have been sustained. None of the facts stated therein could affect the dormancy of the judgment. The statute declares the conditions which render a judgment dormant, and provides the manner in which it may be revived. (Code, §§ 430, 433, 434, 439; Gen. Stat. 1901, §§ 4880, 4883, 4884, 4889; Seeley v. Johnson, 61 Kan. 337, 59 Pac. 631, 78 Am. St. Rep. 314.) There'is no exception provided by which a judgment in the name of one person shall be kept alive after his death by a showing that the cause of action or thé judgment in which it merged belonged, in fact, to another.
The court erred in dissolving the temporary injunction, and in striking from the files the petition of plaintiffs. For these reasons the judgment is- reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Mason, J.:
William Daniels brought an action against D. J. McDonald to recover the possession of personal property described as a grading outfit, which the latter had caused to be seized upon an attachment against Ben Daniels, the father of William, the sheriff being joined as a defendant. The plaintiff recovered judgment and the defendants prosecute error.
The petition was drawn in general terms, the only allegation with respect to the title of the property being that the plaintiff was its owner. The preliminary statement made in his behalf to the jury, however, developed that his claim was that his title originated in this way: The property was at one time owned by his father, who executed to him a chattel mortgage to secure a debt which was therein described as owing to him, but which in fact included a sum which his father owed to his sister; afterward, in satisfaction of the mortgage, his father gave him á bill of sale of the property, under which he took possession, holding it until it was taken from him by- the sheriff. The plaintiff’s evidence was in accordance with this statement. The defendants now contend that no recovery should have been had, first, because under this statement the plaintiff was only a part-owner of the property and could not maintain replevin without joining his co-owner, his sister, and, second, because the title disclosed by the evidence was special and was therefore not provable under an allegation of general ownership.
The first contention fails because the plaintiff was not merely a joint owner with his sister. He had the full legal title, and the fact that he was under an obligation to account to another with respect to a part of the property did not prevent his maintaining as sole plaintiff an action against a stranger for its possession. This was determined in John C. Douglas v. Cora Wolf, and others, 6 Kan. 88, where it was held that “a person buying bonds for another, and buying them in his own name, may maintain an action in his own name for the recovery of the possession of them.” (Syllabus.) In the opinion it was said:
“The plaintiff’s testimony tended to show a general and also a special ownership of the bonds in himself, and a right to the possession thereof. ... If Douglas bought the bonds for Harwood, with Harwood’s money, and bought them in his own name, then he was entitled to the possession, and had an interest in the bonds, because, by reason of the purchase in his own name, he had incurred a responsibility to Harwood greater than if bought in Harwood’s name. He stood charged with Harwood’s money. If he bought the bonds for him and in his name, then he might say to Harwood, T have bought your bonds, but they have been seized by the sheriff without fault of mine; you must look to him for them.’ If bought in the name-of plaintiff, he was responsible to Harwood for their delivery, and had to repossess himself of them by action to enable him to make such a.delivery.” (Pages 9.1, 93.)
The proposition involved in the second contention is more open to doubt. The syllabus to Ward v. Ryba, 58 Kan. 741, 51 Pac. 223, reads:
“An agent who takes in his own name á bill of sale of personal property in payment 'of a debt due to his principal, and who upon taking possession of the property for his principal is dispossessed of it by third parties, cannot maintain replevin in his own name for its repossession under a general allegation of ownership in himself, without stating the facts in relation to his special interest and right of possession.”
In distinguishing the earlier cases, where the petition likewise alleged only a general ownership, the court said:
“The case of Douglas v. Wolf (6 Kan. 88) is cited as authority for the maintenance of replevin by an agent in his own name against strangers for the recovery of his principal’s property. It was stated in that case that ‘the plaintiff’s testimony tended to show a general and also a special ownership in the property itself.’ The case of an agent, with an interest of his own in his principal’s property is entirely different from the one under consideration. In such case the agent may maintain the action in his own name because he has an interest in the property; and this is the ground upon which 'the decision of Douglas v. Wolf, supra, rests, as do also a large number of like cases.” (Page 744.)
It would appear that Daniels, having a beneficial interest in the property, as well as the full legal title, was entitled to maintain replevin without pleading.a special ownership. We conclude, however, that, this question is not fairly raised, for this reason: When the opening statement for the plaintiff was ended the defendants asked for judgment for the reason that the statement disclosed that he was not the real party in interest and was not entitled to recover the entire property. This motion challenged only the right of the plaintiff to maintain the action without joining his sister; it did not direct attention to the question whether the ownership he claimed was special or general. Had the objection now relied upon been distinctly pointed out at that time the plaintiff might have seen fit to ask leave to amend. From that moment the defendants were as fully advised of the claims of the plaintiff as though an amendment had in fact been made. Under these circumstances it would not be in furtherance of justice to reverse the judgment, even although it might be thought that the petition was technically "defective in not setting out in greater detail the facts upon which the plaintiff’s claim was based.
Complaint is also made that the plaintiff was permitted to testify in so many words that he was the owner of the property. The error in this respect was not material, inasmuch as all the facts upon which his claims of .ownership were based were fully brought out in the course of the examination.
“Permitting a witness to state that she owned property, the title to which was the subject of the controversy, was not prejudicial error, where it was followed by an extended examination of the witness by both parties in which she gave in detail the circumstances of her purchase and the manner in which she acquired the property.” (Sparks v. Bank, 68 Kan. 148 [syllabus], 74 Pac. 619.)
The greater part, but not all, of the property was shown to have been sold by the sheriff. The court directed the jury to find the value of this portion at the time of the seizure. An objection made to this instruction because there was no evidence of its value at that time appears from the record not to be well founded in fact. The value of the remainder of the property was found at the date of the commencement of the action — some three weeks after the levy of the attachment, and this also is objected to. There is nothing to indicate any substantial prejudice in this respect. Moreover, the position of the defendants on the subject was not made clear at the trial. The other matters presented have been examined, but no ground of reversal is found.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to enforce the obligation of a surety. It was brought by Martha A. Hier, as administratrix of the estate of John D. Hier, deceased, against Fred Harpster, as surety on a promissory note given by J. F. Harpster to the deceased on September 22, 1898. J. F. Harpster was the cashier of the Wathena State Bank, with which the plaintiff had an account.
On September 22, 1899, when the plaintiff demanded payment of the interest due on the note, amounting to $80, J. F. Harpster made an entry in the pass-book of the plaintiff and credited her with the amount of the interest due on the note, but made no entry on the books of the bank, nor did the bank ever receive anything of value for the entry made in the plaintiff’s pass-book.
On November 30, 1900, payment of the principal and interest then due, amounting to $1083.35, was demanded. J. F. Harpster then entered that amount to the plaintiff’s credit in her pass-book, but no money was deposited in the bank to justify such entry in her pass-book, and there was no record made in the books of the bank showing the receipt of any money for such purpose.
When the entry was made in the pass-book of the payment of interest the plaintiff made an indorsement on the note that the interest was paid, and when the second entry was made in the pass-book she indorsed the note as “paid, November 30,. 1900,” and the note was canceled and surrendered to Harpster. Upon the plaintiff’s request for the payment of her balance in the bank, Harpster balanced her pass-book and issued a draft on a St. Joseph bank for the amount shown to be due, which draft was accepted by the plaintiff, believing that the note had actually been paid.
The following January Harpster died. A receiver was appointed for the bank, and upon an examination of the bank the plaintiff was found to have overdrawn her account by the amount of the pretended credits entered in her pass-book. The receiver then brought an action against the plaintiff for the amount of the overdraft, in which it was held that the bank was entitled to recover from her .the amount of money paid on the checks drawn on the faith of the unauthorized entries in the pass-book. That judgment was reviewed and affirmed on January 9, 1904. (Hier v. Miller, 68 Kan. 258, 75 Pac. 77, 63 L. R. A. 952.) She then paid the judgment, and later, on August 24, 1904, brought this action against Fred Harpster, as surety, to recover the amount of the note and interest. He had signed the note for the accommodation of J. F. Harpster, and had received no part of the proceeds, nor benefit of any kind. He knew nothing of the transactions between the plaintiff and J. F. Harpster, above stated, nor of those between the bank and J. F. Harpster. After the note had been surrendered and marked “canceled,” the defendant saw it in J. F. Harpster’s desk, soon after the death of J. F. Harpster, and had every reason to believe, and did believe, that the note had been paid. He had no notice or knowledge of any kind whatsoever from the plaintiff that the note had not been paid, and no demand was ever made of him on account thereof until this action was brought.
Upon J. F. Harpster’s death an administratrix was appointed, who settled in full all claims presented against the estate, except that of the Wathena State Bank, but this claim was never presented by plaintiff against the estate. The trial court held that the conduct of the plaintiff in failing to notify the surety that the note was not paid until the commencement of the action constituted such negligence as would release the defendant from the payment of the obligation to the extent of the injury occasioned by such negligence. Upon an examination of the account? of J. F. Harpster’s estate the court found that a certain amount might have been recovered from the estate had a claim been entered against it within a reasonable time by the plaintiff, and gave judgment against the defendant for the difference between that amount and that which was due on the note. Both parties complain of the judgment.
Did the conduct of the plaintiff operate to release the surety from the obligation which he assumed? It will be conceded that the mere surrender and cancelation of the note did not extinguish the debt nor release the surety. It is claimed that plaintiff’s subsequent conduct or failure to give the surety notice had the effect of releasing him. There was no misrepresentation nor fraudulent concealment of the facts by the plaintiff. Did her inaction, or her failure to notify the surety in regard to the surrender of the note, relieve him from responsibility? Ordinarily the creditor owes the surety no active diligence, and therefore the mere delay or inaction of the creditor affords no ground for the release of the surety. The general rule is that the obligation to see that the debt is paid rests on the surety and not on the creditor, and so it has been held that “however much the forbearance of the creditor toward the principal debtor may prejudice the surety, it will not discharge him from liability.” (Ray v. Brenner, 12 Kan. 105, syllabus; Halderman v. Woodward, Assignee, &c., 22 Kan. 734.) An il lustration of this rule is found in Goodacre v. Skinner, 47 Kan. 575, 28 Pac. 705, where it was held that the delay of a creditor in enforcing a mortgage given as security for a note was no defense in an action against the surety on the note, and that if the principal was removing or disposing of property, and thus rendering himself unable to pay the note, it was the duty of the surety and not of the creditor to invoke the aid of the law. (See, also, Ingels v. Sutliff, 36 Kan. 444, 13 Pac. 828.) In Barnes v. Mowry, 129 Ind. 568, 28 N. E. 535, it was held that “a creditor does not lose his right to hold the surety by inaction or passiveness, except in cases where the surety has taken such steps as compel the creditor to proceed or lose his claim.” (Syllabus.)
Any active interference of the creditor, such as the making of an agreement with the principal to extend the time of payment or which operates to increase the risk of the surety and deprives him of the opportunity to protect himself, may effect a discharge. And generally, if the creditor informs the surety that the secured debt has been paid, when in fact it has not, and as a result the surety is injured, he will be discharged, although the creditor may be honestly mistaken in the statement made by him. (Bank v. Haskell, 51 N. H. 116, 12 Am. Rep. 68; High v. Cox, 55 Ga. 662; Thornburgh v. Madren, 33 Iowa, 380; Brandt, Sur. & Guar. §§ 211, 212.)
Here there, was no active interference by the creditor, nor did she make any statement to the surety in regard to the payment of the debt or the surrender of the note. It is true that shortly after the transaction in the bank the surety saw the surrendered note marked “paid,” and from that time rested in the belief that it had been paid, but this information was not given to him by . the plaintiff, nor did she make any misleading statements concerning the transaction. The surrender of the note was accomplished by the fraud of the principal, but there was no fraud or bad faith on the part of the plaintiff in making the sur render. In the absence of fraud or gross negligence the surrender of the note, when brought to the knowledge of the surety, might have been treated as the equivalent of a declaration by the plaintiff that the note had been paid or satisfied in some way; but the plaintiff accepted the entries which the principal made in her pass-book as payment in the belief that payment had been made, or, rather, that the principal had or would in some way provide the necessary funds to justify the entries. When the fraud of the principal became known to her and an action was brought by the receiver of the bank she did not insist on payment by the surety, but at her own expense defended, on the theory that if any one was to lose it should be the bank, which left its funds in the hands of the' dishonest principal', who undertook to use them for the payment of his own debt. Until the end of that litigation she was not aware of her mistake, and evidently thought that whatever the relations were between the cashier, who was her principal debtor, and the bank, the note had actually been paid. If the surety, whose duty, it was to see that the principal met his obligation, had inquired he would have learned the facts about the surrender of the note and would have been as well informed as the plaintiff that the debt had not been extinguished.
In Bank v. Fletcher, 68 Vt. 81, 34 Atl. 38, where a creditor had taken a renewal note with, a forged indorsement, and surrendered the original, on which there was a genuine indorsement, and the indorser, when sued upon the original, insisted that the fraud had been accomplished through the mistake of the creditor and invoked the rule that where one of two innocent parties must suffer the one making the mistake should bear the loss, the court held that there was no such negligence on the part of the creditor as would release the indorser, and that the misrepresentation, made through mistake and fraud, did not create an estoppel.
In Iowa a note signed by a surety was renewed by the maker’s giving another note, to which he forged the name of the surety.. When the original note was given the maker gave the surety a mortgage upon property as an indemnity. One holding a second mortgage on the same property inquired of the surety whether the' note had been paid, and was referred by him to the payee, who said that the first mortgage was no longer a lien. Neither the payee nor the surety then knew of the forgery, and in an action against the surety the court held that the payee of the first note was not estopped from enforcing it against the surety. (Hubbard v. Hart et al., 71 Iowa, 668, 33 N. W. 233.)
In another case the creditor obtained security for a debt by attaching property of the principal debtor, and this fact was communicated to the surety. Afterward the creditor dismissed the suit and released the property. The surety claimed that he was lulled into a feeling of security by the statement of the creditor, and therefore should be released, but the court held that, as the creditor had not agreed to rely solely on the attachment, the surety was not discharged. (Barney v. Clark, 46 N. H. 514. See, also, Debenture Co. v. Hopkins, 63 Kan. 678, 66 Pac. 1015; Bangs v. Strong, 10 Paige [N. Y.], 11; 11 A. & E. Encycl. of L. 434.)
The opinion of the court, therefore, is that the surety is not relieved from responsibility, but in this view the writer is unable to concur. In his opinion the omission of the plaintiff to give any notice to the surety of the facts connected with the surrender of the note and of her subsequent controversy as to whether it had in fact been paid, running over a period of more than three years, was such negligence as relieved the surety, at least to the extent of the injury sustained by the lack of such notice. It is true that the plaintiff did not tell him that the note had been paid, but by her negotiations the note was surrendered and marked “paid,” and this fact was communicated to the surety. While she did not act in bad faith, she knew, or should have known, .that the cashier had no right to take the funds of the bank to pay his individual debts. As was remarked by Mr. Justice Burch, in Hier v. Miller, 68 Kan. 258, 75 Pac. 77, 63 L. R. A. 952, “when the cashier made an entry in the defendant’s pass-book of the receipt of money by the bank she knew the recital was false.” (Page 269.) The surety, who lived in a distant county, did not know these facts. He knew that the plaintiff had surrendered the note as paid, but had learned nothing of the circumstances of the payment. In the agreed facts it is stated that he not only believed that the note had been paid but that he had every reason to believe that it had been paid. Within a few weeks after the cancelation of the note the payment was challenged and suit was brought against the plaintiff, but she never informed the surety that a contest was on which might affect his liability. During the three years that the matte.r was in litigation he might have taken some steps for his protection, if he had known the facts of the surrender or that payment was contested.
The surety is a. favorite debtor. The law requires the creditor to deal candidly and fairly with him. Facts within the knowledge of the creditor affecting the surety should be disclosed, and the withholding of them may be a legal fraud on the surety. The surrender of the note by the plaintiff, under the circumstances, was the equivalent of a declaration by her to the surety that the note had been paid. In my judgment the conduct and negligence of the plaintiff absolved the surety from liability. Some of the authorities sustaining this view are: Kirby v. Landis, 54 Iowa, 150, 6 N. W. 173; Rowley v. Jewett, 56 Iowa, 492, 9 N. W. 353; Harris v. Brooks, 38 Mass. 195, 32 Am. Dec. 254; Struss v. Masonic Savings Bank, 89 Ky. 61, 11 S. W. 769, 12 S. W. 266; Poling v. Maddox, 41 W. Va. 779, 24 S. E. 999; Gordon v. M’Carty, 3 Whart. (Pa.) *407.
As a majority of the court are of the opinion that the surety was not released, it follows that there must be a modification of the judgment. The cause will therefore be remanded, with directions to enter judgment on the agreed facts for the plaintiff for the amount of the note and accrued interest.
Greene, Mason, Smith, Porter, Graves, JJ., concurring.
Johnston, C. J., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant operates a stone-quarry in connection with its cement manufactory. The quarry presents a face of solid rock some twenty feet in height. Rows of holes are drilled some distance back from the edge and loaded with dynamite, which is exploded with a battery. These “battery shots” disengage irregular fragments of rock, numbers of which are too large to be loaded at once into cars and transported to the crusher and which must therefore be reduced. Many cannot be broken by use of the sledge, and these are blown to pieces by dynamite, the holes drilled for the purpose being called “pop holes” and the explosions being called “pop shots.”
Frequently a battery shot does not discharge all the battery holes, and fragments of rock thrown into the pit of the quarry will contain highly dangerous charges of unexploded dynamite.
The plaintiff was an employee of the defendant, and his duty consisted in drilling pop holes. While he was so occupied he exploded the charge of an unshot battery hole and was injured. He sued the defendant for damages, claiming a violation of the duty to furnish him a reasonably safe place to work. The defendant denied that it was negligent, and pleaded contributory negligence and assumption of risk. A demurrer to the plaintiff’s evidence having been sustained, he prosecutes error.
There was sufficient evidence to go to the jury that at the time of the accident the plaintiff’s work was confined to the drilling of pop holes in fragments of rock which had been dislodged by battery shots, and had nothing to do with the drilling, loading or shooting of battery holes; that under regulations adopted by the defendant governing work in the quarry it was the duty of the employee who loaded and shot battery holes to report the number loaded to the quarry foreman ; that the foreman or the shooter, or both, counted the explosions as they occurred to ascertain if all loaded holes were shot; that if the charge in any hole failed to explode it was the duty of the shooter to find it and explode it, and if he could not explode it at once to mark it, tell the workmen of its location, and do so at the next shooting; and that the plaintiff had been advised of this rule and was working in reliance upon it when he was injured.
Further evidence was adduced to show that the plaintiff had no knowledge of the existence of the unexploded charge which injured him and had no way of determining whether the rock upon which he undertook to work was loaded. It looked like any of the others there. Its surface was covered with a coating of ice, into which pieces of stone were frozen, and the quarry was not lighted sufficiently to make visible indications of a hole having been drilled in the rock if any had existed.
Under this evidence the case is in all respects identical in principle with that of Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856.
The commonest kind of humanity required that pop drillers should not be sent unwarned to drill into rocks containing concealed charges of dynamite, and the law clearly required the defendant to adopt some kind of a regulation for their protection. If unexploded charges were readily discoverable by drillers of ordinary capacity perhaps they might be hired with the understanding they should locate such perils themselves, but even then the employment would be harsh, •if legitimate, and not the kind in which plaintiff was engaged. The defendant expressly undertook to make the plaee where plaintiff was required to work safe by the adoption of the regulation described, and an implied agreement to assume the risk guarded by the regulation cannot be recognized.
“There is no room for any implied agreement of the employee to assume the risk of danger in the presence of an express regulation upon the subject established by the pit-boss for the very purpose of protecting him.” (Brick Co., v. Shanks, 69 Kan. 306, 309, 76 Pac. 856.)
For the reasons stated at length in the case just cited the plaintiff was not a fellow servant of the employee who was charged with the duty of. discovering unexploded charges of dynamite, marking them, and warning other workmen of their location. No matter to whom the task might be assigned, or what the rank or grade of his service, the duty was one the master was bound to fulfil, and failure to do so- constituted actionable negligence.
Although the plaintiff was, as he’.admitted, familiar with the quarry and with the details of the various kinds of work performed there, his conduct, under the circumstances stated, was not such as to charge him with contributory negligence. In other respects a cause of action was established, and the case should have been submitted to the jury.
(93 Pac. 343.)
The judgment of the district court is reversed and the cause remanded. | [
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The opinion of the court was delivered by
Burch, J.:
The principal question in this case is whether a tax deed which had been of record more than five years before it was attacked is void on its face. It deviates from the statutory form in several particulars. One of the recitals in the statutory form is as follows:
“Whereas, the treasurer of said county did, on the -day of-, A. D.-, by virtue of the authority in him vested by law, at . . the sale begun and publicly held on the first Tuesday of May, A. D. -, expose to public sale, at the county seat of said county,” etc. (Gen. Stat. 1901, § 7676.)
The deed omits the word “publicly,” italicized for emphasis-in the extract from the statute. The statutory form also contains the following:
“Whereas, at the place aforesaid, said property could not be sold for the amount of tax and charges thereon, and was therefore bid off by the county treasurer for said county for the sum of-dollars and - cents, the whole amount of tax and charges then due.” (Gen. Stat. 1901, § 7676.)
The tax deed states that “whereas, at the said sale no person bid the said amounts of taxes and charges on said tracts of land, and the said tracts were bid off to the county of Seward for the total amounts of taxes above stated, which was the least amount bid for.” Another prescribed recital is this:
“And whereas, for the sum of - dollars and -cents, paid to the treasurer of said county, on the-: day of-, the county clerk did assign the certificate of sale of said property, and all the interest of said county in said property, to said-of the county of- and state of-.” (Gen. Stat. 1901, § 7676.)
The deed fails to state in so many words that the county clerk assigned the certificate of sale, but it states that he duly assigned all the right, title and interest of the county in the land.
In numerous cases in this .court similar questions have been presented. An examination .of them will disclose the policy of the court in dealing with tax deeds which have been of record and unassailed for five years or more, the rules of interpretation which have been applied to them, and the reasons which have led to the upholding of departures from the statutory form when the substance of the form has been preserved.
In the case of Bowman, et al., v. Cockrill, 6 Kan. 311, decided in 1870, the deed used the word “named” where it should have used the word “made” in the following clause: “In substantial conformity with all the requirements of the statute in such cases made and provided.” The blank following the words “for and in consideration of the sum of” was filled, but with a sum less than the proper amount; and the deed used the words “subject, however, to all the rights of redemption as provided by law” instead of “subject, however, to all rights of redemption provided in the act.” In holding the instrument valid on its face the court called attention to the fact that the law nowhere requires that a tax deed shall, be in the exact language of the statute. All that is necessary is that it shall be in substantial conformity to the model given. The statute to the effect that no mere irregularities of any kind shall invalidate the title conveyed by a tax deed was. applied to the tax deed itself as a part of the proceedings whereby the landowner is devested of his property, so that the foundation was laid for the statement in Morrill v. Douglass, 17 Kan. 291, that “a mere irregularity counts for nothing as against a tax deed in Kansas.” (Page 293.) Words meaning the same thing were said to be equally as good as those found in the statutory form. It was held that an inaccuracy in stating the consideration which could do no possible injury to the original landowner would not render the deed void on its face; and decisions from states whose legislatures have enjoined literal compliance with the prescribed form were rejected as having no authoritative application here, where no such requirement is made.
The case of Haynes v. Heller, 12 Kan. 381, decided in 1874, involved a tax deed executed under the law of 1862 prescribing a form which, in respect to the offer to purchase, reads thus: “and whereas at the time and place aforesaid,” etc. The deed omitted the words “time and.” The court, speaking through Mr. Justice Brewer, said that a tax deed, like any other instrument, is to be construed as a whole. If any uncertainty in one part is made certain by another the deed as a whole is sufficient, and a tax deed is to be construed according to the.ordinary and natural meaning of the words used. Premising so much, the learned justice analyzed a public sale into its constituent parts of offer for sale, bid, striking off, and payment of price, and said:
“Now of these four parts, the first three must be cotemporaneous. The bid must be made while the property is being offered for sale, otherwise the sale if made is a private and not a public saleand for the same reason the property must be struck off to the bidder before the public offer is withdrawn or ended. So that a déed which recites the time at which property is offered for sale at public sale, and then that a bid therefor was made and the property struck off to the bidder, shows the time of these last two acts as clearly as though it recited that the bid was made at ‘said time’ and the property struck off at ‘said time.’ The deed in controversy recites the time that the sale for delinquent taxes commenced, and the day upon which this particular lot was put up for sale. It does not say that it was exposed for sale upon this and subsequent days; nor under the rule, expressio unius, exclusio alterius, can there be any other understanding of the words of the deed than that the property was put up for sale only upon that day. It then says that certain parties bid for the property, and it was struck off to them. As heretofore stated, these two acts must have taken place during the time of the offer, and therefore on the day named, or the sale was not a public sale. But it may be said, Is not the language used consistent with the idea that no offer or sale was made at the time it was exposed to public sale, and that thereafter an offer was made and a private sale effected? No.t at all. To speak of property sold at private sale as having been struck off to the highest bidder is, to say the least, an extraordinary and unnatural use of. language.” (Page 391.)
The significant feature of this decision is that from recitals enjoined by the statutory form and shown in the deed the- substance of other prescribed recitals may be deduced, although not expressly appearing.
The case of McCauslin v. McGuire, 14 Kan. 234, related to a tax deed witnessed by one witness. The statutory form contained the word “witnesses” at the bottom, where witnesses to instruments. usually sign, and the law provided that a tax deed “duly witnessed and acknowledged, shall be prima facie evidence,” etc. The court said:
“It will be perceived that the statute quoted does not expressly require that' a tax deed shall be witnessed, nor does the statute state how it shall be witnessed, whether by one, two, or a dozen witnesses. The statute simply says that ‘such deed duly witnessed’ etc., ‘may be recorded with like effect as other conveyances.’ Now what does ‘duly witnessed’ mean?" We think it means ‘witnessed according to law.’ And how does the law require that a deed of conveyance should be witnessed? It in fact does not require that a deed of conveyance shall be witnessed at all. The common law never did require that deeds of conveyance should be witnessed by attesting witnesses. . . .' And no statute can be found in this state that requires any such thing. Tax deeds were unknown to the common law, and our statutes do not require that they shall be witnessed in any different manner from other deeds, but leave the matter entirely optional with the parties executing and receiving them. The statutes above quoted were borrowed almost literally from Wisconsin, where attesting witnesses were necessary to all deeds; and this accounts for the words ‘witnessed’ and ‘witnesses’ being used. In this state the certificate of the officer taking the acknowledgment of a deed, with his signature, and seal if he has one, is considered as sufficient attestation of any deed; and with such a certificate the deed may be read without other proof.” (Pages 246, 247.)
In the case of Stebbins v. Guthrie, 4 Kan. 353, it had been said that a tax deed duly acknowledged is sufficient without witnesses, so' that by the two decision's something which appeared to be a part of the statutory form was virtually eliminated.
A recitation in the McGuire deed that the certificate of sale which had been issued to the county was duly assigned was held to raise the presumption that the purchase-money and all that was necessary had been paid, the argument being that the certificate and all the right, title and interest of the county in the land could not have been “duly assigned” unless the purchase-money were paid. Although in the same deed the word “at” was omitted before the words “an adjourned sale of the sale begun,” etc., and although the pronoun “me” was inserted instead of the name of the acknowledging officer in the blank left for the purpose in the certificate of acknowledgment, it was said the deed plainly exhibited the necessary facts and that its meaning was unmistakable. This decision was rendered in opposition to the following argument in the brief for McCauslin:
“A tax deed is not substantially in the form required by statute when it omits any averment therein required. The phraseology may be changed in many respects without substantially changing the form, provided equivalent averments are inserted; but when the fact required to be inserted is omitted, it loses a part of the substance. If courts can dispense with one requirement they can, with equal propriety, dispense with another which they may think the legislature has unwisely or unnecessarily required, and thus by gradual steps assume the entire legislative powers upon the subject.” (Page 237.)
In the case of Morrill v. Douglass, 14 Kan. 293, it was in effect held that whatever is ascertainable by a mathematical calculation from data furnished by the law and the deed is as clearly shown as if the result of the calculation were stated. Indeed it was queried whether, under 'such circumstances, an erroneous amount inserted in the deed would vitiate it, the true sum being present in the data for the calculation. The principle of this case was applied in the case of Fullington v. Jobling, 75 Kan. 817, 88 Pac. 968.
In the case of Harris v. Curran, 32 Kan. 580, 4 Pac. 1044, the tax deed recited that the land was sold on May 6, 1870, “at the.sale begun and publicly held on the first Tuesday of May, 1870.” The first Tuesday of May, 1870, was May 3, and May 6,1870, fell on Friday. In denying that this deed was void on its face the court said that the sale made on May 6 was “obviously” at a sale begun and publicly held on the first Tuesday of May and continued to May 6.
In the case of Mack v. Price, 35 Kan. 134, 10 Pac. 521, the words “of the sale” were omitted from the following sentence of the statutory form: “at an adjourned sale of the sale begun,” etc., the recitation being that “the treasurer of said county did, on the 15th day of May, 1863, by virtue of the authority in him vested by law, at an adjourned sale, begun and publicly held on the first Tuesday of May, 1863, expose to public sale,” etc. Also, in the conclusion of the deed, the words “by virtue of authority aforesaid” and the words “official seal” were omitted, so that it read as follows: “In witness whereof, I, Charles W. Rust, county clerk as aforesaid, have hereunto subscribed my name, and affixed my official seal on this 7th day of December, 1869. Chas. W. Rust, County Clerk.” From the fact that the deed showed an adjourned sale succeeding the first Tuesday of May, 1863, the court concluded that the sale must of necessity have been an adjourned sale of the sale begun on that day. Because Charles W. Rust signed the deed as county clerk it was said “my official seal” evidently referred to his official seal as county clerk* and therefore “the official, seal of said county”; and the substance of “by virtue of authority aforesaid” was held to be fully expressed in other recitations, considering all parts of the deed together.
In discussing another- subject the word “duly” was given the same force as in McCauslin v. McGuire, 14 Kan. 234, and it was held the words “was the least .quantity bid for” should be omitted in deeds based upon sales to the county. The court also referred at length to the fact that no equities existed in favor of the original owner, who had abandoned the land, paid no taxes and made no effort to regain possession for twenty years.
In the case of Heil v. Redden, 38 Kan. 255, 16 Pac. 743, the syllabus reads as follows:
“A tax deed is valid upon its face when its only irregularity is the omission of the word ‘remaining,’ where it should be stated that the land is offered for sale for the payment of the taxes, interest and costs then due and [remaining] unpaid.”
The deed followed the statutory form in all respects except the one noted, and the court in the opinion said:
“We do not feel inclined to attem’pt to discover a distinction between taxes, etc., then due and unpaid at the time of offering for sale, and the taxes then remaining due and unpaid, while at the same time the other recitals in the deed are full and complete; at most, it was but an irregularity that certainly ought not to be regarded as a defect that could be raised after the five years contemplated by the statute haye passed.” (Page 257.)
In the case of Sanger v. Rice, 43 Kan. 580, 23 Pac. 633, the tax deed stated that “the said county of Bourbon did, on the 15th day of September, A. D. 1881, duly assign the certificate of sale,” etc., the sale having been made to the county. The law and the statutory form contemplate an assignment by the county clerk. The -court said that the deed showed by necessary implication that the tax certificate was assigned by the county clerk because it could not be duly assigned by Bourbon county unless it was assigned by the county clerk. The deed having been of record more than five years before it was attacked, the court said: “Ordinarily, tax deeds should be strictly construed, but under the circum stances of this case we think the present tax deed ought to be liberally construed, for the purpose of upholding and enforcing it.” (Page 585.) The rule that public officers are always presumed to do their duty was also invoked.
In the case of Douglass v. Bishop, 45 Kan. 200, 25 Pac. 628, 10 L. R. A. 857, the opinion reads:
“In the certificate of acknowledgment to the tax deed, under which H. P. Bishop claims, the words ‘in and for said county’ were omitted. The question presented is: whether this omission renders the deed invalid. We' think not. The caption shows that the acknowledgment was taken in Jackson county, and in this state, and the certificate also shows that the tax deed was assigned by E. D. Rose, the county clerk of Jackson county, in this state, and that as such clerk he appeared before W. S. Hoaglin, a justice of the peace, in Jackson county and the state of Kansas, and acknowledged the execution of the tax deed, as clerk of Jackson county, in this state, for the purpose therein expressed. We think that, even in the absence of the words ‘in and for said county,’ the presumption is that W. S. Hoaglin exercised his functions as a justice of the peace within his jurisdiction, that is, within his township, in the county of Jackson and state of Kansas.” (Page 202.)
This decision was adhered to in the case of Douglass v. Carmean, 49 Kan. 674, 31 Pac. 371.
In the case of Neenan v. White, 50 Kan. 639, 32 Pac. 381, the deed contained the following recital:
“And whereas, the said J. J. Locker did, on the 10th day of June, A. D. 1869, duly assign the certificate of the sale of the property as aforesaid, and all his right, title and interest to said property, to Sami. Gard, of the county of Atchison and state of Kansas; and whereas, Hugh D. Fisher, administrator, did, on the 17th day of December, A. D. 1869, duly assign the certificate of the sale of the property as-aforesaid, and all his right, title and interest to said property, to P. L. Hubbard, •of the county of Atchison and state of Kansas.” (Page 643.)
It was claimed that no assignment from Gard to Hubbard was shown. The court held that the deed-was entitled to a liberal interpretation for the purpose of upholding it and protecting the equities of claimants of the land in possession under it. The facts implied were the death of Gard, that Fisher was the administrator of Gard, probate proceedings resulting in the appointment of Fisher and an order authorizing Fisher to assign the certificate. True, evidence was introduced on the trial in the district court showing the death of Gard and the appointment of Fisher as his administrator, but the decision, which sustained the deed, was apparently rested upon the ground stated, the question being if the deed was void on its face.
In the case of Morris v. Bird, 71 Kan. 619, 81 Pac. 185, however, it was held that a clear break in the chain of assignments rendered the deed there under consideration void on its face.
In the case of Penrose v. Cooper (on rehearing), 71 Kan. 725, 84 Pac. 115, express recitals of the-amount for which the land was bid off, that it was bid off for the .county, and that separate tracts were offered for sale separately, were omitted, but it was held that the substance of such recitals might be supplied by inferences drawn from other statements in the deed liberally construed to that end.
Following this case it was held in Gibson v. Trisler, 73 Kan. 397, 85 Pac. 413, that a deed left no room for doubt that the land was bid off for the county although the recital to that effect prescribed by the statutory form was omitted. The same ruling was made in the case of Fullington v. Jobling, 75 Kan. 817, 88 Pac. 968.
In the case of Ham v. Booth, 72 Kan. 429, 83 Pac. 24, the legal presumption that a corporation resides in the state of its creation was indulged to supply the omission of an express recital of the residence of an assignee of the tax-sale certificate.
As a part of its due execution a tax deed must bear the seal of the county. (Reed v. Morse, 51 Kan. 141, 32 Pac. 900.) But in Clarke v. Tilden, 72 Kan. 574, 84 Pac. 139, it was held that the presence of the words “Seal of County Clerk, Decatur County, Kansas,” in the center of the seal affixed to a deed did not overcome other indications that the instrument was properly executed. This decision was followed in Kruse v. Fairchild, 73 Kan. 308, 85 Pac. 303.
A tax deed must show upon its face the time of the sale or it is void. (Haynes v. Heller, 12 Kan. 381.) In John v. Young, 74 Kan. 865, 86 Pac. 295, the blanks in the statutory form, “did on the-day of -, A. D. 189 — ,” were not filled, but immediately following the blanks the deed recited that the sale was begun and held on the first Tuesday of September, A. p. 1896. The court declined to presume that the sale extended beyond the day named, or that the land was sold on any other day than the one named,- and held that the time of the sale was' indicated with substantial certainty.
In the case of Havel v. Abstract Co., ante, p. 336, the blanks left in the statutory form for stating the residence of the assignee of the tax-sale certificate were not filled. It was held that the matter indicated by the blanks is not a recital in the proper sense of the term and may fee omitted without prejudice to the landowner and without vitiating the deed. This decision forecloses any possible inference to the contrary which might be drawn from a casual observation made by the writer of the opinion in the case of Kruse v. Fairchild, 73 Kan. 308, 311, 85 Pac. 303.
Whenever, in stating the facts with reference to a tax sale, words of the statutory form which under the circumstances are inappropriate happen to be retained in a deed, they may be rejected as surplusage. (Thompson v. Colburn, 68 Kan. 819, 75 Pac. 508; Clarke v. Tilden, 72 Kan. 574, 84 Pac. 139; Fike v. Nagle, 74 Kan. 838, 85 Pac. 948, 88 Pac. 876.)
In the light of these decisions it is clear the deed involved in this case is not void on its face. The treasurer could not expose the land to public sale, as the deed says he did, unless such sale were publicly held. To speak of a private sale as publicly held would in volve “an extraordinary and unnatural use of language.” (Haynes v. Heller, 12 Kan. 381, 392.) The words “no person bid” contain the necessary implication that the land “could not be sold” to a private bidder. They express the precise idea to be conveyed by the statutory recital, and are therefore “equally good” (Bowman, et al., v. Cockrill, 6 Kan. 311.) The recital in the statutory form that the county clerk “did assign the certificate of sale of said property, and all the interest of said county in said property” (Gen. Stat. 1901, § 7676) is not the statement of two independent facts, but of a single fact with its legal consequence. An assignment of the certificate operates as an assignment of all the right, title and interest of the county, and an assignment of all the right, title and interest of the county necessarily involves an assignment of the •certificate. A recital of either one includes the other.
Besides this, the inference regarding the manner in which the title and interest of the county was assigned is strengthened by the use in the deed of the word “duly.” True, the county clerk exercises a naked statutory power, and it is not enough that he state, his mere conclusion that he has complied with the law. The deed should recite facts and not opinions. (Duncan v. Gillette, 37 Kan. 156, 14 Pac. 479.) But under the rule of liberal interpretation which must be applied to all tax deeds which have been recorded for five years the word “duly” frequently has some descriptive force. (McCaslin v. McGuire, 14 Kan. 234; Mack v. Price, 35 Kan. 134, 10 Pac. 521; Sanger v. Rice, 43 Kan. 580, 23 Pac. 633.) Thus in Sanger v. Rice, supra, the statement that the certificate was duly assigned by the county was held to be a substantial statement of the fact that the assignment by the county was by the county clerk. So here, the statement that the right, title and interest of the county was duly assigned is a substantial statement that such assignment was accomplished by an assignment of the certificate of sale. In the Sanger case the agent was indicated. In. this case the instrument is ihdicated.
The sale having been made to the county, the words “which was the least amount bid for” are surplusage and should be disregarded.
A minor question presented is decided adversely to the plaintiff in error, because the writings exhibited do not disclose a contract of sale.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was charged in the district court of Chase county with the crime of kidnapping Anna Pendergraft, an unmarried woman, with the intent to take her or cause "her to be taken out of the state of Kansas against her will. He was tried and convicted, and upon the denial of his motion for a new trial was sentenced to the penitentiary. There are forty-four assignments of error, and it will be impracticable and unnecessary to consider them categorically. We shall confine our consideration rather to the legal principles which underlie them.
Over the reiterated objections of the appellant the state was allowed to detail the relations between the respective families of the prosecuting witness and the appellant, and especially to detail the relations between the appellant and the prosecuting witness for several years preceding the alleged abduction: how the appellant and his wife favored the girl and her younger brother, and took her with them on trips and to church; that he gave her presents; and finally the story of illicit sexual intercourse between them, continuing for a period of about three years. We have scanned the evidence carefully to discover an intimation or a circumstance indicating that he had any intention of taking Anna to California or elsewhere out of the state until after he had been informed that she was enceinte, and we have failed to find it. To escape the effects of this unintended result of their intercourse, evidently, was the impelling motive of the trip to California. Whether, after an unsuccessful attempt to cause an abortion by taking medicine, she considered the humiliation and disgrace incident to remaining, and, as a choice of two evils, decided to go, or whether her will was overcome by his threats and she was thereby intimidated, beyond her power of resistence, to go, is a question for a jury and not for the court. Certain it is, however, that a jury in determining this question should not approach it with their minds poisoned against the appellant by a history of facts which, even though criminal in their nature, in no way tend to prove the crime charged.
We are not unmindful of the decisions of this court in the so-called “consent-does n’t-count” rape cases, allowing proof of acts of intercourse at times other than that relied upon for conviction. This is allowed as corroborative of the evidence of the act charged, on the theory that it is common knowledge that the relation, once established, usually recurs when opportunity permits, and, vice versa, that opportunity confidently and successfully sought is some evidence of the former existence of the relation. The principle has ho application to the case at bar. In this case substantially all the evidence of the relations of these parties prior to his being informed of her great trouble and his admission that he was the author thereof should have been excluded as irrelevant to the issue.
Our code of criminal procedure requires a specific statement of the crime charged in an indictment or information as the basis of a criminal prosecution, and on the trial of such charge no evidence should be permitted against the defendant except such as tends to establish a motive for, or complicity with, the offense charged. If it were permitted to offer against a defendant on trial evidence of every infraction of the law of which he may actually or supposedly have been guilty it would often be very difficult, if not impossible, for the average jury to surround him with the presumption of innocence or to give him the benefit of every reason able doubt until such presumption and doubt are removed by competent evidence of his guilt of the particular offense charged. Yet the law accords to every defendant the benefit of this presumption and of such doubt. Moreover, to defend an unknown number of charges when only apprised of one would impose an unjust burden upon a defendant.
The instructions aggravate the error in the admission of the evidence; e. g., under the evidence the only “evil practice” to which those words in the fourth instruction could refer aré the sexual intercourse and attempt by medicine to procure an abortion. There is nothing in the evidence to indicate that the former was consummated as a part of a scheme to get her out of the state, while it is evident that the latter was for the very purpose of avoiding the necessity for such a trip. The sixth instruction, also, in effect, directs the jury to consider that portion of the evidence which should not have been introduced. The last paragraph of this instruction is as follows:
“To support the charge, of inveigling, decoying or kidnapping as charged, it will be sufficient to show a surrender or overcoming of the wilLof the said Anna Pendergraft by fraud, such as representations of facts known to be untrue by the defendant, and believed to be true by said Anna Pendergraft, and upon which her assent in whole or in part was obtained at the time of leaving her home; deception by words or conduct employed by the defendant for the purpose of obtaining her assent, and which operated in whole or in part upon her to secure such assent; undue influence, such as the abuse of a confidence by defendant reposed in him by said Anna Pendergraft, which operated to obtain .her assent; the exciting of her fears by threats of a force reasonable to be apprehended which obtained her assent in whole or in part.”
“Undue influence, such as the abuse of a confidence by defendant réposed in him by said Anna Pendergraft,” could, it seems under thé evidence, refer only to her evidence that he told her when in their illicit association that he would not get her into trouble. Can it be said that he told her this for the purpose of inducing or compelling her to go to California? We do not think the'evidence by any possibility indicates this. That he falsely told her he had assigned to her an insurance policy on his life seems to be no greater inducement to go than to stay. The promise that he would get her a nice home and give her all the money she wanted to spend cannot be said to be a false representation. It was a promise which he may or may not have intended to' keep. It was said in Ranney v. People, 22 N. Y. 413: “The false representation complained of was, therefore, essentially promissory in its nature, and this has never been held to be the foundation of a criminal charge.” (Page 417.)
By the evidence of the prosecuting witness it appears that the appellant told her that the object of going to California was to get rid of the cause of their trouble, and called her attention to the disgrace and humiliation which’ would result to both of them and their families if they remained at home; also that she concluded it was the best thing to do. She also said, however, that he threatened to kill her if she did not go; that she believed he meant it, otherwise she would not have gone. If the jury believed this latter statement to be true, and that by such threats he so aroused her fears as to intimidate her and overcome her will, and thereby impelled her to consent to go when otherwise she would not have done so, then the offense of kidnapping is complete. Such intimidation is the equivalent of force.
It seems that the evidence does not justify any instruction in' regard to inveigling or decoying. These elements of the crime are charged, but are not supported by any evidence. “Aú instruction ought not to be given, although it is a correct statement of the law in the abstract, which is not applicable to the facts that are in evidence.” (The State v. Whitaker, 35 Kan. 731 [syllabus], 12 Pac. 106. See, also, cases there cited, and The State v. Mize, 36 Kan. 187, 13 Pac. 1.)
The judgment is reversed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action to recover the value of an oil-tank furnished by Fairbanks, Morse & Co. to the defendants in error. Action was commenced before a justice of the peace, where the defendants recovered judgment, and plaintiff appealed to the district court of Neosho county. Judgment was again given in favor of the defendants, and the plaintiff brings the case here for review.
The plaintiff is located in Kansas City, Mo., and is engaged in the business of manufacturing and selling oil supplies and machinery. The defendants, at the time the transaction in controversy occurred, were engaged in the oil-producing business at Chanute, under the name of the Walker Oil Company. J. M. Glover was a traveling salesman for the plaintiff, and C. E. Derenberger was “field manager” for the de fendants. On August 17, 1903, Glover took an. order from Derenberger for an oil-tank, which reads:
“Messrs. Fairbanks, Morse & Co.:
“Please ship via frt. to Walker Oil Co., at Chanute, Kan. Notify C. E. Derenberger.
“1 12 x 20' 2" cypress oil-tank, price $260. Erected on our lease you to furnish bottom and deck, and make the tank hold oil. Hoops — three 4" hoops on bottom balance 3" and one 1 2-J" on top. We will haul out the material. Terms net 30 days from date of shipment, without any deduction for freight, express or exchange charges. This order is subject to the approval of Fairbanks, Morse & Co.,-the undersigned have examined the above order and. the same is correct.
(Signed) C. E. Derenberger.”
This order was accepted, the material shipped, and the tank erected. The tank was completed about September 16, 1903.
Oil-tanks are used for storing oil, and are worthless if they leak. A tank that is water-tight may not hold oil. Some of the witnesses testified that oil will escape through the staves of a tank if .they are “sappy.” The tank in question never would hold water, and a number of its staves were “sappy.” The staves did not fit close together and water ran through the cracks between them. The tank was never fit for the use intended, and was practically worthless as an oil-tank.
On October 12, 1903, plaintiff drew a draft on the defendants for the price of the tank, to which an answer was made as follows:
“Chanute, Kan., 10-14, 1903.
“Fairbanks, Morse & Co., Kansas City:
“Gentlemen — I will not oner your draft by no means against the Walker Oil Co., in the first place your bill is but $260, as I ordered the other goods of Glover to be delivered in not to exceed 6 days as I was at the time equipping, it was not sent for 3 weeks. So it is your stuff not mine and when ever you put this tank up as my contract calls for I will decide to pay you and not before. Yours respt
C. E. Derenberger.”
After receipt of this letter the plaintiff made some further efforts to make the tank acceptable to the defendants, but did not succeed, and commenced this action June 25, 1904. The district court entered judgment in favor of the defendants, as follows:
“And now on this 23d day of November, 1905, came the above-named parties by their attorneys, and the court having had said cause under advisement, and being fully advised in the premises, does find for the said defendants and that the prayer of said petition be denied and that said defendants have and recover of said plaintiff their costs .in their behalf expended, taxed to $98.85, hereof let execution issue. And it is further ordered that at any time within sixty days from this date the said plaintiff may take possession of the tank involved in this action and remove the same from the premises where it now is. Should plaintiff fail to remove the said tank in said time, then the defendant Margaret S. Walker can remove said tank from said premises (if she desires to do so), doing as little damage to said tank in removing as possible. Plaintiff to be notified by mail of the removal of said tank and the place to which it may be removed. In any event said tank to remain the property of plaintiff.”
Several assignments of error have been presented, but they are all involved in one, and bnly that one need be considered. It is contended that the contract between the parties was one wherein the plaintiff agreed to furnish the materials and build an oil-tank upon the premises of the defendants, and not one for the sale of an oil-tank, and, therefore, should be classified as a building contract and not one for the sale of a chattel, in which case the defendants cannot refuse to accept the tank and avoid payment, even if it is defective and not according to the contract, but must resort to an action for damages.
It is also argued that the parties in this case cannot be placed in statu quo if the contract is rescinded, and under the doctrine which denies the right of rescission in such cases no recovery can be had. We do not see any serious difficulty, however, in placing the parties to this action in practically the same situation they were before the contract was made. Indeed, this seems to have been successfully accomplished by the judgment of the district court.
It is insisted that the plaintiff cannot be placed in statu quo unless the tank and wasted material, together with the cost of labor expended in the construction of the tank, be returned. But such an application of the rule does not seem to be practicable or reasonable. The cases where this rule can be applied in such an absolute and unqualified sense are very rare. Where a tailor agrees to furnish the material and make a coat, if the garment when finished is so small that the person for whom it was made cannot wear it the purchaser may refuse to take it, and yet the tailor cannot be placed in statu quo under the rule here insisted upon, as the-material would be practically destroyed for other purposes, and the labor thus expended lost. The same is true in every case where the seller manufactures the article sold. We understand the rule to be that the person who rescinds must always return all benefits received from the contract, and restore the status quo, not absolutely, but so far as possible or the merits demand. (24 A. & E. Encycl. of L. 620; 6 Pom. Eq. Jur., 3d ed., § 688; Neblett v. Macfarland, 92 U. S. 101, 23 L. Ed. 471; Brown v. Norman, 65 Miss. 369, 4 South. 293, 7 Am. St. Rep. 663; Myrick v. Jacks, 33 Ark. 425.)
As applied to this case, the plaintiff undertook to make on oil-tank that would hold oil and be suitable for the purpose of storing it.’ The defendants had no use for a tank that would not serve this purpose. The plaintiff fully understood the needs of the defendants in this respect and contracted with reference to this known situation. The tank, as erected, is defective in every respect; the materials are unsuitable and the workmanship unskilful. The plaintiff had abundant time in which to construct, repair and make the tank .according to contract, but failed to do so. The tank, when completed, and at all times thereafter, was worthless except as the materials of which it is constructed are valuable. It would be inequitable and unjust to compel the defendants to keep this tank at any price. They received nothing whatever of value from the contract and have nothing to return to the plaintiff. The situation is the direct result of the plaintiff’s conduct; it has no reason to complain. The material shipped to Chanute is on the defendants’ premises in a condition where it may still be properly denominated material, and can be removed and used for some purpose for which it is adapted without serious loss.
The plaintiff has cited in support of its contention the case of Tower v. Pauly, 51 Mo. App. 75. The facts of that case, however, differ so much from this that it has very little, if any, application. That was a case .where a hot-air furnace was placed in a residence, and when completed it was paid for. Its capacity was not tested for more than a year after completion, and then, when found to be deficient and not equal to the “warranty, the owner tendered it back, less the brick casing, which he used in the construction of another furnace, and brought suit to recover the money paid. The majority of the court held that he could not recover, first, because he waited too long; second, he did not tender back all that he received; and, third, the furnace was a structure when completed, built into a house, and could not be returned so as to place the parties instatu quo, and therefore the remedy was an action for damages and not a rescission of the contract. Judge Rombauer concurred in the first two propositions and dissented to the third. Judge Biggs dissented generally. We are not inclined, therefore, to regard that case as an authority here.
We conclude that the plaintiff sold a chattel— an oil-tank — to the defendants, which failed in every important particular to comply with the contract of purchase. The defendants, because of such failure, right fully refused to accept the tank. By such refusal the ownership of the property has never changed; it has at all times belonged to the plaintiff. We think the rights of the parties were correctly disposed of by the district court.
For more than twenty years this court has been reviewing the decisions of the eminent judge before whom this case was tried, and it has noticed with satisfaction the vigilant care and patient industry given by him to the discharge of his official duties. His thorough knowledge of legal principles and his clear perception of natural justice made him peculiarly fitted for judicial service, and contributed in a large measure to the success which gave him prominence as a jurist and caused him to be generally recognized as an able and impartial judge. In view of his recent voluntary retirement from the bench by resignation, thereby severing his long-continued official relations with this court, we deem it proper to make this reference thereto.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Written contracts of this character are commonly called oil-and-gas leases, but, as was said in Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398, “they are not strictly ‘leases,’ as defined and treated in the law of landlord and tenant; they are in the nature of a written license, with a grant conveying the grant- or’s interest in the gas- or oil-well, conditioned that gas or oil be found in paying quantities.” (Page 110.)
The contract in this case first licensed the brick company, in consideration of one dollar and of the agreements therein contained on the part of the company, to bore wells for oil and gas on the premises described, and, if either were found in paying quantities, conveyed the same to the company. It also authorized the company to occupy the premises so far as necessary for operating wells, laying pipes, etc. The term of this license is ten years, and so much longer as oil or gas shall be found in paying quantities or the rental paid thereon. By a subsequent provision the company agreed to complete a well within two years from the date of the contract, reasonable, unavoidable delays and accidents excepted, or in default thereof to pay a yearly rental of twenty-five cents per acre from the expiration of the two years until a well should be completed. A failure either to complete the well or make the payment renders the contract void after the lapse of two years.
It is further provided that the “rental shall be,paid direct to first party on the first day of the seventh month after the date of this lease.” This seems ambiguous, to say the least, when compared with the expressed purpose for which rent was to be paid and from what time it was to be paid. Were we required to reconcile these provisions and arrive at the intent of the parties we should probably conclude that rent be gan to accrue two years from the date of the lease, viz., September 4, 1904, and the first annual instalment thereof was payable April 1, 1905, and that annually thereafter until the company completed a well or surrendered the lease another instalment would become due and payable. We are not, however, required to solve the ambiguity, as it appears by the agreed statement of facts the parties mutually placed a construction upon it and acted upon that construction. It is agreed that on the 24th day of October, 1902, fifty days after the execution of the lease, the company paid the lessors forty dollars as oil-and-gas rentals to September 4, 1903, on the land in question, and the lessors gave a written receipt therefor; that on September 2, 1903, another payment of forty dollars, as rent to September 4, 1904, was made and receipted for. By so doing the parties, in effect, said that by the terms of the lease the rent began to accrue immediately upon the execution thereof.
On the 4th day of September, 1904, the company tendered to the lessors forty dollars in payment of rent to September 4, 1905, but the lessors refused to accept the same for the reason that “said pretended lease by the terms thereof is merely an option which can be revoked at any time at the election of either party thereto, and that upon such election the same ceases to be of any validity and is no longer binding upon either party thereto.” To this contention we cannot assent. It may be conceded that it is an option contract, yet it does not follow that it can be revoked ' at pleasure by either party thereto.
It is of the very essence of an option contract that one party has the choice of concluding or not concluding the proposed transaction, while the other party has no choice. He undertakes for a certain consideration to do a certain thing or to permit the other party to do a certain thing within a certain time on the demand of the other. This right of choice is what the other pays for. (21 A. & E. Encycl. of L. 928. See, also, Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195; Clark v. Gordon, 35 W. Va. 735, 14 S. E. 255; Sayward v. Houghton, 119 Cal. 545, 51 Pac. 853, 52 Pac. 44.)
It is urged that there is no mutuality in this contract — that it is unilateral. It is well said in volume 9 of the Cyclopedia of Law and Procedure, at page 334:
“When there is an agreement founded on a consideration, it is not invalid for want of mutuality because one party has an option while the other has not, or in other words because it is obligatory on one and optional with the other. ... So want of mutuality cannot be set up as a defense by the party who has received the benefit, simply because it was left optional with the other party, as to whether he would enforce his right.” (See, also, Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289.)
Under the conditions of the contract, as construed and acted upon by the parties thereto, the company paid one dollar and became obligated to pay forty dollars per annum rental from the day of its execution until such time as it should complete a well or surrender the lease. It exercised its option by paying the rent for two successive years, and the lessors acquiesced in the part performance of the contract by accepting. The lessors will not therefore be heard to say, when the third .year’s rent is tendered, that the contract is unilateral and revocable by them because the company might have then exercised its option to surrender the lease.
The consideration is not only valuable; it is adequate. Although this decision is not based thereon, the writer is of the opinion that the one dollar consideration, admitted to have been received, is, in the absence, of fraud or bad faith, sufficient to sustain this contract. Supporting a contract almost identical in this respect with the one here it was held, in Allegheny Oil Co. v. Snyder, 106 Fed. 746, 45 C. C. A. 604, that the lease constituted an entire contract, and that the consideration recited, being one dollar, supported not only the grant of the two-year term but as well the privilege of extending the time for drilling by paying the stipulated price therefor. (To much the same effect see Brown et al. v. Fowler et al., 65 Ohio St. 507, 63 N. E. 76; Gas Co. v. Eckert, 70 Ohio St. 127, 71 N. E. 281. See, also, 1 Bouv. Law Dic. 406; 6 A. & E. Encycl. of L. 694-696.)
There is no provision in this lease which is not a legal subject of contract, and there is no suggestion of fraud or bad faith in the transaction. Considered as an option, it was bought and sold for a valuable consideration, and the purchaser is entitled to what it bought. Assuming, as they allege, that it would be of considerable advantage' to the sellers to annul their contract, this constitutes no legal justification for so doing. Were this recognized as a sufficient ground for avoiding contracts it would revolutionize the business world.
The petition did not state facts sufficient to constitute a cause of action, and the agreed facts did not justify the judgment, which is reversed, and the case is remanded, with instructions to render judgment for the defendant.
Johnston, C. J., Greene, Mason, Porter, Graves, JJ., concurring. | [
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THe opinion of the court was delivered by
Mason, J.:
The First National Bank of Chicago obtained a personal judgment against Mary E. Weaver, upon an indebtedness which originated in 1905, and caused an execution to be levied upon real estate. She brought a suit to enjoin its sale, claiming that it was exempt, and being denied relief prosecutes error. The property was at one time the homestead of the plaintiff in error and her husband — he having the legal title to one of the lots of which it was composed, she that of the other. During their married life he executed and recorded a deed to her of the lot standing in his name. In his will, however, he treated both lots as belonging to him, devising a life-interest therein to his wife and the remainder to their children. He died in 1881. Mrs. Weaver elected to take under the will and continued to occupy the property with the children, all of whom finally became of age and moved away, leaving her in its sole occupancy, this being the situation when the judgment was rendered and the execution levied.
From this statement it is clear that Mrs. Weaver held the property free from any claim that might be made by a creditor of her husband. Such is the doctrine announced in Cross v. Benson, 68 Kan. 495, 75 Pac. 558, 64 L. R. A. 560, with which the court is entirely satisfied — a doctrine derived from the words of the constitution itself, without the aid of any broadening statute. But whether it could be levied upon for the satisfaction of her own debt is a very different question. In volume 21 of the Cyclopedia of Law and Procedure, at page 578, it is said, principally upon the authority of Keyes v. Cyrus, 100 Cal. 322, 34 Pac. 722, 38 Am. St. Rep. 296:
“Where a homestead has vested in the surviving husband or wife it is not only exempt from the debts of the deceased spouse, but also from the debts of the survivor, whether the latter obligations were incurred prior or subsequent to the death.”
The California statute construed in the case cited provided for the setting apart to the widow of a homestead out of the estate of her deceased husband, but did not in terms make it exempt from liability for her debts. The court, however, held, disapproving on this point Estate of David Walley, 11 Nev. 260, that a legislative purpose to create such exemption should be inferred, saying:
“The manifest object of the section is the support of the family, and to make provision for their support and maintenance. These demands of the family are deemed superior to those of heirs or creditors. . . . A homestead may be set apart to the widow, even though the estate be insolvent, and the property so set apart constitute the entire estate of the decedent; but if the homestead thus set apart to her could be immediately taken in execution by one of her creditors it would fail to be available for her use or support, and it might happen that her creditor would fare better' than a creditor of the decedent whose money had perhaps been used to purchase the very property so set apart.” (Page 326.)
The substance of this argument can be applied with plausibility to our own constitution, which reads: “A homestead . . . occupied as a residence by the family of the owner . . . shall be exempted from forced sale under any process of law.” (Gen. Stat. 1901, § 235.) It surely requires no undue straining of the rule that homestead laws are to be liberally construed to promote their beneficent purpose to say that the framers of this provision never intended that property withheld from the husband’s creditors for the benefit of his widow might yet be seized upon to satisfy debts which she had made. Whenever circumstances exist, therefore, that enable the widow to invoke the aid of the law at all, it would seem that she should be protected even against process founded upon her own obligations. It must be confessed, however, that this proposition is in irreconcilable conflict with the principle declared in Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529. The precise matter there decided was, as expressed in the syllabus, that “a homestead claimant whose wife is dead, and whose children have grown to maturity and moved away and ceased their dependence on him and no longer constitute part of his family, no one else being associated with him in the family relation, cannot continue to retain the homestead exemption.” The reasoning upon which this conclusion was based is exhibited by this excerpt from the opinion:
“The constitutional exemption is for the benefit of the family, and if there be no family there can be no exemption. The broader terms of the statute may sometimes extend the exemption to a single person, as was shown in Shirack v. Shirack [44 Kan. 653, 24 Pac. 1107], but the constitution limits the exemption right to families. The word ‘family’ denotes a collective and communal body, and not a single individual. No one can be his own family. There is no more reason for continuing the homestead exemption to .a sole adult survivor of the family than there would be to confer it on him in the first instance. The latter, we know, has not been done, and before it can be said that the former has been done some warrant must be found in the law for saying it. We know that constitutions and statutes allowing exemptions are liberally construed in favor of exemption claimants, but, nevertheless, the spirit and intent of the exemption privilege must be found in the words of the exemption grant, looked at in the light of its object, and not utterly beyond such words, or in opposition to them. The homestead interest is not an estate in land. It has been sometimes spoken of in loose and inaccurate speech as an estate, but only to characterize it as a right secured by law. It is an exemption of land under stated conditions. If the conditions do not exist, or having once existed are at an end, the exemption ceases. The views above expressed are in harmony with the rule which the text-writers have collected out of the various decisions. (Waples, Horn. & Exem. ch. 3, subtitle, ‘Claiming after Loss of Family.’)” (Page 185.)
As already stated, adherence to the view thus expressed must be fatal to the contention of the plaintiff in error. It cannot be said here, as it was in Cross v. Benson, 68 Kan. 495, 75 Pac. 558, 64 L. R. A. 560, that the widow was herself “the family of the owner” (syllabus), in the sense in which the expression' was there used. The legal title appears to have been in her at the time of her husband’s death. But aside from that consideration, where the property is sought to be taken to satisfy her debt, she must be deemed to be herself the owner. The question therefore is fairly presented here, as it was in Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529, whether the exemption which has once attached to property in consequence of its being occupied as a residence by the family of the owner continues for the benefit of one spouse after' the death of the other and the dispersion of the rest of the household. The court is of course always reluctant to treat as still open a question which it has once definitely passed upon. But in matters involving the interpretation of the constitution it is usual and proper to give less force to the doctrine of stare decisis than in other cases. One reason for this is thus stated in volume 26 of the American and English Encyclopædia of Law, at page 162:
“A reason advanced to support this distinction between decisions construing statutes and those construing the constitution is that if the people are dissatisfied with the construction of a statute the frequently recurring sessions of the legislature afford easy opportunity to repeal, alter, or modify the statute, while the constitution is organic, intended to be enduring until changed conditions of society demand more stringent or less restrictive regulations, and if a decision construes the constitution in a manner not acceptable to the people the opportunity of changing the organic law is remote.”
Doubtless substantial justice may often be better promoted by adhering to an erroneous decision than by. overthrowing a rule once established. But in so important a matter as the enforcement of the homestead rights guaranteed by the constitution the court feels an obligation to reexamine a difficult and doubtful question in the aspect of any new light that may be offered. Moreover, Ellinger v. Thomas is of comparatively recent announcement. It has not been acted upon as a precedent in this court. And the strictness of its doctrine was so commented upon in Cross v. Benson, supra, as to suggest that it might require later modification, although it was then said that “no former decision need now be overturned.” (Page 509.) These considerations are thought to justify further investigation of the question stated.
In the work cited in Ellinger v. Thomas (Waples, Hom. & Exem.) the author gives strong expression to the view that a homestead right can never survive for the benefit of a single «member of the family, more, however, as his own judgment of what is sound law than as a deduction made from the decisions. It is true that he undertakes to distinguish some of the cases having a contrary tendency upon the ground that they turn upon special statutes, but others he condemns as being unsound in principle. That his own final conclusions are based upon a broad consideration of the policy and scope of homestead laws generally appears from these extracts therefrom:
“3d. The homestead immunity is not to protect single persons, but families. It is not to protect the head of a. family in his individual capacity but as a member of the household which he represents. It is secondarily for the family’s stability — primarily for the good of the state. So, when the family is gone, the reason for allowing its late head to acquire this immunity is gone. . . . Take the family awáy, and what motive is left the state for interfering between debtor and creditor? If any, it certainly is not family conservation.
“4th. There is no more reason for assigning lost family as a ground for acquiring, than in assigning discontinued occupancy, forfeited title, or any formerly existing qualification of which the claimant might once have availed himself, but did not. The aged, widower, left alone in the world, needs to be sheltered — not more than the aged woman who has never had a family. Both may be proper objects of charity, but homestead laws are not charitable enactments — their beneficence being incidental. So, the argument that the ex-householder needs charity may be as plausibly applied to the impecunious spinster. Because he has had a wife and children, is his need necessarily greater than hers?” (Pages 99, 100.)
In section 70 of Thompson on Homesteads and Exemptions it is said:
“It is thus seen that the existence of a family is necessary to the acquisition of the homestead right in nearly all the states. Does a continuation of the right depend on a continuation of the family relation? When the association of persons which constitutes the family is broken up, whether by separation or the death of some of its members, does the right of homestead continue in the remaining householder, provided the other requisites of the statute concur? Most of the cases ' answer this question in the negative.”
It is quite manifest that the last word is a clerical error and should be “affirmative,” for the cases cited in the note supporting the statement are those which sustain the claim of exemption. In the recent case of Palmer v. Sawyer, 74 Neb. 108, 103 N. W. 1088, the state of the law as exhibited by the adjudicated cases is well presented in these words:
“Turning now to the decisions of the courts of last resort in other states on statutes of somewhat similar construction to our own, we find an irreconcilable conflict in the various conclusions reached. This conflict in some instances is traceable to the different provisions of the statutes construed, and in other instances to the conception taken by the court of the- intention of the legislature in the enactment of the statute. Those courts which look upon the statute as a statute of nurture, intended solely for the protection of the dependent members of the family from the improvidence of the head of the family, without any division arrive at the conclusion that, when the homestead has been selected and the dependent members of the family for whose benefit it was created have ceased to occupy, the protection of the homestead ceases, because the reason for the protection has ceased. The leading cases supporting this theory of construction are: Revalk v. Kraemer, 8 Cal. 66, 68 Am. Dec. 304; Santa Cruz Bank v. Cooper, 56 Cal. 339; Johnson v. Little, 90 Ga. 781, 17 S. E. 294; Cooper v. Cooper, 24 Ohio St. 488; Galligar v. Payne, 34 La. Ann. 1057; Hill v. Franklin, 54 Miss. 632; Fullerton v. Sherrill, 114 Iowa, 511, 87 N. W. 419. In opposition to this view is another line of decisions based on the hypothesis that the intention of the legislature in enacting the various homestead statutes was to protect the home and all its inmates from any business misfortune and financial adversity that might befall them; that the protection extends to the head of the family as well as to the dependent members. This theory leads to the conclusion that, when a homestead has been selected by the head of a family, he becomes invested with a right or estate in such homestead, which cannot be defeated by the death or abandonment of the home by the other members of the family who occupied it the time of its selection. The following are some of the leading cases supporting this view: Silloway v. Brown, 12 Allen (Mass.), 30; Kimbrel v. Willis, 97 Ill. 494; Stanley v. Snyder, 43 Ark. 429; Beckmann v. Meyer, 75 Mo. 333; Webb v. Cowley, 5 Lea (Tenn.), 722; Blum v. Gaines, 57 Tex. 119; Stults v. Sale. 92 Ky. 5, 17 S. W. 148, 13 L. R. A. 743, 36 Am. St. Rep. 575.” (Page 113.)
While this classification shows nearly an equal division among the jurisdictions from which cases are cited, such preponderance as there is favors the exemption. The Nebraska court, moreover, aligned itself with the majority. And the following decisions from other states may be added to the list: Pardo v. Bittorf, 48 Mich. 275, 12 N. W. 164; Barney v. Leeds, 51 N. H. 253; Wilkinson v. Merrill and als., 87 Va. 513, 12 S. E. 1015, 11 L. R. A. 632, overruling Calhoun v. Williams, 32 Grat. (Va.) 18, 34 Am. Rep. 759; Towne et al. v. Rumsey, 5 Wyo. 11, 35 Pac. 1025. (See, also, Moore v. Parker, 13 S. C. 486, and In re Feas’s Estate, 30 Wash. 51, 70 Pac. 270.) The cases of Pierce v. Kusic, 56 Vt. 418, and Myers v. Ford and others, 22 Wis. 139, are sometimes cited as authorities upon this side of the question, but they have no real bearing on the matter, for they are based upon statutes under which the existence of a family was not necessary to the inception of the homestead right.
On the other hand the following should be added to the leading cases supporting the minority view: Herrin et al. v. Brown, Sheriff, et al., 44 Fla. 782, 33 South. 522, 103 Am. St. Rep. 182; Jones v. McCrary, 123 Ga. 282, 51 S. E. 349 (as being perhaps more closely in point than the Georgia case cited by the Nebraska court); Betts et al. v. Mills, 8 Okla. 351, 58 Pac. 957.
It would be impracticable within the space reasonably to be allotted to the consideration of a question of this character to attempt to review in detail the cases cited, or to discuss how far they are affected by differences in local statutes. It is true that there is much diversity in the legislation of the different states, but it is equally true that the same general policy runs through all of it. Such examination as it has been’ practicable to make leads to a belief that the difference in numerical strength between the two lines of authorities is really as great as it appears to be from the summary given. While some of those marshaled with the majority should perhaps be rejected from the computation for special reasons, several among the minor ity are equally inconclusive. The question of course is not one to be determined by a roll-call of the courts that, have passed upon it; but with respect to a matter that is of equal importance and interest in every state of the Union having homestead exemption laws it is of especial interest to observe the rulings that have been made in different jurisdictions. The reasoning in support of what it is fair to call the majority doctrine is illustrated by these extracts from typical cases:
“Although a homestead estate cannot be acquired except by a householder having a family, yet when once acquired, and still occupied by him, it has been held not to be defeated or lost by the death or absence of his wife and children. Doyle v. Coburn, 6 Allen, 73. Any other construction would render a husband who had been deprived of his family by accident or disease, or by their desertion, without any fault of his, liable to be instantly turned out of his homestead by his creditors.” (Silloway v. Brown, 94 Mass. 30, 34.)
“Upon all these considerations, we are inclined to the opinion that the tenant has not lost his right of homestead by the death of his wife and the dispersion of his children; that he is still entitled to the shelter of a home, exempt from the claims of creditors; that there is nothing in the act (to adopt the language of the tenant’s counsel) which requires the harsh interpretation that he shall lose his homestead merely because of the death of his wife, which was the act of God, and which. the tenant could not prevent.
“We may conceive the case of a poor debtor, entitled to, acquiring, and enjoying a homestead during all the years of a long and laborious life. His children have grown to man’s estate and have all departed from the paternal roof, it may be to distant lands, where they have established their own homes and surrounded themselves with their own families; it'may be that they have all died. At last the wife dies, and the father is left alone in the dwelling which he has always called his home, and which is endeared to him by fondest associations and by sacred memories. He is too old and feeble to acquire another. Shall he be turned out of the old homestead because of the inevitable fate which has deprived him of his wife?
“Or, we may take the case of. the young man. who by habits of industry and frugality has acquired just enough property to purchase a shelter for himself and the young wife who is to share it with him. No child is born to them, and in a few weeks, or months it may be, the wife dies, and the yourig man is no longer, in strict construction, the head of the family. Shall he, too, therefore, be deprived of his homestead, and so, perhaps, of the opportunity of marrying again and adopting other members of his household?
“Such a construction is not required by the terms of the act. Such a construction would be strict, exclusive, harsh,, unjust, illiberal, and subversive of the ‘humane policy of the law.’ ” (Barney v. Leeds, 51 N. H. 253, 277.)
“The appeal raises this question: The existence of a family being necessary to the acquisition of a homestead, does a continuation of the right depend on a continuation of the family relation? The decided weight of authority is that a homestead estate, when once acquired and still occupied by the owner, is not defeated or lost by the death of his wife or the arrival of his children at years of maturity. . . . The reason assigned is not very satisfactory, or, at most, is one to be addressed to the political departments of the government. So that the decision seems to savor of what Jeremy Bentham calls judge-made law. Yet it has been generally followed. . . . The constitution, which contains our homestead statute, has not in express terms anticipated and provided for every possible phase of the question. It therefore devolves upon the courts to construe and apply the law to new cases_ as they arise. Interpreting the law according to its spirit and following the current adjudications, we hold, though with some hesitation, that when the association of persons, which constitute the family, is broken up, whether by separation or the death- of some of the members, the right of homestead continues in the former head of the family, provided he still resides at his old home.” (Stanley et al. v. Snyder et al., 43 Ark. 429, 432, 433.)
“The householder or head of [a] family is himself a part of the household — a part of the family. The exemption is, however, not only for the benefit of the family, but for his benefit also. Having been set apart for his benefit, and also for the benefit of his family, it would be an illiberal construction of this provision of the .constitution to hold that, if he survived the other members of his family, this provision would no longer shield him against his creditors, but cease and determine, and at the end of a long life, it may be devoted to his family, that he should be uncovered and exposed to the creditors and the debts which had been accumulating during the years that he had been devoting his life and this property to the maintenance of his family. This humane provision, which this court has so often declared to be a shield, would be thus forged into a sword suspended for a time over his head. by a thread as slender as the tenure of life of a little child. ... If we are to construe this constitutional provision liberally, so that all the intents thereof may be fully and perfectly carried out, we must not disregard the benefits provided for the householder, and consider only the benefits provided for the other members of his family. It appears to us to be the just and proper construction of this provision to hold that, having once been established by law, it [the homestead exemption] continues at least as long as the householder shall continue to live and occupy the domicil provided for the benefit of himself and his family. To hold otherwise would be to hold that the constitutional provision for his benefit was of no effect, but exclusively for the benefit of the other members of his family.” (Wilkinson v. Merrill and als., 87 Va. 513, 518, 12 S. E. 1015, 11 L. R. A. 632.)
“There is something repugnant in the proposition that to the sorrow of losing his family should be added the misfortune that his home should be taken from him by forced sale; and that, too, for a debt for the payment of which it was not believed, either by himself or the creditor, at the time of its creation, that the homestead would be liable, and for the security of which it did not enter as an element of credit.” (Blum v. Gaines, 57 Tex. 119, 123.)
“It seems to be settled, on general principles, that a homestead once acquired by the head of a family will not be defeated or lost by the death or absence of his wife and children, if he continues to occupy it. Any other construction would render a husband who has been deprived of his family by accident or disease, or by their desertion without any fault of his, liable to be instantly turned out of his homestead by his creditors.” (Beckmann v. Meyer, 75 Mo. 333, 335.)
“There is much force in the observation that the homestead act has respect to the family of the debtor, is for its benefit, to secure a home for the family, and that in any case where this family relation is not found to exist the homestead exemption does not subsist, there being no reason or cause for the application of the homestead law. This is very true as to the coming into existence of the homestead estate, and although the prime object of the statute be the securing of a home for the family, and for the benefit of the family as such, the second "section of the statute shows that not to be the sole purpose throughout. That section provides that upon the death of the original owner of' the homestead the homestead exemption shall continue after the death for the benefit of the husband or wife surviving, so long as he or she continues to occupy the homestead. It is not so long as he or she also remains a householder having a family, but simply so long as he or she continues to occupy the homestead, entirely irrespective of the condition of being a householder having a family. There may be no surviving child and no family, ■ still the homestead exemption is continued to the surviving wife or husband, so long as she or he continues to occupy the homestead. If, then, the homestead exemption may continue in such surviving husband or wife so long as he or she continues to occupy the homestead, without the condition of being a householder having a family, why, in the case of the original owner of the homestead before his death, after the homestead estate has once become vested in him, should not the homestead exemption continue for him so long as he occupies the homestead premises, although he may have ceased to be a householder having a family? Why should not the statute in this respect regard him, the original owner, ■ the meritorious cause of the homestead exemption, with equal favor as the survivor of such an one after his death ? We are of opinion that it does, and that within the spirit of this second section, and the fair intent of the homestead act, taken together, the homestead exemption continued here after plaintiff had ceased to be a householder having a family; that after the homestead estate has once been acquired, under the statute, it continues in the original owner so long as he occupies the homestead premises,- although he may have ceased to be a householder having a family, and will only become extinguished in some one of the modes mentioned in the statute, of which ceasing to be a householder having a family is not one. This rendering of the statute would be in accord with the liberal interpretation which this court has always given to the homestead law.” (Kimbrel v. Willis, 97 Ill. 494, 496.)
“Undoubtedly the having of a family was necessary to the creation of the right in him, but is it necessary to the continuance of it ? While essential to its coming into existence, yet, when it has once vested in the debtor, does he lose it by death or the marriage of his children, leaving him alone, but still a housekeeper in the occupancy of the property? The statute makes no express mention in this respect. We must, therefore, look to its general scope and spirit for guidance, the right being the creature of it.” (Stwlts v. Sale, 92 Ky. 5, 7, 17 S. W. 148.)
The statutes the construing of which gave rise to these expressions, however much they may otherwise differ from the homestead provision of the Kansas constitution, manifestly have this in common with it: they do not in terms declare that the homestead exemption shall survive the dissolution of the family. The same considerations that impelled the court in each of the cases cited to read such declaration into the law are operative here. The substance of the arguments by which such interpretation has been justified is applicable here. In spite of the assertion sometimes made that one whose wife and children have died stands in all respects in the same position as one who has never .been the head of a family, the policy of the homestead law affords ground for a distinction, which may be given effect without doing violence to the language of the constitution. The right to the exemption cannot originate without the existence of a family— of a household consisting of more than one person. But when the homestead character has once attached and the head of the family remains in continuous oc cupancy of the property, doing nothing on his own part and suffering nothing within his control to be done that might affect his relation to it, in a sense it is still “occupied as a residence by the family, of the owner,” although death may have removed every other person interested in its exemption; it is occupied as a residence by a constituent part of the family, and by all of the family that survives.
It having already been determined in Cross v. Benson, 68 Kan. 495, 75 Pac. 558, 64 L. R. A. 560, that in virtue of the constitutional provision the widow, although living alone, may claim the homestead exemption against debts made by her husband, only by an unwarranted strictness- of construction and nicety of discrimination could a like exemption be denied to the husband, or to the wife with respect to her own debts, whatever may have been the condition of the legal title during their married life — whether held by either or by both. The tendency to grant to, one spouse the same privileges that are secured to the other, and to ignore distinctions based upon the condition of the legal title during their married life, is illustrated by this language from Stults v. Sale, 92 Ky. 5, 17 S. W. 148:
“It is urged with force that the homestead exemption is for the benefit of the family, and, therefore, where this family relation does not exist there is no homestead exemption. In other words, the reason for the rule ceasing, the rule ceases. This is true as to the coming into existence of the homestead right; and it is no doubt also true that the primary object of the statute was the protection of families from want, and the giving to them a shelter; yet the fact that the statute gives the homestead of the deceased wife to the husband during his occupancy of it, although he has no family, shows that it was not intended to provide for the wife and children alone. He, in such a case, does not become homeless. Can it well be supposed that the legislature intended that in the evént of the death of the wife owning the homestead the benefit of it should continue to the husband during his occupancy, although he has no family, and yet that if he be the owner of it, and his wife or children die, or the latter marry and leave him, his right to the exemption ceases? If - so, it is a singular state of case; and if so, it is equally true of the wife, where she owns the homestead. In the event of the husband’s death owning the homestead, she takes it as survivor so long as she occupies it, although she has no family; but if she owns it, and her husband dies, there being no longer any family, her homestead right ceases. Why should not the original owner have a right equal to the survivor, and why should not the law favor the latter equally at least with the former? Is the party to be worsted because he owns the property? Can any reason be given why the same right should not exist as to his qwn property as is given to him in his wife’s property after her death? Ought not his claim fco a homestead in his own property, as against his own creditors, to be as much regarded as his claim to one in her property after her death? The construction here contended for by the creditor should not be given to a statute which was enacted from a spirit of liberality toward the debtor.” (Page 7.)
The same attitude is shown in Eubank & Co. v. Landram, 59 Tex. 247, where it was said:
“The constitution provides that the homestead ‘shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead.’ In other words, the constitution protects the surviving husband or wife in their right to the homestead, whether as against the heirs of the deceased or the creditors of the survivor, so long as such survivor occupies the homestead as such. And this exemption does not depend upon the title being in the survivor at the time of the death of the other marital partner. Whether the title to the property be vested in the community, or be the separate property of the deceased or the survivor, is immaterial; so long as the survivor continues to occupy the homestead as such it is neither subject to execution nor partition among the heirs of the deceased marital partner.” (Page 248.)
This court is convinced that in Ellinger v. Thomas, supra, too strict a rule of construction was adopted; that a more liberal interpretation, resulting in a different conclusion, would have been more in harmony with the constant effort shown in other jurisdictions and in other cases in this jurisdiction to ascertain and give effect to the spirit of homestead. enactments in the-light of the broad general purposes they are designed to accomplish; that it is better to disapprove the doctrine there announced than to strive to retain it as a portion of a system with other parts of which it is in essential conflict. That decision is therefore overruled.
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The opinion of the court was delivered by
Smith, J.:
The only question necessary to be considered in this case is whether the omission of the clerk to affix his seal to the order of sale renders all the subsequent proceedings void and subjects them to collateral attack, or whether the subsequent proceedings were only voidable, and were so far at least validated by the order of the court confirming the sale as to render them invulnerable to a collateral attack. We hold the latter view.
That the sale was at least voidable at the time and before the confirmation thereof must be fully admitted. The court'which made the order of foreclosure and sale, in the absence of any allegation in the petition to the contrary, must be assumed to have had personal jurisdiction of Carter as well as jurisdiction of the subject-matter. In other words, Carter was in court, or, which is the same in effect, had the opportunity to be in court, not only when the order of sale was made but when the motion to confirm the sale was presented. Upon the hearing of the application to confirm the sale the question before the court was, Are the proceedings regular and in conformity with law and equity? (Gen. Stat. 1901, § 4952.)
The order confirming the sale and directing the sheriff to make a deed was an adjudication of all the facts involved in the inquiry, one of which was the issuance of a. legal order of sale. In case of a decision adverse to his interest all legal methods of correcting the error were open to him. Should he, then, be allowed to ignore the proceedings of the court, and, years afterward, in a collateral attack, to assert that a fact upon which the order of confirmation was based is false? If the order of confirmation was an adjudication that all the proceedings, including the issuance of the order of sale, were regular and in conformity with law, he cannot in this action be heard to dispute it. In the opinion in an analogous case, Cross v. Knox, 32 Kan. 725, 5 Pac. 38, it was said:
“The act of the clerk in issuing the order, and the acts of the sheriff under it, were ministerial, and might have been reached by motion to vacate or set aside; but the order of the court confirming the sale was a judicial act, and is such a final order as can only be.reached, and if erroneous, corrected, by proceedings in error. . . . We incline to .the opinion (but do not decide the question) that a confirmation of the proceedings of a sheriff under an order of sale is a judicial determination, that establishes the legality of the order of sale as well as the legality of the sale made under it.” (Page 734.)
That the order of sale is a process of the court and should be authenticated by the seal thereof is unquestionable, but in this case, while called the order of sale, it was not the real order of sale; it, in effect, only communicated to the sheriff the order theretofore made by the court, which was the primary authority of the sheriff to sell the land.
This was not an execution sale, in the proper sense of the term, but was a judicial sale. The distinction is illuminated at length in Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, 100 Am. St. Rep. 459. An excerpt from a quotation therein made, with approval, from section 1 of Freeman on Void Judicial Sales, epitomizes the distinction:
“The chief differences between execution and judicial sales are these: The former are based on a general judgment for so much money, the latter on an order to sell specific property; the former are conducted by an officer of the law in pursuance of the directions of a statute, the latter are made by the agent of a court in pursuance of the directions of the court; in the former the sheriff is the vendor, in the latter, the court; in the former the sale is usually complete when the property is struck off to the highest bidder, in the latter it must be reported to and approved by the court.”
At common law if, at an execution sale, the sheriff or officer authorized to make the sale conformed to the established regulations, the sale was final and valid as soon as made, and confirmation was only required in chancery cases, which are, of course, judicial sales. (Rorer, Jud. Sales, 2d ed., §§ 9, 16; also, note 4, p. 6.) Under our own statutes, however, all sales of real estate, either on execution or on order of sale, must be confirmed by the court before a deed is issued. (Gen. Stat. 1901, § 4952.)
If the writ in question had been one to bring the defendant into court, or one upon which the jurisdiction of the court in any way depended, the omission of the seal would have been fatal and the jurisdiction of the court would not have attached. If the sale had been attacked on the motion to confirm, as in Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341, it should, according to the decision in that case, although there is much authority to the contrary, have been set aside. That was a direct attack. In this case the attack is collateral, and herein lies the distinction. Expressions are used in the opinion in Stouffer v. Harlan, 68 Kan. 135, 137, 74 Pac. 610, 64 L. R. A. 320, 104 Am. St. Rep. 396, where the order of sale was not authenticated by the seal of the court, to the effect that the order of sale and all the proceedings under it were thereby rendered null and void.' The case, however, did not depend upon this question, but upon the rights of the mortgagee in possession. The remarks were therefore obiter dicta.
The law favors the stability of judgments; and, to maintain the judgment of a court having jurisdiction of the subject-matter involved and of the parties to an action, it is to be presumed from a general finding or judgment-in favor of one party that every fact involved 'in the action and necessary to support the judgment was found in favor of the prevailing party. (Bixby v. Bailey, 11 Kan. 359; Knaggs v. Mastin, 9 Kan. 532; Winstead v. Standeford, 21 Kan. 270.) Where a court has jurisdiction over the subject-matter of an action and over the parties in the case, no error in its exercise can render the judgment void. (Burke v. Wheat, 22 Kan. 722; Meixell v. Kirkpatrick, 28 Kan. 315; Sweet v. Ward, 43 Kan. 695, 23 Pac. 941; Bank of Santa Fe v. Haskell County Bank, 51 Kan. 50, 32 Pac. 627.) In such a case, even if a court decides a fact upon which its jurisdiction depends contrary to the real truth, its judgment based on such jurisdiction is not void, but is only erroneous. (In re Wallace, 75 Kan. 432, 89 Pac. 687; Ayres v. Deering, ante, p. 149.)
Under these authorities the allegation of the petition that the court confirmed the sale in question really admits that the court found that the order of sale was authenticated by the seal of the clerk, as this is a fact' necessarily embraced in the general finding required by section 4952 of the General Statutes of 1901, that, “the proceedings [are] regular and in conformity with law and equity,’-’ without which finding the court had no authority to confirm the sale. True, the petition says this is not the real fact. Assuming, as-we must, the truth of all the allegations of the petition, it follows that the adjudication confirming the sale was erroneous, but it was not void, even though the order of sale was void.
Bearing in mind the distinction in Norton v. Reardon, 67 Kan. 302, 72 Pac. 861, 100 Am. St. Rep. 459, between ministerial and judicial sales, in the former of which the sale is consummated by the sheriff by authority of the law and in the latter by the court through the agency of the sheriff, it would not be without the support of authority, probably the greater weight of authority, to say that even though the court examined the order of sale, as perhaps it should be presumed to have done, and hence knew that it was unauthenticated by the seal, the court, by confirming the sale, cured the defect. The most that is claimed in the petition is that the sheriff, in making the sale, acted without legal authority. It is not claimed that the court was without jurisdiction or authority. Now, if the sale was really made by the court through its agent, the sheriff, and upon the application to confirm the sale the court found there was no fraud or collusion in the sale itself, and that all the proceedings were regular and in conformity with law and equity, except that technically the sheriff had no authority to proceed to execute the mandate, could not the court, and did it not, by confirming the sale, ratify the unauthorized act of its agent and thus give it validity? The authorities on this question, pro and con, are collated in a note covering several pages, at the foot of Watson v. Tromble, 29 Am. St. Rep. 495. (See, also, 17 A. & E. Encycl. of L. 993; Robertson v. Smith, 94 Va. 250, 26 S. E. 579, 64 Am. St. Rep. 723 and note; 24 Cyc. 36.)
The weight of authority seems to be that in the absence of fraud or circumstances that might affect substantial rights the court may cure by confirmation any infirmity in the proceedings which it could correct by immediately ordering a new sale. This seems to accord with reason. The plaintiff here had. opportunity to know, at the time of the confirmation, the fact upon which he seeks to have the whole proceedings adjudged void. He may not then have desired to take advantage of it. The lapse of about fifteen years may have augmented the value of the property and effected a change in his mind. If this be the situation, he is entitled to little equitable consideration, but he should prevail, if at all, because the law entitles him to what he asks.
It seems well established that whether a sale shall be confirmed or set aside is largely a matter of judicial discretion; that the determination thereof is a judicial decision, final unless corrected by appeal or unless wholly void; that the fact upon which the alleged infirmity is based was determined by the court in'confirming the sale, and even if the fact were erroneously determined the final order of confirmation is not therefore void.
It follows that the demurrer to the petition was properly sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
On May 28, 1904, D. F. Smith presented a petition to the board of county commissioners of Morris county asking that a private road be established upon the premises of John H. Dent. On October 5,1904, the petition was allowed and viewers were appointed to view the road and assess the damages which might be occasioned thereby. Dent appeared before the viewers and presented a claim for damages, but made no objection to the road. Afterward the report of the viewers was examined by the board of county commissioners and approved. Dent appeared before the county commissioners and contested the amount of damages allowed, but made no contention as to the power of the board to establish the road. The damages awarded were deposited by Sihith with the county clerk.
The proceedings were had under chapter 112 of the Laws of 1874. No proceedings were taken by appeal or otherwise to reverse, vacate or modify the order of the board. On June 11, 1904, in the case of Clark v. Mitchell County, 69 Kan. 542, 77 Pac. 284, 66 L. R. A. 965, it was decided that this act was unconstitutional and void.
On December 16, 1904, Dent began this suit to enjoin Smith from opening the road, and obtained a temporary restraining order. A demurrer to the petition was overruled, and the defendant filed an answer, April 26, 1905, which recited the facts as hereinbefore stated. No reply was filed by the plaintiff, and a motion’ by the defendant for judgment on the pleadings was allowed. This ruling of the court is assigned as error.
The defendant concedes the unconstitutionality of the law under which the board of county commissioners acted, and admits that the plaintiff might have successfully opposed such action by making timely objection thereto, but contends that- his presentation of a claim for damages to the viewers without affirmatively objecting to the location of the road, the prosecution of such claim before the board of county commissioners, the failure to appeal from the order establishing the road, whereby it became final, coupled with the payment to the county clerk by the defendant of the damages awarded, estops the plaintiff from asserting the invalidity of the proceedings. Whether this position of the defendant is correct constitutes the sole question presented to this court.
We are unable to find the elements of an estoppel in these facts. Before a person can sustain the plea of estoppel against another he must have relied upon and been injured by the facts pleaded. (16 Cyc. 742, 761, 770, 775; 11 A. & E. Encycl. of L. 436, 439; Chellis v. Coble, 37 Kan. 558, 15 Pac. 505; Clarke v. Coolidge, 8 Kan. 189.) In this case the defendant attempted by legal proceedings to compel the plaintiff to surrender to him real estate for a private roadway. To accomplish this purpose he relied upon the legal force of the statute under which the proceedings were instituted, and not upon anything which the plaintiff did or omitted to do. These proceedings were had some four months after the publication of a decision declaring the statute to be void. This decision was, no doubt, unknown to each of the parties concerned, which explains why the defendant attempted.to take the land and why the plaintiff claimed damages instead of contesting the law. It does not appear that the plaintiff by his conduct intended to deceive.or mislead the defendant, or that the defendant was misled or prejudiced thereby. The defendant has lost nothing; his money is still in the hands of the county clerk, where he placed it, subject to his order.
The law being void, all. the proceedings thereunder are also void; and, there being no estoppel, the order of the court giving judgment to the defendant on the pleadings was erroneous. The judgment is reversed, with directions to deny the defendant’s motion and enter judgment for the plaintiff, unless the answer is amended so as to present a valid defense. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff, alleging himself to be an employee of the defendant, recovered damages for personal injuries sustained through the carelessness of a coemployee whom it was charged the defendant had been negligent in selecting.
The plaintiff had been in railroad service ever since he was eighteen years old, beginning as baggage master about the year 1875. After four or five years he became a freight conductor, and then became a passenger conductor. At the time of his injury he was the conductor of a construction train operated by a construction company engaged in building the defendant’s railroad. In the absence of one of his brakemen the plaintiff was also acting in the capacity of brakeman. On April 25, 1903, while working in the yards at Carmen, Okla., he directed a flying switch to be made to change the engine from the south end to the north end of a string of cars. He was riding the disconnected cars toward the south, intending to stop them just beyond a switch. The engineer followed them down at a rapid rate of speed, struck them before the switch was reached, coupled to them, and then stopped with such violence that the plaintiff was thrown from his position on the top of a ear to the ground, where he struck on his head. When the flying switch was executed there was a water-car, called a “pioneer car,” and a box car in front of the engine. The brakeman who threw the switch rode on the ladder of the box car as the engine proceeded toward the south, and in violation of his duty neglected to give the proper signal in time to prevent a collision. When it was too late he gave a signal which caused the engineer to stop with a shock, after the coupling had been made. The defendant’s answer contained the following allegation :
“That at the time the plaintiff received said injuries of which he complains in said amended petition, and immediately prior thereto, he, said plaintiff, was guilty of contributory negligence whereby the said alleged injuries were caused and occasioned, and at said time the said plaintiff so placed himself upon the train and car, and so moved thereon, and remained in such position, when he knew, or by the exercise of ordinary care might have known, that upon the coupling of said cars the same would be jarred and suddenly moved, and while in said position, and so negligent, as aforesaid, and in disregard of all precautions on his part.for his own safety, the said plaintiff received the injuries aforesaid by reason of his negligence aforesaid, and at said time and place, while plaintiff was so engaged as brakeman upon said train and cars, he well knew, or by the exercise of ordinary care might have known, of each and all of the dangers and hazards incident to his employment as brakeman, the risk and. hazard thereof being by said plaintiff at the time of his said injuries, and prior thereto, assumed.”
It is clear that contributory negligence and assumption of risk are both pleaded. The plaintiff concedes that the defense of contributory negligence is interposed, but disputes that the other is made. If a separate paragraph had been , made beginning with the words “at said time and place, while plaintiff was so engaged,” there could be no doubt about the matter. As it is, the meaning is perfectly plain; and in the absence of a motion to make it more specific the answer sufficiently charged assumption of risk. Besides this, in instruction No. 11, not excepted to, the court told the jury the plaintiff assumed the ordinary risks of the negligent acts of his coemployees, and in in-, struction No. 15, not excepted to by the plaintiff, the court told the jury it was for them to determine from the evidence whether the plaintiff assumed the risk resulting in his alleged injuries. Therefore there can be no dispute that assumed risk was a litigated issue.
On the trial much evidence was introduced relating to the manner in which the brakeman, whose name was Mills, was in the habit of performing his duties, and much evidence relating to the plaintiff’s knowledge of his conduct. From the evidence the jury made the following special findings of fact:
“Ques. Was brakeman Mills in the habit of carelessly and negligently performing his duty as brakeman in and about the switching and coupling of cars, during the month of April, 1903 ? Ans. Yes.”
“Q. Was brakeman Mills grossly negligent in and about the discharge of his duties as brakeman in and about the shifting and coupling of the cars at the time and place in question, on the day plaintiff claims to have been injured? A. Yes.
“Q. If you answer ‘yes’ to the last above question, then did such negligence of brakeman Mills materially and proximately contribute to causing any of the injuries to plaintiff complained of by plaintiff? A. Yes.”'
“Q. Did not the plaintiff as conductor, Mills as brakeman, and Ballou as engineer, become members of the same crew in running the construction train before the plaintiff was injured? A. Yes.
“Q. Were not the plaintiff, Mills and Ballou members of the same crew from about the first of April, 1903, till the accident? A. Yes.”
“Q. Was not the movement of the train and switching of the cars during which Loosley was injured under his direction and control? A. Yes.
“Q. Did not the plaintiff participate in and assist in the movement of the cars and doing the switching in the manner in which it was done just prior to the accident? A. Yes.”
“Q. Had not the switching of cars by the construction crew, of which plaintiff was conductor, been done in a similar way on previous days before plaintiff was injured? A. Yes.”
“Q. Had not the plaintiff for about twenty-five days prior to the accident been in charge, as conductor, of the train crew wherein engineer Ballou and brakeman Mills were working? A. Yes.
“Q. During that time was it not his duty to observe the character of the work of engineer Ballou and brakeman Mills? A. Yes.”
“Q. Had not engineer Ballou and brakeman Mills been daily under conductor Loosley, the plaintiff, several days in April, 1903, immediately prior to the accident? A. Yes.”
“Q. Did not the plaintiff know at the time of the accident the character of the work that the engineer, Ballou, and the brakeman, Mills, had been doing? A. Yes.
“Q. Had not the plaintiff an opportunity to know and see the work of brakeman Mills for several days in April, 1903, prior to the accident in which plaintiff was injured? A. Yes.
“Q. Was not the work of brakeman Mills for several days prior to accident under the control of the plaintiff as conductor of the train? A. Yes.”
“Q. For how long a time before plaintiff was injured were the plaintiff, Mills and Ballou members of the same crew? A. Twenty or twenty-five days.”
“Q. Did the plaintiff ever make objection to the de-fendant, the Kansas City, Mexico & Orient Railway Company, prior to the accident, to the character of the work of engineer Ballou and brakeman Mills, or either of them? A. No.”
Upon a state of the evidence productive of these findings the defendant requested the following instruction :
“The court instructs the jury that if the plaintiff knew, or by the exercise of ordinary care might have known, that either the engineer, Ballou, or the brakeman, Mills, or either of them, were incompetent or habitually negligent, and after such knowledge, or after, by the exercise of ordinary care, he might have had such knowledge, he continued his work as conductor upon the construction train, or if he acted as brakeman in the place of one of the other brakemen temporarily absent, without having made objection as to such incompetency or habitual negligence of such' engineer and brakeman, or either of them, he will then be deemed to have assumed the risk of such incompetency or negligence of such engineer and brakeman, or either of them, and he therefore cannot recover for any injury resulting from such incompetency or habitual negligence.”
The request was refused; but, recognizing the necessity of not ignoring altogether the defense of assumed risk, the court inserted the two disconnected references to it discovered in the following prolix instruction :
“In determining as to whether or not the plaintiff may recover against the defendant, the Kansas City, Mexico & Orient Railway Company, you are instructed that it is for the jury alone to determine from the evidence in the case as to what injuries, if any, plaintiff received as claimed by him, and the extent of such injuries, if any, and as to what negligence, if any, the defendant railway, its servants, agents and employees, were guilty of, as charged by plaintiff, and as to whether plaintiff was or was not guilty of any negligence in the premises, or as to whether plaintiff assumed the risk resulting in any of the alleged injuries, and as to whether or not the said brakeman Mills and engineer Ballou, who are charged by plaintiff with the negligent acts which plaintiff claims resulted in his injury, were subject to the control of the defendant company at the time and place in question, and said train was being operated by said railway company; and if you determine that the plaintiff and said brakeman Mills and engineer Ballou were then and there subject to the control of the defendant railway company, and were guilty of the negligent acts charged at the time and place in question, it is for you then to further determine as to whether said brakeman Mills was, on said 25th day of April, 1903, and for some time prior thereto, an unfit, incompetent and unsafe person to be placed and retained in the position of brakeman, and if so, then as to whether the defendant railway company knew, or by the exercise of ordinary care on its part should have known of such unfitness and incompetency in time to have acted on such information and avoided the injury, if any, to plaintiff; and it is for you to determine as to whether plaintiff knew or should have known of such unfitness and incompetency of said Mills, if you find that he was unfit, and incompetent, or was guilty of contributory negligence contributing to the injury complained of, if any he received, and you are to determine as to whether the alleged negligence of said Mills, if he was negligent as charged, materially and directly contributed to plaintiff’s injury, if any he received; and you are instructed that all of these questions and all the issues and facts are to be determined by you from the evidence in the case; and if you determine all of the issues in favor of the plaintiff and against the said railway company, being guided by all the instructions herein, then your verdict should be against the railway company and in favor of the plaintiff in this action; otherwise it should be in favor of said railway company.”
The defendant claims the court erred in refusing its request. The plaintiff' argues that the instruction tendered was faulty and hence was properly refused. For present purposes it may be conceded that this is true. It may further be conceded that without a request the court was not obliged to instruct upon the matter involved. But if a defective request actually brings to the court’s notice an important principle of law which ought to be stated to enable the jury to render an intelligent verdict, it may be prejudicial error to disregard it; and if an attempt be made by an instruction to submit the subject defectively covered by the request to the consideration of the jury, it should be sufficiently explicit and comprehensive to cover fairly the field of the request. Manifestly the instruction given is no equivalent for the instruction asked. Indeed, so far does it come from containing an explication of assumed risk that, in its effect upon a jury unlearned in the law, it would more likely bewilder than enlighten. The question was one of the most important the case presented. It was vigorously contested. It is one the least understood by laymen. The effect upon the plaintiff’s right to recover of his voluntarily working without protest day after day for a long period of time with a man who was habitually negligent in the very matter which resulted in the casualty, whose work it was the plaintiff’s duty to observe and direct, and the character of which he knew, was clearly brought to the mind of the court. It was in fact dealt with, but inadequately and inconclusively, and in view of the character of the special findings returned the result was prejudicial to the defendant. Therefore, even upon the hypothesis that the requested instruction is inaccurate, the court erred.
The instruction requested, however, fairly states the law as it has long been established in this state. With the addition, justified by the decision in the case of U. P. Rly. Co. v. Monden, 50 Kan. 539, 31 Pac. 1002, that if an employee in the exercise of reasonable care ought to have known of the dangers of the service he will be held to the consequences of actual knowledge, the instruction is in full accord with the doctrine stated in the case of K. P. Rly. Co. v. Peavey, 34 Kan. 472, 8 Pac. 780. In that case the plaintiff was a yardman. An engineer of a switching-engine was in the habit of carelessly sending cars back too hard. On an occasion he did this and the yardman was injured in an attempt to make a coupling. Discussing the facts the court said :
“Peavey knew Ellis’s competency, capacity and habits; and he well knew them, for he himself had ample capacity and opportunity to judge. They had been coemployees together in the same yard for a long time. Also, Peavey himself had great experience as a railroad man.” (Page 480.)
As applicable to these facts the court announced the following rule of law:
“If an employee knows that another employee is incompetent, or habitually negligent, or that the materials with which he works are defective, and he continues his work without objection, and without being induced by his employer to believe that a change will be made, he will be deemed to have assumed the risk of such incompetency, negligence, or defects, and can not recover for an injury resulting therefrom.” (Page 479.)
It is the duty of the master to make the conditions of a servant’s work reasonably safe. One of the conditions is that the servant be furnished with reasonably careful coservants. But if the master does not perform this, duty the servant, with knowledge of the. facts and appreciation of the danger, may voluntarily accept the situation, and if he does so without complaint or promise of change the risk is assumed to the same extent as if it had originally entered into the contract of employment.
Here the plaintiff was an old railroad man whose duty during the greater part of his life had been to. oversee the work of brakemen. For twenty-five days he had observed, as it was his duty to observe, the conduct of this brakeman in reference to switching and coupling cars, and knew that the disregard of those precautions for the safety of others which an ordinary man would take was the characteristic form of his behavior. There is some evidence which might or might not be taken as a complaint to the superintendent of the construction company, but no evidence that any change was promised or hoped for. There is evidence that on the occasion of the conversation with the superintendent of the construction company the superintendent said that he believed the brakeman to be competent, but there was ample evidence to warrant the jury in finding, as thejr did, that the plaintiff knew him.to be incompetent. Therefore, before this injury occurred the conditions under which the plaintiff knew he would be obliged to work were established, with a brakeman who was habitually negligent forming a part of the master’s equipment. This being true, the principle to be applied is identical with that announced in the case of A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315, 27 Pac. 965, in which it was charged the master did not provide sufficient help. The syllabus reads as follows:
“While it is the duty of an employer, whether a railroad company or other corporation or person, to make the work of his or its employees as safe as is reasonably practicable, yet when the employee, with full knowledge of all the dangers incident to or connected with the employment as it is conducted, accepts the employment, or, having accepted the same, continues in it with such full knowledge, and without any promise on the part of the employer, or any reason to expect on the part of the employee, that the employment will be made less dangerous, the employee assumes all the risks and hazards of the employment.”
In Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582, the second paragraph of the syllabus states the law as follows:
“But where a railway is so constructed and a competent railroad man is employed to work in one of the company’s yards as yard switchman, and in such yard there are many switches and about twenty guard-rails, and the employee voluntarily and without complaint does switching in such yard every day for about two and one-half months, when he steps between the main rail and the guard-rail of one of the company’s railway tracks, and because thereof receives injury, held, that the condition of the railway tracks and the danger must have been known to the employee, and therefore that he assumed the risk.”
In the case of S. K. Rly. Co. v. Drake, 53 Kan. 1, 35 Pac. 825, the opinion reads.
“He rests his case wholly upon the failure of the company to furnish sufficient help. He was an experienced man, of full age, capable of judging what number of employees was necessary to safely do the work, and if there was an insufficient number he knew that as well as the company knew it. The work was simple, and the risks and dangers were obvious. Possessed of a knowledge of the men employed, the manner in which the work was to be done, and the hazards which it involved, he voluntarily accepted employment, and continued in the service of the company, and must be deemed to have assumed the risks incident to such service. We only follow in the path of authority in holding that an employee, by voluntarily remaining in the service, with full knowledge of the dangers of the service, assumes the risks of such dangers, and absolves the employer from liability for damages in case of injury.” (Page 7.)
The cases cited above and the following cases contain the principal and most illustrative decisions of this court upon the subject under consideration: McQueen v. C. B. U. P. Rld. Co., 30 Kan. 689, 1 Pac. 139; St. L., Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701, 711, 16 Pac. 146, 1 Am. St. Rep. 266; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138; U. P. Ely. Co. v. Monden, 50 Kan. 539, 540, 31 Pac. 1002; S. K. Rly. Co. v. Drake, 53 Kan. 1, 35 Pac. 825; Morbach v. Mining Co., 53 Kan. 731, 37 Pac. 122; A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343; Railway Co. v. Puckett, 62 Kan. 770, 64 Pac. 631; Lanyon v. Bell, 64 Kan. 739, 68 Pac. 609; Emporia v. Kowalski, 66 Kan. 64, 71 Pac. 232; Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Walker v. Scott, 67 Kan. 814, 64 Pac. 615; Railway Co. v. Sledge, 68 Kan. 321, 74 Pac. 1111; Hoffmeier v. Railway Co., 68 Kan. 831, 75 Pac. 1117; Schwarzschild v. Drysdale, 69 Kan. 119, 76 Pac. 411; Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586; Creamery Co. v. Daniels, 72 Kan. 418, 83 Pac. 986; Railroad Co. v. Burgess, 72 Kan. 454, 83 Pac. 991.
These decisions outline the law of assumed risk about as follows: When a. servant is given employment he has the right to take it for granted that the duty of the master to make the conditions of the employment reasonably safe has been performed. He assumes no risk arising from the master’s negligence in this respect, and need not institute an investigation for dangers resultant upon the master’s lack of ordinary care. The master, however, has the right to order his work after his own plan and to conduct it after his own methods. If this involve hazards beyond those ordinarily incident to employment of the kind presented, the servant should be informed of them. Starting upon this footing the servant assumes the risks. If at any time afterward the servant be confronted with danger consequent upon the master’s negligence, the question may arise whether a reasonably prudent man would encounter it. The servant must then act with reasonable care; and if he does not he will be chargeable, not with assumption of risk, but with contributory negligence. In the progress of the work defects and imperfections may develop which in due course are ordinarily remedied as a result of inspection, and while waiting for this to be done the. conduct of the servant is to be judged upon the principles of contributory negligence and not upon those of assumption of risk.
If the master fail to make the employment reasonably safe, and the danger takes on the aspect of a continuing condition which the servant knows about and understands or which is so patent that ordinary care would bring it to his attention and appreciation,' he may accept the situation and continue to work without complaint. If he does so he assumes the risk. On the other hand, he may apply to the master for a betterment of the condition. If what the servant regards as a danger be one respecting which the master has superior knowledge he may rest upon the master’s assurance of safety, if any be given. Under some circumstances, too, the master’s statements or representations may induce the servant to relax his vigilance. But if nothing of this kind occur, or if master and servant are on an equal footing in opportunity for knowledge of the facts and in ability to interpret them, and the servant knows or ought to know and duly appreciates or ought to appreciate the danger, and continues,to work, he assumes the risk.
If the master promises to repair, to discharge, or otherwise render safe, the danger may still be so glaring that a reasonably prudent man would not expose himself to it until a change had been made. If so, and' the servant continues to work, he is guilty, not of assumption of risk, but of contributory negligence. If the hazard is not so great but that with reasonable prudence the work may still be carried on the servant may, exercising due care, work a reasonable time awaiting repairs or other promised removal of danger without either assuming the risk or being negligent. If after the lapse of such time the promised betterment is not installed and the negligent condition again takes on the character of permanency, the servant assumes the risk. .
If upon complaint to him the master makes no promise to repair, or refuses to change the negligent condition, the servant is in the same attitude as if he were originally applying for work in a business organized and conducted upon a negligent basis, the dangers of which he knows and appreciates. If he goes on he assumes the-risk. In case óf injury the question is not what a reasonably prudent man would have done or ought to have done; it is simply what-the servant with his eyes open in fact chose to do. Reasonable prudence is not involved. Under the circumstances stated the servant must decide whether or not he will assume the risk, and if he does so the reasonableness of his conduct in point of care for his safety is not open to investigation.
In Missouri, and perhaps in some other jurisdictions, an attempt has been made to engraft the rules of contributory negligence upon assumption of risk after the master’s neglect or refusal, upon complaint, to remedy conditions negligently suffered to exist, and the authorities to that effect are invoked here. Such a rule is arbitrary with the court adopting it, and for the reasons stated is unsound. The subject has been disposed of by this court in the following language by Mr. Chief Justice Horton:
“ ‘Usually, where some instrument or appliance has become unsafe, from use or otherwise, and the danger from its use is not imminent or obvious, the servant may continue in the master’s employment and use, if for a short time, with the expectation that the master will restore the defective instrument or appliance to its former condition.’ (Rush v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582.) But if a servant continues in his work an unreasonable length of time after the master has agreed to remedy the defect complained of, or if the danger is imminent or obvious, he assumes the risks incident thereto. Generally, the question of reasonable time is one of fact for a jury; but where a servant has full knowledge of the danger of his employment, as in this case, after his first- injury, and continues in the master’s service while he is conducting his business in a way which the servant knows is dangerous, the servant cannot continue to wait, and, after being injured, then claim damages. He should leave his dangerous employment within a reasonable time, on discovery of the master’s method of doing business, when he finds that the master will not remedy the danger or fulfil his promise in that respect.” (Morbach v. Mining Co., 53 Kan. 731, 740, 37 Pac. 122.)
The case of Northern Pacific Railroad Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. 321, 31 L. Ed. 296, holding that mere notice of incompetency will not make continued service for a short time with an incompetent coemployee contributory negligence is cited as opposed to the law of assumed risk stated above, but it is not so. The defense in that case was contributory negligence, and not assumed risk, and the decision makes no reference to assumption of risk.
From the foregoing it is clear that the judgment of the district court must be reversed, and it becomes necessary to consider some other questions likely to be of moment on a second trial. The petition counted specifically upon the relation of master and servant between the plaintiff and defendant, and the negligence charged was want of care in the selection of the servant lat the time he was employed. The answer denied that the plaintiff was a servant of the defendant and charged that he was a servant of the Kaw Valley Construction Company, an independent contractor, which was engaged in constructing the defendant’s road. It also contained the following allegation:
“This defendant had no voice -or authority in the employment of any of the agents or servants of the said Kaw Valley Construction Company, nor did it .employ any of the same, nor did it have the right, power or authority to discharge, remove or direct any such employees, nor did it employ or have any authority or direction over any of the other employees of said Kaw Valley Construction Company, engaged in the operation and moving of the train mentioned and stated in plaintiff’s amended petition.”
The train crew of which plaintiff was a member was hired by the construction company. The work of construction progressed toward the south. The road had been turned over to the defendant to Carmen, and the defendant had installed an operating department with jurisdiction to that point. South of Carmen the construction company was in full control. The construe-, tion company’s material yards at Carmen were north of the station, and its trains in the Carmen yards were subject to the time-card, rules and regulations of the defendant and used tracks belonging to the defendant. What the defendant’s rules and regulations were does not appear. The testimony concerning the relations between the construction company and the railway company was furnished chiefly by the superintendent of the defendant. He said he was responsible to his company for administering its affairs in the yards at Carmen and north of Carmen; that he had absolute control over all trains there; that he would not surrender the control over the operation of construction trains on tracks within his jurisdiction; that men on the construction trains would be subject to his orders and were subject to his company’s rules and regulations. But the extent of his supervision, direction and control he made definite by the following testimony:
“Ques. In Carmen what were the rights of your company with respect to the rights of the construction company? Ans. Well, there was not any special rights given to either the construction company or the railroad. The construction company’s material yard was located in Carmen and consequently they had to come to Carmen.
“Q. How did they operate, and how did you operate in Carmen? A. Well, each company came into the yards when they had to do their work, looking out for the other so that no trouble would occur; no special rights given to either company in the yards.”
“Q. You stated that the fellows operating the train were under your supervision while they were on the road? A. Yes, sir.
“Q. I want to ask you whether these men that were operating this construction train at the time Mr. Loosley was hurt were under your supervision? A. Whether I had jurisdiction?
“Q. No; not jurisdiction — supervision and direction? A. I, as to their own work ? Not as to the work they should .perform, or how they should perform it.
“Q. Did you have anything to do with that? A. Nothing.”
“Q. Mr. Foley, you have already stated that the Kaw Valley [Construction Company] was engaged in the building of the road? A. Yes, sir.
“Q. And after the first day of April the railroad company commenced operating the line from Milton to Carmen? A. Yes, sir.
“Q. Now, after it commenced to operate to Carmen did the construction continue to go on? A. Yes, sir.
“Q. Where? A. South of Carmen.
“Q. Was there some construction, such as surfacing and ballasting, going on, and putting in additional ties, north of Carmen? A. Yes, sir; some unfinished track north of Carmen.
“Q. Who was looking after or doing the work of finishing that track? A. The Kaw Valley Construction Company.
“Q. Was that work going on during the month of April, 1903, both north and south of Carmen, in the manner in which you have stated? A. Yes, sir.”
“Q. What right or authority did you have over the road south of Carmen during the month of April, 1903? A. None.
“Q. What right or authority to employ or discharge the men of the construction company that were engaged in its work, either in handling its construction trains on the work or construction, did you have during the month of April, 1903? A. I had none.
“Q. Had the yards or work in the yards been completed? A. Yes, sir.
“Q. At Carmen — been completed during the month of April, 1903? A. I do not remember about that. Some tracks in there, but I cannot say whether all were finished or not.
“Q. If there was any work incomplete in the yards, whose duty was it? A. The Kaw Valley Construction Company.”
“Q. Did you have any control or direction with reference to how that work should be done? A. No, sir; hone whatever.
“Q. .When a material train was brought from the south, or front, into Carmen for the purpose of switching and moving cars to secure one of these construction trains, did you have control, authority or direction as to the manner in which they should handle their train? A. No, sir.”
“Q. What material or appliance of any kind or supplies did the construction company have at Carmen during the month of April, 1903 ? A. Had rails, ties, bridge timbers, bolts, spikes, and all material necessary to build a railroad.
“Q. Where did they have that with reference to the yards in Carmen? A. On the old main track, and afterward built a material track from the old main track to increase their yard.
“Q. Did you have any jurisdiction or control over the employment of that material, or its being handled or taken and hauled to the front on the construction train, or the employees engaged in such work? A. I had no authority over the handling; had nothing to do with the handling of the material, or the men in the work.”
“Q. What were the facts as to the operation of the construction train from the south into Carmen .by the construction company during the month of April, 1903? A. The construction train would enter the yard, if they had been out on the road. Their first duty would be to examine the register and see whether the regular trains had arrived, and then they would go ahead and do whatever work that was necessary, and get any orders or information in regard to the trains overdue. They would get that from my office. But in regard to their work in the yard, or going into the yard, there would be no orders necessary.”
The contract for the construction of the road which was introduced in evidence made the construction company an independent contractor, with full dominion over the work of construction and with no responsibility to others respecting its conduct or management or in any other respect except for the character of the result. There was no evidence of any actual interference on the part of the defendant with the management, direction or control of the construction train upon which plaintiff was injured, or with reference to the particular work or steps of the work in which it was then engaged. There was evidencie that the train and its crew were doing purely construction-company business at the time plaintiff was injured. There was no evidence that the work being performed was of any interest or concern to the defendant. The cars which were being moved were to be-placed upon a side-track. Near the switch was a coal-car used for the purpose of coaling the defendant’s engines. It was the plaintiff’s intention to take this car out, attach it to the cars he was switching, and then set them on the sidetrack so that the coal-car would occupy the same position respecting the switch and main track it did before. What benefit it was to the defendant to take this coal-car out and put it back the plaintiff does not pretend to suggest.
Upon this state of the evidence the plaintiff abandoned the theory of an actual hiring and requested the court to instruct upon the theory of supervening control on the part of the railway company over the construction company’s servants, which was done. The defendant insists that the instructions departed from, and were at variance with, the petition, but in view of the allegations of the answer quoted above it may fairly be said that the question of responsibility consequent upon efficient control was within the issues.
The authoritative instruction upon the subject was No. 15, quoted above. From this instruction the jury-might very well have drawn the inference that if the brakeman, Mills, and the engineer, Ballou, were at the time of the casualty subject to the control of the defendant to any extent or for any purpose the defendant would be liable. The words “authority,” “direction,” “supervision,” “superintendence,” “control” and others of like character may indicate much or little, and this court is unable to say what the trial court intended.
It is not essential that one who engages a contractor to produce a given result should reserve, or should interfere and take, complete or exclusive control over all features of the work to render him liable as a master of the contractor’s servants, but the fact that he possesses some control will not necessarily entail such liability. No matter if the control go to the extent of conditioning the work in many aspects, still if the contractor is left free to exercise his own will generally respecting methods and means he is independent and the employer is not the master of his servants. This distinction between a limited, special or partial control residing with the employer and a general control over methods and means vested in the contractor has been recognized in the following among other pertinent cases: Scarborough v. Ala. Midland Railway Company, 94 Ala. 497, 10 South. 316; Callahan v. Burlington and Missouri River R. R. Co., 23 Iowa, 562; Miller v. The Minnesota & N. W. Ry. Co., 76 Iowa, 655, 39 N. W. 188, 14 Am. St. Rep. 258; Eaton v. European and North American Railway Company, 59 Me. 520, 8 Am. Rep. 430; Cuff, Adm’x, v. Newark and New York R. R. Co. et al, 35 N. J. Law, 17, 10 Am. Rep. 205; Hughes v. Railway Co., 39 Ohio St. 461; Rogers v. Railroad Company, 31 S. C. 378, 9 S. E. 1059; Powell v. Construction Company, 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925; Frassi v. McDonald, 122 Cal. 400, 55 Pac. 139; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 28 Atl. 32; Foster v. City of Chicago, 197 Ill. 264, 64 N. E. 322; Humpton v. Unterkircher & Sons, 97 Iowa, 509, 66 N. W. 776; Harding v. Boston, 163 Mass. 14, 39 N. E. 411; Kimball v. Cushman, 103 Mass. 194, 4 Am. Rep. 528; Wood v. Cobb & another, 95 Mass. 58; Rait v. New England Furniture & Carpet Co., 66 Minn. 76, 68 N. W. 729; Kelly v. The Mayor &c. of New York, 11 N. Y. 432; Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550; City of Erie v. Caulkins, 85 Pa. St. 247, 27 Am. Rep. 642. (See, also, Kas. Cent. Rly. Co. v. Fitzsimmons, 18 Kan. 34; St. L., Ft. S. & W. Rld. Co. v. Willis, Adm’x, 38 Kan. 330, 340, 16 Pac. 457; C. R. I. & P. Rly. Co. v. Groves, 56 Kan. 601, 44 Pac. 628; 65 L. R. A. 445, 475, note.)
It may be conceded that the superintendent of the railway company made statements which if taken literally might indicate that he had complete dominion over every movement of the construction company’s trains and every detail of its work at Carmen, and the plaintiff had the right to go to the jury upon them. But a fair inference from his testimony as a whole is that the construction company’s trains were under his jurisdiction and subject to the time-card, rules and regulations of the railway company merely to the extent necessary to prevent conflict and confusion from the joint use by the two companies of the same tracks and yards; that the railway company was not doing the work of the construction company in any sense; that it was not, pro tanto, building its own road; that all the details in the prosecution of that work were left to the full discretion of the construction company; that the superintendent could not say when a train should take out material, or when it should return to the material yards, or prohibit it from going or returning, or say how it should be handled, or who should handle it, and so generally respecting the manner and means of carrying out the construction company’s contract; and the defendant had the right to go to the jury upon this theory. If the jury had taken this view they might have found that the railway company had “control” over the plaintiff’s train, in the sense that it was on track turned over under the contract, that it was subject to thé railway company’s time-card, rules and regulations, and that it was under the jurisdiction of the railway company’s superintendent, and yet they rightfully might have returned a verdict for the defendant. The instructions should have protected the defendant in this respect, so that it could not be made to respond when it was not in fact a superior.
Of course if an injury should result proximately from any exercise or abuse of the limited power,re-, tained by an employer, he would be liable; and if in fact his control was general over methods and means, and not limited or partial in the sense pointed out, he would be liable whether he exercised it or not. If an employer in fact assumes the relation of master to the servants of one whom he has engaged to produce a given result the duties and responsibilities which the law imposes upon such a relation attach.,
The imposition of all accrued costs upon the defendant as a condition of permission to amend its answer during the trial seems too severe under the circumstances, and the order to that effect is set aside.
The evidence upon another trial may be such that a discussion of other assignments of error would serve no useful purpose.
The judgment of the district court is reversed and the cause is remanded for a new. trial. | [
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The opinion of the court was delivered by
BURCH, J.:
The J. P. Cattle Company commenced' a suit against C. L. Davidson and many other defendants to quiet its title to a large number of tracts off lahd. The petition alleged that the plaintiff was the-owner in fee simple and in the actual and peaceable-possession' of all the land brought into controversy.
Davidson answered, ‘admitting the plaintiff’s possession, but denied its title, claimed-mortgage liens, upon some tracts, which he asked to have foreclosed, and claimed to be-'the owner of other parcels, the-possession of which he demanded.
At the trial the plaintiff’s title was found to be based' upon tax deeds which were declared to be void asmuniments of title, but the lien for taxes was preserved. Davidson was adjudged tó be the owner of the-tracts to which he claimed title and- Was declared to be entitled to possession of' them upon payment off taxes. His mortgages upon other tracts were foreclosed and sales ordered after six months. The court further decreed that if the plaintiff’s tax liens were-not discharged within sixty days ffrom the rendition of the judgment the tracts of land to which they attached should be sold according to law for their satisfaction, and in due time sheriff’s sales were made in execution of this provision of the judgment. Upon confirmation the court, ordered sheriff’s deeds to be-made. Davidson prosecutes error, claiming the redemption act of 1893 (Laws 1893, ch. 109; Gen. Stat. 1901, §§ 4927 et seq.) applied, and that certificates of” purchase allowing redemption should have issued instead of deeds.
The question is one of statutory interpretation. Section 25 of the redemption act reads as follows:
“The provisions of this act shall apply to all sales, under foreclosure of mortgage, trust deed, mechanics’ lien, or other lien, whether special or general, and the terms of redemption shall be the same.” (Gen. Stat. 1901, § 4951.)
The words “other lien,” “special or general,” are sufficiently inclusive to sustain the claim, of Davidson, but the purpose of the law cannot be determined from them alone. Other provisions of the statute and the causes which led to its enactment must be considered. Although the decision in Beverly v. Barnitz, 55 Kan. 466, 42 Pac. 725, 31 L. R. A. 74, 49 Am. St. Rep. 257, was subsequently reversed, Mr. Chief Justice Martin, in delivering the opinion of'the majority of the court, correctly stated the real occasion for the enactment of the law and the primary object to be attained through its instrumentality:
“From causes upon which all do not agree, and that we need not discuss, the burden of a private debt has been enormously increased of late years. Farms valued five years ago both by borrower and lender at $3000 or $4000, and mortgaged for $1000 are now knocked down under the sheriff’s hammer for less than the mortgage debt, the accumulations of a lifetime being often swept away by the shrinkage, and this through no fault of the mortgagor. Now, may not a state legislature take cognizance of such a condition of affairs and prescribe a rule, for application in its courts, regulating the equity of redemption, and even extending it beyond the. time formerly allowed? In other words, why may it not, in a time of general depression, reasonably extend the indefinite estate impliedly reserved by the mortgagor, as the federal courts of equity do in particular cases, beyond the six months allowed by the general practice? This reserved estate .belongs to the mortgagor, and because of its indefinite duration the legislature ought to have power to regulate it, within reasonable bounds, so as to pro tect the interests and equities of both debtor and creditor.” (Page 484.)
True, a mortgagor might not, at the time of sale, be the owner of the premises he had encumbered, and other than mortgage liens upon land were considered, but mitigation of what was then spoken of as “the. mortgage evil” was paramount in the legislative mind, and the oppression of debt was in all cases the mischief to be remedied. A consideration of all the various provisions of the law discloses that this purpose was consistently carried out, and that in its entirety it is essentially a debtor-and-creditor act, and that the liens, general or special, to which it makes reference are those arising from obligations created in or connected with dealings between private parties.
It is well established, both upon reason and authority, that taxes are not “debts” in the usual sense of the term. The law relating to assessment and taxation makes elaborate provision for the collection of taxes and the protection and enforcement of tax liens. The redemption act does not purport to modify or repeal any portion of this law, and is not inconsistent with any of its provisions.
The difficulty, if not the absurdity, of attempting to-apply the redemption act in this case is quite apparent. The cherished object of the redemption act, as expressed in section 2 (Gen. Stat. 1901, § 4928), is that the defendant owner shall enjoy the possession of real estate charged with a lien during the period of redemption. To give Davidson the benefit, of this provision it would be necessary to oüst the plaintiff, and this would nullify section 142 of the tax law (Gen. Stat. 1901, § 7681), which secures to the holder, of an invalid tax deed possession of the premises until he is reimbursed for the taxes'represented by his deed. Certainly the legislature contemplated no such action.
The remedy by way of the foreclosure of tax liens is supplementary to the act relating to assessment and taxation, but-is not of statutory creation. It is a device of courts of equity to accomplish justice in particular instances. • Whether or not it shall be used, and, if used, to what extent, is a matter for the sound discretion' of the court in each case. The subject is so far outside the general law relating to the enforcement of liens that doubtless it would be within the power of the court to order a strict foreclosure of the right of redemption from the lien of a tax-deed holder in possession.
By the remedy noted the courts afford to individuals substantially the sanie relief respecting tax liens that chapter 392 of the Laws of 1901 (Gen. Stat. 1901, §§ 7718 et seq.) gives to the board of county commissioners when real estate has been bid in by the county at a tax sale and has remained unredeemed' and the certificate pf sale has remained untransferred for a period of three and one:half years. The judgment in each case is supply for the foreclosure of a tax lien. When the county board is plaintiff the landowner’s rights are cut off absolutely by the sheriff’s d,eed. No good reason can be suggested for allowing a landowner an additional eighteen months in which to redeem when the foreclosure is made at the suit of an individual to whom the lien has passed. The statute cited is an indication of the policy of the legislature upon tire subject under consideration, and affords additional ground for belieying the legislature did not intend, by the redemption act, to enlarge th,e rights of a defendant owner to any extent as against a tax-deed holder in possession! The owner of land haying no right of redemption, a simple mortgagee can have none.
The case of Shrigley v. Black, 66 Kan. 213, 71 Pac. 301, it cited by Davidson. It hass no application. In that case a sale with redemption had been made, and all parties ‘tp the lrtigatipn treated it as lawful. Then redemption was made by parties under pbligation to pay the taxes for which the' land had been sold, and the only question open for decision was the effect of the redemption upon a mortgage lien. However, the court took occasion to express a doubt whether the redemption law was intended to make inroads upon the tax law without in any way referring to it.
The foregoing considerations dispose of the claims of other plaintiffs in error, and also dispose of cases No. 14,911 and No. 14,913, C. L. Davidson et al. v. John Plummer and C. L. Davidson et al. v. Dr. Rea Cattle Company, and the judgments in the three cases are affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The only question presented here is whether the court, when ruling upon a motion for a new trial, can, instead of granting or refusing the request presented by the motion, set aside the judgment' already entered and render one against the other party. Whatever may be the rule in exceptional cases, we think the action of the court in this case was erroneous.
Where parties are present in court and have a full opportunity to be heard and a judgment is entered at the conclusion of the trial, their inherent rights, so far as a trial is concerned, are exhausted. Neither party can demand as of right a further hearing, except as such right is saved to him by the statute. (Nesbit v. Hines, 17 Kan. 316; Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114.) The law requires the party who desires a new trial to ask for it within the time and for the reasons prescribed. A failure to comply with the statutory requirements waives the right. When the motion is properly filed and presented, the only question before the court is, Shall a new trial be granted? If one or more of the reasons stated in the motion be found to exist, the motion should be allowed and a new trial granted; otherwise it should be denied, and the judgment thereby becomes final in that court.
In this case the court found that it erred in refusing to sustain the defendant’s demurrer to the plaintiff’s evidence, but this merely amounts to an error occurring at the trial and furnishes good cause for granting a new trial. The court decided that the defendant was entitled to a new trial, but, instead of granting it, entered judgment against the plaintiff for costs. This was erroneous. The plaintiff is in a worse situation now than if the demurrer had been sustained at the time it was first presented. Then he might have saved himself from defeat by obtaining permission to reopen the case and supply the required testimony; now he cannot by any means regain this opportunity. If by some oversight or mistake liable to overtake any practitioner the plaintiff omitted an item of important testimony, which could be easily supplied, his loss is serious and irreparable. In what particular the evidence in this case failed to meet the legal requirement the record does not disclose. The court does not state wherein it held the plaintiff’s evidence deficient, and we are unable- to say what the situation was when the demurrer was overruled. We think, however, that as a general rule a court upon the presentation of a motion for a new trial can do no more than grant or deny the motion. When, however, it appears that the deficiency in the evidence is of such a nature that it cannot be supplied by the plaintiff, and that upon a new trial it will be impossible for him to make a prima facie case, then he would lose nothing by the order, and the court would be justified in making it. The record, however, does not show this to be such a case. In this case we think the court should have granted a new trial only, and it was error summarily to enter judgment against the plaintiff.
The judgment is therefore reversed, with direction to grant a new trial and proceed with the case in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Mason, J.:
The O. S. Kelly Manufacturing Company, a foreign corporation, brought a replevin action against William E. Boggs to recover the possession of personal property upon which it held a chattel mortgage given to it by Boggs securing a note between the same parties. The plaintiff recovered, and the defendant prosecutes error.
At the time the note and mortgage were executed the plaintiff was engaged in transactions of a character-that may be assumed to have brought it within the requirements of the statute with respect to foreign corporations doing business in this state. (Gen. Stat. 1901, § 1283.) It has never complied with any of such requirements. Before the action was brought it ceased to do any business in Kansas, except that it continued to attempt to collect notes and accounts which it already held. The property covered by the mortgage was exempt from seizure upon execution, or may be so considered. At the time the instrument was executed Boggs was a married man, and his wife did not sign it. It was given, however, for a part of the purchase-price of the property at the time of its sale by the company to Boggs. The questions to be decided are: (1) Could the plaintiff under these circumstances maintain an action to enforce the note and mortgage? And (2) did the fact that the mortgage was for purchase-money dispense with the necessity which otherwise existed for the wife’s signature?
A contract made by a foreign corporation while it is engaged in business in this state is not tainted and rendered unenforceable by the fact that the statute has not been complied with. (The State v. Book Co., 69 Kan. 1, 76 Pac. 711, 1 L. R. A., n. s., 167.) When a foreign corporation is precluded from bringing an action by reason of its non-compliance with the law it is because of the personal disability with which it is burdened at the time. If it assigns the claim its in capacity will not prevent the assignee from suing. (Thrasher Co. v. Riggs, 75 Kan. 518, 89 Pac. 921.) If it complies with the law its competency as a plaintiff is restored, even if such step is taken after an action has been begun. (Hamilton v. Reeves & Co., 69 Kan. 844, 76 Pac. 418.) When it ceases to do. business in the state it is no longer under the bar of the statute. Its violation of the law having ceased, it has the same rights as a litigant as any other foreign corporation which is not attempting to .carry on its business in. Kansas. Its former disregard of the statute is not made a ground for denying it access to the courts. The plaintiff therefore could maintain the action.
The statute (Gen. Stat. 1901, § 4255) requiring a chattel mortgage of exempt property to be signed by both husband and wife, where that relation exists, has no application to a mortgage executed for a part of the purchase-price at the time of the sale of the property by the mortgagee to the- mortgagor. As a matter of theory it may be conceived that the whole title first passes to the mortgagor, and that out of that title he then carves a lien for the benefit of the mortgagee. But in fact there is no instant of time in which he is the absolute owner, in which -any right of the wife can attach, or - in which the property can be affected with the quality of exemption as against the vendor — in effect, he takes it charged with the lien; the transaction is substantially the same as though the mortgagee in terms conveyed subject to a lien, or reserved the title as security for the payment of the purchase-money. The principle is the same as that by which purchase-money real-estate mortgages are given precedence over existing liens, which is thus stated in volume 28 of the American and English Encyclopædia of Law, at page 470:
.“The priority of the purchase-money mortgage to other liens created before the execution of the mortgage rests upon the doctrine that the deed from the vendor and the mortgage by the vendee are parts of one single and entire transaction. Because the seizin of the vendee is thus instantaneous, the title to the land does not for a single moment rest in him, but merely passes through him and vests in the mortgagee without stopping beneficially in the purchaser, and during such-instantaneous passage the prior lien cannot attach to the title.”
The principle is applied to transactions like the present in Barker v. Kelderhouse, 8 Minn. 207, Paterson v. Higgins, 58 Ill. App. 268, and cases cited in volume 6 of the Cyclopedia of Law and Procedure, at page 999, note 69.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from the conviction of G. H. McKinney for the larceny of a mule. He was brought to trial before the court and jury on June 14, 1906, and when the testimony was concluded, at 11:30 o’clock in the forenoon, the court adjourned until 1:30 in the afternoon, but overlooked the duty of admonishing the jury as to their- conduct during adjournment. When-the court reconvened the appellant objected “to any further proceedings in this case for the reason that at the adjournment of this court at 11: 30 this day the court failed to admonish the jury as required by the statute in such case made and provided.” The court sustained the appellant’s objection, and discharged the jury because of a mistrial. The case was then set down for trial on June 19, 1906, when the appellant raised the question of former jeopardy because of the first proceedings, but it was decided against him, and upon a trial of the merits there was a verdict of guilty. He insists on this appeal that when the jury were impaneled and testimony was -taken jeopardy attached; that no necessity for the discharge of the jury was shown; and that the discharge of the jury operated as an acquittal.
It is true that the discharge of a jury after the trial has begun without an overruling necessity or without the consent of the defendant will ordinarily operate as a bar to further prosecution. Here, however, there was consent, or the equivalent of consent, by the appellant, and it is well settled that if a jury is discharged at the instance of the defendant himself he cannot set up that fact as a bar to a subsequent prosecution. It is argued by appellant that he only interposed an objection and did not express any consent or intend to waive any of his rights. He objected, however, to proceeding further in the case because of a disqualification of that jury. The discharge of the jury was the necessary result of sustaining his objection, and he has no right to complain that the court took the action which he invited.
In a similar case in Ohio a question arose as to the qualification of a juror after the beginning of the trial, and the defendant objected to proceeding further before that jury, specifically stating that he did not intend to waive any of his rights, but it was held that “the discharge of the jury first ''impaneled was the necessary result 'of sustaining the objection interposed by the defendant himself, and so did not take place without his consent, but was an act done at his own instance, and would not therefore operate as an acquittal, nor bar a further prosecution.” (Stewart v. The State, 15 Ohio St. 155, syllabus.)
In People v. Gardner, 62 Mich. 307, 29 N. W. 19, a defendant objected to a jury before whom he stood in jeopardy, and coupled with the objection a statement that he did not intend to waive any of his rights. When the jury were discharged at his instance he claimed that the discharge operated as an acquittal, but the court ruled that his action amounted to consent, saying:
“There were but two possible courses-for the court to pursue at the time this objection was made by the respondent: one was to go on, against the respondent’s objection, and try the cause before the jury then impaneled; and the other was to accede to the objection made and discharge the jury.
“The discharge of the jury, under the circumstances of the case, must be deemed to have been done upon the request of the respondent, and with his consent. He has no right to complain that his objection was sustained, and the discharge of the jury with his consent cannot be set up as an acquittal.” (Page 312.)
(See, also, Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118; The State v. Hibbard, ante, p. 376, 92 Pac. 304; Commonwealth v. Sholes, 95 Mass. 554; Peiffer v. The Commonwealth, 15 Pa. St. 468, 53 Am. Dec. 605; Hughes v. The State, 35 Ala. 351; State v. Davis, 80 N. C. 384; State v. Coleman, 54 S. C. 282, 32 S. E. 406; Arcia v. The State, 28 Tex. App. 198, 12 S. W. 599; The Commonwealth v. Cook and others, 6 S. & R. [Pa.] 577, 9 Am. Dec. 465; Rex v. Stokes, 6 C. & P. [Eng.] *151; Kinlock’s Case, 1 Fost. [Eng.] 16.)
It is next argued that the evidence does not support the conviction. It seems that the testimony offered in behalf of the state is singularly meager — less, it appears, than was produced on the first hearing. There is little, if any, testimony connecting the appellant with the offense other than his possession of the animal soon after it was stolen. It was shown that some mules .had been kept in a pasture in Finney county. Mr. Williams, the owner, saw them in the pasture April 8, 1906, and when he visited the pasture again, on April 11, 1906, he observed that they had been.taken out. On April 12, 1906, one of the mules was in the possession of the appellant in Sherman county, more than 100 miles from the pasture. The animal was not found by Williams until April 20, 1906, and then was in the possession of a man named Stevens, in Wallace county. There was no attempt to show that the appellant had been in Finney county or had even been absent from his home at the time of the larceny. No incriminating circumstances were shown, unless they are to be found in his statements explaining his possession of the mule. Recent possession alone does not warrant an inference of guilt. It is the unexplained possession which constitutes prima facie evidence of a larceny, and here there was an explanation which, read from the record, appears to be consistent with honesty. The presumption of guilt arising from the recent possession of the stolen property by the appellant is weakened to some extent by the lapse of time, as it appears that four days elapsed after the mule was last seen in the pasture before it was shown to be in the possession of the appellant. Just when it was taken from the pasture does not appear from the testimony.
Looking at the testimony of the defendant explaining how he came into possession of the mule, and measuring it as testimony is ordinarily measured, we cannot say that the recent possession of the stolen property was unexplained or that the scant testimony offered in behalf of the state is sufficient to uphold a verdict. The judgment is therefore reversed and a new trial awarded.
Smith, Porter, Graves, Benson, JJ., concurring. | [
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The opinion of the,court was delivered by
Smith, J.:
The Metropolitan Street Railway Company, defendant below, instituted this proceeding in error to reverse a judgment for $900 which Charles Fawcett obtained against it in the court of common pleas of Wyandotte county.
It is first contended that the court erred in overruling the demurrer of the company to the plaintiff’s evidence. We have read the evidence, and, considering it, as it was the duty of the court to do, in the light most favorable to the plaintiff, and indulging all reasonable inferences in his favor, we cannot say that the court erred in determining that the plaintiff had by the evidence made out a prima facie case, and hence we cannot say that the court erred in- overruling the demurrer. Our view will more fully appear in the discussion of the exceptions to the instructions to the jury.
It is contended that instructions Nos. 3, 4, 5 and 6 are erroneous. The only criticism offered to instruction No. 3 is that there is no reference therein to any negligence of which the plaintiff may have been guilty. The purpose of the instruction was to impress' upon the jury what it was essential for the plaintiff to prove — what facts he must establish by the greater weight of the evidence before he was entitled to recover any damages; and the.instruction is correct for that purpose. The defendant had alleged contributory negligence on the part of the plaintiff, and the burden of establishing, this fact by a preponderance of all the evidence rested upon it, hence the propriety of omitting any reference thereto in enumerating the necessary requisites of plaintiff’s proof. The plaintiff, to establish his case, was not required to prove that he was not guilty of contributory negligence.
The plaintiff was driving a horse in ’a northeasterly direction along the easternmost of two parallel streetcar tracks, and the defendant’s street-car that caused the injury was approaching from the opposite direction on the other track. Between the tracks was a space of six or seven feet. The plaintiff testified that when his horse frightened at the approaching car he could have turned to the right off of the car-track into the street. He also said that the surface of the car-track was eight inches above the surface of the street, and that there was standing water and mud along the side of the car-track. Neither he nor any other witness testified that after his horse became frightened he could have turned off there without danger. In the fourth instruction the court told the jury that under the circumstances it was the duty of the plaintiff to take such means to avoid á collision as an ordinarily careful and prudent person would have taken under the same circumstances. Also, that defendant’s servants had a right to expect that, if plaintiff’s horse was frightened at the approaching car, he would turn off the track if there was no apparent danger in so doing; that this, however, did not give them the right to operate the car at a high and dangerous rate of speed, after it became apparent to them or should have become apparent to them that the horse was frightened at the approaching car and that the plaintiff could not or would not turn off the track; and it would be their duty under such circumstances promptly and diligently to use the means at their command to lessen or remove the danger of injury to the plaintiff by reason of a nearer approach of the car.
We think this instruction is proper, and do not believe that the jury were likely to understand the expression “would not turn off the track” as implying that the plaintiff had the right sullenly to hold to the track without any reason therefor. By the instruction the court informed the jury as to the duty of the defendant’s servants under various conditions or situations suggested by the evidence. For this purpose the instruction told the jury, in substance, that it was the duty of such servants to use all means at their command to lessen or remove the danger of injury to the plaintiff whenever it became ápparent to them that' the plaintiff could not (by reason of being unable to control the horse) or would not (for some reason apparent to them) turn off the track. The phrases in parentheses are interpolated as a fuller expression or suggestion of what should reasonably be understood from the language used without such phrases.
The fifth and sixth instructions also treat of the duty of plaintiff and of defendant’s servants under, it would seem, every possible situation suggested by any portion of the evidence, and tell the jury that if they find that the plaintiff failed to exercise such care as a person of ordinary prudence would have exercised under the same circumstances he was guilty of contributory negligence and cannot recover; that if the plaintiff was not negligent, and if the defendant’s servants failed to exercise ordinary care from the view-point of what they saw or should have seen, then the plaintiff should recover his damages, the true measure of which was given and of which there is no complaint.
Were we to criticize the instructions we would be inclined to say that in the apparent effort to present every possible phase of the case with studied and technical accuracy, which seems to have been attained, possibly too great prolixity resulted. The defendant, however, contends that the attention of the jury should have been confined to the time after the horse bolted from the track upon which the plaintiff was endeavoring to drive it to the track upon which 'the car was approaching; in short, the logic of the argu ment is that the defendant’s servants were under no obligation until that time to take any precautions whatever. The court was right. It may be asserted as a general proposition of law that whenever a motor-man in charge of a swiftly running car observes (and he must constantly watch) a horse or team which is being driven in close proximity to the car-track, and which manifests fright, it is his duty to reduce his-speed, preparatory tó a sudden stop if it becomes necessary. His precaution should be proportionate to the apparent danger.. If it be generally true that a single driving horse, frightened by an object approaching from the front, is more difficult to control than a two-horse team, and more likely to wheel around so suddenly as to upset the carriage and its occupants, the motor-man must recognize this fact and act accordingly.
The questions of negligence and contributory negligence' in this case were questions of fact to be determined by the jury, under proper instructions from the court, which we have concluded were properly given. The motor-man testified that as his car approached the-place of the accident it was moving eight or ten miles an-hour, and that with the appliances thereon he could stop it in seventy-five feet; also, that he used all the' appliances to stop the car when it was about fifteen feet from the place where the accident occurred.' Other-witnesses estimated that the car did not in fact stop until it passed 150 to 200 feet beyond the place of the-accident. If the. jury believed the latter witnesses, as they had the right to do, they were justified in concluding that the car was running at a much greater-speed and that no effort was made to check the speed until the moment of the accident. And if they further believed that the circumstances should have apprised the motor-man of danger when his car was at a considerable distance from the place of the collision their verdict is fully justified.
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The opinion of the court was delivered by
Graves, J.:
This action was commenced by the defendants in error, who are real-estate agents in Topeka, to recover a commission for the sale of property owned by the plaintiffs in error. .Other agents, Noble & Co., were also authorized to sell the same real estate. Each firm claims to have made the sale. The owners paid a commission to Noble & Co., and refused to pay the defendants in error. The case comes to this court from the district court of Shawnee county, where the defendants in error recovered a judgment for $125, being the amount of commission claimed by them.
Considerable testimony was given at'the trial, in which there is very little conflict so far as the questions here presented are concerned. The controlling .facts are substantially these: The plaintiffs in error owned a residence property in the city of Topeka which they desired to sell. The defendants in error and Noble & Co. were authorized to find a purchaser. The commission in case of sale was to be $125. The property was finally sold. The purchaser, Mrs. McCandless, was interviewed by each of these firms, each showed her the house, and each endeavored to prevail upon her to close the trade, which she finally did at the solicitation of Noble & Co., who received a part of the purchase-price in cash and prepared the contract of sale, which was executed in their office.
The case was tried in the district court to a jury, who returned with the general verdict special findings of fact, which read:
“(1) Ques. Did not J. H. Noble, of the firm of George M. Noble & Co., first introduce Mrs. McCandless and her husband to Mrs. Murphy, one of the owners of the property, about November 27, 1905, and was that not the first time the Taylor street house was called to the attention of Mrs. McCandless? Ans. Yes.
“ (2) Q. Did not J. H. Noble, about December 2, 1905, take Mr. McCandless through the Taylor street house and show the same to him, and was not this before McKeever showed the house to Mr. and Mrs. Mc-Candless? A. Yes, but he was not a party to the tr&nsEction
“(3) Q. After McKeever showed Mrs. McCandless the house, December —, 1905, did she not entirely give up the idea of purchasing the house until after her sister, Mrs. Kipp, came to Topeka, claiming that the house was too small and otherwise unsuitable? A. No, not entirely.
“(4) Q. Did not J. H. Noble, about January 4, 1906, take Mrs. Kipp and Mrs. McCandless through the Taylor street house and show the same to them and at that time first introduce Mrs. Kipp to Mr. Murphy, and was not that the first time Mrs. Kipp had been in the house -and the first time any real-estate agent had shown the house to her? A. Yes, but Mrs. Mc-Candless and Mrs. Kipp had visited the house January 1.
“ (5) Q. Did not the sale of the property to Mrs. McCandless and Mrs. Kipp result chiefly from the examination of the house January 4, 1906, when they were taken there by J. H. Noble, and from negotiations between the parties which were then set on foot ? A. No.
“(6) Q. Was not the sale of the property finally consummated in the office of George M. Noble & Co. by the. signing of a contract and the payment of a part of the purchase-money? A. Yes/’
All questions of fact involved in the case are settled by these findings and the verdict in favor of the defendants in error. Therefore the only question presented here is whether the district court erred, either in refusing the' instructions requested by the plaintiffs in error or in giving those to which they objected.
The plaintiffs in error requested the court to give three instructions, all of which were refused, and error is assigned as to each. . We do not think the refusal to give the first instruction constitutes error, for the reason that the instructions given by the court were substantially the same. The second instruction requested was properly refused, for the reason that it converts a question of fact, which ought to be sub mitted to the jury, into one of law. This instruction decides as a legal conclusion that the agent who actually concludes and closes up a sale is the proximate' and procuring cause of the sale, regardless of what any other agent may have done to induce the purchaser to buy. We think this a question of fact, and should have been submitted to the jury. The other request is substantially embraced in the instructions given.
Complaint is made of the first instruction given by the court because it incorrectly states the issues involved in the case. We think the court was justified in the statement made. The case was commenced in the city court, and no pleading was filed by the plaintiffs in error. On appeal to the district court the case' was tried without additional pleadings. The court under these circumstances was justified in stating the issues the same as if the plaintiffs in error had filed a general denial, and this is what was done.
Objection is also made to the sixth instruction. This states the rule applicable to cases where but one agent is employed to sell real estate. The only purpose which this instruction- could serve in this case would be to explain and make more clear by comparison the real question at issue. It was probably unnecessary, but we think not erroneous.
The eighth instruction is objected to. It reads:
“Where the owner of real estate has listed his property with more than one real-estate agent, and one of the real-estate agents with whom such property is listed attempts to interest a certain person in said property by endeavoring to effect a sale to such person, but does not succeed in inducing said person to negotiate with the owner for the purchase of the property or to make an offer for said property, and thereafter another-real-estate agent, with whom the property has been listed, by his efforts succeeds in interesting the same person in the purchase of the same property and by his efforts effects a sale of said property to such person, then the agent who succeeds in bringing about the sale is entitled to the commission. If, then, you. find from the evidence in this case that the defendants listed the property mentioned in the evidence in this case with the plaintiffs and also with George M. Noble & Co., real-estate agents, and the plaintiffs tried to induce Mrs. McCandless and Mrs. Kipp to purchase said property but failed to do so; that thereafter George M. Noble & Co. showed this property to Mrs. McCandless and Mrs. Kipp, entered into negotiations with them and were instrumental in effecting a sale to them through their efforts; then plaintiffs cannot recover in this action, for in that event the commission would be earned by Noble & Co.”
The specific complaint made to this instruction is that the word “thereafter” should not have been used to indicate the time when Noble & Co. tried to induce Mrs. McCandless to buy and when they showed the property to her, as compared with the time when the defendants in error did the same things. If this stood alone it might be open to criticism, but when taken in connection with the entire charge it may and should be regarded as the mere statement of one phase of the •case, and in this view the statement is justifiable under the evidence. -It does not seem possible that the jury could have been misled by it. We cannot say that it was erroneous.
Instruction twelve, to which objection is made, reads:
“If you find from the evidence in this case that the defendants placed said property in the hands of plaintiffs for sale, and also in the hands of George M. Noble & Co., real-estate brokers, for sale; that while it was in the hands of those two agencies the plaintiffs called the attention of Mr. and Mrs. McCandless to the property and endeavored to negotiate a sale thereof to them, and on several occasions thereafter spoke to them in relation to the purchase of the property, and that thereafter Mrs. McCandless and Mrs. Kipp purchased the property from defendants by reason of the efforts of the plaintiffs to negotiate a sale thereof to them, then the plaintiffs would be entitled to their commission for such sale. But if you believe from the evidence in this case that the'property was placed in the hands of plaintiffs and in the hands of said Noble & Co., real-estate brokers, for sale, that the plaintiffs first called attention of Mr. and Mrs. McCandless to the property, and endeavored to get them interested in the property to the extent of Mrs. McCandless and Mrs. Kipp buying it, and had several conversations with them in relation thereto, but that no negotiations were set on foot which resulted in the making of a ■sale of the property through the plaintiffs as real-estate brokers, but that said Noble & Co., without knowledge that the plaintiffs had sought to interest the McCandlesses and Mrs. Kipp in the property, solicited "them to purchase the property through them, and negotiations were set on foot by Noble & Co. and they were then instrumental in bringing about a sale of the property to Mrs. McCandless and Mrs. Kipp, then I instruct you that plaintiffs would not be entitled to recover in this action, but that George M. Noble & Co. would be entitled to the commission.”
This, like number eight, might be questionable if it stood alone, but when regarded as the statement of merely one phase of the case it cannot, in view of •other instructions given, be deemed erroneous.
The real and controlling question is this: Which of "these agents earned the commission for making this sale? There seems to be very little, if any, controversy as to the rule of law which governs in such cases. Where two or more agents are employed to sell the -same property, the one who makes the sale to have the commission, and a sale is brought about by the joint efforts of all the agents employed, then the agent-who was the efficient, predominating, procuring cause of the sale is entitled to the commission. Who first •called the attention of the purchaser to the property or who finally closed the contract by receiving a part payment of the purchase-price or who was most diligent in showing the premises to the purchaser are unimportant facts, except as they tend to support the controlling proposition. The true rule of law applicable to such a case was very clearly placed before the .jury by the tenth instruction, which reads:
“Where two or more agents employed by the owner show or make an- effort to sell the same property to the same, person, and such person afterward buys the-property, and the owner is liable for the payment of the commission, the rule of law is that that agent is entitled to the commission who is the proximate, efficient and procuring causé of the sale.”
This submits the controversy to' the jury to decide from the evidence-which agent was the proximate, predominating and procuring cause of the sale. The-jury should consider all of the evidence presented, and not confine its deliberations exclusively to the initiatory steps taken, nor to the final execution of the conveyance. If an agent, by his- own exclusive efforts, produces a purchaser, shows him the property, and, after-considerable effort, prevails upon him-to take the property, but delays the final act of closing the trade until' the following day, and, while the negotiations thus stand in abeyance, another agent induces the purchaser to pay the purchase-price and the owner to execute a conveyance, such agent should not be regarded as the-efficient, proximate and procuring cause of the sale. On the other hand, if the agent who produced the purchaser relaxed his efforts, and another, by efficient and persistent work with such purchaser, induced him to make the purchase, then he should be regarded as' the one who made the sale.
The question is purely one of fact for the consideration of a jury, and they having decided thereon under proper instructions, and their conclusions having been approved by the trial court, nothing remains for this court to consider. The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
It is urged by the plaintiffs in error that the only provision in the will under which William White can claim the Kansas land is in the residuary clause thereof, which is denominated paragraph 8. This clause is claimed to be insufficient, because the land was acquired after the will was executed. Under the common law a will did not affect after-acquired real estate. That rule, however, has been changed in this state by section 7991 of the General Statutes of 1901, which reads:
“Any estate or interest in lands or personal estate or other property acquired by the testator after the making of his will shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”
The will, when construed in the light of the surrounding circumstances, indicates quite clearly that the testatrix intended all of her property to vest absolutely in White except the real estate described in the will. Although advanced in years she left her children and moved to another state alone, where she bought a farm and lived thereon. It does not appear that, she had any communication with her children, personal or otherwise. The fact that she cut them off with a pittance shows a complete estrangement on her part. William White had lived with her constantly after she settled in Nebraska, and managed her affairs. At the time she made the will she owned no property to which the residuary clause would apply. It was apparently a useless and meaningless provision. The facts' disclose, however, that the will was made immediately before a surgical operation from which she might recover. It was not made in contemplation of certain and impending death. She might live. It seems more reasonable to assume that this clause was inserted in the will for some purpose than to conclude otherwise. The testatrix may have contemplated the chances of a recovery and made this provision to cover future possibilities. If this real estate is not devised by this clause of the will, then the-testatrix died intestate. Such a result will, be prevented if it can be done by any reasonable construction. (Durboraw v. Durboraw, 67 Kan. 139, 143, 72 Pac. 566.)
By giving full force to the plain language of the will the wishes of the testatrix will be carried out; otherwise the result will be clearly contrary to her desire. She was forsaken by her children in her old age, and was cared for by William White. Her regard for her children and her friendship for White are clearly shown by the will. These conditions indicate that she had some reason for making a will with provisions broad enough to insure protection to her friend. Upon the whole case we think it was the intention of the testatrix to devise all the property she might own at her death to William White, regardless of when it was acquired or where located.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was ejectment, and the validity of a tax deed is the only question involved. It turns lipón the question whether the words “cost of redemption” in the statute providing for redemption from tax sales includes the treasurer’s fee of ten cents for the certificate of assignment and a fee of twenty-five cents for a certificate of redemption. The deed was based upon a tax sale to the county, which the treasurer assigned. It fails to recite that either of these fees was paid. Plaintiff in error contends that both are included in the cost of redemption, and that the court, erred in holding the deed valid. On the other hand the contention is that neither of these items is included in the term. The language of section 7649 of the General Statutes of 1901 is as follows:
“Whenever any person shall pay info the county treasury a sum of money equal to the cost of redemption at that time of any such tract of land or town lot, the county treasurer shall give such person a certificate.”
Section 7662 fixes the cost of redemption when made by the owner, and no subsequent taxes and charges have been made, in the following words:
“The amount for which said land was sold, . . . with interest at the rate of fifteen per cent, per annum on the amount of the purchase-money of sale.”
The tax deed recites that the assignee paid to the treasurer the sum of $10.12, which was the exact amount of the price sold for, with interest. It is manifest that the cost of redemption to the owner, had he redeemed on the same day, would not have included any fee for a certificate of assignment, for the owner would not require such a certificate. If, therefore, plaintiff in error is correct in his contention, the expression “cost of redemption” would mean a different amount when applied to the owner than when applied to another person. Construing both sections of the statute together, there is no ambiguity. The cost of redemption is fixed at a sum equal to the amount of the sale, with interest. The same considerations compel the conclusion that the twenty-five cent fee of the treasurer for a redemption certificate is not included within the term. In the present case, to include the latter would be adding to the cost something not actually paid, because, obviously, no redemption certificate was issued.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by Coffeyville State Bank from a summary judgment granted to Joseph W. Lembeck and Carlene C. Lembeck, husband and wife.
The facts are undisputed. On August 30, 1971, Joseph W. Lembeck gave Coffeyville State Bank a promissory note in the amount of $60,718.17 due in 90 days, with interest at 8%% per annum until maturity and 10% per annum from the date of maturity until paid. The note was secured by personal property. Carlene C. Lembeck did not sign the note. The note was not paid according to its terms and on November 9, 1971, the bank commenced an action against the Lembecks in the district court of Neosho County for judgment on the note.
On May 4, 1972, the parties entered into the following agreement:
“THIS AGREEMENT made this 4th day of May, 1972, by and between Coffeyville State Bank, a Corporation of Coffeyville, Kansas, hereinafter called first party; and Joseph W. Lembeck and Carlene C. Lembeck, husband and wife, of Neosho County, Kansas, hereinafter called second parties.
“WHEREAS, the second parties are indebted to the first party on a certain promissory note dated August 30, 1971, in the principal sum of $60,718.17 with interest of 8V2 percent per annum from August 30, 1971, and WHEREAS, first party has filed suit in the District Court of Neosho County, Kansas, sitting at Erie, Kansas, against the defendant, Joseph W. Lembeck, in connection with said indebtedness; and the parties have reached an agreement in connection with said litigation.
“NOW, THEREFORE, it is agreed by and between the parties as follows:
“1. Second parties have turned over the personal property which secures the promissory note mentioned herein to first party, and the proceeds from the sale of this personal property shall be paid to Coffeyville State Bank.
“2. Second parties have deeded to first party under date of April 29,1972, their equity in 80 acres of land in Nowata County, Oklahoma, subject to certain liens and encumbrances against said real property.
“3. Second parties have executed a certain promissory note in the amount of $8,000.00 in favor of first party, payable at the rate of $200.00 per month without interest, the first payment to be made on May 10, 1972, and a like payment of $200.00 each month thereafter until fully paid.
“4. First party, in consideration of the foregoing, convenants and agrees that the litigation pending in Neosho County, Kansas, will be dismissed without prejudice and that upon the second parties’ payment of the note mentioned herein as agreed, all of second parties’ obligations and liabilities to the Coffeyville State Bank which have been the subject of the litigation in Neosho County, Kansas, will be satisfied and canceled.
“5. Second parties are hereby given 30 days from this date to remove their personal effects from the property located in Nowata County, Oklahoma.
“IN WITNESS WHEREOF, parties to this Agreement have hereunto set their hands the day and year first above written.
COFFEYVILLE STATE BANK, A Corporation, first party
By:/s/ F. C. Harlow
F. C. Harlow, President
/s/ Joseph W. Lembeck
Joseph W. Lembeck, second party
/s/ Carlene C. Lembeck
Carlene C. Lembeck, second party”
They made one variation from the terms of the agreement. A promissory note in the amount of $8900, instead of $8000, was executed by the Lembecks on April 24, 1972, in favor of the bank, payable without interest at the rate of $200 per month beginning June 10, 1972. Pursuant to the settlement agreement the Lembecks delivered to the bank their personal property and a deed to the 80 acres of land in Nowata County, Oklahoma, on April 24, 1972. Thereafter, the action on the note in Neosho County was dismissed without prejudice.
The defendants made payments on the settlement note until December, 1972, and thereafter were in default until June 24, 1975, when the settlement agreement was amended. The amendment reduced the monthly payment to $100 and stated the balance owed was $5787. The Lembecks failed to pay according to this amended settlement agreement and, on December 9, 1975, the bank filed an action in the district court of Montgomery County for judgment on the settlement note. Judgment was rendered on February 4, 1976, in the amount of $5687 in favor of the bank. The bank acknowledged payment of the judgment in full on October 25, 1978.
In the course of obtaining satisfaction of its judgment against the Lembecks, the bank learned that Joseph Lembeck’s father had died in Nowata County, Oklahoma, on March 29, 1978, and that Lembeck would inherit one-half of an estate valued at approximately $250,000. The bank filed suit on the original $60,718.17 note on June 23, 1978, alleging the settlement agreement was an accord upon which judgment had been rendered. The Lembecks answered, alleging the petition failed to state a claim against the defendants upon which relief could be granted and affirmatively pled res judicata, collateral estoppel and the statute of limitations. The bank filed a motion for summary judgment, argued to the court November 9,1978. At that time the defendants orally moved the court to render summary judgment for them. That motion was granted March 29, 1979. The bank appeals from the trial court’s action.
The bank contends the May 4,1972, settlement agreement is an executory accord and not a novation. The two concepts were distinguished in Elliott v. Whitney, 215 Kan. 256, 259, 260, 524 P.2d 699 (1974), where the court stated:
“Novation may be broadly defined as a substitution of a new contract or obligation for an old one which is thereby extinguished [citation omitted]. It is a new contractual relation which has four requisites: A previous valid obligation, the parties must agree to the new contract, the new contract must be valid and the old obligation must be extinguished by the substitution for it of the new one [citations omitted],
“An executory accord has been defined in the following manner:
‘The term “accord executory” is and always has been used to mean an agreement for the future discharge of an existing claim by a substituted performance. In order for an agreement to fall within this definition, it is the promised performance that is to discharge the existing claim, and not the promise to render such performance.’ [Citation omitted.]
“The distinction between a novation and an executory accord becomes significant in event of breach of the new agreement. If the new agreement constitutes a novation, a breach does not revive the discharged claim and the parties’ rights are controlled by the new agreement [citation omitted].
“On the other hand the effect of a breach of an executory accord is stated in the following:
‘Since an accord executory operates at best no more than as a suspension of the antecedent claim, a material breach of the accord by the debtor lifts the suspension and makes the creditor’s prior claim again enforceable.’ (6 Corbin on Contracts, § 1275, p. 111.)
“The eminent author just cited pinpoints the problem at hand in this fashion:
‘It is frequently difficult to determine whether a new agreement is a substituted contract operating as an immediate discharge, or is an accord executory the performance of which it is agreed shall operate as a future discharge. It is wholly a question of intention, to be determined by the usual processes of interpretation, implication, and construction.’ [Citation omitted.]”
As stated in Elliott v. Whitney, one must determine whether the parties intended to extinguish the old contract by substitution of the new one. In Elliott, the second contract was clearly intended to extinguish any liability between the parties arising out of the prior agreement. In this case, the parties agreed as follows with regard to the prior obligation:
“4. First party, in consideration of the foregoing, covenants and agrees that the litigation pending in Neosho County, Kansas, will be dismissed without prejudice and that upon the second parties’ payment of the note mentioned herein as agreed, all of second parties’ obligations and liabilities to the Coffeyville State Bank which have been the subject of the litigation in Neosho County, Kansas, will be satisfied and canceled.”
Clearly, the extinguishment of the prior obligation is conditioned upon the payment of the second note. We find the settlement agreement to be an executory accord. That finding, however, does not resolve the issue. Since the settlement agreement is an executory accord, the Lembecks’ breach of that agreement gave rise to a cause of action on the original $67,000 note. The original claim was enforceable when the breach occurred. The bank had a choice of remedies at that time. The bank could have sued on the original note, giving the Lembecks credit for the value of the security surrendered, payments made and the land deeded, or the bank could have brought an action on the accord. The bank elected the latter and has obtained judgment and satisfaction thereof. This clearly presents an election of remedies which estops the bank from suing on the original note. Restatement of Contracts § 417 (1932).
The following quotation from 6 Corbin on Contracts § 1276 (1962) is also pertinent to this case:
“The two parties may first make an accord executory, that is, a contract for the future discharge of the existing claim by a substituted performance still to be rendered. When this executory contract is fully performed as agreed, there is said to be an accord and satisfaction, and the previously existing claim is discharged.”
We have carefully reviewed all other points raised in the briefs, but in light of the foregoing, a discussion of them is unnecessary to a resolution of this controversy.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by plaintiffs, David W. Baker and Patricia K. Baker, from an order of the trial court which sustained the motion of the defendants, David L. Tucker and Tucker Enterprises, a corporation, to dismiss at the conclusion of plaintiffs’ evidence. Plaintiffs also appeal from an earlier order of the court denying the parties a jury trial. There is some dispute whether David L. Tucker was a proper party defendant but that issue having never been reached by the trial court is not an issue before this court. We will refer to the appellees as defendants, or collectively as Tucker.
On August 1, 1976, plaintiffs entered into a contract with Tucker for the purchase from Tucker of certain lots in Carbon-dale and for Tucker to construct a dwelling house upon the lots. The construction contract provided, among other things, that plaintiffs could request changes in the plans and specifications as construction progressed, plaintiffs would provide certain fixtures and furnishings for the house and plaintiffs would do their own interior painting and decorating. The contract further provided time was of the essence and the completion and closing dates were January 1, 1977. Construction began and in December, 1976, it became apparent the construction would not be com pleted by January 1st. The parties then entered into a written modification of the contract whereby the date of completion was extended to January 12, 1977, and the date of possession and closing to February 20, 1977. The modification agreement also provided for liquidated penalty damages of $100.00 per day for each day the house remained uncompleted after January 12, 1977. On January 15, 1977, plaintiffs informed defendants of items not completed. Again on February 21, 1977, plaintiffs advised defendants of items not completed. On March 2, 1977, plaintiffs filed suit praying for rescission of the contract, damages and penalty money. Tucker answered alleging the delay, if any, was caused by acts of the plaintiffs; the delay, if any, was caused by conditions beyond the control of Tucker; and that Tucker had performed under the terms of the contract. Tucker counterclaimed seeking $55,000.00 damages plus future damages which might accrue. While it is not clear from the proceedings, it also appears from the answer and counterclaim that defendants originally sought specific performance of the contract with plaintiffs. Plaintiffs filed an answer to the counterclaim and subsequently filed an amended petition in which they sought rescission, special damages of $6,385.70, damages under the penalty clause of the contract modification in the amount of $4,700.00 and $7,000.00 additional damages as the increased cost, due to inflation, of purchasing a comparable house. No answer was ever filed to the first amended petition.
The trial court file next discloses that a pretrial order was filed April 11, 1978, referring to a pretrial conference apparently held July 11, 1977. The order was signed by counsel for the plaintiffs and the judge but not by counsel for defendants. On the same date, April 11, 1978, counsel for defendants filed an objection to the proposed pretrial order. On April 15, 1978, an order was filed which purports to cover a pretrial conference held April 11, 1978. This order was not signed by anyone. Defendants’ original answer and counterclaim demanded a trial by jury, and plaintiffs assert that at the first pretrial conference they also requested a jury trial.
In December, 1977, the defendants sold the house and lots, which were the center of controversy, to third parties for a sum which plaintiffs assert was greater than the original amount contracted for by the parties. At the time of trial and at the time of filing the various pretrial orders, the court as well as the parties knew the property had been sold. With the record and pleadings in this rather confused state, the matter finally came before the court for trial on April 17, 1978. Defendants insisted plaintiffs must elect whether they were seeking rescission or damages and asserted they could not recover both. Plaintiffs indicated they were proceeding upon rescission but that if rescission was not granted, they wanted their damages. The court, after extensive argument and discussion of the various pleadings and pretrial proceedings, determined that the action was one for rescission; that it would not allow a jury; and that it would bifurcate the trial and proceed to hear evidence only on the grounds for rescission. If rescission was granted, it would then take up the evidence relating to the restoration of the status quo.
Plaintiffs asserted three principal breaches by defendants which they contend were material and substantial enough to warrant rescission: (1) the living room bay window did not run all the way to the floor as required by the plans; (2) the upstairs hallway was 3 inches too narrow; and (3) the general delay in completion of construction. Testimony revealed plaintiffs had been aware of the defects in the bay window and upstairs hall since early in the construction phase and testified on cross-examination that their real complaint was the delay in getting the house finished. Plaintiffs attempted to introduce the testimony of the new owners of the subject property to show the property had been sold by the defendants on December 6, 1977, for a sum in excess of the amount in the contract between plaintiffs and defendants. Counsel for Tucker stipulated the property had been sold and objected to any further evidence about the sale. The objection was sustained. At the close of plaintiffs’ evidence, the defendants moved for a dismissal. The court granted the motion and dismissed plaintiffs’ action for the reason they had not proved a material breach by defendants which would justify rescission. Defendants then dismissed their counterclaim without prejudice. Plaintiffs appeal.
In its ruling the trial court found there had been substantial compliance with the terms of the contract by defendants; there was no material breach of the contract by defendants; defendants were ready, willing and able to complete the construction in February, 1977; plaintiffs, by the modification of the contract, had an adequate remedy at law for the delay in finishing construction; and plaintiffs failed to present evidence warranting rescission. No comments, findings or conclusions were made respecting the sale of the property by the defendants during litigation.
In the recent case of Whiteley v. O'Dell, 219 Kan. 314, 548 P.2d 798 (1976), the late Justice Owsley set forth some basic principles which are relevant to actions for rescission of building contracts.
“It is not every breach which gives rise to the right to rescind a contract. In order to warrant rescission of a contract the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement.” p. 316.
“[In an action based upon equitable principles] it was within the inherent equitable power of the court to grant relief which would achieve justice and equity.” p. 318.
“Rescission operates to extinguish the contract so that for all intents and purposes it never existed. It is generally held that a lawful rescission of a contract prevents recovery of damages for the breach.” pp. 318-319.
“As a general rule, upon rescission of a contract the parties must be placed in substantially the same condition as when the contract was executed.” p. 319.
Before proceeding further we pause to note that the cases and authorities have frequently confused the terms rescission, repudiation and restitution and many times have used them interchangeably. See Williston on Contracts, Third Edition Section 1454A, et seq. We do not deem it necessary nor advisable to attempt to clarify this confusion in this opinion.
We will now turn to the specific points asserted by plaintiffs in this appeal.
Plaintiffs’ first point on appeal is that the trial court committed error in refusing to grant the parties a jury trial. All parties appear to concede that the case as it finally went to trial was one for rescission of the contract. An action in rescission is considered equitable, and it has long been the rule in this state that a litigant is not entitled to a jury as a matter of right in an equitable action. For an excellent review of the constitutional provisions, statutes, and principles controlling the right to a jury trial, see the opinion by Prager, J. in Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 561 P.2d 825 (1977). As stated in Quan:
“At common law and under the Kansas constitutional provisions in a suit in equity a party is not entitled to a trial by jury as a matter of right.” p. 600.
Appellants’ first point is without merit.
The next point raised by plaintiffs is that the trial court committed error in sustaining defendants’ objection to the testimony of the purchasers of the real estate and the proffer of evidence which plaintiffs allege would have shown the sale of the property for a sum in excess of the contract price with the plaintiffs. Plaintiffs attempted to introduce the evidence for two reasons. First, they contend that the sale of the property in question by the defendants constituted an acquiescence in plaintiffs’ rescission of the contract. Second, the evidence was offered to show that defendants had not suffered any damages as alleged in their counterclaim. Defendants on the other hand claim that the sale of the property was not an acquiescence in plaintiffs’ attempted rescission but was done to mitigate damages which were accruing daily to defendants who had substantial sums of money tied up in the newly constructed house. The trial court was of the opinion that the sale, occurring ten months after suit was filed, was too remote in time to constitute an acquiescence in the attempted rescission of the contract. Counsel have cited no cases squarely on point and our research has failed to disclose any. In view of the decision reached later in this opinion, the court should have admitted such evidence in order to make a final determination of all the issues.
Plaintiffs’ third point also has to do with the refusal of the court to admit certain evidence. Plaintiffs attempted to introduce testimony that defendants had orally represented to them that there would be no other houses built in the neighborhood that would vary in value more than $5,000.00 from that of the house being constructed for plaintiffs and that such representation was untrue. The parol evidence was offered to vary the terms of the written contract and was properly excluded.
Finally, plaintiffs contend the court committed error in sustaining the defendants’ motion to dismiss at the end of plaintiffs’ evidence. We agree with plaintiffs.
The court, having heard the evidence, found that the alleged failures of the defendants did not constitute such material and substantial breaches of the contract to justify rescission. This constituted a factual finding, supported by competent evidence, and will not be disturbed on appeal. Conversely, the finding implies that plaintiffs’ correct remedy was one for damages. Plaintiffs had originally petitioned for both rescission and dam ages but when placed in the position of being forced to elect the theory they were going to proceed upon chose rescission. In an action for rescission a correct finding by the trial court that the defendant’s failure to perform the contract did not constitute a material and substantial breach would ordinarily be dispositive of an appeal. Lehigh, Inc. v. Stevens, 205 Kan. 103, 468 P.2d 177 (1970); In re Estate of Brown, 189 Kan. 193, 368 P.2d 27 (1962); Thompson v. Wade, 154 Kan. 611, 121 P.2d 189 (1942). However, the unusual factual situation faced by the trial court requires further consideration.
In the instant case plaintiffs assert they had paid defendants $3,859.70 as a down payment, had expended $1,526.00 on fixtures and other items placed in the property and used their oWn labor having a value in excess of $1,000.00 in painting and decorating the property. As the case now stands, defendants have been allowed to retain the cash, keep the fixtures and other items placed in the property, take advantage of the labor of the plaintiffs and also dispose of the property for a sum alleged to be in excess of the original contract price. On the other hand, the defendants alleged in their counterclaim that plaintiffs refused to go through with the contract resulting in damages to defendants in excess of $55,000.00.
Neither of the parties contend that the trial court did not have complete equitable jurisdiction.
“A court of equity once having acquired jurisdiction of a subject matter will reach out and draw into its consideration and determination the entire subject matter and bring before it the parties interested therein, so that a full, complete, effectual and final decree adjusting the rights and equities of all the parties in interest may be entered and enforced.” Place v. Place, 207 Kan. 734, Syl. ¶ 3, 486 P.2d 1354 (1971).
In 27 Am. Jur. 2d, Equity § 249, it is stated:
“While equitable jurisdiction is generally to be determined with reference to the situation existing at the time the suit is filed, the relief to be accorded by the decree is governed by the conditions which are shown to exist at the time of making thereof, and not by the circumstances attending the inception of the litigation. In making up the final decree in an equity suit the judge may rightly consider matters arising after suit was brought. Therefore, as a general rule, equity will administer such relief as the nature, rights, facts, and exigencies of the case demand at the close of the trial or at the time of the making of the decree.”
In Nelson v. Robinson, 184 Kan. 340, 336 P.2d 415 (1959), the plaintiff sought cancellation of a real estate sales contract. The court, after hearing evidence, refused cancellation of the contract but granted a decree giving equitable relief to the parties by way of foreclosure with rights of redemption. On appeal it was asserted that the court had no power in law or in equity to render the judgment it did because its action resulted in making a new contract between the parties. The court in rejecting this argument stated:
“In taking this position defendants either overlook or ignore numerous decisions of this court holding (1) that it is a well-settled principle of equity jurisprudence that where a court of equity has obtained jurisdiction of a controversy on any ground it will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject matter (citations omitted); (2) that a trial court, sitting as a court of equity, is not obliged to render the specific decree prayed for, but may render a decree in accord with its own good judgment or discretion as to what justice demands, in view of the facts pleaded and evidence adduced (citations omitted); and (3) that in a suit in equity where a court has before it all the property involved, all the parties claiming rights thereto and their respective claims, it should complete the determination of their respective rights and make an appropriate decree so as to avoid future litigation, as far as possible (citations omitted).” pp. 344-345.
Based upon the facts in this case, we are of the opinion that the trial court should have exercised its discretion and broad general equity powers to evaluate the claims between the parties and effect a just, fair and equitable disposition of the case. See Livingston v. Krown Chemical, 394 Mich. 144, 229 N.W.2d 793 (1975), aff’g 50 Mich. App. 153, 212 N.W.2d 775 (1973); and R.I. Dairy Queen, Inc. v. Burke, 95 R.I. 339, 187 A.2d 521 (1963).
We have also considered defendants’ motion filed in this court for a dismissal of plaintiffs’ appeal for an alleged lack of jurisdiction for failure of plaintiffs to strictly comply with Rule No. 2.04 and the motion is denied.
The decision of the trial court dismissing plaintiffs’ action is reversed and the case remanded with directions that the trial court conduct such further proceedings and receive such further evidence as is necessary to adjust all of the claims between the parties in accordance with the views expressed in the opinion.
Reversed and remanded with directions.
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The opinion of the court was delivered by
McFarland, J.:
Kellogg Mall Associates, plaintiff-appellant, is the owner-developer of Towne East Shopping Center in Wichita and challenges the Sedgwick County Assessor’s 1976 appraised valuation of said property. The appraised valuation was affirmed by the Sedgwick County Board of Equalization, the State Board of Tax Appeals (sitting as a state board of equalization), and the district court of Sedgwick County. Kellogg Mall Associates, hereinafter referred to as taxpayer, brings this appeal.
Towne East occupies two tracts of land (referred to as Tract 1 and Tract 5), and both tracts are involved in this appeal. With this explanatory statement we turn to the Board of Tax Appeal’s complained-of order of April 28, 1977:
ORDER OF BOARD OF TAX APPEALS
“5. That Appellant, Kellogg Mall Associates, is the owner-developer of the improvements which comprise what is known as Towne East shopping center in Wichita, Sedgwick County, Kansas and is the lessee of the land on which those improvements are located from Chrysler Realty Corporation.
“6. That the 1976 appraised value of the property, which is the subject of this appeal, represents the fair market value of that property as asserted by Sedgwick County and as stipulated to by Appellant for the purpose of this hearing only.
“7. That the improvements on Appellant’s property known as Tract 5 and bearing tax key no. C-37292 (main shopping area tract) was appraised at a 100% valuation of $13,485,100.00. That the appraisal was arrived at generally by multiplying one-half the number of square feet in the improvements by $38.10; then adding values for escalators and elevator shafts; and, then discounting the total by 16% for unfinished space. That the average square foot value for the improvements, as appraised, is approximately $17.00.
“8. That the land on Appellant’s property known as Tract 5 and bearing tax key no. C-37292 (main shopping area tract) was appraised at a 100% valuation of $3,274,566.00 which valuation averages $1.65 per square foot.
“9. That the improvements on Appellant’s property known as Tract 1 and bearing key no. C-37292-0004 (Dillard’s) was appraised at 100% valuation of $3,120,933.30 resulting in a square foot average valuation of approximately $17.50.
“10. That the land on Appellant’s property known as Tract 1 and bearing key no. C-37292-0004 (Dillard’s) was appraised at a 100% valuation of $1,076,933.30 resulting in a per square foot average valuation of $1.84. Appellant is requesting the appraised valuation for 1976 to be reduced to the following amounts:
“A. Improvements Tract 5 Key No. C-37292
623,008 square feet of unfinished space as of January 1, 1976 at $7.00 per square foot (which has the effect of leaving the unfinished space in the total valuation at an average of $2.00 per square foot) added to 180.000 square feet of mall area at $6.00 per square foot for a total 100% valuation of $5,728,072.00.
“B. Land Tract 5 Key No. C-37292
45 acres at $1.00 a square foot for a total 100% appraised valuation of $1,960,200.00.
“C. Improvements Tract 1 Key No. C-37292-0004
179.000 square feet at $9.00 per square foot for a 100% appraised valuation of $1,611,000.00.
“D. Land Tract 1 Key No. C-37292-0004
13.431 acres at $1.00 per square foot for a 100% appraised valuation of $585,054.36.
“11. APPELLANT ASSERTS:
“A. That the shopping centers known as Pawnee Plaza, The Mall, Twin Lakes, and Prairie Village all located in Wichita, Sedgwick County, Kansas, while not identical to Appellant’s property, are sufficiently similar to be considered comparables.
“B. That the appraised fair market valuations for the centers referred to above as Pawnee Plaza, The Mall, Prairie Village, and Twin Lakes were arrived at by the Sedgwick County Assessor’s office by totalling the valuations of various areas of the centers which were appraised separately, such as but not limited to, separate appraisals for mall areas, unfinished space, and store areas.
“C. That the methods and procedures used by the Sedgwick County Assessor’s office in appraising Towne East were not the same as those used for the other shopping centers referred to above.
“D. That the 1976 valuations for the comparable shopping centers referred to above as Pawnee Plaza, Twin Lakes, Prairie Village, and The Mall do not reflect their fair market values for the year 1976 and that said properties are undervalued.
“E. That in order for the statutory and constitutional requirements of uniformity and equality in appraisement and assessment for tax purposes to be met, the appraised valuation for Appellant’s property should be reduced to values' commensurate with the aforementioned shopping centers in Sedgwick County.
“F. Appellant stipulated, for the purposes of this appeal only, that the valuations placed on its property for the year 1976 by the Sedgwick County Assessor’s office represented its fair market value and Appellant offered no evidence that the valuations exceeded fair market value. The foregoing stipulation was entered into by Appellant only for the reason that the main legal basis of its claim for relief in this matter is that the statutory and constitutional requirements of appraising all real property uniformly and equally at fair market value were not adhered to by the Sedgwick County Assessor’s office and that such actions by the Sedgwick County Assessor’s office were therefore, arbitrary, oppressive and discriminatory, constituting fraud upon the rights of the Appellant.
“12. SEDGWICK COUNTY ASSERTS:
“A. That as to the improvements on Tract 5, the County Assessor’s office at the time of appraisal allowed 16% depreciation factor for unfinished space.
“B. That the property in question was personally inspected by person, or persons from the office of the Sedgwick County Assessor who appraised and assessed said property at the time of its valuation.
“C. The position of Sedgwick County is that the properties suggested by the appellant as comparable to the instant property are not comparable with the property of the taxpayer and there is, in fact, no comparable property in Sedgwick County, Kansas.
“D. That at the time the Sedgwick County Assessor appraised the taxpayer’s property for fair market value, the County Assessor considered the factors as required by K.S.A. 79-503.
“E. That the assessed value of the appellant’s property, as well as other properties located within Sedgwick County, Kansas, is thirty percent (30%) of the fair market value as determined by the Sedgwick County Assessor.
“F. Usual and customary practice of the Sedgwick County Assessor’s office is to grant depreciation allowance in proportion to the amount of unfinished space.
“13. K.S.A. Supp. 79-1439 states in part that:
. . . all real and tangible personal property which is subject to general property taxes shall be appraised uniformly and equally at its fair market value in money as defined in K.S.A. 1968 Supp. 79-503, as amended . . .
“14. K.S.A. Supp. 79-1406 also states in part that ‘all property real or personal, shall be appraised at its fair market value in money . . .’
“15. The foregoing statutes find their constitutional basis in Article 11 Section 1 of the Kansas Constitution which states in part that:
the legislature shall provide for a uniform and equal rate of assessment and taxation . . .
“16. The appellant submitted some five (5) other properties which they alleged are comparable to the instant properties. This Board having had the opportunity to make personal site views of the appellant’s property and the property suggested by the appellant as comparable can readily realize that the properties alleged to be comparable by the appellant to the instant property are, in fact, not comparable. Furthermore, the Board heard testimony from the Sedgwick County Assessor that the taxpayer property is not comparable in location, design, construction, configuration, etc. Testimony was that, in fact, there is not another comparable property as the taxpayer’s in Sedgwick County, Kansas.
“17. The only evidence introduced as to the fair market value of the alleged comparable properties is the records of the Sedgwick County Assessor’s office. Appellant presented no evidence that would show that the fair market value as determined by the Sedgwick County Assessor’s office of the alleged compared properties, are not, in fact, their true fair market values. The evidence before the Board was that the person, or persons, from the Sedgwick County Assessor’s office had made personal inspection of the property of the appellant. It was testified before this Board that the Sedgwick County Assessor’s office making valuations of properties in Sedgwick County, Kansas, considered all the factors as provided in K.S.A. 79-503. Testimony further showed these factors were considered in the valuation of the appellant’s property, and those properties alleged to be comparable property by the appellant.
“18. The Board has reviewed the transcript of the testimony of Mr. Gerald Sanders and Mr. Louis Earle of the Sedgwick County appraiser-assessor’s office. It is the finding and conclusion of the Board that the essence of said testimony, taken in its most favorable light, from the viewpoint of the taxpayer-appellant, is that, compared to speculative sale prices, the alleged comparables referred to by the appellant, have been appraised at a fair market value lower than the price that could be expected from a sale of those properties. No evidence of sales of comparable properties was introduced. It is further noted that the Board has not been provided with evidence of net income capitalization concerning appellant’s properties as compared to that of the other alleged comparables. In this connection, the Board notes K.S.A. 79-503 which, in setting forth factors to be ‘used in connection with’ sales as criteria of fair market value, provides that ‘sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and such other factors as may be appropriate including but not by way of exclusion’: classification of lands and improvements, size, location, depreciation, including physical deterioration or functional, economic or social obsolescence, cost of reproduction or improvements, productivity, earning capacity as indicated by lease price or by capitalization of net income, rental or reasonable rental values, sale value on open, market with due allowance to abnormal inflationary factors influencing such values, and comparison with values of other property of known or recognized value, together with a specific proviso that ‘the ratio study shall hot be used as an appraisal for appraisal purposes’. The section further provides that ‘the appraiser or assessor in arriving at fair market value in money may use different factors in determining the classifications best suited to arrive at fair market value in money as defined in this section’. Without exact summarization in narrative form, it is noted that during extensive and thorough cross-examination, Mr. Earle repeatedly stated and qualified his observation (that other shopping centers, referred to by him, were appraised too low) by stating that said properties were too low ‘in terms of the selling price’. During repeated questioning Mr. Earle stated that the valuations of the other properties were ‘our fair market value’; and
“19. The stipulation that, for the purpose of this hearing, Appellant’s property was appraised at its fair market value, the consequent assessment at 30% thereof was fully in compliance with and mandated by K.S.A. 79-1439. Absent evidence that all the alleged comparable properties were assessed at less than fair market value (that the assessments were 30% of appraised value is not questioned), the case of Gordon v. Hiett, 214 Kan. 690, 522 P.2d 942, would dictate a denial of the application of appellant’s assessment below 30%; however, it is noted that this Board has not been provided with evidence that the alleged ‘comparables’ were in fact com-parables as appellant asserts; nor has it been shown that they were appraised at less than fair market value, or that they were all assessed at less than 30% of fair market value. Appellant’s stipulation, coupled with a lack of necessary evidence requires this Board to approve the assessment mandated by the Legislature.
“20. The evidence herein presented is insufficient to establish a systematic, arbitrary, or intentional discrimination against the appellant’s property with respect to the fair market value of real estate in the County.
“21. The evidence herein presented fails to establish conduct of the Sedgwick County Assessor as arbitrary, oppressive and grossly discriminatory that it would constitute a fraud on the right of the appellant.
“22. It is certainly fair to observe that, taken in its total context, the evidentiary presentation of Sedgwick County during the course of the hearings on these matters, shows probable cause for believing that the taxing officials of Sedgwick County, Kansas should forthwith give the most serious consideration to whether there is a need for a reappraisal and reassessment of all shopping center properties located within Sedgwick County. The Board, of course, is fully aware of the administrative and technical difficulties involved in carrying out such activities, if needed; nevertheless, the Board observes and points out that reappraisal and reassessment is a continuing obligation and that the Constitution and the Statutes of the State of Kansas require equal appraisal and assessment together with appraisal and assessment of property based upon fair market value. In this connection, the Board is mindful of its own power, duties, and responsibilities and it is the sincere hope and belief of this Board that the foregoing observations should be considered sufficient to prompt immediate inquiry on the part of those Sedgwick County taxing officials responsible for effecting proper appraisal and assessment within constitutional and statutory guidelines and requirements; and
“23. The instant appeals have been vigorously prosecuted by the appellant and defended by Sedgwick County. Counsel for each of the adversaries are to be commended for their thorough raising and discussion of all relevant issues necessary to this decision. All questions raised by counsel have been most seriously considered by the Board in its deliberations; and
“24. Having considered all relevant factors involved in the instant appeals, the Board concludes and determines that said appeals should be and they are hereby denied and no modification will be made concerning the valuations of appellant’s property as determined by the taxing officials of Sedgwick County and as approved by the Board of Equalization of Sedgwick County for the tax year 1976.
“It Is So Ordered.”
Five members of the Board of Tax Appeals heard the appeal, with four members approving the order. The fifth member, LeRoy Randolph, Jr., wrote the following dissent:
DISSENTING OPINION
“I respectfully dissent from this Board’s denial of relief of the taxpayer-shopping center wherein the taxpayer-shopping center sought to be taxed uniformly and equally with other shopping centers in Sedgwick County.
“The testimony of the Assessor in this case rather clearly indicates that the other shopping centers in Sedgwick County were appraised too low. This being an Equalization matter, the taxpayer-shopping center was well within the equalization statute in requesting a lower appraisal. In this regard, I am in accord with the cases of Addington v. Board of County Commissioners, 191 Kan, 528, 382 P.2d 315; and Chief Justice Fatzer’s dissent in Gordon v. Hiett, 214 Kan. 690, 522 P.2d 942.
“The taxpayer’s stipulation as to their being at fair market value for purposes of this appeal, was conditioned on the concepts of equal treatment as enunciated in the cases above cited and embodied in the principal of equalization enunciated in the case of Sioux City Bridge v. Dakota County, 260 U.S. 441, 67 L.Ed. 340, 43 S.Ct. 190; cited and relied on by the Kansas Supreme Court in Addington.
“For these reasons I would reduce the taxpayers assessment in accord with the percentage of assessment of other shopping centers in Sedgwick County which are all admittedly ‘too low’.”
ORDER OF THE DISTRICT COURT
The taxpayer appealed this order to the district court. The district court, in essence, adopted all of the Board’s findings and added the following:
“(3) The State Board of Equalization’s Order was supported by substantial evidence that the Plaintiff’s property was assessed at fair market value, and assessed or appraised at fair market value and assessed for taxes at 30% of said value.
“(4) The Court finds that the testimony reflects that the Board considered all pertinent factors mandated by K.S.A. 79-503 in arriving at the appraised values. The finding that the property of the Plaintiff was not comparable to the alleged comparable properties was based on their own personal inspection of the property and the testimony of the County Assessor.”
The district court then concluded:
“(1) A District Court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by the evidence, and (3) the tribunal’s action was within the scope of its authority. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828.
“(2) The Board did not act fraudulently, arbitrarily, or capriciously in finding that the evidence was insufficient to establish that the Plaintiff was entitled to any relief.
“(3) It is not this Court’s prerogative to substitute its judgment for that of the Board in weighing conflicting evidence and it will not do so. The Order of 4/28/77 was supported by substantial evidence that the Plaintiff’s property and the comparable properties were assessed at fair market value and appraised at fair market value and assessed for taxes at 30% of said value.
“(4) Inasmuch as the Plaintiff admits that it is assessed in accordance with K.S.A. 79-1439 at 30% of fair market value as mandated by the Legislature, it would not, in any event, be entitled to have its assessment lowered, by this Court, citing Gordon v. Hiett, 214 Kan. 690.
“(5) The Court further finds that the Board’s action was within the scope of its authority.
“(6) The Board did not act unreasonably, fraudulently, arbitrarily, or capriciously in finding that the property of the Plaintiff was not comparable to the alleged comparable properties based on their own personal inspection of the property and the testimony of the County Assessor.
“It is Therefore Considered, Ordered, Adjudged and Decreed that the appeals of Kellogg Mall Associates from the decision of the State Board of Tax Appeals in Appeals numbered 12-76-E and 13-76-E be and the same are hereby denied and that judgment be and is hereby granted against said Kellogg Mall Associates for the costs herein for which let execution issue.”’
The issues on appeal fall into two categories. The first consists of multiple claims of error in the Board’s findings. The second deals with whether, even with favorable evidentiary findings, the taxpayer would be barred from relief by virtue of the holding of Gordon v. Hiett, 214 Kan. 690, 522 P.2d 942 (1974), inasmuch as the taxpayer had stipulated its property was appraised at fair market value and it was undisputed that the statutory 30% assessment had been uniformly applied to all properties.
The pertinent constitutional and statutory provisions are as follows:
The Kansas Constitution, Art. 11, § 1, provides: “The legislature shall provide for a uniform and equal rate of assessment and taxation . . . .”
K.S.A. 79-1439 requires all property to be “appraised uniformly and equally at its fair market value in money, as defined in K.S.A. 79-503, and assessed at thirty percent (30%) thereof. A variance of ten percent (10%) of such thirty percent (30%) shall not be considered a violation of this subsection.”
K.S.A. 79-503 defines fair market value:
“Fair market value in money shall mean the amount of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting, assuming that the parties thereto are acting without undue compulsion and that the property has been offered at the market place for a reasonable length of time. Sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and such other factors as may be appropriate including but not by way of exclusion:
“(a) The proper classification of lands and improvements;
“(b) the size thereof;
“(c) the effect of location on value;
“(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
“(e) cost of reproduction or improvements;
“(f) productivity;
“(g) earning capacity as indicated by lease price or by capitalization of net income;
“(h) rental or reasonable rental values;
“(i) sale value on open market with due allowance to abnormal inflationary factors influencing such values; and
“(j) comparison with values of other property of known or recognized value. The ratio study shall not be used as an appraisal for appraisal purposes.
“The appraiser or assessor in arriving at fair market value in money may use different factors in determining the classifications best suited to arrive at fair market value in money as defined in this section.”
The county argues that the taxpayer is precluded from relief on two grounds:
1. The taxpayer did not prove inequality of assessment nor that there was any systematic, arbitrary, or intentional discrimination of assessment.
2. The law as set forth in Gordon v. Hiett, 214 Kan. 690, precludes relief because taxpayer admitted he was assessed at fair market value.
The contentions of the taxpayer as to why it should have relief are summarized in the Board’s order. Some elaboration is necessary, however. Towne East was new when appraised in 1976— which in essence was its first appearance on the tax rolls. The four allegedly comparable shopping centers were older and their appraised valuations had remained relatively unchanged in 1976 and years immediately prior thereto. The taxpayer contends the assessor’s office deliberately held these other shopping centers to their earlier appraisals and, by appraising Towne East on the basis of 1976 values, discriminated against it. In support of this contention the taxpayer took the assessor’s figures for all five shopping centers and computed them on an average square foot basis (with year of last in-depth appraisal) as follows:
Shopping Center Improvement Land Year
1. Towne East
Tract 1 $17.50 $1.84 1976
Tract 5 17.00 1.65 1976
2. Pawnee Plaza 4.27 .80 & .10 1973
3. Prairie Village 8.87 1.00 & .90 1974-75
4. Twin Lakes 8.01 1965-66
5. The Mall 8.77 1969-70
The taxpayer contends discrimination was established by the above averaged figures for what it considers comparable properties, plus the testimony of the Sedgwick County Assessor, Louis Earle, to the effect that the four lower assessed shopping centers would probably sell for more than their appraised value. Mr. Earle also testified that Towne East would probably sell for more than its appraised value, but that testimony was stricken on the basis that the fair market value of Towne East had been stipulated.
The Board of Tax Appeals, the district court, and the parties all cite Gordon v. Hiett, 214 Kan. 690. In Gordon, the admitted facts for the year in question were: Taxpayer’s property (1) had a fair market value of $198,200; (2) was assessed at $86,560; and (3) the assessed value was 43% of the market value. The facts for the year in question also disclosed that real property in the county was assessed at from 6% to 45% of fair market value, with the median being 15% of fair market value. The proper statutory rate of assessment was 30%, as in the case before us. The court in Gordon, on these admitted facts, held:
“When a taxpayer’s property is appraised for tax purposes at a fixed sum there can be no justification for assessing the same at forty-three percent, rather than the statutory rate of thirty percent. To do so constitutes arbitrary, oppressive action by the taxing officials with sufficient discrimination to constitute constructive fraud. Accordingly, we must reverse the trial court and direct an assessment of the taxpayer’s property at the statutory rate. Computation of plaintiff’s recovery for taxes paid under protest should be made accordingly.” p. 698.
The taxpayer relies heavily on the earlier case of Addington v. Board of County Commissioners, 191 Kan. 528, 382 P.2d 315 (1963), which was distinguished in Gordon on the basis that the 30% statutory rate of assessment was not in effect. In Addington, the taxpayer established through his evidence that his property was assessed at more than 30% of its true value and that the median ratio of assessed value of real estate to its sale value on property sold in the county during the year in question was 12%. This court, in Addington, held:
“Under the facts, as more fully set forth in the opinion, the rate of assessment fixed by the county clerk-assessor at more than thirty per cent of the true value of plaintiff’s property, as compared to the rate of assessment of twelve per cent of the market value of all other property located in the county and subject to the same tax levy, was so arbitrary, oppressive and grossly discriminatory that it constituted constructive fraud on the rights of the taxpayer and destroyed uniformity and equality in the manner of fixing the assessed valuation, and was illegal.” Syl. ¶ 5.
In Addington, the taxpayer was able to establish that his property had been singled out for a discriminatory assessment and relief was granted under the factual situation.
In both cases there was no real dispute on appeal that the taxpayers’ respective properties were assessed at a much higher percentage of market value than the vast majority of other properties within the county. Assessment uniformity, rather than valuation uniformity, was the crux of both cases and each case turned on whether the taxpayer was entitled to relief on the basically undisputed assessment disparities shown. Contrast this to the case before us, where:
1. By stipulation, the appraised value of the taxpayer’s property is its true market value;
2. It is undisputed that the statutory 30% rate of assessment is uniformly applied to all property within the county;
3. There are approximately 150,000 parcels of land within the county;
4. Taxpayer’s claim of discriminatory treatment is based on the appraised valuation of four of the 150,000 parcels;
5. The four parcels of land so selected by taxpayer as “comparables” are in the same general classification of business as taxpayer’s land, i.e., shopping centers;
6. Taxpayer presented no evidence as to what the correct market value of any of the “comparables” should be; and
7. The claim of discriminatory treatment rests primarily on the fact the appraised values of the “comparables” had not substantially increased with the passage of time and that the “comparables,” if sold, would probably sell for more than their appraised values.
The proper standard of judicial review of acts of administrative agencies was set forth in the much quoted case of Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶¶ 1 and 2, 436 P.2d 828 (1968):
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.”
“In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.”
The fact that this court shall review on the same basis as did the district court is particularly significant in this case where a new ground for affirmance was added by the district court. The county contends that even if the taxpayer had proven its contentions, relief would still have been barred by virtue of Gordon v. Hiett, 214 Kan. 690. The Board stated:
“19. The stipulation that, for the purpose of this hearing, Appellant’s property was appraised at its fair market value, the consequent assessment at 30% thereof was fully in compliance with and mandated by K.S.A. 79-1439. Absent evidence that all the alleged comparable properties were assessed at less than fair market value (that the assessments were 30% of appraised value is not questioned), the case of Gordon v. Hiett, 214 Kan. 690, 522 P.2d 942, would dictate a denial of the application of appellant’s assessment below 30%; however, it is noted that this Board has not been provided with evidence that the alleged ‘comparables’ were in fact com-parables as appellant asserts; nor has it been shown that they were appraised at less than fair market value, or that they were all assessed at less than 30% of fair market value. Appellant’s stipulation, coupled with a lack of necessary evidence requires this Board to approve the assessment mandated by the Legislature.”
Clearly, the Board did not conclude that Gordon v. Hiett was an absolute bar to the taxpayer’s claim for relief by virtue of the stipulation. The arguments to the Board went to evidentiary considerations and no claim of “absolute bar” was made.
The district court affirmed the Board, applying the rules for judicial review enunciated in Foote, and further concluded:
“(4) Inasmuch as the Plaintiff admits that it is assessed in accordance with K.S.A. 79-1439 at 30% of fair market value as mandated by the Legislature, it would not, in any event, be entitled to have its assessment lowered by this Court, citing Gordon v. Hiett, 214 Kan. 690.”
We have carefully reviewed the record and conclude: (1) The Board acted within the scope of its authority; (2) the Board’s order was substantially supported by the evidence; (3) the Board did not act fraudulently, arbitrarily, or capriciously; and (4) the district court did not err in so concluding. By virtue of this result we do not reach the issues of the propriety of the district court’s determination relative to the effect of Gordon v. Hiett.
All points raised, whether or not specifically enumerated herein, have been considered and found to be without merit.
The judgment is affirmed.
Holmes, J., not participating.
Pursuant to Article 3, section 6(f), of the Constitution of the State of Kansas, the Honorable Floyd H. Coffman, judge of the district court of the Fourth Judicial District, was assigned by the Chief Justice to participate in this court’s decision in the foregoing case, vice Holmes, J. | [
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Per Curiam:
On August 9,1979, a panel of the Kansas Board for Discipline of Attorneys held a hearing on a complaint against respondent Wilbur S. Stakes, Jr., a member of the bar of this state practicing in Leavenworth County. The panel filed its report, findings and recommendation on September 4, 1979. The action is before this court pursuant to Supreme Court Rule 212 (225 Kan. lxxxvi-lxxxvii).
The formal complaint encompassed two separate complaints filed with the Board. The first matter involved alleged conflict of interest arising from certain dealings between American Roofing & Heating Co., Inc., and the City of Lansing, Kansas. Respondent had been closely involved with the corporation as an attorney, officer, and named stockholder prior to being appointed as the Lansing city attorney. While respondent was serving as city attorney the corporation had certain dealings with the city. Further recitation of the involved factual situation relative to this aspect of the complaint is unnecessary, inasmuch as the panel dismissed this portion of the complaint on the ground of insufficiency of the evidence.
This brings us to the section of the complaint involving the respondent’s charging of an allegedly excessive fee (DR 2-106, 225 Kan. xcix) to the City of Lansing. A rather unusual procedure was utilized by the panel in the hearing herein. This procedure resulted from the circumstance that both counsel had entered into written stipulations of fact with documentary attachments thereto. At the hearing neither counsel presented any additional evidence. The panel accepted the stipulations as the disciplinary administrator’s presentation of evidence. Respondent’s counsel, however, did make the respondent available to the panel to answer any questions that members of the panel had relative to the stipulations. This arrangement was apparently in accord with the agreements made by counsel at the time the written stipulations of fact were entered into. As a result of this procedure, the transcript of the hearing consists wholly of questions propounded by the panel members and respondent’s answers thereto.
The stipulation of facts, shorn of statements relative to the American Roofing complaint, is as follows:
“1. Wilbur S. Stakes, Jr., is an attorney at law, registered to practice in the State of Kansas, with his last registration address at Holiday Plaza, Lansing, Kansas, 66043.
“2. During the years 1975, 1976 and 1977, and at all times material herein, Respondent was retained by the City of Lansing, Kansas, a municipal corporation, as City Attorney.
“11. On or about June 1,1976, John W. Jamison, through his parents, John W. Jamison and Mable Jamison, petitioned the City of Lansing to re-zone certain property situated in the City of Lansing, for the purposes of establishing Fawn Valley Subdivision. Likewise, on or about the 6th day of June, 1976, John W. Jamison, through his parents, John W. Jamison and Mable Jamison, petitioned the City of Lansing to establish a benefit district for the purposes of constructing streets and sewers to the property subject to the re-zoning.
“12. The firm of Browne and Wessel, Consulting Engineers, Kansas City, Kansas, was hired by the City of Lansing for the purpose of providing street and sewer plans for the improvements to be made in Fawn Valley Subdivision. Attached hereto and marked as Exhibit T are letters dated July 20, 1976, from Robert C. Wessel establishing the engineer’s estimates on the construction of the sanitary sewers and streets in Fawn Valley Subdivision.
“13. The Respondent, Wilbur S. Stakes, Jr., received from the One Hundred and Fifty Thousand Dollars ($150,000) proceeds the temporary notes for the sanitary sewers and streets for Fawn Valley Subdivision certain sums paid by check from the City of Lansing, Kansas, which sums are attached hereto and marked as Exhibit ‘J’ to this petition. It is stipulated the Respondent drew fees in the total amount of Eighty-one Thousand Dollars ($81,000.00) out of the original temporary notes.
“14. That if John W. Jamison were called to testify in this matter he would testify consistent with his Affidavit of August 15,1978, which Affidavit is attached hereto and marked as Exhibit ‘K’ to this stipulation.
“15. That if Charles B. Hall, President of the City Council, the City of Lansing, Kansas, were called to testify, he would testify consistent with his Affidavit of August 9, 1978, which Affidavit is marked and attached hereto as Exhibit ‘L’ to this stipulation.
“16. That W. Edward Nichols is an attorney registered to practice in the State of Kansas. That he is recognized in the State of Kansas as a bond attorney, and the substantial portion of his practice is in the area of government bonds. The parties stipulate and agree he is an expert concerning government bonds, and the proper fees to be permitted and allowed in relationship to the legal work involved with the preparation and issuance of municipal bonds. That if Edward W. Nichols were called to testify in this matter, he would testify consistent with his Affidavit of the 24 day of July, 1979, attached hereto and marked as Exhibit ‘M’ to this stipulation.”
The affidavit of John W. Jamison, referred to in paragraph 14 of the stipulation, is as follows:
“John W. Jamison, of lawful age and being first duly sworn, deposes and states the following, to-wit:
“1. That Affiant is a resident of the City of Eudora, Kansas.
“2. That Affiant’s primary business is that of being a housing developer, having been such for the past twenty (20) years, and intimately aware of and familiar with the housing subdivision in various cities throughout the state of Kansas;
“3. That on or about the first (1st) day of June, 1976, Affiant, through his parents, John W. Jamison and Mable Jamison, petitioned the City of Lansing, to rezone approximately One Hundred and Six (106) acres of unimproved real property situated in the City of Lansing;
“4. That on or about the sixth (6th) day of June, 1976, Affiant and his parents, John W. Jamison and Mable Jamison, petitioned the City of Lansing to establish a benefit district for the purpose of constructing streets and sewers as to the property subject to the rezoning petition;
“5. That on or about the twenty-fourth (24th) day of August, 1976, Affiant entered into an agreement whereby his parents would sell to him the said One Hundred and Six (106) acres;
“6. ’ That Affiant specifically authorized the payment of all engineering and legal fees prior to the commencement of any improvements as to said property;
“7. That Affiant suggested that the City Attorney for the City of Lansing, Kansas, namely, Wilbur S. Stakes, Jr:, should be permitted to charge a fee of eleven percent (11%) as to the estimated cost of improvements, namely, Eighty-One Thousand Dollars ($81,000) and that said fee could be payable to the City Attorney during the first two years of the project;
“8. That Affiant has specifically approved the City Attorney withdrawing his fees as indicated above, in 1976 and 1977;
“9. That Affiant admits receiving a notice of intent to declare a promissory note in default as to the aforementioned Agreement on or about the eleventh (11th) day of December, 1976;
“10. That Affiant, after being notified of default by the City Attorney of Lansing, Kansas, stated to both the City Attorney and the President of the City Council, namely, Charles B. Hall, that the default had been cured, that the project was to proceed, and that the remainder of the agreed upon fees could be paid out of the benefit district funds;
“11. That the Affiant, as the developer of the project, realized that these fees would ultimately be borne by him and the land subject to the benefit district and further authorized the fees to be paid to the City Engineer and City Attorney, respectively.”
The affidavit of Charles B. Hall, referred to in paragraph 15 of the stipulation, is as follows:
“Charles B. Hall, of lawful age and being first duly sworn, deposes and states, to-wit:
“1. That Affiant is a resident of the City of Lansing, State of Kansas;
“2. That Affiant was member of the governing body of the City of Lansing, and President of the Council during all times encompassed by this Affidavit;
“3. That Affiant during all periods of time covered by this Affidavit was chairman of the Finance Committee of the governing body of the City of Lansing;
“4. That Affiant as a member of the governing body of the City of Lansing, and President thereof, was present at all meetings of the City Council concerning the rezoning of certain property owned by John and Mable Jamison, and the petition to the governing body of the City of Lansing to establish a benefit district for the construction of streets and sewers thereon, which petition was signed by both John and Mable Jamison and John W. Jamison of Eudora, Kansas;
“5. That Affiant personally contacted, on several occasions, John W. Jamison of Eudora, Kansas, as developer of the project, concerning the allowance and authorization of fees to the then City Attorney, Wilbur S. Stakes, Jr., in the amount of eleven percent (11%) of estimated cost of the project;
“6. That Affiant spoke with John W. Jamison of Eudora, Kansas, on many occasions in late 1976 and early 1977 as to the allowance of these fees and each occasion, John W. Jamison specifically authorized that these fees should be paid to the City Attorney as well as the City Engineer for work performed on the project in accordance with the agreed upon fees and that these fees were to be paid in advance during the first two years of the project;
“7. That Affiant, as president of the City Council of Lansing, was aware that these fees had been authorized by John W. Jamison, as developer, as purchaser under an agreement to purchase and sell real property with his parents as to said property;
“8. That Affiant telephoned John W. Jamison in early January 1977 to inquire of him as to the notice of intent to declare a promissory note in default, and that John W. Jamison assured Affiant that default had been cured, and that the project was to proceed and that the fees as above mentioned, should be paid to the City Attorney and the City Engineer;
“9. That John W. Jamison repeatedly represented to Affiant that said fees were in fact authorized and approved by Mr. Jamison, that said fees could be paid to the City Attorney and City Engineer and that the fees would ultimately be assumed by the developer as to the project.”
The affidavit of W. Edward Nichols, referred to in paragraph 16 of the stipulation, is as follows:
“W. Edward Nichols, of lawful age, and having been duly sworn on his oath, states:
“1. He is an attorney registered to practice in the State of Kansas, with his office address at Two Townsite Plaza, Topeka, Kansas.
“2. Affiant is a recognized bond attorney in the State of Kansas and a substantial part of his practice is in the preparation and issuance of government bonds.
“3. Affiant has reviewed the bond transcripts for the public improvement projects of the City of Lansing, Kansas, as they relate to Fawn Valley Subdivision, and Affiant has reviewed the Stipulation of Facts in the case of John C. Tillotson, Complainant, vs. Wilbur S. Stakes, Jr., Respondent, Case No. W1262.
“4. Assuming the facts as shown in the bond transcripts and the stipulation, and assuming that the Respondent prepared the bond transcripts for review by bond counsel, I have an opinion as to whether or not the $81,000.00 received by Wilbur S. Stakes, Jr., was excessive, based upon the considerations of DR 2-106 Fees for Legal Services. A maximum fee for the work done, taking the evidence in its most favorable light to the Respondent, would have been Seventy-five Hundred Dollars ($7500.00). That opinion is that the fees for doing that work are excessive. A maximum fee for the work contemplated to complete the ultimate financing taking the evidence in its most favorable light to the Respondent, would have been Seventy-five Hundred Dollars ($7500.00).
“5. Assuming that the Respondent was responsible in addition to the bonding work, for the legal work necessary to have the Fawn Valley Subdivision property platted, re-zoned, and otherwise developed including the installation of all utilities, the pinning of the lots, and other administrative matters related thereto, I do not have an opinion concerning the excessiveness of the fees.”
$75,000 of the temporary note proceeds went into a special account captioned “Fawn Subdivision-Street Improvement City of Lansing, Kansas.” From said account respondent received the following:
9-1-76 $10,000.00
1-4-77 11,000.00
4-28-77 13,000.00
5-16-77 4,500.00
9-19-77 2,000.00
Total $40,500.00
The other $75,000 of the temporary note proceeds went into a special account captioned “Fawn Subdivision-Sewer Improvement City of Lansing, Kansas.” From said account respondent received the following:
9-13-76 $10,000.00
1-4-77 11,000.00
4-28-77 13,000.00
5-16-77 4,500.00
9-19-77 2,000.00
Total $40,500.00
The panel found and concluded as follows:
“This matter was presented again by stipulation of facts which are incorporated herein by reference as though set out in full. In addition thereto, Attorney Stakes testified and was cross-examined by the Disciplinary Administrator and examined by members of the Panel. Further, by agreement of the parties, the transcripts of the temporary notes issued in July of 1976 under date of July 27, 1976, Attorney General letter, and in August of 1976 under date of August 9, 1976, Attorney General letter, were considered as evidence herein and are included in the record herein.
“The allegations of this complaint are that Wilbur S. Stakes acted unprofessionally in that he violated the provisions of DR 2-106 (A). This allegation is an allegation that an attorney has entered into an agreement for or has charged or has collected an illegal or clearly excessive fee. The standard by which such fee is to be determined to be clearly excessive is set forth in DR 2-106(B) (1) through (8), inclusive. In addition thereto, the Kansas Supreme Court in Newcomb v. Brettle, 196 Kan. 560 (1966), has stated as follows:
“ ‘The test is the fairness and reasonableness of the contract as applied to the client; and the question depends upon the circumstances of each case. The words, “unjust or unconscionable,” as applied to these contracts mean nothing more than that the amount of the fee contracted for, standing alone and unexplained, would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been perpetrated upon him. To be unconscionable, the contract must be such as no man in his senses and not under a delusion would make on the one hand, and no honest and fair man would accept on the other. . . .’
“The stipulation of facts is accepted by the Panel as true and correct and is incorporated herein by reference as though set out in full as a finding of fact herein.
“Several comments are in order concerning the stipulation of- facts and the evidence presented by Wilbur S. Stakes, Jr., in this proceeding.
“Essentially, these fees arose out of Wilbur S. Stakes, Jr.’s relationship to the City of Lansing as City Attorney and his relation to the developer, John W. Jamison, Jr., who had petitioned the City for rezoning of a certain 106 acre tract and for the issuance of bonds to provide street and sewer services to a proposed subdivision on the tract, to be known as Fawn Valley Subdivision. Ultimately, two temporary notes, each in the amount of $75,000.00, were issued pursuant to K.S.A. 12-6a01 et seq., and from the proceeds of those temporary notes Wilbur S. Stakes, Jr., received $81,000.00 as and for a professional fee.
“It was Attorney Stakes’ contention in this matter that when he accepted employment with the City, he was paid $200.00 per month to attend two City Council meetings a month and to appear in Municipal Court twice a month and to draft ordinances as requested by the City. In addition, he was assigned the job by the City Council of creating a new image for the City of Lansing and of attracting development (industrial, commercial and residential) to the City of Lansing.
“It was Attorney Stakes’ contention that in connection with this assignment he expended some 1,600 hours, which amounted to almost 50% of the time that he spent in the professional practice of law over the period in question. Of that 1,600 hours, it was Attorney Stakes’ uncontroverted testimony that approximately 800 hours of his time was spent in connection with Fawn Valley Subdivision.
“It was further Attorney Stakes’ testimony in this case that at the time that he expended these efforts on behalf of the City to attract new industry and develop ment and incurred unreimbursed personal expenses in addition to the expenditure of his time, he had an understanding with the City Council that he would not receive direct payment by the City for his efforts in this regard but rather he would be permitted to act as counsel for the industries or developers he would attract, thus generating fees for professional service's and thus, in an indirect sense he would be reimbursed by his efforts on behalf of the City through his device. It is apparently Attorney Stakes’ position that, although the fee in question was excessive for the issuance of the temporary notes in question, the fee was equivalent to the time and effort he spent on behalf of the City in attempting to attract industry and development.
“Secondly, it was Attorney Stakes’ contention that pursuant to his authority from the City Council to negotiate fees with the developers, he, with the knowledge and consent of the City Council Finance Committee and responsible authorities in the City of Lansing, did agree with Jamison to a fee of 11% of the total estimate project costs of Fawn Valley Subdivision, to be paid to him in the first two years of the project (which was expected to run four to five years). He further testified that it was his understanding with the developer that he would be performing all legal services appropriate and necessary in connection with the various multiphase development of the sfibdivision, including restrictive covenant preparation, plat plans, working with surveyors, homes association formations, negotiation of contracts on commercial property, and negotiations of street contracts, sewer contracts, etc.
“It was, therefore, Attorney Stakes’ contention that the $81,000.00 fee herein was justified on the grounds that (a) it was payment to him by the City for work he had done on other matters (he so testified), (b) Jamison had authorized the City to pay in this fashion (see Jamison’s affidavit), and (c) it was a negotiated fee with the developer for work to be done for the developer. The evidence in this case established that the $81,000.00 was paid to him by the City from funds derived from the sale of the temporary notes referred to above. The evidence established that a fee of this magnitude was an unprofessional fee within the meaning of the Code of Professional Responsibility if the fee were paid for services rendered to the City in connection with the issuance of bonds of the City, including temporary financing by the issuance of temporary notes.
“The evidence further established that there was a considerable amount of public interest focused in the City of Lansing in regard to this transaction, and apparently other matters not clearly covered by. the evidence. Ultimately, Attorney Stakes, although he attempted to resign, was terminated and fired after his resignation letter as City Attorney had been submitted. Many, if not all, of the City officials were apparently the subject of recall petitions and were removed from their offices by the electorate of the City of Lansing. (The proceedings themselves at the State Disciplinary Board were the subject of some considerable press interest and public interest, showing again some continuation of the public interest in this matter. This Panel does not feel that public interest in and of itself has any relevancy in its determinations, but does think that it is somewhat relevant in regard to the question of whether or not an attorney has brought discredit to himself or to the legal profession of a reasonably notorious nature.)
“The evidence established that Mr. Jamison was unable to proceed with the development and that apparently Attorney Stakes continued to draw some funds toward the $81,000.00 even at times after there were some indications of the inability of Jamison to continue the project. Ultimately, Jamison’s inability was recognized by Attorney Stakes, and he testified that at this point he felt that the fee may have been excessive in that it was intended to cover work done in the future as well as to date in connection with the ultimate multiphased development of Fawn Valley Subdivision.
“The evidence established that when Attorney Stakes realized the extent of Jamison’s inability to perform, Stakes undertook various efforts to find successors-in-interest to Jamison who could ultimately perform in such a way as to prevent the City from sustaining a loss and to allow the project to proceed. He has apparently been successful in this regard in that the Jamison property has been sold to a corporation, which is substantially controlled by an uncle of the respondent, and into which, since the first of the year, respondent has himself invested $55,000.00, and in which Stakes now owns an ownership interest. The evidence establishes that the streets and sewers have either been constructed or are in the process of being constructed and that lots are presently being sold in the subdivision. The bond issues were never pursued, and the streets and sewers have been built with private financing; none of the proceeds from the sales of the notes were used to finance the project.
“The evidence established that, prior to the time that Jamison could not finish the work on the project, Attorney Stakes knew that Jamison intended that the outstanding temporary notes would be paid by either (a) increasing the sale price on the various lots, and using the additional money received from the sale to pay the assessment on the lot or (b) selling the lots subject to the special assessment created at the time bonds were issued to take up the temporary notes.
“The evidence established that the temporary notes are due in July of 1980. The Panel was advised that as the lots are being sold, money is being escrowed for repayment of the temporary notes and that it is contemplated that outside financing will repay the City the amount of the temporary notes.
“The evidence in this case does clearly establish that the notes and intended bonds were to be issued as general obligations of the City and were to be paid for by assessments within a benefit district.
“There appears to be considerable confusion in Attorney Stakes’ mind between his client, the City; his obligations to the taxpayers of the City of Lansing; and his relationship to the developer, legal services he intended to perform on behalf of the developer, and his present role as investor in the Fawn Valley Subdivision.
“Conclusions of Law
“1. The Panel concludes as a matter of law on the facts presented that a fee of $81,000.00 was clearly excessive for legal services rendered to the City of Lansing for and in connection with the issuance of temporary notes and matters in connection with the Fawn Valley Subdivision performed for and on behalf of the City of Lansing. Of course, the facts in this case raise a question as to who the client was and what the fee was paid for, but the facts do in fact clearly establish that the fee was actually paid by the City of Lansing out of the proceeds of temporary notes issued herein, irrespective of what Attorney Stakes may have considered the payments to be for and irrespective of whom he actually felt he was serving in an attorney-client relationship.”
The panel then concluded that the respondent's testimony clearly established an additional violation of the Code of Professional Responsibility “in connection with the acceptance of private employment in a matter where a public official has substantial public duties to perform and in a matter where the appearance of impropriety may exist.”
The panel, however, took no action on this additional violation which surfaced in respondent’s testimony.
The panel was unable to agree as to a recommendation concerning the discipline to be imposed. The record was then presented to the Kansas Board for Discipline of Attorneys, two members not participating, which_adopted the panel’s findings of fact and conclusions of law, and recommended that the respondent be punished by indefinite suspension from the practice of law.
The respondent filed the following exceptions to the panel’s report:
“2. The record in the instant case is without evidence to establish that the Respondent violated the standards of DCR 2-106.
“3. The record fails to establish by clear and convincing evidence a violation of DCR 2-106, as there exists no expert testimony that the fee for the services rendered and contemplated was excessive.
“4. That the Hearing Panel and Kansas Board for Discipline were influenced by unfavorable press concerning the alleged violation of the Respondent, and the proposed discipline is based upon public pressure extrinsic to the facts and circumstances as shown by the record.
“5. The punishment suggested by the Kansas Board of Discipline is excessive under the circumstances.
“6. The punishment suggested by the Kansas Board of Discipline is in violation of the Equal Protection clause of the United States and Kansas Constitutions, in that others have received lesser or no punishment in similar circumstances.”
The court has carefully reviewed the record and concludes that the panel’s findings and conclusions, above recited, are amply supported therein. From respondent’s testimony we note that the $81,000 disbursements were made to respondent on his own request and were not subjected to the approval of the city council. All checks were signed by the city clerk and city treasurer, plus either the mayor or the president of the city council. We further note that the respondent gave inconsistent explanations as to precisely what services the .$81,000 was in payment for. At various places in his testimony he states the $81,000 was a negotiated fee between himself and the initial developer, Ja mison, based on 11% of the total project cost ($700,000) for services respondent was to perform primarily in the future for the developer.
At another place in his testimony the respondent states that the $81,000, at least in part, was payment by the city for some 1,600 hours of promotional work performed for the city prior to the payment of the fee. Of the 1,600 hours so charged, respondent attributes 800 hours to the Fawn Valley Subdivision. However, respondent further states that at no time did the city agree to pay him for promotional work. Respondent states the agreement was that, whereas he would not be paid for his promotional work, he would be permitted to accept employment from any developers he was able to attract to Lansing. Presumably, such employment would encompass only the future performance of such work for the developer as might be agreed upon between respondent and the developer. Respondent does not contend that the $81,000 fee was a fair fee for work done solely in connection with the temporary notes. After it became apparent that Jamison would be withdrawing from the project, respondent neither returned any part of the fee to the city, nor offered to do so. When the smoke cleared away, respondent had the $81,000, plus 30% of the project (apparently having paid some $55,000 therefor). Respondent’s uncle became the principal owner of the project after the Jamison involvement terminated.
The finding of the panel that “[t]here appears to be considerable confusion in Attorney Stakes’ mind between his client, the City; his obligations to the taxpayers of the City of Lansing; and his relationship to the developer, legal services he intended to perform on behalf of the developer, and his present role as investor in the Fawn Valley Subdivision,” is, in itself, a considerable understatement.
We do not hesitate to conclude that the $81,000 fee was paid by the City of Lansing from the proceeds of the temporary notes and that said fee was far in excess of a proper fee for services rendered in connection with the issuance of such notes. A violation of DR 2-106 by the respondent has clearly been established.
We turn now to the question of the appropriate discipline to be imposed. In making such determination we must consider the facts of the violation as well as any aggravating or mitigating circumstances. Respondent contends that the Board’s recom mendation of indefinite suspension from the practice of law is too harsh and would be inconsistent with discipline previously imposed by this court for allegedly comparable violations. In State v. Alvey, 215 Kan. 460, 466, 524 P.2d 747 (1974), a similar contention was made and this court stated:
“Respondent also complains that the recommendation of the board of discipline by indefinite suspension was unreasonably harsh. To support this argument he reviews many of our disciplinary cases, reciting the facts and the resulting punishment. He points out that, in none of our cases has indefinite suspension been imposed unless there was venality, dishonesty, or moral turpitude involved. He emphasizes that In re Carson, 205 Kan. 456, 469 P.2d 349 [1970], is the only disciplinary case .before this court which has any similarity with the present case. The respondent,. Carson, was charged with neglect of his client’s business and was publicly censured.
“As heretofore stated, no punishment is provided in the Code of Professional Responsibility. Rule 207 (n) provides that recommendations of the board as to punishment may be (1) private censure, (2) public censure, (3) suspension for a definite or indefinite period, or (4) disbarment; but the nature of the punishment is not limited to these designations. The rule provides no guidelines for categorizing acts of misconduct in any one of the suggested forms of punishment. The only limitation on punishment is the collective conscience of this court. We recognize that a pattern has developed to some extent in our disciplinary cases, and that we should strive for consistency in the exercise of our judicial judgment.”
By way of mitigation the respondent directs our attention to the fact this is the first time he has been involved in a disciplinary proceeding and that the City of Lansing will suffer no financial loss as a result of the violation. Respondent also notes that certain members of the city council knew the fees were being paid to him and that the developer, Jamison, was in agreement with the payment of the fees in this manner.
Conspicuously absent from the testimony of respondent, or from his brief, is any admission of violation of DR 2-106, any suggestion that he should have proceeded differently, or that in like circumstances he would proceed in a different manner in the future. The fact respondent was city attorney during the transactions in question must be considered as an aggravating factor. The violation herein can only be regarded as both willful and flagrant. Under the totality of the facts and circumstances herein, the majority concludes that the respondent’s misconduct justifies the discipline recommended by the State Board for Discipline of Attorneys, although a minority of the court would disbar the respondent.
It is therefore by the court considered, ordered and adjudged that Wilbur S. Stakes, Jr., be and he is hereby suspended from the practice of law for an indefinite period. Costs of this proceeding are taxed to the respondent. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by Dennis R. Wilson, natural father of minor children, Jason Lee and Jeremy Ray Wilson, from a decree of adoption granted to Glenn L. Patrick, stepfather of said children.
The first point raised on appeal is the sufficiency of the evidence to support the trial court’s finding that the natural father had failed or refused to assume the duties of a parent for the two consecutive years immediately preceding the filing of the petition herein.
K.S.A. 59-2102 provides:
“Before any minor child is adopted, consent must be given to such adoption;
“(1) by the living parents of a legitimate child or
“(2) by the mother of an illegitimate child or
“(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent or
“(4) by the legal guardian of the child if both parents are dead or if they have failed or refused to assume the duties of parents for two (2) consecutive years, or
“(5) by the department of social and rehabilitation services, a person, or by the executive head of an agency or association, where the rights of the parents have been legally terminated and custody of the child has been legally vested in such person, department, agency or association with authority to consent to the adoption of said child.”
The evidence relevant to this issue may be summarized as follows. The 1971 marriage of Dennis and Mary Wilson terminated in divorce in June of 1975. Two children were born of the marriage — Jason Lee and Jeremy Ray. As a part of the decree of divorce Mary was granted custody of the children and Dennis was ordered to pay $250.00 per month child support and keep certain insurance in effect. In September of 1975 Dennis married his present wife, Cheryl Wilson. In April of 1976 Mary married Glenn L. Patrick, her present husband and petitioner herein. By June of 1976 Dennis was some $400.00 delinquent in. child support payments and moved the court for a change of custody of the children or, alternatively, for a reduction of child support payments. Change of custody was denied, but child support was reduced to $100.00 per month plus arrearage payments of $50.00 per month. Upon completion of the arrearage payments, child support would then become $150.00 per month. The obligations to maintain health insurance covering the children, and life insurance thereon, were eliminated.
The petition for adoption was filed November 29, 1978. Pursuant to K.S.A. 59-2102 the necessity for the consent of Dennis is accordingly determined by the events occurring between November 29, 1976, and November 29, 1978. It is uncontroverted that Dennis made no child support payments for the period in question. Evidence was introduced to the effect that the children’s basic financial needs had been met and any support payments received would have been placed in the children’s savings accounts which were to provide for their college education. Dennis testified that he had incurred heavy expenses during the period in question and was earning less money than previously by virtue of a change of occupation.
Dennis sent no Christmas, birthday, or other gifts to the children during the period in question. He testified he did this out of respect for the religious beliefs of the new family unit (Jehovah’s Witnesses). The record does not indicate that this explanation was the result of any request or agreement or that the explanation had surfaced at anytime prior to trial.
Dennis visited the children during the 1976 Christmas holidays. On July 13, 1977, Dennis wrote Mary requesting weekend custody commencing July 16, or at another time if the requested date was inconvenient. Mary was out of town when the letter arrived and the requested date passed before her return. Mary did not respond to the letter. In August of 1978 Dennis telephoned Mary to request release of a judgment lien to which Mary agreed. At the end of the conversation Dennis inquired about talking to the children, but “broke down” and the conversation ended.
The record also indicates that Mary wrote a letter on July 8, 1977, to the parents of Dennis, which stated inter alia that if Dennis paid any child support Mary would expect him to pay all delinquent child support.
From the foregoing evidence the trial court found:
“2. That the natural father of the two minor children, Dennis R. Wilson, failed or refused to assume the duties of a parent for two (2) years immediately preceding the filing of the Petition herein by reason of the following:
“a. Failure to pay the Court ordered child support from and after October 22, 1976, to the date of this hearing;
“b. Failure to make any gifts or presents to his two (2) minor children for the two years immediately preceding filing the Petition;
“c. Outside of an inquiry incident to a request for release of judgment lien and a letter written to the mother of the children requesting custody for a weekend, which was not received by the mother until after such weekend, Dennis R. Wilson made no attempts to visit his two minor children nor indicated any other interest in such children;”
The standard of review applicable to the case herein was set forth in Aslin v. Seamon, 225 Kan. 77, 78, 587 P.2d 875 (1978), as follows:
“Ordinarily the question whether or not an individual has failed or refused to assume the duties of a parent for the required period of time is a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing. In re Herbst, 217 Kan. 164, 535 P.2d 437 (1975); In re Sharp, 197 Kan. 502, Syl. ¶ 5, 419 P.2d 812 (1966); In re Waters, 195 Kan. 614, Syl. ¶ 1, 408 P.2d 590 (1965). When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances the reviewing court must review the evidence in the light most favorable to the party prevailing below. Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977) and cases cited therein.”
In re Sharp, 197 Kan. 502, 419 P.2d 812 (1966), recognized that the duties of a parent included not only the common law duty of financial support, but the natural and moral duty of a parent to show affection, care and interest toward his or her child. The court stated:
“Although a natural parent under a divorce decree is given only rights of visitation with minor children, we are not prepared to say that all the other privileges, duties and obligations of parenthood are thereby excluded. The simple acts whereby a parent may manifest normal affection, care and interest in a child are ordinarily not judicially proscribed. The door is left ajar for the parent to maintain the remaining thread of the parent-child relationship. The exercise of the right of visitation is only one of the many factors to be considered by the court in its ultimate determination.” p. 508.
The trial court’s challenged findings of fact are supported by substantial competent evidence and, accordingly, will not be disturbed on appeal except that No. 2 (c) is modified to reflect that Dennis did visit the children during the Christmas holidays of 1976.
The second point raised on appeal is stated by appellant as follows:
“Is the standard for severance of a parent’s rights under K.S.A. 59-2102 consistent with the case law of this state and harmonious with other statutory provisions?”
This point is based on the appellant’s premise that parental rights may be severed by divorce (K.S.A. 1979 Supp. 60-1610); deprived child proceedings (formerly dependency and neglect) (K.S.A. 1979 Supp. 38-816); adoption (K.S.A. 59-2102[3]); and habeas corpus (K.S.A. 60-1501). Appellant then attempts to establish that parental unfitness is the real issue in each of the enumerated categories of the proceeding and that uniform standards should be applied. Appellant’s basic premise is faulty, as the various proceedings in both nature and purpose are strikingly dissimilar. Further, appellant does not distinguish anywhere in his brief between the determination of an adoption on its merits (K.S.A. 59-2278) and the determination of whether a parent’s consent to such proposed adoption is necessary (K.S.A. 59-2102). Obtaining the necessary consents is a condition precedent to the granting of an adoption (K.S.A. 59-2102). The fitness of the parent is not an issue in determining whether his or her consent to an adoption is required. This point is found to be without merit.
The judgment is affirmed.
Herd, J., dissenting. | [
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The opinion of the court was delivered by
McFarland, J.;
This is an action brought by plaintiffs Menno A. and Hilda L. Friesen to quiet their title to an undivided one-fourth interest in the minerals under a certain 160-acre tract of land. The trial court held in favor of plaintiffs and defendant Federal Land Bank of Wichita appeals.
By a single warranty deed dated August 5, 1943, the Bank conveyed, in fee simple to Frank and Helen Classen, the following land: the Northwest Quarter of Section Eight (hereinafter referred to as Tract 1); the Northeast Quarter of Section Seven (hereinafter referred to as Tract 2); and the Southwest Quarter of Section Five (hereinafter referred to as Tract 3); all in Township Thirty-three South, Range Twenty-seven West of the 6th P.M., Meade County, Kansas. In that deed the Bank reserved a one-fourth mineral interest by the following reservation:
“Excepting and reserving unto party of the first part, its successors and assigns, an undivided one-fourth of all oil, gas and other minerals and mineral rights in, upon and under the above described real estate for a period of twenty years from and after April 25,1941, and so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom, or the premises are being developed or operated . . .
On August 19, 1949, the Classens conveyed their interest in Tract 2 to A. J. Enns. On May 5,1958, Enns conveyed his interest in Tract 2 to the plaintiff Friesens. On November 28, 1950, the Classens and the Bank executed oil and gas leases in favor of the Columbian Fuel Corporation for the minerals on Tract 1 and Tract 3. On August 26, 1958, the leases were amended to authorize the lessee to consolidate and unitize, the specific language being: “a producing well on any portion of the consolidated estate shall operate to continue the oil and gas leasehold estate hereby granted so long as gas is produced therefrom.” On October 20, 1958, all leases in Section Eight were pooled to form a production unit embracing all of Section Eight. Since March 30, 1959, a well in the Southeast Quarter of Section Eight has been producing gas in paying quantities.
As of April 25, 1961, the end of the twenty-year reserved term on the three tracts originally conveyed by the Bank to the Classens, no gas or oil well had been drilled nor was one in the process of being drilled on any of the three tracts. Tract 2, the land in dispute, was not leased at any time during the primary reserved term. On October 22,1964, the Bank executed a two-year gas and oil lease on Tract 2 in favor of Lee Banks, but no production resulted. On February 7, 1977, plaintiffs commenced the action herein to quiet their title to Tract 2. At trial the Bank introduced uncontroverted evidence that the well on the Southeast Quarter of Section Eight was physically draining gas from under Tract 1. The Bank contends this constitutes production from, and development and operation for production of, gas on each of the three tracts within the meaning of the language of the mineral reservation clause. The trial court made no finding as to whether or not gas was being produced from under Tract 1, as the same was immaterial to its determination. The trial court concluded that inasmuch as no well was physically located on Tract 2 at the conclusion of the term of the mineral reservation clause (April 25, 1961), then this court’s decisions in Smith v. Home Royalty Association, Inc., 209 Kan. 609, 498 P.2d 98 (1972); Stratmann v. Stratmann, 204 Kan. 658, 465 P.2d 938 (1970); and Dewell v. Federal Land Bank, 191 Kan. 258, 380 P.2d 379 (1963), were dispositive of the litigation. The Bank contends the evidence of actual production of gas from under Tract 1 distinguishes the present factual situation from the earlier cases above cited and permits a different result to be reached.
In Smith, at 611, the issue was stated as follows:
“A conveys to B the oil, gas and other minerals under tract one for a term of twenty-one years and as long thereafter as oil, gas, or other minerals are produced from said land. During the definite term tract one is unitized with tract two for the production of oil and gas. Production is obtained from tract two within the definite term and production continued thereafter. In this factual situation, does production from tract two fulfill the production requirements in the original conveyance from A to B?”
This court concluded in Syl. ¶ 1:
“Where owner conveys a mineral interest which was to remain in force twenty-one years and as long thereafter as minerals are produced, and subsequently, successive owner and grantee of mineral interest separately execute lease permitting unitization, gas produced from other land in the unitized area does not fulfill the requirement in the deed that minerals be produced from said lands.”
Dewell involved a mineral reservation clause identical to the present case. One-half the tract was included in a production unit. On another part of the unit a well was drilled with adequate production capabilities, but was shut in and not connected to a pipeline until after the expiration of the primary term. Shut-in royalties were paid before the expiration of the primary term. This court held in 191 Kan. 258, Syl.:
“A reservation in a warranty deed, excepting and reserving an undivided one-half interest in minerals for a term of twenty-years and so long thereafter as oil and gas or other minerals are produced therefrom or the premises are being developed or operated, creates a base or determinable fee in the minerals, and the reservation is not extended beyond the primary term by the lessee’s payment of shut-in royalty.”
In Stratmann, 204 Kan. at 663, the rule of Dewell was summarized as follows:
“In Dewell a term mineral interest under a half section of land was reserved in a deed. The reservation ran for a primary term of twenty years and as long thereafter as oil was produced from the premises. The interest was leased and the lease on this half section was unitized with leases on other land. Production was obtained on the other land. There were no producing wells drilled on the half section of land. The court held that production on the other land did not perpetuate the mineral interest on the half section beyond the primary term. To perpetuate the interest production had to come from the half section.”
In Panhandle Eastern Pipe Line Company v. Isaacson, 255 F.2d 669 (10th Cir. 1958), it was held that a shut-in well on one tract satisfied the mineral reservation clause as to both tracts, even absent a pooling agreement, or order. Isaacson involved Oklahoma land. A similar result was reached in the Texas case of South. Royalty Co. v. Humble Oil & Ref. Co., 151 Texas 324, 249 S.W.2d 914 (1952), although there the lease permitted unitization. In Smith v. Home Royalty Association, Inc., 209 Kan. at 614, these Oklahoma and Texas cases were discussed as follows:
“We are fully aware that the rules of law stated in Deuoell and Stratmann, and here reiterated, are contrary to the rule in Oklahoma and Texas as disclosed by Panhandle Eastern Pipeline Company v. Isaacson, . . . and South. Royalty Co. v. Humble Oil & Ref. Co. ...
“The rationale of the Texas and Oklahoma'cases is appealing; however, the holdings in Dewell and Stratmann have become a rule of property in this state. The rule should not be changed in the absence of other controlling circumstances, even though logic might be effectively presented for a different holding.”
We are not unmindful that the Kansas Court of Appeals adopted, in substance, the Oklahoma and Texas view in Somers v. Harris Trust & Savings Bank, 1 Kan. App. 2d 397, 566 P.2d 775 (1977), in concluding that where a portion of the land in an oil and gas lease is committed to a unit, production elsewhere in the unit extends the term of the entire lease. In so holding the Court of Appeals reasoned, at p. 400:
“The rule is based on conservation and public policy. Its rationale starts with the proposition that an oil and gas reservoir does not abide by man-made boundaries (K.S.A. 55-1302 defines a ‘pool’ as ‘ ... an underground accumulation of oil and gas in a single and separate natural reservoir characterized by a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent. . . .’); because of the nature of the oil and gas pool and because of the growing need for conservation drilling units were established; the units were tracts of sufficient size and shape that one well properly located could sufficiently drain the oil and gas therefrom; unitization makes possible the exploitation which would be possible if the land or subsurface rights were in single ownership; reservoir energy and contents and physical equipment are not wasted; since unit operations provide an efficient and less expensive method of oil and gas recovery allowing lease termination as to outside acreage would discourage operators from unitizing appropriate acreage (1 Myers, The Law of Pooling and Unitization, 2d ed., Sec. 3.02, p. 73; Merrill, ‘Unitization Problems: The Position of the Lessor’, 1 Okla. L. Rev. 119 [1948]).”
Somers, however, is readily distinguished from the case before us, as Somers involved a lease rather than the mineral reservations in a deed. Further, all of the lessors and lessees in the unit had expressly agreed that production anywhere in the unit would extend all leases in the unit. The plaintiff Friesens are not party to the leases involved herein or the unitization agreements relative to Section Eight.
We conclude that the trial court did not err in finding (1) that the evidence relative to the unit well physically draining gas from under Tract 1 was immaterial; and (2) that this court’s prior determinations in Smith v. Home Royalty Association, Inc., 209 Kan. 609; Stratmann v. Stratmann, 204 Kan. 658; and Dewell v. Federal Land Bank, 191 Kan. 258, were determinative of the issue herein.
The quiet title action herein relates only to Tract 2. Accordingly, we make no determination as to whether like or differing results would be reached as to Tracts 1 and 3, although we understand they were the subject of a companion case.
Other issues raised have been considered and found to be without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found Terry L. Ponds (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427). The appellant contends the trial court erred in refusing to suppress identification testimony, and in refusing to declare a mistrial after the prosecutor’s remarks in closing argument.
About 12:30 a.m. on Saturday, March 11, 1978, Dana Winters and Becky Bradner left a private club in Wichita and walked to Ms. Winters’ car in the club’s parking lot. As the women walked, Ms. Winters noticed a man standing against the club building; he was holding a white cloth over his face. From a distance of several yards Ms. Winters asked the man if he was sick; he did not respond. After the women had entered the car, the same man appeared outside the driver’s side window brandishing a handgun. The man demanded and received the women’s purses and fled. The victims returned to the club where an employee called the police. Ms. Winters gave the police a description of the robber. She described the robber as a Mexican male with curly hair, weighing 150-170 pounds, 5'7~ to 5'8" tall, 25-27 years old. She stated that he was wearing an “apple” style cap and a gray jumpsuit, that he had displayed an “automatic,” and that he had partially masked his face with a white dishcloth.
About 26 hours later, the appellant and a man named Prentice Williams were arrested in the appellant’s car in relation to another incident. Three items were lawfully seized from beneath the passenger’s seat of the appellant’s car: a white towel, a .32-caliber revolver, and a blue apple cap.
A few days after the robbery, Detective Louis Brown conducted a photographic lineup before Ms. Winters. He had previously called and told Ms. Winters the police had arrested the man believed to be the robber. Detective Brown went to Ms. Winters’ home and placed seven photographs on the floor in front of her. Two photos of the appellant were included; one photo was taken in 1971, the other in 1978. Detective Brown asked Ms. Winters, “Which one of these men is the one that robbed you? Can you identify any of them as being the one that robbed you?” Ms. Winters then chose a photograph of the appellant.
The appellant first contends the trial court erred in refusing to suppress Ms. Winters’ photo identification and subsequent courtroom identification. The appellant argues that the police procedures, especially comments by Detective Brown, rendered the photo identification impermissibly suggestive, creating a substantial likelihood of misidentification.
Prior to trial a hearing was held on the appellant’s motion to suppress. The appellant sought to suppress testimony about the photographic lineup and testimony about Ms. Winters’ identification of him at the preliminary hearing. At the suppression hearing Ms. Winters testified that on the day of the preliminary hearing she saw the appellant sitting on the floor by the elevator in the courthouse. She testified she recognized the appellant as the robber. Later, but before the preliminary hearing, Detective Brown was talking with Ms. Winters and indicated to her that the man by the elevator was the robber. While testifying at the suppression hearing, Ms. Winters stated she picked the appellant from the photo lineup and again at -the preliminary hearing because of his distinctive eyes and hair. However, she further testified she had no specific recollection of what the appellant looked like without relying on the photographs. The trial court ruled the photo identification was admissible, and refused to suppress any future courtroom identifications. The trial court suppressed the preliminary hearing identification because Ms. Winters had no specific recollection.
We are not convinced that the trial court was correct in suppressing the preliminary hearing identification. However, the suppression is no longer material. On cross-examination of Ms. Winters at trial the appellant’s counsel introduced evidence of the preliminary hearing identification for purposes of testing Ms. Winters’ credibility. Ms. Winters contradicted her suppression hearing testimony and declared sbe had a specific recollection of the appellant’s facial features.
We have recognized the potential for impermissibly suggestive pretrial identifications. In each case, the totality of circumstances is analyzed to determine whether an identification is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. See State v. Baker, 227 Kan. 377, 607 P.2d 61 (1980); State v. Reed, 226 Kan. 519, 601 P.2d 1125 (1979); State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976).
The appellant points to several circumstances which he claims render the photo identification impermissibly suggestive. The seven photographs displayed to Ms. Winters are challenged as unfair. The appellant also argues that Detective Brown’s comments to Ms. Winters were suggestive. After Ms. Winters selected the appellant, Detective Brown stated that she chose the same man the police suspected and that he had been charged with several robberies. The suppressed identification at the preliminary hearing is also asserted as a suggestive influence.
We reviewed each of the alleged suggestive circumstances and found no fatally suggestive influence. The seven photographs depict a suitably similar group of individuals. There is no gross disparity or distinctive indication of the appellant’s photo. With the exception of one photo, the seven photos used in the lineup depicted individuals who generally fit within Ms. Winters’ description of the robber.
Detective Brown’s comments to Ms. Winters prior to the photo identification were not impermissibly suggestive. There is nothing unusual or suggestive in a statement that the police have arrested a suspect or in the request to pick “the one that robbed you.” Detective Brown’s confirmation that Ms. Winters’ choice was also the police suspect was not suggestive since it followed the photo identification. By the same reasoning, the suppressed preliminary hearing identification was not a suggestive influence on the photo identification; it came after the photo identification.
The appellant next contends the courtroom identification should have been suppressed. We have already determined the photo identification was not impermissibly suggestive, hence the courtroom identification was not tainted by the photo identification. However, the circumstances surrounding the suppressed preliminary hearing identification are also claimed to have influenced the later courtroom identification.
This court has held that in-court identifications may be capable of standing on their own even though preceded by deficient pretrial confrontations. State v. Baker, 227 Kan. at 379, and cases cited therein. “[Reliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 53 L.Ed.2d 140, 97 S.Ct. 2243 (1977). The oft-quoted standards of Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972), are used to test the reliability of the courtroom identification. Those factors are (1) the opportunity of the witness to view the accused at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the accused, (4) the level of certainty displayed by the witness at the confrontation, and (5) the length of time between the crime and confrontation. See Neil v. Biggers, 409 U.S. at 199-200; State v. Baker, 227 Kan. at 379; State v. Nesmith, 220 Kan. at 148.
On viewing the totality of the circumstances we are satisfied the courtroom identification was admissible. Ms. Winters had a brief but adequate opportunity to form a strong mental image of the robber. She observed the robber standing against the building and then beside her car. She was able to observe his overall appearance, as well as the visible facial features of eyes, bridge of the nose, forehead and hair. As the victim of a gunpoint robbery her attention was focused on her assailant. The original description Ms. Winters provided to the police was in material respects in accord with the appellant’s physical features. Ms. Winters told the police her assailant used a pistol, wore an apple cap, and used a white dishcloth for a mask; those three items were lawfully seized from the appellant’s car within 26 hours of the robbery. The suppressed preliminary hearing identification did not taint the later courtroom identification. At trial Ms. Winters recanted her testimony at the suppression hearing. Ms. Winters testified her courtroom identification was based on both her memory of the robber’s visible facial features and reliance on her selection of the appellant from the photo lineup. Minor discrepancies in Ms. Winters’ testimony were properly matters left for the jury’s consideration.
The appellant’s final claim of error is the trial court’s refusal to declare a mistrial after the prosecutor allegedly made an improper comment on the appellant’s failure to testify.
In concluding his closing argument at trial the prosecutor made the following remarks:
“I would like to thank you for your time and for your consideration and leave you with one final thought. We spoke on the selection that there are many times when only two people really know what happened. In this case I submit to you that those two people are Terry Ponds and Dana Winters; and Dana Winters knows that the other person was Terry Ponds. Thank you.”
Appellant’s counsel approached the bench, objected to the remarks, and moved for a mistrial. The trial court sustained the objection, refused the mistrial, and admonished the jury to disregard the remark.
We have recently summarized the legal principles governing such error in State v. Henderson, 226 Kan. 726, 735-36, 603 P.2d 613 (1979), stating:
“Comment by the prosecutor upon defendant’s failure to testify violates the defendant’s constitutional right against self-incrimination. Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 (1965); State v. Reeves, 224 Kan. 90, 93, 577 P.2d 1175 (1978). Kansas has codified the Griffin rule in K.S.A. 60-439, which prohibits comment by counsel and the court upon a defendant’s privileged failure to testify. Comment is not, however, a per se violation requiring reversal. Only error failing to meet the federal standard of harmless error, defined as proof beyond a reasonable doubt that the error did not contribute to the verdict, requires reversal. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967); State v. Reeves, 224 Kan. at 93.
“We noted, in the Reeves opinion, that the right to complain of prosecutorial mention of a defendant’s failure to testify is generally precluded when the error is invited or provoked by the defendant or his counsel. Such is not the case here; the argument was not invited.
“We must, in determining whether the comment was harmless, take into consideration the nature and extent of the comment, in comparison with the strength of the evidence of the defendant’s guilt. See Annot., Failure to Testify— Comment On, 24 A.L.R.3d 1093, 1109; State v. Rhodes, 110 Ariz. 237, 517 P.2d 507 (1973); People v. Garrison, 252 Cal. App. 2d 511, 60 Cal. Rptr. 596 (1967).
“The Tenth Circuit finds that error exists where ‘the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). In such a case it finds reversible error despite failure to make a contemporaneous objection. Doty v. United States, 416 F.2d 887 (10th Cir. 1968.)”
Here it is apparent the prosecutor’s comment could be characterized as improper. Appellant’s counsel characterized the prosecutor’s remarks as a “veiled comment” on the failure to testify. The trial court stated the comment was “close enough that I’m going to admonish them.” The trial court then instructed the jury “to disregard Mr. Weilert’s final statement as to the Defendant being one of the persons who knows what happened in the parking lot that night.”
Applying the analysis outlined in State v. Henderson, 226 Kan. at 736, no reversible error is found. The prosecutor’s comment was harmless when the “veiled” nature and brief extent of the comment is compared with the ample evidence of the appellant’s guilt. Nor can we say the comment would “naturally and necessarily” be taken as emphasizing the appellant’s refusal to testify. Any slight prejudice was remedied by the trial court’s admonition. See State v. Carpenter, 215 Kan. 573, 576, 527 P.2d 1333 (1974).
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The opinion of the court was delivered by
Miller, J.:
The issue in this interlocutory appeal is whether the Kansas comparative negligence statute applies in an action for personal injuries where liability is premised upon violation of a statute prohibiting sale of explosives to minors. The trial court denied plaintiff’s motion to strike from the answer defendant’s claim that the comparative negligence statute applies; plaintiff appeals.
The facts alleged and supported by plaintiff’s deposition are these: On October 30,1977, when plaintiff was 16 years of age, he purchased gunpowder from one of defendant’s stores for use in reloading shotgun shells. He reloaded some shells and went duck hunting with friends. One of the shells jammed in plaintiff’s shotgun. As plaintiff returned to the car, he was holding the gun by the barrel with his left hand, dragging it along with the stock on the ground behind him, when it discharged and shot him in the side. At the time of injury plaintiff had a Kansas hunting license and a federal duck stamp. Plaintiff claims that his injury was directly caused by defendant’s sale of gunpowder in violation of K.S.A. 21-4209, which reads:
“(1) Unlawful disposal of explosives is knowingly selling, giving or otherwise transferring any explosive or detonating substance to:
“(a) A person under eighteen (18) years of age; or
“(h) An habitual drunkard or narcotic addict; or
“(c) A person who has been convicted of a felony under the laws of this or any other jurisdiction within five (5) years after his release from a penal institution or within five (5) years after his conviction if he has not been imprisoned.
“(2) Unlawful disposal of explosives is a class A misdemeanor.”
Plaintiff claims that the comparative negligence statute, K.S.A. 60-258a, does not apply because its application would destroy the legislative intent and purpose of K.S.A. 21-4209. Plaintiff’s cause of action is predicated upon the doctrine that actionable negligence occurs when one breaches a duty imposed by a criminal statute and an injury of the type intended to be prevented is proximately caused to another by the violation. Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971); Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558 (1913). Breach.of duty, or negligence per se, results from a finding that the statute was violated. Liability follows if the violation is the proximate cause of injury. Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 25, 578 P.2d 1095 (1978); Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, Syl. ¶¶ 6 and 7, 320 P.2d 1061 (1958). In the usual negligence per se case, plaintiff’s contributory negligence has been a defense. Restatement (Second) of Torts § 483 (1965) reads:
“The plaintiff’s contributory negligence bars his recovery for the negligence of the defendant consisting of the violation of a statute, unless the effect of the statute is to place the entire responsibility for such harm as has occurred upon the defendant.
“Comment:
“c. There are, however, exceptional statutes which are intended to place the entire responsibility for the harm which has occurred upon the defendant. A statute may be found to have that purpose particularly where it is enacted in order to protect a certain class of persons against their own inability to protect themselves. Thus a statute which prohibits the sale of firearms to minors may be clearly intended, among other purposes, to protect them against their own inexperience, lack of judgment, and tendency toward negligence, and to make the seller solely responsible for any harm to them resulting from the sale. In such a case the purpose of the statute would be defeated if the contributory negligence of the minor were permitted to bar his recovery.
“It is not within the scope of this Restatement to state the various types of statutes which have been enacted for such a purpose, nor the principles of statutory construction by which the purpose of a particular statute is to be determined.”
Courts have found legislative intent to remove contributory negligence as a defense when the statute violated is one of two exceptional types: (1) the statute expressly removes the defense, as in the Federal Employers’ Liability Act; and (2) such intent is found in the statute’s character, its social purpose, and the background of the social problem and hazard to which it is directed, such as Child Labor laws. Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn. L. Rev. 105,119 (1948). Plaintiff’s argument that K.S.A. 60-258a does not apply asserts that K.S.A. 21-4209 is within the second group of exceptional statutes and that plaintiff is a member of the special group to be protected by the statute such that allowing diminution of recovery based upon plaintiff’s conduct would defeat the protective statute’s purpose.
Our comparative negligence statute removes contributory negligence as a complete bar to recovery. It reads:
“(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent’s wrongful death, the negligence of the decedent, if any, shall be imputed to such party.” K.S.A. 60-258a.
The statute requires a weighing of the causal negligence, if any, of all parties whose conduct brought about the harm, and the consequent imposition of individual liability for damages based upon the proportionate fault of each party to the occurrence. See Brown v. Keill, 224 Kan. 195,580 P.2d 867 (1978). If contributory negligence or an analogous defense would not have been a defense to a claim, the comparative negligence statute does not apply; if contributory negligence would have been a defense, the statute is applicable. In order to determine whether K.S.A. 21-4209 is an exceptional statute, the violation of which was not subject to the defense of contributory negligence and is not now subject to the doctrine of comparative negligence, we must first review the legislative history which may be indicative of legislative intent. In Brown v. Keill, 224 Kan. at 200, we said:
“In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.”
During the early years of statehood, our statutes dealt with possession or sale of certain firearms, but not with shotguns or explosives. The carrying of pistols or other deadly weapons by intoxicated persons was prohibited and made a misdemeanor by G.S. 1868, ch. 31, § 282. The sale of pistols, revolvers, or other dangerous weapons to minors or persons of unsound mind was forbidden by Laws of 1883, ch. 105, § 1. See G.S. 1949, 38-701. This court held, however, that the legislature did not intend to include shotguns when it used the phrase “other dangerous weapons” in the latter statute. Parman v. Lemmon, 120 Kan. 370, 244 Pac. 227, 44 A.L.R. 1500 (1926).
It was not until 1915 that the legislature enacted a statute regulating the sale of explosives. That act, Laws of 1915, ch. 272, is entitled:
“AN ACT providing for public safety by regulating the storage handling and disposition of dynamite, giant powder, nitro-glycerine gun cotton and other detonating explosives, providing penalties for violation of this act and repealing all acts in conflict herewith.” (Emphasis supplied.)
It provided safety regulations for the storage of explosives, required that records be kept of all sales, and prohibited the sale or transfer of explosives to “any intoxicated or irresponsible person.” It contained the following proviso: “[T]his act shall not include what is commonly known as black or blasting and gun powder.” Parts of the 1915 act, not here material, were found unconstitutional. State v. Satterlee, 110 Kan. 84, 202 Pac. 636 (1921). The statute, with the unconstitutional portion deleted, was re-enacted in 1923, and remained in effect until 1969. See R.S. 1923, 21-2444 et seq.; G.S. 1935, 21-2444 et seq.; G.S. 1949, 21-2444 et seq.; and K.S.A. 21-2444 (Corrick).
Though the heading or title given an act of the legislature forms no part of the statute itself, State v. Logan, 198 Kan. 211, 217, 424 P.2d 565 (1967), the language of the title cannot be ignored as an aid in determining legislative intent. Baker v. Land Co., 62 Kan. 79, 82-83, 61 Pac. 412 (1900); Mitchell v. State, 61 Kan. 779, 784, 60 Pac. 1055 (1900). The title given the 1915 act as well as the content of the entire enactment lead to the inescapable conclusion that the act was one designed to protect the public safety, not merely to protect handlers of explosives or intoxicated or irresponsible persons.
This statutory prohibition against sale of explosives — not including gunpowder — to intoxicated or irresponsible persons continued until our present criminal code was enacted and K.S.A. 21-2444 to 21-2449 (Corrick) were repealed. Article 42 of chapter 180 of the 1969 Laws, entitled “Crimes Against the Public Safety,” includes four sections concerning explosives, §§ 4207, 4208, 4209 and 4210, now K.S.A. 21-4207 to 4210 inclusive. In addition to § 4209, quoted above, these sections define the offenses of failure to register sale of explosives (§ 21-4207), failure to register receipt of explosives (§ 21-4208), and carrying concealed explosives (§ 21-4210).
The 1969 Kansas Criminal Code, K.S.A. 21-3101 et seq., was a thorough revision of the Kansas criminal statutes, the result of five years of study by the Kansas Judicial Council. The Council’s comments on the various sections, originally published in the Judicial Council Bulletin in April, 1968, have been edited by the Revisor of Statutes and are now printed in the Kansas Statutes Annotated. These comments, published before the code was enacted by the legislature, are helpful in determining legislative intent. The Council’s comments to K.S.A. 21-4209 are:
“Former K.S.A. 21-2445 prohibited sales of explosives to any ‘intoxicated or irresponsible person.’ If sales are to be prohibited in the interests of public safety, it would appear that the class to whom sales are prohibited might properly be enlarged to include narcotic addicts and recent felons, thus paralleling the firearms section.”
Appellant seizes upon the latter portion of this comment, “paralleling the firearms section,” to find legislative intent that the explosives acts are primarily intended to be protective of children. He relies upon the placement of the 1883 firearms act in the chapter of the General Statutes devoted to minors to support this claim. However, in the first official General Statutes published after the enactment, the sections were placed in the chapter on Crimes and Punishment. See G.S. 1897, ch. 100, §§ 303, 304. In 1915 the sections appeared for the first time in the official General Statutes in the chapter devoted to minors. See G.S. 1915, ch. 78, §§ 6400, 6401. They remained in that chapter for the next 54 years. As this history illustrates, the placement of a law in a particular location in the General Statutes by the compiler is not persuasive as to the intent of the legislature which enacted it.
In 1969, the firearms and explosives sections were grouped together in article 42 of chapter 21 as “Crimes Against the Public Safety.” This placement and caption were the result of legislative action. The Judicial Council comment acknowledges the public safety purposes of the act. Sale or transfer of either handguns or explosives to minors, habitual drunkards, narcotic addicts, or recently convicted felons might result in injury to the purchaser or transferee, but injury to the public seems more probable and is the more logical and compelling reason for the enactment of both the firearms and the explosives acts. We cannot attribute the purpose of protecting minors, habitual drunkards, narcotic addicts, or felons from themselves as the impelling reason for this enactment; the safety of the public — including minors and the other classes — is the paramount purpose.
Appellant contends that the legislative prohibition of sales of firearms to minors is evidence of the legislative intent to protect minors from themselves through both firearms and explosives control. K.S.A. 21-4203, however, prohibits the sale of handguns to minors or to recently convicted felons; it prohibits the sale of any firearm to habitual drunkards or narcotics addicts; but it permits the sale of shotguns and rifles — weapons having a barrel over 12 inches in length — to minors. Likewise, K.S.A. 21-4204 does not make it unlawful for minors to possess firearms. We are not unaware of the provisions of 18 U.S.C. 922 § (b)(1) which make it unlawful for licensed dealers to sell any firearm or ammunition — including gunpowder — to any person known or believed to be under 18 years of age; but the provisions of that act are not helpful in determining the intent of the Kansas legislature in enacting K.S.A. 21-4209.
Appellee, on the other hand, contends that the statute is inapplicable here. It asserts that gunpowder is not within the term “explosives.” The Parman case forms the basis for this claim. In Parman v. Lemmon, 119 Kan. 323, 244 Pac. 227 (1925), a majority of this court held that a shotgun was a “dangerous weapon” as that term was used in R.S. 1923, 38-702. A violation of that statute by the defendant, a father who gave his 14-year-old son a shotgun, resulted in the father’s liability for damages to one who was injured by the negligent shooting of the gun by the minor. Upon rehearing, a majority of the court reversed the former opinion, adopted a dissent to the first opinion as the controlling voice of the court, and held that shotguns do not come within the purview of “dangerous weapon,” as used in R.S. 1923, 38-702. The injured plaintiff in Parman was not the minor to whom the shotgun was transferred; he was a member of the general public.
Parman is not authority for declaring gunpowder outside the purview of the term “explosives.” Webster’s Third New International Dictionary defines gunpowder as “a black or brown explosive . . . .” In a fire prevention statute, the legislature recognizes gunpowder as an explosive. The state fire marshal is directed to adopt rules and regulations for the safeguarding of life and property from the hazards of explosion, which regulations shall include:
“(1) The keeping, storage, use, sale, handling, transportation or other disposition of . . . explosives, including gunpowder . . . .” K.S.A. 1979 Supp. 31-133.
When the present criminal code was enacted, the legislature repealed K.S.A. 21-2444 (Corrick), which had exempted sales of gunpowder. By repealing and not re-enacting the statutory exemption the legislature must have intended to include gunpowder as a regulated explosive. “It is not the function of this court to read into a statute a provision which the legislature, in the exercise of its wisdom, omitted . . . .” Jackson v. State Corporation Commission, 183 Kan. 246, 250, 326 P.2d 280 (1958). We conclude that gunpowder is an explosive, the disposition of which is regulated by K.S.A. 21-4209.
Cases from other jurisdictions considering defenses to actions predicated upon violations of explosive and firearm statutes are instructive. The statutes vary, however, and the decisions are not consistent as to whether the traditional defenses apply. See Annot., 75 A.L.R.3d 825.
Perhaps the leading case barring traditional negligence defenses to actions for violation of laws prohibiting the sale of guns or explosives to minors is Tamiami Gun Shop v. Klein, 116 So. 2d 421 (Fla. 1959). The gun shop sold a 30/30 Winchester Model 94 rifle to a 16-year-old, who lost a thumb when the weapon accidentally discharged. The Florida court found legislative intent to remove the defense of contributory negligence, held the law violated by the gun shop came within the purview of Restatement (Second) of Torts § 483, Comment c, and discharged the writ of certiorari.
A contrary holding is that of Zamora v. J. Korber & Co., 59 N.M. 33, 278 P.2d 569 (1954). The plaintiff when \2Vz years of age purchased a .22 caliber rifle from the defendant. The sale violated an ordinance of the city of Albuquerque prohibiting sales of firearms to persons under 16. Plaintiff was described as a normal boy in the 8th grade in school. He fired at a rock from a distance of 9 or 10 feet. The bullet hit the rock and rebounded, striking the boy in the left eye causing its loss. The trial court entered a directed verdict in favor of defendant on the issue of contributory negligence. The New Mexico Supreme Court reversed, saying:
“We conclude that it was for the jury, in view of all the pertinent considerations of age, maturity, intelligence, experience, and so forth, to decide, under proper instructions on the law, whether or not the boy was guilty of contributory negligence. [Citations omitted.] The case should have been submitted to the jury, and, therefore, the trial court erred . . . .” (p. 36.)
Other cases following Tamiami or Zamora could be cited, but they would not aid in determining the matter at hand.
The primary purpose of K.S.A. 21-4209 is to protect the general public. An incidental consideration is the protection of those classes enumerated — minors, alcoholics, addicts, felons.
It is now the declared public policy of this state, speaking through the legislative voice, that the parties whose conduct brings about death, personal injury, or property damage, bear responsibility based upon the proportionate fault of each actor. The protective purpose of K.S.A. 21-4209 and similar statutes will not be defeated by the utilization of the comparative negligence statute. Not all minors to whom weapons or explosives are sold in violation of statute are members of a class unable to.protect themselves and unaware of the dangers involved. For example, if the injured minor is so young that he or she has no appreciation of the danger, no percentage of negligence should be assessed to such a person. On the other hand, if he or she has had special training (the hunting safety course prescribed by K.S.A. 32-401 for those seeking hunting licenses, for example) and if he or she is older, more mature, and has had experience with firearms or explosives, a higher standard of care could well be imposed and a percentage of the causal negligence assigned to such person by the trier of fact.
We have not overlooked other points raised or the many authorities cited by industrious counsel, but we find the points without merit and the authorities unpersuasive.
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WHEREAS, heretofore a proceeding was conducted by the Kansas Board for Discipline of Attorneys to inquire into the complaint of alleged professional misconduct of John S. Hocutt; and
WHEREAS, following a full hearing as to such complaint, the Board of Discipline found that John S. Hocutt, of Wichita, Kansas, after accepting employment and a cash retainer to represent a client in the furnishing of general legal services, the preparation of legal documents and legal research, failed to perform any such services on behalf of his client; failed to respond to inquiries from his client; avoided his client’s attempts to contact him; refused to return any portion of the $1,000.00 retainer upon request by his client; and generally seriously neglected the legal affairs of his client; all in violation of DR 1-102(A)(4) and (6), DR 6-101(A)(3) and DR 7-101(A)(2), 225 Kan. xciii and civ; and
WHEREAS, the Board of Discipline made a written report thereof which has been filed with this Court wherein findings of fact and certain conclusions were made and a recommendation made to this Court that the respondent, John S. Hocutt, be disciplined by suspension from the practice of law; and
WHEREAS, respondent was duly notified of the findings, conclusions, and recommendations of the Board of Discipline and has not filed any exceptions thereto, but requested the opportunity to appear before the Court on the matter of the discipline to be imposed; and
WHEREAS, on the 4th day of April, 1980, the matter came on for hearing before the Court, the State of Kansas appearing by Roger Walter, disciplinary counsel, and respondent appearing in person and by Jean Oliver Moore, his attorney, and the Court, after consideration of the report and being fully advised in the premises, finds that the respondent John S. Hocutt should be disciplined by the imposition of indefinite suspension.
BY ORDER OF THE COURT, dated this 28th day of April, 1980.
IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that John S. Hocutt be, and he is hereby disciplined by indefinite suspension from the practice of law until the further order of the Court and that he pay the costs of the proceeding.
IT IS FURTHER ORDERED THAT this Order of Suspension be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the Board of County Commissioners, the county appraiser, the county treasurer, and the county clerk of Sedgwick County, from judgment of the Shawnee District Court reversing a decision of the Board of Tax Appeals. The issues are whether the trial court had jurisdiction to entertain the appeal from the Board of Tax Appeals under present statutes, and whether K.S.A. 79-207 is constitutional.
Lakeview Gardens, Inc. is a Kansas cemetery corporation which operates a for-profit cemetery in Sedgwick County. Land adjacent to the cemetery is owned by Lakeview Mortuary, Inc., a separate Kansas for-profit corporation. The cemetery and mortuary corporations have common shareholders and directors.
Lakeview Gardens, Inc. acquired a sizeable tract of real estate in 1976, including what we will refer to as Tracts One, Two, and Three. Lakeview Gardens as grantor then transferred a five-acre portion of this land, Tract One, to itself, dedicating that five acres irrevocably to the burial and entombment of human remains. Lakeview Gardens applied to the Board of Tax Appeals for an exemption pursuant to K.S.A. 79-201c Third of that five-acre tract from taxation, and on November 9, 1977, the Board granted the application and exempted that tract from taxation so long as it is used exclusively for burial purposes.
Meanwhile, Lakeview Gardens conveyed a separate tract, Tract Two, to Lakeview Mortuary. The latter erected on Tracts Two and Three a commercial structure which is divided by a common wall placed exactly on the boundaries between these two tracts. On the Tract Three side of the wall is a mausoleum, which may be entered through its own exterior doors, or through doors opening through the common wall. On the Tract Two side of the wall is a chapel, office space for the two corporations, and a mortuary.
Tract Three, land lying between the common wall and Tract One, and including the mausoleum portion of the building, was dedicated irrevocably for burial purposes, and one or more persons were entombed therein. Lakeview Gardens then filed an original application with the Board of Tax Appeals, asking that Tract Three be exempted from taxation.
The Board heard the matter and on January 8, 1979, entered its order denying the application as to Tract Three and setting aside its order of November 9, 1977, granting exemption to Tract One. The Board’s order reads in part as follows:
“18. That Lakeview Gardens, Inc., a corporation engaged in the ownership, operation and management of a cemetery indirectly owns, manages, conducts and operates a mortuary adjacent to and in connection with their cemetery as contemplated by K.S.A. 79-207.
“19. That an act of the legislature is presumed to be constitutional, and that K.S.A. 79-207 will be given full effect by this Board.
“It Is, Therefore, By the State Board of Tax Appeals of the State of Kansas, Considered and Ordered:
“1. That order of November 9, 1977 by this Board which exempts the real estate in question from taxation is hereby set aside and revoked.
“2. The real estate of the applicant in question shall be subject to real estate taxes pursuant to K.S.A. 79-207. Such taxes shall be levied on such property in question for the period beginning January 13, 1977.
“3. That the application requesting relief from a tax grievance, be, and the same is hereby denied.”
Lakeview Gardens, on January 26,1979, filed a notice of appeal and a cash bond of $25 in the Sedgwick District Court “pursuant to K.S.A. 74-2426, as amended.” Copies of the notice were mailed to the Secretary of the State Board of Tax Appeals and the Sedgwick County Attorney, and summons was served upon the Board of County Commissioners of Sedgwick County and on the Attorney General. The Board of County Commissioners, appearing by the county counselor, answered and moved to dismiss, contending that no right of appeal exists under K.S.A. 74-2426. Lakeview then sought to amend its notice of appeal by substituting “pursuant to K.S.A. 60-2101(d) as amended” for “pursuant to K.S.A. 74-2426, as amended.” Leave to make that change was granted, and the case was transferred to the Shawnee District Court, where the appeal was briefed and argued. The trial judge adopted all of the findings of fact of the Board of Tax Appeals except No. 19; the judge then held that K.S.A. 79-207 is unconstitutional and void, set aside the Board’s order, and ordered the property removed from the tax rolls.
The trial judge made no specific finding as to the basis for jurisdiction. The statute first designated by Lakeview Gardens as the basis for its appeal is K.S.A. 1979 Supp. 74-2426; it provides in part:
“Whenever the board of tax appeals shall enter its final order on any appeal, said board shall make written findings of fact forming the basis of such determination and final, order and such findings shall be made a part of such final order. Within ten (10) days after its decision the board shall mail a copy of its order to all parties to such appeal. The appellant and the county appraiser shall be served by certified or registered mail. Within thirty (30) days after the mailing of the final order of the board, any party to such appeal may appeal to the district court of the proper county. Whenever the director of taxation or the director of property valuation shall have been a party to the appeal to the board, such director may appeal to the district court from an adverse ruling by such board.
“Appeals shall be taken by filing, with the clerk of the district court of the proper county, a written notice stating that the party appeals to the district court, and alleging the pertinent facts upon which such appeal is grounded. Upon filing of the notice of appeal, the clerk of the district court shall docket the cause as a civil action, and shall forthwith and without praecipe, issue summons and cause the same to be served upon all parties involved in the appeal to the board of tax appeals, in accordance with the manner now provided by law in civil cases. Jurisdiction to hear and to determine such appeals is hereby conferred upon the district courts of this state. Such an appeal shall not be heard as a trial de novo but shall be limited to the transcript of the board and any other public records of which the board can be held to have taken notice. Trial may be had or any order made in term or vacation. Appeals may be taken from the district court to the supreme court by any party to the appeal as in civil cases, except that neither the director of property valuation nor the director of taxation shall be required to give bond on appeal. The final decision made in such appeals may be entered as a judgment as in other civil cases for or against the party appealing.”
This proceeding was commenced as an original tax grievance before the Board of Tax Appeals pursuant to K.S.A. 79-1702. That statute authorizes any person having a grievance not remediable under K.S.A. 79-1701 or 79-1701a (dealing with clerical errors), or remedial thereunder but not remedied by the proper officials, to present the matter to the Board of Tax Appeals. Article 24 of chapter 74 of the Kansas Statutes Annotated provides for the creation of the Board, and K.S.A. 74-2439(d) grants the Board power to correct errors and irregularities under the provisions of article 17 of chapter 79. K.S.A. 79-1702 empowers the Board to grant appropriate relief by canceling or abating taxes or by ordering refunds. We find no specific grant of authority to the Board of Tax Appeals to declare property exempt, and we find no statute providing that the Board’s authority in that area is exclusive. However, we hold this proceeding properly instituted under K.S.A. 79-1702, since that statute by its broad and general terms grants the Board authority to declare property exempt and to cancel or abate taxes upon it.
The tax grievance statutes, article 17 of chapter 79 of the Kansas Statutes Annotated, contain no specific provision for appeal to the courts from orders of the Board correcting or refusing to correct irregularities. K.S.A. 1979 Supp. 74-2426 has heretofore been narrowly construed by this court. In City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 704, 360 P.2d 29 (1961), we held that “the first sentence of section 74-2426 . . . limits the applicability of the statute to such cases as are appealed from the directors [of revenue and property valuation] to the board of tax appeals, as distinguished from original applications. It is readily apparent that the section is inapplicable to original applications for relief from tax grievances had before the board of tax appeals under G. S. 1949, 79-1702.” We noted that relief could be sought in an original action for injunction, mandamus or quo warranto, but not by way of appeal. The Jones & Laughlin rule was followed in Union Pacific Railroad Co. v. Sloan, 188 Kan. 231, 361 P.2d 889 (1961). We affirmed the district court’s dismissal of the attempted appeals in both Jones & Laughlin and Union Pacific. Also, see Walkemeyer v. Stevens County Oil & Gas Co., 205 Kan. 486, 492, 493, 470 P.2d 730 (1970).
Nevertheless, that statute has been misunderstood by counsel, and this court has not assiduously enforced the statute’s jurisdictional limitations. Appeals to the district courts and then to this court, arising out of applications to the Board of Tax Appeals for relief from tax grievances, were premised upon K.S.A. 74-2426 in both Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975), and Defenders of the Christian Faith v. Board of County Commissioners, 219 Kan. 181, 547 P.2d 706 (1976). No issue as to jurisdiction was raised in either case by the parties or by this court.
Be that as it may, it is clear from the statutory history, and from our earlier cases, that K.S.A. 1979 Supp. 74-2426 does not authorize appeal to the courts from the final order entered in original tax grievance proceedings before the Board of Tax Appeals. We see no reason to deviate from the rule laid down in Jones & Laughlin. We therefore hold that K.S.A. 1979 Supp. 74-2426 provides no avenue of appeal for the taxpayer, Lakeview Gardens, in the matter now before us.
Appellant argues that since no appeal is authorized under K.S.A. 1979 Supp. 74-2426, the Sedgwick District Court lacked appellate jurisdiction not only to determine the appeal on the merits, but also to authorize an amendment of the notice of appeal or to transfer the matter to the Shawnee District Court. Appellant contends, and appellee concedes, that appeal should have been perfected pursuant to K.S.A. 1979 Supp. 60-2101(d). Neither statute requires recital in the notice of appeal of the statutory authority relied upon, thus the amended portion was not a critical or necessary component of the notice. If an appeal was authorized by any statute, and if the appeal was lodged in the wrong district court, could that court transfer the matter to the correct court? We think it could.
The district courts of Kansas are no longer separate entities; all are part of a single and unified court of justice as mandated by art. 3, § 1 of the Constitution of Kansas. Both statutes 74-2426 and 60-2101(d) confer jurisdiction upon district courts to hear administrative appeals. If a right to appeal is conferred by statute, that right should not be defeated because of the designation of an improper district court by the appellant; if venue is nonexistent in the designated court, a transfer to the court of proper venue should be permitted if the ends of justice are served and no prejudice results.
The federal district courts, being courts of limited jurisdiction, require that a statement of the grounds upon which jurisdiction depends be included in each pleading which sets forth a claim for relief, whether by way of original claim, counterclaim, cross-claim, or third-party claim. Rule 8, F. R. Civ. P. Nevertheless, it is said that amendments of jurisdictional statements should be permitted “whenever it appears that a basis for federal jurisdiction in fact exists . . . and can be stated . . .”5 Wright & Miller, Federal Practice and Procedure: Civil § 1214, p. 107 (1969); and see Moore’s Federal Practice, § 15.09. Federal practice also allows deviation in the notice of appeal, as failure of the notice to correctly designate the court to which appeal is taken does not vitiate the appeal. Graves v. General Insurance Corporation, 381 F.2d 517 (10th Cir. 1967). Under our Kansas practice, although timely filing of notice of appeal is jurisdictional (Everett v. Blue Cross-Blue Shield Ass’n, 225 Kan. 63, 587 P.2d 873 [1978]), failure to strictly comply with other prerequisites for appeal, such as timely payment of the docket fee (Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 [1976]), and timely designation of the record (Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 581 P.2d 372 [1978]), are not jurisdictional where no prejudice results.
Here Lakeview filed timely notice of appeal and amendment of the jurisdictional grounds did not result in prejudice. Although notice of appeal was filed with the district court rather than with the agency as required in K.S.A. 1979 Supp. 60-2101(d), a copy of the notice was served upon the agency. The county officials were also notified and now allege no prejudice arising from amendment. The amendment here served the ends of justice and under such conditions leave to amend should be freely given. See K.S.A. 60-215.
Returning to the matter of transfer, we note that similar transfers of administrative review proceedings occur in the federal courts where an appeal is filed in a court lacking proper venue. See 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure: Jurisdiction § 3944, pp. 342-343 (1977), and cases cited therein. We hold that where an administrative appeal is timely filed in a district court lacking venue, then in the interest of justice and absent any showing of prejudice, the matter may be transferred to the district court of the proper county. The Sedgwick District Court did not err . in allowing amendment and in ordering the proceeding transferred, if the appeal had statutory authorization.
We must now examine K.S.A. 1979 Supp. 60-2101(<á) and our decisions thereunder to determine if that statute authorizes the appeal here attempted. The statute reads:
“A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require. A docket fee shall be required by the clerk of the district court as in the filing of an original action.”
There are two statutory prerequisites for appeal under § 60-2101(á) which are of concern in this proceeding: (1) the appeal must be from an order resulting from the exercise of a judicial or quasi-judicial function, and (2) there, must be no other means for perfecting the appeal. Further, the effect of any special statute authorizing or prohibiting appeal must be determined.
We have previously discussed and defined judicial or quasi-judicial functions. In Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972), we quoted the statute as it then appeared, K.S.A. 60-2101(a) (Corrick), and we said:
“It is noted the statute as written includes boards or officers exercising quasi-judicial functions.
“[Q]uasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.” (pp. 662-663.)
See also Adams v. Marshall, 212 Kan. 595, 512 P.2d 365 (1973).
More recently, in Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 597 P.2d 654 (1979), we said:
“In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist; whereas, legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.” (Syl. ¶¶ 1 and 2.)
In State, ex rel., v. Davis, 144 Kan. 708, 62 P.2d 893 (1936), we considered the function of the state tax commission in determining whether property was exempt from taxation. We said:
“Apparently the sole question before the state tax commission was whether specific property was exempt from taxation under the constitution and laws of our state because of the use being made of it. This necessarily involved the interpretation of the pertinent provisions of our constitution^ and statutes and their application to the facts agreed upon as shown by the evidence. This is a purely judicial function as distinct from a legislative or administrative one. ” (Emphasis supplied.) (p. 710.)
The Board of Tax Appeals was performing the same function in the case now before us as the state tax commission performed in Davis. Under the rationale of Amis, Suburban Medical Center and Davis, we hold that the Board was performing a judicial or quasi-judicial function within the meaning of section 60-2101(d).
We come now to the final jurisdictional issue: does the presence of a special statute authorizing appeals from some orders of the Board of Tax Appeals indicate a legislative intent to preclude appeals under section 60-2101(d) of judicial or quasi-judicial rulings outside of the scope and limitations of the special appeals statute? We have not directly addressed this issue previously.
Section 74-2426 was first enacted as L. 1943, ch. 290, § 12 (see G.S. 1943 Supp. 74-2426). It provided for appeals to the district courts from final orders entered under the provisions of certain designated tax acts, following a hearing, by the state commission of revenue and taxation. A major revision was enacted in 1957. Chapter 429 of the Laws of 1957 abolished the state commission of revenue and taxation and transferred its duties to three new administrative entities which were created, the Board of Tax Appeals, the director of revenue, and the director of property valuation. Section 11 of chapter 429, now codified as K.S.A. 74-2438, authorizes appeals from the director of revenue and the director of property valuation to the Board of Tax Appeals. Section 12 of chapter 429 amended G.S. 1949, 74-2426, authorizing appeal to the district courts from any “final order on any appeal” by the Board of Tax Appeals. The statute as then amended is much in its present form, K.S.A. 1979 Supp. 74-2426.
The language “final order on any appeal” clearly refers to appeals from orders of the director of revenue or the director of property valuation. This is indicated by the placement of the amending section, § 12, ch. 429, L. 1957. This interpretation was adopted in City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. at 704, quoted earlier in this opinion.
Chapter 429 of the laws of 1957, establishing the Board and a limited right of appeal under 74-2426, also authorized the Board to correct errors and irregularities under article 17 of chapter 79. L. 1957, ch. 429, § 6(c). Chapter 429, however, did not include a means for appeal from Board orders in tax grievances. Section 60-3301 of the General Statutes of 1949, the predecessor of K.S.A. 60-2101, provided for appeal from judicial tribunals but not from administrative agencies, including the state tax commission. In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465, 37 P.2d 7 (1934). If the legislature had wished to create a right to appeal from Board orders in grievance matters heard under 79-1702, a special appeals statute would have been required. See Anderson v. Hedges, 160 Kan. 665, 165 P.2d 425 (1946). Chapter 429 also conferred upon the Board authority to hear tax protest actions under 79-2005. L. 1957, ch. 429, § 6(f). Special means for obtaining court determination following Board rulings thereon existed under 79-2005, indicating legislative awareness that neither 74-2426 nor 60-3301, the predecessor of 60-2101(d), provided for appeals from Board action initiated upon original petition. The omission in chapter 429 of a special means for appeal from Board determination of tax grievance matters, together with the inclusion of limited appeal under 74-2426 and non-amendment of review under 79-2005, indicate legislative preclusion of appeal.
Case law holds appeal from judicial and quasi-judicial acts of administrative agencies or boards under 60-2101(d) is precluded by statutes providing that the board action “shall be conclusive.” State, ex rel., v. Unified School District, 218 Kan. 47, 542 P.2d 664 (1975); Hiett v. Brier, 2 Kan. App. 2d 610, 586 P.2d 55 (1978). Intent to preclude appeal based upon statutory analysis is similarly compelling.
Counsel have cited and our research has disclosed no case in which the appellate courts of this state have held K.S.A. 1979 Supp. 60-2101(d) to be the proper basis for an appeal to the courts from an order of the Board of Tax Appeals. We have held that statute to be authority for appeals from a number of other agencies. See Ostler v. Nickel, 196 Kan. 477, 413 P.2d 303 (1966) and Copeland v. Kansas State Board of Examiners in Optometry, 213 Kan. 741, 518 P.2d 377 (1974), appeals from the optometry board; Lauber v. Firemen’s Relief Association, 202 Kan. 564, 451 P.2d 488 (1969) and Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 205 Kan. 780, 473 P.2d 72 (1970) and 212 Kan. 137, 510 P.2d 160 (1973), appeals from boards controlling injury and retirement funds; Thompson v. Amis, 208 Kan. 658, appeal from the Civil Service Board; Powers v. State Department of Social Welfare, 208 Kan. 605, 493 P.2d 590 (1972), Gordon v. Harder, 211 Kan. 611, 507 P.2d 341 (1973), and Van Valkenburgh v. State Board of Social Welfare, 211 Kan. 754, 508 P.2d 875 (1973), appeals from the Board of Social Welfare; Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975), appeal from an appeals panel of a regional health care planning agency; and Schulze v. Board of Education, 221 Kan. 351, 559 P.2d 367 (1977), an appeal from an administrative hearing before a board of education. In none of these cases, however, were there in existence any special statutes authorizing appeals from the administrative agency from which appeal was taken.
Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978), was an appeal from the order of a school board, denying relief to a teacher in a grievance proceeding. We discussed at some length appeals to the courts from administrative agencies, saying:
“The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. It lies within the legislative domain to determine from- what orders or judgments an appeal may be taken. . . . Courts have no inherent appellate jurisdiction over the official acts of administrative officials or boards except where the legislature has made some statutory provision for judicial review. ... In the absence of a statutory provision for appellate review of an administrative decision no appeal is available but relief from illegal, arbitrary and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction. . . .
“In this state the legislature has provided an omnibus statute authorizing appeals to the district court from orders of any tribunal, board or officer exercising quasi-judicial functions. This authorization at the time of the present appeal was K.S.A. 1974 Supp. 60-2101(a), now K.S.A. 60-2101(d). As in the case of all general statutes 60-2101(a), now (d), does not apply to appeals where a special statute has been provided by the legislature. Examples of special appeal statutes affecting decisions of administrative boards may be found in K.S.A. 8-259,65-504, 44-1011, 65-2848, and 44-556. The scope of review provided by the legislature under any appeal statute depends upon the intent of the legislature as expressed in each particular statute and as interpreted by this court.” (pp. 467-468.)
Bush v. City of Wichita, 223 Kan. 651, 576 P.2d 1071 (1978), holds there is no appeal under 60-2101(d) from a finding of no probable cause by the Kansas Commission on Civil Rights. The opinion considers the relevancy of a special appeals statute, K.S.A. 44-1011, allowing appeal from orders of the KCCR. Justice Fromme said:
“Every appeal from a decision of the KCCR is governed and limited by the provisions of K.S.A. 44-1011 and if an appeal from a ‘no probable cause’ finding is not authorized under that section then no appeal is possible. As is the case of all general statutes K.S.A. 60-2101(4) does not apply to appeals where a special statute, such as K.S.A. 44-1011, has been provided by the legislature. (Brinson v. School District, [223 Kan. 465, 576 P.2d 602 (1978)].)” (p. 654.)
Here we are faced with a special statute, K.S.A. 1979 Supp. 74-2426, which is quite restrictive of the areas in which appeals to the courts may be taken from the Board of Tax Appeals. The legislature has considered various amendments to that statute in recent sessions, but we find no indication of any intent to expand the right of appeal to the courts in any manner here material. Courts should not expand the right of appeal from administrative bodies by judicial fiat. It lies within the legislative prerogative to determine the bounds within which appeal to the courts may be taken from the action of administrative agencies, boards, or officials. The courts must not encroach upon the legislative domain in that sphere. This is particularly true and pertinent in regard to matters relating to assessment and taxation, which are essentially legislative and administrative in character.
We conclude that the special statute, K.S.A. 1979 Supp. 74-2426, is exclusive, and that the general appeals statute, K.S.A. 1979 Supp. 60-2101(d), does not apply to appeals from the Board of Tax Appeals, and does not enlarge the limited right of appeal from that agency provided by the special statute. It follows that the trial court had no jurisdiction to entertain this appeal.
We should point out, however, that the taxpayer is not without remedy; direct action for injunction, quo warranto, mandamus, or declaratory judgment may be utilized, though appeal is not available.
As noted above, both parties to this appeal mistakenly concede that jurisdiction for the appeal to district court lies under K.S.A. 1979 Supp. 60-2101(d); the parties do not raise the specific jurisdictional issue which we hold determinative of this appeal. It is the duty of this court, however, to raise the question of jurisdiction on its own motion; and where the district court had no jurisdiction, this court does not acquire jurisdiction over the subject matter upon appeal. Thompson v. Amis, 208 Kan. 658, Syl. ¶¶ 2 and 3.
The judgment is reversed and the case is remanded to the district court with directions to dismiss the appeal. | [
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The opinion of the court was delivered by
Graves, J.:
Numerous assignments of error are presented, .in the brief of plaintiff in error, but many of them relate to practically the'same questions, and may be considered in groups.
It is urged that the court admitted incompetent, immaterial and hearsay testimony, which is pointed out in detail by the specifications of error. The trial court recognized the fact that evidence of this kind was in the case, and during the progress of the trial some of it was stricken out; and, as to other portions, the statement was made by the court that it would not be considered in the determination of the action. We do not understand, however, that the admission of this class of testimony is necessarily erroneous, where the trial is by the court without a jury. In such cases it will be presumed, unless the contrary appears from the record, that the court, in reaching its conclusions, considered only such evidence as was legally admissible. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748; Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110, 63 L. R. A. 271; City of Olathe v. Cosgrove, 71 Kan. 885, 81 Pac. 1131; Osborne, Ex’r, v. Young, 28 Kan. 769.)
The evidence objected to relates either to facts upon which there is unobjectionable testimony or to such as are themselves unimportant. We find nothing serious upon this subject.
The findings of fact made by the court seem to be justified by the evidence, and, no serious objection having been made to them, they will be regarded as a correct statement of the evidence given on the trial. The plaintiff insists that the defendant holds the lands in controversy under circumstances which, in law, constitute what is'known as a constructive trust, of which he is the beneficiary. The facts which create this trust, when summarized, are these: The stepmother of the plaintiff, Mrs. Gemmel, had the exclusive right tó purchase the land in controversy at ten dollars an acre. When the purchase was made by the defendant the land, with the improvements placed thereon by her and her former husband, was worth thirty-five dollars an acre. The defendant, who was then her husband, went to Olathe to procure a deed for her to this land. This deed, by mistake, contained his name as grantee. This was unintentional on his part, and he intended to correct the mistake by making a conveyance to her, but never did so. Several years afterward, shortly before her death, she and the defendant had a conversation in which she stated to him that she wanted her step-son, the plaintiff, to have her land, and that she could not die easy without feeling that he would get it. It was suggested that she might give the plaintiff money then in the bank instead of the land, but she insisted that he should have the land, and stated to her husband that unless he would promise to convey the land to her step-son she would “have to make a will,” to which the defendant replied, “Yery well, don’t worry; I will dó that.” Mrs. Gemmel took' no step toward making a will, and died the following day. The defendant has failed and refused to make a conveyance'to the plaintiff, as he promised to do.
It has been urgently insisted that these facts fail to show such fraud on the part of the defendant as is necessary to support a constructive trust. All trusts which arise by operation of law are created for the purpose of preventing the perpetration of fraud. Fraud is, therefore, an essential element of all, such trusts. All mere promises to convey real estate which rest in parol are void under the statute of frauds, and. however disappointing and harmful the refusal to perform such promises may be a court of chancery cannot' declare a trust thereon. The statute of frauds can only be set aside in transactions where its enforcement will permit the perpetration of that which it was intended to prevent. There is no serious disagreement among the authorities upon this subject. If there appears to be any confusion in them it arises not so much upon the legal rule as to when a trust arises as upon whether or not the facts of the given case justify this equitable intervention. In some cases it is declared that the fraud must be such as is sometimes denominated active, or actual, fraud. In other cases mere passive conduct that will result in the consummation of an unconscionable transaction, amounting simply to what is known as constructive fraud, is. held to be sufficient.
In cases where a trust has resulted because of false and fraudulent representations used in obtaining a conveyance, and the grantee affirmatively and actively induced the execution thereof, the words “actual” and “positive” frequently occur in the opinions to characterize the fraud used. And in such cases it has been said that the fraud must have been present as a producing cause of the transaction. In cases like the present, however, where the fraud is perpetrated by the refusal to consummate the transaction, it is otherwise. In this case the defendant received title to the land in controversy by mistake. He had no right or interest therein, and claimed none. He recognized at all times the ownership of his wife. The promise made to her on her death-bed was a recognition of her title at that time. By this promise to convey the land to the plaintiff he prevented her from disposing of it by will. He knew that she permitted the situation to remain as it was because of such promise. Their relationship — that of husband and wife — was confidential in the highest degree known to the law. The refusal on his part to perform this promise, thereby retaining the property as his own, is a fraud upon his dead wife, and a fraud upon the plaintiff. The transaction on its face appears innocent on the part of the defendant prior to his refusal to convey, but in the absence of any indication to the contrary it will be presumed that when he made this promise to his wife he then intended to do what he finally did do. (Larmon et al. v. Knight et al., 140 Ill. 232, 29 N. E. 1116, 33 Am. St. Rep. 229.) Courts of equity do not permit persons thus to profit by their own perfidy. Justice, reason and authority concur in the conclusion that the facts here shown are sufficient to create a constructive trust, and we so find. In the case of Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, 53 L. R. A. 758, it was said:
“The question presented by the demurrer to the fifth paragraph of complaint is whether or not a trust can be enforced against a man who, when his wife is on her death-bed, by his promises prevents a deed or will «or other writing being made by her in favor of her brothers, and on the death of the wife the real estate-intended for the brothers is inherited by said husband,, he being her only heir at law.
“The rule established by the authorities is that when, an heir or devisee in a will prevents the testator from providing for one for whom he would have provided but for the interference of the heir or devisee, such heir or devisee will be deemed a trustee, by operation of law, of the property, real or personal, received by him from the testator’s estate, to the amount or extent that the defrauded party would have received had not the. intention of the deceased been interfered with. This rule applies also when an heir prevents the making of a will or deed in favor of another, and thereby inherits the property that would otherwise have been given such other person. . . . It is not essential to the creation of such a trust that the fraud be actual, it may be actual or constructive. . . . An actual fraudulent intention on the part of the heir or deviseeis not necessary to the creation of a trust of this nature. The great weight of authority in England, and in this country, in such a case is that after the death of the testator or intestate equity will convert the devisee or heir into a trustee, whether when he gave his assent he intended fraud or not; the final refusal of himself, if living, or if dead, of his heirs or devisees, to-execute such trust, having the effect to consummate the fraud . . . ‘And wherever property is acquired by fraud, or where, though originally acquired without fraud, it is against equity that it should be retained by the party, there equity raises a constructive trust, which is held not to be within the statute, . . . and which may be proved by parol. ... So, ... if a testator be induced to make a devise, by the promise of the devisee that it should be applied for the benefit of another, equity, upon these facts, would create a constructive trust, which might be established by parolf . . . ‘If one party obtains the legal title to property, not only by fraud or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.’ This has been the doctrine of the English courts for more than 200 years. . . . ‘Where a person, knowing that a testator in making a disposition in his favor intends it to be applied for purposes other than his own benefit, either expressly promises, or by silence implies, that he will carry the testator’s intention into effect, and the property is left to him upon the faith of that promise or undertaking, it is in effect a case of trust; and, in such a case, the court will not allow the devisee to set up the statute of frauds — or rather the statute of wills, by which the statute of frauds is now, in this respect, superseded; and for this reason: the devisee by his conduct has induced the testator to leave him the property.’ . . . ‘If an individual on his death-bed, or at any other time, is persuaded by his heir at law, or his next of kin, to abstain from making a will, or if the same individual, having made a will, communicates the disposition' to the person on the face of the will benefited by that disposition, but, at the same time, says to him that he has a purpose to answer which he has not expressed in the will, but which he depends on the disponee to carry into effect, and the disponee assents to it, either expressly or by any mode of action which the disponee knows must give to the testator' the’ impression and belief that he fully assents to the request, then, undoubtedly, the heir at law in the one case, and the disponee in the other, will be converted into trustees, simply on the principle that an individual shall not be benefited by his own' personal fraud.’ . . . After a testatrix had given all of her estate to the defendant she changed her mind and wanted so to alter her will as to give plaintiff her half of certain real estate, whereupon defendant said to her: ‘You are weak and need not execute a codicil in order to give plaintiff what you desire; let the. will stand, and I will deed this real estate to her.’ Held, that the defendant held said real estate in trust for the plaintiff, and was bound to convey the same to her. . . . ‘We do not mean, however, that it is essential to the upholding of such a trust that a devisee should have been an active agent in procuring the devise to be made in his favor, for the great current of English authority during the last two centuries, as well as that of this country, liolds that, if either before or after the making of the will the testator makes known to the devisee his desire that the property shall be disposed of in a certain legal manner other than that mentioned in the will, and that he relies upon the devisee to carry it into effect, and the latter by any words or acts calculated to, and which he knows do in fact, c-ause the testator to believe that the devisee fully assents thereto, and in consequence thereof the devise is made, but after the decease of the testator the devisee refuses to perform his agreement, equity will decree a trust and convert the devisee into a trustee, whether, when he gave his assent, he intended a fraud or not — the final refusal having the effect of consummating the fraud.’ ” (Pages 407-417.)
In the case of Brook and others v. Chappell, 34 Wis. 405, which was a case to require a legatee in a will to perform oral directions of the testator, it was said:
“In every case where one induces the testator to omit a provision in a will' on behalf of another, by assurances that he,’ being the heir, or personal representative, or residuary legatee, will see such person paid such legacy or other provision, it is treated as an estoppel upon the party, or a virtual fraud to refuse performance, whereby a legal duty is imposed, and it will be enforced in a court of equity.” (Page 414.)
In the case of Larmon et al. v. Knight et al., 140 Ill. 232, 29 N. E. 1116, 33 Am. St. Rep. 232, it was said:
“ ‘Where a person by means of his promise, or otherwise by his general conduct, prevents the execution of a deed or will in favor of a third party with a view to his own benefit, that is clearly within the first head of frauds, as distinguished by Lord Hardwicke, viz., that arising from facts or circumstances of imposition; and the person so acting will be decreed to be a trustee for the injured party, to the extent of the interest of which he has been thus defrauded.’ ... It would seem to be equally within the principle for a person, by means of his promises, to induce a party not to let real estate descend as it would otherwise havp been left by him to descend, for the injury, in the case mentioned, to the legatee or grantee cannot be different or greater than is the injury to the heir, if he is, by like means, deprived of what would otherwise have been his inheritance. ... It was not indispensa ble, here,'to prove that the husband, when he had the wife’s title put in his name, told anybody that he did not intend to keep his promise. That may be inferred from the circumstance that he did not comply with his promise, although there was nothing intervening to prevent it. He is presumed to .have intended to do, when he obtained the property, what he finally did do.” (Pages 236, 237.)
And in the same opinion the following statement from section 1055 of the first edition of Pomeroy’s Equity Jurisprudence is quoted, at page 236:
“A second well-settled, and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and -fraudulent verbal promise to hold the same for a certain specified purpose — as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like — and, having thus fraudulently obtained the title, he retains, uses, and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit.”
In the case of Kimball v. Tripp, 136 Cal. 631, 69 Pac. 428, it was said:
“The position of the appellant on this point is that as there was no fraud in the procurement of the conveyances the plaintiff can have no relief. But, assuming the absence of fraud (though, in view of the defendant’s relation to the grantor as her agent, this can hardly be assumed), it does not follow that equity cannot afford relief. The deeds, it is found, were made to the defendant simply as her agent, and were therefore taken by him in trust for her; and, though the trust was not expressed in writing, equity will not permit the defendant to convert the property to his own use, contrary to the intention of the parties and to the confidence reposed in him. The doctrine is both novel and startling which restricts, in matters of fraud, its jurisdiction over the operation of written instruments to those cases where the fraud has been committed in their creation. If maintained, it will sweep away its heretofore admitted jurisdiction in an infinite variety of cases, of almost daily occurrence, where the fraud alleged consists in the use of instruments entered into upon a mutual confidence between the parties. Fraud in their use is as much a ground for the interposition of equity as fraud in their creation. There • is. no distinction in the principle upon which the jurisdiction is asserted in the two cases. In both there is the same abuse of confidence, and from both the same injury results.’ ” (Page 634.)
In the case of Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 431, it was said:
“It is not that deceit, misrepresentation or fraud, of itself, entitles a party to an equitable remedy; but that equity will, interfere to prevent the accomplishment of the fraud which would result from the enforcement of legal rights contrary to the real agreement of the parties. Indeed, the fraud which alone justifies this exercise of equity powers, by relief against the statute of frauds, consists in the attempt to take advantage of that which has been done in performance or upon the faith of an agreement, while repudiating its obligations under cover of the statute.” (Page 39.)
In the case of Curdy v. Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A. 189, it was said:
“Where a testator bequeaths property in trust to a legatee, without specifying in the will the purposes of the trust, and at the same time communicates those purposes to the legatee orally, or by unattested writings, and the legatee, either expressly or by silent acquiescence, promises to perform the trust, and the trust itself is not unlawful, there a court of equity will raise a constructive trust in favor of the beneficiaries intended by the testator, and will charge the legatee as a constructive trustee for them, upon the ground that the legatee will not be countenanced in perpetrating a fraud by encouraging the testator to make a bequest which would not otherwise have been made, and then refusing to execute his promise.” (Page 423.)
In Brook and others v. Chappell, 34 Wis. 405, the court further said:
“Undoubtedly every part of a will must be in writing, and a naked parol declaration of trust, in respect of land devised, is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee, to get at him; and there is nothing in reason or authority to forbid the raising of such a trust from the surreptitious procurement of a devise.” (Page 415.)
In the case of Ragsdale v. Ragsdale, 68 Miss. 92, 8 South. 316, 11 L. R. A. 316, 24 Am. St. Rep. 256, it was said:
“There is no dissent in the books from the proposition that one who is active in preventing a testator from making an intended provision by his will for another, and where, but for such intervention, the intended provision would have been made, will be held to be a trustee of any devise to himself to the extent it would have been for such other if it had not been intercepted by him, and will be compelled to respond to the claim of the intended beneficiary. Intercepting a bounty intended for another, and diverting it to one’s self, is held to be a fraud, from which a trust arises by operation of law,- and not within the statute of frauds or wills, but expressly excepted.
“The facts stated in the bill show that the testator, who had procured a codicil to be prepared to change the devise made wholly to the appellant, so as to include the appellee as a sharer of the devise, was. induced by representations and assurances of the appellant to forego and abandon his purpose to execute the codicil to effect the purposed change in the will, which was left as written because of such representations and assurances. Out of this transaction a trust arises by operation of law, because the testator was influenced with respect to his will, and an intended beneficiary was prevented from receiving the benefit which, but for the intervention stated, would have been secured to him by the act of the testator.
“We would not be understood as sanctioning the doctrine that an enforceable trust will arise from the mere breach of an oral promise, however solemn, to hold land in trust. There must be conduct influential in producing the result, and but for which such result would not have occurred, amounting, in the view of a court of equity, to fraud, to save the case from the statute of frauds. A merely oral promise, and its subsequent breach, however disappointing and harmful, and though ever so reprehensible in morals, is not of itself enough to cause a court of chancery to declare a trust.” (Page 97.)
(See, also, Meredith v. Meredith, 150 Ind. 299, 50 N. E. 29; Giffen et al. v. Taylor, 139 Ind. 573, 37 N. E. 392; 2 Wash. Real Prop., 6th. ed., § 1430; Hoge v. Hoge, 1 Watts [Pa.], 163, 26 Am. Rep. 52; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245; Matter of Will of O’Hara, 95 N. Y. 403, 47 Am. Rep. 53; 1 Perry, Trusts, 5th ed., §§ 181, 182.)
It is contended that the district court erred in holding that the trust covered all the property in controversy ; such, it is claimed, was not the intention of Mrs. Gemmel, nor was it within the contemplation of the defendant’s promise. The existence and scope of the trust depends upon the interpretation of the death-bed agreement as stated in the court’s finding of fact No. 21.' The language used by Mrs. Gemmel was: “David, I cannot die easy feeling that Ed will not get my land down there or its value in money.” To the suggestion that he be given the money in the bank, she replied: “I would rather he had my land. . ■ . . It was his father’s, and belongs to him by rights.” It is insisted that, as the north eighty had been claimed by Mrs. Gemmel as her own, and the south eighty had been regarded by her as belonging to the estate of her first husband, that the words “it was his father’s” limits the application of the expression “I want him to have my land down there” to the south eighty. Her statement on this subject, standing alone, might appear doubtful, but taken in connection with the other findings and evidence it is quite easily understood.
Finding No. 6 indicates that the north eighty was acquired by Mr. and Mrs. Fletcher jointly, but in what proportion does not appear. The evidence shows, however, that they bought some calves with money jointly furnished, which were cared for and fed there until in the spring when they were “coming two,” at which time they were sold, and out of the proceeds the north eighty was purchased. After its purchase Fletcher cultivated the land and made lasting and valuable improvements thereon. It would seem, therefore, that whatever claims may have been made by Mrs. Fletcher, after her husband’s death, concerning the ownership of this land, that he, at the time of his death, had a substantial equity therein. Under these circumstances it does not seem strange that, when on her death-bed, making final disposition of her estate— when considering the just claims of her step-son, and remembering the circumstances under which this land, all of it, was acquired and improved — she would say: “It was his father’s, and belongs to him by rights.” The defendant had enjoyed the use of this eighty for years. No reason existed why she should think that he had any claims to be considered. He was an old man, without children, with abundant means, and it would seem unnatural and unfair that he should enjoy any part of the property produced by the money and labor of Mr. Fletcher, as against the latter’s only surviving child, the plaintiff.
We think it more reasonable to conclude, as the trial court did, that when she said “my land” she referred to all of the land in controversy, and the expression-“it was his father’s” was not intended to limit the land which she wanted her step-son to have. Besides, the evidence is such that we would not feel at liberty to disturb the conclusion of the court upon this point, even if we were doubtful of its propriety. We conclude'that she intended Ed to have all the land in controversy.
Finally, it is claimed that, in any view, a trust could not arise which would cover any more land than Mrs. Gemmel could have legally devised to Ed if no promise had been made by the defendant and the threatened will had been executed. In support of this contention we have been referred to the provision of the statute of wills which prohibits husband or wife from depriving the other by will of more than one-half of his or her property. (Gen. Stat. 1901, § 7972.) This law, however, has no application here. There is nothing in the record which shows that a compliance by the defendant with the promise made to his wife will deprive him of more than one-half of her property. What property she had other than this land does not appear, although the defendant probably knows. No suggestion of this kind was made when Mrs. Gemmel was insisting upon the conveyance; nor when the plaintiff demanded that the wishes of his step-mother be fulfilled ; nor in the answer filed in this suit; nor does the evidence present facts from which such a conclusion can be satisfactorily drawn. This contention seems to be an afterthought. It is presented here for the first time, and for that reason cannot be considered. (Railroad Co. v. Beets, 75 Kan. 295, 89 Pac. 683.)
(93 Pac. 339.)
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The opinion of the court was delivered by
Porter, J.:
Plaintiff brought this action to recover damages in the sum of $600, and interest, being the amount of three promissory notes which he claims to have executed and delivered to defendants in consideration of a void contract for an interest in a patent-right, and which notes it is claimed defendants transferred to innocent holders. The court sustained a gen ■eral demurrer to the petition, and plaintiff, having elected to stand upon his petition, brings error. .
The petition alleges that the National Fence Machine Company is a corporation with its principal place of business at Abilene, Kan.; that defendant ■Charles Kubach is its general manager; that in July, 1903, plaintiff and defendants entered into the following written contract:
“National Fence Machine Company of Abilene, Kan.,
Sole Owners and Manufacturers of the National Fence Machine,
Patented January 3, 1903, No. 489,139.
“TERRITORIAL LEASE.
“Know All Men by These Presents: That the National Fence Machine Company of Abilene, Kan., has this day, July 31, 1903, appointed Sylvester Nyhart and son of Atchison, Kan., their true and lawful general agent to sell their national fence machine, at wholesale and retail, in the following territory, to wit: Doniphan, Brown, Nemaha, Marshall, Pottawatomie and Jackson counties, state of Kansas.
“This Indenture Witnesseth: That for the sum of $600, receipt of which is hereby acknowledged, the National Fence Machine Company of Abilene, Kan., hereby agrees to give, and does give the party of the second part six 'sample machines and the agency for the sale of the national fence machine for the term of .six years in the above territory. The company hereby agrees to furnish all machines ordered by said agent at two dollars and fifty cents ($2.50) each on board cars at factory, when ordered each machine to be made in a good, substantial and workmanlike manner. The agent shall make a report to the company at the end ■of each month. The company hereby further agrees to take notes for machines when same are quoted good by local bank.
Ship machine to order. By Chas. Kubach, Mgr.
Address all correspondence to SYLVESTER NYHART.
The National Fence Machine Co., LOUIS NYHART ”
Abilene, Kan.
The petition alleges the execution of the notes and their transfer to innocent holders; that Louis Nyhart, plaintiff’s son, was only nominally interested in the contract; that the so-called territorial lease was a mere scheme for the purpose of avoiding the provisions of the statute making unlawful a sale of a patent-right in any county unless the person selling the same shall first file with the clerk of the district court of the county where the sale is made duly authenticated copies of the letters patent, with an affidavit showing that the letters patent are genuine and have not been revoked or annulled and that such person has the right to convey, and for the further purpose of avoiding the requirement of the statute that the person taking any obligation in writing in payment for such sale shall insert therein, before the same is signed, the words “given for a patent-right.” The failure of defendants to comply with any of the provisions of the statute is alleged. Plaintiff in his petition offered to return the six sample machines referred to in the contract.
The theory upon which the petition is drawn is that the contract constituted a sale of a patent-right within the words of the statute (Gen. Stat. 1901, §§ 4356-4358), and, being in violation of the statute, the contract is void.
Defendants contend, first, that the contract is not for the sale of a patent-right, but merely a sale of six sample machines and the appointment of plaintiff as agent with the right to sell under defendants’ direction and control.
The only suggestion of direction or control over the conduct of plaintiff is the provision that he shall report to the company at the end of each month, which would naturally be for the company’s own information and benefit. The so-called agency was not the ordinary one where employment on the one side and promise of service on the other is the only consideration. It was not revocable at the will of the principal, and the consideration was the notes given by plaintiff. Nor was the contract a lease. The form of the instrument is of. no importance; the substance determines the true na ture of the transaction. As observed in New v. Walker, 108 Ind. 365, 9 N. E. 386, 58 Am. Rep. 40, “schemes, however cunningly contrived, or subterfuges, however ingeniously devised, will not enable the vendor of the patent-right to evade the statute.” (Page 370.) The six machines, according to the contract, were worth $2.50 each. The main part of the consideration for the notes, therefore, was the right to sell a patented article within the six counties for the period of six years.
It is vigorously contended that the company did not by the contract deprive itself of any substantial interest in the patent itself, and that therefore it was not a sale of a patent-right. Literally, the sale of a patent-right is the sale of the interest of the patentee or owner of the letters patent, and is consummated generally by a transfer of the letters patent. It is universally recognized, however, that a sale of the rights conferred,by the letters patent within a certain territory is a sale of a patent-right. And where the owner sells the right to use and to manufacture for sale and use during only a portion of the life of the patent and for, a prescribed territory it is a sale of a patent-right. These propositions are so well recognized that it would be useless to cite authorities. Under a statute practically identical with ours it was held, in New v. Walker, supra, that a contract transferring the right both to manufacture and sell was the sale of a patent-right, although there was in fact no sale of the patent itself.
Here was a sale of the exclusive right to sell for a period of six years within certain territory the thing patented, as much so as though the word “exclusive” had been written in the contract. The only right within that territory reserved to the owner under the letters patent was the right to manufacture and the remaining interest in the patent after the expiration of six years. The privilege of manufacturing an article may be of very slight value compared to the right to vend and sell. Whatever it was that was transferred by the contract, it was something which the company claimed to have the right to sell by virtue of the letters patent. If it lacked full authority to sell what it sold, or possessed none for the reason that the patent had been revoked or annulled, the purchaser would be injured by the very fraud and imposition against which the statute was designed to protect him. (Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327.) The reason, therefore, of the statute applies with full force to every sale of a partial interest in a patent-right as much as to the sale, of the entire interest. “That which is within the reason of the law, is a part of the law.” (The State v. Book Co., 69 Kan. 1, 15, 76 Pac. 411, 12 L. R. A., n. s., 1041.)
The demurrer should have been overruled. There are allegations in the petition with reference to a contemporaneous oral agreement which ádd nothing to the cause, of action, but they may be regarded as surplusage. The true consideration may always be shown, and from the petition enough appears to show that in this case it was the sale of an interest in a patent-right, which, in our view, amounts to a sale of a patent-right within the purview of the statute.
The contention that the contract was only voidable and not void has been settled in this state in Mason v. McLeod, supra, where it was said:
“The purpose of the statute* as we have seen, was to prevent and punish fraud, and non-compliance with its provisions is declared to be a misdemeanor, punishable by fine or imprisonment. The penalty implies a prohibition, and contracts made by a vendor of patent-rights in violation of the act are void.” (Page 109.)
In the same opinion it was expressly held that the parties are not in pari delicto, for the reason that the law was enacted and the duties imposed for the protection of the purchaser, who violates no law by becoming a party to the contract and is not thereby precluded from asking and obtaining relief. We are satisfied with the reasoning of that case and the conclusions reached therein. It follows that, the notes having been given without consideration, the maker may recover from the payee the amount he would be liable to pay to the innocent holders.
The judgment is reversed and the cause remanded, with direction to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Benson, J.:
This was an action of replevin for wheat in the shock. The court directed a verdict for the defendant, and the plaintiff brings the case here.. Error is predicated upon this instruction.
The wheat was upon lands for the possession of which the plaintiff’s wards recovered a judgment, which was affirmed in this court. (Beiswanger v. Bangs, 72 Kan. 702, 83 Pac. 1032.) The defendant entered into-possession of the land after the action of ejectment, had been commenced, under a contract to purchase' from one H. T. Trice, wlm was not a party, and was-not shown to be in privity with any party thereto, and' whose title, if he had any, was not disclosed. A writ was issued upon the judgment in that action to put' the plaintiffs therein in possession. The writ - commanded the sheriff to put out the defendants in the-action, Christian Henry Beiswanger and F. B. Cook, “or any person or persons found in possession,” and'. to restore the possession to the plaintiffs. The sheriff served this writ, and made return that he had done so, and that he had put Edmund Burke out of possession and had put the guardian of the plaintiffs named in the writ in peaceable possession of the lands. At that time, May 25, 1905, the wheat in question was growing on the premises. When the wheat ripened, Burke entered and cut it. It was then replevied by the plaintiff in this action. The statute provides:
“When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title; but such notice shall be of no avail unless the summons be served or the first publication made within sixty days after the filing of the petition.” (Gen. Stat. 1901, § 4515.)
The plaintiff argues that this statute applies to all persons, whether parties to the action or in privity with such parties or not. This is not thé correct view. The statutory provision is to be construed in the light of the authorities generally on the subject of Us pen-dens, and is designed to embody the doctrine of equity jurisprudence on that subject. (Smith v. Kimball, 36 Kan. 474, 13 Pac. 801.) The rule in equity is that a pending suit, duly prosecuted and not collusive, is notice to a purchaser of the property in dispute from a party to the litigation, so as to affect and. bind his interest by the decree. (2 Pom. Eq. Jur., 3d ed., § 633.) The constructive notice by the pendency of the suit extends only to those who derive title from a party or privy pendente lite. (2 Pom. Eq. Jur., 3d ed., § 637.) The purpose of the rule is to prevent third persons during the pendency of the litigation from acquiring interests in the land which would preclude the court from granting the relief sought, and it has no application to independent titles, not derived from any of the parties to the suit nor in succession to them. (Merrill v. Wright, 65 Neb. 794, 91 N. W. 697, 101 Am. St. Rep. 645; Webster v. Filley, 43 Kan. 475, 23 Pac. 1080; Travis v. Supply Co., 42 Kan. 625, 22 Pac. 991.)
It was proper, however, for the sheriff under the writ to place the plaintiffs therein in possession, and in performing this duty to dispossess the defendants named in the writ and all persons holding under or in privity with them after the commencement of the action. It is shown that the defendant, Burke, went into possession under H. T. Trice, but the origin of Trice’s title, if he had any, is not shown. After producing his contract from Trice the defendant offered no evidence to show title in his vendor. In such a situation the presumption is that Trice held under a .defendant in the ejectment action. All persons entering upon possession of property pendente lite are presumed to have entered under the defendant in the litigation. (3 Freeman, Executions, 3d ed., § 475.) The supreme court of California, in deciding this proposition, said in Wetherbee v. Dunn, 36 Cal. 147, 150, 95 Am. Dec. 166, affirming the same statement in Leese v. Clark, 29 Cal. 664, 671:
_ “Prima facie all who come into possession after action brought must go out, for the presumption is,, nothing to the contrary appearing, that they came in under the defendant. This presumption is not overthrown by showing.that they came in as tenants of John Clark, without showing affirmatively that John Clark also came in before suit brought, or, at least, that he has come in under a title adverse to that of the defendant, not in collusion with him, and under such circumstances as would entitle him to the protection of the court, on a proper application, against the writ.” ■
In an early case in Kentucky the rule was thus stated:
“If it had appeared that the appellees had been in possession, not under the defendant in the suit in which the decree was pronounced but in virtue of a paramount title, they would no doubt have been entitled to the interposition of the court in their favor. But they have not shown how they claim, and in the absence of all proof of the fact we cannot presume that they held under such title; and if they held under the defendant in the suit, whether as lessees or as purchasers, as it appears they obtained the possession pending the suit, the decree is unquestionably obligatory upon them, as well as the defendant; and we are acquainted with no principle or practice which would require a scire facias to be served on them before they could be turned out of possession.” (John Long v. William, Morton et al., 2 A. K. Marsh. [Ky.] *40.)
Mr. Justice Field, delivering an opinion of the federal circuit court, held:
“Prima facie all parties. entering upon land after suit in ejectment brought for its recovery are in possession in subordination to the defendant, and are equally liable to be removed by the writ issued upon the judgment recovered against him.” (Hall v. Dexter, 3 Saw. [U. S. C. C.] 434, syllabus.)
In the absence of any evidence showing what title, if any, Trice had or claimed to have, the proof that the defendant entered as his. vendee did not rebut the presumption that he was holding under the defendants in the ejectment action.
There is the further presumption that the proceedings of the sheriff were regular, for in the absence of evidence to the contrary it must be presumed that the officer performed his duties properly. (Head v. Daniels, 38 Kan. 1, 15 Pac. 911; Wilkins v. Tourtellott, 42 Kan. 176, 22 Pac. 11.) Nothing to the contrary appearing, it must be presumed in favor of the regularity of the proceedings and the truth of the sheriff’s return that the defendant was in possession in succession to, or in privity with, the defendants named in the writ, and therefore subject to its operation.
The sheriff having delivered the possession of the land with the wheat growing upon it, the plaintiff, presumptively at least, was entitled to such wheat. It was a part of the real estate. (Chapman v. Veach, 32 Kan. 167, 4 Pac. 100; Land Co. v. Barwick, 50 Kan. 57, 31 Pac. 685.) In the absence of evidénce showing any right of severance in the defendant, the plaintiff was entitled to the possession of the wheat under the writ. (Adams, Ejectment, 4th ed., *347; 3 Freeman, Executions, 3d ed., § 474; 15 Cyc. 183; Huerstal v. Muir, 64 Cal. 450, 2 Pac. 33.)
As the defendant, Burke, was prima facie holding under the d'efandants in the ej ectment action, no evidénce of an advérse title being ófféred, and the presumption, in the absence of evidence to the contrary, being also in favor of the regularity of the proceedings of the sheriff, the plaintiff appears to hávé been in the lawful possession of the growing wheat when the. defendant entered and cut it. The cburt erred therefore in instructing a verdict for the defendant, and in denying the motion for'a new trial.
The judgment is'revérsed and a new trial ordered. | [
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The opinion of the court was delivered by
Mason, J.:
Proceedings were begun under the county drainage act (Gen. Stat. 1901, §§ 2551-2566) for the establishment of a drain. The county commissioners, upon the petition of persons interested, finding that the proposed ditch was necessary and would be conducive to the public health, convenience and welfare, ordered it to be built, apportioning the construction among the owners of the lands affected in proportion to their estimate of the benefits to be received. Two of these landowners, being dissatisfied with the order, gave the bond and notice of appeal provided by the act. (Gen. Stat. 1901, § 2557.) According to the terms of the statute (Gen. Stat. 1901, §§ 2558, 2559), the effect of this was to require three questions relating to' the proceedings to be submitted to a jury to be impaneled by the probate judge, namely:
“First, whether .it will be conducive to the public health, convenience or welfare to cause said proposed ditch, drain, or watercourse to be established as located ; second, the amount of compensation due to each person in case of the location of the same; and, third, the amount of labor to be performed by- such person interested in the opening and constructing of the same.”
A transcript of the proceedings before the county board was filed with the probate judge, but before any steps were taken by him persons interested in the projected improvement appeared and contested his right to take jurisdiction of the matter, upon the ground that that part of the statute relating to the appeal was void as án attempt to devolve legislative functions upon a judicial tribunal. A motion to dismiss the appeal being denied, the moving parties applied to the district court and obtained a writ of prohibition against the probate judge forbidding him to proceed further in the matter of such appeal. The probate judge and the persons who instituted the appeal prosecute error from the judgment awarding such writ.
There is little difficulty in-deciding that it is competent for the legislature to provide for submitting to the determination of a court the first two of the three questions which the statute says may be referred to a jury. It is true that the question whether a proposed improvement would be of public benefit is very closely related to the question whether it shall be undertaken, but adherence to the doctrine established by the series of cases relating to the extension of city boundaries requires the court to recognize a distinction between them, and to say that the former question is one of fact suitable to be left to a court, only the latter being one of policy requiring to be decided by a legislative body. These cases are collected and reviewed in Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598, 63 L. R. A. 630, 104 Am. St. Rep. 384. (See, also, Citizens’ Sav. Bank v. Town of Greenburgh, 173 N. Y. 215, 65 N. E. 978, and cases there cited.)
The amount of compensation to be made to individuals on account of the establishment of the drain is conceded to be a fair matter for judicial review.
The serious controversy arises with respect to the third question. While the statute seems to contemplate the actual building of specified portions of the ditch by the several landowners, the situation is essentially the same as though the cost of the improvement were to be assessed against the improved property in proportion to the benefits received. May the legislature authorize an appeal to be taken to a court from the assessment made by appraisers in such a case ? The defendants in error rely with confidence upon the doctrine of Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575, which has been reaffirmed at the present session of this court in Silven v. Osage County, ante, p. 687, declaring void a statute which purports to grant an appeal to the district court from the action of the county board of equalization. It must be conceded that the analogy between those cases and this seems close, and that the grounds of distinction are not readily apparent. However, although taxation by special assessment, like general taxation, is regarded as an exercise of legislative power, it differs from it in various ways. (Hines and others v. The City of Leavenworth and others, 3 Kan. 186.) The argument against permitting the judgment of a court to be substituted for that of administrative officers with respect to the entire system of assessment upon which all public revenues depend does not apply with equal force to a plan which merely contemplates submitting to a judicial body the question of how far a specific tract of land is benefited by a particular improvement — a question which may plausibly be viewed as one of fact. The practice of allowing appeals to judicial tribunals from determinations of this character is common. (2 Cooley, Tax., 3d ed., 1271; 25 A. & E. Encycl. of L. 1220.) And it has often been held that the existence of such right of review dispenses with the necessity of giving notice to the owner of the property affected prior to the original assessment. (1 Cooley, Tax., 3d ed., 59, note 4; The State ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 N. W. 947, 6 L. R. A. 394; Wilson v. Karle, 42 N. J. Law, 612; Hoertz v. Jefferson Southern Pond Draining Co. [Ky.], 84 S. W. 1141.) Where, as in this case, a legislative body decides whether an improvement shall be made, what its extent shall be, what property shall be charged with its cost, and what method of apportionment shall be employed, it is .not clear that the mere ascertainment of the actual results of such rule may not be committed to a court. Where the legislature adopts a rule of apportionment by frontage or area its application becomes a mere matter of measurement, but even this requires some inquiry and finding. It is not clear why, having chosen to let the apportionment turn upon the actual benefits received, the legislature may not suffer the fact in that regard to be determined in a judicial proceeding. That a right of limited judicial review from the appraisers’ estimate of benefits may be granted does not admit of doubt. Thus, in In re Westlake Avenue, 40 Wash. 144, 82 Pac. 279, it was said:
“The city, and not the court, is authorized to take the initiative in the matter of such improvements and the assessments to pay therefor. It was the legislative power of the city, exercised by its council, that occasioned the imposition of the assessment. The state legislature gave the city the authority to levy such a tax. It provided the method by which it should be done. By this plan the apportionment of the tax to the various parcels of property is made by a board of commissioners appointed by the court. These commissioners, by operation of law, become, in effect, officials or agents of the municipality for the performance of this service. Upon the completion of the commissioners’ work it may be called in question by any interested person before the court, which is vested with revisory powers. The function of the court in these proceedings is to settle disputes and to correct errors and inequalities called to its attention, and thereby relieve the assessment of any lack of uniformity or other injustice. That the act of the legislature invokes the assistance of the court to obviate errors in, and facilitate the accomplishment of, a special assessment, does not, in our opinion, render the statute obnoxious to the constitution.” (Page 148.)
In State v. District Court of Hennepin County, 33 Minn. 235, 22 N. W. 625, the distinction between setting aside the work of an assessing body and merely revising it was discussed, the court saying:
“It was not the purpose of the act that the proceeding before the court should be a reassessment de novo. . . . We do not think it reasonable to construe the act as contemplating the setting aside of the determination thus made as to any objector, and, as a matter of course, allowing the trial of the same question as to benefits anew before the court, and making the opinion of the judge as to the facts to prevail over that of three assessors who had been selected to perform this very duty. The terms of the act do not require such a construction. While the court is empowered to ‘make or order a new assessment,’ in whole or in part, any such new assessment the court is to ‘revise and confirm upon like notice.’ It was not intended that the court should itself make an assessment upon a complete trial before it, and then ‘revise and confirm’ its own judgment: The term ‘make’ seems to have been used either in the sense of ‘order to be made,’ or else as referring to such corrected or amended assessment as should result from the exercise of the power of the court to ‘revise, correct, amend:’ any modification of the original assessment being, in some sense, the making of a new or different assessment.” (Pages 249, 250.)
But in State ex rel. v. Ensign, 55 Minn. 278, 56 N. W. 1006, arising under a similar statute, the same court said:
“Whether a local improvement shall be made, and whether the cost shall be borne by the entire city or by the property specially benefited, is a question in its nature political, and in no sense judicial, just as is the question whether private property shall be taken for public use. But the legislature may commit to the courts, as a quasi-] udicial function, the power to determine what is just compensation for taking private property for public use, and, when the burden of a local improvement is imposed upon particular property, (as upon property specially benefited,) we think it may be committed to the court to determine as a quasi-j udicial question whether the assessing officers have correctly determined the facts upon which the. assessment is made.” (Page 285.)
It is not necessary, however, to decide the precise question stated. Heretofore in this discussion it has been assumed that the statute permits and requires that upon an appeal being taken from the board of county commissioners the probate court shall apportion the benefits of the proposed improvement. Whether that is really the case can only be determined from an examination of its essential provisions. It describes the proceeding as an appeal “to the probate court,” but upon the filing of the bond and notice this is what is actually done: The probate judge impanels a “jury” of six disinterested freeholders,'and gives the sheriff a notice of their appointment, specifying a time for their “meeting ... in probate court”; the appellant notifies the persons interested of this date; at the time specified the probate judge hears and determines “all preliminary questions pertaining to such case,” and administers an oath to the jury to report in writing to the court, upon actual view, .the three matters already stated; upon the return of the jury the judge makes a record of their proceedings, makes an order “as said jury shall-report,” and taxes the costs in fair proportion among the persons interested “in conformity with the report of said jury.” It will be observed that while the proceeding is spoken of as a “case” it is utterly lacking in the essential elements of a trial by the court. The judge''is given no control over the deliberations of the jury, and their action is final. He does, indeed, go through the form of making an order, but it is a mere registration of their decision. It was said of a similar situation, in Ferguson v. Borough of Stamford, 60 Conn. 432, 22 Atl. 782:
“It will be observed that the proceeding is not in the superior court. The committee, although appointed by a judge of that court, is not an arm of the court, and the validity of its proceedings in nowise depends upon any action accepting or approving its doings.” (Page 447.)
There is a provision for costs under some circumstances being taxed to the appellant and “collected as judgment at law in other cases” (Gen. Stat. 1901, § 2560), but this is only an incidental feature of the act and can be rejected if invalid without affecting the remainder. In substance, therefore, this proceeding is nothing more than the appointment by the probate court of commissioners to estimate the benefits that would result to the several tracts of land affected from the proposed improvement. That the power is described as conferred upon the probate court is not conclusive or even important. As was said in In re Johnson, 12 Kan. 102:
“The legislature in enacting said sections uses the words ‘probate courts/ instead of using some other designation for the persons intended. But the language must be liberally construed, so as to carry out the will of the legislature, and not to defeat it. The legislature undoubtedly intended to confer said jurisdiction upon the persons who exercise the jurisdiction of the probate courts,.and not upon the courts themselves as probate courts.” (Page 105.)
The use of the word “jury” is likewise immaterial, however inappropriate the term may be. This is intimated in Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 983, 42 L. Ed. 270, where it was said:
“Some confusion has perhaps arisen from designating the tribunal of seven men, which is to estimate the damages and to assess the benefits, as ‘a jury/ when it is in truth an inquest or commission, appointed by the court.” (Page 592.)
That other than judicial powers may be conferred upon the person holding the office of probate judge has been held in many cases, among which may be mentioned Intoxicating-liquor Cases, 25 Kan. 751, 37 Am. Rep. 284, and The State, ex rel., v. Brown, Probate Judge, 35 Kan. 167, 10 Pac. 594. That the appraisers of benefits are selected by the incumbent of a judicial office is no ground of objection. (See editorial note in 3 Current Law, 743; 25 A. & E. Encycl. of L. 1220, note 7, and cases cited in Bauman v. Ross, 167 U. S. 548, at pages 590, 593, 17 Sup. Ct. 966, 42 L. Ed. 270.)
A case quite closely in point is Lake et al. v. City of Decatur, 91 Ill. 596, the scope of which is indicated by the following extract from the opinion:
“It is, doubtless, true, under the section of the constitution cited the legislature cannot confer the power on the county court to make local improvements by special assessment. That power, if conferred, must be vested in the corporate authorities of the city or town. We do not, however, understand that the act in question has conferred, of even attempted to confer, the power on the county court, or that the county court has exercised such power in the proceedings in the case before us. . . . The city council of Decatur passed an ordinance that the improvement should be made — that it should be paid for, in part, by special assessments. The cost of the improvement was estimated, and the character and quality of the work was settled, by the corporate authorities of the city. Upon these matters the county court was not consulted, nor did it have any connection whatever with them. But when, during the progress of the proceedings, it became necessary to have commissioners appointed to assess benefits on the property which would be specially benefited by the improvement, a petition was presented to the county court for the appointment of commissioners, as is provided for in the act. The county court, as will appear by reference to the several provisions of the act, has no voice in determining whether the improvement shall be made, what its character and cost shall be, when it shall be commenced, and when stopped. Indeed, in so far as the making of the improvement by special assessment is concerned, the county court is an utter stranger to the proceeding, and has no voice in it. These various matters are conferred upon the corporate authorities of the city or town. How can the language of the constitution, ‘may vest the corporate authorities of cities, towns or villages with power to make local improvements by special assessment,’ be held to prohibit the appointment by a court of commissioners, during the progress of the proceedings, to assess benefits to the property owner who is to be specially benefited by the improvement, when the legislature has conferred such a power upon the court? The legislature has provided that the city, during the progress of the proceedings, may apply to the county court for the appointment of commissioners, and that they may be appointed; and as the constitution does not prohibit the general assembly from so providing, it clearly has that power.” (Page 597.)
The court is of the opinion that the statute under consideration does not attempt to impose upon the probate court, as such, the duty of determining the amount of assessment proper to be charged against the benefited property to pay for the projected improvement, and for that reason, if for no other, is not open to the objection urged against it.
Two minor questions are raised. The statute re lating to the bond to be given upon appeal fixes no amount. The bond given by the appellants in this case was for the sum of $300, and it is argued that this limitation rendered it void. The bond is required to be made “to the acceptance” of the county clerk and probate judge, and it would seem proper for them to pass upon its sufficiency as to amount as well - as with .respect to the security. At all events the bond given was not a nullity. (See Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 749, and cases there cited.)
The notice of appeal is required to be given to the county clerk. In this instance the written notice was delivered to the county clerk, but was addressed to the board of county commissioners, and it is claimed that this thing was not a sufficient compliance with the statute to give the probate judge jurisdiction to act. The court thinks otherwise.
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The opinion of the court was delivered by
Smith, J.:
According to the allegations of the petition the removal of the bridge by the county commissioners was illegal and imposed great hardship upon the plaintiff, and he would, perhaps, under the authority of Greeley Township v. Comm’rs of Saline Co., 26 Kan. 510, 514, have been entitled to enjoin the act, or may even yet not be without a remedy. However, before the decision of the court sustaining the demurrer can be reversed we must be able to say that the county is responsible in damages for the wrong alleged. It is well-established law that a county is an involuntary corporation for governmental purposes, and is in no sense a business corporation; that the powers and obligations of the county are such only as the law prescribes or as arise by necessary implication therefrom. (Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255; 11 Cyc. 497; 7 A. & E. Encycl. of L. 947.) Cities, however, in this state are municipal corporations, and neither their powers nor obligations are so restricted, and decisions'as to their liability for negligence have no application here.
We have not been cited to any statute, and believe none exists, which imposes any obligation upon a county to respond in damages for the negligence or even wrongful act of its officers in relation to the maintenance of public roads or bridges, except section 579 of the General Statutes of 1901, which reads:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, 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.”
Since first the state was organized it has been the duty of counties and the townships thereof to maintain public roads and bridges, but not until the passage of the above statute, in 1887, was either a county or. township liable in damages resulting from the failure so to do. (Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255.)
The language of section 579, supra, at first blush, seems quite inclusive in its terms; possibly broad enough to include damages claimed in the petition herein. A consideration, however, of the former law upon the subject, and of the radical change therein by the provisions of this- enactment, even when strictly construed, and especially of the qualifying words “without contributing negligence on his part,” compels the conclusion that the enactment is intended only to authorize the recovery of damages suffered in the use of a' highway or bridge for the purposes for which it is maintained when, after the requisite notice, it is negligently allowed to remain defective. The petition charges, as the basis of the claim for damages, an illegal and wrongful act to which there can be no “contributing negligence.” If the plaintiff had even assisted in the removal of the bridge he would not thereby have been guilty of contributory negligence, although by so doing he evidenced his consent to the illegal act. Clearly the statute was not intended to apply to damages of the nature complained of.
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The opinion of the court was delivered by
Porter, J.:
This is a suit for the foreclosure of a mechanic’s lien upon a store building in the city of Caldwell. The lien was a subcontractor’s lien for build ing material furnished by the lumber company to W. L. Murray, the contractor, and amounted to $1057. The answer of C. S. Fossett, owner of the building, alleged that the Rock Island Lumber & Manufacturing Company was not entitled to recover for the goods sold, because it was unlawfully engaged in business in violation of an ordinance of the city of Caldwell which required the obtaining of a license before engaging in such business. To this defense a reply was filed, alleging that the lumber company had tendered to the city treasurer the amount of this license tax and that the treasurer had refused to accept it, and also that the city officials had not for some years been enforcing the ordinance for an occupation tax. The answer also alleged that the contract price of the building was $3800, for which Murray, the contractor, agreed to furnish all labor and material, and that Fossett had paid all but $128 of the contract price to subcontractors who were entitled to liens. A third defense set up was a breach of the contract on Murray’s part, in failing to complete the building within the time specified, and it was'alleged that there was nothing due the contractor, the balance of $128 being due the owner as an offset for these damages.
The court made findings of fact and conclusions of law, and rendered judgment for the lumber company as prayed for. Fossett brings this proceeding to reverse that judgment.
In reference to the defense setting up the failui*e to take out a license, the finding of the court in substance is that since the ordinance went into effect the lumber company had for three years, on the first day of July in each year, tendered to the city treasurer the amount of the license tax for such year, and requested and demanded a license to do business as provided for in the ordinance; that the city treasurer each time refused to accept the tax; and that the mayor and clerk, whose duty it was to issue such licenses, had refused to do so: The court also found that during all that time the city of Caldwell had refused to issue to any person or firm a license to do business under the ordinance.
The court held as a conclusion of law that this absolved plaintiff from the consequences of the doctrine declared in Yount v. Denning, 52 Kan. 629, 35 Pac. 207. It is contended that this was error. There are authorities which support this contention. Some of them we do not regard as squarely in point, for they arose over disputes as to the character and legality of the tender. Such is Phœnix Carpet Co. v. The State, 118 Ala. 143, 22 South. 627, 72 Am. St. Rep. 143. The-person applying for the license tendered the officer the state tax and refused to pay the county tax. The court, after deciding the county tax illegal, held that appellant, was not justified in continuing, in business without a license, but should have resorted to mandamus to compel the officer to issue a license. So, in City of East St. Louis v. Wider, 46 Ill. 351, payment of the license fee was tendered in city orders instead of cash and the tender was refused. On a prosecution for doing business without a license it was held that defendant’s remedy was by mandamus, and the refusal to issue the license no defense.
It is only by a sort of fiction that the business of selling lumber and building material can be said to require supervision or regulation to the extent of authorizing the imposition of a license tax, except for purposes of revenue. The doctrine of Yount v. Denning, supra, that a person who fails to pay an occupation tax cannot recover for his services, is adopted for the protection of the licensing power of the state, not primarily for the benefit of some other person who has had dealings with him and who seeks to avoid the payment of what would be otherwise justly due. A parallel case is Wicks v. Carlisle, 12 Okla. 337, 72 Pac. 377, where it was held that a person receiving the services of a real-estate agent who had riot taken out an occupation tax, for the same reasons as those relied upon here, is not in position to urge an objection to a recovery for the services rendered.
Nor can we believe that after the lumber company had tendered the fee and demanded a license, which the officers refused, it was compelled to mandamus the officers before it could lawfully transact any business of the character in which it was engaged. At all events its failure to follow up the-tender and demand by mandamus should not be held to work a forfeiture of its right to recover for merchandise, and thus inure to the benefit of a private individual who was in no respect prejudiced thereby but who retains the consideration. Forfeitures are not favored in law and are despised in equity. In this connection the remarks of Mr. Justice Burch in The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041, are perhaps not inappropriate: “Such an interpretation might attract the enthusiastic admiration of the highwayman, but it has nothing to commend itself to a court of justice.” (Page 17.)
The following authorities are believed to support the doctrine which we announce here — that where a person has complied so far as he can with the provisions of an ordinance requiring him to pay an occupation tax, and has tendered the fee and demanded of the proper officer a license, and the license is refused through no fault of his, it is not unlawful for him to carry on a business which. is otherwise lawful and which requires no supervision or regulation: Horr & Bemis, Mun. Pol. Ord. § 201; McQuillin, Mun. Ord. § 352; Prather et al. v. The People, 85 Ill. 36.
Was it error to refuse to permit the owner to make proof of payment to other subcontractors who had not filed liens ? The contract price was $3800. Defendant offered to prove that he had paid to other subcontractors $3671.82 during the sixty days within which they might have filed liens. The objection which was sustained was upon the ground that it was not claimed that any of these other subcontractors had filed liens. Whether this was error raises the principal, and by far the most important, question in the case. • The statute which gives a subcontractor a lien provides:
“Any person who shall furnish any such material or perform such labor under a subcontract with the contractor, or as an artisan or day laborer in the employ of such contractor, may obtain a lien upon such land from the same time, in the same manner and to the same extent as the original contractor, for the amount due him for such material and labor: ... by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished or labor last performed under such subcontract, a statement verified. . . . Provided, that the owner of any land affected by such lien shall riot thereby become liable to any claimant for any greater amount than he contracted to pay the original contractor; but the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified; and no owner shall be liable to an action by such contractor until the expiration of said sixty days, and such owner may pay such subcontractor the amount due him from such contractor for such labor and material, and the amount so paid shall be held and deemed a payment of said amount to the original contractor.” (Gen. Stat. 1901, § 5119.)
Defendant contends that a subcontractor has a lien from the time he furnishes the labor or material, and that he may lose it by a failure to file his lien statement in time, or by failing to give the proper notice; but that these requirements simply affect his remedy. On the other hand, it is contended that it is only by virtue of a strict compliance with all requirements of the statute that one who has furnished labor or material under a subcontract can acquire a lien, and that until all these requirements are fulfilled he has nothing.
In Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236, certain subcontractors furnished labor and material while the law of 1872 was in force, and perfected their liens -under the law of 1889. It became necessary to consider the question whether the liens vested under the old law, and Mr. Justice Johnston, speaking for the court, said:. “The vesting of the lien is one thing and the manner of its enforcement is another” (page 305), citing Groesbeck v. Barger, 1 Kan. App. 61, 41 Pac. 204. In the latter case the language of Judge Garver is as follows:
“The steps required to be taken, by filing a verified statement within sixty days after the completion of the building and serving a copy on the owners, were not required in order to secure the right to a lien, but were made necessary merely in order to preserve a right already acquired by the furnishing of materials. They were but proceedings provided for preserving and enforcing the lien, and must be classed as mere remedies to be pursued by the lien claimant for the enforcement of the security given him by the statute.” (Page 62. See, also, Hotel Co. v. Hardware Co., 56 Kan. 448, 43 Pac. 769; 20 A. & E. Encycl. of L. 384.)
In Central Trust Co. v. Richmond, N., I. & B. R. Co., 68 Fed. 90, 15 C. C. A. 273, 41 L. R. A. 458, a statute of Kentucky providing for subcontractors’ liens upon railroads, which is in all essentials similar to our statute, was construed to mean that the subcontractor has an incipient or inchoate lien arising from furnishing the labor or material until perfected by filing the required notice, etc., or lost by failure to do so within the prescribed time. It cannot be doubted that under our statute he has a right to a lien, during the sixty days following the furnishing of the labor or material, which is superior to the right of any subsequent purchaser or mortgagee. True, this right to a lien may be lost by failing to comply with the statute, .or it may ripen into a perfect lien by compliance therewith. It seems the better reasoning to hold that this lien is an incipient, inchoate one until perfected by compliance with the statutory provisions or lost by failure so to comply. But this question may be said to be academic, and no matter how it be determined it cannot solve the question at issue, for in the offer of the testimony it was conceded that these subcontractors had not filed, and therefore they had not acquired, statutory liens. Plaintiff insists that the exact question involved herein has been decided, and cites Town Co. v. Morris, 39 Kan. 377, 18 Pac. 230, the sixth paragraph of the syllabus of which reads as follows:
“Where, in' a mechanics’-lien case brought by certain subcontractors, the court refused to permit the owner to show how much he had paid to other subcontractors, held, under the circumstances, not to be material error.”
In the opinion Mr. Justice Valentine said of the refusal to permit the question to be answered:
“We cannot say that there was any error in this. What other contractors there were, or whether there were any or not, or whether there were any other lien-holders or not, is not shown, and no claim is made that any considerable sum was paid to subcontractors. Fisher was to have $3500 for building the hotel, and the claims of the plaintiffs, M. T. & G. Morris, and the defendants, Lee & Viele, in the aggregate, amount to only $635.69; hence it could make no possible difference under any interpretation of the law as to how much the Sharon Town Company paid to the subcontractors, unless they paid more than the difference between $3500 and $635.69, to wit, $2864.31. No claim is made that they paid any such amount to the subcontractors, or to any persons; and no claim is made that the building cost to construct it more than the contract price; and the contract price is always considered as a fund from which the subcontractors (such as the plaintiffs and Lee & Viele were) are entitled to receive their pay, provided, of course, that they properly file their mechanics’-lien statements. (Clough v. McDonald, 18 Kan. 114, 118.) No contractor or subcontractor has any lien on this fund unless he properly files his mechanics’-lien statement.” (Page 380.)
In its facts the case is easily distinguishable from the present one, for here the claim is that the owner had paid to subcontractors much more than the difference between the amount of the contract price and the amount claimed to be due plaintiff, and while the answer does not allege that the cost exceeded the contract price, that appears from the record to be necessarily true. A reasonable inference from the language used in the opinion appears to be that in a case where the claim is made that the owner has paid to other subcontractors more than the difference between the contract price and the amount claimed by the subcontractor seeking to enforce his lien the evidence would be competent. The language used at the close of the paragraph quoted — that “no contractor or subcontractor has any lien on this fund unless he properly files his mechanics’-lien statement” (page 381), while a correct statement of the law, can hardly be said to control or determine the question we are considering. It was dictum as applied to the facts in that case.
In Clough v. McDonald, 18 Kan. 114, it was expressly held, following Shellabarger & Leidigh v. Thayer, 15 Kan. 619, and Delahay v. Goldie, 17 Kan. 263, that the contract price. constitutes a fund from which the subcontractors are' to be paid for their labor or material furnished. A part of the syllabus reads as follows:
“And if such fund is not sufficient to pay the whole amount of all the claims of the subcontractors who are entitled to liens . . . then such claims must be paid from such fund pro rata.”
The contract price in that case was $1900. Clough was the owner. McDonald was the subcontractor who sought to enforce a lien for $157.78. Clough had already paid the $1900, including $1800 to various other subcontractors. It was claimed that because of these payments McDonald was not entitled to any lien. The district court held that McDonald was entitled to a lien for a portion of the amount claimed, to be determined according to certain instructions to the jury. In the opinion it was said: t
“This we think was right. As we have before said, every subcontractor is, under the law, entitled to sixty days . . . within which to file.his lien; and he must file it within that time, or lose it. And the owner of the building cannot be compelled to pay anything to any person prior to that time. . . . Hence, at the end of the sixty days, and before the owner can be compelled to pay anything to any person, he may know precisely to whom he is liable, and the amount due to each. If the contract price will pay all the claims, he should pay all. But if it will not pay all, as in "this case, then he must pay the various claimants in proportion to the amount due to each respectively.” (Page 118.)
This case is frequently cited as authority for the proposition that in determining who shall participate in the pro rata distribution the claims of those subcontractors who have filed liens are to be considered; but an examination of the record discloses that no objection was made to the proof on the part of the owner that.he had paid other subcontractors, and the record does not show that any of them had filed liens.
An older case is Shellabarger & Leidigh v. Thayer, 15 Kan. 619. There the contract price was $1300, $800 of which was paid before the commencement of the work. The subcontractor furnished material to the amount of $900. It was held that the subcontractor’s lien was not limited by the amount due the contractor after payment of the $800, but extended to the whole contract price. In the opinion Mr. Justice Brewer said:
“Three things are clear from this: First, that the subcontractor has a lien for his work or material; second, that the limit of such lien is the amount contracted to be paid to the original contractor; and, third, that the risk of all payments up to a certain date is upon the owner. Now the money contracted to be paid in this case was $1300. That, then, is the limit of the subcontractor’s lien. Not the amount due at the time of notice, or delivery of material, but the amount contracted to be paid. True, the owners had paid $$00 of that amount, but the risk of such payment was upon them. The very purpose of this clause in the statute was to prevent the. cutting oif of the liens of subcontractors by early payments to the contractor. And this is a clause the exact counterpart of which we have not found in the statutes of any other state.” (Page 623.)
The question presented here is not the same; it is whether the purpose of the clause in the statute placing upon the owner the risk of all payments made before the time expires for filing a subcontractor’s lien is to prevent the cutting off of subcontractors’ liens by early payments made to other subcontractors who happened not to have filed liens.
The general doctrine of Clough v. McDonald and Shellabarger & Leidigh v. Thayer has been repeatedly affirmed. (Macdonald v. Seaton, 27 Kan. 672; Crawford v. Blackman, 30 Kan. 527, 1 Pac. 136; Davis v. Bullard, 32 Kan. 234, 4 Pac. 75; Lumber Co. v. Allen, 52 Kan. 795, 35 Pac. 781; Hotel Co. v. Hardware Co., 56 Kan. 448, 43 Pac. 769; Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236.)
The learned counsel for plaintiff suggest that thirty-two years of repeated, uniform declarations of this court upon any one proposition of law ought to be an absolute bar to any further consideration of that proposition, and ask of what benefit is the supreme court to the people if it unsettle the law every time there is a change in its membership. The. difficulty with this suggestion, as applied to this case, is that it assumes that the question involved has been repeatedly passed upon and the law thereon settled; but we do not understand that this question has ever been presented to the court or decided. For that reason, and because the question is not free from difficulty, this cause was ordered reargued.
The decisions that we have referred to have settled a number of questions arising upon the statute which we have no disposition to unsettle. It is the established law that the contract price constitutes a fund to which the subcontractors may look for payment of their liens, and that only such part of the contract as relates to the amount to be paid binds them; that all payments made by the owner to the original contractor before the time expires for filing subcontractors’ liens are made at the owner’s risk; which means that if there shall not remain of the contract price a sufficient sum to meet all the claims the owner must pay each subcontractor his pro rata share, and is not entitled to take credit for any sums paid to the contractor; this because the statute in plain words so provides. It is also settled, although the statute does not in express terms so state, that where some of the subcontractors have perfected their liens, and the owner has paid them in full, he does this at his peril; and if afterward it appear that there is not enough of the contract price remaining to satisfy all the subcontractors’ liens there must be a prorating between them, and the owner may take credit only for payments made to the other subcontractors to the extent of their pro rata share. To illustrate: The owner may have paid some subcontractors who have filed liens their claims in full. Afterward, when it appears that in computing all of such claims the fund will only meet 80 per cent, of the amount due, the owner is entitled to credit only for 80 per cent, of the amount actually paid, and must stand the loss of the'20 per cent, or look to the contractor. As observed, the statute does not in express terms say that this shall, be the rule, but it is the logical result of the decided cases cited. As against the contractor the statute even encourages the owner to pay “such subcontractor” the amount due him. Presumably, however, this refers to a subcontractor who has filed his lien. It may be further observed that in determining who of the subcontractors are entitled to participate in the prorating of the fund only those who have established legal liens are entitled to share. (Lumber Co. v. Allen, 52 Kan. 795, 35 Pac. 781.) A subcontractor who has lost his lien by failure to give the notice or to file his statement has no right to share in the distribution and no claim against the property.
Does it follow from these well-established princi pies that in a case where the cost exceeds the contract price, and the owner has in good faith paid to other subcontractors valid claims which if not paid could have been and in all likelihood would have been perfected, and thus become proratable, he is not to be allowed credit for' what would have been the pro rata share of the other subcontractors? Apart from the statute and upon purely equitable considerations the answer is not difficult. Indeed, the only conceivable way in which a subcontractor in the situation of the plaintiff could be prejudiced is upon the supposition that had the owner withheld all payments to other subcontractors some of them might have neglected their claims and failed to perfect liens, resulting in a larger percentage to him. It is argued that he is prejudiced in another way and has a right to look to the record of mechanics’ liens to determine whether he will furnish labor or material, and that he has the right to assume that only those filed will participate in the event the contract price proves to be insufficient. But, practically, there is nothing of force in this claim. It is doubtful if in actual practice any one examines the lien record to ascertain the amount of liens filed before he determines to furnish labor or material. To do so effectually would require him to examine it from day to day. It might show no liens one day and several the day following, because the time for filing the various liens would expire at different dates, dependent upon the time when the labor or material was furnished. Moreover, the argument is based upon the assumption that the statute requiring liens of subcontractors to be filed was enacted for the protection of the other subcontractors. We understand that the primary purpose of the statute is to furnish protection to the owner, so that he may withhold payments to the contractor and may know finally what distribution must be made of the contract price. It does not seem plausible that the legislature intended by the requirement to enable one subcontractor to make the kind of a claim that is insisted upon here, and to say to the owner: “Although you have paid a valid claim to another subcontractor who furnished labor and material used in the completion of the contract, which claim would have been entitled to prorate with mine had it been filed, and although I have not in any way been prejudiced by the failure to file it, yet you shall not take credit for the proportionate amount which I concede would have been due thereon had it been filed.”
It frequently occurs that buildings are in the process of construction for several months, and sometimes for longer than a year. It is seldom that a contractor has the means or is willing to pay the claims for labor and material. In ordinary cases some one must pay the material men at least a portion of their claims; and it is usual for the wage-earners to insist upon full payment at the end of the week. In answer to this it is suggested that the common practice is to rely upon a bond by the contractor to protect the owner against liens, but this is often impracticable, and at best furnishes but an inadequate safeguard to the owner. It is true that the statute contemplates that the owner may withhold all payments until the time for filing the last lien, but in practical operation this right is a barren one, and if generally insisted upon would result in very few building contracts being, carried out.
It is perhaps surprising that this question has not been more frequently before the courts, as it presents a situation which must frequently arise. The decided cases, however, seem to be limited in number; nor have we found an intelligent discussion of the question in the text-books or cyclopedias. Two reasons suggest themselves: (1) Few, if any, of the mechanic’s-lien statutes contain the exact language of ours in placing upon the owner the risk of payments made before the expiration of the time for filing liens, though several contain the provision that in no event shall the aggregate amount of the liens exceed the contract price; and in the majority of statutes the subcontractor is given a direct lien, as in ours. (2) The other reason which suggests itself is that the claim of plaintiff is so palpably unjust to the owner, and rests upon such technical grounds that it has been seldom raised.
Counsel for defendant have cited us to some decisions of the California court, but the differences between the statute there and ours render the cases of little aid in reaching a conclusion upon the question here. The case of Central Trust Co. v. Richmond, N., I. & B. R. Co., 68 Fed. 90, 15 C. C. A. 273, 41 L. R. A. 458, is very much like the present case. The statute construed is the Kentucky statute giving to laborers and material men liens upon the property of railroads, and, like our mechanic’s-lien statute, it is provided that the liens shall in no case be for a greater amount in the aggregate than the contract price, but, unlike ours, provides expressly for a pro rata distribution. It was held, as observed supra, that the lien originated with the furnishing of the labor or material, and was an incipient, inchoate lien until lost by failure to file, or perfected by filing, etc. It was also held that to limit the distribution to those claims which had been perfected by statutory notice would be unjust to the owner, who had the right to distribute the contract price during the progress of the work, and that if by premature distribution one incipient lienor were paid more than his proportion the owner would suffer the loss and be remitted to his remedy against the original contractor.
The case is squarely in point unless the absence from the statute of the provision contained in ours placing the risk of certain payments upon the owner is sufficient to distinguish it. While this provision is not in the Kentucky statute, in all other essentials the statutes are alike. Both provide that subcontractors’ liens shall be direct and not by subrogation. Now, wherein does the absence of this provision affect the rights of the parties or detract from the weight of the decision as authority? Our statute reads: “but the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified.” (Gen. Stat. 1901, § 5119.) As observed, this has been interpreted to mean also that all payments made by the owner to subcontractors who have filed liens shall be at the owner’s risk, not only until the expiration of the sixty days, but always. At the final adjustment he is only entitled to credit for the pro rata amount paid. Conceding that it is still the fact, as remarked by Mr. Justice Brewer in Shellabarger & Leidigh v. Thayer, 15 Kan. 619, that the statute of no other state contains this provision, it will be found by comparison that notwithstanding the absence of such a provision it is the general rule, where the subcontractor is given a direct lien, not by subrogation but independent of the lien of the original contractor, that the same construction prevails; and all payments made to the contractor, and all payments made to any subcontractor in excess of his proportionate share, are made at the owner’s risk. Obviously it will not do to place too great a strain upon this particular provision of our statute.
The owner ought to be permitted to pay valid claims of subcontractors who have furnished labor or material and have completed their contracts. The very act of furnishing the labor or material has given them the right to look to the property for payment. They have a right to liens, and hold claims which can only be satisfied by payment. If the owner is willing to pay them and to assume the risk in case he pays more than their pro rata share, this is all that should be required of him. To conclude, there is no express provision in the statute denying to the owner the right to take credit for payments made in good faith under such circumstances, nor has it been decided that any of its terms are intended to meet the situation presented. In view of the great injustice which a different interpretation would impose upon the owner, and the confusion which would follow in its practical operation, we hold that the owner is entitled to take credit for such payments to the extent of the proportionate share of each subcontractor’s claim, and that it was error to sustain the objection.-
Another difficult question is presented by the refusal to permit defendant to prove the rental value of the building from March 1, 1903, when, according to the contract, it was to have been completed, and September 1, 1903, when it was completed. The offer was made for the purpose of proving, as an offset to the subcontractor’s lien, damages caused by the fault of the contractor. Our statute giving subcontractors a lien reads as follows:
“Provided, that the owner of any land affected by such lien shall not thereby become liable to any claimant for any greater amount than he contracted to pay the original contractor.” (Gen. Stat. 1901, § 5119.)
Plaintiff contends that this question is ruled by the cases in which it has been declared that the subcontractor is not bound by any of the terms and conditions of the original contract except those terms which pre.scribe the amount the’owner is to pay.
In Morehouse v. Moulding et al., 74 Ill. 322, where the statute at the time provided that in no case should the owner be compelled to pay a greater sum than the price stipulated in the original contract, it was held that damages for the failure to fulfil a contract should be deducted from the contract price, and the balance prorated among the subcontractors. And in Biggs et al. v. Clapp et al., 74 Ill. 335, the same clause of the Illinois statute was construed in a case where the contractor abandoned the contract and the owner was obliged to complete it himself. It was held that where the owner was obliged to pay more than the contract price to complete the building the subcontractors were not entitled to any lien. This court, in Hotel Co. v. Hardware Co., 56 Kan. 448, 43 Pac. 769, has laid down the same rule.
It seems difficult to give a reason for allowing the owner credit for additional sums paid to carry out an abandoned contract, and thus reduce the fund upon which the subcontractor may rely, which would not apply with equal force to the allowance of damages occasioned by the fault of the contractor in other respects. The amount the owner contracts to pay is a certain sum conditioned upon full performance of the contract according to its terms. (Wright v. Pohls and wife, 83 Wis. 560, 53 N. W. 848.) Any damages resulting from the fault of either party, which can be said to have been in the contemplation of the parties at the time the contract was made, should properly figure in the amount the owner contracted to pay. If such damages result in his favor the amount he contracted to pay would be so much less than the amount named as the contract price. Stating it in different language, the owner contracts to pay a certain sum conditioned upon the fulfilment of the contract, and if any damages are caused by the contractor he agrees to pay as much less as the -damages amount to.
The owner may récoup damages against the contractor arising out of the failure of the latter faithfully to perform the contract, and without regard to the absence of specific terms in the contract providing for damages. He may show as against the contractor that the building was not completed, or not completed in time, or that defective materials were used. Why should he not be permitted to show these counter-claims when it is sought to recover from him by one who has no contractual relations with him and who seeks to recover a debt due from the contractor? The only answer to this is that the statute fixes the extent of his liability to the subcontractor at the amount which he agreed to pay the contractor, regardless of whether the contract is fulfilled or not. Giving an offset for the cost of completing the building is, however, when analyzed, practically an allowance of damages for failure to complete. The measure of the damages is the ascertained cost of completion, but the principle is thé same as though the contract provided for a certain sum as liquidated damages for each day’s delay, and numerous decisions authorize the allowance of damages liquidated in this manner by the terms of the contract, even in suits to enforce a subcontractor’s lien.
With respect to this question also it may be observed that the authorities are not so numerous as might be expected upon a question so likely to arise in the adjustment of building liens, nor are many of them clear or decisive. Some of the text-writers say that damages caused by the contractor may be offset against the lien of a subcontractor, but many of the cases referred to in the notes do not bear out the text. Thus Phillips on Mechanics’ Liens cites Millsap v. Ball, 30 Neb. 728, 46 N. W. 1125, relied upon by the defendant. The case, however, is not an authority. There is in the opinion a statement that damages caused by a contractor may be offset against the lien of a. subcontractor, but it appears on examination to be mere dictum. Some of the other cases cited by the defendant were suits by the original contractor, and others are based upon statutes which expressly declare that the lien of the subcontractor is limited to “what may be due the contractor,” leaving little room for doubt as to the -proper construction. In some states, notably Michigan, the statute expressly provides that the owner may recoup damages sustained through the failure or omission of the contractor. (Smalley v. Gearing, 121 Mich. 190, 79 N. W. 1114, 80 N. W. 797.) Damages caused by the fault of the contractor have been allowed against subcontractors in the cases of M’Bean v. Kinnear, 23 Ont. (Can.) 313, Julin v. Ristow Poths Mfg. Co., 54 Ill. App. 460, and Cheney et al. v. Troy Hospital Association, 65 N. Y. 282. (See, also, 20 A. & E. Encycl. of L. 456 and cases cited; Boisot, Mechanics’ Liens, § 589.)
It is said in Phillips on Mechanics’ Liens, section 62g:
“The authorities seem to be unanimous that, where the extent of the owner’s obligation to pay is limited to the price stipulated in his contract, the subcontractor’s right is confined to what may be due the contractor-after the completion of the contract.”
In Massachusetts the subcontractor is entitled to a. direct lien, and there is no provision limiting the owner’s liability to the amount named in the contract. For that reason it was held, in Bowen v. Phinney, 162 Mass. 593, 39 N. E. 283, 44 Am. St. Rep. 391, that a subcontractor was entitled to his lien notwithstanding the contractor violated the contract and used poor materials. The opinion recognizes that in other states, where the owner’s liability is limited- to the amount of the contract price, a different rule obtains, and Wright v. Pohls and wife, 83 Wis. 560, 53 N. W. 848, and Morehouse v. Moulding et al., 74 Ill. 322, are referred to.
The conclusion we have reached is that, giving a. reasonable construction to our statute, it should be held that the owner may, in a suit by a subcontractor, offset any actual damages caused by the failure of the contractor to complete the building in time, provided, of course, the damages are such as may be said to have-been in the contemplation of the parties when the contract was made.
The judgment is therefore reversed, and the cause remanded for another trial.
Mason, Smith, Graves, Benson, JJ., concurring. | [
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The opinion of the court was delivered by
Porter, J.:
In June, 1901, the Nichols & Shepard Company sold a thrashing-machine to W. P. Maxson for $540, in payment of which he gave two promissory notes, with P. B. Maxson as surety. The notes matured November 1, 1901, and 1902, respectively. The first was paid one month after it became due. This ■action was brought August 22, 1905, to recover a balance due upon the second note, after crediting a small sum received by the company from a sale of the machine under a chattel mortgage. The defense set up a breach of warranty, and a claim for damages. The reply set out. a copy of the written contract, and •claimed an' express warranty, and failure of the purchaser to give notice of defects according to the terms thereof. The jury returned a verdict in defendants’ favor of $5, and judgment was rendered thereon, which it is sought in this proceeding to reverse.
The court permitted defendants to offer oral testimony as to the different kinds of grain the salesman represented that the machine would thrash. Plaintiff complains that this varied the terms of the written agreement, which reads as follows: “That said ma-. ■chinery is well made, of good materials, and, with proper management, capable of doing well the work for which the machines respectively are made and sold.” The contract is upon a form for general use in the sale of any and all kinds of machinery. From ■anything stated in the contract itself the machine sold in this instance might have been designéd to do the work of drilling oil-wells, sawing wood or separating cream. Nothing is said of thrashing grain. Testimony showing for what work the machine was made and sold was necessary and competent. The objection to the evidence was limited to one ground: “that the written contract shows what the machine was represented to do.”
The contract stipulated that if within five days from its first use the machine failed to fulfil the warranty written notice should immediately be given by the purchaser to the plaintiff. Defendants conceded that the machine thrashed wheat and oats satisfactorily, but claimed and proved that it failed to thrash flax and alfalfa properly; that there was no flax to thrash until September, and no alfalfa thrashing until October; and that these defects were not discoverable or known until then. We think the court gave the only reasonable and proper construction to this provision in holding that it only required the purchaser to give notice of the defects within five days from the first opportunity to discover what defects existed. The contract provided that notice of defects in accordance with the terms of the contract should be a condition precedent to the right to rely upon a breach of warranty. It is insisted that there was' no evidence to show compliance therewith, and that the demurrer to defendants’ testimony should have been sustained. W. P. Maxson testified that within three days after the first attempt to thrash flax he mailed a registered letter to the company at Battle Creek notifying it of the defects. It is true that upon cross-examination he was somewhat uncertain about this, but the general verdict is conclusive on the question.
M. M. Bowlus, an adjuster and collector who sometimes sold machines and who sold this particular machine, was sent by the company in December, 1901, to collect the first note. The court permitted defendant W. P. Maxson to prove that Bowlus promised at this time that if the first note were paid the company would at once send certain repairs, and in the following spring would send an expert who would put the machine in repair, and that after thus being overhauled it would thrash all kinds of grain as well as any machine could; that in reliance upon these promises the note was paid and- the machine retained; that repairs, or some of 'them, were at once sent by •the company, but that it failed to send the expert to overhaul the machine and make it comply with the warranty; and that for these reasons defendant W. P. Maxson refused to pay the second note. This testimony was objected to, and the claim of error is based upon a provision of the contract, as follows:
“After the machinery mentioned herein is delivered to the purchaser all subsequent contracts relating thereto or in anywise affecting this warranty, or the return of the machinery thereunder, must be in writing, and must, in order to bind the company, be signed by its president.”
The proposition insisted upon- is that the written contract prevented any subsequent contract between the parties except in writing, signed by the president of the company. To this we cannot yield assent. Plaintiff is a corporation, and can only act through its agents. It sent an agent to collect the note who testified that for twenty-five years he had been an adjuster and collector of the company, and had sold this machine. At the time he was sent the company had received a number of letters from W. P. .Maxson informing it that the machine had proved defective; that he would not keep or pay for it; and the company also knew that he claimed to have given the notice of defects required in the contract. With this information the company sent its adjuster to collect one of the notes, relying upon having tied its own hands by the written contract so as to devest itself of authority orally to make another contract or to vary the terms of the original except by a writing signed by its president. This would enable it to take advantage of the benefits derived from representations and conduct of its agents, and would be unconscionable. (Victor Sewing Machine Co. v. Rheinschild, 25 Kan. 534; Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, 8 L. R. A. 70, 19 Am. St. Rep. 150, and cases cited.) Speaking of a similar provision the court, in National Bank v. Dutcher, 128 Iowa, 413, 104 N. W. 497, 1 L. R. A., n. s., 142, said:
“Nor is the application of this rule to be avoided by the clause of the contract providing that ‘no person has any authority to add to, abridge, or change this warranty in any manner.’ The proposition is entirely too broad and sweeping to be effective. . . . The appellant is a corporation, which can act only through agents and employees. It cannot devest itself of the .power to waive a condition made for its benefit, and. that power can be exercised only through some agent.” (Page 419.)
The evidence was, therefore, admissible to prove a waiver of the condition in reference to notice in respect to the return of the machine, and to establish a subsequent parol contract. As to the authority of Bowlus to act for the company, we think the. case is within the principle of Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, 8 L. R. A. 70, 19 Am. St. Rep. 150, and the other cases cited, supra.
We find no error in the instructions as to the measure of damages. Defendants relied upon a contract varied by a subsequent oral contract. There was sufficient evidence of a waiver of notice and of other, conditions to warrant instruction No. 12. What has been said in reference to the provision requiring all subsequent contracts in relation to the machine to be in writing disposes of the objections to instruction No. 13. We find nothing substantial in the other claims of error in the instructions or in the admission of evidence. The case was one of facts for the determination of a jury, and as there was some evidence to support the verdict the judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff in error claims that the instructions given by the trial court are erroneous, and that the instruction requested should have been given. On the other hand, the defendant in error insists that, the note having been obtained by false and fraudulent representations, the burden of proof was cast upon the plaintiff in error to establish his claim that he was an innocent holder, and, having failed to do this, the instructions given, even if erroneous, were not prejudicial. He further urges that even if the holder received the note in good faith, and without notice of the manner in which it was obtained from the payer, -still he knew thereof before he parted with value or did anything under his contract, and therefore is not in a position to claim protection for anything paid or done thereafter. Lastly, it is insisted that, if the rule stated in the instruction refused is correct, the jury in their general verdict found bad faith on the part of the hoider in the purchase of the note, and therefore a new trial should not be granted.
We are unable to assent to any of the contentions made by the defendant in error. As we view the situation, the note was not obtained from the maker by the use of fraudulent representations. It may be assumed that false representations were made, but they were not believed and relied upon. Fosha refused to make the note payable to Abrams or to the company, but executed and delivered it to his neighbor and friend, Quantic, whom he authorized to investigate the financial condition of the company, and, if he found it to be as represented, then to transfer the note to the company, but otherwise to return it to the maker. Evidently Fosha was suspicious and deemed it best not to rely upon the statements of Abrams. He appointed Quantic to act for him under instructions not to part with the note until he found by a personal investigation that the company was sound. Afterward Quantic transferred the note to Abrams for the company. It cannot therefore be said that the company obtained the note by means of fraudulent representations made to the maker. Fraudulent representations, to be available as a cause of action or defense, must have been relied upon by the complaining party. (20 Cyc. 39; 14 A. & E. Encycl. of L. 106; White, Admx., v. Smith, 39 Kan. 752, 18 Pac. 931; Wood v. Staudenmayer, 56 Kan. 399, 43 Pac. 760; Gretner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619; Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498.)
The plaintiff in error, before receiving notice of any objections to the note, had obligated himself to do $9000 worth of work for the oil company, and received the note as part of a payment thereon. The fact that this part payment was made in advance is immaterial. In addition to his obligation to perform the contract he had actually expended more than $3000 in preparation for its completion before he received notice that the maker was dissatisfied. This was sufficient to make him a purchaser for value. (7 Cyc. 928, and following pages; 4 A. & E. Encycl. of L. 283.)
Notice of an infirmity in a note after there has been a bona fide sale thereof does not affect the purchaser, unless he is in a situation where he can protect the maker without loss to himself. Here the holder could not, after notice, have surrendered the note or done anything to relieve the payer, without being injured thereby.
This relation between the parties is wholly unlike that existing between a fraudulent vendor and a purchaser who has notice of the fraud before complete payment of the purchase-money has been made. In such a case it would be a matter of indifference to the vendee to whom the remainder of the purchase-price is payable. The argument of the defendant in error and the cases cited apply only to such a situation, and are not in point here.
We think the plaintiff in error is a bona fide purchaser of the note in controversy, and is entitled to be protected as such. The legal rule relating to. notice as stated in the instruction requested by him and refused by the .court is correct. (4 A. & E. Encycl. of L. 300; 7 Cyc. 944; Fox v. Bank of Kansas City, 30 Kan. 441, 1 Pac. 789.)
The error of the court in improperly instructing the jury upon this question is not cured by the verdict. The special findings of fact amount to a statement that the holder of the note took it without actual notice of any defense thereto. The whole subject of bad faith was withheld from the jury, and they were practically instructed that no such question was in the case. It cannot therefore be said that the general verdict contains any finding upon that subject.
Because of the error of the court in presenting the case to the jury the judgment is reversed. | [
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The opinion of the court was delivered by
Mason, J.:
Grant Way was prosecuted upon a charge of setting up and keeping a gambling device and was convicted of the inferior offense of betting upon a game of chance at a gambling resort. He appeals, and presents two grounds of error: (1) That the court erred in instructing the jury that the information charged a violation of the statute upon which the verdict was based, and (2) that the verdict should have been set aside because it was returned' in the absence of the defendant. These contentions will be considered in their order.
The information was obviously drawn under section 2228 of the General Statutes of 1901, reading as follows:
“Every person who shall set up or keep any table or gambling device commonly called ABC, faro bank, EO, roulette, equality, keno, wheel of fortune, or any kind of gambling-table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property, or shall induce, entice or permit any person to bet or play at or upon any such gaming-table or gambling, device, or at or upon any game played at or by means of such table or gambling device, either on the side of or against the keeper thereof, or shall keep a place or room to be used as a place for playing any game of cards for money or property, or keep a common gaming-house or keep a house, room or place to which persons are accustomed to resort for the purpose of gambling, shall on conviction be adjudged guilty of a felony, and punished by imprisonment and hard labor for a term not less than one year nor more than five years.”
The verdict as obviously referred to section 2282 of the General Statutes of 1901, for it pronounced the defendant guilty of “betting money on a game of chance with cards and chips at a place where persons were accustomed to resort for gambling' purposes.” This section reads:
“Every person who shall either directly or indirectly bet any money or property at any common gaming-house, or at any place to which persons are accustomed to resort for gambling purposes, or at any place kept for the purpose of being used as a place for gambling, whether such betting be upon any game of skill or chance, either with or without cards or dice, or by use of any kind of device or contrivance whatsoever for determining chances, shall be guilty of a felony, and upon conviction shall be punished by imprisonment at hard labor in the penitentiary for a term not less than one year nor more than three years.”
The information charged that the defendant “did . . . keep, set up and maintain ... a gambling device and devices composed of playing-cards and red, white and blue cellúloid chips, commonly known as poker chips, said cards and chips then and there being adapted, devised and designed for the purpose of playing a game and games of chance, commonly known as poker, for money and property, and . . . did . . . induce, solicit, request and permit persons to bet, offer and wager lawful money of the United States of America and to play, with and by means of said gambling device and devices, the game, commonly known as poker with and against said defendants, and ..that through this gambling device, and devices, lawful and current money of the United States of America and property were lost and won by chance.”
From this statement of the statutes, the information, and the verdict, it appears that the section upon which the conviction was had is directed against betting under certain circumstances, and that the defendant was not in direct and express terms charged with having bet upon anything. A conviction may always be had upon any less offense which is included within that charged (Gen. Stat. 1901, § 5564); or, as was said in The State v. Burwell, 34 Kan. 312, 8 Pac. 470, “wherever a person is charged upon information with the commission of an. offense under one section of the statutes, and the offense as thus charged includes another offense under another section of the statutes, the defendant may be found guilty of either offense.” (Syllabus.) Some liberality of interpretation is permitted in such cases. The rule is thus stated in volume 22 of the Cyclopedia of Law and Procedure, at page 467:
“While it is not necessary to make a specific charge of all the offenses included in the charge for which the indictment is drawn, a conviction cannot be had of a crime as included in the offense specifically charged unless the indictment in describing the major offense contains all the essential averments of the less, or the greater offense necessarily includes all the essential ingredients of the less.”'
In several instances it has been held that words used in the statute defining the inferior offense need not be used in the information, where the statements there made in charging the greater offense necessarily show the existence of all the facts essential to constitute the less. For example, a conviction under a statute (Gen. Stat. 1901, § 2029) against administering medicine with the intent to procure abortion has been sustained under an information which did not use the word “abortion,” being drawn under a statute forbidding the giving of medicine to a woman pregnant with a quick child with the intent to destroy such child, the reasoning being that the destruction of a quick ‘child necessarily involved the procuring of an abortion. (The State v. Watson, 30 Kan. 281, 1 Pac. 770.) The exact question to be here determined is therefore whether the acts charged in the information necessarily involved those found in the verdict. The allegations that the defendant set up a gambling device and induced persons to play for money by means thereof sufficiently imply that the place where it was maintained was one to which persons were accustomed to resort for the purpose of gambling, and which was kept for that purpose. And to say that the defendant “did . . . induce . . . and permit persons to bet . . . and to play ... by means of said gambling device [cards and chips] . . . the game commonly known as poker with and against said defendants . . . and that through this gambling device . . . money . . . and property were lost and won by chance” is to say in effect that the defendant bet money on a game of chance played with cards and chips.
“If two persons play at cards for money, they are said to be gambling or gaming; but they are gaming because they lay a. wager or make a bet on the result of the game, and therefore to say they are betting is equally appropriate.” (People v. Weithoff, 51 Mich. 203, 210, 16 N. W. 442, 47 Am. Rep. 557.)
“The legal meaning of .the term ‘bet’ is the mutual agreement and tender of a gift of something valuable, which is to belong to one of the contending parties, according to the result of the trial of chance or skill, or both.” (Mayo v. State [Tex. Crim. Rep.], 82 S. W. 515.)
If the defendant permitted others to play with him in a game at which money was lost and won by chance he necessarily bet money upon a game of chance. The court concludes that although the crime for which a conviction was had was not charged with the directness and distinctness that should ordinarily characterize criminal pleadings the defendant suffered no substantial prejudice thereby, all the essential constituents of that crime being included in the graver charge upon which the prosecution was primarily based.
The record shows these to have been the circumstances attending the reception of the verdict: The case was submitted to the jury at about 5 o’clock in the afternoon. At about 6 o’clock the court took a recess, as stated in the journal entry “to await the return of the verdict,” or as recited in the bill of exceptions “contingent upon the incoming of said jury.” At about 6:45 the jury announced that they had agreed and were brought into court. The defendant, who was out upon bond, was absent, as were also his attorneys. By order of the court the bailiff “went to the window and called in a loud voice” each of them, but none of them appeared. They had not been excused from attendance, and had left no word with the court as to where they could be found. The verdict was then received in their absence. The defendant, in support of a motion for a new trial, made an affidavit stating that in pursuance of the instructions of his attorneys he had held himself in readiness to be called and to be present whenever the jury should return, and that he was within half a block of the court-house when the verdict was received, but did not hear the bailiff call him.
It is clear from this statement that the defendant was voluntarily absent from the court without permission, and thereby waived his right to be present when the verdict was received, if that right can ever be waived. The statute provides that “no person indicted or informed against for a felony [and the conviction here was for a felony] can be tried unless he be personally present during the trial.” (Gen. Stat. 1901, § 5649.) The effect of the adjudications on the subject is thus stated in volume 12 of the Cyclopedia of Law and Procedure, at page 527:
“Some of the courts have held that the right to be present during the trial of an indictment for felony cannot be waived by defendant in a capital case, and some have applied the same rule in the case of any felony, whether capital or not, so that a trial or any. material step therein, or reception of the verdict, in defendant’s absence in such cases is error, although he has escaped • or is otherwise voluntarily absent. Most of the courts, however, have held that defendant may waive his right to be present when the felony is not capital; that he does so if, having been releásed on bail, he absconds or is voluntarily absent after his arraignment and plea, and that in such a case the trial may proceed and the verdict be received notwithstanding his absence.”
In notes appended to this text the cases are very fully collected and classified. Some of those holding that a verdict may properly be received without the presence of the defendant if his absence is voluntary turn upon- constitutional or statutory provisions less explicit than that quoted, which, however, is regarded as but declaratory of the common law. Other recent cases supporting the view that the defendant’s conduct does not affect the matter are Wells v. State, 147 Ala. 140, 41 South. 630, from which it appears that in Alabama the reception of a verdict in the defendant’s absence is tantamount to an acquittal, and State of Utah v. W. A. Mannion, 19 Utah, 505, 57 Pac. 543, 75 Am. St. Rep. 753, 45 L. R. A. 638, while State v. McGinnis, 12 Idaho, 336, 85 Pac. 1089, has a contrary tendency. (See, also, notes in 5 L. R. A. 835 and 2 Am. St. Rep. 303.)
In Commonwealth v. McCarthy, 163 Mass. 458, 40 N. E. 766, which is based upon a statute substantially the same as ours, it was said:
“It is a general rule, both in England and in this country, that a trial for a felony cannot be had without the personal presence of the accused. . . . The trial is not concluded until the verdict is received and recorded. ... In this commonwealth we have a statute which embodies the same general rule. Pub. Stat. c. 214, § 10. . . . Under this statute, as well as at the common law, it may well be held that when a defendant is in custody under an indictment for a felony the verdict cannot properly be taken in his case without his personal presence, even if he has been in attendance in all previous stages of the trial, and that whether he is in custody or on bail the trial cannot properly be begun in his absence. But whether a defendant who is on bail,, and who has been present during his trial until the case' has been given to the jury, can nullify the whole proceedings by absenting himself until it becomes necessary to discharge the jury, is a very different question. We have seen no well-considered case that decides this question in the affirmative. In most of the reported cases the defendant was in custody, and the failure of the authorities to have him present when the verdict was taken deprived him of a right., . .. . But it has been repeatedly held, upon careful consideration, that while it is a right of the defendant indicted for a felony to be present when the verdict is rendered as well as during, the earlier parts of the trial, and while it is irregular and improper to begin the trial in such a case without the presence of the accused, yet if he is ón bail and is present at the commencement of the trial, and afterward voluntarily departs without leave and is absent when the verdict is returned, he may be defaulted and a verdict which will be binding upon him may be taken in his absence. . . . Such a case is treated as an exception to the general rule, and as a waiver by the ■defendant of his right to be present. . . It would be unreasonable to hold that he can attend until the case is given to the jury, and, when he sees indications that the verdict is to be against him, can make it im possible to complete the trial, and thus nullify all that has been done by absconding. If he could do this, it would be necessary upon his return to try him again de novo, when perhaps it would be impossible to procure the evidence which was introduced at the first trial, and when, if he were again admitted to bail, he might a second time defeat the ends of justice by again departing. His departure under such circumstances ought to be deemed a waiver of his right to be present at the taking of the verdict. If the commonwealth has done all that it can reasonably be required to do to secure him his rights, our statute, and the common law of which it is declaratory, ought not to be so construed as to prevent the return of the verdict. ... No detriment can ever come to a defendant from this construction of our statute, and a different construction of it would make it in some cases an instrument of great injustice.” (Pages 458-461.)
In Frey v. Calhoun Circuit Judge, 107 Mich. 130, 64 N. W. 1047, involving a similar statute, the court reached the same conclusion upon a full review of the authorities, saying:
“The general rule is that a trial for a felony cannot be had without the personal presence of the accused. We have a statute which recognizes and embodies this rule. 2 How. Stat. § 9568. It is also well settled that the trial is not concluded until the verdict is received and recorded. There are cases which hold that a verdict rendered in the absence of the prisoner, whether he be in custody or out on bail, is void. . . . New cases will be found which go to this extent, and in nearly all of the cases where a verdict rendered in the absence of the accused has been held erroneous the respondent has been in custody, and has therefore been prevented from attending. When, however, the absence of the prisoner is not an enforced absence, but is voluntary, as when he is out on bail, and has been present during the trial, but voluntarily leaves the court room pending the deliberations of the jury, or neglects to appear at the adjourned hour of the court, the clear weight of authority favors the rule that a verdict rendered under such circumstances is valid and binding.” (Page 131.)
The substance of the argument employed by the Massachusetts court was thus forceably stated in Barton v. The State, 67 Ga. 653, 44 Am. Rep. 743:
“It is the right of the defendant in cases of felony . . . to be present at all stages of the trial — especially at the rendition of the verdict, and if he be in such custody and confinement by the court as not to be present unless sent for and relieved by the court, the reception of the verdict during such compulsory absence is so illegal as to necessitate the setting it aside on a motion therefor. . . . The principle thus ruled is good sense and sound law;-because he cannot exercise the right to be present at the rendition of the verdict when in jail, unless the officer of the court brings him into the court by its order.
“But the case is quite different when, after being present through the progress of the trial and up to. the dismissal of the jury to their room, he voluntarily absents himself from the court room, where he and his bail obligated themselves that he should be. . . . And the absolute necessity of the distinction, or the abolition of the continuance of the bail when the trial begins, is seen, when it is considered that otherwise there could be no conviction of any defendant unless he wished to be present at the time the verdict is rendered.
“From the charge of the court, from the countenances of the jury, from the course of the argument, from the hints or misgivings of counsel, from information leaking out of the jury-room, the defendant might see that the jury would convict him, and absent himself until the verdict was rendered, and thus have its rendition made entirely nugatory by his own act..
“The forfeiture of the bond is nothing. Appearance at the next term would save his bail, and trivial costs only would be the penalty paid, while the whole case must be tried again or the defendant be discharged altogether.
“A second trial at the next term could be made at his option to result in the same way at the same trivial costs, and so on ad infinitum. Can this be the law? We think that it cannot be is as certain as that it ought not to be.” (Pages 644, 645.)
There seems to be no escape from the force of this reasoning. It is true that in Kansas the bail is only exonerated from liability upon surrendering his prin cipal after a default if he presents a satisfactory excuse therefor. (Gen. Stat. 1901, § 5591.) But this results from a recent amendment, and therefore cannot aifect the interpretation of the statue under consideration. That the practical evils of the rule so vigorously denounced by the Georgia court are not exaggerated is shown by what was said of its application in People v. Beauchamp, 49 Cal. 41:
“It appeared that the verdict by which the prisoner was found guilty of the felony charged in the indictment had been received by the court below, and recorded in its minutes, and the jury discharged, while the prisoner was not personally present in court. The statute (Penal Code, § 1148) distinctly provides that, in order to the validity of such a verdict, the prisoner must be personally present in court when it is returned. In this case the prisoner seems to have absconded after the cause was given to the jury, and before their return into court. The growing frequency of occurrences of this character, thwarting the administration of criminal justice, would suggest the propriety in all trials for felony of promptly ordering the prisoner, regardless of his previous admission to bail, into actual custody, at the commencement of the trial, or immediately upon the retirement of the jury to consider their verdict.” (Page 41.)
The supreme court of Missouri, from which state the statute was transplanted to Kansas in 1855, held that under it the voluntary absence of the defendant in a felony prosecution vitiated the verdict (State v. Braunschweig, 36 Mo. 397), but the decision was not made until 1865 and therefore has no controlling force here. The law was subsequently changed by legislation, the proviso being added “that in all cases the verdict of the jury may be received by the court, and entered upon the records thereof, in the absence of the defendant, when such absence on his part is wilful and voluntary.” (Rev. Stat. Mo. 1879, § 1891.) This addition is said to have been made “to prevent a defendant from securing a mistrial and continuance by escaping if in custody or absconding if on bail, after the cause has been submitted to the jury and before verdict rendered.” (The State v. Hope, 100 Mo. 347, 358, 13 S. W. 490, 8 L. R. A. 608.)
The question has not heretofore been directly passed upon by this court. In The State v. Adams, 20 Kan. 311, 326, in holding that a defendant could waive his constitutional privilege to appear and defend in person in all prosecutions, attention was called to the difference between the language of the constitution and that of the statute — in the one case “he shall be allowed,” in the other “no person can be tried.” But no ruling was necessary or was made against the right to waive the benefit of the statutory provision. In The State v. Myrick, 38 Kan. 238, 16 Pac. 330, it was held, that the absence of the defendant during a part of a felony trial was not cured by the presence of his counsel and their consent to the proceedings. There, however, the defendant was at the time confined in the county jail and knew nothing of the matter. To hold that 'his statutory privilege could be regarded as waived under such circumstances would be to say that representation by an attorney is in all respects a complete substitute for personal presence, the right to which is guaranteed by the statute. In The State v. Smith, 44 Kan. 75, 24 Pac. 84, 8 L. R. A. 774, 21 Am. St. Rep. 266, The State v. Jarrett, 46 Kan. 754, 27 Pac. 146, and The State v. Clifton, 57 Kan. 448, 46 Pac. 715, which follow the Myrick case, the defendants were all in confinement while the proceedings complained of took place. In The State v. Moran, 46 Kan. 318, 26 Pac. 754, the verdict was set aside because a witness had been permitted to testify in the absence of the defendant. The decision is rested squarely upon The State v. Myrick, without further discussion, and fails to disclose any intention to enlarge the doctrine of that case. The report does not clearly show whether or not the defendant was in custody, but the record indicates that he had given bail. However, the opinion recites that he was absent with the consent of the court, and the record contains the statement that his absence was necessary. The situation was therefore, entirely different from that here presented. Excusing the defendant temporarily from attendance upon the court for a necessary purpose fairly implies that the trial is not to be proceeded with until his return. He would be justified in so understanding, and his withdrawing under such circumstances cannot be said to be a voluntary absence during a part of the trial. So in The State v. Muir, 32 Kan. 481, 4 Pac. 812 (a misdemeanor case), it was .held to be error to receive a verdict on Sunday in the absence of the defendant and his counsel, without their being called, but expressly upon the ground that except .upon notice they were not bound to be in attendance upon the court on a non-judicial day.
The question therefore being an open one in this state, the court prefers to follow what is clearly the weight of authority as well as what seems to be the better reason and to decide that the right of the defendant to be present during a felony trial is one that may be waived, and that if while at liberty on bond he is voluntarily absent, without having been excused by the court, when the jury reach an agreement a verdict against him may lawfully be received in his absence. On all accounts reasonable exertion should always be made to procure the attendance of the defendant, but it cannot be said that in the present instance any effort in that direction was omitted to which he was entitled as a matter of right.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In this case it appears that the plaintiff lost an eye by being struck by a sliver of steel from a tool called a “set,” or “snap,” used to receive the blows of a sledge in riveting the plates of metal beams. The “snap,” or “set,” in question was a lump of steel, shaped somewhat like the head of a small sledge. The top surface was flat, the bottom was cupped to fit over the ends of rivets, and it was held by a %-inch wire handle bent round it in a groove cut for that purpose. A rivet red-hot from the forge would be inserted from the bottom in a hole in the plates to be riveted. One man would hold the rivet in place by a lever of railroad-iron placed beneath it, another man would adjust and hold the snap, and a third would strike the top of the snap with a sledge and thus form the second head of the rivet. In order that the man manipulating the bar of railroad-iron might see and know that it supported the rivet and held it firmly against the plates of the beam, he was required to bend over and to bring his eyes down to the plane of the snap, and within three and a half feet of it. The sledge used weighed eight pounds.
The plaintiff was thirty-five years old at the time of the accident. He had been a car-repairer for about a year, in which business he wrecked cars, remodeled cars, took out and knocked down car-trucks, put in new trueks, and as occasion required used sledgehammers. He solicited and was given employment by the defendant, after a time was set at riveting, and had been doing that work four or five days previous to his injury. Part of the time he would wield the sledge and part of the time hold rivets in place. He gave no intimation that he was incompetent to perform this work, although it was new to him, and under the law he held himself out to his employer as being competent to undertake it. (U. P. Rly. Co. v. Estes, 37 Kan. 715, 16 Pac. 131.) He does not claim to be deficient in any of his faculties for observation or to be below the average in intelligence.
The plaintiff had been using a % snap on % rivets until the day of the accident, when he commenced working with % rivets and needed a % snap. Together with another workman he went to the tool-box and found there the snap in question. They took it out, heated a piece of wire, and bent it around the snap for a handle. It was the only % snap in the box, and a % snap could not be used efficiently on % rivets. The snap was old and worn. It was rusty from disuse, and was battered by long use until the top was fringed around the edge with hanging particles of steel. Without making application to the foreman for a better one an attempt was made to use it, and while the plaintiff was holding a rivet in place a blow from the sledge sent a sliver of steel % of an inch long, %c of an inch wide, and approximately %2 of an inch thick at the thickest place, into his eye. The bright spot left on the snap where the sliver broke off was about the size of a pin head, or a little larger. The plaintiff says that he saw no slivers flying while at work with the % snap, the condition of which, however, he does ,not describe, and he says that he was not aware of any danger from particles of steel flying from the snap that injured him.
On the trial of an action for damages brought by the plaintiff against his employer a demurrer was sustained to evidence disclosing the foregoing facts, and the propriety of this ruling is the sole question for consideration.
The plaintiff’s conduct was entirely voluntary and unconstrained. His opportunity for observation was ample, and his observation was in fact both comprehensive and accurate. He saw and knew the condition of the snap, and knew the causes which had operated to produce the condition in which he found it. He saw and knew that the blows of sledges had battered the top of that steel tool until it was encircled by a fringe of splinters, some of which, a quarter of an inch long, were clinging by attachments of pin-head size. He further saw and knew that these- particles had become rusted from disuse of the tool. He possessed and was required to exercise the discretion belonging to his years. His experience was ample to teach him the effect of sledge-hammer blows upon matter disintegrable by force applied in that manner, and he cannot be heard to say that he did not appreciate the fact that the blows of an eight-pound sledge, sufficient to rivet the plates of I-beams with %-inch rivets, would not break off fragments of the rusted fringe of steel around the crown of the snap, or that he did not appreciate the fact that under such blows slivers of the fringe might fly the short distance betw'een the snap and his face when he was holding rivets in place.
The facts and the danger they presented were both within the comprehension of any ordinarily intelligent and prudent man, and were as completely within the knowledge and appreciation of the plaintiff as of his employer. Therefore he cannot recover. (Lanyon v. Bell, 64 Kan. 739, 68 Pac. 609; Walker v. Scott, 67 Kan. 814, 818, 64 Pac. 615; S. K. Rly. Co. v. Drake, 53 Kan. 1, 35 Pac. 825; S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315, 27 Pac. 965; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; Jackson v. K. C. L. & S. K. Rld. Co., 31 Kan. 761, 763, 3 Pac. 501.)
The case of Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253, is distinguishable from this one for the large number and diverse character of the facts and relations to be Synthetized before apprehension of danger would arise. The case of Wurtenberger v. Railway Co., 68 Kan. 642, 75 Pac. 1049, is different in respect to the certainty of knowledge possessed by the injured party respecting the forces involved, and in that a surmise of danger based upon inadequate information was overcome by the assurance of an.experienced foreman. In Seeds v. Bridge Co., 68 Kan. 522, 75 Pac. 480, the conduct of the foreman disarmed the plaintiff from protecting himself and disqualified him from judging prudently of the danger to which he was exposed. In C. K. & W. Rld. Co. v. Blevins, 46 Kan. 370, 26 Pac. 687, the servant did not have an opportunity to inspect a tool handed him by the master for immediate use. In Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466, the servant’s attention was not drawn to the defects in the scaffolding, the danger was not obvious, and he was of course under no duty to institute an independent investigation.
The foregoing decisions of this court discuss all the principles by which the rights of the parties to this proceeding are to be determined. It is not necessary to enter upon a review of the decisions of courts of other states in analogous cases. A careful analysis of the facts involved in those cited by the plaintiff will disclose that none of them is antagonistic to the view here taken.
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to enjoin the commissioners of Ellis county from carrying out a contract for the building of a bridge or the appropriation of public money to pay for the bridge.
On November 4, 1905, the commissioners determined to build a bridge over the Saline river, and advertised for bids for its construction, specifying that it should be a “stone or cement bridge with a span or arch forty-eight feet, to be fourteen feet above low-water level, with a sixteen-foot roadway, iron guard-rails,, with one seventy-foot wing and one fifty-foot wing. Said bridge to be built across the Saline river about fourteen miles north of the city of Hays, Kan.”
In response to this notice the Topeka Bridge & Iron Manufacturing Company, among others, made a bid for the construction of the bridge. It- proposed to build a cement, concrete bridge, reinforced with iron and steel,.at a specified price. The proposal was accepted by the board, and on December 19, 1905, it entered into a contract with the bridge company by which the latter was to construct the bridge for $1995. The bridge company began at once to make the iron and steel portions of the bridge, and had completed and shipped the same to Ellis county in June, 1906. About .the same time it shipped the cement and other necessary materials and began the construction of the abutments and piers of the bridge.
On February 5, 1906, an order was made providing for a notice, and public notice was given of the purpose of the board to appropriate $1995 for the building.of the bridge in question.
On June 23, 1906, when the manufacture and construction of the bridge was well advanced, Theodore Meistrell and seven other taxpayers of the county instituted this suit, alleging non-compliance with the statute in the preliminary steps taken by the board toward the building of the bridge and in the awarding of the contract for that purpose, and obtained a restraining order.
On July 18, 1906, upon a trial had, the temporary injunction asked for was denied. While the court found that the board had not appointed a commissioner to determine the cost of the bridge in advance, and also that no plans or specifications for the bridge were on file in the office of the county clerk thirty days prior to the awarding of the contract, as the statute required, and that the bridge contracted for was not strictly of the kind described in the notice inviting bids, it held that the laches of the plaintiffs in remaining inactive for so long a time and allowing large expenditures of money to be made in carrying out the contract disentitled them to the equitable relief which they asked.
The ruling of the court will not be disturbed. The ground of the relief asked by plaintiffs is based not so much upon a want of power to build a bridge as upon informality and irregularity in the exercise of the power. The bridge was necessary, and there was the acknowledged power in the board to build it. The board did not appoint a commissioner to estimate the cost and contract for the building of the bridge, but it will be observed that such an appointment is not required except when the board is not satisfied as to the .expense of building the proposed bridge. (Gen. Stat. 1901, § 565.)
The board had inspected other bridges and. had learned about the cost of such structures, but had no definite information as to what the contemplated bridge would cost, and hence the commissioner might well have been appointed. The board had, however, estimated the expense, in a way, to be about $2500, and that estimate appears to have been about as close to the contract price as were the estimates of bidders who were interested in making a careful calculation as to cost.
It is also said that no specifications for the bridge were filed with the county clerk prior to the letting of the contract, but it appears that the notice for bids, given by the board and on file with the county clerk, gave specifications of the proposed bridge with considerable fulness and detail.
Another objection was that the advertisement for proposals to build the bridge called for the construction of a stone or cement bridge, while the one contracted for, as we have seen, was cement reinforced with iron and steel. This was a departure, but not a wide one, for ordinarily steel and iron are used to a considerable extent in cement structures. This bridge is spoken of by witnesses as a cement bridge. The testimony is that it has cement concrete piers and cement concrete abutments, reinforced by iron and steel structures. The floor of the bridge is of cement concrete, constructed on steel beams, and the only exposed steel portions of the bridge are the side trusses above the floor.
Officers are, of course, required to comply with mandatory provisions of the statute, but it is plausibly argued by the defendant that there has been substantial compliance with the mandatory provisions and 'that mere irregularities and informalities in the methods employed should not defeat the completion of public improvements. Under the circumstances of this case the plaintiffs were hardly in a position to invoke the equitable jurisdiction of the court and enjoin a public improvement so nearly completed. They appear in court in the capacity of private suitors for the protection of their personal interests. They brought the suit under chapter 334 of the Laws of 1905. Until that act was passed private parties could not interpose a suit of injunction against a proposed improvement until a tax or charge had been placed against them or their property and was about to be enforced. The act named expanded the remedy of injunction, and gives the taxpayer .a right of action against a public officer or board to enjoin them from entering into any contract or doing any unauthorized act that might result ultimately in the creation'of a burden or the levying of a tax against his property. He does not, however, sue in behalf of the state or in any representative capacity. As was said in Gas Co. v. Railway Co., 74 Kan. 661, 87 Pac. 883:
“The statute gives the right of action at the inception of any attempt to create such illegal burden. The plaintiff is not suing on behalf of the public or in the public’s interest, but in its own name, for the protection of its own property. A judgment in its favor may result in relieving all the property in the city from paying taxes to liquidate the indebtedness which the city is trying to create, but that would be only an incident in the protection of its own property and not a reason why it should not be permitted to maintain an action at this time.” (Page 665.)
As the plaintiffs were suing for themselves only, and for the protection of their own interests, they are to be governed and their rights measured by the ordinary rules applicable to private suitors.
The plaintiffs came into a court of equity asking a permanent injunction against the payment of the contractor for work which had been in progress for months, upon which a large amount of money had been expended, and when the contractor was not even a party to the action. Assuming that originally they had a right to interpose and enjoin, it has been forfeited by their silence and deíay. The contract was let and the work was in progress for about six months be fore they made any complaint or took any steps to assert their rights. With a knowledge that the contract had been made, and that the bridge was being built, they stood silently by and suffered the contractor to make a special bridge to fit that crossing and to incur expenses and liabilities of a burdensome character. To allow them to enjoin a public improvement which would so seriously affect others after such inaction and delay would be grossly inequitable. As was said in Commissioners of Morris Co. v. Hinchman, 31 Kan. 729, 3 Pac. 509: “It is a well-established rule in equity that if a party is guilty of laches or unreasonable delay in the enforcement of- his rights he thereby forfeits his claim to equitable relief.” (Page 736.)
The case of Brown v. Merrick County, 18 Neb. 355, 25 N. W. 356, is a case where certain taxpayers sought to enjoin the county commissioners from paying for the construction of a public bridge. It was contended that the board had failed to comply with the law in several particulars, but there was no charge of bad faith against the board or of fraud in contracting for the building of the bridge, and it was said that so long as the board acted within its authority no injunction would lie to restrain it; that “a taxpayer who seeks to enjoin the payment of money for the erection of a public bridge which he claims is being constructed in violation of law, must act with reasonable promptness. If he is guilty of gross laches, and knowingly permits the contractor to incur liabilities in good faith in the construction of the greater portion of the work, an injunction will be denied.” (Syllabus. See, also, Sleeper, v. Bullen & Dustin, et al., 6 Kan. 300; H. & S. Rld. Co. v. Comm’rs of Kingman Co., 48 Kan. 70, 28 Pac. 1078, 15 L. R. A. 401, 30 Am. St. Rep. 273; Tasch & others v. Adams, Treasurer, 64 Mass. 252; Kellogg v. Ely, 15 Ohio St. 64; Lamb v. The B., C. R. & M. R. Co., 39 Iowa, 333.)
The bridge was necessary for the convenience of the people. No fraud is charged against the board in the letting of the contract. The board had. power to build the kind of a bridge that was contracted for, and there is no claim that it is not worth the contract price. The case is unlike those cited by plaintiffs where the commissioners were wholly without authority to act. Here there was power, but it was defectively exercised. The delay of the plaintiffs in challenging the proceedings was unreasonable, and the court rightly held that they were not entitled to the equitable relief sought.
The judgment is affirmed. | [
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Per Curiam:
A sewer was built along a street of Kansas City, Kan., running east and west, for a distance of five blocks, and its cost was charged against a sewer district (or subdistrict) consisting of the ten abutting blocks and the two blocks lying immediately east of them. Thereafter such sewer was extended one block further to the east, the cost of this extension being charged to' a further subdistrict consisting of the four half blocks surrounding the point from which .such extension was made — the east end of the sewer first built. Owners of property in this second subdistrict brought a suit for an injunction to test the validity of such proceedings.
While the right asserted is claimed under the statute, the question presented is really one of justice and fairness. The argument made in support of the plaintiffs’ contention is that, inasmuch as the property of the new subdistrict bore its proportionate share of the cost of building the sewer for five blocks, it cannot equitably be charged with more than a like proportion of the cost of the extension — that the cost of the one block extension should have been apportioned in the same way as that of the five blocks of sewer first built, and assessed against all of the first subdistrict. The difficulty with this argument is that it assumes that what is called the extension is simply in all respects one-sixth of a sewer six blocks long — that the relation of each block to the entire sewer is the same as that of every other block— that the relation of each block to the part of the sewer on which it abuts is the same as that of any other block to the corresponding part of the sewer. Of the correctness of this assumption we have no means of judging. It may be that the local topography is such that all of the twelve blocks comprising the original subdistrict were benefited by the building of the five blocks of sewer first constructed, and that the four half-blocks, and they only, were benefited by the new sewer one block long, called the extension. If so the apportionment adopted was obviously equitable, and if it' was equitable we do not understand that the plaintiffs claim there is any provision of the statute that would defeat it. The record shows nothing of the grade, or of the character of the soil, or of other conditions that might affect the matter. The situation may have been such that the council might reasonably have regarded the apportionment made as a just one, and in that case their decision is not subject to review.
The judgment denying the injunction is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The defendant in error Was the owner of a tank-car used in transporting tar. The Missouri, Kansas & Texas Railway Company received this car from the Missouri Pacific Railway Company'at Council Grove, took it to Emporia, and placed it on the east transfer track of the connecting line by which its railway in that city is connected with that of the Atchison, Topeka & Santa Fe Railway Company. In accordance with the course of business between these companies, cars for the Santa Fe company are switched to the east track and cars for the Missouri, Kansas & Texas company are switched to the west track of their connecting transfer line. This transfer line consists of these two tracks.
This tank-car was taken by the Santa Fe company from' the east connecting track to the Emporia gasworks, situated about one-half of a mile south on its. line, and there filled with coal-tar, and then switched by the Santa Fe company back to the west connecting track for the Missouri, Kansas & Texas company. For this service the last-named company paid the Santa. Fe company $2, which was added to the freight bill and collected with its charges from the plaintiff by the Missouri, Kansas & Texas company. After the car was so filled and placed on the west connecting track a bill of lading was issued to the gas company, which it attached to a draft for the price .and forwarded it for collection through a local bank. While standing thus upon the west connecting track, about six hours after it was left there, and before being moved by the Missouri, Kansas & Texas company, the tar leaked out and was lost. No leak was discovered, however, when the car was switched to this track. The loss became known to the Missouri, Kansas & Texas company almost immediately after it occurred.
The car was an old one, and the evidence tends to show that soon after it was left standing on the connecting track it was shoved along by the Santa Fe company in switching other cars, causing a “bumping” of the Cars on such track. The bill of lading contained the following clause:
“It is understood, as a part of the conditions under which said packages are received, that neither this railway company nor other carrier shall be liable for leakage or fermenting of any kind of liquids, arising' from expansion, bursting of packages, or other unavoidable causes.”
The court directed a .verdict for the plaintiff, upon which judgment was rendered.
The plaintiff alleged negligence in moving and handling the car, whereby it became injured, theréby causing the loss. Whether it was' so injured, or whether the loss was caused by the defective condition of the car or tank furnished by the plaintiff, or by “expansion” or “bursting Of packages” (in this case the tank), were questions of fact to be determined by the jury upon all the evidence, under proper instructions. There was no direct evidence that the car was injured in switching. Nor was there any direct evidence of expansion or other cause of leakage. The cause of the loss was -a matter of inference or deduction from the facts proved, and such inference or deduction was for the jury.
“Whenever the testimony has reached such a point that it must be weighed and conclusions deduced therefrom the jury alone must make the deductions in the first instance, and not the court.” (Avery v. Railroad Co., 73 Kan. 563, 564, 85 Pac. 600.)
For the same reason the demurrer to the evidence was properly overruled.
There was no error in refusing to enter judgment on the findings. They were immaterial in view of the instruction to find for the plaintiff.
The judgment is reversed, and a new trial ordered.
Johnston, C. J., Burch, Mason, Smith, Porter, JJ., concurring.
Graves, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J.:
The following portion of the agreed statement of facts upon which the case was tried is sufficient to determine the decision of this case, to wit:
“It is further admitted that the seventh grade of the course of study of the schools of the city of Wichita is taught in the Emerson school; that white children living in the same block in which the said Fannie S. Rowles resides were at the time the said Fannie S. Rowles presented herself for admission attending, and now attend, the said Emerson school and the seventh grade thereof; and it is further admitted that the said Fannie S. Rowles presented herself to the said Emerson school as set forth in the writ of mandamus herein, and that she was excluded and prohibited from attending said Emerson school for the sole reason that she was of African descent and colored and a separate school had been provided in the Park school for her education in the seventh grade as a colored child; and it is further admitted that the plaintiff is a widow, and the mother of the said Fannie S. Rowles, and as such she has the charge and sole responsibility of educating the -said Fannie S. Rowles, and that the father of the Said Fannie S. Rowles is deceased; and that said Fannie S. Rowles resides within four hundred feet of the Emerson school, and that the said Fannie S. Rowles is not attending the Park or Emerson school at this time because she claims the right to attend the Emerson school.”
The action was brought by Mrs. Rowles for a writ of mandamus to compel the school board of the city of Wichita to admit her daughter, Fannie, to the Emerson school, which writ was refused by the court, and she brings the case here.
Section 75 of chapter 18 of the General Statutes of 1868, which chapter relates to cities of the first class, authorized all cities of this class to maintain separate schools for the education of white, and colored children and authorized the establishment of high schools. In 1879 section 75 of chapter 18 of the General Statutes of 1868 was repealed and amended. (Laws 1879, ch. 81, § 1.) By the amendatory act cities of the first class were authorized to maintain separate schools for the education of white and colored children, “except in the high school, where no discrimination shall be made on account of color.” In 1905 this act was again amended, and cities of the first class were authorized “to organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kan.; no discrimination on account of color shall be made in high schools, except as provided herein.” (Laws 1905, ch. 414, § 1.)
The city of Wichita, from the time it became a city of the first class until 1889, was, as to its public school's, within the provisions of the general statutes theretofore enacted and above cited. In that year, however, the legislature; probably at the instigation of representatives of the city, passed a special act, in which full provision is made for the schools of that city. (Laws 1889, ch. 227.) The act applies only to the city of Wichita, and, in effect, repeals all former general acts to the extent of their application to the schools of such city. Section 1 of the special act reads: “The public schools of the city of Wichita shall be governed by the provisions of the following act.” Section 4 thereof reads:
“The board of education shall be a body corporate under the name of ‘the board of education of the city of Wichita,’ and as such shall have the power to sue and be sued; to elect its own officers, and make all. necessary rules for the government and regulation of the schools of said city under its charge and control, subject to the provisions of this act; to exercise the sole control over the public schools and school property of said city; and shall have the power to establish and maintain a high school; provided, no discrimination shall be made on account of race or color; pro vided, further, that no tuition fee shall be collected from any pupil who is an actual resident of said city. The board of education shall have power, where the school accommodations are deemed insufficient, to exclude, for the time being, children between the ages of five and seven years.”
This act has never been amended or repealed. The act of 1905 was expressly amendatory of the act of 1879, and was a general act with a special exception in relation to Kansas City, Kan. As the schools of Wichita had for years been under the special act of 1889, it cannot be inferred that the legislature intended the act of 1905 to have any application whatever thereto.
It is contended on the one hand that section 4 of the special act of 1889 prohibits discrimination on account of color in any and all of the public schools of Wichita, and on the other hand that the prohibition relates only to the high schools. However this may be, it is certain that the city is not by any provision thereof authorized to maintain any grade of its public schools for the separate education of white and colored children. The history of the legislation on this subject from 1868 to 1905 amounts almost to a legislative declaration that, in the absence of an express grant thereof, no city or school district has any authority to discriminate against any child or to deny it admission to any public school thereof on account of its color. Such, also, has been the uniform tenor of the decisions of this court. (See Board of Education v. Tinnon, 26 Kan. 1; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830; Cartwright v. Board of Education, 73 Kan. 32, 84 Pac. 382; Board of Education v. Dick, 70 Kan. 434, 78 Pac. 812; Richardson v. Board of Education, 72 Kan. 629, 84 Pac. 538.)
It follows that the plaintiff is entitled to the relief prayed for. The judgment of the district court is reversed and the case is remanded, with instructions to enter judgment for the plaintiff in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Graves, J.:
This was an action to recover damages for breach of contract, commenced in the district court of Shawnee county.
On the trial the defendant recovered a verdict. On motion of the plaintiff the verdict was set aside and a new trial granted. The defendant brings the. case here and asks this court to reverse the order of the court granting a new trial, and, in addition thereto, to direct a judgment in his favor. The new trial was granted on account of misconduct of the jury during their deliberations. The defendant insists that the verdict was right regardless of the methods by which it was reached. In fact he claims that under the law the plaintiff has no right to recover against the defendant in any view of the case.
But the question for the consideration of this court is, Did the district court err in granting a new trial on the ground of misconduct of the jury? We think not. This is as far as we need to inquire. A new trial has been granted, and this court cannot assume that the trial court will not administer the law correctly upon the new trial. Until the case is finally disposed of by the trial court, this court cannot review the case on its merits.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff, sued to recover taxes paid under protest upon certain promissory notes and real-estate mortgages securing them. The district court made findings of fact and conclusions of law, as follow
“FINDINGS ,OF FACT.
“(1) On the first day of March, 1903, the plaintiff, C. B. Hewitt, was, and at all times since has been, a resident of school district No. 32 in Mission township, Johnson county, Kansas; and for the year 1903 he was assessed by the township assessor of said township and listed -for assessment and taxation certain personal property.
“ (2) On March 1, 1903, plaintiff was the owner of certain promissory notes, amounting to $3600, which were executed and delivered to him in Jackson county, Missouri, by parties living in said county and state.
“These notes were all secured by trust deeds, executed and delivered to plaintiff in said county and state, by parties living in said county and state, and the land covered by said trust deeds was all in Jackson county, Missouri.
“On March 1, 1903, all of said notes and trust deeds were in a box in the vault of -the First National Bank of Kansas City, Missouri, in Jackson county, where they had theretofore been left by-plaintiff, and have ever since remained; said notes and trust deeds never having been actually in the state of Kansas.
“ (3) The notes and trust deeds mentioned in finding No. 2 were not listed by plaintiff with the assessor of Mission township, Johnson county, Kansas, for the purposes of taxation for the year T903, when he was assessed and listed other personal property for that year.
“(4) On March 1, 1904, plaintiff was the owner of certain promissory notes, amounting to $6600, which were executed and delivered to him in Jackson county, Missouri, by parties living in said county .and state.
“These notes were all secured by trust deeds, executed and delivered to plaintiff in said county and state, by parties living in said county and state, and the land covered by said trust deeds was all in Jackson county, Missouri.
“On March 1, 1904, all of said trust deeds were in a box in the vault of the First National' Bank of Kansas City, in Jackson county, Missouri, where they had theretofore been left by plaintiff, and have ever since remained; said notes ‘.and trust deeds never having been actually in the state of Kansas.
“(5) The notes and trust deeds mentioned in finding No. 4 were not listed by plaintiff with the assessor of Mission township, Johnson county, Kansas, for taxation for the year 1904, when he was assessed and listed other personal property.
“ (6) The notes and trust deeds referred to in findings of fact No. 2 and No. 4 were left in this box in the vault of the First National Bank of Kansas City, Missouri, by the plaintiff, and were kept there by permission of the officers of the bank, the plaintiff having had the use of said box in said vault for about ten years. The bank has a key to the vault, and the plaintiff a key to the box in which the notes and trust deeds were left for safe-keeping by plaintiff, and to which box he gains access by obtaining the key to the vault from the officers of the bank, then using the key he has to open the box in which the notes and trust deeds are kept.
“(7) March 1, 1908, the notes referred to in finding No. 2 were worth and of the value of $3600; and the notes mentioned and referred to in finding No. 4 were worth and of the value of $6600 on March 1, 1904.
“(8) The rate of taxation in school district No. 32 in Mission township, Johnson county, Kansas, for the year 1903 was 31.7 mills on the dollar, and for the year 1904 it was 38.1 on the dollar.
“(9) In the years 1903 and 1904 the basis.of valuation agreed upon by the assessors of Johnson county, Kansas, was: On horses, mules and cattle, one-third of their cash value; on money, shares of stock in bank, stock in any company or corporation, personal notes and mortgages, 40 per cent, of their cash value.
“(10) The testimony does not disclose whether any of the notes owned by plaintiff, and in said box in 1903, were there in 1904, or whether they were different notes.
“(11) Plaintiff did not pay tax on said notes and trust deeds in Missouri in 1903 and 1904.
“(12) During the time hereinafter mentioned Roscoe Smith was the county clerk of Johnson county, Kansas, A. E. Moll was county treasurer, as well had the county a board of county commissioners, made defendants herein.
“(13) In January, 1905, Roscoe Smith, county clerk of Johnson county, Kansas, was advised that plaintiff owned certain notes and trust deeds on March 1,1903, and on March 1,1904, that he had not listed for taxation with other personal property returned to the assessor of Mission township in said county; and on the 11th day of January, 1905, he caused written notice to be served upon plaintiff that on January 19, 1905, he would have a hearing at the office of the county clerk of Johnson county, Kansas, touching the question as to whether said notes and trust deeds had not escaped taxation and should be entered by him upon the tax-roll of Johnson county, Kansas, for taxation for said years; and in pursuance of said notice plaintiff appeared before said county clerk at said hearing and objected to said notes and trust deeds being entered by said county clerk for taxation in said county and state.
“ (14) As a result of said hearing before said county clerk, and on February 20, 1905, Roscoe Smith, county clerk of Johnson county, Kansas, entered up against the plaintiff, under the name of Calvin B. Hewitt, in a book kept by the officers of said county, designated as ‘Omitted Personal Property Tax-roll,’ the following entries:
No. Date. Name. School. Year. Valuation. Rate. Total tax.
6 Feb. 20, Calvin B. Dist. 1903 1440 31.7 45.64
1905 Hewitt 32 1904 2640 38.1 100.58
“The county clerk made no further or other record or entry of said matter in his office at said time; afterward an entry was made in said Omitted Personal Property Tax-roll, as follows:
Am’t paid. Date payment. By whom paid. Costs. Remarks.
$150.52 7-14-05 C. B. Hewitt. $4.30 Paid under protest.
“This roll, designated as an ‘Omitted Personal Property Tax-roll,’ was a book kept for the purpose of entering omitted personal property by said county clerk and the entering of the payment of tax by the county treasurer when the tax was paid.
“Said Omitted Personal Property Tax-roll was delivered to the county treasurer that he might collect the taxes so as aforesaid by the county clerk entered against plaintiff, and plaintiff was notified by the county clerk that he had entered said notes and trust deeds for taxation.
“ (15) The plaintiff did not appear before the board of equalization of said county at the June meeting of said board in 1905 and make complaint as to the valuation on said notes and trust deeds entered by' the county clerk on said Omitted Personal Property Tax-roll.
“(16) On July 14, 1905, plaintiff, undgr protest, to avoid the forceable collection under a tax warrant, paid to defendant, A. E. Moll, county treasurer of Johnson county, Kansas, $150.52, the amount so charged against him for taxation, for tax and costs, and by said county, clerk so as aforesaid entered up against plaintiff on said Omitted Personal Property Tax-roll; and said county treasurer gave him a receipt therefor with the indorsement thereon: ‘Paid under protest.’
“(17) At the time, and immediately before paying said sum of $150.52 to said county treasurer on July 14, 1905, plaintiff delivered to said county treasurer a written protest against the payment of said tax and costs, claiming that it was illegal and void.
“(18) On July 27, 1905, plaintiff filed with'and in the office of the county clerk of Johnson county, Kansas, and presented against said county, a bill and "demand duly verified asking the allowance and repayr ment to him of said sum of $150.52, so as aforesaid paid by him under protest to the county treasurer of Johnson county, Kansas, on the 14th day of July, 1905, which claim was not allowed but was by said board of county commissioners rejected; and this action was commenced August 8, 1905. The case was tried before the court, January 25, 1906, both parties asking the court to make separate findings of fact and conclusions of law.
“Just before the trial commenced defendants in open court offered to let plaintiff take judgment for the sum of $4.30 with interest thereon from July 14, 1905, at 6 per cent, per annum, being the amount of costs charged against plaintiff, by the county clerk on said hearing to discover omitted property and interest thereon, which offer plaintiff declined to accept.”
“CONCLUSIONS OP LAW,’
“(1) That the tax paid by plaintiff to the county treasurer of Johnson county, Kansas, under protest, July 14, 1905, was illegal.
“(2) That the notes and trust deeds upon which said tax was levied were not subject to taxation in Mission township, Johnson county, Kansas, for the years 1903 and 1904.
“(3) Said tax having been paid under protest, the plaintiff should recover in this action, from the defendant county, the sum of $150.52, with interest thereon from July 14, 1905, at the rate of 6 per cent, per annum, and costs.”
A judgment was rendered according to the conclusions of law, to .reverse which the commissioners prosecute this proceeding in error.
The statute providing for the assessment and collection of taxes declares that all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed. Personal property is defined to include every tangible thing which is the subject of ownership not forming part or parcel of real property; also, tax-sale certificates, judgments, notes, bonds and mortgages, and all evidences of debt secured by lien on real estate. All personal property must be listed and taxed each year, in the township, city and school district in which it is located, on the first day of March, except in certain specified instances not material to this controversy. (Gen. Stat. 1901, §§ 7502; 7503, 7509.)
The plaintiff contends that the judgment of the district court should be upheld because the property taxed was not in this state and had no location in Mission township in Johnson county.
It will be observed the statute places tax-sale certificates, judgments, notes, bonds and mortgages and all evidences of debt secured by lien on real estate in the same category for purposes of taxation and distinguishes them from tangible personal property.
In the case of Kingman Co. v. Leonard, 57 Kan. 531, 46 Pac. 960, 34 L. R. A. 810, it was demonstrated that a judgment rendered by a court of this state has no independent situs of its own, and that for purposes of taxation it must, under the statutes of this state, be regarded as attending its owner at his place. of residence, although that be in a foreign state. In the case of Mecartney v. Caskey, 66 Kan. 412, 71 Pac. 832, it was decided that tax-sale certificates issued by a county treasurer of this state have no independent situs of their own, and that, like judgments, their situs for purposes of taxation must be deemed to be the domicil of their owner, although he be a nonresident.
The doctrine that the debt evidenced by a note or secured by a mortgage is the substantial element of the owner’s taxable property, that the note or mortgage is merely evidence, and that generally the debt and its evidence have no independent situs of their own, is now so strong in its own credit that it needs no sureties by way of citations of authority.
From the statute, the decisions referred to, and the legal doctrine stated, it must follow that the property taxed in this case had its situs at the domicil of its owner in Mission township, Johnson county, unless some substantial reason exists for making an exception in its favor.
Only one matter worthy of consideration can be suggested : In the cases cited, which involved the right to tax intangible property belonging to non-residents of this state, it was intimated that such property might acquire a situs here for purposes of taxation. Notes, mortgages, tax-sale certificates and the like might be brought into the state for something more than a temporary purpose, be devoted to some business use here and thus become incorporated with the property of this state for revenue purposes. Such a situs has aptly been termed a “business situs.” (Herron, Treasurer, v. Keeran, 59 Ind. 472, 477, 26 Am. Rep. 87; In re Jefferson, 35 Minn. 215, 28 N. W. 256.)
Conceding for the purpose of argument that a resident of this state who is the owner of intangible property like that assessed in this case may give it a business situs in a foreign state, and that it was the intention of the legislature to regard property so lo cated as outside the state and not subject to taxation here, the question remains whether the conduct of the plaintiff was sufficient to accomplish such a result.
It is not necessary to determine precisely what facts will be sufficient in every case to establish an independent business situs for notes and mortgages, but generally the element of separation from the domicil of the owner and fairly permanent attachment to some foreign locality should appear, together with some business use of them, or some power of managing, controlling or dealing with them in a business way. Á merely transitory presence in a foreign state or a naked custody for safe-keeping is not enough. (Hunter v. The Board of Supervisors, 33 Iowa, 376, 11 Am. Rep. 133; Herron, Treasurer, v. Keeran, 59 Ind. 472, 26 Am. Rep. 87; Mecartney v. Caskey, 66 Kan. 412, 414, 71 Pac. 832.) Indeed, it has recently been held by the supreme court of the United States, in the case of Buck v. Beach, 206 U. S. 392, 27 Sup. Ct. 712, 51 L. Ed. 1106, that the legislature of a state cannot disregard the rule that the situs of intangible property is at the domicil of its owner in order to subject to taxation notes and mortgages owned by a non-resident but kept in a safe within the state by an agent who transacts no business regarding them, and makes no use of them other than to send them to the state of the owner’s domicil for the purpose of delivering them on full payment or to have indorsements of principal or interest made on them.' In the opinion it was said:
“The question still remains, was there any property within the jurisdiction of the state of Indiana, so as to permit that state to tax it, simply because of the presence of the Ohio notes in that state? It was not the value of the paper as a tangible thing, on which these promises to pay the debts existing in Ohio were written, that was taxed by that state. The property really taxed was the debt itself, as each separate note was taxed at the full amount of the debt named therein or due thereon. And jurisdiction over these debts for the purpose of taxation was asserted and exercised solely by reason of the physical presence in Indiana of the notes themselves, although they were only written evidence of the existence of the debts which were in fact thereby taxed. . . . Under such rule, the debts here in question were riot property within the state of Indiana, nor were the promissory notes themselves, which were only evidence of such debts.” (Pages 402, 403.)
The conclusion of the court, however, that the legislature lacked power to take cognizance of the physical presence of the securities in Indiana for revende purposes riíáy not coriimánd universal approval.
In this case the findings of fact show that the notes and mortgages taxed were merely left iri the vault of a bank in Kansas City, Mb., for safé-keeping. They were connected with no business enterprise. The depositary did not even have access to them, much less any power of business use or control over therii. In strictness, they were not even severed from the personal possessiori of thé owrier. Therefore the legal situs of the property wris at the owner’s residente in Kansas.
The cases of Wilcox v. Ellis, Treasurer, 14 Kan. 588, 19 Am. Rep. 107, and Fisher v. Comm’rs of Rush Co., 19 Kan. 414, are citéd in opposition to this view. In the Wilcox case thé notes taxed were necessarily detained in the foreign staté by an agent of both the' maker and the owrier for the completion of the business transaction out of which they arosé. Something of an instance of a business situs is thus presented. If it does not meet all the requirements of a proper staridard it certainly goes far beyond the facts of the present, controversy. In thé Fisher case promissory notes and a mortgage securing them wére payable in Iowa and were left there for the purpose of collecting the moneys due upon them. Probably the weight of authority would riot now sustain a holding that the property had a business situs in Iowa bécáu'sé it was left there for collection. If such were true every attorney in this state having in his office on the first day of March, for collection, notes and mortgages of nonresident clients would be obliged to list them for taxation. (See Myers v. Seaberger, 45 Ohio St. 232, 12 N. E. 796.) But the object of the deposit was the accomplishment of a business purpose which made theprésence of the paper in Iowa indispensable. Therefore the case is wholly dissimilar from the one now under consideration.
Although much confusion still exists, legal thought upon the subject of thé taxation of intangible property has been considerably clarified since the opinions in the Wilcox and the Fisher cases were written, and many of the arguments there advanced would now be regarded as unsatisfactory. It is clear that the láws of Kansas may and do afford a resident owner of notes and mortgages kept or even used elsewhere substantial securities, privileges and advantage's with reference to them, so that the reciprocal relation between protection and taxation is sufficiently preserved. As shown by Mr. Justice Allen in Kingman Co. v. Leonard, 57 Kan. 531, 46 Pac. 960, 34 L. R. A. 810, intangible property may none the less have its situs for purposes of taxation in this state although another state may afford the owner remedies respecting it. It is no longer debatable that the question whether a resident owner of debts evidenced by notes and mortgages has property in this state is not to be determined by the locality in which the debts were created, nor by the place where the security lies, nor by the residence of the debtors. And it is impossible to believe that the legislature intended to regard notes given by non-residents and secured by mortgages on property in another state as outside its jurisdiction mérely because the resident owner, returning home after the conclusion of the business transaction producing them, left them just beyond the state line. Since, however, as already shown, the results reached in the' cases ad verted to do not conflict with a holding that the notes and mortgages involved in this case were taxable in Kansas, it is not necessary to discuss those decisions further.
It is urged that the taxes charged against the plaintiff’s property are void because the record contains no official return of a listing and valuation of described items of property. By his own wrong the plaintiff made it necessary for the county clerk to resort to the exceptional proceedings authorized by section 7599 of the General Statutes of 1901 to bring omitted property upon the tax-roll. The course prescribed by the statute was strictly pursued, except that the return of the assessor, incorrect because of the plaintiff’s conduct, was not formally corrected in accordance with the facts developed at the hearing, in which the plaintiff participated. This omission was a mere irregularity and does not vitiate the tax.
According to the decision in the case of Douglas County v. Lane, ante, p. 12, the taxes paid under protest for the year 1903 were recoverable.
The cause is remanded to the district court with instructions to modify its judgment in accordance with the views herein expressed. | [
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Per Curiam.:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Leo N. Johnson, of Council Grove, an attorney admitted to the practice of law in Kansas.
Count I of the formal complaint alleges the negligent handling of a criminal case. A panel of the Board for Discipline of Attorneys found that the allegations in this count had not been established by clear and convincing evidence.
Count II alleges that respondent violated Supreme Court Rule 207 (1991 Kan. Ct. R. Annot. 149) by failing to cooperate in the investigation of Count I. Respondent admitted the allegations contained in Count II. Respondent was indefinitely suspended from the practice of law in 1980 (In re Johnson, 227 Kan. 478, 608 P.2d 1012 [1980]) and subsequently was reinstated. For respondent’s failure to cooperate in the investigation herein and in light of his "prior violations of the ethical rules,” the panel recommended that respondent be disciplined by public censure. No exceptions to the report have been filed. We accept the panel’s recommendation.
It Is Therefore Ordered that Leo N. Johnson be and he is hereby disciplined by public censure.
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to respondent. | [
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The opinion of the court was delivered by
Lockett, J.:
Kenneth R. Williams was charged with one count of indecent liberties with a child, K.S.A. 1991 Supp. 21-3503. The charge arose after S.J., a 14-year.-old female, reported to her .mother that she had been sexually. molested by Williams, her step-grandfather. Under the facts, the alleged conduct is proscribed by both K.S.A. 1991 Supp.- 21-3503(l)(b), indecent liberties with a child, a Class C felony, and K.S.A. 21:3603(1) and (2)(b), aggravated incest, a Class D felony.
At the preliminary examination, S.J. testified that while visiting Williams at his home, he told her .to remove her pants. S.J. said Williams then got on his knees and put his head between her legs and his mouth on her vagina, and that he put his hands inside her shirt and touched her breasts. S.J. further testified Williams had the zipper of his pants undone during the incident. She testified that he got on top of her and attempted to insert his penis into her vagina.
Also at the preliminary examination, the investigating officer testified Williams gave two versions of the incident. In the first version Williams stated that when he went into the trailer, S.J. was sitting on the couch with her shirt up, exposing her breasts. He told her to cover her breasts. She did not, and he accidentally touched her breasts, possibly while pulling her shirt down. The second version was that, when S.J. exposed her breasts to him, she asked him to suck her breasts. He did so. S.J. then asked him to kiss her vaginal area. Williams could not recall whether he actually had done so.
Williams moved to dismiss the complaint, arguing that aggravated incest as defined by K.S.A. 21-3603 is a more specific criminal offense than indecent liberties with a child, as defined by K.S.A. 1991 Supp. 21-3503; therefore, he should have been charged with aggravated incest because the alleged victim was his 14-year-old step-granddaughter. The district court granted Williams’ motion to dismiss, finding the legislature intended the aggravated incest statute to be a statute of specific application in that it relates to particular persons or things of a class, so Williams should have been charged with aggravated incest. The State appealed.
K.S.A. 1991 Supp. 21-3503 states:
“Indecent liberties with a child. (1) Indecent liberties with a child is engaging in any of the following acts with a child who is under 16 years of age:
“(a) Sexual intercourse; or
“(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or
“(c) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.
“(2) It shall be a defense to a prosecution of indecent liberties with a child that the child was married to the accused at the time of the offense.
“(3) Indecent liberties with a child is a class C felony.”
K.S.A. 21-3603 states:
“Aggravated incest. (1) Aggravated incest is marriage to or engaging in any prohibited act enumerated in subsection (2) with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
“(2) The following are prohibited acts under subsection (1):
. “(a) Sexual intercourse, sodomy or any unlawful sex act, as defined by K.S.A. 21-3501 and amendments thereto; or
“(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
“(3) Aggravated incest is a class D felony.”
The issue for our determination is whether the State must charge a defendant with aggravated incest rather than indecent liberties with a child when the defendant is related to the victim as set forth in K.S.A. 21-3603(1).
The State first notes the district court relied on the rule of statutory construction that “a special statute prevails over a general statute unless it appears that the legislature intended to make the general act controlling.” Seltmann v. Board of County Commissioners, 212 Kan. 805, 811, 512 P.2d 334 (1973). The State disagrees with the district court’s reasoning, contending that the decision to charge the defendant with indecent liberties with a child rather than aggravated incest is a discretionary alternative provided by statute for the prosecutor. It asserts it has authority to charge Williams with either indecent liberties with a child or aggravated incest because
(1) the two statutes establish different classes of felonies, each statute requires proof of at least one element not present in the other statute, and the aggravated incest statute prohibits a greater range of behavior than does the indecent liberties statute; and
(2) the rationale in State v. Helms, 242 Kan. 511, 748 P.2d 425 (1988), that indecent liberties with a child is not a more specific statute than rape, applies in this case.
The State also contends State v. Siard, 245 Kan. 716, 783 P.2d 895 (1989), and State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), overruled on other grounds State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), support the State’s position that charging indecent liberties with a child rather than aggravated incest is a discretionary decision which rests with the State.
The State claims that children who are related to an offender are more vulnerable to sexual victimization than those who are not, The State points out the existing relationship between the child and the offender affords the offender accessibility to the victim which does not exist absent that relationship. The State asserts that if Williams’ argument is accepted, it must be concluded that the legislature intended to afford less protection to child victims of sexual molestation if the victim is related to the offender.
Williams claims the State’s argument does not address the issue whether, under the facts, he must be charged with aggravated incest but instead focuses on whether aggravated incest and indecent liberties with a child are separate offenses. Williams contends the State implies that because the elements of the two crimes are different, neither is a specific crime; therefore, it has the discretion to charge him with either offense.
Williams claims there is a clear legislative intent that the aggravated incest statute be the exclusive mechanism for punishing those who commit acts which fall within its purview. Williams states that the district court was correct in its determination and in reasoning “[w]hen there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling.” State v. Wilcox, 245 Kan. 76, Syl. ¶ 1, 775 P.2d 177 (1989).
Williams argues the clear legislative intent is that aggravated incest is a specific crime and the offense of indecent liberties is a more general crime. Williams relies on the following portion of the trial court’s memorandum decision which addresses the question of legislative intent:
“While the legislative history is not crystal clear, State v. Armstrong, 238 Kan. 559, 565, 712 P.2d 1258, recites that effective July 1, 1983, parents were included in the class of individuals set forth under Aggravated Indecent Liberties with a Child and subject to being charged with a Class B felony. The 1984 legislature amended the statute. The new version of 21-3504 was changed to delete parents and certain relatives from prosecution for such acts after July 1, 1984. The crime of Aggravated Incest under K.S.A. 1984 Supp. 21-3603(2)(b) was amended to prohibit lewd fondling or touching of a child under the age of eighteen years by certain listed relatives. Aggravated incest was made a class D felony. From such abbreviated history it may be fair to infer that the legislature did intend to treat parties related to the victim differently than the parties that were unrelated to the victim. Some might conclude that by making Aggravated Incest a class D felony and Indecent Liberties with a Child a Class C felony, that this would infer on the part of the legislature that such conduct was less reprehensible. However, it should- be pointed out that the charge of aggravated incest does not allow marriage as a defense. In fact, marriage becomes an offense. In addition, the related victim must be under the age of eighteen years.”
In Helms, 242 Kan. 511, the defendant contended the offense of indecent liberties with a child was a more specific crime than rape, K.S.A. 21-3502; therefore, indecent liberties with a child was the exclusive offense for which he could be charged, convicted, and punished.
We observed that the rule that a more specific statute should prevail over a general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied to a particular set of facts and that it had no application in that case. We determined if the rule were to apply as a means of determining legislative intent, the rule must yield where there is a clear indication that the legislature did not intend for one statute to be the exclusive mechanism for punishing a given activity. The necessary result of Helms’ argument was that an individual who rapes a person under the age of 16 years may not receive the same punishment had the individual raped an adult. We noted such an interpretation accords to persons under the age of 16 less protection than adults. We said the view that indecent liberties with a child provides the exclusive means of punishment for any individual who. commits any sexual crime against a minor flies in the face of logic and reason. We found it required an assumption that the legislature intended to afford less protection to the most vulnerable segment of our society. 242 Kan. at 514-15.
In addition, we noted that the crime of rape contains elements not included within the crime of indecent liberties with a child. Indecent liberties with a child punishes consensual or noncon sensual sexual intercourse or lewd fondling involving a victim under 16 years of age. The crime of rape punishes persons committing an act of sexual intercourse with a nonconsenting victim whose resistance is overcome by force or fear. We concluded that indecent liberties with a child was not a more specific illicit act of sexual intercourse than rape. 242 Kan. at 513.
In State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983), we held that while defendant Coberly could not be convicted of both rape and indecent liberties with a child for a single act, he could be punished for either crime, depending upon the facts. Because there was no doubt that the evidence established that Coberly had committed the crime of rape, we voided the defendant’s conviction of indecent liberties with a child and affirmed his conviction of rape.
In State v. Siard, 245 Kan. 716, 783 P.2d 895 (1989), the defendant had engaged in numerous separate acts of sexual intercourse with his 14- and 15-year-old daughters. The defendant was charged with separate counts of aggravated incest involving each child and separate counts of taking indecent liberties with each child. Siard contended he was convicted of both indecent liberties with a child and aggravated incest arising out of the same act and that under K.S.A. 21-3107, he could be convicted of the crime charged or an included crime but not both. Siard argued that, because his convictions for indecent liberties with a child and aggravated incest based on the same act were multiplicitous, he could be sentenced only for the lesser crime of aggravated incest. There was sufficient evidence to charge Siard with and convict him of approximately 30 separate crimes. The majority held Siard could be convicted of either aggravated incest or indecent liberties with a child as long as the convictions were based on separate and distinct acts. 245 Kan. at 722-23.
In State v. Hutchcraft, 242 Kan. 55, the defendant was convicted of five counts of indecent liberties with a child. All of the alleged victims were step-grandchildren of the defendant. Hutch-craft contended that aggravated incest was an identical offense to that of indecent liberties with a child and the jury should have also been instructed on the identical offense of aggravated incest. We did not agree, noting indecent liberties with a child requires the State to prove that the child is not married to the offender and that the child is under 16 years of age. Aggravated incest requires the State to prove that the child is under 18 years of age; that the child is related to the offender as a biological, step, or adoptive relative; and that the defendant, knowing of that relationship, either married the child or committed certain prohibited acts with the child. We determined that the offense of indecent liberties with a child is not identical with the offense of aggravated incest; therefore, a parent can be charged with indecent liberties with a child under 21-3503, as defendant was in this case, or the parent can be charged with aggravated incest under 21-3603. Hutchcraft did not claim that because of his relationship with the child victim, he could only be convicted of aggravated incest.
For the general statute versus specific statute rationale to be applicable to the two crimes, the indecent liberties statute must he viewed as a statute generally prohibiting certain sexual behavior and the aggravated incest statute as applying to the identical prohibited conduct by a person related to the victim. “When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling.” State v. Wilcox, 245 Kan. 76, Syl ¶ 1, 775 P.2d 177 (1989). See State v. Makin, 223 Kan. 743, 748, 576 P.2d 666 (1978).
■ A statute which relates to persons or things as a class is a general láw, while a statute which relates to particular persons or things of a class is specific. Seltmann v. Board of County Commissioners, 212 Kan. 805, Syl ¶ 2. Under this broad definition one of the statutes relates a general law and the other a specific law.
Although the elements of the two crimes are similar, the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child. This relationship is not an element in the indecent liberties with a child statute. From a reading of these statutes, it is clear that the legislature intended to establish certain sex offenses applicable where family relationships are not involved. The legislature also intended that aggravated incest, a crime committed by a person related to the victim, constitutes a less serious offense than when a similar prohibited act is perpetrated by a defendant against a child with whom he or she has no family relationship. We hold where a defendant is related to the victim as set forth in K.S.A. 21-3603(1), the State may charge the defendant with aggravated incest for engaging in the acts prohibited therein but not with indecent liberties with a child. Any statement in Hutchcraft that is not consistent with this holding is hereby disapproved.
Affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiffs appeal from the order of the district court dismissing their action for mandamus, an accounting, declaratory and injunctive relief, recovery of taxes paid together with interest, and recovery of costs, including attorney fees, under 42 U.S.C. § 1983 (1988). The plaintiffs filed this action as a class action on behalf of taxpayers whose motor vehicle registration month was any month after February. The class was not certified, and plaintiffs’ action was dismissed for lack of subject matter jurisdiction due to plaintiffs’ failure to exhaust their administrative remedies. The primary defendants are the Kansas Department of Revenue and the Johnson County Board of Commissioners.
The single underlying issue is whether the alphabetical “staggered registration system” for motor vehicle registration and taxation, established by K.A.R. 92-51-21, unconstitutionally discriminated against persons whose registration month was any month after February. The solé issue in this appeal is whether the district court lacked subject matter jurisdiction on the ground that plaintiffs had failed to exhaust administrative remedies.
K.A.R. 92-51-21, which became effective May 1, 1982, established the staggered registration system for motor vehicles. This regulation was adopted as “[authorized by and implementing K.S.A. 1981 Supp. 8-134, 8-134a.” Under the system, persons whose last names begin with a letter toward the end of the alphabet paid more in motor vehicle taxes than identically situated taxpayers whose names begin with a letter close to the beginning of the alphabet. This inequality resulted from the differential availability of depreciation. A new method of computing depreciation eliminated the discrepancies as of January 1, 1991. K.A.R. 92-55-2a. 9 Kan. Reg. 1513 (1990). An original petition in quo warranto filed by the attorney, general was voluntarily , dismissed upon adoption of this curative regulation.
In October 1989, a memorandum was prepared in the Kansas Legislative Research Department in response to a request for an example of the “application of the motor vehicle tax for two hypothetical taxpayers in the same county who purchase the same new car at the same time, but have surnames at different extremes of the alphabet.” On a 1989 model vehicle valued at $15,000 with taxes calculated on a constant mill levy, Mr. T would pay $236 more in taxes during a 5V2-year period of ownership than Mr. A would pay. The same example was given in Attorney General Opinion No. 90-100, which concluded that the system violated constitutionally guaranteed equal protection.
K.S.A. 1991 Supp. 79-2005 and K.S.A. 1991 Supp. 74-2426 set out the administrative procedure for protesting the payment of taxes and for recovery of protested taxes. It is uncontroverted that plaintiffs did not follow the procedure. It also is uncontroverted that the time has expired in which named plaintiffs could have followed these procedures for protesting motor vehicle taxes collected before the method of computing depreciation was reformed.
The administrative procedure for a taxpayer’s protesting the collection of allegedly unlawful taxes has as its first step, at the time of paying the taxes, the filing of a written statement with the county treasurer stating the grounds for protest. K.S.A. 1991 Supp. 79-2005(c) provides: “If the grounds of such protest shall be that any tax levy, or any part thereof, is illegal, such statement shall further state the exact portion of such tax which is being protested.” The county appraiser must consider the taxpayer’s grievance, and the taxpayer may appeal an unsatisfactory result to the State Board of Tax Appeals (BOTA).
K.S.A. 1991 Supp. 74-2426(c)(4) provides that any action of BOTA may be reviewed by the district court of the county in which the property is located. Review must be “in accordance with the act for judicial review and civil enforcement of agency actions,” K.S.A. 77-601 et seq. K.S.A. 1991 Supp. 74-2426(c).
K.S.A. 77-612 provides, in pertinent part, as follows: “A person may file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other -agency authorized to exercise administrative review.” This court’s statement of the rule is less rigid: “The well-recognized rule in this state is that where a full and adequate administrative remedy is provided in tax matters by statute, such remedy must ordinarily be exhausted before a litigant may resort to the courts.” (Emphasis added.) State ex rel. Smith v. Miller, 239 Kan. 187, Syl. ¶ 1, 718 P.2d 1298 (1986).
There is no claim by plaintiffs that they exhausted, or even initiated, the administrative remedies. They argue, however, that, since the administrative remedies available to them are not “full and adequate,” it was not necessary for them to do so. Plaintiffs contend that the district court has not only original jurisdiction of their claims, but also jurisdiction under 42 U.S.C. § 1983.
In support of their contention, plaintiffs argue that the controlling issue is “purely judicial” and the purpose in requiring exhaustion of administrative remedies is not served by deferring the matter to BOTA. In this regard, this court has stated:
“The doctrine of exhaustion of administrative remedies is directed toward promoting proper relationships between the courts and administrative agencies charged with particular administrative and regulatory duties. It promotes orderly procedure and requires a party to exhaust the administrative sifting process with respect to matters peculiarly within the competence of the agency.” Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 95, 510 P.2d 132 (1973).
Under Kansas law, it would be unwarranted for a court to entertain a tax suit on any of these matters of administrative expertise where administrative remedies had not been pursued. Plaintiffs argue, however, that BOTA does not have authority to determine constitutional issues and, therefore, the issues involved in their action are not within the competence or expertise of BOTA. Plaintiffs contend that most of the cases relied upon by defendants for the proposition that exhaustion of administrative remedies is a condition precedent to filing suit in the district court involve challenges to administrative matters. For example, Tri-County Public Airport Authority v. Board of Morris County Comm'rs, 233 Kan. 960, 666 P.2d 698 (1983), was an action requesting an exemption from the payment of ad valorem property taxes assessed against property owned by the Airport Authority but rented to private citizens for various private uses. The plaintiffs claim that its property should enjoy tax-exempt status fell within the administrative agency’s sphere of expertise, and the district court was without jurisdiction.
Another case cited by defendants is State ex rel. Smith, 239 Kan. 187. There, an action was brought seeking relief based upon a determination that various statutes were unconstitutional. The action was dismissed for plaintiff s failure to exhaust administrative remedies.
In re Appeal of News Publishing Co., 12 Kan. App. 2d 328, 743 P.2d 559 (1987), had as its underlying. issue the abatement of a sales tax assessment, but the constitutionality of the imposition on the publisher of the duty to collect the sales tax also was raised. BOTA'declined to rule on the constitutionality question because “as a quasi-judicial agency, it had to assume the statutes were constitutional.” 12 Kan. App. 2d at 334. The Court of Appeals remarked that “[s]ince administrative, boards and agencies may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law.” 12 Kan. App. 2d at 334.
Defendants also cite two cases for the proposition that BOTA has authority to consider constitutional issues. The first is Wray v. State Dept. of Revenue, 224 Kan. 234, 579 P.2d 717 (1978).
Wray attempted to bypass BOTA and appeal an order of the director of taxation to the district court. This court’s decision affirming the district court’s dismissal is very short and per curiam. The taxpayer’s issues are not. revealed. It is stated: “Constitutional issues may properly be considered by the state board of tax appeals.” The authority cited is Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975), in which BO-TA’s decision that a- statute classifying cemetery land for tax purposes was constitutional was overturned. There was no issue of the pursuit of administrative remedies, nor any comment by this court as to BOTA’s authority to make a determination as to the statute’s constitutionality.
In neither Wray nor Topeka Cemetery is there any discussion of the relative areas of expertise of the administrative and judicial levels. In neither case is it possible to determine whether there were disputed matters which were within the expertise of the administrative agency and were decided before the cases reached the judicial forum on strictly constitutional questions."'
Whére there are no issues raised which lend themselves to administrative determination and the only issues present either require judicial determination or are subject to judicial de novo review, it follows that plaintiffs should be permitted to seek court relief without first presenting the case to the administrative agency. Whether viewed as a deficiency or inadequacy in the administrative procedure as to the issue on which plaintiffs’ case depends or as a matter of the administrative agency’s simply not being designed or equipped to handle the issue, the conclusion is the same — there would be no purpose served by requiring plaintiffs to exhaust administrative procedures. See Beaver v. Chaffee, 2 Kan. App. 2d 364, 369, 579 P.2d 1217 (1978) (jail conditions). Here, plaintiffs argue that there are no issues requiring the expertise of BOTA. We do not agree.
Although we agree that this case turns on a single constitutional issue, it involves more than just a resolution of that constitutional question. Plaintiffs, in challenging the constitutionality of the regulation, are seeking injunctive, declaratory, and tax relief. It is obvious the purpose and ultimate goal of their challenge is to allow recovery of the motor vehicle taxes paid by them and others. Their challenge is to the regulations adopted by the Department of Revenue in implementing the statutes, which are clearly products of an administrative function.
In Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P.2d 836 (1958), this court considered a class action brought by two named plaintiffs and 1,941 named taxpayers challenging the constitutionality of the motor carrier tax statute as well as the interpretation and administration of the Motor Carrier Act by the state commission of revenue and taxation. This was an original proceeding in mandamus, and the writ was allowed in part. The portion of the motor carrier tax statute which charged a tax on the valuation and assessment of certain franchise rights and privileges was found to be unconstitutional. In part, we held: “G.S. 1949, 79-1702 furnishes no remedy to the complaining taxpayers insofar as challenge of the constitutionality of the taxing act itself is concerned.” 183 Kan. 287, Syl. ¶ 4.
In so ruling, this court made a distinction between a challenge to the commission’s acts in implementing the statute and a challenge to the statute itself. One of the arguments raised by defendants was that “plaintiffs had an adequate remedy at law by way of administrative proceedings under G.S. 1949, 79-1702.” 183 Kan. at 293. This court said:
“Insofar as the plaintiffs complain of the commission’s valuation of their property and other acts of the commission in its application of the statute, the commission’s position is well taken. The commission should not be subjected to litigation in the courts until the alleged error has been called to its attention and it has had an opportunity to consider and correct the grievance. (Gray v. Jenkins, 183 Kan. 251, 326 P.2d 319.)
“However, a different situation exists where the tax statute under which the commission is operating is challenged as unconstitutional. G.S. 1949, 79-1702 was not intended to cover a situation where the constitutionality of a tax statute is challenged. The commission is not set up as a court to review the constitutionality of legislative enactments. It is an administrative body. It is the commission’s duty to presume that the statutes are constitutional and valid. The plaintiffs had a right to seek court relief on the question of the constitutionality of the statute without first presenting the question to the commission for review.” 183 Kan. at 293.
Clearly, based on Felten and In re Appeal of News Publishing Co., BOTA is not vested with authority to determine the constitutionality of a statute. The statement in Wray to the contrary is disapproved. In the typical case in which administrative issues such as assessment were presented to the administrative agency along with a challenge to the constitutionality of a statute, the agency would presume the validity of the statute and apply its expertise to sorting out the assessment question. However, in the present case, plaintiffs are not challenging the constitutionality of the statute, but the regulations adopted by the Department of Revenue to implement K.S.A. 1981 Supp. 8-134 and -134a. Nonetheless, BOTA’s authority is similarly limited in considering a constitutional challenge to a regulation. In In re Residency Application of Bybee, 236 Kan. 443, 691 P.2d 37 (1984), Wichita State University appealed the decision of the district court reversing the Faculty Residency Committee’s decision denying By-bee residency status. In the appeal to this court, Bybee argued for the first time that the regulations determining residency were unconstitutional. This court, in refusing to consider the issue since it was not raised in the district court, stated: “Since administrative boards and agencies may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law.” 236 Kan. 443, Syl. ¶ 4.
In the present case, the plaintiffs could have sought a declaratory judgment as to the constitutionality of the regulations and injunctive relief in the district court without first presenting these two issues to BOTA. The district court did have jurisdiction to hear plaintiffs’ prayer for a declaratory judgment as to the constitutionality of the staggered registration and taxation system and for a permanent injunction against further utilization of that system.
However, plaintiffs also prayed for recovery of the taxes collected and paid pursuant to the implementation of K.A.R. 92-51-21. Clearly, plaintiffs are seeking tax relief by challenging the regulation adopted by the Department of Revenue in its application of the statute. In Tri-County, this court, in noting that K.S.A. 1980 Supp. 79-2005 was part of the 1980 reforms in the tax procedure, said:
“The 1980 reforms in tax procedure are contained primarily in three statutes. The first is K.S.A. 1980 Supp. 79-2005 which was effective July 1, 1980. The former language in that section, which permitted an aggrieved taxpayer to pay his taxes under protest and then file an action within thirty days in a court of competent jurisdiction, was eliminated. His sole remedy is now to file an application for refund within the thirty-day period with BOTA. This statutory change achieved the legislative objective of eliminating direct action in the district court, thus channeling all tax matters through BOTA, the paramount taxing authority in the state. Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P.2d 147 (1971), cert. denied 406 U.S. 967 (1972).” (Emphasis added.) 233 Kan. at 964.
Although in Felten, 183 Kan. 287, this court proceeded to determine the constitutionality of the statute, it limited the relief granted by concluding that only those named taxpayers who protested the payment of their taxes were entitled to recover the tax they paid by virtue of this portion of the statute being held unconstitutional. Here, since the plaintiffs did not comply with 79-2005, they cannot seek recovery of their taxes directly in the district court. In Felten, we recognized that the acts of an agency in its application of the statute are administrative in nature, and, as such, administrative remedies must first be exhausted. We further recognized that an agency should not be subjected to court action until it has had an opportunity to consider and correct the alleged error. Here, the Department of Revenue eventually did that when the error was brought to its attention by the filing of the quo warranto action by the attorney general.
In State ex rel. Smith, 239 Kan. 187, as in the present case, the plaintiff argued that it had no adequate administrative remedy because BOTA had no authority to rule upon the constitutionality of the tax statutes or provide the relief sought by way of mandamus and quo warranto. This court did not agree. In affirming the district court’s dismissal, this court observed:
“A party aggrieved by an administrative ruling is not free to pick and choose a procedure in an action in the district court in order to avoid the necessity of pursuing his remedy through administrative channels. Since the adoption of the act for judicial review and civil enforcement of agency actions (K.S.A. 77-601 et seq.), it would appear that relief such as sought here should be raised as new issues in the district court on appeal from the BOTA. See K.S.A. 77-617.
“Although appellant asserts the unconstitutionality of the statutes and seeks extraordinary relief, its obvious complaint is that the assessed valuation' of its real property is too high. This is an issue that must be determined by exhaustion of administrative remedies before resorting to the courts.” (Emphasis added.) 239 Kan. at 190.
Plaintiffs further argue that the exhaustion of state admininstrative remedies is not required before an action under 42 U.S.C. § 1983 is filed in state courts. Plaintiffs rely on the recent United States Supreme Court decisions in Felder v. Casey, 487 U.S. 131, 101 L. Ed. 2d 123, 108 S. Ct. 2302 (1988), and Patsy v. Florida Board of Regents, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). In Felder, the Court considered whether a § 1983 action was barred for failing to comply with the Wisconsin notice-of-claim statute. Patsy was an employment discrimination case. Neither case involved a challenge to state taxing procedure; therefore, they have limited application in the present case.
Defendants respond that Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100, 70 L. Ed. 2d 271, 102 S. Ct. 177 (1981), establishes a different rule for state tax cases. McNary involved the extension of the prohibition of the Tax Injunction Act to a federal court action seeking damages under § 1983 for a state tax problem. The Court held that principles of comity precluded a federal court from hearing taxpayers’ damages actions to redress unconstitutional administration of a state tax system. The Court said: “Such taxpayers must seek protection of their federal rights by state remedies, provided of course that those remedies are plain, adequate, and complete, and may ultimately seek review of the state decisions in this Court.” 454 U.S. at 116. Justice Brennan, joined by Justices Marshall, Stevens, and O’Connor, concurred based upon the failure of petitioners to exhaust administrative remedies in each tax year for which they sought damages, and not based upon the principles of comity. Justice Brennan’s concurring opinion quotes from an earlier opinion setting out the considerations which have led to restraint:
“ ‘The special reasons justifying the policy of federal noninterference with state tax collection are obvious. The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency.’ ” 454 U.S. at 137 n.27 (Brennan, J., concurring) (quoting Perez v. Ledesma, 401 U.S. 82, 128 n. 17, 27 L. Ed. 2d 701, 91 S. Ct. 674 [1971] [Brennan, J., concurring and dissenting]).
His concern leads to the conclusion that “[w]here administrative remedies are a precondition to suit for monetary relief in state court, absent some substantial consideration compelling a contrary result in a particular case, those remedies should be deemed a precondition to suit in federal court as well.” 454 U.S. at 137. We conclude that those same concerns logically apply when a federal cause of action (§ 1983) is brought in state court to challenge state taxation.
In the recent case of McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 18, 110 L. Ed. 2d 17, 110 S. Ct. 2238 (1990), the United States Supreme Court indicated that state postdeprivation tax appeal procedures are constitutional when they provide a “clear and certain remedy.” The Court said:
“When a State penalizes taxpayers for failure to remit their taxes in timely fashion, thus requiring them to pay first before obtaining review of the tax’s validity, federal due process principles long recognized by our cases require the State’s postdeprivation procedure to provide a ‘clear and certain remedy’ [citation omitted] for the deprivation of tax moneys in an unconstitutional manner.” 496 U.S. at 51.
The plaintiffs have failed to demonstrate how the remedies provided by K.S.A. 1991 Supp. 79-2005 and K.S.A. 1991 Supp. 74-2426 are unclear, uncertain, incomplete, or inadequate. The plaintiffs could have complied with K.S.A. 1991 Supp. 79-2005 and still have pursued their constitutional claims. Although constitutional claims cannot be acted upon by BOTA, such claims would be resolved by the district court on appeal.
Plaintiffs’ prayer for recovery of monies paid under the staggered registration and taxation system established by K.A.R. 92-51-21 is an attempt to seek tax relief without first exhausting their administrative remedies available under 79-2005 and 74-2426. We conclude that K.S.A. 1991 Supp. 79-2005 and K.S.A. 1991 Supp. 74-2426 provide plaintiffs with a clear and certain remedy for full, adequate, and complete relief. Thus, the district court did not have jurisdiction to grant such relief, and properly dismissed that part of plaintiffs’ action.
Although the district court’s order of dismissal for lack of jurisdiction was too sweeping in that it included plaintiffs’ prayer for declaratory and injunctive relief, there was nothing to enjoin since the plaintiffs’ complaints do not extend to any taxation which occurred after December 31, 1990, and plaintiffs’ failure to comply with 79-2005 precluded their recovery of any taxes paid. Therefore, those actions are moot as to the plaintiffs and should have been dismissed for that reason and not for lack of jurisdiction. A correct ruling will not be reversed because the district court relied upon an incorrect ground or assigned an erroneous reason for its ruling. State v. Wilburn, 249 Kan. 678, Syl. ¶ 5, 822 P.2d 609 (1991).
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The opinion of the court was delivered by
McFarland, J.:
This is an action by the estate of a decedent to recover funds paid to an individual operating under a power of attorney executed by the decedent. The district court entered summary judgment in favor of one of the two defendant savings and loan institutions, and the estate appeals therefrom.
The facts may be summarized as follows. On June 15, 1987, Tillie A. Flinn executed a durable power of attorney designating her nephew James C. Flanders and/or Martha E. Flanders (James’ wife) as her attorneys in fact. Tillie’s signature on the power of attorney was duly notarized and the estate admits the signature is Tillie’s. In January 1988 Tillie owned 12 certificates of deposit issued by defendant Capitol Federal Savings and Loan Association. The value of said CD’s was approximately $194,000. Some of the CD’s dated back to 1973.
On January 13, 1988, at approximately 10:00 a.m., Martha Flanders went to a Capitol Federal office. She had: (1) the durable power of attorney instrument; (2) five certificates of deposit; and (3) a hand-printed letter identifying Martha as an attorney in fact and stating that Tillie wished to cash the five CD’s (identified by number) that Martha had with her. At approximately 10:31 a.m., five checks were given to Martha in the aggregate amount of $135,791.34, representing the funds in said CD’s less penalties for early withdrawal in the aggregate amount of $4,757.70. Some of the checks were drawn in Martha’s name, individually, and some in the names of James and Martha, also as individuals. Nothing on the checks indicated that they were being issued to said individual or individuals in her or their representative capacities. Uncashed CD’s in the aggregate amount of $58,127.58 then remained at Capitol Federal. Tillie was found dead of heart disease later that day. The time of death on her death certificate is set at 11:30 a.m.
Bank IV, as administrator C.T.A. of Tillie’s estate, filed two lawsuits in 1990: (1) the action herein against Capitol Federal and Argentine Savings and Loan Association seeking the return of Tillie’s funds paid out to the Flanders; and (2) an action against Martha and James Flanders seeking return of said funds. The two actions were consolidated for discovery purposes only. The estate’s action against Argentine was settled and dismissed. The district court entered summary judgment in favor of Capitol Federal and the estate appeals therefrom.
It is apparently undisputed that the Flanders spent all sums received by them from Capitol Federal for their personal usage, and that the funds cannot be traced and recovered. Other facts will be stated as necessary for the discussion of particular issues.
The estate contends that the district court erred in granting summary judgment to Capitol Federal. Specifically, the estate contends:
1. Capitol Federal breached a duty to investigate before issuing the checks;
2. the terms of the durable power of attorney instrument were not broad enough to authorize the issuance of checks in the name or names of the attorney(s) in fact as individual(s); and
3. a procedural error by Capitol Federal entitled the estate to summary judgment in its favor.
DUTY TO INVESTIGATE
The estate contends that the size of the transaction involved herein and the forfeiture of interest thereon, coupled with the fact the checks were requested to be issued in the individual name(s) of the attomey(s) in fact were sufficiently suspicious circumstances to create a duty in Capitol Federal to investigate before releasing the funds. Specifically, the estate contends that Capitol Federal should have: (1) determined whether or not Til-lie’s “true wishes” were being carried out; and (2) checked to see whether Tillie was still alive. Capitol Federal argues that its duty only requires a favorable, comparison of the signatures of the depositor with that on the power of attorney, proper identification of the attorney in fact, and a determination that the transaction is within the scope of the power of attorney. Capitol Federal further contends any requirement for additional investigation would be unduly burdensome on lending institutions.
The first aspect of this issue concerns Tillie’s competency. It is unclear whether the estate is contending that Capitol Federal should have made inquiry into Tillie’s competency as of the time of the execution of the power of attorney or as of the time of the request for the transfer of funds, or both.
As far as the question relates to competency at the time of the transfer of funds is concerned, the matter is resolved by statute. Kansas has adopted the Uniform Durable Power of Attorney Act (K.S.A. 58-610 et seq.). Included therein is K.S.A. 58-611, which provides:
“All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal’s successors in interest as if the principal were competent and not disabled.”
Additionally, the instrument itself expressly provides: “This power of attorney is durable and shall not be affected by the subsequent disability or incompetence of the principal.”
Thus, incapacity of Tillie at the time of the withdrawal of funds is not a factor in the determination by the lending institution on whether or not to honor the request by an attorney in fact for withdrawal of funds. If it were otherwise, the very purpose of many powers of attorney, which is to allow the orderly transaction of a person’s business during contemplated disability or incompetency without expensive and time-consuming probate proceedings, would be defeated.
Did Capitol Federal have a duty, under the facts herein, to investigate into the capacity of Tillie at the time of the execution of the instrument in determining whether or not to honor the request for the withdrawal of funds? We believe not. The circumstances involved herein demonstrate the impracticality of imposing such a requirement. It is 10:00 a.m. on January 13, 1988. The attorney in fact is standing on one side of the counter seeking withdrawal of funds under a power of attorney executed on June 15, 1987. The test for capacity to execute a power of attorney would presumably be comparable to that for capacity to execute a will. An individual who is incompetent most of the time may have lucid intervals in which he or she has the capacity to contract or make a will. Determination of a person’s capacity to contract or make a will involves determination of capacity at the particular point in time the instrument was executed. Frequently, there is conflicting testimony among lay persons and health care professionals and the judicial hearings thereon are lengthy and involved. As a practical matter, how could the Capitol .Federal employee, responding to the attorney in fact’s request for withdrawal of funds, make such a determination? Capitol Federal notes in its brief that every working day it has over 500 transactions involving an agency or power of attorney relationship. The practical effect of requiring such a determination would, again, be to eliminate the power of attorney as a useful tool in the transaction of the business of any elderly, disabled, absent, or otherwise incapacitated individual.
As noted by the district court in its memorandum decision:
“The duty of Capitol Federal to Tillie Flinn, its depositor, focuses on an issue which has drastic and far reaching implications. The final decision of our Appellate Courts will impact upon the management of the assets of our elderly, disabled and also upon the management of our financial institutions. The Durable Power of Attorney provides an inexpensive vehicle for family members to manage the finances of the impaired relative without incurring the substantial expenses of creating a conservatorship. The start-up for a conservatorship is in the range of $10,000.00. Annual accounting fees are much less than the start up costs, but are incurred annually.
“The Power of Attorney eliminates the necessity of opening and maintaining a conservatorship. In order to function the powers of the Attorney-in-Faet must be recognized by financial institutions.
“The public support for the Durable Power of Attorney is manifested by the Legislature’s passage of the Uniform Durable Power of Attorney Act. (K.S.A. 58-610 et seq.)”
The estate cites no authority in support of the proposition that a lending institution has a duty to determine the capacity of the grantor at the time of the execution of a power of attorney before honoring a request for a transfer of funds thereunder. We conclude that no such duty exists and that the district court correctly determined that Capitol Federal had no such duty to investigate. It should be noted, perhaps, that there is no claim made that Capitol Federal had actual knowledge of any incapacity or incompetency on the part of Tillie nor had she been adjudicated a disabled or incapacitated person.
This brings us to the claim that Capitol Federal should have ascertained whether or not Tillie was alive when the request for transfer was made.
K.S.A. 58-613 provides:
“(a) The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith, under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal’s successors in interest.”
Here again, the estate cites no authority for the proposition Capitol Federal was under some duty to determine that Tillie was alive before transferring the funds. There is no claim made that Capitol Federal had actual knowledge that Tillie was deceased when the transfer was requested. In fact, based upon the death certificate’s stated time of death, Tillie was alive when the transfer was made. We find no merit in this point.
Next we shall consider the catchall claim that Capitol Federal should have determined the transfer of funds by checks to. the attorney(s) in fact was carrying out Tillie’s “true wishes.” Presumably, this would entail some type of face-to-face meeting between a representative of Capitol Federal and Tillie to determine if she knew of and approved of the requested transfer and the form of the checks. A telephone call would be insufficient as the Capitol Federal employee would have no way of knowing if the person responding to the call was really Tillie. Inherent in this procedure would be the requirement that the Capitol Federal employee know Tillie or had secured sufficient identification to be positive that the person with whom he or she was conferring was, in fact, Tillie. For reasons already expressed, a duty to determine the “true wishes” of the principal is unrealistic and would result in the loss of powers of attorney as useful tools in the transaction of the business of disabled, elderly, and/or absent principals.
We conclude that when confronted with the request for withdrawal of funds herein, Capitol Federal had a duty to:
1. compare the signature on the power of attorney with Tillie’s signature on file as a depositor as to the authenticity thereof;
2. obtain proper identification of the person seeking withdrawal as the person designated attorney in fact;
3. determine whether or not the requested transaction was within the scope of the durable power of attorney presented.
It is uncontroverted that Capitol Federal did compare the signatures, and it is admitted Tillie executed the power of attorney. This requirement then, has been satisfied. There is no claim that the Martha Flanders with whom Capitol Federal dealt was an imposter and not the individual designated as attorney in fact or that Capitol Federal breached a duty relative to her identification. This leaves only the question of whether the transaction was within the scope of the durable power of attorney,, and that is the subject of the next issue.
The district court’s memorandum decision essentially placed the same three requirements on Capitol Federal and we find no error therein.
SCOPE OF DURARLE POWER OF ATTORNEY
The estate contends that the scope of the durable power of attorney herein was not broad enough to authorize Capitol Federal to issue the checks in the name(s) of the attorney(s) in fact as individuals.
The powers granted are as follows:
“(A) Power with Respect to Bank Accounts. To establish accounts of all kinds for me with financial institutions of any kind; to modify, terminate, make deposits to and write checks on and endorse checks for or make withdrawals from all accounts in my name or with respect to which I am an authorized signatory; to negotiate, endorse or transfer any checks or other instruments with respect to any such accounts; and to contract for any services rendered by any financial institution.
“(B) Power with Respect to Safe-Deposit Boxes. To contract with any Institution for the maintenance of a safe-deposit box in my name; to have access to all safe-deposit boxes in my name or with respect to which I am an authorized signatory; to add to and remove from the contents of any such safe-deposit box and to terminate any and all contracts for such boxes.
“(C) Power to Sell and Buy. To sell and buy personal, intangible or mixed property, upon such terms and conditions as may seem appropriate to use any credit card held in my name to make such purchases and to sign such charge slips as may be necessary to use such credit cards; and to repay from any funds belonging to me any money borrowed and to pay for any purchases made or cash advanced using credit cards issued to me.
“(D) Power to Exercise Rights in Securities. To exercise all rights with respect to securities that I now own, or may hereafter acquire; and to establish, utilize and terminate brokerage accounts.
“(E) Power to Borrow Money (including any Insurance Policy Loans). To borrow money for my account upon such terms and conditions as may seem appropriate and to secure such borrowing by the granting of security interests in any property or interest in property which I may now or hereafter own; to borrow money upon any life insurance policies owned by me upon my life for any purpose and to grant a security interest in such policy to secure any such loans; and no insurance company shall be under any obligation whatsoever to determine the need for such loan or the application of the proceeds therefrom.
“(F) Power with Respect to Taxes. To prepare, sign and file Federal, state and/or local income, gift, property or other tax returns, claims, etc.
“(G) Power to Demand and Receive. To demand, arbitrate, settle, sue for, collect, receive, deposit, expand for my benefit, reinvest or make such other appropriate dispositions of, as my Agent deems appropriate, all cash rights to payments of cash, property (personal, intangible and/or mixed), rights and/or benefits to which I now or may in the future become entitled, regardless of the identity of the individual or public or private entity involved (and for purposes of receiving Social Security benefits, my Agent is herewith appointed my ‘Representative Payee’); to utilize all lawful means and methods for such purposes.
“I further give and grant to my said Attorney(s)-in-Fact full power and authority to do and perform every act necessary to be done in the exercise of any of the foregoing powers as fully as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said Attorney(s)-in-Fact shall lawfully do, or cause to be done by virtue hereof.
“This instrument may not be changed orally.
“This power of attorney is durable and shall not be affected by the subsequent disability or incompetence of the principal.
“TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, I HEREBY AGREE THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY AND I FOR MYSELF AND FOR MY HEIRS, EXECUTORS, LEGAL REPRESENTATIVES AND ASSIGNS, HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.”
In holding that the powers granted in the instrument were broad enough to authorize Capitol Federal to issue checks in the name or names of the attorney(s) in fact only, the district court reasoned as follows;
“This is a question of law that is to be decided within the, four corners of the written Power of Attorney. The estate contends the document does not authorize the bank to pay Tillie Flinn’s funds to Martha Flanders personally. The Court has reviewed the entirety of the Durable Power of Attorney involved in this case and finds the document is not ambiguous with respect to any issue in this case and therefore extrinsic evidence is not necessary to determine the legal effect of the document. The relevant portions of the document are; [Here the district court set forth paragraph (A) and the paragraph immediately following paragraph (G).].
“The language of this Power of Attorney literally gives to the agent all the powers which the principal has with respect to bank accounts. The document does not place restrictions upon the Attorney-in-Fact nor does it place any limitations upon Capitol Federal. Tillie Flinn, personally, could have requested Capitol Federal to pay the deposited funds to the order of Martha Flanders. If Tillie Flinn could have accomplished this then her Attorney-in-Fact has the same authority. The claim by the estate that the Power of Attorney did not authorize the withdrawal and transaction is not well taken.
“The above construction of the Power of Attorney distinguishes the attorney in fact from the agent referred to in Henderson v. Hassur, 225 Kan. 678. The Attomey-in-Fact does owe a fiduciary duty to the principal. This duty does not impose upon third parties a duty beyond restrictions created in the power of attorney.”
The form for the instrument at issue was cut from a magazine and not specifically drafted for the use of Tillie. This fact has no bearing on the issues before us but is mentioned only to note that there is no drafter of the instrument who has knowledge of the particular circumstances surrounding its creation and execution.
The estate argues that strict construction of the power of attorney is required and that under such construction there is no authority therein for an attorney in fact to have checks representing the principal’s funds issued in the agent’s individual name.
We do not agree with this conclusion.
3 Am. Jur. 2d, Agency § 30, pp. 533-35, states:
“Powers of attorney are to be construed in accordance with the rules for the interpretation of written instruments generally, in accordance with the principles governing the law of agency, and, in the absence of proof to the contrary, in accordance with the prevailing laws relating to the act authorized.
“As in the case of other written instruments, there is no room for construction of a power of attorney which is not ambiguous or uncertain, and whose meaning and portent are perfectly plain. But in cases where construction of the instrument or the interpretation of its language is necessary— that is, where the meaning of the instrument or the operative langauge therein is uncertain, obscure, or ambiguous — the first and foremost rule is that the intention of the parties as it existed at the time the power was granted is to be given effect. Also, the whole of the writing is to be taken together so as to give effect to every part, and each clause should be used to interpret the others. Furthermore, the words in the instrument should be taken in their ordinary and popular sense, rather than according to their strict legal meaning, unless the parties used them in a technical sense or unless a special meaning is given to them by usage, in which case the latter must be followed. Where technical words are used, they should be interpreted as usually understood by persons in the profession or business to which they relate, unless they are clearly used in a different sense.”
3 Am. Jur. 2d, Agency § 31 states that, as a general rule, powers of attorney are to be strictly construed.
But 3 Am. Jur. 2d, Agency § 33, pp. 536-37, states:
“The rule of strict construction of a power of attorney is not absolute and should not be applied to the extent of destroying the very purpose of the power. The rule does not call for a strained interpretation, and if the language will permit, a construction should be adopted which will carry out, instead of defeat, the purpose of the appointment. Even if there are repugnant clauses in a power of attorney, they should be reconciled, if possible, so as to give an effect to the instrument in keeping with its general intent or predominant purpose. Furthermore, the instrument should always be deemed to grant such powers as are essential or usual in effectuating the expressed powers.”
Extremely broad powers áre granted by the instrument to the attomey(s) in fact. In essence, the instrument is saying to third parties that the attomey(s) in fact are authorized to act in Tillie’s place and stead relative to all of her assets and business. Tillie could, obviously, have gone to Capitol Federal, cashed the CD’s (with penálties), and had the checks drawn in the individual names of the Flanders. We see nothing in the instrument which operates to limit the powers of the attomey(s) in fact to the withdrawal of funds only if Tillie’s name appears on the checks or the agency relationship is otherwise disclosed. Even had the checks been drawn with the agency relationship set forth thereon, the misappropriation of the funds by the agents would not have been avoided. The Flanders had only to deposit the checks and then write checks to themselves.
There are cases which hold a banking institution liable for an agent’s misappropriation of a principal’s funds, but some additional factor is present in those cases which, in effect, put the bank on notice of the agent’s wrongful usage of the funds and made the bank an accessory therein. For example, see First Nat. Bank v. Cooper, 252 Ga. 215, 312 S.E.2d 607 (1984). A son, holding a power of attorney from his father, assigned one of the father’s CD’s as collateral to secure a personal loan for himself. In affirming the lower court’s judgment against the bank, the Georgia Supreme Court stated:
“The portions of the power of attorney relied on by the appellant bank, quoted hereinabove, must be read in the context of the entire power of attorney, which is to be construed strictly and in light of the four comers of the document. [Citation Omitted.] The clear and unambiguous purpose of the power of attorney here is to serve and benefit only the grantor of the power, Carlos Cooper. Although the powers granted to the defendant agent were broad in banking matters on behalf of the deceased, there was no authorization for the agent to use such powers on his own behalf, i.e., to secure a personal loan for himself. The defendant bank was on notice as to the extent of the power of attorney, hence was not authorized to allow the assignment of any C/D of the grantor in furtherance of the agent’s personal goal of obtaining a loan for himself.” 252 Ga. at 216.
This same thread runs through Wickens v. Valley State Bank, 125 Kan. 751, 266 Pac. 81 (1928). Á retired farmer set up a trust with a bank officer as trustee. The bank was not a party thereto. The trustee had broad discretionary powers to invest the trust fund. Unfortunately, the trustee pócketed a substantial portion of the trust. In holding the bank was not liable for the trustee’s misappropriation of funds, the court stated:
“The selection of an agent or trustee is an individual matter, lying within the power of him who makes the selection. He may change his selection and may require such bond or security as he desires. Having sole power of appointment, he has no right to claim that any third person shall be hable for the default of his agent, selected solely by him, unless the third party has participated in the misappropriations to the extent of becoming a party to the fraud. The defendant bank in the instant case had no right to supervise the investment of the funds or the value of the securities taken, nor had it the right to refuse payment of the check or order of [the trustee].” 125 Kan. at 759.
In 5A Michie, Banks and Banking § 72 (1983), it is stated:
“A principal may expressly authorize a bank to accept or pay checks drawn by an agent or fiduciary to his own order. It is generally held that where an agent draws checks on his principal’s account, payable to himself, and deposits them to his own account, the mere form of the transaction, in the absence of additional circumstances, is not sufficient to put [the] depositing bank on notice of the agent’s fraud.”
Michie states the rule is the same for trustees who withdraw money from a trust account and use it for their own purposes:
“A bank is liable when it has actual or constructive knowledge that a fraud is being or is about to be perpetrated by the fiduciary, and assists him in making a misappropriation of the trust funds. It is held that to render the bank liable it must have actually participated in the misappropriation, or with knowledge reaped some benefit therefrom .... A bank does not become a party to the diversion of an incompetent’s funds merely because money is withdrawn by checks made payable to the incompetent’s committee.” 5A Michie § 57e.
Michie’s statement of the law is supported by case law. In Empire Trust Co. v. Cahan, 274 U.S. 473, 71 L. Ed. 1158, 47 S. Ct. 661 (1927), a father had given his son power of attorney to draw checks for him at two banks. The powers of attorney had no pertinent restrictions in them. For two years the son drew checks against his father’s account, signing his father’s name by himself as attorney in fact. A number of these checks were made payable to the son’s order, and the son deposited them in his own accounts and eventually spent the money. The father sued one of the banks in which he had an account.
The trial court and the U.S. Second Circuit Court of Appeals held that the bank had sufficient notice that the son was misappropriating money that the bank should be held liable. The United States Supreme Court reversed, stating:
“The [bank] had notice that the checks were drawn upon the [father’s] account, but they were drawn in pursuance of an unlimited authority. We do not perceive on what ground the petitioner could be held bound to assume that checks thus lawfully drawn were required to be held or used for one purpose rather than another. . . . The notice to the bank was notice only of this [agency] relation of the parties. The [bank] in permitting the son to draw out the money was permitting only what it, like the [father’s] banks, would have been bound to allow even if the deposit had been earmarked as a trust.” 274 U.S. at 479.
In the end, the Court held that it would be impractical to put the burden on banks to check each agency transaction to make sure the agent is acting within his authority: “ ‘The transactions of banking in a great financial center are not to be clogged, or their pace slackened, by over-burdensome restrictions.’ ” 274 U.S. at 480 (quoting Whiting v. Hudson Trust Co., 234 N.Y. 394, 406, 138 N.E. 33 [1923]).
In Nashville Trust Co. v. Southern Buyers, Inc., 40 Tenn. App. 11, 288 S.W.2d 469 (1956), a corporation asserted a claim against a bank for allowing an agent of the corporation to draw checks on the corporation’s account in his own name. The Tennessee Court of Appeals held that the bank was not liable because the corporation had given the bank a signature card with the agent’s name on it, without any limitation. The court said,
“It is generally held that where an agent draws checks on his principal’s bank account, payable to himself, and deposits them to his own account, the mere form of the transaction, in the absence of additional circumstances, is not sufficient to put the depositing bank on notice of the agent’s fraud.” 40 Tenn. App. at 17.
In Dockstader v. Brown, 204 S.W.2d 352 (Tex. Civ. App. 1947), a sister had given her brother a power of attorney which included the power, “in my name, place and stead, to do any and every act, and exercise any and every power that I might, or could do or exercise through any other person, and that he shall deem proper or advisable, intending hereby to vest in him a full and universal power of attorney . . . .” The brother, pursuant to this power of attorney, sold an oil and gas interest in land in which his sister held an interest. After the sale of the interest, the brother, using his power of attorney, withdrew most of the proceeds for his personal use.
The sister sued the brother, the purchasers, and a bank, claiming the bank participated in the conversion by her brother of the money from the sale. The appellate court ultimately held that the bank was not liable. The court said that a bank may be liable for such a conversion when the bank has notice of the wrongdoing. 204 S.W.2d at 358-59. The court distinguished certain other cases in which banks had been held liable, because in those cases there were facts putting the banks on notice, i.e., repeated transactions, etc. The ultimate holding of this case is that a bank may be liable for conversion of funds by a trustee or attorney, but the facts must be such as to put a bank on notice of the conversion. 204 S.W.2d at 359.
In Grace v. Corn Exchange Bank Trust Co., 287 N.Y. 94, 38 N.E.2d 449 (1941), a trustee, over a period of six years, managed to waste and appropriate almost $450,000 from a trust account. He wrote 146 checks on the trust account and deposited them in his own account. The money was spent on the trustee’s personal business. The court stated:
“[I]f a bank connives with a trustee and knowingly assists the trustee to embezzle funds he holds as fiduciary, the bank is liable for the moneys embezzled just as any other person, who knowingly assists a wrongdoer, would be liable as a joint wrongdoer for a wrong so committed.” 287 N.Y. at 100-101.
The court explained the bank’s duties as follows:
“In considering the effect of this evidence we must constantly bear in mind that the bank was under no duty to exercise vigilance to protect the trust estate from possible embezzlement by the trustee. When it accepted the trust account in which the trust funds were deposited, it assumed the obligation to pay out the moneys deposited in accordance with the directions of the trustee. It assumed no other obligation. To establish joint liability of the bank for the derelictions of the trustee, the plaintiffs must prove that the bank gave to the wrongdoer such assistance as would make the bank a participant in the wrong.” 287 N.Y. at 102.
The court went on to discuss the fact that although the bank was aware that the trustee was shifting money to his personal account, the bank was not liable unless it appeared that the bank “knew that the trustee was engaged in embezzling trust funds by withdrawal of the trust money in the personal account in order to apply them to his own use . . . .” 287 N.Y. at 102. The court said that when a trustee withdraws funds in his own name, there is a presumption that he is applying them to a legitimate and lawful use. 287 N.Y. at 102. The appellate court ultimately upheld the trial court’s determination that the bank did have sufficient notice to constitute constructive knowledge and affirmed the judgment against the bank, largely because of the number of checks written.
In Cassel v. Mercantile Trust Company, 393 S.W.2d 433 (Mo. 1965), a trustee and executor withdrew money from the decedent’s checking account by cashing a series of checks to himself totaling $108,225. He did not use the money for trust or estate purposes. The successor trustee sued Mercantile, alleging that because of the series of transactions, it had sufficient knowledge that the trustee was breaching his duties to hold the bank liable. The court said that there are three ways in which a bank could incur liability for deposits misappropriated by a fiduciary:
“(1) by a violation on its part of the contract, express or implied, between it and the owner of the fund;
“(2) by appropriating the fund, either with or without the fiduciary’s consent, to the payment of the latter’s debt to the bank; and
“(3) by assisting the fiduciary to accomplish the misappropriation, the bank having knowledge, actual or constructive, that the fraud is being or is about to be perpetrated by the fiduciary.” 393 S.W.2d at 437.
The Missouri court went on to say that in order to state a claim for relief, the plaintiff must allege:
“(a) facts which show that the bank had knowledge of the trust character of the funds on deposit and that the fiduciary unlawfully withdrew and misappropriated trust funds;
“(b) facts sufficient to overcome the presumption in which the bank is entitled to indulge, namely that in withdrawing trust funds the fiduciary is acting lawfully and in the performance of his duties as a trustee, and that he will appropriate the money, when drawn, to a proper use;
“(c) facts which show, directly or by necessary inference, that the bank participated in the breach of trust in receiving or permitting the trustee to withdraw the trust funds, by receiving the deposit or permitting the withdrawal with notice of the breach of trust.” 393 S.W.2d at 437.
The court held that under the facts and Missouri rules for pleading, the plaintiff had failed to state a cause of action and affirmed the trial court’s dismissal.
In the case before us, Capitol Federal was presented with a power of attorney which it is agreed was signed by Tillie, its depositor. Martha Flanders was properly identified as being the Martha Flanders designated as attorney in fact. We conclude the request to cash the CD’s and the issuance of checks in the individual name(s) of the attomey(s) in fact was within the scope of the power of attorney. Capitol Federal had the right to assume the attorney in fact was acting lawfully in the performance of her agency duties and to honor the agent’s request that the checks be drawn in her own name and that of her husband, also an attorney in fact for Tillie. Capitol Federal had no knowledge the funds would be subsequently misappropriated by Flanders, nor did it participate in such misappropriation. Absent an act and acts amounting to participation in the wrongdoing, Capitol Federal’s issuance of the checks in the name(s) of the attorney(s) in fact imposes no liability on Capitol Federal.
We find no error in the district court’s entry of summary judgment in favor of Capitol Federal relative to this issue.
PROCEDURAL ERROR
On January 10, 1991, Capitol Federal filed its motion for summary judgment with accompanying statement of uncontroverted facts and memorandum. On January 24, 1991, the estate filed its response thereto and a cross-motion seeking summary judgment with an uncontroverted statement of facts attached. On January 31, 1991, a hearing was held on both motions for summary judgment. At the close of the hearing, the court indicated it had made up its mind on the motions and there was a discussion of whether a memorandum decision would need to be written. Counsel agreed a written decision was needed because there would be an appeal. There was some additional discussion at the end of the hearing concerning the fact that Capitol Federal had not filed a response to the estate’s memorandum of uncontroverted facts. As will be recalled from the time frame involved herein, the estate’s cross-motion for summary judgment was filed only five business days before the hearing on both motions. Supreme Court Rule 141 (1991 Kan. Ct. R. Annot. 117) grants an opposing party 21 days to respond thereto. Thus, the time had not expired for the filing of this response.
It is unclear whether Capitol Federal expressly waived the filing of a response, but certainly Capitol Federal did not contemplate filing a response. None was filed. The district court issued its memorandum decision on or about February 19, 1991, granting summary judgment to Capitol Federal.
On appeal, the estate contends Capitol Federal’s failure to file a response to the estate’s uncontroverted statement of facts admits all such alleged facts. It cites Rule 141, which provides that failure to respond is an admission of the uncontroverted facts.
Hearing the motion prior to the expiration of the time for response or the filing of a response is at variance with Rule 141. However, a careful review of the hearing transcript, both parties’ statements of uncontroverted facts (including the estate’s response), the district court’s memorandum opinion, and the issues involved therein and in this appeal convinces us that no reversible error has been shown.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Lamacey Woods from his convictions of one count of sale of cocaine, one count of aggravated assault, two counts of aggravated battery, and two counts of aggravated kidnapping.
Woods’ appeal centers on the trial court allowing the State to amend the complaint and on the contention his convictions for aggravated assault and aggravated battery are multiplicitous with his two convictions for aggravated kidnapping.
Woods originally was charged with six counts. Counts one and two (aggravated kidnapping and aggravated battery) occurred on September 7, 1989. The remaining four counts (aggravated kidnapping, aggravated battery, and two counts of aggravated assault) arose on September 11, 1989. Charles Green, who was 14 years of age in September 1989, was the alleged victim in all six counts.
A second complaint was filed alleging Woods sold cocaine on August 16, 1989.
Separate preliminary hearings were held on the two complaints, and Woods was bound over for trial on all counts of both complaints.
The State then filed an amended complaint, consolidating the two complaints containing the seven counts on which Woods had already been bound over for trial. The State added a new count to the amended complaint, charging Woods with a new charge of conspiracy to commit the crimes of sale of cocaine, possession of cocaine with the intent to sell, possession of cocaine, theft, aggravated kidnapping, aggravated battery, aggravated assault, and terroristic threat. The conspiracy count is 6 pages long and has 21 separate “overt acts.”
The State then filed a motion to permit the State to proceed on the amended complaint. That motion was granted the same day Woods was given a preliminary hearing on all counts of the amended complaint. Woods was bound over for trial on all eight counts. At trial, Woods was acquitted of conspiracy and one count of aggravated assault on September 11, 1989. This appeal followed.
1. Amended Complaint
Woods argues that allowing the complaint to be amended violated K.S.A. 22-3201(4). The statute provides that “[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
Woods argues that the trial court interpreted the statute to mean that a complaint may be amended, even by adding a new charge, providing the defendant’s substantial rights are not prejudiced. Woods contends this is contrary to the plain language of the statute that permits an amendment only “if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
Woods acknowledges there is case law supporting the trial court’s interpretation of the statute. The defendant argues that to the extent State v. Niblock, 230 Kan. 156, 631 P.2d 661 (1981), and State v. Osburn, 216 Kan. 638, 533 P.2d 1229 (1975), contradict the express language of K.S.A. 22-3201(4), these cases should be overruled.
In Niblock, the defendant originally was charged with aggravated robbery, felony theft, and unlawful possession of a firearm. Without notice to the defendant, the complaint was amended 10 days after its filing to include one count of aggravated assault.
In response to the defendant’s contention that the trial court erred in permitting the amendment, this court set forth the following guidelines:
“The inquiry under the statute is whether prejudice has occurred to the appellant. State v. Smith, 225 Kan. 796, 798, 594 P.2d 218 (1979). ‘Prior to trial, the prosecution is given wide discretion in amending the information as to form and substance.’ State v. Foy, 227 Kan. 405, 408, 607 P.2d 481 (1980). The statute does not explicitly require that a hearing be held prior to the decision to amend a complaint. The absence of such a hearing is not error. It was not error to allow the prosecutor to add a different crime, and appellant fails to show that he was prejudiced, which he must do in order to obtain reversal on those grounds. See State v. Johnson, 223 Kan. 185, 573 P.2d 595 (1977); State v. Gilley, 5 Kan. App. 2d 321, 615 P.2d 827, rev. denied 228 Kan. 807 (1980); State v. Wright, 4 Kan. App. 2d 196, 603 P.2d 1034 (1979), rev. denied 227 Kan. 928 (1980).” 230 Kan. at 163.
Woods contends this “holding is contrary to the clear language of the statute and totally unsupported by the case law relied upon by the Supreme Court in Niblock.”
In State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979), a case cited in Niblock, the issue was whether the amended complaint prejudiced the defendant. Woods argues that the Smith court did not suggest “the only inquiry under K.S.A. 22-3201(4) is prejudice if an additional or different crime is charged.” The court’s language does not support Woods’ argument.
“The appellant argues he should have been afforded a new preliminary hearing on the amended information. He acknowledges the crime charged remained the same but contends he was confronted with an entirely different set of facts to defend.
“K.S.A. 1978 Supp. 22-3201 provides in pertinent part:
‘(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.’
As a general rule prior to the commencement of the trial the prosecutor should be given wide discretion in amending the original information. A trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment and plea before commencement of the trial. State v. Osburn, 216 Kan. 638, 641, 533 P.2d 1229 (1975). The inquiry under the statute is whether or not the circumstances of each case reflect prejudice to the defendant. Where the record fails to establish prejudice to the defendant’s substantial rights, amendment at any time before the verdict is proper. State v. Howard, 224 Kan. 208, 211, 579 P.2d 702 (1978); see also State v. Johnson, 223 Kan. 185, 190, 573 P.2d 595 (1977).” 225 Kan. at 798.
Woods also claims that the cases cited in Smith do not support the Smith court’s interpretation of K.S.A. 22-3201(4). The premise of Woods’ argument is that State v. Osburn, 216 Kan. 638, State v. Howard, 224 Kan. 208, 579 P.2d 702 (1978), and State v. Johnson, 223 Kan. 185, 573 P.2d 595 (1977), did not involve a situation in which the amendment to the complaint was a new or different charge.
In Osburn, the defendant appealed his conviction for possession of heroin, alleging that the trial court erred in refusing “to instruct on the procuring agent defense.” 216 Kan. at 638. This court remanded the case for a new trial. The State then filed an amended complaint. The State deleted the words “and sell” from the original complaint charging that the defendant did “possess, have under his control and sell a narcotic drug, to-wit: heroin.” 216 Kan. at 639. The State also dismissed the conspiracy to sell cocaine charge. The trial court overruled the defendant’s motion to quash the amended complaint. The defendant then was arraigned. A jury trial was waived, and the case was tried to the bench. The defendant was found guilty of possession of heroin. This court said:
“The decisions of this court support the rule that prior to the commencement of the trial the prosecutor should be given a wide discretion in amending the original information. We have consistently held that a trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment and plea before commencement of the trial. (State v. Morris, 131 Kan. 282, 291 Pac. 742 [1930]; State v. Hobl, 108 Kan. 261, 194 Pac. 921 [1921].) Our cases distinguish between amendment before trial and those which are made during the course of the trial. (State v. Eye, 161 Kan. 69, 166 P.2d 572 [1946].) In permitting the state to amend an information the courts have been careful to protect the rights of the defendant so that his defense will not be prejudiced by the amendment. Permission granted by a trial court to amend an information after a plea of not guilty and before the jury has been sworn to try the case does not constitute reversible error in the absence of any reasonable contention or any showing that the interests of the defendant were thereby prejudiced. (State v. Eye, supra.)” 216 Kan. at 641.
In Howard, the defendants argued that the amended complaint prejudiced their substantial rights. This court stated that “[t]he inquiry under the statute is whether or not the circumstances of each case reflect prejudice to the defendant. [If] the record fails to establish prejudice to the defendant’s substantial rights, amendment any time before the verdict is proper.” 224 Kan. at 211.
Woods places heavy emphasis on Johnson. In Johnson, this court accepted the State’s argument that the amendment did not involve a new or different crime. This court noted that a new or different crime is not the only statutory consideration. K.S.A. 22- 3201(4) also considers whether the defendant’s substantial rights have been prejudiced. 223 Kan. at 190. Woods implies that the Johnson court acknowledged the two-prong statutory test.
Additionally, Woods contends that the broad language in State v. Foy, 227 Kan. 405, 607 P.2d 481 (1980), another of the cases cited in Niblock, should be disregarded. The Foy court stated that “[p]rior to trial, the prosecution is given wide discretion in amending the information as to form and substance. State v. Smith, 225 Kan. 796, 798, 594 P.2d 218 (1979).” 227 Kan. at 408. Woods maintains that attention should be focused on the specific language in the case.
Woods claims that State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987), and State v. Scherer, 11 Kan. App. 2d 362, 721 P.2d 743 (1986), are similar to the case at hand and support his position. In Wilson, the State attempted orally to amend a defective complaint during trial. The complaint was defective because it failed to charge any degree of criminal homicide. On appeal, this court held that the State failed to amend the complaint properly. “Here, an amendment to charge an offense could not have been made without charging an ‘additional or different crime.’ An information which does not charge any offense cannot be amended over defense objection to first charge an offense during trial.” 240 Kan. at 608. In Scherer, the Court of Appeals voided 285 separate offenses added by the State to the information. In so doing, the court emphasized the if no additional or different crime is charged language. 11 Kan. App. 2d at 369-70.
The complaints in both Wilson and Scherer were amended during trial. What Woods does not discuss and what is critical to a number of cases, including Wilson and Scherer, is that this court has “distinguished] between amendments before trial and those which are made during the course of the trial.” Osburn, 216 Kan. at 641. Furthermore, in State v. Ferguson, 221 Kan. 103, 105, 558 P.2d 1092 (1976), this court stated that K.S.A. 22-3201(4) governs “[a]mending an information during the course of trial.” (Emphasis added.)
Although the statutory language has changed since the inception over a century ago of statutory authorization to amend a complaint, this court consistently has given the State considerable latitude in amending a complaint before trial. A liberal interpre tation does not contradict the express language of the statute: K.S.A. 22-3201(4) does not forbid a court from differentiating between allowing the State to amend complaints before trial and during trial.
The State points out that the prosecutor could have dismissed both pending cases and filed a new case, incorporating the charges in the dismissed cases along with any new charges. Then, a new preliminary hearing would have been conducted. The defendant could be bound over on any crimes, charged or not charged, for which there was probable cause to believe the defendant had committed. See State v. Pioletti, 246 Kan. 49, 785 P.2d 963 (1990).
We see no reason to depart from the principle that the. State has discretion to amend a complaint before trial and that error will be found only if the defendant’s substantial rights are prejudiced. The defendant’s rights were protected here by a hearing on the motion to amend the complaint and a new preliminary hearing. We find no error.
2. Prejudice Argument
K.S.A. 22-3203 governs consolidating separate complaints for trial: “The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.” K.S.A. 22-3202(1) establishes the guidelines for consolidating charges in the same complaint.
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
Woods argues that the alleged attacks upon Charles Green (i.e., the aggravated kidnapping, aggravated assault, and aggravated battery charges) and the sale of cocaine charge could not be joined under the statute. Woods contends the charges are not of the same or similar character. He claims the charges are not based upon the same act or transaction. The sale of cocaine charge was alleged: to have occurred on August 16, prior to the alleged attacks upon Green on September 7 and 11. Furthermore, there were no allegations that Green was involved in any manner in the sale of cocaine charge. Woods also maintains that the charges were not based on two or more actions or transactions connected together or constituting parts of a common scheme or plan. Woods argues that the State manufactured a conspiracy charge to tie the separate crimes and events together and to inject prejudicial evidence. By adding the conspiracy charge, Woods claims that .the State avoided showing that joinder of the attack and the sale of cocaine charges was proper under K.S.A. 22-3202 and -3203. '
The trial court held a hearing to determine whether to allow the amended complaint. Although the court did not discuss under which prong of K.S.A. 22-3202 joinder of all charges was proper, the court found “there are factual relationships alleged in counts one [conspiracy] and two [sale of cocaine] to the original six counts [attacks upon Green] brought in the Complaint/Informatior}-” Based upon this and other factors, the State’s motion to amend the complaint was granted.
The trial court also denied Woods’ motions to dismiss the conspiracy charge or to sever the conspiracy and sale of cocaine charges from the other six counts. The court ruled “that the type of evidence which is contemplated for presentation to a jury trial is of an overlapping nature among the eight counts.” The. court also commented upon the chronological sequence of events.
“In this Court’s understanding, the instance[s] all occurred within a reasonably brief period of time as alleged by the State, and this is a factor of some significance in the Court’s decision about severance, not only is there overlapping in evidence, but the chronology and the sequence of events that form the basis for the crimes alleged to have been committed by the defendant is highly pertinent and relevant to this Court’s decision.”
In State v. Wagner, 248 Kan. 240, 807 P.2d 139 (1991), this court discussed the scope of review.
“ ‘Whether a defendant may be tried on two or more complaints, informations, or indictments in a single trial rests in'the sound discretion of the trial court, within the guidelines established in: statute and case law, and its holding will not be disturbed on appeal absent a clear showing of abuse of discretion. Even if the trial court’s consolidation order is determined to be an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal.’ ” 248 Kan. at 242 (quoting State v. Walker, 244 Kan. 275, Syl. ¶ 1, 768 P.2d 290 [1989]).
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” 248 Kan. at 242 (citing State v. Martin, 237 Kan. 285, Syl. ¶ 1, 699 P.2d 486 [1985]):
The amended complaint alleged that Woods agreed with Sedrick Scott, Derrick Franks, Xeron Gaddy, Reba Phillips, Felix Williams, and others to commit or assist to commit “sale of cocaine, possession of cocaine with the intent to sell, possession of cocaine, theft as defined in K.S.A. 21-3701(d), aggravated kidnapping, aggravated battery, aggravated assault, and terroristic threat.”
The complaint stated that the following acts, among others, occurred:
1. On February 21, 1989, Gaddy possessed a stun gun and a .25 caliber Raven Arms at 2100 East 21st Street.
2. On April 6, 1989, Woods was stopped at the bus station. He possessed several guns, including an RG .38 Special and a Smith and Wesson .38 Special, and ammunition. Woods also had $2,312.00 in cash on him.
3. On April 10, 1989, in obtaining the release of his car, Woods gave 728 North Minnesota as his address.
4. On May 2, 1989, Woods was stopped. He had $1,931.24 cash on him.
5. On August 16, 1989, Woods sold cocaine from the curb of the 700 block of North Minnesota.
6. On August 29, 1989, Scott and Michael Williams possessed cocaine at the 700 block of North Minneapolis in a car registered to Woods.
7. On September 7, 1989, Woods gave Charles Green cocaine for Green to resell. On that same day, Woods, Scott, and others took or confined Green by force, threat, or deception at 734 North Minneapolis. Woods, Scott, and others beat Green, burned him with an iron, applied electrical current to his feet, and cut him with a razor. On September 7 to 8, Woods gave Green cocaine.
8. On September 11, 1989, Woods, Scott, Felix Williams, and others took Green by force, threat, or deception from 9th and Washington to 734 North Minneapolis. They threatened Green with a . 25 caliber semi-automatic pistol. They beat Green, burned him with an iron, applied electrical current to his feet, and cut him with a knife. Woods threatened Green with a .38 caliber revolver. Woods, Scott, Phil (LNU), and others possessed, among other things, one Ruger .22 caliber semi-automatic pistol, one Jennings .22 caliber semi-automatic pistol, one Smith and Wesson .38 special, two razor blades, and three irons.
The trial court did not abuse its discretion in finding that all eight counts were related factually. A reasonable person could find that these acts or transactions were in furtherance of a common scheme or plan to sell drugs and to “discipline” new recruits. Having so held, most of Woods’ arguments that joinder was prejudicial become moot. The defendant’s own testimony at trial furnished considerable support that a number of people were involved in a conspiracy to commit the crimes alleged.
We are troubled in this appeal, as in others, about whether the defendant has raised an issue. Here, the defendant’s brief includes an 11-line sentence that contains four clauses. The tenor of the sentence is that the amendment violates the language of K.S.A. 22-3201. One clause states this violation “permitted the state to a de facto joinder of charges and thereby shifted the burden to the defense to obtain severance of charges which had not yet been consolidated.” The defendant also mentioned this argument at oral argument. We find one other mention of this in the brief, but no attempt to brief it as an issue. If the defendant intended to raise this as an issue, he has failed to do so properly. In any event, the issue has no merit. The State’s motion to file the amended complaint was granted April 12, 1989, and the State had the burden on that motion. The defendant did not file a motion to sever until after that date. Obviously, the State should have filed its motion before it filed its amended complaint. Whether to permit the State to argue its motion under the facts was discretionary and resulted in no prejudice to the defendant because the State could have dismissed all the charges and refiled them. This would have put the defendant in the same position of which he erroneously complains.
3. Multiplicitous Allegations
Woods argues his conviction for aggravated assault and two counts of aggravated battery should be set aside on the grounds of multiplicity. The defendant claims the aggravated assault and aggravated battery charges are multiplicitous with the two counts of aggravated kidnapping.
“Multiplicity exists when the State uses ‘a single wrongful act as the basis for multiple charges.’ [Citation omitted.] Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. [Citation omitted.] . . . Offenses are also not multiplicitous when they occur at different times and different places, because they cannot then be said to arise out of a single wrongful act.” State v. Howard, 243 Kan. 699, 703, 763 P.2d 607 (1988).
See State v. Zamora, 247 Kan. 684, 694, 803 P.2d 568 (1990) (“Where offenses are committed separately and severally at different times and at difference places, they cannot be said to arise out of a single wrongful act.”); State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981) (same); Wagner v. Edmondson, 178 Kan. 554, 556, 290 P.2d 98 (1955) (“[T]he test for determining whether a continuous transaction results in the commission of but a single offense ... is determined by whether separate and distinct prohibited acts, made punishable by law, have been committed.”); see also Davis v. State, 210 Kan. 709, 713, 504 P.2d 617 (1972) (“[A] single motive for a series of acts does not necessarily result in a single crime.”).
Multiplicity in the crimes charged exists if the crimes charged are based on “a series of violent acts occurring] simultaneously.” State v. Cathey, 241 Kan. 715, 720, 741 P.2d 738 (1987); see State v. Smith, 245 Kan. 381, 392, 781 P.2d 666 (1989). This court has found offenses multiplicitous if the “defendant’s conduct constituted a single continuous transaction” or “one continuing unbroken act of force.” State v. Bishop, 240 Kan. 647, 653-54, 732 P.2d 765 (1987).
“We held a charge of aggravated assault to be multiplicitous with kidnapping in State v. Racey, 225 Kan. 404, 408, 590 P.2d 1064- (1979), and rape in State v. Lassley, 218 Kan. 758, 761-62, 545 P.2d 383 (1976). In both cases, however, the court found a single, continuous act. In Lassley, the victim was accosted in the living room of a home where she was babysitting. Lassley ordered her outside, grabbed her by the hair, pushed her down an alley, held a knife to her throat, took her to some nearby shrubs and raped her. We held that the defendant’s conduct constituted a single continuous transaction, a situation where there was a continuous act of force oh the part of the defendant. We distinguished that case from State v. James, 216 Kan. 235, 531 P.2d 70 (1975), where there was a break in the action — an assault at one place and a subsequent rape at another. The facts in Racey are somewhat similar to those in Lassley. Racey continually threatened the victim with a gun throughout the entire sequence of events. There was one continuing unbroken act of force. Thus, we concluded that Racey could not be convicted of both aggravated assault and kidnapping.” 240 Kan. at 653-54.
Multiplicity does not exist if an act of violence is intermittent or separate and wholly unrelated to the other acts of violence. State v. Bourne, 233 Kan. 166, 168, 660 P.2d 565 (1983). If there is a “break in the action” or if “offenses occurred at separate times and in separate places,” the charges are not multiplicitous. Bishop, 240 Kan. at 653-54; see State v. James, 216 Kan. 235, 531 P.2d 70 (1975).
The Bishop court distinguished its facts from Racey and Lassley. The court stated:
“Here, as in James, there was a significant break in the action. The aggravated assault was completed when the defendant and Brice entered the bedroom, pointed shotguns at the victims, and threatened to blow their heads off if they didn’t do as they were told. The victims were then bound with tape. Ms. D was taken, bound and by force, into the bathroom. One at a time, Brice and Bishop would come into the bathroom and fondle her. Still later, she was raped by Bishop, her resistance overcome by force or fear. The offenses of aggravated assault, taking and confining, and the subsequent rape were separate and distinct. The offenses occurred at separate times and in separate places. They were not a part of a single, continuous act, as in Lassley or Racey. There was no use or threatened use of the guns during the kidnapping or the rape. Since the offenses were not part of a single continuous act, we hold that the aggravated assault is not multiplicitous with the kidnapping or the rape.” 240 Kan. at 654.
Here, Woods was convicted of two separate offenses, aggravated kidnapping and aggravated battery, that arose out of events occurring on September 7, 1989. The State argues that based upon the facts of this case, these two crimes are not multiplicitous because they occurred at separate times and in separate places.
Green, who was 14 years of age, testified that the; following events occurred on September 7, 1989. Upon Woods’ instructions, Green went into a back room. He stated that he had “no other choice” but to obey Woods even though “[a]t,that time [he] knew that they were fixing to try to beat [him] up.” Green felt he had no way to resist. Additionally, Sedrick Scott and Phil were right behind him, and all were older and much larger. Scott and Phil started beating him. Woods, Scott,- and Phil told Green several times that they were going to kill him. Woods left the room and then came back with a sawed-off shotgun. Woods repeatedly loaded and unloaded the gun in front of Green. Then, Woods told Scott to tie up Green s hands. Green again was beaten and kicked. Woods then burned Green on his back with an iron. A jury could find that these events proved the crime of aggravated kidnapping.
Woods made Green crawl to the bathroom where Woods attempted to electrocute Green. When this failed, Green was taken back into the back room. Woods then stuck pieces of hangers into the sockets of an extension cord. The cord was plugged into the wall outlet. Woods used the devise to shock the bottoms of Green’s wet feet. Green also was cut on the arm with a razor blade. Salt then was poured into the cut and on the burns on his back. A jury could find that these events satisfied the elements for aggravated battery.
We conclude that the attempted electrocution was a “break in the action.” Although no specific time span is given, the violence to Green was perpetrated in different rooms at different times. Additionally, the events that occurred after Green was burned with the iron were not needed to prove the crime of aggravated kidnapping.
Woods also claims that his convictions of aggravated kidnapping, aggravated battery, and aggravated assault, arising out of events that occurred on September 11, 1989, are multiplicitous.
Green testified that the following events occurred on September 11, 1989. Green was at the Glitter Dome with friends. Scott came up to Green and put a gun in Green’s side. Scott told Green that Woods wanted to see him. Woods was waiting for Green outside. Scott, Phil, and another man were in the car. Woods drove Green to the house on North Minneapolis. While walking up to the house, Phil started hitting Green with a steel pole per Woods’ instructions. A jury could find that these events proved the crime of aggravated kidnapping.
The aggravated assault conviction is based upon Woods’ actions-with a .38 revolver. After the defendant entered the house, he immediately put one round in a .38 caliber handgun and spun the cylinder. He then cleared the gun and held it to Green’s head. Woods would ask a question and then pull the trigger. This was done four times. Woods then aimed the gun at the floor, pulled the trigger, and the gun discharged. An aggravated assault was complete at that time.
Green’s hands were tied, he was placed on the floor and, over a period of time, was beaten with fists and the butt of a shotgun. He was burned on his stomach and chest three times with an iron and stabbed with a knife. Following that, he was shocked repeatedly with an extension cord device. Although all of these events took place in the same room, they were not a part of a common scheme such as carrying out a sexual assault, a robbery, or an attempted murder. The defendant in this case clearly intended to commit the separate crime of aggravated assault and then to batter Green with various instruments unrelated to the handgun used in the aggravated assault. Under the facts of this case, the charges are not multiplicitous.
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The opinion of the court was delivered by
Six, J.:
This is an arbitration case arising from the effect of the Code of Arbitration of the National Association of Securities Dealers, Inc., (NASD) on a tort claim of retaliatory discharge asserted by a stockbroker against his employer.
The two controlling issues are: (1) whether the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. (1988), preempts K.S.A. 5-401, which prohibits the arbitration of tort claims; and (2) whether plaintiff Blaine Skewes’ retaliatory discharge claim arose out of or in connection with his employer’s “business” and, consequently, is subject to arbitration under the Uniform Application for Securities Industry Registration form (Form U-4).
Shearson Lehman Brothers, formerly known as Shearson Lehman Hutton, Inc., (Shearson) appealed the trial court’s order denying its motion to stay proceedings and compel arbitration of Skewes’ retaliatory discharge claim. In an unpublished opinion filed June 28, 1991, the Court of Appeals reversed and remanded for an order staying the judicial proceeding and compelling arbitration.
We granted Skewes’ petition for review.
We affirm the Court of Appeals, reverse the trial court, and hold that the FAA preempts the Kansas Uniform Arbitration Act. We also hold that under the facts of this case, Skewes’ retaliatory discharge claim arose out of or in connection with his employer’s “business” and is within the scope of the arbitration provision contained in the Form U-4.
Facts
Skewes was working for Shearson as a stockbroker. Shearson, terminated his employment. Skewes filed suit against Shearson, alleging that Shearson: (1) breached the employment contract; (2) wrongfully refused to allow his pension rights to vest and to pay him under the pension plan; and (3) discharged him in retaliation for filing a wage claim with the Kansas Department of Human Resources.
Shortly after Skewes began his employment, Skewes and Shear-son (by its agent, the Wichita office manager) executed a “Form U-4.” The Form U-4 contained the following provisions:
“I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, 'that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register, as indicated in Question 8.”
In Question 8, Skewes indicated that he was to be registered with the NASD.
Section 8(a) of the NASD Code of Arbitration Procedures (NASD Code) states in part:
“Any dispute, claim or controversy eligible for submission undér Part L of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), shall be arbitrated under this Code, at the instance of:
(1) a member against another member; [and]
(2) a member against a person associated with a member or person associated with a member against a member . . . .”
Section 1, Part I of the NASD Code provides:
“This Code of Arbitration Procedure is prescribed and adopted pursuant to Article VII, Section 1(a)(3) of the By-Laws of the National Association of Securities Dealers, Inc. (The ‘Association’) for the arbitration of any disputé, claim or controversy arising out of or in connection with the business of any member of the Association, with the exception of disputes involving the insurance business of any member which is also an insurance company:
(1) between or among members; [and]
(2) between or among members and public customers, or others.”
Shearson filed a motion to stay proceedings and to compel arbitration. In support of its motion, Shearson contended that Skewes’ claims arose out of his employment as a Shearson stockbroker and that he had agreed to arbitrate such claims under the rules of the New York Stock Exchange (NYSE) and NASD. Shear-son asserted that the FAA requires that the action be stayed and Skewes be compelled to arbitrate his claims. Shearson acknowledged that K.S.A. 5-401 excludes from arbitration contracts between employer and employees and tort claims; however, Shearson asserted that the FAA preempts the Kansas statute.
Skewes conceded that his pension benefits and breach of employment contract claims were subject to arbitration under the Form U-4 and that his employment involved interstate commerce.
Skewes contended that his retaliatory discharge claim was not subject to arbitration because K.S.A. 5-401 prohibits arbitration of tort claims. He asserts we have ruled that federal law does not preempt the Kansas arbitration statute.
Rulings of the Trial Court
The trial court granted Shearson’s motion to stay and compel arbitration as to all of Skewes’ claims except the retaliatory discharge claim. The trial court reasoned: (1) The claim of retaliatory discharge did not arise out of or in connection with Shearson’s business of selling securities and is not required to be arbitrated under the NASD Code, and (2) federal law does not preclude a retaliatory discharge state court action because the agreement between Shearson and Skewes is not intrinsically related to the tort. The trial court relied on Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988).
The Court of Appeals Opinion
The Kansas Court of Appeals reversed and remanded. It held first that the FAA preempted Kansas law restricting arbitration of tort claims and then reasoned that the retaliatory discharge claim was within the scope of the arbitration agreement, finding that the claim arose out of or in connection with Shearson’s business.
FAA Preemption — K.S.A. 5-401 — The Arbitration of Tort Claims
K.S.A. 5-401 provides:
“(a) A written agreement to submit any existing controversy to arbitration is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.
“(b) Except as provided in subsection (c), a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.
“(c) The provisions of subsection (b) shall not apply to: (1) Contracts of insurance; (2) contracts between an employer and employees, or their respective representatives; or (3) any provision of a contract providing for arbitration of a claim in tort.”
K.S.A. 5-401 invalidates arbitration clauses contained in employment contracts and clauses providing for arbitration of tort claims.
Shearson argues that the FAA preempts Kansas law and mandates that Skewes’ retaliatory discharge action be stayed and the claim submitted to arbitration. Thus, Shearson contends the trial court erred in relying on Coleman. We agree.
The FAA provides:
“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exists at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1988).
9 U.S.C. § 1 (1988) defines “commerce,” in part, as “commerce among the several States.” Section 1 also contains the following exceptions: “[B]ut nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Skewes argues that the arbitration clause in question is contained in a contract of employment involving interstate commerce, and, therefore, exempt from the FAA.
In Gilmer v. Interstate/Johnson Lane, 500 U.S. _, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991), the Supreme Court considered the argument that 9 U.S.C. § 1 excludes all employment contracts from the FAA in the context of an arbitration agreement contained in a Form U-4.
In affirming the Fourth Circuit, Justice White, speaking for a seven-member majority, stated the issue: “The question presented in this case is whether a claim under the Age Discrimination in Employment Act of 1967 . . . can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application.” 500 U.S. at _, 114 L. Ed. 2d at 35.
As required by his employment, Gilmer executed a Form U-4 with a clause requiring arbitration of “any dispute, claim or controversy” between him and his employer that is required to be arbitrated under the rules of the organizations with which he registered. 500 U.S. at _, 114 L. Ed. 2d at 35. Gilmer registered with the NYSE. The Court noted that the § 1 employment contract exclusion argument was not raised below or presented in the petition for certiorari. The Court stated that it would be inappropriate to address the scope of the § 1 exclusion because the arbitration clause was not contained in a contract of employ ment. “Rather, the arbitration clause at issue is in Gilmer’s securities registration application, which is a contract with the securities exchanges, not with [his employer].” 500 U.S. at _ n.2, 114 L. Ed. 2d at 36 n.2.
In the case at bar, Skewes did not raise the contract of employment argument below. In fact, he assumed a contrary position when he conceded his claims other than retaliatory discharge were required to be arbitrated. Gilmer holds that the § 1 exemption of the FAA is not applicable to arbitration clauses in the Form U-4, which contains the arbitration agreement at issue.
Section 3 of the FAA requires that an action brought in any “courts of the United States” upon any issue referrable to arbitration under a written arbitration agreement be stayed until such arbitration has been had. 9 U.S.C. § 3 (1988). Section 4 authorizes a party aggrieved by the failure of another to arbitrate under a written agreement to petition any “United States district court” having jurisdiction for an order compelling arbitration. 9 U.S.C. § 4 (1988).
Acknowledging the references to “courts of the United States” and “United States district court” in §§ 3 and 4 of the FAA, the United States Supreme Court has held that § 2 of the FAA applies in state courts and preempts state law requiring a judicial forum. Perry v. Thomas, 482 U.S. 483, 96 L. Ed. 2d 426, 107 S. Ct. 2520 (1987); Southland Corp. v. Keating, 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (1984).
The Court in Southland Corp. relied on Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983), stating, “[We reaffirm] our view that the Arbitration Act creates a body of federal substantive law’ and expressly stated what was implicit in Prima Paint [v. Flood of Conklin, 388 U.S. 395, 18 L. Ed. 2d 1270, 87 S. Ct. 1801 (1967)], i.e., the substantive law of the Act created was applicable in state and federal courts.” Southland Corp., 465 U.S. at 12. The Court then reasoned: “In creating a substantive rule applicable in state as well as federal courts, Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements.” 465 U.S. at 16.
The enforceability of the FAA is subject to two limitations only: (1) The arbitration act must be contained in a written maritime contract or a contract evidencing a transaction involving commerce as defined in § 1; and (2) the clause may be invalidated “upon such grounds as exist at law or in equity for the revocation of any contract” (9 U.S.C. § 2). The state may not impose additional limitations. 465 U.S. at 10-11.
Southland Corp. was applied in Perry v. Thomas, which involved facts similar to those in the case at bar. Thomas brought an action alleging breach of contract, conversion, civil conspiracy to commit conversion, and breach of fiduciary duty against his former employer, Kidder, Peabody and Co., and two of its employees, Perry and Johnston. The action arose from a dispute over the commissions on the sale of securities. After Thomas refused to submit the dispute to arbitration, the defendants sought to stay further judicial proceedings and to compel arbitration. The demands for arbitration were based on the arbitration provision found in the Form U-4 that Thomas had signed. The Thomas Form U-4 is identical to the Form U-4 signed by Skewes. However, Thomas had registered with the NYSE. Rule 347 of the NYSE was involved in Thomas rather than the NASD Code. Rule 347 provided in part: “ ‘[A]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party’ . . . .” 482 U.S. at 485.
The trial court in Thomas denied the defendants’ petition to compel arbitration, holding that § 229 of the California Labor Code authorized Thomas to pursue an action to collect wages without regard to private arbitration agreements. 482 U.S. at 486. The California Court of Appeals affirmed, and the California Supreme Court denied Thomas’ petition for review. 482 U.S. at 488-89. Relying on Southland Corp., the United States Supreme Court reversed and held that § 2 of the FAA preempts § 229 of the California Labor Code.
The trial court’s reliance, in the case at bar, on Coleman v. Safeway Stores, Inc., 242 Kan. 804, was misplaced. Coleman addressed whether the federal Labor Management Relations Act (LMRA) preempted state tort claims. We also referred in Coleman to the inappropriateness of arbitrating tort claims. 242 Kan. at 813-15.
Coleman is distinguishable from the instant case. The FAA was not involved in Coleman. The United States Supreme Court has limited preemption by the LMRA where the state tort law purports to define the meaning of the contract relationship. 242 Kan. at 811-12 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 85 L. Ed. 2d 206, 105 S. Ct. 1904 [1985]). The United States Supreme Court has not limited the preemption by the FAA. As to our reference in Coleman that arbitral procedures are comparatively inappropriate for the resolution of tort claims, we note that Thomas and Southland Corp. involved tort claims (fraud, breach of fiduciary duty) and that arbitration was required.
Tort claims such as defamation, negligence, fraud, invasion of privacy, and breach of fiduciary duty also have been held arbitrable under the FAA. See Zolezzi v. Dean Witter Reynolds, Inc., 789 F.2d 1447 (9th Cir. 1986) (defamation, invasion of privacy); Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163 (8th Cir. 1984) (slander); Block 175 Corp. v. Fairmont Hotel Management Co., 648 F. Supp. 450 (D. Colo. 1986) (breach of fiduciary duty, intentional or reckless breach of duty); Merrill Lynch, Pierce, Fenner & Smith v. Thomson, 574 F. Supp. 1472 (E.D. Mo. 1983) (breach of no-compete clause in employment contract); Merrill Lynch, Pierce, Fenner v. McCollum, 666 S.W.2d 604 (Tex. App. 1984) (tortious interference with contract), cert. denied 469 U.S. 1127 (1985).
In R. J. Palmer Constr. Co. v. Wichita Band Instrument Co., 7 Kan. App. 2d 363, 365, 642 P.2d 127 (1982), decided before Southland Corp. or Thomas, the Kansas Court of Appeals observed that the FAA applies in state courts as well as federal courts. The FAA requires state courts to enforce an arbitration clause despite contrary state policy.
Southland Corp. and Thomas teach that the FAA preempts conflicting state law which exempts enforcement of arbitration agreements involving interstate commerce. Under the facts of the case at bar, K.S.A. 1990 Supp. 5-401, which prohibits the arbitration of tort claims, is preempted by the FAA.
Retaliatory Discharge — The Scope of The Arbitration Provision Contained in the Form U-4
Resolution of the retaliatory discharge/arbitration issue requires interpretation of the arbitration clause contained in the Form U-4 and the NASD code referred to in the Form U-4. The Form U-4 has been adopted by the Kansas Securities Commissioner. K.A.R. 81-2-1(1).
“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.” Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).
In the Form U-4, Skewes agreed to arbitrate “any dispute, claim or controversy that may arise between me and my firm . . . that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register, as indicated in Question 8.” (Emphasis added.) Skewes indicated in Question 8 that he was to be registered with the NASD. Therefore, we must determine whether the rules, constitutions, or by-laws of the NASD require Skewes’ retaliatory discharge claim to be arbitrated.
Section 1 of the NASD Code provides for the arbitration of any “dispute, claim or controversy arising out of or in connection with the business of any member ... (1) between or among members; [and] (2) between or among members and public customers, or others.” (Emphasis added.) Section 8 requires arbitration of disputes defined in section 1 “between or among members and/or associated persons . . . arising in connection with the business of such member(s) or in connection with the activities of such associated person(s) ... at the instance of: (1) a member against another member; [and] (2) a member against a person associated with a member or a person associated with a member against a member.” (Emphasis added.)
The trial court held that Skewes’ claim for retaliatory discharge did not arise out of or in connection with Shearson’s business, which is selling securities. Therefore, the claim was not within the scope of the arbitration agreement.
Shearson argues that Skewes’ retaliatory discharge claim arises out of or in connection with Shearson’s business. Shearson disagrees with the trial court’s narrow interpretation. Shearson as serts its business is not limited to buying and selling securities but, as with any other employer, includes dealings with employees. We agree.
Skewes contends that the Form U-4 and the NASD Code are ambiguous. He reasons that any person signing the Form U-4 would understand that only disputes involving securities are required to be arbitrated. Skewes further contends that Gilmer suggests that compulsory arbitration should only be permitted in labor disputes where the arbitration clause explicitly applies to disputes arising from the employer/employee relationship. Skewes emphasizes that the NASD rules do not include any provision comparable to Rule 347 of the NYSE, which was dispositive of the Gilmer arbitration issue.
In Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. at 24-25, the Supreme Court stated: “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”
Skewes is correct in asserting that Gilmer involved NYSE Rule 347, which is more specific than §§ 1 and 8 of the NASD Code. Rule 347 specifically refers to disputes “arising out of the employment or termination of employment” of a registered representative. However, Gilmer does not suggest that a less specific arbitration clause is invalid.
Skewes’ argument supporting a narrow interpretation of the NASD Code has been unsuccessfully advanced recently by similarly situated plaintiffs.
In Singer v. Jefferies & Co., Inc., 78 N.Y.2d 76, 571 N.Y.S.2d 680 (1991), New York’s highest court, speaking through Chief Judge Wachtler, endorsed a broad interpretation of the NASD Code. Singer, the plaintiff, had worked for the defendant, Jefferies & Co. (the firm). The firm was a member of the NASD. A Form U-4 was involved. The arbitration language interpreted was the same as that before us in the case at bar. Singer, as a senior vice-president and manager of the firm’s corporate finance department, at the direction of Jefferies, the CEO, signed a $3 million invoice sent to Ivan F. Boesky for “investment, advisory and corporate finance services.” Boesky pled guilty to illegal stock market activities. The $3 million bill was actually intended to cover an investment loss. Jefferies was charged criminally with aiding and abetting and pled guilty. Singer, who had left the firm, was never charged; however, he did receive a summons from the Securities and Exchange Commission which was investigating Boesky’s financial dealings with the firm. Singer sued the firm, alleging that he had been ordered to prepare the fraudulent invoice without knowledge of the true facts. He also asserted that he was made to appear to be a party to the crime and that this caused him to suffer damage to his finances and professional reputation.
The firm claimed that the dispute was subject to arbitration. The trial court agreed; the appellate division did not. Singer contended that the dispute was not arbitrable because it arose out of illegal activity and not out of the lawful business of the firm. The appellate division accepted Singer’s interpretation, noting that “the business of Jefferies & Company, and of the individual defendant, was stocks, not fraud.” 78 N.Y.2d at 82. Upon review, the Court of Appeals rejected the narrow interpretation, noting, “Under prevailing Federal law the wrongful conduct must involve ‘significant aspects’ of the employment or the employer’s business activities [citations omitted].” 78 N.Y.2d at 83.
The Singer court, in holding that Singer’s claim for injury to reputation resulting from the firm’s use of him as an unwitting pawn in a securities fraud was subject to arbitration, stated: “To hold that such a dispute does not arise out of the firm’s business is unrealistic and inconsistent with the Federal policy requiring liberal, indeed generous, interpretation of arbitration agreements [citation omitted].” 78 N.Y.2d at 84.
The Singer court, in analyzing the NASD Code, noted:
“Congress adopted the [FAA] to insure that the courts would rigorously enforce private agreements to arbitrate (Dean Witter Reynolds v. Byrd, 470 U.S. 213, 219, 221) and it establishes an ‘emphatic’ national policy favoring arbitration which is binding on all courts, State and Federal [citations omitted]. Pursuant to the Arbitration Act, ‘questions of arbitrability must be addressed with a healthy regard for the federal policy * * * [and] any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration’ [citations omitted].” 78 N.Y.2d at 81-82.
In Madden v. Ellspermann, 813 S.W.2d 51 (Mo. App. 1991), the NASD Code received a broad characterization. Madden, the stockbroker plaintiff, sued his former brokerage firm employer, Kidder, Peabody & Co., Inc., and its office manager, Ellspermann, for breach of contract, wrongful termination, and misappropriation of commissions. Madden had been terminated because he failed to notify Kidder, Peabody that he was purchasing an interest in a savings and loan. Again, the NASD Code language we are required to interpret in the case at bar was involved. Madden advanced the narrow interpretation asserted by Skewes. Madden argued that the NASD Code does not cover disputes arising out of private affairs. Madden contended that his purchase of an interest in the savings and loan was personal business not connected with Kidder, Peabody; therefore, the reason for his termination was unconnected with the business of Kidder, Peabody. The Missouri Court of Appeals stated:
“This argument overlooks the fact that the employment of Madden by Kidder, Peabody to conduct its business is a matter arising out of and in the course of business of Kidder, Peabody. In like manner the termination of Madden’s employment is a matter arising out of and in connection with the business of Kidder, Peabody. The reason given for the termination, even if related to a non-business subject, is unimportant. The essential ingredient is the termination of employment which is a matter arising out of the business of Kidder, Peabody.” 813 S.W.2d at 54.
Francis v. Marshall, 661 F. Supp. 773 (D. Mass. 1987), interpreted the scope of §§ 1 and 8 of the NASD Code. The court in Francis was urged to interpret the “business of any [NASD] member” narrowly to involve only the purchasing and selling of securities on the over-the-counter markets. The court, disagreed, noting that § 1 is broad on its face.
“The arbitration clause does not refer to the ‘operation’ of a securities business. Rather, it covers ‘any dispute’ arising ‘in connection with’ an NASD member’s business. For example, the clause is certainly broad enough to cover a dispute between an NASD member and an employee, not stemming from the purchase and sale of securities.” 661 F. Supp. at 775.
The Francis court held that “the business” of an NASD member securities firm includes the firm’s purchase and sale as a corporate entity.
Nelsen v. Colleary, 152 Misc. 2d 81, 574 N.Y.S.2d 912 (1991), involved a plaintiff stockbroker suing her employer, Chase Securities Inc. The Form U-4, the NASD Code, termination of plaintiff’s employment, and a claim of “harassment and humiliation denigrating [plaintiff’s] sex and religion” in violation of the New York State Human Rights Law were also involved. The Nelsen court emphasized the public policy favoring arbitration in holding that plaintiff’s claims were within the intent of the Form U-4 and the NASD arbitration agreement.
Between the dates of our acceptance for review and oral argument, Skewes requested that Higgins v. Superior Court, 234 Cal. App. 3d 1464, 1 Cal. Rptr. 2d 57 (1991), be added to his petition for review. Counsel for Shearson was granted leave to respond to Higgins. Skewes followed Shearson’s response with a supplemental brief addressing Higgins.
The California Supreme Court denied a petition for review and ordered Higgins decertified for publication. Higgins v. Superior Court, B057028 (Cal. S. Ct. January 8, 1992). Therefore, we will not consider Higgins in resolving the case at bar.
A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala. 1990), construed §§ 1 and 8 of the NASD Code. Clark, a stockbroker, filed a defamation action against another stockbroker, Thompson, and A.G. Edwards, Thompson’s employer, alleging Thompson made defamatory remarks about Clark which were repeated in an A.G. Edwards advertisement. When Clark associated with his employer (Clark was never employed by A.G. Edwards), he had signed a Form U-4 and listed NASD as the organization he would be registered with.
Thompson admitted that he and Clark had never had any business dealings. There had never been any dispute between the two men about any securities transaction or any investment banking transaction. Thompson and A.G. Edwards moved the trial court for an order compelling arbitration. The trial court denied the motion. Both defendants appealed.
The Alabama Supreme Court affirmed, holding that Clark’s claim did not arise out of the business of A.G. Edwards. The Clark court focused on the title to Part II, where § 8 is found, labeled “Industry and Clearing Controversies,” and determined § 8 was intended to apply only to disputes relating to the se curities business. The “business” of the members is the trading of securities. The defamatory remarks had some relation to Clark’s business as a stockbroker but did not arise out of or in connection with any business between Clark and A.G. Edwards or Thompson. The Alabama Supreme Court emphasized the nonemployment factual scenario of Clark by stating:
“This is not a case like those cited by the defendants wherein the plaintiff was either an employee or a former employee of the defendant or was involved in business transactions with the defendant. Perhaps if these remarks had occurred in the context of business dealings involving the defendants and Clark, the matter might have to be arbitrated under the language of the NASD Code, but that scenario is not the case before us. It is undisputed that Clark and the defendants had had no business dealings with each other.” 558 So. 2d at 364.
A significant factual distinction exists between Clark and the instant action. The facts in Clark do not provide the “scenario” that is before us in the case at bar. The tort of defamation in Clark occurred in the absence of any business dealings between Clark and Thompson or A.G. Edwards. Skewes was an employee of Shearson; Clark was neither an employee of A.G. Edwards, nor had he had any business dealings with A.G. Edwards or Thompson.
Skewes’ termination of employment occurred in the context of business dealings. Skewes alleges in his petition he was given 90 days to raise his projected annual volume. Shearson answered by admitting Skewes was advised to increase his production for the months of July, August, and September and that his failure to improve his production could result in termination. Skewes contends he was terminated not because of low sales production but rather in retaliation for filing a wage claim.
Shearson’s business is selling securities. Skewes was employed by Shearson to sell securities. Thus, Shearson’s employment of Skewes arose out of or in connection with Shearson’s business. Likewise, Shearson’s termination of Skewes’ employment also arose out of or in connection with Shearson’s business. Skewes’ claim of retaliatory discharge alleges he was terminated for reasons unrelated to the sale of securities; however, we acknowledge the signal from Moses H. Cone Hospital, 460 U.S. 1, to resolve any doubts in favor of arbitration. We hold that Skewes’ claim for retaliatory discharge arose out of or in connection with Shearson’s business. Thus, the claim fell within the arbitration agreement. Skewes’ retaliatory discharge action must be stayed and the claim submitted to arbitration.
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The opinion of the court was delivered by
Holmes, C.J.:
This is a medical malpractice case based upon alleged acts of negligence by Robert T. Tenny, M.D. Plaintiff, Marsha A. Martindale, originally filed suit naming as defendants Robert T. Tenny, M.D., P.A., a professional corporation, and Midwest Neurosurgery Associates, a business association not specifically described. The named defendants (hereafter the corporate defendants) filed motions for summary judgment asserting that K.S.A. 40-3403(h) precluded any recovery against them based upon vicarious liability. The trial court sustained defendants’ motions for summary judgment. Martindale timely appeals the trial court order granting summary judgment in favor of the corporate defendants.
At the time summary judgment was granted the corporate defendants, the trial court allowed Martindale to amend her petition to name Robert T. Tenny, M.D. as an individual defendant. After Martindale amended her petition asserting a cause of action against Dr. Tenny individually, he filed a motion for summary judgment, claiming the statute of limitations had run as to him. The trial court denied his motion for summary judgment, and Dr. Tenny timely cross-appeals from that order.
The facts relevant to the issues on appeal are not in dispute. On September 8, 1981, Marsha A. Martindale sought medical attention for tingling in her left hand and pain in her left arm. She was referred to Midwest Neurosurgery Associates, where Dr. Tenny examined her. On September 20, 1981, Dr. Tenny admitted Martindale to Shawnee Mission Medical Center for exploratory surgery. On September 23, 1981, Dr. Tenny performed surgery on Martindale, involving exploration of the brachioplexus, lysis of adhesions, and resection of a portion of her left first rib. On September 27, 1981, the hospital released Martindale. However, she continued to experience pain in her left shoulder, emanating from her left collarbone. Martindale contends she now suffers from chronic shoulder pain and disability.
On September 22, 1983, within the applicable statute of limitations, Martindale, pursuant to Supreme Court Rule 142 (1991 Kan. Ct. R. Annot. 119) and the Medical Malpractice Screening Panel Act, K.S.A. 65-4901 et seq., filed pleadings with the district court requesting that a medical malpractice screening panel (hereafter “the panel”) be convened to review her claim.
Nearly five years later, on July 20, 1988, the panel issued its opinion. The record does not disclose any reason for the unusually long delay. The panel concluded, in part:
“[TJhere was a departure from the applicable standard of care which, within reasonable medical certainty resulted in non-union of the clavicle.
“a. It is the opinion of the panel that the standard practice for neurosurgeons in this community, where transection of the clavicle is indicated, is to obtain consultation of an orthopedic specialist at or immediately following the surgery. The materials submitted by the parties indicate that, empirically, where there is proper orthopedic management following severance of the clavicle, the incidence of non-union is relatively small. (See materials cited. Para. 1(e) & (f) above). Immediate post operative orthopedic management under such circumstances however, is standard practice in this community.
“b. It is the further opinion of the panel that orthopedic consultation would have resulted in efforts in the immediate post operative period to monitor the reunion of the transection by x-rays, to brace or immobilize the structure and to avoid premature use or exercise. (See Articles cited Para. 1 (e) & (f) above). Such measures would probably have resulted in reunion.”
On August 12, 1988, Martindale filed a medical malpractice petition in the District Court of Johnson County naming Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates as defendants. Although Dr. Tenny was referred to in the body of the petition as a defendant, it did not name Dr. Tenny, individually, as a defendant in the caption. K.S.A. 60-210(a). On August 17, 1988, two summonses naming Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates were personally served on Dr. Tenny as agent for those defendants. No attempt was made to secure a summons for, or to serve, Dr. Tenny personally.
On September 6, 1988, Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates filed answers wherein they raised several affirmative defenses. Defendants asserted that Martindale’s claims against each of the two named defendants were barred by the statute of limitations, that Dr. Tenny was not included as a defendant in the petition, and that any claims Martindale intended to assert against Dr. Tenny, in his individual capacity, would also be barred by the statute of limitations. Defendants further asserted that as Martindale’s claims against the corporate defendants were based solely on the theory of vicarious liability, the petition failed to state a claim upon which relief could be granted because vicarious liability against health care providers had been abrogated by K.S.A. 40-3403(h).
On May 30, 1990, the corporate defendants filed motions for summary judgment. Plaintiff timely filed a response. On October 2, 1990, the district court heard oral arguments on defendants’ motions and granted their motions for summary judgment. The trial court held that K.S.A. 40-3403(h) abrogated vicarious liability for all health care providers who came within the terms of the statute and precluded any cause of action against Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates based solely upon vicarious liability. The court further noted that the petition in this case was filed in 1988, that K.S.A. 40-3403(h) became effective “sometime in 1986,” and that the “clear and unambiguous” language of K.S.A. 40-3403(h) provided that all claims filed on or after the effective date of the act were subject to the act.
The trial court then sustained Martindale’s oral motion to amend her pleadings to name as a defendant Dr. Tenny in his individual capacity.
A journal entry was filed, granting defendants’ motions for summary judgment and granting Martindale’s motion for leave to file an amended petition naming Dr. Tenny, individually, as a defendant. On October 10, 1990, Martindale filed an amended petition naming Dr. Tenny as a defendant and on October 24, 1990, Dr. Tenny filed an answer asserting, inter alia, that the claims against him were barred by the statute of limitations.
On November 2, 1990, Dr. Tenny filed a motion for summary judgment, alleging that the two-year and four-year statutes of limitation set forth in K.S.A. 60-513(a)(7) and K.S.A. 60-513(c) barred the action against him. Martindale responded by filing a memorandum in opposition to defendant’s motion for summary judgment. On November 29, 1990, the trial court heard oral arguments on the motion, and summary judgment in favor of Dr. Tenny was denied.
The journal entry denying Dr. Tenny’s motion was filed March 5, 1991. The district court further found, pursuant to K.S.A. 1990 Supp. 60-2102(b), that its order involved controlling questions of law to which there was substantial ground for difference of opinion and that an immediate appeal from the order would materially advance the ultimate termination of the litigation. The district court ordered all proceedings stayed pending appeal.
Subsequently, the Kansas Court of Appeals granted permission for an interlocutory appeal from the district court’s orders. Mar tindale appeals from the district court’s October 10, 1990, order granting summary judgment to the corporate defendants. Defendant Tenny cross-appeals from the order dated November 29, 1990, denying his motion for summary judgment.
This case was transferred to the Kansas Supreme Court pursuant to K.S.A. 20-3018(c).
We turn first to the appeal of the plaintiff in which the single broadly stated issue is whether the trial court erred in granting summary judgment to the two corporate defendants, Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates.
In granting summary judgment in favor of the corporate defendants, the trial court ruled that the action was barred by K.S.A. 40-3403(h). The statute provides:
“A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or'the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act. [July 1, 1986;]” (Emphasis added.)
In doing so, the trial judge stated:
“[T]his cause of action was filed August 12, 1988. I’m going to rule, as a matter of law, that K.S.A. 40-3403(h) is clear and unambiguous, and that section provides that all claims filed on or after the effective date of the act are subject to that act.”
The trial court, under the facts of this case, apparently interpreted “claims filed” to mean the filing of a petition for damages in a civil court action.
In interpreting a statute, certain basic principles apply.
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. State, ex rel., v. Unified School District, 218 Kan. 47, 49, 542 P.2d 664 (1975). It is a fundamental rule of statutory construction to which all other rules are subordinate that the intent of the legislature governs when that intent can be ascertained. State v. Sexton, 232 Kan. 539, 657 P.2d 43 (1983).” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
“When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Randall v. Seemann, 228 Kan. 395, Syl. ¶ 1, 613 P.2d 1376 (1980).
Defendants correctly argue, and plaintiff does not dispute, that K.S.A. 40-3403(h) abrogated the common-law doctrine of vicarious liability in medical malpractice cases involving multiple health care providers qualified for coverage under the health care stabilization fund (Fund). Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates allege they were health care providers qualified for coverage under the Fund at the time of Martindale’s injuries and plaintiff does not dispute their contention. Nor is it disputed that Dr. Tenny, individually, was a health care provider with coverage under the Fund. Further, defendants point out that no independent acts of negligence were alleged by Martindale against the corporate defendants and that the only asserted causes of action against them are based upon the theory of vicarious liability under the doctrine of respondeat superior.
The issue is not whether K.S.A. 40-3403(h) abrogates vicarious liability for health care providers but whether the statute applies to these corporate defendants under the facts of this case.
Martindale contends the statute does not apply to this case. Her principal argument in support of this position ignores the express language of K.S.A. 40-3403(h), and instead she contends that K.S.A. 40-3403(h) only applies to causes of action which “arose” after July 1, 1986, as opposed to causes of action “filed” after July 1, 1986. To support this interpretation, Martindale relies upon some unfortunate language in one paragraph extracted from Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823 (1989), hereafter Gafford I, decided after the passage of K.S.A. 40-3403(h).
In Gafford I, Shawn A. Leiker sustained severe personal injuries and eventually died as a result of an overdose of spinal anesthetic administered during a Cesarean section delivery. On August 4, 1983, her husband filed a personal injury lawsuit on her behalf against Gafford, the anesthetist, and his professional corporation, and against Marshall, the obstetrician, and his professional corporation. K.S.A. 40-3403(h) became effective July 1, 1986. Mrs. Leiker died December 14, 1987, and on December 22, 1987, her husband filed an amended petition adding a claim for wrongful death.
The jury determined that Gafford was 90% at fault and Marshall was 10% at fault for the plaintiff’s injuries and resulting death. The jury specifically found one or more independent acts of negligence on the part of Marshall. In answer to a special question on the verdict form, the jury also determined that Marshall was legally responsible for one or more negligent acts of Gafford.
On appeal, Marshall argued, inter alia, that K.S.A. 1988 Supp. 40-3403(h) precluded vicarious liability for the wrongful death judgment. In addressing this issue, the Kansas Supreme Court noted:
“Marshall asked the trial court to instruct the jury that, as a matter of law, Marshall and his professional corporation could not be vicariously liable for the misconduct of Gafford, citing [K.S.A. 40-3403(h)]. The trial court correctly noted that the personal injury action arose prior to the effective date of the statute, and therefore the statute, if applicable at all, could only apply to the wrongful death claim.” 245 Kan. at 358. (Emphasis added.)
In interpreting that paragraph, Martindale argues that “the test identified by the Kansas Supreme Court is not when the suit was filed, but when the cause of action arose.” In short, Martindale contends that K.S.A. 40-3403(h) does not apply to any cause of action which arose prior to July 1, 1986.
Martindale then applies this interpretation of K.S.A. 40-3403(h) to the facts of this case. She argues that although the petition was not filed until August of 1988, she is still entitled to assert the theory of vicarious liability as to the corporate defendants because her cause of action “arose” when Dr. Tenny negligently performed surgery on her in 1981, prior to the effective date of K.S.A. 40-3403(h).
While plaintiff’s basic premise that K.S.A. 40-34Q3(h) does not apply to this case may be correct, and we think it is, her reliance upon Gafford I is misplaced. At the outset, it must be conceded that the language in Gafford I referring to when “the personal injury action arose” is clearly erroneous. The clear wording of the statute is that it will apply to “all claims filed on or after the effective date” of the statute, not to when the claim arose. Unfortunately, erroneous language similar to that in Gafford I was repeated in a later action involving’ the same parties. Leiker v. Gafford, 249 Kan. 554, 556-557, 819 P.2d 655 (1991), hereafter Gafford II.
In neither Gafford I nor Gafford II was the erroneous language controlling as to' any issue before the court. Therefore, it was dicta and does not constitute precedent on the issue now before us. We specifically disapprove the erroneous language in both Gafford I and Gafford II to the effect that K.S.A. 40-3403(h) does not apply to claims which arose prior to the effective date of the act. The controlling language of the statute is: “The provisions of this subsection [K.S.A. 40-3403(h)] shall apply to all claims filed on or after the effective date of this act.”
However, plaintiff’s misplaced reliance on the Gafford cases does not dispose of the issue now before us. The issue is whether the filing of the request for a medical malpractice screening panel to consider plaintiff’s claim was sufficient to come within the “claims filed” provision of K.S.A. 40-3403(h). To resolve this issue, review of the pertinent provisions of the Medical Malpractice Screening Panel Act, K.S.A. 65-4901 et seq., is appropriate. Before turning to that act, which was first adopted in 1976, we note the rather anomalous fact that in 1987 the legislature enacted similar, if not identical, legislation found at K.S.A. 1991 Supp. 60-3501 et seq. None of the parties make any reference to the act in Chapter 60 of Kansas Statutes Annotated and, as the provisions of both acts are, for all practical purposes, identical, we will limit our references to the earlier act in Chapter 65 of Kansas Statutes Annotated.
K.S.A. 65-4901 provides in part:
“If a petition is filed in a district court of this state claiming damages for personal injury or death on account of alleged medical malpractice of a health care provider and one of the parties to the action requests, by filing a memorandum with the court, that a medical malpractice screening panel be convened, the judge of the ■ district court or, if the district court has more than one division, the administrative judge of such court shall convene a medical malpractice screening panel, hereafter referred to as the ‘screening panel.’ If a petition is filed in a district court of this state claiming damages for personal injury or death on account of alleged medical malpractice of a health care provider and none of the parties to the action requests that a screening panel be convened, the judge may convene a screening panel upon the judge’s, own motion. If a claim for damages for personal injury or death on account of alleged medical malpractice of a health care provider has not been formalized by the filing of a petition, any party affected by such claim may request, by filing a memorandum with the court, that a screening panel be convened, and if such request is made the judge of the district court or, - if the district court has more than one division, the administrative judge,of such court shall convene a screening panel.”
K.S.A. 1991 Supp. 65-4902 provides for notice to the parties and then reads:
“If the plaintiff and the defendant or, if no petition has been filed, the claimant and the party against whom the claim is made are unable to jointly select a health care provider within 10 days after receipt of notice that a screening panel has been convened, the judge of the district court or, if the district court has more than one division, the administrative judge of such court shall select such health care provider.”
K.S.A. 65-4903 specifies the procedure to be followed by the screening panel while K.S.A. 1991 Supp. 65-4904 governs the preparation of the screening panel opinion, the notice to be given after an opinion has been reached and related matters.
K.S.A. 65-4905 states in its entirety:
“In the event that one or more of the parties rejects the final determination of the screening panel, the plaintiff may proceed with the action in the district court.”
K.S.A. 65-4906 and K.S.A. 1991 Supp. 65-4907 provide immunity for the members of the screening panel, govern the compensation and payment of expenses of the panel members, and provide for the assessment of the costs of the proceeding.
Finally, K.S.A. 65-4908 reads:
“In those cases before a screening panel which have not been formalized by filing a petition in a court of law, the filing of a memorandum requesting the convening of a screening panel shall toll any applicable statute of limitations and such statute of limitations shall remain tolled until thirty (30) days after the screening panel has issued its written recommendations.”
The Medical Malpractice Screening Panel Act was enacted by the legislature to provide for an early resolution of many medical malpractice claims without the expense, and often inordinate delay, of actual litigation. K.S.A. 65-4901 specifically recognizes a distinction between actual actions for damages commenced by the filing of a petition in district court and proceedings for consideration of claims by a panel prior to the institution of any formal court action for damages. K.S.A. 1991 Supp. 65-4902 refers to the plaintiff and defendant when a petition has been filed and the claimant and party against whom the claim is made when no formal court action has been commenced.
K.S.A. 65-4905 contemplates there will be no formal court action once a screening panel has been requested and K.S.A. 65- 4908 tolls any applicable statute of limitations “until thirty (30) days after the screening panel has issued its written recommendations.” Thus the act contemplates that no formal court action should be filed, or if an action has been filed that it be held in abeyance, until the parties have exhausted the screening panel procedure.
The problem that arises in the present case is that the screening panel did not timely perform its required duties, and in the interim K.S.A. 40-3403(h) became law. The plaintiff and the corporate defendants, presumably in good faith, relied upon and complied with the screening panel act in seeking to resolve the plaintiff’s claim, without the necessity of her filing a formal civil action, only for plaintiff to find that when the panel ultimately reached a decision, her rights had allegedly been cut off by K.S.A. 40-3403(h). Thus it becomes necessary to attempt to reconcile the provisions of K.S.A. 40-3403(h) with those of the screening panel act in K.S.A. 65-4901 et seq.
The defendants contend that under the facts of this case the words “claims filed on or after [July 1, 1986]” refer strictly to the filing of a civil action, and as the petition in this case was filed after July 1, 1986, the statute would bar any claim based upon vicarious liability. On the other hand, the plaintiff contended at oral argument before this court that the filing of her claim before the screening panel constituted a “claim filed” long prior to the effective date in K.S.A. 40-3403(h), and thus the bar against vicarious liability did not apply as to these defendants. We conclude the plaintiff is correct.
K.S.A. 40-3403(h) and the Medical Malpractice Screening Panel Act, K.S.A. 65-4901 et seq., are part of an attempt by the legislature to alleviate the perceived medical malpractice crisis first addressed by the adoption of the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq., in 1976. As such, the provisions of conflicting or overlapping statutes within the two acts are to be read together. While perhaps not strictly in pari materia, as that term is sometimes narrowly construed, the statutes must still be read together in an attempt to reconcile their differences and reach sensible and rational results. In Clark v. Murray, 141 Kan. 533, 41 P.2d 1042 (1935), we held:
“It is a cardinal rule of construction that all statutes are to be so construed as to sustain them rather than ignore or defeat them; to give them operation if the language will permit, instead of treating them as meaningless.” Syl. ¶ 1.
“Although statutes may be not strictly in pari materia, in the construction and interpretation of those relating to the same subject matter or having the same general purpose, reference may be made to them to determine the intent of the legislature as to such subject matter or purpose.” Syl. ¶ 2.
73 Am. Jur. 2d, Statutes § 189 states:
“Although there may be statutory provisions which, in a sense, relate to the same matter and yet are not in pari materia, the general rule is that statutes or statutory provisions which relate to the same person or thing, or to the same class of persons or things, or to the same or a closely allied subject or object, may be regarded as in pari materia. Statutes which are parts of the same general scheme or plan, or are aimed at the accomplishment of the same results and the suppression of the same evil, are also considered as in pari materia. On the other hand, statutes which have no common aim or purpose, and which do hot relate to the same subject, thing, or person, are not in pari materia. Statutes have been regarded not to be in pari materia where they are inconsistent. Statutes or sections which expressly refer to each other are in pari materia, but the fact that statutes contain no reference to each other does not prevent them from being in pari materia. It has also been held that the fact that one of the statutes is a special or particular, and the other a general, one, does not preclude them from being in pari materia.”
In the instant case, Martindale had filed her claim seeking to proceed with a medical malpractice screening panel long before the statute abrogating the vicarious liability of health care providers was enacted. It is to be noted that, in general, statutes of limitation and statutes of repose and many other statutes refer to commencing civil actions, actions being maintained, causes of action, and similar terms more appropriate to the filing of a formal civil lawsuit. See, e.g., K.S.A. 60-501 et seq. On the other hand, statutes referring to the filing of “claims” may be considerably broader in scope and refer not only to a claim for damages in a civil lawsuit, but also to claims before various administrative bodies, administrative law boards, and other entities.
Did the legislature intend by the enactment of K.S.A. 40-3403(h) to cut off the rights of persons who had filed claims and were proceeding under the procedure set forth in K.S.A. 65-4901 et seq. but had not filed an actual civil action? We think not. If that had been the intention it could have easily been stated in the statute. Instead, the legislature chose to use the broad term “claims filed.” We hold that, under the peculiar facts of this case, the filing of Martindale’s request for a medical malpractice screening panel to consider a claim for malpractice constitutes a “claim filed” as contemplated by K.S.A. 40-3403(h) and thus her right to proceed against the corporate defendants on the theory of vicarious liability was preserved. The conflict generated here between the provisions of K.S.A. 40-3403(h) and K.S.A. 65-4901 et seq. was the direct result of the screening panel failing to do its duty and delaying its recommendations for an inordinate period of time. We conclude that when the two statutory acts are considered together, as they must be, the plaintiff’s claims against the corporate defendants based upon her theory of vicarious liability were not lost. K.S.A. 65-4908 makes it abundantly clear that the filing of a request for the convening of a screening panel “shall toll any applicable statute of limitations” until 30 days after the panel has issued its recommendations. As there is no contention that Martindale did not file her lawsuit within 30 days of the issuance of the written recommendations of the screening panel, the judgment of the district court granting summary judgment to the defendants, Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates must be reversed.
We now turn to the cross-appeal of defendant Dr. Robert T. Tenny, as an individual, from the order of the trial court denying his motion for summary judgment.
At the outset, we will reiterate some of the pertinent facts set forth earlier in the opinion and supplement them with such ádditional facts as are necessary to consider the issues on the cross-appeal.
On September 23, 1981, Robert T. Tenny, M.D., performed surgery upon Martindale. On September 22, 1983, Martindale filed a request to appoint a medical malpractice screening panel. On July 20, 1988, the screening panel issued its opinion finding Dr. Tenny had failed to maintain the standard of care of neurosurgeons in the community. On August 12, 1988, Martindale filed her petition, naming as defendants Robert T. Tenny, M.’D., P.A., and Midwest Neurosurgery Associates. On October 2, 1990, after the district court had sustained the corporate defendants’ motions for summary judgment, the trial court granted Martin-dale’s motion to amend her petition to name Dr. Tenny as an individual defendant. The amended petition was filed October 10, 1990. Dr. Tenny filed an answer, and on November 2, 1990, filed a motion for summary judgment essentially claiming the action was barred by the statute of limitations. The trial court denied Dr. Tenny’s motion for summary judgment. Dr. Tenny timely appeals that ruling.
The district court concluded that the statute of limitations did not operate as a bar to Martindale’s claim. As the district court’s judgment involved solely the interpretation of a question of law, our scope of review on appeal is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Generally, a medical malpractice action must be brought within the statute of limitations as provided by K.S.A. 60-513(a)(7) and (c).
K.S.A- 60-513(a)(7) reads:
“(a) The following actions shall be brought within two (2) years:
“(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.”
K.S.A. 60-513(c) provides:
“A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four (4) years beyond the time of the act giving rise to the cause of action.”
Martindale filed her petition against the corporate defendants on August 12, 1988, seven years after the purported negligent act giving rise to her medical malpractice claim and filed her amended petition naming Dr. Tenny, individually, on October 10, 1990, over two years after the filing of the original petition.
Dr. Tenny asserts essentially three arguments in support of his contention that the. trial court erred in not granting his motion for summary judgment based upon the running of the statute of limitations. First, Dr. Tenny asserts that Martindale’s medical malpractice action against him as an individual is barred by the two-year statute of limitations found in K.S.A. 60-513(a)(7). He argues that, because he was not a named party to the screening panel procedure, K.S.A. 65-4908 did not toll the statute of limitations as to him personally. Thus, he contends the two-year statute of limitations ran as to him in 1983, and Martindale’s 1988 amended petition naming him as defendant was barred by the two-year statute of limitations.
Second, Dr. Tenny maintains that the original petition filed August 12, 1988, was barred by K.S.A. 60-513(c). He argues that, by filing a request for a screening panel, Martindale did not indefinitely toll the general two-year limitation period. He relies upon the language in K.S.A. 60-513(c) “but in no event shall such an action be commenced more than four (4) years beyond the time of the act giving rise to the cause of action.” He concludes that, even if the October 1990 amended petition naming him individually is allowed to relate back to the original August 1988 petition, pursuant to K.S.A. 60-513(c), the statute of limitations as to the original petition expired September 23, 1985, four years after the alleged negligent surgical act. Thus, any suit against Dr. Tenny is barred.
Finally, Dr. Tenny argues that even if the court determined that the original petition had been timely filed, K.S.A. 60-215(c) would not allow the amended petition to relate back to the date of the original petition.
In response to the arguments of Dr. Tenny, Martindale asserts that the statute of limitations was tolled by K.S.A. 65-4908 because Dr. Tenny had sufficient notice from the initial screening panel request that the claim was actually against him; that the filing of the request for a screening panel tolled the statute of limitations as to all possible defendants, whether named in the screening panel proceedings or not, until 30 days after the panel’s report; and finally that as the initial petition against the corporate defendants was filed within the 30-day period of K.S.A. 65-4908, the amended petition filed over two years later naming Dr. Tenny individually relates back to the earlier petition under the provisions of K.S.A. 60-215(c).
All parties appear to concede that K.S.A. 65-4908 tolled the running of the statute of limitations as to the two corporate defendants named in the screening panel proceedings and that the initial petition against the corporate defendants was timely filed. At the hearing held on October 2, 1990, the trial court sustained the corporate defendants’ motions for summary judgment as set forth earlier in the opinion and also sustained Martindale’s oral motion to amend the petition to include Dr. Tenny as an individual. In allowing the amendment the trial court relied upon K.S.A. 60-215(c), which reads:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the .institution of the action that he would not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” (Emphasis added.)
At the time of the court’s ruling, the following occurred:
“THE COURT: I’m also going to find that the present state of the pleadings in this case do not include, as a party, Robert T. Tenny, M.D., personally.
“Why don’t I, at this time, sustain Mr. Walker’s motion to amend the pleadings by adding Robert T. Tenny, M.D.
“I’m sustaining that motion under the authority of Anderson versus United Cab at 8 Kan. [App. 2d 694, 666 P.2d 735 (1983)], and Ingram versus Kumar, 585 [F.2d 566 (2d Cir. 1978)]. And I’m particularly relying upon the language in those cáses which say that the statement contained in K.S.A. 60-215(c), to the effectj that the statement in that statute about the statute pf. limitations doesn’t mean what it says. I don’t know how else to say it. I mean that’s what they said in the case; and that is the law that I am bound to follow I think at this point, and I’m going to apply that law.
“Also, in sustaining the motion, I am taking notice, Mr. Walker, of those -facts which involve Dr. Tenny being served and the fact that he did have notice of this lawsuit and the nature of this claim, because it hadn’t been processed through a medical malpractice claims panel; and also note in his answer, in a portion of his answer, it included a statement to the extent that there was a claim made against Dr. Tenny, that they were saying it was barred by the statute of limitations. I mean, clearly, Dr. Tenny was aware that this claim involved his personal conduct, and so there is absolutely no question about knowledge on the case.
“MR. WALKER: It’s not your ruling at this point anyway, Your Honor, that I need to file a separate motion in this case, but rather we will proceed against Dr. Tenny individually?
“THE COURT: Yes, I’m going to require that you file an amended' petition.”
Martindale’s amended petition against Dr. Tenny, individually, was filed a few days later.
In addition to the two cases relied upon by the trial court in finding that the amendment related back to the filing of the initial petition, Martindale also cites Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P.2d 847 (1957), and White v. VinZant, 13 Kan. App. 2d 467, 773 P.2d 1169 (1989), in support of her argument that the amended petition was proper.
The thrust of the principal arguments here, the trial court’s decision, and the cases relied upon all ignore the requirement of K.S.A. 60-215(c)(2) that Dr. Tenny “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him” and focus instead upon the statutory requirement of notice within the proper period for the commencing of the action.
We agree with Martindale that Dr. Tenny did receive actual notice in 1983 of the filing of the request for a malpractice screening panel and also received notice in 1988 of the filing of the petition against the corporate defendants. We also agree that in both documents there are allegations of negligence based upon the acts of Dr. Tenny in his treatment of Martindale. However, Dr. Tenny is not named as a party, individually, and ho claim is asserted against him, individually, in the screening panel proceeding. While the actual petition filed in 1988 refers in some instances to Dr. Tenny as a defendant, he is not properly named or joined as a defendant and it appears no cause of action is alleged against him, individually. The district court specifically found that the petition did not include Dr. Tenny as a defendant. The issue overlooked by the trial court is whether K.S.A. 60-215(c) applies when the plaintiff in an action consciously omits a party, for whatever reason, from the action and then at some later date after the time limits of all possible statutes of limitations have passed, attempts to bring that party into the action as a named defendant for the first time.
In White v. VinZant, 13 Kan. App. 2d 467, the doctor and St. Joseph Medical Center, Inc., were defendants in a medical malpractice action. They appealed from the district court’s denial of their motions to dismiss, or alternatively, for summary judgment. The relevant facts of that case are brief. On January 12, 1987, White filed a request to appoint a medical malpractice screening panel. On January 21, 1987, the district court ordered that a screening panel be convened. On February 1, 1988, White filed his petition, alleging medical malpractice. Subsequently, defendants filed separate motions to dismiss and, alternatively, for summary judgment, contending, in part, that the action was barred by the applicable statute of limitations. The district court overruled both motions, finding that the statute of limitations was tolled by the filing of White’s request for a screening panel and remained tolled until White filed his petition on February 1, 1988. On appeal, the Court of Appeals held that the statute of limitations was tolled by K.S.A. 65-4908 and that the screening panel is not prohibited from taking more than 90 days to issue its recommendation. The decision has no bearing upon whether K.S.A. 60-215(c)(2) precludes the claim of Martindale here.
The other cases relied upon by Martindale are more nearly in point but do not address the specific issue before us. In Anderson v. United Cab Co., 8 Kan. App. 2d 694, the issue before the court involved the phrase “period provided by law for commencing the action” as used in K.S.A. 60-215(c). In that case the plaintiffs wére in a vehicle that collided with a vehicle owned by the defendant on or about November 24, 1976. An action for damages was filed on November 24, 1978, and the defendant was erroneously named as “United Cab Co., a Kansas corporation” rather than by its proper corporate name “United Cab Co., Inc.” The original petition was timely filed, and an agreed order allowing amendment to show the proper defendant was approved by the court on December 21, 1978. However, the trial court subsequently ruled that the statute of limitations had run. On appeal the Court of Appeals held that K.S.A. 60-215(c) applied and that the defendant received the requisite notice “within the period provided by law for commencing the action.” In doing so, the court stated:
“In the present case the defendant had actual knowledge of the lawsuit and that it was the correct defendant to the case three days after the statute of limitations expired. Additionally, service was made on the proper individual for receipt of summons, the resident agent. Furthermore, the error in the name was a slight one since defendant’s status as a corporation was identified although the corporate designation ‘Inc.’ was not used.” 8 Kan. App. 2d at 697-98.
In United Cab Co., the misnaming of the proper defendant was not only inconsequential, but obviously was “a mistake concerning the identity of the proper party” when the plaintiff had made a good faith attempt to properly name the proper party. The same was true in Russell v. American Rock Crusher Co., 181 Kan. 891, where the proper defendant was named in the petition as J.A. Tobin rather than J.E. Tobin.
Ingram v. Kumar, 585 F.2d 566, relied upon by the trial court and Martindale, was a medical malpractice action commenced in the federal district court in New York. Plaintiff’s decedent allegedly received negligent medical treatment in Illinois from Dr. Vijay S. Kumar, a neurosurgeon. It was alleged that the negligent treatment resulted in the death of the deceased. Subsequent to the treatment and prior to the filing of suit, Dr. Kumar moved to the State of New York. When plaintiff filed her action in New York, she consulted the New York State Medical Directory and finding the name of Vijaya N. Kumar, believed that to be the proper spelling of the name of the doctor she intended to sue. Subsequently, after the statute of limitations had run, it was determined that the wrong doctor had been sued, that the correct name was Vijay S. Kumar and that he practiced in another part of New York State. The correct Dr. Kumar had no notice of the action until he was actually served long after the statute of limitations had run. Thereafter an amended complaint was filed and the court ultimately held that it related back under Fed. R. Civ. Proc. 15(c), which is identical to our K.S.A. 60-215(c). The court, in a rather tortured decision, was obviously trying to reach an equitable solution for the plaintiff under the facts of the similarity of the two doctors’ highly unusual names and the good faith attempt of the plaintiff to name the correct defendant from the beginning. Again, this case turned upon that portion of the rule relating to whether the newly named defendant received notice “within the period provided by law for commencing the action” against him. It did not hinge upon subsection (c)(2) of the rule and statute.
Marr v. Gieger Ready-Mix Co., 209 Kan. 40, 495 P.2d 1399 (1972), is another case in which there was an error in the actual naming of the intended defendant. On May 25, 1967, a truck owned and operated by the Geiger Ready-Mix Company struck plaintiff’s car, injuring plaintiff. Plaintiff timely filed a negligence action, and sued as defendant the Geiger Ready-Mix Company. Summons was served upon the office manager of the Geiger Ready-Mix Company. Evidence disclosed that the manager turned the summons over to E. W. Geiger, Jr., owner of the company. The Geiger Ready-Mix Company answered, and among the defenses asserted was a motion to dismiss the plaintiff’s petition, alleging the court had no jurisdiction “because no summons was properly issued and served herein according to law.” 209 Kan. at 42. On June 9, 1969, approximately two weeks after the two-year statute of limitations had run, the defendant had the motion to dismiss set for hearing and asserted for the first time in an affidavit that the Geiger Ready-Mix Company was a sole proprietorship owned and operated by E. W. Geiger, Jr. On the same day, plaintiff moved the court for an order permitting her to amend her original petition by substituting the name of E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company, for the Geiger Ready-Mix Company, under the provisions of K.S.A. 60-215(a) and (c). The trial court sustained the plaintiff’s motion, permitting her to amend her original petition by changing the name of the defendant as requested. Defendant appealed. In affirming the trial court, the Kansas Supreme Court held that the prerequisite conditions set forth in K.S.A.. 60-215(c) had been met and that the trial court did not err in permitting the plaintiff to amend her original petition by changing the name of the defendant.
In Marr this court went to great lengths to review the history of Fed. R. Civ. Proc. 15(c) and K.S.A. 60-215(c), and having done so stated:
“It may therefore be said an amendment changing the party against whom a claim is asserted relates back, if the amendment satisfies the general requirement of 60-215(c) that ‘the claim or defense asserted in the amended pleading arose out of the conduct, . . . set forth in the original pleading,’ and if within the applicable period of limitations, the party brought in by amendment (1) has received such notice of the institution of the action— the notice need not be formal — that he would not be prejudiced in defending the action on the merits, and (2) knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party.
“To permit the amendment under 60-215(c), as amended, in addition to the general requirement, the new party, within the period of limitations must receive such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and further that the new party knew or should have known that, but for a mistake concerning the identity of the proper party, he would have been brought into the proceedings earlier. (See 3 Moore’s Federal Practice [2d Ed.] § 15.15 [4.-2].)
“It should be emphasized that at no point has the question of proper service of summons been called into play. This is because informal notice is sufficient under Federal Rule No. 15(c), as amended, to bring into operation the relation back of the amendment. The rule is the same under 60-215(c), as amended, in the Kansas Code of Civil Procedure.
“Rule No. 215(c), as amended, refers to ‘An amendment changing the party’ and that is precisely what the plaintiff was granted leave to do by the trial court. The plaintiff amended her original petition by changing the name of the defendant from Geiger Ready-Mix Company to E.W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company. On the facts in this case the plaintiff sought to change the capacity in which the defendant was sued. There is no change in the parties before the court, all parties are on notice of the facts out of which the claim arose, and the doctrine of relation back does not result in prejudice to the defendant. E.W. Geiger, Jr., d/b/a/ Geiger Ready-Mix Company, received notice of the institution of the action within the period of limitations and, even though informal, such notice meets the requirement of due process. He further knew or should have known, but for a mistake concerning the identity of a proper party, he would have been brought into the proceedings earlier.” 209 Kan. at 47-48. (Emphasis added.)
There was clearly an error on the part of the plaintiff as to the proper name of the intended defendant brought about by the defendant himself who chose to do business under a trade name which did not reveal whether the business was a sole proprietership, a partnership, a corporation, or some other form of busi ness entity and did not fully' state the correct name of the business.
All of the foregoing cases involve situations where the plaintiff intended from the outset to sue the correct defendant but through some error did not actually have the exact name of the defendant. That is precisely the situation which K.S.A. 60-215(c) seeks to rectify, and when there is adequate notice and the other provisions of the statute are met, the courts should be liberal in allowing amendments to add additional defendants.
In the instant case there was never any doubt on behalf of the plaintiff as to the identity of Dr. Tenny and that it was his alleged negligence that caused plaintiff’s damages. It is clear from the pleadings in both the screening panel proceeding and in this action that plaintiff was seeking to recover for the negligent acts of Dr. Tenny. However, knowing that her claims were based upon the alleged negligence of Dr. Ténny, the plaintiff proceeded in both instances to rely upon the vicarious liability of the two corporate defendants. Not until long after the statute of limitations had run did plaintiff attempt to assert her claim or cause of action against Dr. Tenny individually. While Dr. Tenny is referred to as a defendant in the petition, he was not properly named in accordance with K.S.A. 60-210(a) and no summons was sought for him individually. The corporate defendants filed an answer to the original petition on September 6, 1988, and specifically stated Dr. Tenny had not been named as a defendant in the action. Yet plaintiff took no action to make Dr. Tenny a party until more than two years after those events. There was no “mistake concerning the identity of the proper party” as required under K.S.A. 60-215(c)(2). For whatever reason, the plaintiff apparently made a considered decision to seek recovery against the corporate defendants on the theory of their vicarious liability rather than to also proceed individually against Dr. Tenny. If it was her intent to name Dr. Tenny individually, she had every opportunity to do so. Under such circumstances, does K.S.A. 60-215(c) preserve to the plaintiff the right to change her mind and sue Dr. Tenny individually after the statute of limitations has expired? We think not.
While our research has revealed no cases directly in point on these unusual facts and the procedure followed here, many of the cases comment that under (c)(2) of the federal rule or comparable state statute, there must have been a “mistake concerning the identity of the proper party.” In our opinion, the statute, which is clearly an attempt to avoid the harsh application of the statute of limitations, applies where there has been a good faith attempt to properly name and join the intended defendant but that attempt has been thwarted through some honest mistake in the identity of the proper defendant. We do not believe the statute was ever intended to apply to a factual situation such as the one now before us in which the proper identity of Dr. Tenny was known at all times but no attempt was made to join him as a defendant until after the statute of limitations had run. If the statute was intended to allow such amendment, then there was no reason for subsection (c)(2) to be included. Here, there was never any mistake concerning the identity of the proper party, and we hold the trial court erred in not granting summary judgment to Dr. Tenny on the ground the statute of limitations had run and in ruling that the amended petition related back under K.S.A. 60-215(c). While the old rules of formal pleading have been greatly relaxed in the interests of justice, and our present rules of pleading are to be liberally construed toward that goal, there still remains upon every lawyer the duty to comply with the applicable rules and statutes. Here, plaintiff had every opportunity to proceed properly with an action against Dr. Tenny and failed to do so. She cannot now be heard to complain after the statute of limitations has run.
For cases supporting our interpretation and application of K.S.A. 60-215(c)(2), in a variety of factual situations, see Keller v. Prince George’s County, 923 F.2d 30 (4th Cir. 1991); Norton v. International Harvester Co., 627 F.2d 18 (7th Cir. 1980); Russ v. Ratliff, 578 F.2d 221 (8th Cir. 1978); Gridley v. Cunningham, 550 F.2d 551 (8th Cir. 1977); Bazan v. Wilson, 30 Fed. R. Serv. 2d (Callaghan) 1145 (S.D. Tex. 1980).
In view of the foregoing there is no need to address the other arguments and contentions of the parties.
In conclusion we hold that it was error to grant summary judgment to the corporate defendants, Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates, and the ruling thereon is reversed and the case is remanded for further proceedings as to such defendants. We further hold that it was error not to sustain the motion of the defendant Dr. Tenny for summary judgment, and the decision of the trial court on that issue is reversed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant David C. Jordan from his conviction of first-degree murder (K.S.A. 1990 Supp. 21-3401).
The defendant claims the trial court erred in not giving a self-defense instruction. If a self-defense instruction should have been given, he argues that he also was entitled to an instruction on involuntary manslaughter on the theory of self-defense committed in an unlawful or excessive manner. He also contends the trial court erred in admitting evidence of his prior juvenile activity (robbery and use of cocaine) and in not granting a new trial because the prosecutor made inflammatory and other improper remarks in closing argument.
The death occurred at the apartment of Deborah Encinias. Deborah’s three sons also lived in the apartment, but played no part in the case before us. Deborah’s daughter, Rrandie Encinias Jones; Rrandie’s husband, Larry Jones (Jones); and their baby also lived in the apartment, and they witnessed varying segments of the events leading to the death of Samuel Ward. Ward was Deborah Encinias’ boyfriend and, although his official residence was elsewhere, Deborah testified that he was at the apartment “all the time.”
Samuel Ward was a large man, being described as tall as 6 feet 5 inches and weighing 213 pounds or more. He was 37 years old. The defendant, David Jordan, was 19 years of age, 6 feet in height, and weighed approximately 150 pounds when he killed Ward. Ward and Jordan were not acquainted.
The record before us shows disputed testimony and inconsistent testimony among different witnesses to the same event and among the same witnesses’ testimony at the preliminary hearing and the trial. Those inconsistencies are of no significance because of the standard of review in considering whether the trial court erred in refusing to give an instruction on self-defense and involuntary manslaughter. That standard will be discussed later.
In order to have an overview, a highly summarized version of the events is set forth at this point, looking at the evidence in a light most favorable to Jordan. Greater detail will follow under specific issues. We begin with what occurred with Jones seated in a car parked outside a friend’s home. Jordan was in the home.
Jordan and Jones were approximately the same age; Jones was 20 years of age at the time of the trial. Although they were good friends at one time, everyone seemed to agree there now was animosity between the two. When Jones learned Jordan was in the house, he wanted to leave because he was afraid a fight would start. Jordan approached the car and asked Brandie Jones where her husband was because Jordan wanted to buy some marijuana. Jordan testified Jones was the only person in town who had any marijuana. Jordan also testified he had been drinking heavily after getting off work and was in a good mood. He testified Brandie shoved him away from the car and he left. The Joneses testified Jordan referred to Jones as a “punk snitch.” The Joneses, including Chris Jones (Larry’s brother), and Joseph Allen, a friend of Chris Jones and Jordan, then proceeded to Deborah Encinias’ apartment.
About five minutes after the Jones group arrived at the Encinias apartment, Jordan pounded on the door. Deborah Encinias answered the door and was pushed back by the door as Jordan pushed the door open with some force. Jordan inquired whether Larry was there. His exact language is in dispute. Although the majority of the people who were in the apartment thought Jordan was looking for a fight with Jones, Jordan testified he was not looking for a fight.
Samuel Ward stepped between Jordan and Deborah Encinias, asked Jordan to leave, and stated there would be no fighting at the apartment. Taken in the light most favorable to Jordan, Ward then put both his hands on Jordan’s chest and pushed him out the door. Ward went outside the door not more than four feet. Jordan pulled a knife and attempted to strike Ward with it. Ward retreated into the yard, made a loop, and then broke and ran into the house. Jordan ran after him and stabbed Ward in the heart, causing Ward’s death.
Jordan was charged with first-degree murder and convicted of that offense by a jury.
1. Self-Defense
Self-defense is defined in K.S.A. 21-3211: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” A reasonable belief incorporates both a subjective and an objective belief. K.S.A. 21-3211, Judicial Council Comment, 1968.
In denying Jordan’s request for a self-defense instruction, the trial judge commented:
“[W]hen we talk about substantial evidence of self-defense, I think we have to be talking about at the time of the incident. The testimony about — if there was testimony that — because it was certainly contested as to whether that was the testimony — as I recall it, whether or not Mr. Ward put his hands on the defendant, was if it happened, it happened at the doorway. The undisputed testimony was that prior to the time of the stabbing — and this includes the undisputed testimony of [the defendant’s] witness — that Mr. Jordan pursued the [decedent] from outside into the kitchen. Now, that is an act which is separated in time from the acts that [defense counsel] talks about over the — of the hands maybe placed upon the chest. Because long since, if Mr. Jordan could pursue Mr. Ward into the kitchen, he could also have run the other way without a great deal of difficulty. And I do not see — not only do I not see substantial evidence, because the defendant didn’t testify that it was self-defense, the only thing he testified to was he said he was touched, I think with two hands on the chest. If it was going to be self-defense in regards to that, it should have been at that point in time, not at some later time when the decedent is fleeing and he is pursuing. And I am not going to give the self-defense instruction. . . .
“. . . There is absolutely no evidence of self-defense in this matter. . . . The self-defense has to be at the time that the stabbing took place, not prior to that. Once he’s pursuing the decedent, there’s nothing for him to defend himself from. There is no — not only is there not substantial evidence, there was no evidence.”
Self-defense issues have been before this court on many occasions. We have stated:
“The circumstances under which a defendant is entitled to an instruction on self-defense are discussed in State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977). In Childers, this court stated that, ‘in order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend himself and, also, show the existence of some facts that would support such a belief.’ 222 Kan. at 48. In determining whether there is evidence that the defendant believed that force was necessary to defend himself, ‘ “it is well to remember the test is not how much but is there any.” ’ 222 Kan. at 49 (quoting State v. Smith, 161 Kan. 230, 237, 167 P.2d 594 [1946]). It is the duty of the trial court to instruct the jury on self-defense so long as there is any evidence tending to establish self-defense, although the evidence may be slight and may consist solely of the defendant’s own testimony. State v. Smith, 161 Kan. at 237.” State v. Hill, 242 Kan. 68, 78, 744 P.2d 1228 (1987).
See State v. Burgess, 245 Kan. 481, 487, 781 P.2d 694 (1989); State v. Heiskell, 8 Kan. App. 2d 667, 673, 666 P.2d 207 (1983).
“The issue is not whether it is probable or even likely that the defendant was, in fact, acting in self-defense. The issue is whether there is any evidence supporting defendant’s statement that the force . . . used was necessary .... Because, viewing all the evidence in the record in the light most favorable to the defendant, there is some evidence of physical aggression on the part of [the victim], and some evidence of a fear of assault on the part of the defendant, an instruction on self-defense should have been given.” Hill, 242 Kan. at 79.
Cf. State v. Childers, 222 Kan. 32, 49, 563 P.2d 999 (1977) (no evidence victim verbally or physically threatened defendant so trial court did not err in refusing to give instruction on self-defense).
In State v. Blocker, 211 Kan. 185, Syl. ¶ 7, 505 P.2d 1099 (1973), this court stated that “[a] person who is under personal attack is justified in using such force, but only such force, to defend himself against imminent serious bodily harm, as appears reasonably necessary to him for that purpose under the circumstances then confronting him.” The Blocker court also noted that “in defending one’s self against unlawful attack and serious bodily harm,” a person may lawfully use such force as may reasonably seem necessary to him or her “but may not go further than appears reasonably necessary for such purpose.” 211 Kan. at 192.
Additionally, we have said that “[u]nder the common law, the excuse for killing in self-defense is founded upon necessity, be it real or apparent.” State v. Stewart, 243 Kan. 639, 644, 763 P.2d 572 (1988).
“Our test for self-defense is a two-pronged one. We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant’s belief was reasonable — specifically, whether a reasonable person in defendant’s circumstances would have' perceived self-defense as necessary.” 243 Kan. at 649.
When we speak of “necessary,” we mean to prevent imminent serious bodily harm. • • • -
“[An] individual who willingly provoked the mutual combat is not justified or excused in taking life unless he has withdrawn in good faith, has communicated that withdrawal to his opponent, and has done all in his power to avert the necessity of killing.” State v. Meyers, 245 Kan. 471, Syl. ¶ 1, 781 P.2d 700 (1989).
K.S.A. 21-3214 provides that self-defense is not available to a person who:
“(3) Otherwise initially provokes the use of force against himself or another, unless:
“(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
“(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.” ’ • ; ,. ,
Jordan testified to the following: He had been drinking heavily on July 23, 1990, the day Ward was killed. Jordan stated he had not carried the knife for any “evil purpose.” While drinking with his friends,'' one of them had given him a knife because he had broken his. Jordan normally carried one for his job; he' used a knife to cut sacks and twine. He also said his mood was “mellow,” “[k]ind of euphoric.” He was not mad at anyone. Jordan decided to walk to the Encimas apartment to buy some marijuana from Jones. After walking about a half block, Marc Johnson, a friend he had been with that day, picked him up and drove him over to the apartment because of Jordan’s state of intoxication. Upon arriving at the apartment, Jordan’s direct examination testimony was as follows:
“A: I knocked on the door, and someone answered. I don’t — You know, I don’t remember who it was. And then all these faces popped up at the door.
“Q: Do you remember what you said at the door?
“A: Yeah, I asked where was Larry.
“Q: Now, you’ve sat through most of this testimony, and more than one witness has said there was a pounding or bam-bam-bam. Do you remember striking the door particularly hard?
“A: I may have.
“Q: Do you know [whether] you did or not?
“A: No, not really.
“Q: Were you looking for a fight?
“A: No, I wasn’t.
“Q: Did you want to kill anybody?
“A: No, I didn’t. I never meant to kill no one.
“Q: Standing there at the door of the apartment, what was your mood?
“A: I don’t know. I guess I was, you know — you know, I was trying to finish enjoying the rest of the day.
“Q: And what occurred after these people had poked their head[s] out the door?
“A: There was a lot of screaming going on, and this black guy, he jumped in the door.
“Q: And what happened after this black guy jumped in the door?
“A: He started pushing me. And I don’t know, I told him, ‘What do you want?’
“Q: Could you stand up and show the jury how he was pushing you?
“A: I don’t know, both hands on my chest like this.
“Q: Do you know how far he pushed you?
“A: No.
“Q: Were you scared?
“A: Yes.
“Q: How scared?
“A: I don’t know, guess I just kind of freaked out, I don’t know.
“Q: Was there confusion?
“A: Yeah, mass confusion.
“Q: And what happened after this black person pushed on you?
“A: A scuffle, I guess is what you’d call it.
“Q: What do you remember of the scuffle?
“A: I remember grabbing him and swinging at him.
“Q: Okay. Could you stand up and try to show the jury what you remember grabbing?
“A: I kind of grabbed him right by there, and I swung at him.
“Q: Okay. Was there anything in your hand when you swung at him?
“A: Not that I recall.
“Q: And what happened next?
“A: I don’t remember.
“Q: At some point you remember a knife being in your hand?
“A: Yeah, when I was going out the door.
“Q: And from the time that you grabbed the black person, do you remember very much?
“A: No.
“Q: When do you start remembering things again?
“A: When I seen this black guy, he stood up, and I looked, and he was bleeding. And I had a knife in my hand. And I seen Marc. And he said, ‘Let’s go.’ And we left.
“Q: Did you know what had happened at that point?
‘‘A: I assumed I stabbed him.
“Q: Did you know?
“A: No“.
Jordan stated that when they arrived at Marc’s house, Jordan “was freaked out.” He “didn’t know what had happened.” He “was scared.” He had never intended to kill anyone. He had not intended to pick a fight. In fact, he did not believe he had done anything to start the fight.
On redirect, Jordan was asked what scared him when Ward started pushing him. He responded:
“A: I don’t know, I was just — he was bigger than me, you know. I have been on the bottom before.
“Q: Were you aware of what was going to happen to you?
“A: Yeah, nobody like to take an ass whipping.
“Q: Can you quantify or describe that fear?
“A: I can’t explain it, I can’t put it into words.”
In refusing to instruct the jury on self-defense, the trial court divided the altercation into segments. The court indicated that if Ward had been stabbed while standing in the doorway or on the sidewalk, then a self-defense instruction might have been appropriate. According to all testimony, this altercation — from the time Jordan arrived to when Ward was stabbed — lasted a very brief period of time. Jones testified that everything happened very fast — it only took seconds. Brandie agreed the incident took place very, very quickly. Deborah said the sequence of events happened very quickly, between 15 and 30 seconds.
We find no error. Here, Jordan caused the confrontation and was pushed out the door. Samuel Ward made no verbal threats of any kind to Jordan. Ward asked Jordan to leave the apartment and told him there would be no fighting. Ward did not make a fist; nor did it appear that he was going to strike Jordan in any manner other than to place his hands on Jordan’s chest and push him out the door. At most, Jordan was pushed out the door after at least partially forcing his way into the apartment. Jordan immediately pulled a knife and attempted to cut or stab Ward. The only evidence of Ward’s response is that Ward retreated across the yard in a circular path, always in a defensive posture. When Wárd slipped and nearly fell, Jordan attempted, and nearly succeeded, in cutting Ward. Ward then ran from Jordan into the house and into the kitchen. According to the only eyewitness to the stabbing, Joseph Allen, Ward made it to the kitchen some three seconds before Jordan. Ward either hunted for a barbeque fork, or picked up a barbeque fork, to “protect himself’ when Jordan ran into the room and ran into Ward. They both fell to the floor. When Jordan stood up, he pulled his knife out of Ward’s chest.
The trial court was of the opinion that if Jordan would have been entitled to a self-defense instruction, it would have been if the killing had taken place while he was at the front door and was pushed out the door. If self-defense was justified at that point, the justification had ceased prior to the stabbing. While one is not required to retreat in Kansas, a person is not entitled to use a deadly weapon in order to pursue and ultimately to stab and kill an unarmed person who, if he was ever engaged in a fray, had withdrawn from it. Here, Ward withdrew and ran away, seeking shelter in, if not his own home, at least one he occupied •most of the time as a guest.
' Under the facts before us, the defendant was not entitled to a self-defense instruction. The trial court did not err in refusing to give a self-defense instruction.
2. Involuntary Manslaughter
The defendant argues that the jury should have been instructed on involuntary manslaughter under the theory that the killing occurred while he was acting in self-defense but that he acted with excessive force. Having determined the defendant was not entitled to a self-defense instruction, the trial court did not err in refusing to give an involuntary manslaughter instruction based on a self-defense theory.
3. Prior Crimes
The defendant filed a motion in limine, which included a request that the court prohibit the State’s use of testimony about his prior juvenile conviction. The trial court denied the motion, ruling that the State could introduce into evidence that he had been adjudicated a juvenile offender for committing aggravated robbery and that this was the basis for the “bad blood” between Jones and the defendant. The court did prohibit the State from “eliciting] testimony regarding . . . the defendant being a suspect in firing a gun around a tavern on the 23rd day of July, 1990,” and “elicit[ing] testimony regarding the incident in which the defendant shot his father, Butch Jordan, in self defense.”
Jones testified he and Jordan grew up together and used to be friends, but had been “fighting for a long time.” The “bad blood” between Jordan and Jones arose out of an incident that occurred several years earlier. Jordan robbed a store when he was spending the night with Jones. Jones did not realize Jordan had left the house and told the police that Jordan had been in the house the entire night. Jordan told Jones the truth after the police left. With the money, the boys purchased about $600 worth of cocaine. When Jones’ mother noticed needle tracks on Jones’ arms, she questioned him about it. Then she reported the incident to the police. When asked at the trial in this case whether he had told the police about the robbery, Jones said no.
As a result of his drug use and other problems, Jones spent a couple of years at the Youth Center at Larned. Jordan also spent a couple of years at the Youth Center at Lamed. On cross-examination, Jones admitted he had been adjudicated a juvenile offender for burglary and theft prior to the incident involving Jordan’s robbing the store and the two of them purchasing drugs.
The State argues the testimony regarding Jordan’s juvenile record was needed to explain the ill will between the two. The State claims evidence of Jordan’s juvenile record was needed to show his state of mind “inclined towards violence and aggression” (emphasis added) when he went to the apartment where Ward was killed and to establish motive and intent. Recause the testimony related to motive, intent, or absence of mistake or accident, which were at issue, the State contends the testimony was admissible pursuant to K.S.A. 60-455. The statute provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-455 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
This court has set forth a three-part test to determine the admissibility of evidence of prior crimes: “[T]he trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine the fact is a disputed material fact; and (3) balance the probative value of the prior crime or civil wrong evidence against its tendency to prejudice the jury. [Citations omitted.]” State v. Smith, 245 Kan. 381, 389, 781 P.2d 666 (1989).
The second prong of the test is satisfied because both motive and intent were disputed material issues at trial.
Regarding the first prong of the test, the State argues the defendant’s prior crime relates to motive and intent. “Motive is the moving power which impels one to action for a definite result. . . . Motive is that which incites or stimulates a person to do an action. [Citation omitted.]” State v. Ruebke, 240 Kan. 493, 502, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987). The State may introduce evidence of a prior crime to prove motive if such evidence is material. State v. Myrick & Nelms, 228 Kan. 406, Syl. ¶ 5, 616 P.2d 1066 (1980). Evidence of a prior crime is material to show why the defendant would have committed the alleged crime. See Ruebke, 240 Kan. at 503.
In Ruebke, the defendant was convicted of three counts of first-degree murder and three counts of aggravated kidnapping. On appeal, one of the issues raised was whether the trial court erred in allowing the jury to hear evidence of his prior crimes. The defendant had pled guilty to two counts of misdemeanor theft and one count of felony theft. Recause the only evidence of the defendant’s guilt was circumstantial, the State needed to establish why the defendant would have committed the murders. The State claimed the defendant’s need for money was his motive. The State contended the victims discovered the defendant as he was committing a theft and that the defendant committed the murders to prevent his identity from being discovered. This court upheld the admission of the defendant’s prior crimes, stating: “Considering the needlessness of the murders, motive was relevant to establish why the defendant would have committed the crimes.” 240 Kan. at 503.
Unlike Ruebke, the evidence here was not all circumstantial. There was no doubt Jordan stabbed Ward, but Jordan’s motive and intent were at issue. If Jordan had stabbed Jones, evidence of Jordan’s juvenile record would be relevant and material to explain the bad feelings between them. Assuming, arguendo, that evidence of Jordan’s juvenile record established that he was mad enough to want to hurt Jones, can that evidence be introduced when a third person is killed? Jordan did not stab Jones; he stabbed Ward, a man he did not even know.
The trial court admitted the evidence of the prior robbery and use of cocaine to explain the hostile relationship between the defendant and Jones. The trial court gave a limiting instruction, limiting its use to establish “motive or intent, or absence of mistake or accident.” The defendant argues the robbery and drug use evidence was irrelevant and immaterial, and any probative value was outweighed by the prejudicial effect.
We believe the evidence of prior crimes would have been admissible independent of K.S.A. 60-455 if the victim had been Jones. See, e.g., State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982). Here, the testimony was admissible to show Jordan’s intent and motive in going to the apartment. The trial court appears to have allowed the testimony to show bad blood between the defendant and Jones. Much of the evidence would have been meaningless and highly confusing to the jury without some explanation of why there was hostility between two of the principal actors in this tragedy.
Jones testified the defendant “broke in or. robbed” a place of business, and later, in an answer that was unresponsive to the question asked, said “[w]hen [Jordan] robbed the store.” Defense counsel raised a general objection, apparently that the answer was not responsive. The State admonished Jones to answer the question asked. No motion was made to strike the testimony or to admonish the jury to disregard the nonresponsive testimony.
Even more significant is that, at the pretrial hearing on the motion seeking to exclude evidence of prior crimes, the trial court stated:
“Assuming that at trial the relevance is established, as I believe it was at preliminary examination, then the motion in limine on [this issue] is not appropriate and will be denied. Of course [defense counsel] has a right to make an objection, because at that time [the State] might not have established the relevance.”
Because no objection was made at trial when this evidence was introduced, the matter is not properly before us for review. See State v. Bishop, 240 Kan. 647, 659, 732 P.2d 765 (1987).
The State also argues that if we find the evidence was erroneously admitted, it was harmless error. The evidence was not dwelled on. The State did not mention prior crimes in closing argument, although mention was made of “bad blood” between the two. In fact, the State told the jury it did not “matter what [Jordan] went over there for, it’s irrelevant. What matters is what happened after he got to [the Encinias apartment]. That’s when the crime occurred, and that’s what matters.”
We agree with the State that had the issue been preserved by a proper objection, any error was, at most, harmless. See State v. Cruitt, 200 Kan. 372, 378-79, 436 P.2d 870 (1968).
4. Closing Argument
The defendant contends that the trial court erred in refusing to grant a new trial based on the prosecutor’s improper and inflammatory remarks in closing argument. Jordan maintains the prosecutor’s remarks were improper personal assertions of belief. The prosecutor first stated he believed he had convinced the jury beyond a reasonable doubt, to which comment the trial court sustained the defendant’s objection. The prosecutor then referred to Jordan s premeditation of the killing and stated, “[W]e don’t know exactly when this thought process took place in the defendant’s mind. But we know it did.” Jordan’s objection was overruled, and the prosecutor repeated his personal assertion that “[w]e know it did.”
The prosecutor summed up his argument by giving his personal opinion that Jordan was a murderer:
“[Prosecutor]: . . . Folks, I’m finished. Police are finished. It’s up to you. I can’t go into the jury room with you, but that young man is a murderer.
“[Defense Counsel]: I object, Your Honor, it’s a personal opinion, it’s not allowed.
“COURT: Sustain the objection.
“[Prosecutor]: And it’s up to you now to — And if you want to live in a community where a person can kill another person—
“[Defense Counsel]: I object, Your Honor, it’s an attempt to,inflame the jury.
“COURT: Objection is overruled until I hear what he’s got to say.
“[Prosecutor]: —can kill another person in the manner that this was conducted and excuse it because he had a few drinks, that’s up to you.
“[Defense Counsel]: Object, Your Honor, he’s asking — he’s changing the court’s instructions and trying to inflame the jury.
“COURT: I’m going to sustain the objection. The jury has heard the instructions, they’ll have the instructions, and they’ll know under what circumstances intoxication is a proper defense.”
The prosecutor’s argument was improper, both in expressing personal belief and in appealing to a juror’s personal- interests as a member of a community. The question is whether the record before us requires reversal as a result of the prosecutor’s improper comments.
“The granting of a new trial is a matter of discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of discretion.” State v. Bell, 224 Kan. 105, 108, 577 P.2d 1186 (1978). “Discretion is abused only when no reasonable [person] would take the view adopted by the trial court; if reasonable [people] could differ as to the propriety of the action taken by the trial court, then it cannot be said the court abused its discretion. [Citation omitted.]” State v. Galloway, 238 Kan. 415, 418-19, 710 P.2d 1320 (1985).
The prosecutor’s language with which the defendant first takes exception is:
“[Prosecutor]: When I made my opening statement I told you a story, X told you a story of the events of July 23rd. And I told you that we would present evidence that would convince you beyond a reasonable doubt that that story was true. And I believe we have done that. Tuesday and Wednesday of last week we put on evidence that I believe — ”
At this point, the trial court sustained defense counsel’s objection. The prosecutor apologized for saying, “I believe.” The State suggests there is no reversible error because the trial judge sustained the objection and the prosecutor apologized.
Then, the prosecutor argued that the defendant’s killing of Samuel Ward was premeditated.
“[T]he idea occurred to him, he decided to do it, and he did it. That’s what premeditation is. Now, we don’t know exactly when this thought process took place in the defendant’s mind. But we know it did.
“[Defense Counsel]: I object, Your Honor. Again, he’s injecting his personal belief.
“Court: Objection is overruled.
“[Prosecutor]: We know it did.”
The prosecutor used the term “we” many times during his closing statements; he also used the term “you.”
In addition to the appeal to the jurors’ fear of lawlessness in the community, Jordan also argues that the trial court inconsistently and improperly ruled on statements regarding the manner in which Ward was stabbed:
“Defense counsel was not allowed to argue to the jury that the position of the wound and the lack of an upward thrust indicated no intent to kill. However, the lower court refused to sustain the defense objection to the exact same type of argument by the prosecutor when he argued that when one intends to kill someone one stabs the victim exactly where Mr. Jordan stabbed Mr. Ward.”
Defense counsel stated, “I think you can imagine if you intended to kill somebody, that’s not where you would stab them. In the movies they show coming up under the ribcage where the heart would be, and they make an upward thrusting motion.” The trial court sustained the prosecutor’s objection, noting that “[w]e’re not in the movies.”
This argument has little merit.
Jordan argues that the prosecutor s comments are similar to those made in State v. Majors, 182 Kan. 644, 323 P.2d 917 (1958), in which the prosecutor appealed to the jury’s fear of lawlessness in the community. The State maintains that the prosecutor’s remarks in this case are not as objectionable as the remarks made by the prosecutor in Majors, who stated:
“[T]hank God we happened to get him — or Justine Anderson happened to get him in time. We have the jury, you have to determine whether he is going to be allowed to go out and repeat this same thing that he went through here and has already been proved as established by the evidence which was produced in this court room, and your home and my home is at stake. And I point out to you that everyone who got up here in his behalf and asked you to let him go out there and do that again — not a one of them have a home and a family, a wife and children to protect, here.” 182 Kan. at 647.
Although the trial court admonished the prosecutor in State v. Majors the jury was not instructed to disregard the prosecutor’s comments. This court found reversible error and cautioned that appeals to the self-interests of the jury are not proper and will not be condoned because such remarks prejudice the accused’s right to a fair trial.
In State v. Wilson, 188 Kan. 67, 360 P.2d 1092 (1961), the defendant was on trial for rape and kidnapping, among other charges. Over the defendant’s objection, the trial court allowed the prosecutor to read to the jury from a newspaper article about the Chessman rape case, one of the most controversial cases of the day (nationally and internationally). The article included a statement from the victim’s mother that the rape “caused her [daughter] to lose her mind and life among normal human beings.” 188 Kan. at 71. The trial court did remind the jury that this article was not evidence. This court found reversible error, stating: “The argument can only be deemed an appeal to prejudice and passion and an attempt to introduce facts not disclosed by the evidence. It was extremely improper and prejudicial to defendant’s rights.” 188 Kan. at 72.
In State v. Warbritton, 215 Kan. 534, Syl. ¶ 1, 527 P.2d 1050 (1974), this court ruled that “[i]mproper remarks made by the prosecuting attorney in his summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the .same, unless the remarks were so prejudicial as to be in'curable.”
In State v. Perales, 220 Kan. 777, 556 P. 2d 172 (1976), the prosecutor told the jury in closing argument that unless the jury convicted the defendant, the defendant would commit the crime again. The trial court sustained the defendant’s objection and instructed the jury “ ‘that what might happen in the, future is pure conjecture ,and not to be considered.’ ” 220 Kan. at 780. This court,found that the trial court’s prompt instruction to the jury eliminated potential prejudice to the defendant.
In State v. Zamora, 247 Kan. 684, 689, 803 P.2d 568 (1990), the prosecutor told that jury that the defendant “has raped this victim once. If he is found not guilty, he will get away with it again.” The trial court overruled the defendant’s objection. This court found prejudicial error and noted that a general instruction to the jury — i.e., statements and arguments by counsel are not evidence and should be disregarded — does not cure the error. This court also discussed whether the error was harmless: “[T]he reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.” 247 Kan. at 690.
In the case at hand, the prosecutor’s general use of the term “we” does not constitute reversible error. In State v. Bilby, 194 Kan. 600, 603, 400 P.2d 1015 (1965), this court found that the following prosecutorial remarks did not exceed “fair argument.”
“ ‘[T]he prosecution would not have been carried on unless the state had felt the defendant was guilty — that the man who did it (the robber) was in the court room — that the state had carried the burden and as a result of its evidence the weight has shifted to the other side of the (counsel) table’— and so forth.”
The prosecutor’s statement that this “young man is a murderer” also does not constitute reversible error, pursuant to Warbritton and Bilby. The trial court sustained the defendant’s objection and reminded the jury that the prosecutor’s statement was not evidence and should be disregarded.
The prosecutor’s last comment concerning whether the jurors would desire to live in a community in which a person can be excused for killing someone because he had a few drinks is a violation of the Model Rules of Professional Conduct. The trial judge had an opportunity to prevent the statement and failed to do so. We do not, however, find the violation to be reversible error because at least four times during closing argument the trial judge instructed the jury that statements of counsel were not evidence and that the jury had heard the instructions, would have a copy of the instructions, and should follow them. In addition, the trial court sustained the objection to the remark. Defense counsel did not request a mistrial nor ask that the jury be admonished to disregard the remark. Based on the record before us, we do not find reversible error.
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The opinion of the court was delivered by
Six, J.:
This is a first-impression statutory interpretation case coming to us as a declaratory judgment action seeking: (1) a determination that persons, duly appointed as general process servers under K.S.A. Í991 Supp. 60-303(c)(3), have the authority and power to serve all process, including writs of execution and orders of attachment; and (2) an injunction enjoining the City of Wichita (City) from interfering with such service of process.
Eight individual plaintiffs, Robert Steele, Sheldon Wulf, Ronald Waits, Gary Davis, Gareth Smith, Bill Warfield, James Walters, and Emery L. Goad, have been appointed process servers by a judge or clerk of the 18th Judicial District under K.S.A. 1991 Supp. 60-303(c)(3). The process server plaintiffs (process servers) brought this action against the City.
The trial court ruled that K.S.A. 1991 Supp. 60-303(c)(3) limits the authority of general-appointment process servers to serve summonses, petitions, and those documents that might be attached to a summons.
We granted the process servers’ motion to transfer from the Court of Appeals. Our jurisdiction is under K.S.A. 20-3017.
The issue for resolution in the case at bar centers on the breadth of K.S.A. 1991 Supp. 60-303(c)(3). What is the extent of the authority the legislature intended for process servers under a general appointment? What is the relationship of K.S.A. 60-706, K.S.A. 60-2401, and K.S.A. 1991 Supp. 60-303(c)(3) in describing the authority of general-appointment process servers?
We hold that K.S.A. 1991 Supp. 60-303(c)(3) authorizes process servers, under a general appointment, to serve all process which is complete upon delivery unless special statutes require service by the sheriff or person authorized to exercise the duty of a sheriff.
We agree with the trial court that K.S.A. 60-706 and K.S.A. 60-2401 do not authorize court-appointed general process servers to serve writs of execution and orders of attachment.
Facts
The parties stipulated to the following facts and legal issues:
“1. Plaintiffs have all been appointed as process servers by a Judge or Clerk of the 18th Judicial District, pursuant to K.S.A. [1991 Supp.] 60-303(c)(3).
“2. Plaintiffs have relied on K.S.A. [1991 Supp.] 60-303(c)(3), [K.S.A.] 60-706(b), [K.S.A.] 60-2401 and other statutes, to serve, execute, and carry out writs of execution, attachment, restitution or assistance, and other similar court orders or process. Plaintiffs also seize property, retain possession thereof, cause such property to be sold at judicial sale, and transfer title to such property to such purchasers.
“3. On occasion, police officers have been called to the scene by the Plaintiffs, the'person on whom a writ of execution or other Court order is being carried out, or by parties who are not involved but who have observed the Plaintiffs carrying out the execution, writ, or other court order or process.
“4. Police officers are called to the scene where writs of execution and other court orders or process are being carried out, most often, because an alleged breach of the peace is occurring or there is a fear that a breach of the peace will occur. More often than not Plaintiffs have called police to the scene.
“5. Plaintiffs maintain they have authority under their appointment as a process server under K.S.A. [1991 Supp.] 60-303(c)(3) to execute or carry out a writ of execution, writ of attachment, or other similar court order or process, and they maintain they have the authority to seize property and retain possession thereof to the same extent that a sheriff or other law enforcement has as provided by law.
“6. Police officers, upon arrival at a scene where Plaintiffs are executing or carrying out a writ of execution, writ of attachment, or other similar court order .or process, have on occasion stopped the carrying out of such court order or process for the purpose of conducting an investigation into an alleged breach of peace. On such occasions certain of the Plaintiffs have been threatened with arrest and Plaintiff Goad has been arrested for provoking an assault, disorderly conduct and interfering with a police officer.
“7. Police officers have also on occasion, when called to a scene, reviewed the documentation that allegedly empowers Plaintiffs to serve process, carry out a writ of execution, writ of attachment, or other similar court order or process, and such review has resulted in Plaintiffs being delayed in their service and execution.
“8. The parties agree that if this Court renders judgment, there exists a factual basis for some form of permanent equitable relief consistent with said judgment. Parties may propose forthwith the appropriate equitable order or injunctive relief. The parties hereby respectfully request the Court to render such determination as expeditiously as possible, to protect the parties and enforce the declaratory judgment of the Court.
“9. The parties agree that the temporary Restraining Order entered June 27, 1991, shall remain in full force and effect until further Order of this Court.
“Issues
“1. Is a person appointed as process server under K.S.A. [1991 Supp.] 60-303(c)(3) authorized and empowered to execute and carry out writs of execution, attachment, restitution or assistance, and other similar court order or process pursuant to K.S.A. 60-706(b), 60-2401 and other statutes?
“2. Does a person appointed under K.S.A. [1991 Supp.] 60-303(c)(3) have the authority during the serving of executions and carrying out writs of execution, attachment, restitution, assistance or other court orders, to breach the peace if reasonably necessary, pursuant to other statutes such as K.S.A. 60-706(b), 60-2401?
“3. Does a police officer who is called to the scene when a writ of execution, writ of attachment, or other similar court order or process is being carried out have authority to temporarily stop or delay the serving or execution of such court order or process for the purpose of conducting an investigation into alleged breaches of the peace? Further, does the police officer have the authority to review the documentation that such person (who is serving the Court order or process) has in his possession that relates to the order being served?
“4. Does a person appointed under K.S.A. [1991 Supp.] 60-303(c)(3) and other statutes such as K.S.A. 60-706(b) and 60-2401 have thé authority to sell and transfer title to property seized according to law?”
Ruling of the Trial Court
The trial court adopted the stipulation of facts and ruled for the City, finding, as a matter of law, that K.S.A. 1991 Supp. 60-303(c)(3) “limits the appointment of individuals as process servers to the issuance of summonses.” The trial court stated: “K.S.A. [1991 Supp.] 60-303(c)(3) does not authorize a general appointment that empowers an individual to serve all process.” The trial court stated that it was not ruling whether a district court judge may specially appoint individuals to serve writs of execution, attachment, or other court process under K.S.A. 60-706 or K.S.A. 60-2401 et seq. because the issue was not fairly before the court. The trial court did not reach the stipulated issues 2, 3, and 4, stating its ruling made such issues moot.
Scope of Review
This case was decided by the trial court on the basis of stipulated facts; consequently, we exercise de novo review. Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990). In addition, the issue is one of statutory construction, which is subject to unlimited appellate review. See Pyeatt v. Roadway Express, Inc., 243 Kan. 200, 204, 756 P.2d 438 (1988).
The trial court’s ruling related only to a general appointment; consequently, our opinion also is limited to general appointments.
Argument of the Process Servers
Plaintiffs assert that K.S.A. 1991 Supp. 60-303(c)(3) authorizes persons appointed generally as process servers to serve “all process,” including writs of execution and orders of attachment. They emphasize that all reference in K.S.A. 1991 Supp. 60-303 is to “process” and not solely to “summons.” Plaintiffs contend “process” means all legal writs, orders, and summonses, including writs of execution. The limiting language of K.S.A. 1991 Supp. 60-303(c)(3), “under this subsection,” makes clear that process servers appointed under K.S.A. 1991 Supp. 60-303(c)(3) may not serve process by certified mail. Plaintiffs contend the 1990 legislature amended article 3, chapter 60, by substituting “process” for “summons and petition” (L. 1990, ch. 202, § 5; K.S.A. 1991 Supp. 60-304) and substituting “summons” for “process” (L. 1990, ch. 202, § 9; K.S.A. 1991 Supp. 60-308). K.S.A. 1991 Supp. 60-312(a)(1) provides for proof of service of “summons or other process” made by an officer. If service of “such process” is directed to a nonofficer, K.S.A. 1991 Supp. 60-312(a)(2) directs the non-officer to make an affidavit as to time, place, and manner of service. Plaintiffs assert that if a nonofficer may file a return of service, such nonofficer must be able to serve process. Plaintiffs declare that if appointed process servers are limited to service of summonses under K.S.A. 1991 Supp. 60-303(c)(3), then sheriffs are also limited to service of summonses. Therefore, no one is authorized to serve any process other than a summons under K.S.A. 60-301 et seq.
Plaintiffs contend K.S.A. 1991 Supp. 60-303(b) excludes service by certified mail for service provided for in K.S.A. 1991 Supp. 60-903 (restraining order without notice), K.S.A. 1991 Supp. 60-906 (injunction order, restraining order), and K.S.A. 1991 Supp. 60-3104 (protection from abuse). Service under these statutes must be personal and can only be served under K.S.A. 1991 Supp. 60-303(c)(3). If K.S.A. 1991. Supp. 60-303(c)(3) is limited to summonses, there is no mechanism under article 3 for service of process under K.S.A. 1991 Supp. 60-903, 60-906, and 60-3104. Finally, plaintiffs argue that the legislative history, specifically the testimony by a representative of the Judicial Council, indicates that the 1986 amendments authorizing general appointments would allow service of all process by process servers serving under a general appointment.
The City’s Position
The City contends “all process” as used in K.S.A. 1991 Supp. 60-303(c)(3) was intended to refer to “original process,” which is synonymous with summons. The limiting language “under this subsection” in 60-303(c)(3) refers back to 60-303(c)(l), which involves personal and residence service of “process and petition, or other document to be served,” which means summonses and petitions and documents that may be attached to petitions. The amendments to article 3 changing “summons” to “process” did not give plaintiffs the authority to serve writs of execution and orders of attachment. K.S.A. 1991 Supp. 60-303(c)(3) is limited to service under K.S.A. 1991 Supp. 60-303(c)(l), i.e., service of summonses, petitions, and other related attached documents. Addressing plaintiffs’ K.S.A. 1991 Supp. 60-303(b) argument, the City asserts that K.S.A. 1991 Supp. 60-903, 60-906, and 60-3104 deal with the process of bringing a party into a lawsuit, in other words, original process. Finally, the City contends the legislative history does not indicate the Judicial Council was advocating that process servers were to be appointed to serve process other than summonses, petitions, and attached documents.
K.S.A. 1991 Supp. 60-303(c)(3)
A fundamental rule of statutory construction is that the intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, legislative intent is to be determined from a general consideration of the entire act. It is our duty, as far as practicable, to reconcile the different provisions to make them consistent, harmonious, and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
We must give effect to the legislature’s intent even though words, phrases, or clauses must be omitted or inserted in the statute. In determining legislative intent, we are not limited to consideration of the language used in the statute. We may look to the historical background of the statute, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Read v. Miller, 247 Kan. 557, 561-62, 802 P.2d 528 (1990). Ordinarily, courts presume that by changing the language of a statute the legislature intends to change its effect. However, the presumption may be strong, weak, or absent, depending on the circumstances. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).
Having stated the rubric for statutory construction, we turn to the key statute in issue.
K.S.A. 1991 Supp. 60-303(c) states in part:
“Personal and residence service. (1) When the plaintiff files a written request with the clerk for service other than by certified mail, service of process shall be made by personal or residence service. Personal service shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served. Residence service shall be made by leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein. If service cannot be made upon an individual, other than a minor or a disabled person, by personal or residence service, service may be made by leaving a copy of the process and petition, or other document to be served, at the defendant’s dwelling house or usual place of abode and mailing a notice that such copy has been left at such house or place of abode to the individual by first-class mail.
“(2) When process is to be served under this subsection, the clerk of the court shall deliver the process and sufficient copies of the process and petition, or other document to be served, to the sheriff of the county where the process is to be served or, if requested, to a person appointed to serve process or to the plaintiffs attorney.
“(3) Service of all process under this subsection shall be made by a sheriff within the sheriffs county, by the sheriffs deputy, by an attorney admitted to the practice of law before the supreme court of Kansas or by some person appointed as a ■process server by a judge or clerk of the district court, except that a subpoena may also be served by any other person who is not a party and is not less than 18 years of age. Process servers shall be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time. A process server or an authorized attorney may make the service anywhere in or out of the state and shall be allowed the fees prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff.” (Emphasis added.)
The City relies on Black’s Law Dictionary 1205 (6th ed. 1990), as authority that “process” means summons and petition only.
The legislative history of K.S.A. 1991 Supp. 60-303(c)(3), however, leads to the conclusion that the term “process” as used in the statute is broad enough to include delivery of all process of the court.
The 1990 legislature added subsections (b), (c)(1), and (c)(2) to 60-303. The major 1990 change in 60-303 was the addition of subsection (b), which provided for service by certified mail. The only significant difference in K.S.A. 1991 Supp. 60-303(c)(3) is the additional language, “under this subsection.” “[U]nder this subsection” was not necessary when 60-303 only authorized personal and residence service. Thus, the phrase “under this subsection” limits the provisions in 60-303(c)(3) to personal and residence service as defined in 60-303(c)(l).
K.S.A. 60-303 (Corrick) was first enacted in 1963 when Kansas revised the Code of Civil Procedure to conform to the Federal Rules of Civil Procedure. Originally, K.S.A. 60-303 (Corrick) provided:
“By whom served. Service of all process shall be made by a sheriff within his county, by his deputy or by some person specially appointed by the judge for that purpose, or in his absence, by the clerk, except that a subpoena may be served as provided in section 60-245(d). Special appointments to serve process shall be made freely when substantial savings in travel fees will result. A person specially appointed to serve process may make such service any place in the state, and shall be allowed the same fees as the sheriff for similar services.”
In 1 Gard’s Kansas C. Civ. Proc. 2d Annot., Ch. 60, Art. 3 (1979), the Prefatory Note of the Advisory Committee states:
“Generally an effort has been made to provide, under this article, a complete method of service for every possible civil remedy. It is sufficiently complete that all other methods of service provided in numerous chapters of the statutes can be repealed except where the service is tied to the substantive law for constitutional reasons. We have not attempted to do the repealing. This can be done from time to time as the legislature desires. The methods presented here are alternative to but not in restriction of the different methods specifically provided by law.” (Emphasis added.)
The 1963 version of 60-303 was substantially similar to the original version of Fed. R. Civ. Proc. 4(c), which provided:
“By Whom Served. Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose, except that a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.”
The 1986 amendment to 60-303 changed the statute to substantially the same language that is now contained in K.S.A. 1991 Supp. 60-303(c)(3). The major change in the 1986 amendment deleted the reference to specially appointed process server and added the language: “Process servers shall be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time.” L. 1986, ch. 215, § 14. A Judicial Council staff attorney appeared before the Senate Committee on Judiciary in 1986, stating that the bill (Senate Bill 480) contained amendments relating to the rules of civil procedure and service of process recommended by the Civil Code Advisory Committee and approved by the Judicial Council. The staff attorney testified:
“The amendments [to K.S.A. 60-301 and K.S.A. 60-303, respectively] would allow service of the summons and petition and other process by Kansas attorneys and appointed process servers in addition to service by the sheriff. The amendments were prompted in part by the federal practice of making service of the summons and complaint the responsibility of the plaintiff rather than the U.S. Marshal.” (Emphasis added.) Minutes of the Senate Committee on Judiciary, February 5, 1986, Attachment I.
When the 1986 amendment to 60-303 was passed, the current version of Fed. R. Civ. Proc. 4(c) was in effect and differentiated between service of a summons and complaint and service of other process. Fed. R. Civ. Proc. 4(c) now states in part:
“Service.
“(1) Process, other than a subpoena or a summons and complaint, shall be served by a United States marshal or deputy United States marshal, or by a person specially appointed for that purpose.
“(2)(A) A summons and complaint shall, except as provided in subparagraph (B) and (C) of this paragraph, be served by any person who is not a party and is not less than 18 years of age.”
The Judicial Council and the legislature, contrary to Fed. R. Civ. Proc. 4(c), chose not to distinguish between service of a summons and petition and service of other process. K.S.A. 60-303 was originally adapted from the Fed. R. Civ. Proc. 4(c) in effect in 1963. Both statutes used the language “all process.”
In 1966, the Fifth Circuit Court of Appeals held that Rule 4(c) governs the service of writs of garnishment issued in federal court. United States v. St. Paul Mercury Insurance Company, 361 F.2d 838 (5th Cir. 1966). Thus, “all process” in Rule 4(c) was not limited to service of summonses and complaints.
We conclude that “process” as used in K.S.A. 1991 Supp. 60-303 was intended to be broader than summonses, petitions, and documents which may be attached. The broader interpretation is consistent with the interpretation extended to the earlier version of Fed. R. Civ. Proc. 4(c) from which K.S.A. 60-303 was originally adapted. See, e.g., St. Paul Mercury Insurance Co., 361 F.2d at 839.
Our reasoning that “all process” as used in K.S.A. 1991 Supp. 60-303(c)(3) refers to process other than summonses, petitions, and attached documents does not, however, lead to the conclusion that the legislature intended to grant authority for process servers under a general appointment to serve writs of execution and orders of attachment. As we discuss later in this opinion, K.S.A. 60-2401 and 60-706 limit the authority for service of such writs to sheriffs or other law enforcement officers. Furthermore, service of process involving obligations of the process server beyond serving notice invokes other duties and responsibilities which may require the enforcement presence of a sheriff. Where enforcement may be required, it would be improper to appoint a person who does not possess the same statutory powers. See 4A Wright & Miller, Federal Practice and Procedure: Civil § 1091 (1987).
The policy preventing the service of writs of execution and orders of attachment by generally appointed process servers may be reconciled with the language of K.S.A. 1991 Supp. 60-303(c)(3). K.S.A. 1991 Supp. 60-303(c)(3) authorizes only service of process, i.e., the delivery of process. The statute does not authorize the execution of process. Thus, general process servers appointed under K.S.A. 1991 Supp. 60-303(c)(3) are authorized to serve any process which only involves delivery of the process.
The trial court erred in limiting “all process” to summonses, petitions, and attached documents. K.S.A. 1991 Supp. 60-303(c)(3) is broad enough to authorize the general appointment of process servers to serve all process which is complete upon the delivery of the process; consequently, we need not address the process servers’ 60-303(b) argument.
K.S.A. 60-706 and K.S.A. 60-2401
Plaintiffs argue that K.S.A. 60-706 and K.S.A. 60-2401 authorize process servers under a general appointment to serve writs of execution and orders of attachment. K.S.A. 60-2401(a) au thorizes “an officer” to seize nonexempt property. A writ of execution is served in the same manner as an order of attachment under K.S.A. 60-706 through 60-710. K.S.A. 60-2401(d). K.S.A. 60-706 authorizes a sheriff or “other officer” authorized by law to serve an order of attachment in the same manner as an ordinary summons under article 3. (K.S.A. 60-301 et seq.) Plaintiffs contend that a court-appointed process server under a general appointment is an “officer” of the court and authorized to serve writs of executions and orders of attachment under K.S.A. 60-706 and 60-2401.
K.S.A. 60-2401 provides in part:
“Writ of execution, (a) Definitions. A general execution is a direction to an officer to seize any nonexempt property of a judgment debtor and cause it to be sold in satisfaction of the judgment. A special execution or order of sale is a direction to an officer to effect some action with regard to specified property as the court determines necessary in adjudicating the rights of parties to an action.
“(b) By whom issued. Executions and orders of sale shall be issued by the clerk at the request of any interested person and directed tó the appropriate officers of the counties where they are to be levied.
“(d) Manner of levy. A general execution shall be levied upon any real or personal nonexempt property of the judgment debtor in the manner provided for the service and execution of orders of attachment under K.S.A. 60-706 through 60-710, and amendments thereto. Oil and gas leaseholds, for the purposes of this article, shall be treated as real property. Special executions or orders of sale shall be levied and executed as the court determines.” (Emphasis added.)
K.S.A. 60-706 provides in part:
“Attachment order, (a) Issuance and contents. The order of attachment shall be delivered to the sheriff of any county or other officer authorized by law to serve the same, and shall command such sheriff or officer to attach the property of the defendant or so much thereof as will be sufficient to satisfy the plaintiff’s claim ....
“(b) Manner of serving order. The attachment order shall be served as follows:
“(1) Service of attachment. In addition to the process required under article 3 of this chapter, the order of attachment shall be served upon the defendant, if the defendant can be found, in the same manner as an ordinary summons, and a return made thereof.
“(2) Manner of executing order, inventory. The order of attachment shall be executed by the officer without delay. . . .” (Emphasis added.)
Both K.S.A. 60-706 and 60-2401 distinguish between service and execution. K.S.A. 1991 Supp. 60-303(c)(3) only authorizes service.
K.S.A. 19-812 provides:
“The sheriff, in person or by his undersheriff or deputy, shall serve and execute, according to law, all process, writs, precepts and orders issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county, and shall receive such fees for his services as are allowed by law.” (Emphasis added.)
K.S.A. 19-812 specifically authorizes the sheriff, undersheriff, or deputy to execute writs. K.S.A. 19-804a authorizes the county clerk to exercise all the powers and duties of the sheriff when there is no sheriff in an organized county. K.S.A. 19-80 la requires the sheriff to execute a bond. K.S.A. 19-820 provides for penalties when the sheriff neglects to make return of “any writ or process.”
A review of K.S.A. 19-812, 19-804a, 19-801a, and 19-820 leads us to conclude that “officer” as used in K.S.A. 60-706 and K.S.A. 60-2401 refers to sheriffs, undersheriffs, deputies, county clerks, and others who are authorized by law to exercise the sheriff s duties. In addition, K.S.A. 1991 Supp. 60-312(a) distinguishes between the manner in which officers and nonoflficers return proof of service. If plaintiffs’ argument that persons authorized to serve process are officers of the court had merit, there would be no need to distinguish between officers and nonofficers.
K.S.A. 1991 Supp. 60-303 is a general statute regarding service,, of process. K.S.A. 60-706 and K.S.A. 60-2401 are specific statutes dealing with service and execution of writs of execution and orders of attachment. The specific statutes control. See Kansas Racing Management, Inc. v. Kansas Racing Comm'n, 244 Kan. 343, 353, 770 P.2d 423 (1989).
K.S.A. 60,-706 and K.S.A. 60-2401 require a sheriff or person authorized to exercise the duty of a sheriff to serve and execute writs of executions and orders of attachment. Such statutes do not authorize process servers under a general appointment to serve and execute such writs.
We reverse the trial court’s holding that K.S.A. 1991 Supp. 60-303(c)(3) limits process servers operating under a general appointment to serving summonses, petitions, and attached documents. We hold that K.S.A. 1991 Supp. 60-303(c)(3) authorizes general appointment process servers to serve all process which is complete upon delivery unless specific statutes require the sheriff or persons authorized to exercise the duty of a sheriff to serve the same.
We affirm the trial court’s ruling that K.S.A. 60-706 and 60-2401 do not authorize process servers under a general appointment to serve writs of execution and orders of attachment.
Affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
LOCKETT, J.:
Patrons Mutual Insurance Association (Patrons) appeals the order of the trial court granting summary judgment in favor of Union Gas System, Inc., (Union Gas) in a subrogation action for damages Patrons paid its insured arising out of an explosion of Union Gas’s gas pipeline system. Patrons’ insured had previously settled his uninsured losses caused by the explosion in another action against Union Gas which was dismissed with prejudice after the settlement. The district court found that because Patrons had failed to intervene in its insured’s action, it failed to protect its own rights. Patrons appealed. This case was transferred from the Court of Appeals under K.S.A. 20-3018(c).
On September 20, 1987, an explosion occurred in downtown Independence, Montgomery County, Kansas, in an area where Union Gas had had crews working on gas lines the previous week. The explosion damaged several buildings in the surrounding area, including two buildings owned by John F. Brandenburg and insured by Patrons. Pursuant to its insurance contract, Patrons paid Brandenburg $7,460 for damages to one building and $13,000 for damages to the second building. Patrons notified Union Gas by letter of its subrogation rights to the funds it paid its insured for damages caused by Union Gas to Brandenburg’s buildings.
On March 16, 1989, Brandenburg personally entered Walters, et al., v. Union Gas, Montgomery County District Court Case No. 88 C-114 C, as a plaintiff in a pending lawsuit. The amended petition made claim for all of Brandenburg’s losses caused by Union Gas. On September 7, 1989, Patrons brought a second action, Montgomery County District Court Case No. 89 C-279 C, in the name of John F. Brandenburg to recover the $20,460 it paid its insured for loss to the buildings.
On February 5, 1990, as part of a settlement agreement in the first action, Brandenburg signed a Limited Full Release of Claims. The release contained the following provision:
“THIS RELEASE is a release only of the claims of JOHN W. BRANDENBURG and JOHN F. BRANDENBURG individually and is not a release of claims held, if any, by their insurer, Patrons Mutual Insurance Company.”
In July 1990, as part of the settlement all the plaintiffs, including Brandenburg, entered into a stipulation for dismissal with prej udice of Case No. 88 C-114 C. The case was dismissed with prejudice on September 20, 1990.
On August 21, 1990, Union Gas filed a motion to dismiss this action, 89 C-279 C, claiming Brandenburg’s second action was barred by the doctrine of res judicata. The district court denied Union Gas’s motion on November 30, 1990, and allowed Patrons 20 days to file an amended petition as the real party in interest; to accurately state its claim; and to specify with particularity its status, the subrogation matters, and its actual request for damages.
On December 20, 1990, Patrons filed its “First Amended Petition,” naming itself plaintiff. The amended petition states in part:
“As a direct result of the explosion, the real property owned by John F. Brandenburg and insured by plaintiff was substantially damaged or destroyed. By virtue of the insurance policy issued to John F. Brandenburg . . . , plaintiff was required to pay to its insured, John F. Brandenburg, sums totaling $20,460.90 and [was] . . . subrogated to the rights of John F. Brandenburg for his cause of action against defendant to recover said sums.”
On March .11, 1991, Union Gas filed a motion for summary judgment, contending: (1) Subrogation gives Patrons only Brandenburg’s rights, all defenses against Brandenburg are also defenses against Patrons, and, therefore, Patrons is barred from bringing this second action; (2) to protect its right of subrogation, Patrons was required but failed to intervene in 88 C-114 C; and (3) because 88 C-114 C was dismissed with prejudice, res judicata bars Brandenburg or Patrons from suing Union Gas in a second suit.
On April 30, 1991, the trial court found there were no material issues of fact. It determined (1) because Brandenburg’s claim against Union Gas is barred by the doctrine of res judicata, Patrons’ claim is also barred; and (2) when Patrons neglected to intervene in the first action, it failed to protect its rights in this action. The court granted Union Gas’s motion for summary judgment. Patrons appealed.
Summary judgment is proper only where the pleadings, depositions, answers to interrogatoriés, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Falls v. Scott, 249 Kan. 54, 57, 815 P.2d 1104 (1991).
Patrons argues that the doctrine of res judicata does not apply because Union Gas was aware when it settled with Brandenburg in the original action that there was a pending Patrons’ action for real property damages which were not included in its settlement with Brandenburg. In other words, Union Gas, when settling with Brandenburg, agreed to preserve the subrogation rights of Patrons, thereby waiving its right to claim the defense of res judicata, and is now estopped from circumventing this agreement. Patrons further claims the doctrine of promissory estoppel applies since Brandenburg was induced to settle with Union Gas because he believed by the reservation of any claim of Patrons he had protected his insurer’s right of subrogation.
Union Gas argues it did not waive its right to assert res judicata as a defense. The release drafted and signed by Brandenburg did not reserve the insured portion of Brandenburg’s claim; instead, it released all of Brandenburg’s claims and merely stated it was not a release of claims held, if any, by Patrons. Union Gas alleges Patrons has never asserted any claim other than Brandenburg’s claim for his insured loss. Union Gas observes that Patrons brought this second action, on September 7, 1989, and that the release in the first action was prepared and executed by Brandenburg in February 1990. It claims the release was not executed by Brandenburg until some six months after Patrons filed the second action, so Patrons cannot claim it relied on the release when it filed the second action. Union Gas concluded that because Patrons did not rely on the release, Patrons cannot claim Union Gas waived its right or is estopped to assert that res judicata applies. In addition, it was Patrons that had the burden of protecting its subrogation interest, not Union Gas.
The question of waiver is one of fact or a mixed question of law and fact. Hurlbut v. Butte-Kan. Co., 120 Kan. 205, 206, 243 Pac. 324 (1926). Waiver must be manifested in some unequivocal manner by some distinct act or by inaction inconsistent with an intention to claim forfeiture of a right. Mere silence of a party is not waiver unless such silence is under circumstances requiring the party to speak. Citizen B. & L. Ass’n v. Jones, 149 Kan. 302, 307, 87 P.2d 633 (1939).
For the doctrine of promissory estoppel to be invoked, the evidence must show that the promise was made under circumstances where the promisor intended and reasonably expected that the promise would be relied upon by the promisee and further that the promisee acted reasonably in relying upon the promise. Patrons asserts promissory estoppel should be applied only if a refusal to enforce it would be virtually to sanction the perpetration of fraud or would result in other injustice. See Marker v. Preferred Fire Ins. Co., 211 Kan. 427, 434, 506 P. 2d 1163 (1973).
The parties agree Patrons obtained its right of subrogation through Brandenburg and what defenses are available against Brandenburg are also available against Patrons. An insurer’s right of subrogation is derived from the insured, and any defense a wrongdoer has against the insured is good against the insurer subrogated to the rights of the insured. Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 539, 608 P.2d 923 (1980). Union Gas asserts Brandenburg could not maintain a second action against Union Gas because he settled with Union Gas in a separate case for the same damages; therefore, the doctrine of res judicata, which bars Brandenburg from filing a second action, also bars Patrons’ action for subrogation. Union Gas also argues that when Brandenburg brought his action for the recovery of the loss it caused, Patrons was informed of the pendency of the action, but chose not to represent the interests of its insured. When informed of a possible settlement between its insured and the wrongdoer, Patrons failed to intervene in the action to protect its interests and is now barred by res judicata. In support of its contention, Union Gas cites Insurance Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819 (1911).
In Cosgrove, the insureds’ building, valued at $2,100, and its contents of $1,400, were totally destroyed by fire. The insurance company paid its insureds the sum of $500. Thereafter, the insureds brought an action against the railroad company to recover the loss occasioned by the fire. The insureds requested $3,500 but settled for $1,500 and dismissed the action against the railroad. The insurer had knowledge of its insureds’ action but took no part in the litigation. The insurer brought an action against its insureds to recover the sum of $500 which it had paid to its insureds on the policy of insurance.
In Cosgrove, the question was whether the insurance company had any legal right to depend upon its insureds to protect its right or whether it was the duty of the insurance company to join with its insureds in the prosecution of the suit or to intervene to protect its rights. The Cosgrove court observed that while an insured is the only proper party to bring the suit against the wrongdoer, the insurer was not powerless to protect its own interests — it could have intervened or, by consent of the insureds, joined in the prosecution of the action. If the insurer is notified its insured does not wish to be represented by the insurer, it is the duty of the insurer to protect its rights, especially when it had been notified that a settlement was possible. The court stated: “After an insurer has intervened and shown [it] has a monetary interest in the result of the action, it is not to be presumed that any court would permit a settlement between the insured and the wrongdoer to the detriment of the insurer, but, on the contrary, that the rights of all parties would be protected.” 85 Kan. at 300. The court determined the insurer, having made no effort to intervene and look after its own interests, could not hold its insureds responsible for settling the case as the insureds thought best for their own interests.
We do not find Cosgrove analogous to this case. Here, Brandenburg attempted to protect his insurer’s subrogation right when executing the release to Union Gas. Patrons is not attempting to bring an action against its insured for failure to protect its right.
The doctrine of res judicata requires that all grounds or theories upon which a cause of action or claim is founded be asserted in one action, or they will be barred in any later action. Union Gas argues the fact that Brandenburg may have settled for less than the total amount of his damages in an action which was dismissed with prejudice does not give him the right to subsequently sue Union Gas for the balance of his damages in another action. Union Gas asserts that even if Brandenburg’s first action was limited to his uninsured loss, res judicata would bar the second action for his insured loss because Brandenburg is prohibited from splitting his cause of action against Union Gas. We disagree.
In Todd v. Central Petroleum Co., 155 Kan. 249, 124 P.2d 704 (1942), the, plaintiff, an attorney, filed two causes of action to recover compensation for his services. In the first case Todd sought recovery for compensation from the time of his employment in June of 1935 to July 1, 1937. In the second case recovery was sought for attorney services from July 1, 1937, to December 20, 1937, when the litigation was concluded. Subsequently, the defendant moved to join the two causes of action. The district court denied the request. After the first action had been tried, the defendant moved to dismiss the second action because plaintiff had split his causes of action. The district court granted the motion and the plaintiff appealed. The Todd court noted the rule against splitting of a cause of action is for the benefit of defendant, but it may be waived if not claimed in a clear and timely manner. The Todd court found the defendant’s failure to timely object to the plaintiff’s splitting of his cause of action prohibited the defendant from receiving the benefit of the rule. 155 Kan. at 257. As in Todd, Union Gas has failed to timely object.
In Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988), Mathis alleged he was injured when a loose door closure hit his head as he was leaving a TG&Y store. Mathis filed an action against TG&Y, its landlord, and the company that did repair work on the door. Later Mathis discovered the actual landlord was another party and the landlord had hired a separate party to maintain the doors. Mathis filed a separate suit against those two parties. Mathis subsequently dismissed the second suit with prejudice. TG&Y was never made a party to the second action. In the original action, TG&Y, rather than joining the other parties to compare their fault, moved to dismiss the matter, claiming that Mathis had split his cause of action and the doctrine of comparative fault required all parties to the occurrence to have their fault determined in one action. The district court granted TG&Y’s motion. Mathis appealed.
Wé noted it was the intent of the legislature to provide for full and final litigation in a single action of all causes of actions and claims for damages arising out of any act of negligence (citing Eurich v. Alkire, 224 Kan. 236, 237, 579 P.2d 1207 [1978]). We observed that after an adjudication of comparative fault, no party should be afforded a second opportunity to litigate percentages of causal negligence, and that K.S.A. 60-258a contemplated one action in which comparative fault is determined. This court determined it was never the intent of the legislature or this court to place form over substance and preclude a plaintiff from proceeding against a tortfeasor when there has been no judicial determination of comparative fault and that Mathis had been denied his action. We found a dismissal of the second action with prejudice was not a judicial determination; therefore, Mathis had not split his cause of action. We determined that TG&Y was not prejudiced by allowing the suit to proceed because TG&Y could join other defendants for the purpose of comparing negligence at the trial. Mathis, 242 Kan. at 794.
In the present case fact questions remain. Brandenburg may or may not have split his cause of action and the dismissal of the first action with prejudice may or may not be res judicata. The question of waiver is one of fact that is yet to be determined.
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The opinion of the court was delivered by
McFarland, J.:
This is an action to enforce a restrictive covenant prohibiting signs on the subject property both within and without any buildings thereon. The district court entered summary judgment in favor of the defendant landowners on the ground that enforcement of the covenant would be violative of the First Amendment to the United States Constitution and § 11 of the Bill of Rights of the Kansas Constitution. On appeal, the Court of Appeals held the district court erred in such determination and reversed the entry of summary judgment. The case is before us on petition for review.
By virtue of the posture of the case herein at the time of the entry of the summary judgment, very few evidentiary facts are contained in the record. The defendants Wilbur N. and Lois I. Brockway are owners of two contiguous lots in Linn Valley Lakes, a private real estate development situated in Linn County, Kansas. The Brockways placed a double-wide mobile home on the property, which is their principal residence. In 1989, the Brock-ways decided to sell their lots and listed the same with a realtor, placed advertisements in periodicals, and placed an 8- by 10-inch “for sale” sign in a window of their mobile home.
The Brockways purchased their lots subject to the developer’s Declaration of Covenants and Restrictions, which contained the following restriction (Art. Ill, Sec. 1): “No signs may be placed or maintained on any Lot, nor on or within any building, except in an area approved for commercial use.”
Plaintiff Linn Valley Lakes Property Owners Association (Association) is a nonprofit corporation established by the developer, Linn Valley Lakes, a Kansas Limited Partnership, for the purpose of enforcing said covenants and restrictions. The Association demanded the Brockways remove the sign. The Brockways refused to do so. The Association then filed the action herein seeking a temporary restraining order and a permanent injunction requiring removal of the sign. As previously stated, the district court entered summary judgment on the grounds enforcement of the restrictive covenant would be violative of the Brockways’ constitutionally protected rights to free speech. The Court of Appeals reversed the district court’s entry of summary judgment in an unpublished opinion filed July 19, 1991. Only a very narrow issue is presented in this appeal — the propriety of the entry of summary judgment in favor of the Brockways on the aforestated constitutional grounds.
In McColm v. Stegman, 3 Kan. App. 2d 416, 419-20, 596 P.2d 167 (1979), the law relative to the enforcement of restrictive covenants was summarized as follows:
“The enforceability of restrictive covenants has its origin in common law and has long been recognized in the State of Kansas. Tulk v. Moxhay, 2 Ph. 774, 41 Eng. Rep. 1143 (1848); Godfrey v. Black, 39 Kan. 193, 17 Pac. 849 (1888). Restrictions or equitable servitudes are based on the equitable principle of notice whereby a person who takes land with notice of a restriction upon it will not be permitted to act in violation of it. Hecht v. Stephens, 204 Kan. 559, 464 P.2d 258 (1970); Reeves v. Morris, 155 Kan. 231, 124 P.2d 488 (1942). The use of equity to enforce covenants restricting the use of property is not absolute, and the right may be lost by laches, waiver or acquiescence in the violation of such restrictions. N. P. Dodge Corp. v. Calderwood, 151 Kan. 978, 101 P.2d 883 (1940). In addition, violations of restrictive covenants within the restricted area are relevant, and equitable enforcement may be denied when there has been a change in conditions so radical in nature as to neutralize the benefits of the re strictions and destroy their purpose. Clark v. Vaughan, 131 Kan. 438, 292 Pac. 783 (1930).”
The McColm case then cited Holmquist v. D-V, Inc., 1 Kan. App. 2d 291, 296, 563 P.2d 1112 (1977), for the following:
“The granting of an injunction is equitable in nature and involves the exercise of judicial discretion. ‘Whether injunctive relief will be granted to restrain the violation of a restrictive covenant is a matter within the sound discretion of the trial court to be determined in light of all the facts and circumstances. Absent manifest abuse of that discretion, an appellate court will not interfere.’ [Citations omitted.]
“No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, and each case must be decided on the equities of the situation presented. A number of factors may be considered including, but not limited to, the purpose for which the restrictions were imposed, the location of the restriction violations, the type of violations which have occurred, and the unexpired term of the restrictions. [Citations omitted.]”
See also Kennedy v. Classic Designs, Inc., 239 Kan. 540, Syl. ¶ 2, 722 P.2d 504 (1986):
“Restrictive covenants have long been recognized in Kansas and a person who takes real property with notice of restrictions upon it will not be permitted to act in violation thereof. Such restrictions are enforceable through the equitable remedy of injunction.”
And South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, Syl. ¶¶ 1, 2, 3, 4, 5, 549 P.2d 1035 (1976):
“Restrictive covenants are to be construed in accordance with the intent and purpose of the grantor after examination of the entire instrument under consideration. ”
“Whether injunctive relief will be granted to restrain the violation of a restrictive covenant is a matter within the sound discretion of the trial court to be determined in light of all the facts and circumstances. Absent manifest abuse of that discretion, an appellate court will not interfere.”
“Covenants concerning the use of real estate will be enforced by equity only so long as they remain reasonable in the light of their purpose, taking into account changes in relevant conditions since the time they were made.”
“To warrant refusal of equitable relief, the change in conditions must be so great and radical as to neutralize the benefits of the restriction and destroy its purpose.”
“The rulp that the right to enforce a restrictive covenant may be lost by laches, waiver, or acquiescence is not an absolute one. Mere acquiescence will not bar enforcement so long as a restriction remains of any value or absent a showing that it would be inequitable to enforce the restriction.”
The Association contends that the restrictive covenant in question is valid and binding upon the Brockways and that it is entitled to enforcement thereof under long existing Kansas law.
The Brockways contend that enforcement thereof would constitute state action violative of their constitutional rights to freedom of speech. In support thereof they rely on Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948). At issue therein was a restrictive covenant which banned occupancy of the subject property by persons not of the Caucasian race. The United States Supreme Court held that enforcement of such a covenant would constitute state action denying civil rights to a person solely because of race, religion, color, or national origin and, hence, be violative of the Fourteenth Amendment.
The Brockways contend that enforcement of the no-sign covenant would constitute state action under Shelley which would deny them their constitutionally protected right of free speech. In essence, they argue that the test to be employed is whether a valid ordinance could be passed prohibiting the conduct proscribed in the restrictive covenant. If the answer is no, then the covenant c.annot be enforced. This rationale would effectively bar enforcement of virtually any restrictive covenant, including agreements as to architectural style, residence size, fencing, etc. We believe this is an overly broad interpretation of Shelley.
The factual background in Shelley is important. The Shelleys were black people who had purchased property subject to the restrictive covenant. Other landowners brought an action to divest the Shelleys of their title and return it to the seller. The Shelleys had no prior actual knowledge of the restrictive covenant. Shelley, 334 U.S. at 5. The thrust of the Shelley opinion is that enforcement of the covenant would defeat the Shelleys’ civil rights to own property based solely upon their race. Enforcement of this particular covenant was held to be state action infringing upon the Shelleys’ constitutional right to own property.
The case before us is easily distinguished. The covenant in question places a limitation on the use of the property by the landowners. There is nothing constitutionally impermissible per se in a private agreement restricting signs in a residential neighborhood, and enforcement thereof does not constitute improper state action. We conclude the district court erred in entering summary judgment herein on constitutional grounds.
The case should be tried on its merits. All relevant facts and circumstances should be considered by the district court in determining whether or not equitable relief should be granted enforcing the restrictive covenant as to the particular sign at issue herein.
The judgment of the Court of Appeals is affirmed. The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Six, J.:
This criminal case considers claims of trial court abuse of discretion. Rufus McDonald was found guilty by a jury of one count of rape. K.S.A. 21-3502. He was sentenced to a term of 15 years to life. McDonald claims the trial court abused its discretion by denying his motion for a three-hour continuance and by imposing a sentence of 15 years to life. He also asserts error in the method of sentencing. A fourth claim for reversal is based on the sufficiency of the evidence.
Our jurisdiction is under K.S.A. 1990 Supp. 22-3601(b)(l), the imposition of a maximum sentence of life imprisonment.
We find no error and affirm.
Facts
W.M. was a 32-year-old woman who had progressive muscular dystrophy. She was confined to a wheelchair and had weakened arms and only limited control of her body functions. She also suffered from a seizure disorder. Following a seizure, W.M. appears to be asleep, experiencing a post-digital state lasting from one to five hours. During this state, she can be awakened; however, she has no control. When awakened, she is tired and embarrassed.
On July 31, 1989, W.M. reported to the police that she had been raped. She was taken to a hospital for examination. The responding officer, Sharon Ervin, testified that W.M. was upset and crying. W.M. named McDonald as the assailant.
W.M.’s Testimony
W.M. first met McDonald on July 4, 1989. She was outside her house watching her son shoot off fireworks. McDonald drove up in a car and asked her if she knew a particular address. He asked if he could visit her. W.M. and McDonald played cards on the porch that evening. W.M. told him that she had worked at Medicalodge South 11 or 12 years ago. He claimed to have worked there at the same time and said he remembered W.M. W.M. did not remember McDonald.
McDonald returned the next day. W.M. was upset because her sister had died. W.M. told McDonald she did not want to talk to him. A few days later, McDonald told her she needed to get out of the house. He took her for a drive. McDonald came over quite often during the next two weeks. He would simply show up. W.M. and McDonald would play cards and talk. W.M. enjoyed his visits at first. McDonald never told W.M. that he was married and had a child.
One evening, W.M. had a seizure when she and McDonald were playing cards. She was in her wheelchair in the dining room. Later she remembered waking up on the floor. Her diaper was off. McDonald asked her if she had any contagious diseases. She said no. McDonald then asked her if they could have sex. She said no; she was tired and wanted to go to bed. While W.M. was still on the floor, McDonald moved on top of her and had sex. She was too tired to fight or scream because she had just had a seizure. McDonald then put her on the sofa and left.
W.M.’s friend and neighbor, Ra, arrived later. W.M. was ashamed and did not tell Ra about the incident.
A day or two later, Carol Byrd, W.M.’s therapist, sensed something was wrong and, upon questioning, W.M. told Byrd of the rape. Byrd encouraged W.M. to report the incident. W.M. did not report it because she was confused about what was going on during the incident and she was ashamed.
Before this incident W.M. did not normally lock her in order that friends and nurses could come in and out easily. Following the incident, she began locking her doors and gave keys to those who needed them.
McDonald came by W.M.’s house a week later. W.M.’s brother had just left and did not lock the door behind him. McDonald walked in. W.M. called Ra, who came right over. When Ra arrived, the door was locked, and McDonald let Ra in.
About a week later, W.M.’s neighbor Tapia, a key to W.M.’s house, had come and left but neglected to lock the door upon leaving. W.M. had an accident and went into a bedroom to change her diaper. W.M., thinking the door was locked, took off her dress, undid her diaper, and tried to move over onto the bed. McDonald walked in. She asked him how he got in; McDonald told her the door was unlocked. W.M. informed McDonald that Ra would be there soon and that she did not want his help.
McDonald put her on the bed, spread her legs apart, and asked her if she had had sex since their last time. W.M. said no. She was crying. He asked her why she was crying. She responded, “Because I told you no.” She testified he was on her and put his penis inside her. She told him no and hit him on the shoulders. McDonald left, stating he would come back after her friend left.
After McDonald left, it took W.M. 45 minutes to clean up, dress, and move into her wheelchair. She was afraid to stay in her house. She left in the wheelchair to go to her neighbor s (Lorraine’s) house. On the way, she met another neighbor, Dwayne Carpenter. W.M. was crying. Carpenter took her to Lorraine’s. W.M. then reported the incident.
Corroborating Evidence
Ra testified that she went to W.M.’s house almost every night at around 10:30. She would usually stay until 1:00 or 2:00 in the morning. They would talk and watch TV. Ra testified that one night she came by and W.M. was on the sofa. W.M. would not talk much, kept covering her head, and would not permit her diaper to be changed by Ra. Ra asked what was wrong but W.M. would not tell her. Ra kept asking W.M. and a couple of days later W.M. told Ra about the first incident with McDonald. Ra testified that after the first incident W.M.’s door was kept locked at night. One occasion, after the first incident, W.M. called Ra to let her know McDonald was there. Ra went over to W.M.’s house. The dead bolt was locked. She was let in by McDonald, who left later.
Carol Byrd testified at trial. Byrd was a physical therapist who worked with W.M. in July 1989. Byrd visited W.M. two to three times each week. In mid-July, Byrd noticed that W.M. was upset. Byrd kept asking W.M. to tell her what was wrong. W.M. began sobbing and told Byrd she had been assaulted. Byrd instructed her to report the incident to police. W.M. was afraid and asked Byrd not to tell anyone. Byrd testified that W.M.’s door was kept unlocked before the incident. After the incident, the door was kept locked and a neighbor would let Byrd in.
Carpenter testified that he saw W.M. on July 31, 1989. He said W.M. looked as if she was having an asthma attack. He asked what was wrong. W.M. said someone had hurt her and asked Carpenter to take her to Lorraine’s house.
Rita Dole, a forensic examiner, testified she had examined vaginal swabs-taken from W.M. at the hospital and an adult diaper recovered from W.M.’s house. Dole found seminal fluid on the vaginal swabs and on the diaper. Dole also received and tested blood and saliva samples taken from McDonald. Dole concluded that 87.2% of the Caucasian population and 78.8% percent of the black population would be included as possible contributors of the seminal fluid. McDonald was á possible contributor. The laboratory tests could not exclude McDonald as a contributor.
McDonald’s Statement
McDonald was advised of and waived his rights. His statement was tape-recorded, transcribed, and signed. The statement was read at trial.
McDonald stated that he had recently met W.M. She told him about her hard times and about people taking advantage of her. He said he would go by W.M.’s home once a week or every two weeks. According to McDonald, W.M. once had a seizure and he called an ambulance. He initially stated he had never had sex with W.M. An officer asked McDonald if there was anything else he would like to add to his statement at that time. McDonald responded: “That’s all I know, what I’m telling you. That’s all I have to say. As far as coming down and raping a woman, I didn’t rape her. I went over from time to time to help her out, but I never would of thought of raping her because I know the woman is very ill and I was just helping her out.”
The officer left the room to obtain a form for a waiver of search to take body samples. When he returned, McDonald related additional information. McDonald stated that he had not been truthful and that he had “made love” to W.M. two or three times. However, it was not rape. McDonald said W.M. always consented to having sex.
McDonald’s Testimony
McDonald stated he had never been convicted of a felony, and only a ticket for obstructing an officer was on his record. He first met W.M. when he asked her for help in finding someone’s house. McDonald and W.M. started talking. He returned later and stayed for 2 or 3 hours. He came back the next day, and W.M. invited him into her house to play cards. He went in, she started to make a move for him and grabbed his chest, and they had sex. He came back a week later. They talked, played cards, and had sex again. W.M. initiated the sex.
McDonald stated the third time they had sex was following one of W.M.’s seizures. He was at W.M.’s house playing cards when the seizure occurred. McDonald called the KARE unit. After the KARE unit left (he testified the KARE unit reported she would be all right), he put her on the couch. Fifteen or twenty minutes later, W.M. called him over to the couch and said she wanted to have sex.
According to McDonald, the fourth and final time they had sex, W.M. and he were watching TV. W.M. went into her son’s room and stayed a long time. When McDonald entered the room, W.M. was laying on the bed attempting to put her clothes on. He asked her if she wanted to have sex. She said, “Sure.” They had sex. While they were having sex, he referred to her by using the name of another female. She did not appear to be mad because of his mistake.
McDonald testified he initially denied having sex with W.M. in his statement to police because she was handicapped and he was married.
The State cross-examined McDonald (1) about four misdemeanor convictions (after McDonald stated on direct that he only had one misdemeanor conviction), (2) about his statement that he and W.M. had only had sex two or three times, and (3) about a verified defense document filed with the court indicating that McDonald had had sex with W.M. on July 4, 9, 30, and 31, 1989. The dates did not correspond with McDonald’s trial tes timony. McDonald responded that the dates in the document were not correct.
McDonald’s Motion for Continuance
McDonald presented the testimony of two character witnesses, a cousin and an uncle. McDonald then moved for a continuance until the next day, because the process server had been unable to serve a subpoena on Mike Tapia, a next door neighbor of W.M. The continuance motion was made on the afternoon of December 12, 1989, the second day of trial. McDonald’s counsel told the court that counsel had talked to Tapia and that Tapia could testify that McDonald was at W.M.’s house many times until 1:00 or 2:00 in the morning. Defense counsel stated that the process server attempted to serve Tapia two or three times and left a card. According to defense counsel, the process server thought Tapia was home but Tapia had refused to come to the door and receive the subpoena.
The State objected to a continuance, arguing that the first attempt at service was the previous day and that, because the defense had ample opportunity to subpoena Tapia, there was no reason for delay. The trial court denied the continuance.
McDonald argues that the trial court abused its discretion by denying his motion for continuance. McDonald asserts he made his motion on the afternoon of Tuesday, December 12, 1989, and only requested a continuance until the following morning. McDonald characterizes this request as a request for a “mere three-hour” continuance. He contends Tapia, the intended witness, was deliberately avoiding service. In addition, McDonald argues it was unfair to grant the State’s request for a three-week continuance (the prosecutor was to be out of the state on the date of the initial trial setting) while denying his request for a continuance until the following morning.
The State counters: (1) There is no evidence to support McDonald’s contention that Tapia was intentionally avoiding the process server; (2) even if an abuse of discretion is shown, McDonald’s rights were not prejudiced; (3) McDonald cannot show that Tapia’s testimony would have changed the outcome of trial; and (4) the sole issue was whether the incident was rape or consensual sex, and Tapia was not an eyewitness.
K.S.A. 22-3401 provides in part: “Continuances may be granted to either party for good cause shown.” In a criminal case, the granting or denial of a continuance rests in the sound discretion of the trial court. The ruling of the trial court will not be disturbed on appeal absent a showing of an abuse of discretion and a showing of prejudice to the substantial rights of the defendant. State v. Dunn, 243 Kan. 414, 427, 758 P.2d 718 (1988). Discretion is abused only where no reasonable person would take the view adopted by the trial court. State v. Haislip, 237 Kan. 461, 471, 701 P.2d 909 (1985). When a party seeks a continuance due to the absence of a witness, the party must show due diligence to procure the witness’ testimony. State v. Jones, 226 Kan. 503, 509, 601 P.2d 1135 (1979).
In Jones, defense counsel requested a continuance until the next day. The defendant had been charged with aggravated robbery. The proffer stated the witness had a clear view of the robber exiting the building, the witness saw no gun, and the robber had a goatee. The defendant had presented testimony that he was cleanshaven on the day of the robbery. We reversed, noting the defendant’s diligence in attempting to procure the witness and that the witness’ testimony was crucial. 226 Kan. at 509-10.
In State v. Maxwell, 234 Kan. 393, 672 P.2d 590 (1983), defense counsel unsuccessfully attempted to have a subpoena served on a police officer on the second day of trial in a prosecution for aggravated robbery. The defense moved for a continuance, which was denied. The defendant was apprehended when a Ms. Speed was arrested as a result of an altercation with another woman. Speed had in her possession evidence of the aggravated robbery, including stolen property. She gave the police the defendant’s name. At trial, the defendant testified that Speed claimed she had tried to kill someone. Speed denied this assertion at trial. The subpoenaed police officer was expected to testify Speed claimed to have threatened to kill someone. Thus, the officer’s testimony was to be offered to attack Speed’s credibility. We found no abuse of discretion in the denial of the continuance.
The. instant facts place the case at bar between Maxwell and Jones. McDonald filed the subpoena on Friday, December 8, 1989. The process server received the subpoena on the same day. McDonald alleged the first attempt at service was Monday, De cember 11, 1989, for a Tuesday morning appearance. McDonald knew at 9:00 a.m. Tuesday morning that service had not been made but did not notify the court until that afternoon.
McDonald’s counsel proffered that Tapia would testify Tapia had seen McDonald at W.M.’s house as late as 1:00 to 2:00 a.m. W.M. had testified that McDonald did not stay past 10:30 or 11:00 p.m. On direct examination, McDonald stated, “I would stay over there — she testified the latest I stayed was 10 o’clock. I hardly ever stayed over 15 or 20 minutes.” Tapia’s testimony relates to a collateral matter (McDonald’s theory that he had a relationship with W.M.) not directly bearing on the issue of W.M.’s consent. Tapia’s proffered testimony does not support the contention that W.M. consented to have sex.
The trial court did not abuse its discretion in denying the continuance.
The Wyandotte County District Court’s Method of Sentencing
McDonald asserts that he was sentenced by a three-judge board of probation which lacked authority to impose sentence.
The parties acknowledge that our decision in State v. Blackmore, 249 Kan. 668, 822 P.2d 49 (1991), controls this issue. Here, as in Blackmore, the sentencing procedure was conducted by one judge. We find no error in the method of sentencing. Under Kansas statutes, it is not required that the trial judge be the sentencing judge. Any judge of the judicial district is authorized to pronounce sentence on a person convicted of a crime in that district.
No error is found in the method of sentencing.
The Sentence — A Term of 15 Years to Life
McDonald asserts that the trial court failed to consider the K.S.A. 21-4606(2) sentencing factors. McDonald points to the following facts, which he alleges demonstrate that the trial court abused its discretion by sentencing him to the maximum sentence: (1) This conviction was his first felony conviction; (2) the presentence investigation (PSI) report recommended a minimum sentence; (3) McDonald was 26 years old when the offense occurred; (4) he is married with two children (one born since the incident); and (5) he had an ongoing relationship with the victim.
The State argues that the trial court had obtained the PSI report. Although the PSI report recommended a minimum sentence, the trial judge, referring to the PSI report and the violent nature of the act, sentenced McDonald to the maximum sentence. The sentence fell within the statutory guidelines. There was no abuse of discretion.
McDonald addressed the panel at the sentencing hearing and requested probation. He stated that this was his first felony conviction and denied committing the crime. He told the court he had a wife and two children and that he had no time to be locked up.
W.M. addressed the panel. She stated the incident was hard to go through. She is scared of men. touching her and jumps when someone is near. She still had nightmares and did not know when she was going to get over the incident.
The State recommended the maximum sentence. The recommendation was based on the fact that McDonald took advantage of someone who was emotionally and physically vulnerable.
Judge Lamar, of the panel, sentenced McDonald to the maximum term of 15 years to life “for the reasons of the violent nature of this crime and as set forth in the P.S.I. mentioned.”
It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive. State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989).
K.S.A. 21-4606(2) sets forth seven factors which, while not controlling, are to be considered by the court in fixing the minimum term of imprisonment which is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime. When the sentence exceeds the minimum, it is the better practice for the sentencing court to place a detailed statement of facts and factors it considered on the record. Failure to do so does not necessarily indicate the sentencing court abused its discretion. Each case is to be considered on its facts. State v. Meyers, 245 Kan. 471, 479, 781 P.2d 700 (1989).
In Meyers, we held that the trial court met the minimum requirements of K.S.A. 21-4606 by obtaining the PSI report, which addressed the factors, and inquiring if there were any errors in the PSI report. 245 Kan. at 479.
McDonald’s sentence of 15 years to life is within the statutory guidelines. K.S.A. 21-4501(b). Although this was McDonald’s first felony conviction, the PSI report indicates prior criminal activity. The harm caused to W.M. was severe. McDonald’s conduct was without provocation. There are no grounds excusing or justifying McDonald’s conduct. The victim did not facilitate or induce the crime’s commission. McDonald has not, and cannot, compensate W.M. for her emotional injury. Given the nature of the crime, a repeated sexual assault of a defenseless, handicapped woman, McDonald has not shown that his sentence is an abuse of discretion.
Sufficiency of the Evidence
McDonald contends that there was insufficient evidence to find him guilty beyond a reasonable doubt. Specifically, he argues the State failed to show lack of a consent. McDonald acknowledges that W.M. testified she did not consent. However, McDonald argues that W.M.’s own testimony that she does not have a good memory and that after a seizure she does not know anything renders W.M.’s testimony insufficient to establish his guilt. McDonald’s argument is not persuasive.
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
In the case at bar, there was sufficient evidence for the jury to find beyond a reasonable doubt that W.M. did not consent.
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The opinión of the court was delivered by
McFarland, J.:
Veryl D. Crawford pled guilty to seven class B and C felonies. The sole issue raised by defendant in this direct appeal is whether or not the district court abused its discretion in imposing sentence herein.
The convictions herein arise from two cases which were ..consolidated by the district court. The pleas were entered on June 22, 1990. The cases, crimes, and sentences are as follows:
District Court Case No. 90 CR 852
Count I — aggravated robbery (class B), 15 years to life.
Count II — attempted aggravated robbery (class C), 5 to 20 years.
District Court Case No. 90 CR 950
Count I — robbery (class C), 5 to 20 years.
Count II — aggravated burglary (class C), 5 to 20 years.
Count III — rape (class B), 15 years to life.
Count IV — aggravated robbery (class B), 15 years to life.
Count V — aggravated battery (class C), 5 to 20 years.
The sentences imposed in 90 CR 852 are consecutive to each other, but concurrent with the sentences imposed in 90 CR 950 and in 90 CR 378 (an earlier case not involved in this appeal). As to 90 CR 950, the sentences on counts 1, 2, 3, and 5 run concurrently with each other, but consecutively to that imposed on count 4. Further, all sentences imposed in 90 CR 950 are concurrent with those imposed in 90 CR 852 and 90 CR 378. The controlling term of the sentences imposed herein is 30 years to life. This is the same controlling term as imposed in the earlier case 90 CR 378 wherein defendant had been found guilty by jury trial of four felonies (unspecified in the record herein) and sentenced to a controlling term of 30 years to life. Inasmuch as the sentences imposed in the appeal before us are to be served concurrently with those in 90 CR 378, the controlling term remains at 30 years to life. Case No. 90 CR 378 is on appeal as appellate case No. 66,171 but has not been argued or decided.
The sentences imposed herein are within the statutory range provided for each offense. Defendant bases his claim of abuse of district court discretion upon the district court’s failure to apply K.S.A. 21-4601 and 21-4606(2).
K.S.A. 21-4601 expresses the legislative policy on sentencing as follows:
. “This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
K.S.A. 21-4606 provides:
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
“(2) The following factors/ while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
Each of the seven sentences herein was the maximum provided for the particular offense under K.S.A. 21~4501(b) and (c), although the actual effect thereof was blunted by running them, in several instances, concurrently with each other and with the sentences imposed in the other cases. Ordinarily, the district court would be required to apply both statutes in imposing sentence as contended by the defendant herein. The district court must consider the sentencing factors set forth in K.S.A. 21-4606(2) when exercising its discretion' in sentencing a defendant in excess of the minimum term for the offense.
The appeal herein arises from a set of facts which make it an exception to the rules applicable to sentencing. On June 22, 1990, the defendant came before the district court and entered his plea of guilty to the seven felonies. The pleas of guilty were part of a plea bargain which included sentence recommendations. Defendant stated in open court: “I just want to plead guilty to take advantage of the deal.”
Immediately thereafter, preparation of a presentence investigation report was waived. Both the State and defense counsel urged the court to impose the sentences proposed in the plea bargain. Each stated a lot of thought had gone into the plea bargain. We know little of the details of the crimes except for the State’s comment that unnecessary harm was inflicted here on elderly victims. Proceeding without a presentence investigation report which would have provided details of the crimes might well have been part of the defense counsel’s strategy to gain acceptance by the district court of the proposed sentences. The sentencing herein occurred in the same hearing in which the guilty pleas were accepted. The district court stated it was going to follow the sentence recommendations of the attorneys and imposed those exact sentences.
The defendant received the sentences he bargained for or, in his words, he took advantage of the deal — a deal which included the sentences he received. He is before us on appeal seeking to undo the onerous part of his deal. There is no claim he did not understand what his deal was or the effects thereof. Rather, he claims error in that the court did not apply the statutory factors in imposing the sentences.
In State v. Higgins, 243 Kan. 48, 51, 755 P.2d 12 (1988), we stated: “It is a general rule that a litigant may not invite error and then complain of that error on appeal.” However, we believe that under the circumstances herein, there was no error. We conclude that where (1) a plea bargain is knowingly and voluntarily entered into which contains specific sentence recommendations; (2) the defendant urges the district court to impose the recommended sentences; and (3) the district court then imposes the recommended sentences, the defendant shall be deemed to have waived any consideration or application by the district court of the sentencing factors set forth in K.S.A. 21-4601 and 21-4606.
The defendant herein did not want the district court to use its discretion and apply the sentencing factors to determine the appropriate sentences. Rather, he sought only acceptance of the sentences for which he had bargained. Having been successful in this endeavor, he cannot now claim abuse of discretion in the district court’s failure to apply the statutory factors in imposing sentence.
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The opinion of the court was delivered by
Six, J.:
This is a personal injury case with a posture influenced by multi-defendant settlements before trial. We are called upon to review the application of our rule established in Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985), concerning the giving of settlement information to a jury. The issues arise from a survival and wrongful death action filed by the parents of a deceased daughter who was a passenger in a car involved in a head-on automobile collision.
We shall consider asserted trial court error in: (1) submitting settlement information to the jury; (2) allowing the introduction of an amended petition containing allegations of negligence against former défendants who had been dismissed from the case because of settlement; (3) allowing the cross-examination of one of the plaintiffs regarding an amended petition containing allegations of negligence against former defendants who had been dismissed from the case because of settlement; and (4) refusing to instruct on certain elements of damages, including the aggravation of a pre-existing condition.
The instant action was brought by the Estate of Deborah K. Lytle, deceased, (Debbie) and by Robert and Vicky Lytle, the natural parents and heirs of Debbie, against Donald E. Stearns individually and as sole proprietor of his ambulance business. The Lytles claim paramedical negligence (the failure to properly transport and to administer care to Debbie following the accident). The Lytles appeál from a jury verdict finding Steams 0% at fault.
Our jurisdiction is under a K.S.A. 20-3018(c) transfer from the Court of Appeals.
We affirm the trial court’s refusal to instruct on certain elements of damages, including the aggravation of a pre-existing condition. We reverse on the settlement information disclosure, amended pleading admission, and cross-examination issues, and remand for a new trial.
Facts
A two-car collision occurred in 1988. Debbie and her boyfriend were passengers in the same car. Following impact, the boyfriend burned to death. One driver was trapped behind the steering wheel. Bystanders pulled one car away from the other that was burning.
A Kansas Highway Patrol Trooper was the first official to arrive at the scene. Debbie was lying in a ditch. Four persons were lying on the road. The trooper checked on each survivor. The trooper was most concerned about Debbie’s condition. He ordered Life Flight, a helicopter emergency medical service from Kansas City, Missouri, to the scene.
The Miami County deputy sheriff arrived at the scene a few minutes before defendant Steams. Steams, an emergency mobile intensive care technician (a paramedic), is the owner and operator of Steams & Associates Ambulance Service. He was accompanied by his wife, an emergency medical technician (EMT), and his 13-year-old son. A paramedic holds an advanced certification beyond an EMT. Steams was the chief medical officer at the scene with decision-making authority for emergency medical treatment.
Stearns also operated ambulance services out of Louisburg and LaCygne. The Miami County dispatcher told him the situation was serious. Stearns requested the dispatcher to send the Louis-burg unit to the scene. According to Steams, he knew that his LaCygne unit monitored the calls and would also respond.
Stearns served as triage officer (triaging involves examining the trauma victims and deciding who needs help first). He conducted an initial assessment of the six surviving trauma victims within 30-45 seconds of arriving. Following the initial assessment, Debbie was treated first.
The ambulance patient form filled out for Debbie indicates her vital signs were first taken at 11:59 p.m. Debbie was noted to be very combative. Her lungs were clear. She was awake, alert, and oriented, and her pupils were equally reactive to light. She complained of severe pain in her back, legs, and belly. She had second-degree bums on her legs. Her condition was noted as critical.
Stearns contacted the trooper and the deputy sheriff and requested that Life Flight be cancelled. The trooper told Steams that Life Flight was almost there. Steams replied, “We can handle it.” The deputy followed Steams’ orders and cancelled Life Flight. Life Flight was notified of the cancellation en route at 12:12 a.m. with an estimated time of arrival of five minutes at 12:17 a.m.
Stearns then suspected that something serious was wrong with Debbie. He administered oxygen and started an IV. According to Steams, she responded to the treatment.
At the time that Steams told the officers to cancel Life Flight, no other ambulances had arrived. Steams knew that his two other units were responding. At 12:10 a.m., the Louisburg unit arrived staffed with an EMT and another of Steams’ sons, an EMT student. An ambulance from Osawatomie, not owned by Steams, arrived at 12:22 a.m. At 12:33 a.m., Steams’ LaCygne unit arrived staffed with a paramedic, two EMTs, and an EMT student. The Osawatomie ambulance left the scene at 12:40 a.m. with one of the least injured bound for Miami County Hospital. Stearns LaCygne unit left the scene with a passenger whose condition was listed as “urgent” at 12:42 a.m. bound for Miami County Hospital. Miami County Hospital did not have facilities to treat a patient in critical condition.
Both the Louisburg and Paola units headed for the Overland Park Humana Hospital, which was approximately 40 miles from the accident scene. At 1:20 a.m., Steams contacted the Johnson County dispatch center and established radio contact with Humana. Steams testified: (1) He waited until he reached a point 10-12 miles from Humana where he could consistently reach Johnson County’s dispatch center; (2) it was not feasible to have the Miami County Dispatcher contact Humana sooner; (3) he was concerned whether Humana could handle all four patients; (4) he asked if Humana wanted all four or if Humana wanted him to divert; and (5) Humana told him to bring all four patients.
At Humana, Nurse Galbraith received the radio transmission. Dr. Barbara Holmes, the emergency room doctor, personally heard the transmission.
The records reflect a dispute between the parties as to the time Debbie entered Humana Hospital.
At 2:16 a.m., Debbie went into cardiac and respiratory arrest. Dr. Holmes was called and attempted to save Debbie’s life. At 2:47 a.m., Dr. Holmes pronounced Debbie dead. The cause of death was hypovolemic shock resulting from internal bleeding from a ruptured spleen and a ruptured kidney. The experts who testified at trial generally agreed that Debbie could have been saved if she had received definitive care sooner.
The Lytles commenced the instant action naming as defendants Angela Jones (the driver of the car Debbie was in), the Board of County Commissioners of Miami County, and Stearns. The Lytles claimed that Jones was negligent in the operation of her vehicle. The theory of negligence asserted against the Board of County Commissioners involved the inspection, maintenance, and signing of the roadway. The allegations against Stearns rested on professional negligence in the failure to render proper emergency medical services.
Stearns filed a comparative negligence designation under K.S.A. 1991 Supp. 60-258a, naming Morris Schroeder (the driver of the other car) and Humana Hospital and its agents and attending physicians, among others. The Lytles filed a motion to add the entities designated by Steams as additional defendants. The Lytles filed their second amended petition asserting claims against Schroeder, Humana Hospital, Emergency Department Physicians, Inc. (EDP), and Barbara Holmes, M.D. (EDP was the professional corporation employing Dr. Holmes.)
Prior to trial, the Lytles settled with all the defendants except Stearns. The claims against all other defendants were dismissed. Stearns was the only defendant at trial.
The jury was instructed to compare the fault of Steams, Jones, and Dr. Holmes. The jury allocated the percentage of fault to Stearns 0%, Jones 75%, and Dr. Holmes 25%. Damages were assessed for medical expenses on the survival claim of $1,596.39 and $0 for noneconomic loss, including pain and suffering. On the wrongful death claim, the jury assessed damages of $3,516.38 for pecuniary loss (the burial expenses) and $0 for nonpecuniary loss.
The Confidential Settlement Agreements
The release and settlement agreements each contained a confidentiality provision. Each of the six settling defendants (the Board of County Commissioners, Jones, Schroeder, EDP, and Dr. Holmes, and Humana) denied liability and stated that the payment of the specified amount to the Lytles should not be construed as an admission of liability.
Prior to trial, the Lytles filed a motion in limine to prohibit Stearns from referring directly or indirectly to any dismissal of parties who had previously been named as defendants. Steams opposed the motion, arguing that Ratterree v. Bartlett, 238 Kan. 11, made the fact of settlement admissible. The Lytles argued that Ratterree only applies to Mary Carter, sliding-scale agreements. The trial court overruled the motion in limine but precluded Steams from mentioning the settlements, stating that any mention of settlements would be by the trial court.
Following the cross-examination of Nurse Birch, an employee of Humana, Steams moved the court to instruct the jury that Humana had been sued by the Lytles and had settled. The Lytles objected. The trial court ruled Ratterree entitled Steams to have the settlement made known to the jury. The court stated it would inform the jury at a later date. The Lytles again objected. The trial court noted that their objection would be considered as a continuing objection.
The following day the Lytles again argued the issue. The trial court ruled that it would give the settlement instmction following Dr. Holmes’ testimony as to both Humana and Dr. Holmes. Before Dr. Holmes testified, the Lytles stated that because the court had ruled it was going to instruct the jury that Dr. Holmes had settled, they intended to bring the settlement out on direct examination without waiving their continuing objection.
The Lytles called Dr. Holmes to testify. On direct, Dr. Holmes stated that she had at one time been named a party and had settled without admitting liability. According to Dr. Holmes, the decision to settle was a business decision based on the cost of defense at trial. She stated that her deposition was taken before she was sued and again after she was sued. Her testimony at trial and in her two prior depositions had never changed.
On cross-examination, Steams asked Dr. Holmes: “Now, Doctor, isn’t it true that part of you settling in this case, part of your consideration is you agreed to help these people get Don Stearns?” Dr. Holmes denied the allegation. Steams then raised questions about the content of the settlement agreement, emphasizing that the confidentiality precluded disclosure of the terms. Steams then asked: “What price did you pay for your innocence?” Dr. Holmes asked the judge if she was supposed to answer, at which time there was a bench conference and the matter was dropped.
Following Dr. Holmes’ testimony, Steams withdrew his request to have the court instruct that Dr. Holmes had settled. The court then instructed the jury:
“Ladies and gentlemen of the jury, at this time the Court informs you that at one time Humana of Kansas, Inc., was a defendant in this case. The Court further informs you that the plaintiffs have settled their claims against Humana of Kansas, Inc., and as a result of that settlement that party, Humana of Kansas, Inc., has been dismissed as a defendant in this case.”
At this juncture, it should be noted that Humana’s fault was not compared on the verdict form. The trial court granted the Lytles’ pretrial motion preventing the comparison of Humana’s fault because Steams provided no expert testimony that Humana departed from the appropriate standard of care.
The Lytles contend the trial court erred in relying on Ratterree, arguing that the rule in Ratterree only requires disclosure of Mary Carter, sliding scale agreements. The Lytles also assert that K.S.A. 60-452 and K.S.A. 60-453 prohibit evidence of compromise, settlement, or invalidity of a claim.
Stearns counters that Ratterree did not expressly limit the disclosure rule to Mary Carter agreements. According to Steams, Ratterree gives the trial court discretion to prevent disclosure if the Lytles may be prejudiced. Steams suggests the Lytles were not prejudiced because they opened the door as to Dr. Holmes’ settlement by bringing the settlement out on direct and .because there was “overwhelming evidence” bearing on the credibility of Humana’s employees and of Dr. Holmes. Steams reasons that K.S.A. 60-452 and K.S.A. 60-453 do not apply because the statutes exclude evidence of settlement to prove or disprove a claim but do not exclude such evidence when offered for another purpose, such as proving bias or prejudice of a witness. Finally, Stearns asserts that the settlements are admissible under the abandoned pleadings doctrine.
The Ratterree Case
Bartlett, one of the defendants in Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985), contended that the terms of the settlement agreement guaranteed Ratterree (the plaintiff: (1) the payment of Hernandez’s (another defendant) policy limits; (2) Hernandez would remain in the lawsuit and participate in the trial; and (3) any money recovered by Ratterree over $150,000 would reduce Hernandez’s obligation to Ratterree dollar for dollar regardless of the verdict against Hernandez. Such an agreement is a Mary Carter or sliding-scale agreement where the signing defendant may reduce an obligation by increasing the liability of one or more codefendants.
The actual terms of the Ratterree settlement agreement were not made known to this court; however, we assumed Bartlett’s allegations were trae. 238 Kan. at 24.
Due to the possibility of prejudice and collusion, most courts require disclosure of such agreements. We noted that each case must be considered on its own facts because some agreements appearing to be Mary Carter agreements will not result in aligning the plaintiff with the settling defendants. 238 Kan. at 28.
We observed the potential for injustice in multiple defendant secret settlement agreement tort actions and adopted the following rule:
“When a settlement agreement is entered into between the plaintiff and one or more, but not all, alleged defendant tortfeasors, the parties entering into such agreement shall promptly inform the court in which the action is pending and the other parties to the action of the existence of the agreement and its terms. If the action is tried to a jury and a defendant who is a party to the agreement is a witness, the court shall, upon motion of a party, disclose the existence and content of the agreement to the jury unless the court finds in its discretion such disclosure to the jury will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Emphasis added.) 238 Kan. at 29.
The Ratterree rule is broad enough to include any confidential settlement in any tort action involving multiple defendants when the settling defendant is a witness and either remains a party to the action or retains some financial interest in the litigation.
In the case at bar, the agreements contained specific language that the settling defendants did not admit liability. The settlement amount paid to the Lytles was a fixed sum in exchange for a complete release. The settling defendants were dismissed and retained no financial interest in the action. None of the settling defendants had a pending claim against Steams.
K.S.A. 60-452, K.S.A. 60-453
K.S.A. 60-452 states in part:
“Evidence that a person has, in compromise or from humanitarian motives furnished or offered or promised to furnish money, or any other thing, act or service to another who has sustained or claims to have sustained loss or damage, is inadmissible to prove his or her liability for the loss or damage of any part of it.”
K.S.A. 60-453 provides:
“Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act or service in satisfaction of a claim, is inadmissible to prove invalidity of the claim or any part of it.”
K.S.A. 60-452 is concerned with possible prejudice to the settling defendant on the issue of liability. K.S.A. 60-453 is concerned with protecting the full value of plaintiff’s claim during setdement negotiations. The policy behind the statutes is to promote setdement. Ettus v. Orkin Exterminating Co., 233 Kan. 555, 567, 665 P.2d 730 (1983).
Neither statute squarely applies in the case at bar. The evidence of settlement was not offered to invalidate the Lytles’ claims against Dr. Holmes and Humana. However, the evidence of settlement was offered to invalidate the Lydes’ claim against Steams. The policy behind the statute — to promote settlement without fear the setdement will be used in evidence against the setding parties — supports the Lydes’ position.
Stearns relies on Slasher v. Ospital by Ospital, 777 P.2d 437 (Utah 1989). Slasher adopted the Ratterree rule on secret settlement agreements. Such agreements should be disclosed to the jury unless the court finds that disclosure will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 777 P.2d at 444.
Under the facts presented in Slusher, the failure to disclose the settlement was deemed harmless error. In finding harmless error, the Utah court relied in part upon the fact that Slusher’s deposition was taken before settlement and no material inconsistency was shown in his trial testimony.
Both Ratterree and Slusher involved settlements with defendants who remained in the case to prosecute cross-claims. In the case at bar, Dr. Holmes and Humana did not remain in the case. The Lytles did have an incentive after the settlement to attempt to allocate most, if not all, of the fault on Stearns, the remaining defendant. However, Dr. Holmes and Humana were not joined until after Steams asked that their fault be compared. The Humana nurses and Dr. Holmes never changed their testimony. They always blamed Steams.
The trial court erred in disclosing the Humana settlement and in ruling that Dr. Holmes’ settlement was admissible, forcing the Lytles to confront the dilemma to disclose or not to disclose the settlement in the direct examination of Dr. Holmes. The instant fact situation is not controlled by Ratterree.
The Amended Petition As Evidence; Cross-Examination of Mr. Lytle
The Lytles’ pretrial motion in limine also requested that Steams be prohibited from introducing or referring to the fact “[t]hat other parties have previously been named as defendants to this action, or that plaintiffs’ pleadings herein stated allegations of negligence and liability against said parties.” The motion in limine was heard prior to trial. The Lytles argued that the fact they had originally named other defendants was irrelevant and lacked probative value as to whether Steams caused or contributed to Debbie’s injury and death. Stearns informed the court that he intended to use the Lytles’ allegations against other parties contained in the pleadings (petition, amended petition, and second amended petition) in his opening statement. He argued that abandoned pleadings are admissible as admissions of a party. The trial court denied the Lytles’ motion, reasoning that the pleadings were admissible as admissions against interest.
On the first day of trial, the Lytles presented the trial court with a supplemental motion in limine regarding Stearns’ intended introduction of the petition, amended petition, and second amended petition. The Lytles argued that the additional defendants (Morris Schroeder, EDP, Humana, and Dr. Holmes) were named in the amended petition based upon Steams’ allegations of fault. Therefore, the additional fault allegations of the amended petition are not admissions of the Lytles, and it would be unfair to allow the pleadings to be used against them. The trial court abided by its prior decision, denying the Lytles’ supplemental motion in limine.
Following the ruling, the Lytles informed the trial court that, due to its ruling, they would address their allegations against other defendants “up front” in the opening statement. The Lytles lodged a continuing objection to the ruling on the admissibility of the pleadings, stating they did not want to be deemed to have waived the issue. The trial court acknowledged the continuing objection.
Reference was made by the Lytles, in their opening statement, to the allegations against former defendants.
Stearns cross-examined Debbie’s father, Robert Lytle, regarding the second amended petition which added Dr. Holmes as a defendant. Steams brought out that the Lytles were alleging that Jones (Debbie’s driver), the Board of County Commissioners, Schroeder (the other driver), Humana Hospital, and Dr. Holmes were each negligent and that each had caused or contributed to the injuries and death of Debbie. During the questioning, Steams read the relevant paragraphs from the second amended petition alleging fault and causation as to each of the former defendants who had been sued because of Steams’ K.S.A. 1991 Supp. 60-258a comparative designation. The Lytles’ attorney did not object. At the conclusion of this cross-examination, Steams moved for the admission of the second amended petition. The Lytles referenced their continuing objection. The trial court admitted the second amended petition.
On redirect examination, the Lytles’ counsel elicited from Robert Lytle that the second amended petition was filed because Stearns was alleging other parties were responsible for Debbie’s injuries and death.
Stearns referred to the second amended petition in closing argument. (The Lytles’ closing argument is not contained , in the record on appeal.) Stearns argued that the Lytles sued everybody: Jones, the Board of Miami County Commissioners, Stearns, Schroeder, Humana, and Dr. Holmes. Stearns implied that the Lytles had settled with all of the absent defendants and had received money. With regard to the wrongful death claim, Steams argued that Dr. Holmes was responsible and had paid for the harm she caused. Thus, Stearns argued, the Lytles had been compensated.
The Lytles contend that the trial court abused its discretion in permitting Stearns to introduce the prior pleading and in allowing Stearns to cross-examine Robert Lytle regarding the second amended petition. They assert that K.S.A. 1991 Supp. 60-208 authorizes the use of alternative notice pleading. Because some of the prior parties were joined as a direct result of Stearns’ allegation of comparative negligence, the Lytles argue that Stearns’ use of the prior pleadings was grossly unfair and prejudicial to them. Assuming, arguendo, that prior pleadings can be construed as an admission against interest, the Lytles contend the cross-examination of Robert Lytle regarding the pleadings was improper because clients are rarely in a position to explain the legal theories and strategies chosen by their attorney. We agree.
Stearns asserts that Kansas law allows the admission of abandoned pleadings into evidence as admissions against interest, subject to the party’s explanation. According to Steams, the Lytles took every opportunity to explain the pleadings and why certain pleadings were abandoned. Steams asserts that alternative notice pleading has not changed this abandoned pleading rule. Steams reasons that the Lytles were not compelled to join the former defendants in response to Steams’ allegations of comparative negligence, but made a tactical decision to do so. As to the cross-examination of Robert Lytle regarding the pleadings, Steams contends that the Lytles have not preserved the issue for appeal because they did not object at the time of cross-examination. Addressing the merits, Stearns argues that such cross-examination was proper in light of the rule permitting the admission of abandoned pleadings and the explanation by the pleader.
An early line of our cases allowed abandoned allegations into evidence as admissions, subject to explanation by the pleader. Tarkowski v. Banks, 151 Kan. 898, 903, 101 P.2d 893 (1940); Meek v. Deal, Adm’x, 87 Kan. 319, 321, 124 Pac. 160 (1912); Arkansas City v. Payne, 80 Kan. 353, 354-55, 102 Pac. 781 (1909); and Reemsnyder v. Reemsnyder, 75 Kan. 565, 570, 89 Pac. 1014 (1907).
The Lytles distinguish the “early line” cases, reasoning that those cases were decided under the old code of procedure requiring “fact pleading” rather than the current “alternative notice pleading” authorized by K.S.A. 1991 Supp. 60-208. Further, the Lytles emphasize each “early line” case involved an allegation of a specific fact rather than a general claim as in the case at bar.
Prior code pleading was referred to as fact pleading. Pleading under the current code is sometimes referred to as notice pleading, which is free from hypertechnical considerations of whether the pleader has described the critical aggregate of operative facts. 1 Vernon’s Kansas C. Civ. Proc., Author’s Comments § 60-208.1, 491 (1963). K.S.A. 1991 Supp. 60-208 now requires only a bare-bones pleading that outlines the nature of the claim. Because broad discovery is available to fill in the gaps, there is no need for technical pleading. Oller v. Kincheloe’s, Inc., 235 Kan. 440, 446-47, 681 P.2d 630 (1984); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-208, Comment, p. 38 (1979).
The cases in other jurisdictions generally hold that allegations of fact contained in pleadings are admissible in evidence as an admission by the pleader. See McCormick on Evidence § 265, pp. 780-84 (3d ed. 1984); 4 Louisell and Mueller, Federal Evidence § 425, 304-07 (1980). The factual matter contained in a pleading made by a party’s attorney is admissible as an admission of the party. Frank v. Bloom, 634 F.2d 1245 (10th Cir. 1980).
There is a split of authority regarding the admissibility of pleadings containing claims of comparative negligence against defendants who have been dismissed. The following cases allowed admission of such pleadings. Dugan v. EMS Helicopters, Inc., 915 F.2d 1428 (10th Cir. 1990); Haynes v. Manning, 717 F. Supp. 730 (D. Kan. 1989); Mason v. Texaco, Inc., 129 F.R.D. 542 (D. Kan. 1989), aff'd, remanded on damages 948 F.2d 1546 (10th Cir. 1991); and Dreier v. Upjohn Co., 196 Conn. 242, 492 A.2d 164 (1985). Other cases have not permitted the introduction of such pleadings based primarily on the rationale advanced by the Lytles in the case at bar, i.e., admission of such pleadings frustrates the liberal pleading and joinder rules. Garman v. Griffin, 666 F.2d 1156 (8th Cir. 1981); Bargman v. Economics Laboratory Inc., 181 Ill. App. 3d 1023, 537 N.E.2d 938, cert. denied 127 Ill. 2d 611 (1989); Larion v. Detroit, 149 Mich. App. 402, 386 N.W.2d 199 (1986); Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34 (Mo. App. 1967).
Stearns relies on Haynes v. Manning, 717 F. Supp. 730. In Haynes, a car was purchased by the Hayneses from a car dealer who provided a federal odometer statement which indicated the mileage to be 100,000 miles less than the actual miles. Manning bought the car new, put over 100,000 miles on the car, causing the odometer to roll over, and sold the car to a car dealer, indicating the mileage was 100,000 miles less than the actual mileage. In total, the car was purchased and sold by four car dealers before the Hayneses purchased the car. The Hayneses sued everyone in the chain of title. Three of the car dealers settled. The case went to trial against Manning and the remaining car dealer. The trial court admitted evidence that the Hayneses had settled with the three car dealers. Judge Saffels held that the evidence that the Hayneses had settled was admissible, relying in part on the abandoned pleadings doctrine. 717 F. Supp. at 733.
Haynes cited Dreier v. Upjohn, 196 Conn. 242, as does Steams. The Connecticut Supreme Court in Dreier reasoned that the circumstances under which the pleading is made go to the weight to be accorded the statements rather than to their admissibility, as with any other pleading. 196 Conn, at 247. The plaintiff in Dreier argued that only factual allegations rather than legal conclusions fall within the rule of admissibility of admissions. The Connecticut Supreme Court rejected this argument, reasoning that the type of statement goes to the weight of the admission rather than its admissibility. 196 Conn, at 248-49.
Garman v. Griffin, 666 F.2d 1156, expressed a contrary view. Ronald Garman was run over and killed by a school bus from which he had exited. His parents brought a wrongful death action against the school bus driver, on a negligence theory. Shortly before the statute of limitations had run, the Garmans amended their complaint and joined the alleged seller of the bus under a strict liability theory. It later developed that the Garmans had sued the wrong bus seller and summary judgment was granted in favor of that bus seller. During the trial, the defendant bus driver was permitted to read the strict liability allegation against the alleged bus seller in the amended petition. The jury returned a verdict for the bus driver.
The Eighth Circuit reversed and remanded for a new trial, finding that admission of such evidence constituted prejudicial error. The Garman court noted that some factual allegations should be received in evidence as admissions. For example, if plaintiffs complaint alleged that the accident occurred on an icy road and proof showed the accident occurred on the Fourth of July, this factual allegation is an admission admissible in the case. The Court of Appeals reasoned that the factual allegation is admissible if it relates to the conduct of the same defendant who is offering the evidence. 666 F.2d at 1158. The Court of Appeals analyzed the facts in Garman as follows:
“Here we are dealing with an admission in a pleading that (1) involves the conduct of a dismissed party not in the lawsuit at the time the evidence was admitted; (2) that does not involve the conduct of the plaintiffs or the plaintiff’s decedent; and (3) that does not involve the conduct of the defendant. We are also dealing with an admission made in a complaint filed at the last opportunity to toll the statue of limitations.” 666 F.2d at 1158.
Garman found that allowing admission of the amended complaint frustrated the liberal pleading and joinder provisions of the Federal Rules of Civil Procedure. (Fed. R. Civ. Proc. 8[e][2] [similar to K.S.A. 1991 Supp. 60-208(e)(2)], which allows inconsistent pleadings.) The Garman court stated:
“The use of pleading admissions in situations akin to the case under submission seems to us to be contrary to the spirit of the Federal Rules. Furthermore, it simply does not seem quite fair to these plaintiffs. A pleader in the Federal Courts should not have to forego a potential claim rather than run the risk of having such a claim used as an admission.” 666 F.2d at 1160.
Garman reasoned the nonadmissibility holding to be the better and majority view. 666 F.2d at 1159.
Circuit Judge Arnold dissented in Garman. He saw no reason to deny admissibility because the amended pleading is directed to a person no longer a party. Further, he found that Fed. R. Civ. Proc. 11 (similar to K.S.A. 1991 Supp. 60-211) requires a good faith belief the pleading is grounded in fact. Pleadings should be regarded as factual, rather than fictional, and admissible. He also noted that the two counts in the amended complaint were not inconsistent. The amended complaint alleged that both defendants were responsible through “ ‘concurring acts and omissions.’ ” 666 F.2d at 1162. Judge Arnold recognized the danger or prejudice to the plaintiff or confusion of the jury, but found this consideration should be left to the discretion of the trial court.
A series of Missouri cases is in accord with the Garman majority view. Macheca v. Fowler, 412 S.W.2d 462 (Mo. 1967); Cole v. Mo. Highway & Transp. Com'n, 770 S.W.2d 296 (Mo. App. 1989); and Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34.
A treatise on evidence supports exclusion:
“FRCP 8 entitles patties to plead hypothetically, inconsistently, and in the alternative. Where any variance between a pleading or answers to interrogatories and the evidence presented by a party is explainable as an attempt to take advantage of this liberality of modem pleading mies, which has all the greater impact because of similarly liberal joinder rules, use of the pleading as an evidential admission should be disallowed.” 4 Louisell and Mueller, Federal Evidence § 425, 306.
In the case at bar, each claim in the second amended petition was set out as a separate count against different defendants. The counts were not pled in the alternative or hypothetically. Further, they are not necessarily inconsistent. Each count provided that the relevant defendant “caused and/or contributed” to Debbie’s injuries and damages.
According to McCormick, the módem trend is to deny admission of such pleadings:
“The modem equivalent of the common law system is the use of alternative and hypothetical forms of statement of claims and defenses, regardless of consistency. It can readily be appreciated that pleadings of this nature are directed primarily to giving notice and lack the essential character of an admission. To allow them to operate as admissions would render their use ineffective and frustrate their underlying purpose. Hence the decisions with seeming unanimity deny them status as judicial admissions, and generally disallow them as evidential admissions.
“The trend is to expand the application of the exception described above to the general rule of admissibility to include, not only the common law practice and modem hypothetical and alternative allegations, but in addition situations in which a more skillful pleader would have avoided the pitfalls of admissions by resorting to one of those techniques. * * * The same trend is evident in cases involving separate actions against different defendants to recover for the same injury. The trend is consistent with the prevailing view that the primary purpose of pleadings is to give notice and that alternative or hypothetical allegations are not usable as admissions, but the extent to which it will prevail is difficult to estimate.” (Emphasis added.) McCormick on Evidence § 265, 781-82.
We apply the rationale of McCormick to the facts presented in the case at bar. The claims against Schroeder, Dr. Holmes, and Humana were added by the Lytles due to Steams’ allegation of comparative fault. Dr. Holmes was joined a few days before the statute of limitations ran. The second amended petition was filed before any defendants had settled. If Steams was successful in proving fault of the other parties, the Lytles could not recover unless they had amended their petition to assert a claim against such parties. The Lytles exercised prudence by amending their petition to protect their interests. The second amended petition was admitted without any limiting instruction. Further, Steams was permitted to cross-examine Robert Lytle, a layperson, regarding the second amended petition. Robert Lytle was unable to adequately explain the legal principles behind the petition. A jury may or may not be able to understand why the Lytles’ attorney decided to sue certain parties initially while excluding others or the various legal theories under which counsel elected to proceed. In our view, such an understanding is doubtful.
Stearns alleges that the Lytles waived any complaint as to the prior pleadings cross-examination of Robert Lytle by failing to object at the time of cross-examination. The Lytles did fail to object at the time of cross-examination, but the trial court had noted earlier that the prior objection was a continuing one. Therefore, the Lytles have not waived the objection.
Stearns took full advantage of the second amended petition at trial. Steams implied in closing argument that the Lytles had settled with everyone except Steams and that they had been compensated. The admission of the dismissed defendant/settlement evidence is particularly prejudicial considering that Stearns did not present evidence sufficient to compare the fault of all the settling defendants. Only the fault of Jones and Dr. Holmes was compared; yet, Steams was allowed to imply that all the other dismissed defendants were at fault and had settled.
Here we are dealing with conclusory allegations as to law, not with objective facts, as evidentiary admissions contained in prior pleadings. The admissions introduced concerned allegations of conduct by former adverse parties. We recognize that each future case will present a varied set of facts. Trial court discretion will be exercised on questions of admissibility of and cross-examination concerning prior pleadings. Settlement is to be encouraged. K.S.A. 1991 Supp. 60-211 requires counsel to express a good faith belief that a pleading is grounded in fact. We decline to attempt to craft a Procrustean rule for the resolution of all situations relating to the admission of and cross-examination regarding prior pleadings.
We do, however, set out twin concepts to be considered by the trial judge.
(1) A lay party witness should not be cross-examined regarding theories or allegations of liability asserted against a former party who is no longer in the lawsuit, if that former party was brought into the litigation as a party after being designated by an initial defendant for comparative negligence purposes under K.S.A. 1991 Supp. 60-258a. (In the case at bar, Schroeder, EDP, Humana, and Dr. Holmes are in this comparative designation category.)
(2) Written pleadings asserting theories or allegations of liability addressed against a former party under the circumstances described in paragraph one above also should generally be excluded.
The combined effect of the introduction as evidence of the second amended petition and the cross-examination of Robert Lytle regarding prior or abandoned pleadings was error which denied the Lytles a fair trial and requires reversal.
Except for the instruction issue concerning aggravation of a pre-existing condition, our reversal renders as moot the additional appellate questions raised by the Lytles.
Instruction — Pre-existing Condition
The Lytles requested a jury instruction on damages for their survival claim modeled after PIK Civ. 2d 9.01 (1990 Supp.). The requested version included:
“A. Pain, suffering, disabilities, or disfigurement, and any accompanying mental anguish suffered by Debbie Lytle up to and including the date of her death;
“C. Aggravation of any pre-existing ailment or condition.”
The trial court proposed and gave virtually the same instruction deleting from paragraph A “disabilities, or disfigurement,” and deleting paragraph C, “Aggravation of any pre-existing ailment or condition,” in its entirety.
The Lytles also proposed that the trial court give an instruction modeled after PIK Civ. 2d 9.011 (1990 Supp.), further defining such damages. The Lytles’ requested version included:
“1. Non-economic loss. This type of damage includes (a) pain and suffering and (b) disability, disfigurement and any accompanying mental anguish suffered by plaintiff up to and including the date of her death.”
The trial court gave the instruction but deleted the phrase “and (b) disability, disfigurement.”
The Lytles objected, arguing: (1) There was evidence from which the jury could find that Steams enhanced or aggravated Debbie’s injuries which were existing at the moment he arrived; and (2) because Angela Jones’ fault is being compared, the injuries from the collision resulting in disability and disfigurement, such as the broken mandible and fractured ribs, should be instructed on.
The trial court overruled the Lytles’ objections, reasoning: (1) PIK Civ. 2d 9.01 regarding aggravation of a pre-existing injury contemplates pre-existing injuries sustained before the occurrence being tried (an automobile collision); and (2) because the Lytles have no claim against Jones, it would be unfair to Stearns to instruct on injuries or damages caused by Jones.
As support for the aggravation of a pre-existing injury instruction, the Lytles assert that by the time their case reached trial, Stearns was the only defendant. Their claim revolved around the theory that the injuries Debbie received in the automobile col lision were treatable. According to the Lytles, Debbie would have lived but for Steams’ aggravation of her injuries and his failure to procure timely definitive care, prolonging her pain and suffering. The Lytles reason that the absence of an instruction on aggravation of a pre-existing condition could have had an effect on the jury’s assessment of fault. According to the Lytles, without an instmction on damages for such aggravation, the jury had nothing to blame Stearns for.
Stearns argues that an instruction on aggravation of a preexisting injury was not supported by the evidence. In the alternative, Steams argues that any error was harmless error in light of the jury’s finding of 0% fault.
Any error in instructions on damages is harmless where the plaintiff has failed to convince the trier of fact that the defendant is liable. Patterson v. Burt, 213 Kan. 463, 468, 516 P.2d 975 (1973). However, because we are reversing and remanding for a new trial, the damage instruction issue should be discussed. Our observations contained in this portion of the opinion relate to the record developed at trial. We do not know what strategies and instruction requests will arise upon retrial.
K.S.A. 1991 Supp. 60-258a requires that all parties to an occurrence in a negligence action must have their rights and liabilities determined in one action. Mick v. Mani, 244 Kan. 81, 87, 766 P.2d 147 (1988). This “one-action” rule applies to successive tortfeasors where it is claimed that medical malpractice, following an accident, contributed to the injuries. 244 Kan. at 879. See Teepak, Inc. v. Learned, 237 Kan. 320, 329, 699 P.2d 35 (1985). Each tortfeasor should pay for only that tortfeasor’s share of the damages. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978).
The trial court should instruct only on those items of damage for which there is some evidence to base an award. Bridges v. Bentley, 244 Kan. 434, 441, 769 P.2d 635 (1989).
In the case at bar, the occurrence was an automobile accident. There were no pre-existing injuries prior to the accident. The evidence at trial did not disclose that Steams enhanced the injuries caused by the accident. The alleged negligence, if proven, contributed to the prolonging of Debbie’s pain and suffering and arguably her death. The claim of prolonging pain and suffering should be dealt with in closing argument rather than by a specific aggravation of a pre-existing condition jury instruction. Under the facts developed at trial, the trial court was correct in refusing to instruct on aggravation of a pre-existing injury. The Lytles raise an additional issue in their brief, although they do not list it separately as required by Supreme Court Rule 6.02(c) and (e) (1991 Kan. Ct. R. Annot. 24). See Jack v. City of Olathe, 245 Kan. 458, 462, 781 P.2d 1069 (1989), and State v. Trudell, 243 Kan. 29, 38, 755 P.2d 511 (1988). The Lytles argue that the trial court should have instructed the jury on disability and disfigurement; however, they cite no authority in support of their argument.
The trial court instructed on pain and suffering and any accompanying mental anguish up to Debbie’s death. Debbie lived approximately 2-3 hours after the accident. Under the facts of this case, the trial court did not err in refusing to instruct on disability and disfigurement.
The trial court reasoned, in refusing to instruct on disability and disfigurement, that because Jones was not a defendant, any damages caused by her should not be instructed on. Although we agree with the ruling, we disagree with the trial court’s rationale. Jones’ fault was compared by the jury. To allow comparison of Jones’ fault, without allowing consideration of damages that may have been caused by her, would be unfair.
Affirmed in part, reversed in part, and remanded for a new trial. | [
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The opinion of the court was delivered by
Lockett, J.:
The district court suppressed evidence obtained from a search of défendant’s vehicle and statements the defendant made after he was issued a Warning ticket, released from custody, and then ágáift detained by the ófiftcer. The State’s interlocutory appeal claims a lack of substantial competent evidence in support of the trial court’s rulings that (1) there was an illegal seizure of the defendant, (2) defendant’s consent to a search of his vehicle was not voluntary, and (3) defendant’s statements were not voluntary. In a 2-1 decision, the Court of Appeals reversed the district court in an unpublished opinion filed August 9, 1991, holding there was insufficient evidence to support the district judge’s finding that Garcia’s consent to the search of the vehicle was not voluntary. Garcia’s petition for review was accepted by this court.
On March 20, 1990, Kansas Highway Patrol Trooper John Marmon and other officers were conducting truck checks on Interstate 35. Trooper Marmon observed a vehicle change from the outside lane to the inside lane to safely pass the stopped truck and then return to the outside lane without signaling a lane change. Marmon left other officers to check the stopped truck, got into his automobile, followed the vehicle, and subsequently stopped it 9 miles from the check area between 11:02 and 11:05 a.m.
After stopping the vehicle, Marmon asked the driver for his license. The license indicated that the driver was Feliz Garcia, the defendant. Marmon requested the vehicle’s registration and proof of insurance. Garcia reached into the glove compartment and started leafing through papers. Marmon asked Garcia who owned the vehicle. Garcia responded his brother did. Marmon ordered Garcia to gather the papers and accompany him back to the patrol car.
While in the patrol car, Garcia began searching through the documents again. During the conversation between Marmon and Garcia, Garcia stated he was en route to Kansas City to pick up his brother’s girlfriend. Garcia indicated that his brother, Oscar Printz Garcia, had given him permission to use the car. Garcia testified at the suppression hearing that Marmon kept asking him if the driver’s license he had handed the trooper was really his and commented that Garcia did not look Hispanic.
Garcia handed Marmon the vehicle registration receipt which indicated the vehicle was registered to Elsa M. Smith, Garcia’s sister. Garcia testified that Marmon continually asked him if he had permission to drive the vehicle and whether the vehicle was stolen.
Marmon issued Garcia a warning ticket for failure to signal a lane change. After completing the warning ticket, Marmon handed Garcia the ticket. He told Garcia he was free to go. As Garcia reached to open the door and exit the patrol car, Marmon asked Garcia if he would consent to a search of the automobile. Garcia responded that he was not carrying anything in the car, and again reached for the door. Marmon again stated that he wanted to know if Garcia was carrying anything. Garcia testified that Marmon asked several times for his consent to search the vehicle. During this exchange, Garcia asked Marmon why he wanted to search the car. Marmon explained that he wanted to search the vehicle for money, drugs, weapons, and contraband. Garcia testified Marmon never indicated that he could leave, and he felt that he was not free to leave.
After several attempts, the trooper obtained Garcia’s verbal consent to search the vehicle. Marmon then requested that Garcia sign a written consent form. Marmon read the written consent form to Garcia, which stated:
“I understand that I have the right to refuse to consent to the search described below and to refuse to sign this form. I further state that no promises, threats, force or physical or mental coercion of any manner have been used to obtain my consent to the search described below or to sign this form. My signature on this form indicates that I have given my consent of my own free will and the named offlcer(s) may conduct a search. I also understand that I have the right to withdraw or revoke this consent at anytime.”
The consent form was signed at 11:30 a.m.
After signing the consent form, Garcia told Marmon there was a handgun underneath the seat of the car. When asked for the key to the trunk, Garcia informed Marmon that he did not have a key to the trunk. Marmon asked Garcia if he could return the documents to the glove compartment. While putting the documents in the glove compartment, Marmon pressed the trunk release switch which he had earlier observed and the trunk opened.
After opening the trunk, Marmon went to the rear of the vehicle and noticed the odor of marijuana. Marmon subsequently found marijuana in a blue denim bag and a suitcase. Garcia was placed under arrest and read the Miranda warnings. Garcia told Marmon that he did not know anything about the marijuana. The search lasted approximately 45 minutes and was completed at 12:17 p.m. During the search, Garcia remained in the vehicle, although Marmon indicated he was free to exit the vehicle.
After being arrested, Garcia was handcuffed and taken to the Highway Patrol office at Emporia State University. Upon arrival, Marmon called the Drug Enforcement Administration and contacted Steve Freuh, a special agent with the Bureau of Alcohol, Tobacco, and Firearms. While waiting for Freuh to arrive, Garcia repeatedly told Marmon he did not know about the marijuana. Marmon did not respond to Garcia, but explained he was waiting for the DEA agent to arrive.
At some point in their conversation, Marmon told Garcia there might be a possibility the police would allow Garcia to continue to Kansas City in a set-up type of situation. Garcia later indicated to Marmon he wanted to contact an attorney or a family member. Marmon stated that if Garcia was going to contact an attorney, the interview was done. Marmon then explained to Garcia the set-up was not possible if he (Garcia) contacted his family because it might “tip them off that they might be involved with something.” Garcia responded that was fine and agreed to talk to the DEA agent first. At one point, Marmon showed Garcia the phone and once again Garcia indicated that he wanted to wait for the DEA agent. Garcia stated he believed, as a result of his conversations with the trooper, that by talking to the drug agent he would be helping himself. Marmon indicated he made no promises regarding leniency, no one threatened Garcia, and he was not aware of any promises made to Garcia.
Sixty to 90 minutes after arresting Garcia, Marmon left Garcia, still handcuffed and in the room, to weigh the marijuana. While Marmon was out of the room, Agent Freuh arrived. When Marmon returned, he noted although Garcia had signed a second waiver of rights form for the DEA agent at 3:42 p.m., the interview had not yet begun. During the interview, Garcia told the agent he did not know anything about the marijuana. Garcia testified that Agent Freuh informed him of considerably harsher federal penalties and indicated “things would be a lot easier” if he cooperated with them. Garcia slightly changed his story and signed a statement about one hour after the DEA agent had arrived.
Garcia stated he signed the statement because he was hungry, had driven all night, and was tired of the police badgering him. Garcia also stated they threatened him with a urinalysis test and a lie detector test and stated they would take fingerprints off the suitcase. The officers explained to Garcia that they wanted to record a conversation between him and his brother. Garcia stated although someone had brought him a cup of water or coffee, he was always handcuffed and had not been offered anything to eat during the interview. The district judge noted (1) the interview with the federal DEA agent lasted a considerable length of time; (2) Garcia was handcuffed during the interview; and (3) the DEA agent had used profanity when accusing Garcia of lying.
Garcia filed a motion to suppress on June 13, 1990. A hearing was held on June 28, 1990. At the suppression hearing Garcia claimed he signed the consent to search form without the opportunity to read it or to contemplate what the consent meant, and that he was not given the opportunity to examine the form outside Marmon’s presence. Garcia acknowledged he understood the words in the consent form and that he was never threatened by Trooper Marmon. The consent form was signed approximately 30 minutes after the initial stop. Marmon testified that a typical stop to issue a warning ticket for a lane change or similar violation would be 10 to 15 minutes.
When questioned why he requested the search of the vehicle, Marmon indicated he became suspicious because:
1. Garcia had indicated his brother was the owner of the vehicle and that his brother allowed him to use the car; it was finally determined the car belonged not to Garcia’s brother but to Elsa Smith. Marmon believed that Garcia did not know who owned the vehicle.
2. A suitcase was located on the front seat. Clothing hung on hangers, and a pair of boots and a bag containing personal toiletry items were in the back seat rather than in the trunk of the vehicle, where, Marmon believed, most people carry their clothing. Marmon stated that, for a man who was en route to pick up his brother’s girlfriend, “it looked like he had enough clothes in there in my opinion and it seemed awfully strange that all these suitcases and this bag were in the interior.” Judging by the amount of clothing, Marmon indicated Garcia could have been there for a week.”
3. A quart of oil on the right front floorboard and tools under the driver’s seat indicated to Marmon that Garcia did not want to have car problems — a typical concern of a drug smuggler.
4. A map was in the vehicle, which Marmon indicated was “typical of someone that would be smuggling narcotics.”
Although he testified he relied on these factors, Marmon acknowledged that it was not illegal to carry clothing in the interior of a car or uncommon to find a map in a car, and he never asked how long Garcia was staying in Kansas City. Marmon also admitted it was not uncommon for someone to carry an extra quart of oil for their car.
In a memorandum decision, the district judge ordered the evidence obtained as a result of the search and all statements made subsequent to the delivery of the warning ticket suppressed, noting:
“1. The Fourth Amendment applies to all seizures of a person, including seizures that involve only a brief detention short of traditional arrest. Whenever a police officer accosts an individual and restrains his freedom to walk away, a seizure has occurred. State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986); State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985); and State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990). Brevity of the invasion of an individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987). Both the scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. State v. Damm, supra, p. 224.
“2. A search without a warrant is per se unreasonable subject only to a few specifically established and delineated exceptions. Upon the hearing of any motion to suppress, the State bears the burden of proving to the trial court the lawfulness of both the search and the seizure. State o. Damm, supra, p. 221-222.
“3. The existence and voluntariness of a consent to search must be proven by the State by a preponderance of the evidence and not by clear and convincing evidence. These matters are questions of fact that the trier of fact must decide in light of the totality of the circumstances. State v. Ruden, 245 Kan. 95, 774 P.2d 972 (1989).”.
In his written opinion, the district judge stated that, after observing the trooper during the suppression hearing, he believed that the trooper stopped Garcia’s vehicle to observe the defendant and obtain additional reasons to validate a drug interdiction stop. The judge stated that the trooper knew he had no opportunity to stop the vehicle and observe its interior without relying on the traffic infraction as the basis for the stop. Although he doubted the stated reason for the stop, the judge determined the State had sustained its burden of proof by a preponderance of the evidence that the initial stop of Garcia’s vehicle was valid.
The district judge noted that after delivering a warning citation to Garcia, the trooper “indicated a need, not a simple desire, for the Defendant to remain.” The judge then held there was a second or continued seizure of Garcia which did not pass constitutional scrutiny because (1) the trooper did not have a reasonable and articulable suspicion of a crime being committed, and (2) the scope and duration of 'the seizure of Garcia exceeded that of the original valid stop. The judge found that the detention was unlawful and the evidence obtained as a direct result of the stop would be inadmissible as fruit of the poisonous tree, unless Garcia’s subsequent consent to search was valid and removed the taint of the unlawful detention.
The district judge observed the State bore the burden of proving voluntariness of Garcia’s consent to search the vehicle. The judge noted that Garcia was detained twice the time of a normal or routine stop. The district judge found Garcia orally consented to the search because he was subjected to repeated requests by the trooper for permission to search and Garcia believed he would not be allowed to leave until he allowed the trooper to search the vehicle. The judge observed that the trooper prepared a written consent form which he read to Garcia. The judge noted the trooper retained the form and never allowed Garcia the opportunity to independently review the form or contemplate the consequences of his actions in signing the form. The judge determined Garcia’s written consent to search the vehicle was not voluntary and ruled the State had failed to meet its burden of proving voluntariness of the consent.
The district judge finally found that Garcia’s oral statements, during the car stop and the subsequent interviews, were inadmissible because that evidence was tainted by the unlawful detention and illegal search of the vehicle and there was no sufficient intervening act that would purge the taint. The district judge stated that the trooper’s testimony as to why he questioned Garcia after issuing the ticket was not credible. The proximity of the arrest to the time of receipt of the statements where the car was stopped was so closely connected there was no independent act sufficient in and of itself to render Garcia’s consent voluntary. The judge then noted the subsequent statements were obtained because Garcia was confronted with the illegally seized evidence and the method of interrogation, and Garcia was led to believe he would receive a benefit if he talked, with the officers.
After reviewing the evidence, the Court of Appeals reversed. The majority reasoned that if the consent signed by Garcia was voluntary, the search of the vehicle was valid. It stated that voluntariness of the consent to search is to be decided in light of the totality of the circumstances, considering whether the defendant was threatened or coerced, and whether defendant was informed of his rights. The majority noted Garcia gave both verbal and written consent to a search of the vehicle. It observed that the trooper never threatened Garcia. Garcia admitted the trooper read the consent form to him, that he understood the words on the consent form and his rights as stated in the form, which included his right to refuse the search. Garcia testified the trooper was polite, never cursed or raised his voice, and the situation was cordial. The majority found there was insufficient evidence to support the trial court’s determination that Garcia’s consent was involuntary; it found the consent was valid and therefore the search of the vehicle was valid, and the evidence was properly seized.
The dissent reasoned the extended duration and the circumstances of the stop were improper. The extended duration rendered the stop an illegal seizure and the subsequent consent to search involuntary. The dissent stated that here the duration of the seizure was neither strictly tied to nor justified by a traffic stop for failure to signal a lane change. The consent form was signed 25 to 30 minutes after the initial stop and in an environment which the trial court found caused Garcia to believe that he would not be released until and unless he signed the consent. Further, as to the subsequent statements, Garcia was stopped at approximately 11:05 a.m. The consent to search was executed at 11:30 a.m. Garcia waived his Fifth Amendment rights at 3:42 p.m., approximately four hours and ten minutes after the consent to search' was executed. The trial court found that during this period, Garcia had no contact with any person other than law enforcement officers and was handcuffed and restrained throughout the four-hour period. Thus, the dissent concludes, Garcia’s statement was not sufficiently “attenuated” to be admissible.
Only Trooper Marmon and Garcia testified at the suppression hearing regarding Garcia’s consent to search. It is important to note that the district judge’s decision to suppress the evidence was made after observing the witnesses and weighing their testimony. The district court found Marmon was not a credible witness, Garcia’s consent was not voluntary, and Garcia had been coerced into giving consent to search the vehicle and his subsequent statements.
We believe the Court of Appeals majority reweighed the evidence in concluding there was insufficient evidence to support the trial court’s finding that the consent was involuntary.
“Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. [Citations omitted.] An appellate court will uphold a trial court’s suppression of evidence if that ruling is supported by substantial competent evidence. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979).” State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990).
If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979).
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.] Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
Here, as noted, the district court found the trooper was not a credible witness. The four reasons Marmon gave during his testimony for requesting a search of the vehicle support the district court’s finding. Further, Garcia was detained twice the time of a normal or routine stop for a lane change violation. Garcia testified Marmon kept asking him if the driver’s license he had given Marmon was really his and Marmon commented Garcia did not look Hispanic. Garcia testified that Marmon continually asked him if he had permission to drive the vehicle and whether the vehicle was stolen. Garcia testified after he received the warning ticket Marmon asked him several times if he would consent to a search of the vehicle and that he wanted to know if Garcia was “carrying anything.” Garcia testified he felt he was not free to leave. Garcia testified Marmon obtained the written consent without allowing Garcia to review the consent form. Garcia had no contact with any other person from the time he was stopped until his statements to the officers and, further, he was handcuffed and restrained throughout this four-hour period. Garcia testified he was led to believe he would receive a benefit if he talked with the officers. This evidence supports the trial court finding that there was an illegal seizure of Garcia, that Garcia’s oral and written consents to a search of the vehicle were not voluntary, and that the statements Garcia made were inadmissible.
The findings of the district court as to the motion to suppress the evidence seized and Garcia’s statement to the officers are based on substantial evidence.
The judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This case involves a nonclient, third-party legal malpractice claim arising from the triangular relationship of borrower, lender, and counsel for the borrower.
The malpractice claim is advanced by Bank IV Wichita, National Association (Bank IV) and Christopher Steel, Inc., (Christopher II) against a law firm, Arn, Mullins, Unruh, Kuhn & Wilson (Arn, Mullins), and two partners of the firm, Milo M. Unruh and Stuart Collier. Bank IV was a major creditor of George C. Christopher & Son, Inc. (Christopher I). Christopher I was a client of Arn, Mullins. Christopher II, a former wholly owned subsidiary of Bank IV, was formed to take possession of the assets of Christopher I and operate the business after Bank IV foreclosed on Christopher I.
The interests of Bank IV and Christopher II merge for the instant appeal. The interests of Am, Mullins and the two partner defendants, Unruh and Collier, also merge. We shall refer to the two plaintiffs as Bank IV and to the three defendants as Am, Mullins.
The case comes to us on appeal from a summary judgment order in favor of Arn, Mullins.
Our jurisdiction is based on a transfer from the Court of Appeals under K.S.A. 20-3018(c).
We hold that the legal malpractice claim of Christopher I against Arn, Mullins is not assignable to Bank IV. Bank IV does not acquire the malpractice claim by assignment, foreclosure, subrogation, or successor status. Under the facts of the case at bar, no duty is owing from Arn, Mullins to Bank IV, a nonclient. The trial court is affirmed.
Facts
Christopher I was engaged in the steel fabrication business. Arn, Mullins had served as Christopher I’s counsel for many years. Unruh and Collier, partners at Arn, Mullins, were responsible for handling the legal matters giving rise to the instant lawsuit. Unruh was a member of the board of directors and also corporate secretary of Christopher I.
Arn, Mullins’ representation of Christopher I included labor negotiations with the union representing the corporation’s employees. The law firm was involved in negotiating a collective bargaining agreement between Christopher I and the union. A new contract was negotiated in 1985 without the participation of Arn, Mullins. The 1985 contract, which was effective April 1, 1985, and would have expired March 31, 1988, contained a reopender clause allowing the renegotiation of wages to become effective at the end of one year (April 1, 1986). The 1985 contract further provided that upon failure to reach an agreement on renegotiated wages, either party may give notice of intent to terminate the agreement effective April 1, 1986.
In 1986, Christopher I, having experienced financial difficulties, consulted Arn, Mullins concerning the 1985 contract. At Christopher I’s request, Arn, Mullins drafted an interim agreement, extending wage negotiations and the right to terminate, which was executed by Christopher I and the union. The parties failed to reach an agreement regarding wages. Christopher I gave written notice of termination to the union under the interim agreement. Deeming itself no longer bound by the contract, Christopher I implemented unilateral wage reductions and began laying off workers in violation of the terms of the union contract.
The union filed unfair labor practice charges in April 1986 against Christopher I with the National Labor Relations Board (NLRB). Arn, Mullins represented Christopher I in the NLRB proceedings.
In August 1987, an NLRB administrative law judge (ALJ) ruled that Christopher I had improperly terminated the union contract by failing to give the Section 8(d)(3) (National Labor Relations Act [NLRA], 29 U.S.C. § 158[d] [3] [1988]) 30-day notice. The 30-day notice should have been given to the Federal Mediation and Conciliation Service and to the Kansas Department of Human Resources. The NLRB’s ALJ ordered Christopher I to restore the terms and conditions of the 1985 agreement until 30 days after the § 8(d)(3) notice is given. In addition, Christopher I was ordered to: (1) pay back wages to those employees whose wages had been reduced; (2) reinstate and to pay back wages to those employees who had been laid off in violation of the contract; (3) pay the union any loss of dues; and (4) make pension contributions as required under the 1985 contract.
Christopher I appealed the ALJ’s decision to the NLRB. The ALJ’s decision was affirmed by the NLRB in July 1988. The NLRB’s ruling was judicially enforced in its entirety. NLRB v. George C. Christopher & Son, Inc., No. 89-9510, unpublished opinion (10th Cir., April 11, 1989).
The Malpractice Claim
Bank IV alleges Arn, Mullins committed legal malpractice in the representation of Christopher I in the termination of the 1985 union contract and during the unfair labor practice claim. The alleged malpractice is the failure to give or to advise Christopher I to give the 30-day advance termination notice.
Bank IV asserts that after the union filed the unfair labor practice claim, union representatives and the NLRB informed Christopher I and Arn, Mullins that the contract had been improperly terminated. The § 8(d)(3) notice (a one-page form) could have been given at any time and the 1985 union contract would have terminated 30 days after such notice was given. Christopher I’s liability for violating the improperly terminated Union contract would have ceased 30 days after the § 8(d)(3) notice was given.
Arn, Mullins took the position that the § 8(d)(3) notice was not required because the union had waived notice by entering into the interim agreement. However, on September 24, 1985, the NLRB had held in Weathercraft Co. of Topeka, 276 N.L.R.B. 452, 453 (1985), that:
“Section 8(d) is unequivocal. It provides that the duty to bargain includes serving written notice upon the other party to a collective-bargaining agreement of one’s desire to terminate or modify it, with notice also to the Federal Mediation and Conciliation Service and the appropriate state agency.
“Board authority is also unequivocal. Failure of a party desiring to terminate or modify a collective-bargaining agreement to give appropriate notice under Section 8(d)(3) precludes it from altering terms or conditions of the collective-bargaining agreement or engaging in a strike or lockout to enforce its proposed changes. This proscription exists notwithstanding that the expiration date of the agreement has passed. See Meatcutters Local 576 (Kansas City Chip Steak Co.), 140 NLRB 876 (1963); United Marine Local 333 (General Marine Transportation Corp.), 228 NLRB 1107 (1977).”
In addition, the United States Supreme Court has held that the § 8(d)(3) “notice requirement operates wholly independently of whatever notice requirement the parties have fixed for themselves.” Labor Board v. Lion Oil Co., 352 U.S. 282, 292-93, 1 L. Ed. 2d 331, 77 S. Ct. 330 (1957). The NLRB relied on Weath ercraft and Lion Oil in finding Christopher I had improperly terminated the 1985 contract.
We are reviewing a summary judgment motion. In resolving the case at bar, wé deem the allegations of legal malpractice to be true.
The Loan Transaction
Bank IV entered into a revolving credit agreement with Christopher I, as borrower, in October 1986, while the NLRB claim against Christopher I was pending. The agreement was secured by a real estate mortgage, security interests in substantially all of Christopher I’s assets, and stock assignments. The agreement provided for credit of up to $4,750,000, which was fully disbursed. In the credit agreement, Christopher I and each of the guarantors made the following relevant representations and warranties:
“5.05. Litigation. No Litigation or governmental proceedings are pending or threatened against Borrower or any Guarantor, the results of which might materially adversely affect its, his, or her financial condition or operations. Other than any liability disclosed in the financial statements referred to in Section 5.03 hereof, neither Borrower nor any Guarantor has any material contingent liabilities.”
“5.09. Compliance. Borrower and each Guarantor is in material compliance with all Laws and regulations applicable to it, including, without limitation, the Employee Retirement Income Security Act of 1974 (’ERISA’) insofar as such statute applies to it, him, or her. No condition exists or event or transaction has occurred in connection with any Plan maintained by the Borrower or Amarillo [a guarantor] as defined in Section 407(d)(7) of ERISA which could result in the incurrence by Borrower or Amarillo of any material liability, fine, or penalty.”
Arn, Mullins represented Christopher I in negotiating and closing the credit agreement. Unruh, as secretary of Christopher I, certified a copy of the Board of Directors’ resolutions authorizing Christopher I to enter into the credit agreement. Unruh, as secretary ^ also certified that: (1) he was authorized to make and deliver the certificate; (2) the resolutions were in full force and effect; and (3) George C. Christopher II, President, is the authorized agent of Christopher I.
The credit agreement required an “opinion of counsel” to be delivered to Bank IV. The requirements to be included in the opinion letter were specific. Bank IV was to receive counsel’s opinion on: matters contained in credit agreement sections 5.13 (corporate existence), 5.14 (partnership status of C & A Investment Company), and 5.15 (authorization). In addition, the opinion letter was to state that: (1) the borrower and guarantors have the power to execute and deliver the loan documents and to perform the obligations of the agreement; (2) no additional approval is required; (3) the agreement and note are not in conflict with any binding agreement of borrower or any guarantor of which counsel has actual knowledge; and (4) the note and other loan documents are legal and binding obligations of the borrower and each guarantor.
Counsel’s opinion letter, prepared and submitted by Am, Mullins, addressed the requirements of the credit agreement.
The section of the credit agreement that specifically listed the content requirements of the opinion letter required by Bank IV neither referred to nor requested counsel’s opinion on sections 5.05 “Litigation” and 5.09 “Compliance.”
The Alleged Damages
By the summer of 1987, it was apparent to Christopher I’s management and to Bank IV that Christopher I was not going to be able to resolve its financial problems. Christopher I’s stock or assets would have to be sold. Christopher I and Am, Mullins took the position that Bank IV had a duty to sell the company or its assets as a going concern and that any other type of sale would be unreasonable.
A sale contract was negotiated in September 1987 with a group of investors (the Mullen group). The contract provided for a simultaneous transfer of Christopher I’s assets to Bank IV and resale to the Mullen group. The Mullen group cancelled the contract, reasoning that certain conditions precedent had either not been satisfied or could not be resolved to the group’s satisfaction.
The conditions precedent prior to closing provided for: (1) no misrepresentations or breach of covenants and warranties; (2) minimum values of inventory, cash, and trade receivables; (3) the resolution of all disputes, claims, or controversies involving Christopher I, the union, and the NLRB.
Christopher I ceased operations in September 1987. Bank IV filed an action to foreclose. At the sheriff’s sale, Bank IV purchased Christopher I’s assets, which had been pledged as security for the credit agreement. Bank IV established a wholly owned subsidiary, Christopher II (the co-plaintiff in the case at bar), to continue operating the business.
In March 1989, Christopher II’s stock was sold to J. S. Materials, Inc. Bank IV alleges the sale to J. S. Materials, Inc., resulted in a loss of approximately $1.3 million compared to the price which Bank- IV was to receive under the Mullen group contract.
In October 1989, the NLRB filed a compliance specification against Christopher I, Bank IV, and Christopher II as a wholly owned subsidiary of Bank IV and later of J. S. Materials, Inc. The NLRB alleged that Bank IV, Christopher II, and J. S. Materials, Inc. were liable to pay back wages, union dues, and pension fund contributions as successors of Christopher I (from the date Christopher I began its unfair labor practices until the date Christopher I ceased operations).
Under the NLRA, successor liability may be imposed on a successor entity for unfair labor practices of the predecessor. The imposition of liability results if the successor had notice of the potential liability and operates the business in a substantially unchanged form. In the sale of Christopher II’s stock to J. S. Materials, Inc., Bank IV agreed to defend and indemnify J. S. Materials, Inc., for any liability owed to the NLRB in connection with the labor practices of Christopher I.
The potential successor liability exceeded $500,000. Bank IV ultimately settled the NLRB compliance proceeding for $200,000.
The instant lawsuit was commenced, alleging malpractice in connection with the labor dispute between the union and Christopher I. The petition seeks recovery based upon the following alternative theories:
1. Bank IV through the foreclosure proceedings acquired the claim Christopher I would have against Arn, Mullins for either negligence or for breach of contract!
2. As a “successor” within the meaning of federal labor law, Bank IV acquired the claim Christopher I would have against Arn, Mullins.
3. Bank IV ultimately was required to pay the wage claims of Christopher I and is entitled to recover against Am, Mullins under a theory of subrogation.
4. The relationship between Bank IV and Christopher I, known by Am, Mullins, permits the Bank as a nonclient to recover for the attorneys’ unprofessional acts of commission and omission.
The Trial Court’s Ruling
The trial court granted summary judgment to Arn, Mullins on all issues. The trial court noted that discovery had not been completed but concluded that the controverted facts were either not material or statements of arguable legal conclusions!
The trial court found as a matter of law:
1. Legal malpractice actions are personal to the client and cannot be transferred, assigned, or acquired at a foreclosure sale.
2. Bank IV did not acquire Christopher I’s legal malpractice claim by succession under federal labor law because the claims of malpractice are personal to Christopher I and may not be transferred or assigned. In addition, successor liability was due to the subsequent deliberate decision of Bank IV to continue the business without a substantial change in form; therefore, there is no causal relationship between the alleged malpractice and the Bank IV loss (the successor liability).
3. Subrogation is not a proper basis upon which to predicate liability. Subrogation arises when one pays a debt for another for which the other is primarily liable. The theory of recovery based on subrogation is without merit because: (a) Bank IV has not paid a debt which is the primary obligation of Arn, Mullins; and (b) successor liability is a direct and primary obligation; thus, Bank IV paid its own debt to the NLRB, not the debt of Christopher I.
4. Under the facts of this case, Am, Mullins owed no duty to Bank IV. The debtor/creditor relationship is akin to an adversarial relationship precluding recovery. However, the trial court applied the balancing test in Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), and found liability was precluded.
Summary Tudgment
Summary judgment is proper where the pleadings and discovery show that: (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as matter of law. When summary judgment is challenged on appeal, we must read the record in the light most favorable to the party who defended against the motion. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
Ordinarily, summary judgment should not be granted when discovery is incomplete. St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 274, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990). A disputed question of fact which is immaterial to the issue does not preclude summary judgment. Knudson v. Kansas Gas & Electric Co., 248 Kan. 469, 483, 807 P.2d 71 (1991). Summary judgment is proper where the only question or questions presented are questions of law. Barber v. Williams, 244 Kan. 318, 319, 767 P.2d 1284 (1989).
The Malpractice Claim — Assignment
Bank IV argues that Arn, Mullins’ failure to give the 30-day notice was a ministerial act necessary to carry out its contract of representation with Christopher I; therefore, such failure is an assignable breach of contract claim. Bank IV reasons that its security interest included all general intangibles and contract rights which Bank IV now holds after foreclosure.
Arn, Mullins asserts that Bank IV did not acquire Christopher I’s legal malpractice claim by foreclosure. The law firm reasons: (1) Legal malpractice claims are personal to the client; (2) public policy considerations dictate that legal malpractice claims should not be subject to assignment whether such claims sound in contract or in tort; (3) the alleged malpractice in this case is a tort claim, not a contract claim; and (4) tort claims are not assignable. See Heinson v. Porter, 244 Kan. 667, 675, 772 P.2d 778 (1989), overruled on other grounds Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990).
The issue of whether an action for legal malpractice is assignable was addressed in the leading case of Goodley v. Wank & Wank, Inc., 62 Cal. App. 3d 389, 133 Cal. Rptr. 83 (1976). In Goodley, the client had assigned her rights against her attorneys for negligence in handling her divorce. The California Court of Appeals concluded that a chose in action for legal malpractice is not assignable because of important policy considerations: “It is the unique quality of legal services, the personal nature of the at torney’s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment.” 62 Cal. App. 3d at 397.
A majority of courts considering the assignability issue have agreed with the policy considerations underlying the Goodley decision and have held that legal malpractice claims are not assignable. See 1 Mallen & Smith, Legal Malpractice § 7.7, 369 (3d ed. 1989); and Annot., 40 A.L.R.4th 684.
The reasoning of Goodley is persuasive. Public policy considerations preclude the assignment of legal malpractice claims because such claims are personal to the client. The policy applies regardless of whether the claims sound in contract or tort. Therefore, we need not determine whether the legal malpractice claim in the case at bar sounds in contract or in tort.
Bank IV did not acquire Christopher I’s legal malpractice claim against Arn, Mullins by assignment through foreclosure. Under the facts of the case at bar, the same policy reasons which prevent the assignment of legal malpractice claims also prevent acquiring such claims by assignment through a foreclosure action.
Successor Liability
Bank IV argues that: (1) Successor liability under the NLRA allows Bank IV to step into the shoes of and succeed to the rights of Christopher I; and (2) imposing the burden of successor liability under the NLRA without also granting successor rights is unfair.
Am, Mullins contends: (1) The same policy reasons which prevent assignment and foreclosure of malpractice claims also prevent transfer of such claims by succession; and (2) successor liability under the NLRA does not carry with it the right to assert legal malpractice claims held by the predecessor corporation. As applied to the facts in the case at bar, we agree.
The NLRB first recognized successor liability in Perma Vinyl Corp., 164 N.L.R.B. 968 (May 24, 1967).
Perma Vinyl was approved by the United States Supreme Court in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 38 L. Ed. 2d 388, 94 S. Ct. 414 (1973). In Golden State, the Supreme Court reasoned that if unfair labor practices were allowed to go unremedied, employees might identify the successor’s labor policies with those of the predecessor, thereby frustrating the policies of the NLRA. 414 U.S. at 184. The Supreme Court concluded that the goals of the NLRA could be achieved at a relatively minimal cost to the bona fide successor and stated the following rationale:
“Since the successor must have notice before liability can be imposed, ‘his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller’s unfair labor practices.’ Perma Vinyl Corp., 164 N.L.R.B. at 969.” 414 U.S. at 185.
Successor liability under the NLRA does not grant the successor employer the right to “step into the shoes” of the predecessor and succeed to the legal malpractice rights of the predecessor. Under the NLRA, the successor employer is expected to look out for its own interests when acquiring the predecessor or when deciding to carry on the business in a substantially unchanged form. The NLRA does not grant successor employers the right to assert legal malpractice claims held by the original employer.
The public policy rationale preventing the assignment of legal malpractice claims applies equally in the NLRA succession context. Due to the personal, confidential nature of the attorney/ client relationship, legal malpractice claims should not be transferred by NLRA successor employer succession.
Subrogation
Bank IV reasons that the equitable principles of subrogation allow it to step into the shoes of Christopher I and assert Christopher I’s claim against Arn, Mullins. According to Bank IV, Arn, Mullins caused the loss (the unfair labor practice liability) and equity should force the law firm to bear the loss. Although Bank IV did not pay a debt owed by Arn, Mullins, Bank IV reasons it did pay a debt owed by Christopher I and, consequently, Bank IV is subrogated to the right of the debtor whose obligation it paid. Bank IV asserts it was forced to carry on the business in order to protect the value of the foreclosed assets. Arn, Mullins, representing the interests of Christopher I, took the position Bank IV had to continue the business to mitigate damages and to make a commercially reasonable disposition.
Arn, Mullins emphasizes that Bank IV may be subrogated only to the rights of the creditor to whom payment is made. Because payment was made to the NLRB, Bank IV may recover from Arn, Mullins only if Arn, Mullins owed the NLRB, which it did not. Further, Arn, Mullins asserts that subrogation is only available when a person pays a debt for which another is primarily liable. Under the NLRA, successor liability is primary, based on the successor’s knowledge of the unfair labor practice and the successor’s decision to carry on the business in a substantially unchanged form. Thus, Bank IV is primarily liable and subrogation is not available. Finally, Arn, Mullins advances the argument that the same public policy considerations which prohibit assignment of legal malpractice claims also prohibit subrogation of such claims.
Bank IV counters that the public policy rationale is based on the privity rule which no longer prevails in Kansas and was never applied to subrogation. Further, the public policy rationale arises from the law of assignment of claims. Subrogation, according to Bank IV, is not dependent on the law of assignments. (Citing United States Fidelity & Guaranty Co. v. First State Bank, 208 Kan. 738, 494 P.2d 1149 [1972]; Western Surety Co. v. Loy, 3 Kan. App. 2d 310, 594 P.2d 257 [1979]).
Are the policy considerations that persuaded us to prohibit the assignment of legal malpractice claims applicable in the subrogation context? We believe, under the facts of the case at bar, they are.
In their discussion of the assignability of legal malpractice claims, Mallen and Smith state: “A related issue concerns subrogation by an insurer in an action against its insured’s lawyer. When subrogating to a perceived right of its insured, the same basic policy considerations exist as involving a formal assignment.” 1 Mallen & Smith, Legal Malpractice § 7.7, 370.
The relationship in the case at bar involves a creditor, a debtor, and a debtor’s counsel. The tri-party relationship is one in which the interests of the creditor and debtor have the potential to diverge. To hold Arn, Mullins, whose loyalty runs to the debtor, liable to the creditor either directly, as we discuss later in the opinion, or indirectly by subrogation, could impair the attorney’s ability to represent the debtor. See Continental Cas. Co. v. Pullman, Comley, et al., 709 F. Supp. 44 (D. Conn. 1989), aff'd 929 F.2d 103 (2d Cir. 1991); and Atlanta Int’l Ins. Co. v. Bell, 438 Mich. 512, 475 N.W.2d 294 (1991) (Cavanagh, C.J., dissenting).
We hold that the policy considerations prohibiting the assignment of legal malpractice claims also prohibit the subrogation of a debtor’s legal malpractice claim against the debtor’s attorney by a creditor where the interests of the debtor and the creditor have the potential to diverge. Thus, we need not address the other subrogation arguments advanced by Bank IV and Arn, Mullins.
A Duty Owing
The trial court ruled that the debtor/creditor relationship between Christopher I and Bank IV precludes any recovery by Bank IV upon the direct claim of legal malpractice. Nelson v. Miller, 227 Kan. 271, Syl. ¶ 4, 607 P.2d 438 (1980) (“An attorney cannot be held liable for the consequences of his professional negligence to his client’s adversary.”). However, the trial court determined the balancing test in Pizel v. Zuspann, 247 Kan. 54, should also be considered. After applying the Pizel balancing test, the trial court concluded that Arn, Mullins is not liable to Bank IV.
Bank IV asserts that the trial court: (1) failed to make findings of fact as required by our Rule 165 (1991 Kan. Ct. R. Annot. 126); (2) was in error in concluding that no uncontroverted material facts existed; and (3) was in error in relying on Nelson because there was no evidence of an adversarial relationship.
Neither Bank IV’s Rule 165 argument nor its material fact contention is persuasive. The trial court’s order granting summary judgment consists of nine pages containing findings of fact and the trial court’s legal reasoning. We agree with the trial court’s material fact analysis.
The adversaries in the labor action, according to Bank IV, were the NLRB and the union on one side with Christopher I and Bank IV on the other. In addition, Bank IV contends the rule imposing no duty owing to an adversary applies only to adversaries in litigation, not to adversaries in business and contract cases. Finally, Bank IV reasons that the application of Pizel supports its right to bring this action.
Arn, Mullins counters, arguing: (1) No question of material fact exists; (2) Pizel should not be applied due to the adversarial nature of the creditor/debtor relationship; (3) the rule imposing no duty to an adversary applies equally in the litigation and nonlitigation setting; (4) the first Pizel factor, “intent to benefit” the plaintiff, is the predominant inquiry and is nonexistent in the Bank IV/ Christopher I/Am, Mullins relationship; (5) the instant fact scenario is distinguishable from Pizel; and (6) if the Pizel test is applied, liability is precluded as a matter of law. (Arn, Mullins appears to argue that intent to benefit Bank IV is a threshold factor.)
We held in Nelson that an attorney cannot be held liable for the consequences of professional negligence to an adversary of the client. Traditionally, an attorney can be held liable for negligence only to a client. The attomey/client rule is based upon the rationale that privity of contract must exist between the plaintiff and the attorney. 227 Kan. at 286-87 (citing Young v. Hecht, 3 Kan. App. 2d 510, 514, 597 P.2d 682, rev. denied 226 Kan. 793 [1979]). Nelson noted that the strict privity rule had been eased in situations where an attorney renders services that the attorney should recognize as involving foreseeable injury to a third-party beneficiary of the attorney-client contract. 227 Kan. at 287.
In Pizel, we adopted the California multi-criteria balancing test and recognized that a trust beneficiary may have a claim for negligence against the attorney drafting the trust despite the fact the beneficiary was not in privity with the attorney. Whether an attorney may be liable to parties not in privity depends upon a balancing of a number of factors, including: (1) the extent to which, the transaction was intended to affect plaintiffs; (2) the foreseeability of harm to plaintiffs; (3) the degree of certainty that plaintiffs suffered injury; (4) the closeness of the connection between the attorney’s conduct and the injury; (5) the policy of preventing future harm; and (6) the burden on the profession of the recognition of liability under the circumstances. 247 Kan. 54, Syl. ¶ 5.
Bank IV argues that Unruh, as corporate secretary, certified the representations made by Christopher I in the credit agreement.
This certification merely reflects that the Board of Directors of Christopher I met and adopted resolutions to execute the credit agreement. The certification states that the following corporate resolutions were adopted and sets out the adopted resolutions. Furthermore, Bank IV was fully aware of the pending labor dispute in October 1986 when it entered into the credit agreement. The affidavit of Bank IV’s executive vice-president states:
“3. During 1986, as a result of Christopher’s severe financial losses, the Bank had to consider whether it should continue to extend credit to the company. Christopher represented to the Bank that it was addressing its problems and reducing operating expenses. Christopher represented to the Bank that it had terminated its Union contract, reduced wages, and laid off unnecessary workers. I was told at some point that Christopher had a dispute with its union, although I was not aware of the allegations or issues being raised. It was represented to me by George Christopher that the union dispute did not amount to anything and that the union’s claims were groundless. I understood and believed that these statements represented the view of directors of the company, including the company’s attorney, Milo Unruh, and were based upon and consistent with the advice of Arn, Mullins, the Company’s law firm. In reliance on these representations, the Bank continued to extend credit.” (Emphasis added.)
The credit agreement required an opinion letter of the borrower’s counsel. The letter was furnished by Arn, Mullins. Although the credit agreement required the opinion letter to address specific numbered sections of the agreement, i.e., 5.13, 5.14, 5.15, as well as other matters, two numbered sections, 5.05 (litigation) and 5.09 (compliance), were excluded from the letter’s requirements. Bank IV was free to consult its own counsel as to the effect of the labor dispute-NLRB claim, as the Mullen group did.
We note that Supreme Court Rule 226, MRPC 2.3 (1991 Kan. Ct. R. Annot. 272) states:
“(a) A lawyer may undertake an evaluation of a matter affecting a client for the use of someone other than the client if:
(1) the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client; and
(2) the client consents after consultation.
“(b) Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.”
The comment to MRPC 2.3 states:
“Duty to Third Person
“When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client.” (1991 Kan. Ct. R. Annot. 273.)
Under the uncontroverted facts, there is no indication that: (1) Bank IV requested an opinion letter from Arn, Mullins or from Christopher I as to the NLRB-unfair labor practice matter; (2) Am, Mullins’ advice, opinions, or information concerning the NLRA § 8(d)(3) 30-day notice and the unfair labor practice claim, as attorneys for Christopher I, was intended for the information or use of Bank IV as a nonclient third party; and (3) Arn, Mullins knew or should have known that Bank IV was relying on Arn, Mullins’ opinion, information, or advice as to the 30-day notice and unfair labor practice claim.
The relationship of Bank IV and Christopher I was that of creditor and debtor. The relationship between borrower and lender is usually recognized as being sufficiently adversarial, at least potentially so, that a lawyer for one party is found to owe no duty to the other party upon which a malpractice claim could be based. ABA/BNA Lawyers’ Manual on Professional Conduct, Liability to Nonclients; Loans, 301:612 (1990). However, we need not decide the case at bar on the rationale of Nelsons adversarial relationship concept. We note MRPC 2.3 contemplates an evaluation by an attorney for someone other than the client. Borrower-lender relationships need not always be adversarial. What are the guidelines to determine when an attorney should carry the obligation to protect a nonclient’s interest in a borrower-lender relationship?
Recently we addressed protecting a nonclient’s interest in an estate planning context, Pizel v. Zuspann. However, the geometry of the facts in the case at bar presents a different triangle, that of borrower-client (Christopher I), lender-nonclient (Bank IV), and defendant attorneys (Arn, Mullins). Thus, we do not rely on Pizel in resolving the case at bar.
What representations concerning the NLRB unfair labor practice claim did Arn, Mullins make directly to Bank IV upon which Bank IV relied? Did Arn, Mullins intend or expect such reliance? The direct representation-intended reliance inquiry is key.
Before a nonclient third-party lender may state a legal malpractice claim against a borrower’s attorney, a showing must be made that the attorney directly advised the lender or that the attorney intended or expected the lender to rely on the attorney for legal services concerning the matter in issue.
Arn, Mullins did not directly advise Bank IV concerning the union dispute. The record does not reflect that Am, Mullins intended or expected Bank IV to rely upon the firm for legal services relating to the 30-day notice or the dispute with the union. The affidavit of Bank IV’s executive vice-president establishes that Bank IV believed George Christopher’s representations were the view of Unruh and consistent with Am, Mullins’ advice. However, Bank IV has not made a showing that Am, Mullins either directly advised Bank IV or intended or expected Bank IV to rely on the firm’s legal services.
We hold that under the facts of the case at bar, Arn, Mullins owed no duty to Bank IV. Summary judgment was proper.
Affirmed.
Holmes, C.J., not participating.
Terry L. Bullock, District Judge, assigned, participating. | [
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The opinion of the court was delivered by
Six, J.:
This case involves a divorce judgment lien and the effect of a mortgage foreclosure action on the lien. We address three issues in resolving the dispute: (1) whether a deferred lien on real estate awarded in a divorce action is a judgment subject to the K.S.A. 1991 Supp. 60-2403(a) five-year dormancy statute; (2) if so, whether the dormancy statute was tolled under the facts of the case at bar; and (3) whether there has been acquiescence in the trial court’s judgment which effected a waiver of the appellant’s right to appeal.
Bank IV Wichita, National Association (Bank IV) brought this action to foreclose on a mortgage given by Mary Plein on real property which she was awarded in a 1978 divorce from William Joseph Plein. Both Mary and William are defendants.
The divorce decree awarded Mary real property subject to a deferred lien awarded to William in the amount of $10,000, bearing interest at the rate of 8% per annum, beginning two years after June 9, 1978. The trial court ruled, in the case at bar, that William’s lien was unenforceable and that he was not entitled to share in the distribution of proceeds received from the sheriff’s sale of the subject real property. William appeals.
Our jurisdiction is based on a transfer from the Court of Appeals under K.S.A. 20-3018(c).
We rule that the trial court was in error. We reverse and remand with instructions to enter judgment for William.
Facts
The case was decided by the trial court based on stipulated facts. The pertinent portions of the stipulation are:
“3. Paragraph 5 of the Journal Entry and Decree of Divorce filed in Sedgwick County Case No. 77-D-3294 provides as follows:
“[Mary] shall be awarded the residential real property located at 5000 South Kansas, Wichita, Kansas, described as follows:
[Legal description of the real property.]
“The above-described property which shall be awarded to [Mary], subject to the indebtedness thereof, including the note at the Union National Bank, Wichita, Kansas, shall also be subject to a deferred lien which is hereby awarded to [William] in the amount of $10,000.00. Said lien shall bear no interest for two years from June 9, 1978, but after that time will bear interest at the rate of eight percent (8%) per annum simple interest and not compounded. Said hen is subordinate to the note held by the Union National Bank of Wichita, Kansas, and any refinancing of said note which may be effected by the plaintiff. Said lien and the deferred interest shall he due and payable in full to the defendant from the plaintiff upon the voluntary sale of the property, the death or remarriage of the plaintiff, or continuous cohabitation by the plaintiff with a male person to whom she is not related by bjood or marriage, and any time she does not occupy the property as a residence for herself and one or more of the minor children of the parties. Plaintiff shall hold the defendant harmless from any indebtedness on or related to the above property. [Emphasis added.]
“4. The Defendant, Mary Plein, has made no payments to the Defendant, William Joseph Plein, toward the satisfaction of said ‘deferred lien.’
“6. Jeffrey L. Plein is the youngest child of Mary Helen Plein and William Joseph Plein. Jeffrey L. Plein’s eighteenth birthday was November 20, 1985. ...
“7. William Joseph Plein did not issue any execution on the judgment granted under the Journal Entry and Decree of Divorce described above until January 24, 1991. (See, official court file for Case No. 77-D-3294 which the parties respectfully request the Court to take judicial notice thereof.)
“10. The Defendant, Mary H. Plein, a/k/a Mary Helen Plein, has defaulted on the terms of said mortgage and the underlying note. On or about the 21st day of July 1989, the Plaintiff, Bank IV Wichita, N.A. formerly Bank of Mid America, filed a Petition to foreclose said mortgage. On September 7, 1989, the Defendant, William Joseph Plein, timely filed a responsive pleading entitled ‘Pleading,’ asserting that ‘the Court awarded a lien to William Joseph Plein’ set forth in said [divorce action] and that said lien is superior to the mortgage of the Plaintiff.
“11. Without notice to Defendant, William Joseph Plein, Ben Foster, then counsel for Plaintiff, Bank IV, filed a Journal Entry of Judgment on December 27, 1989, which did not set forth the lien of William Joseph Plein.
“14. On or about July 31, 1990, it was agreed by all counsel that the prior Journal Entries in this case should be set aside. . . .
“15. Defendant William Joseph Plein filed an Amended Answer and Petition for Foreclosure on February 1, 1991. This pleading amended the Answer filed by Defendant William Joseph Plein on September 7, 1989.
“17. In the event William Joseph Plein’s judgment and lien awarded in [the divorce action] are determined to be valid and enforceable, the parties stipulate the amount of William Joseph Plein’s lien is in the principal amount of $10,000, plus accrued interest through March 27, 1991, in the amount of $8,637.29, plus interest thereafter at eight percent (8%) per annum, or $2.19 per day.”
The trial court, in foreclosing Bank IV’s mortgage, found the mortgage to be senior and superior to all liens except William’s. The remaining issues before the trial court were whether William’s lien had become dormant and, if not, the lien’s priority. Claude and Nancy Anderson, who are not named as defendants in the case at bar, had a first mortgage on the real estate and were granted first priority status.
The trial court reasoned that William’s lien is a judgment lien which became dormant under K.S.A. 1991 Supp. 60-2403(a). According to Bank IV, the 1989 default judgment journal entry, which was set aside, did not toll the running of the dormancy statute. Even if William’s amended answer relates back to his original answer, the amended answer is not an execution, garnishment, or proceeding in aid of execution (the requirements of K.S.A. 1991 Supp. 60-2403[a] to keep the judgment alive). The trial court ruled William’s lien is presently unenforceable and subordinate to the mortgage lien of Bank IV and all other judgment lien creditors who are not in default.
Following the trial court’s ruling, William filed a motion to revive judgment and for immediate issuance of execution in the original divorce action. The motion was heard and granted. A general execution was issued to the sheriff and returned with the notation, “No Service — No Address.”
After William and Bank IV had filed their respective briefs in the Court of Appeals, Bank IV filed a motion to dismiss the appeal. Bank IV asserted that William has acquiesced in the trial court’s judgment by reviving the judgment in the original divorce action and obtaining an order of execution. The Court of Appeals denied Bank IV’s motion to dismiss the appeal, stating the ar gument asserted will be considered when the case is decided on the merits.
Mary has not filed a brief in the instant action.
Standard of Review
This case was decided below on the basis of stipulated facts; therefore, we may exercise de novo review. Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990).
The Divorce Lien
William argues that the lien awarded to him in the divorce action is not a judgment lien subject to dormancy under K.S.A. 1991 Supp. 60-2403. He asserts that he was awarded a specific lien against a specific piece of property, i.e., an interest in. the real estate, and was not awarded a money judgment. William reasons that because his lien did not arise. as a matter of law by virtue of a generic money judgment under K.S.A. 1991 Supp. 60-2202(a), the lien is not subject to dormancy under K.S.A. 1991 Supp. 60-2403.
Bank IV contends that the deferred lien granted to William is a judgment lien, arguing that a division of property in a divorce decree is a judgment. Bank IV reasons that because William did not issue an execution or garnishment within five years after his deferred lien became enforceable on November 20, 1985, (the Pleins’ youngest child’s 18th birthday) his judgment became dormant under K.S.A. 1991 Supp. 60-2403(a) and lost its priority.
K.S.A. 1991 Supp. 60-2403(a) provides in part:
“If a renewal affidavit is not filed or if execution, including any garnishment proceeding, income withholding proceeding or proceeding in aid or execution, is not issued, within five years from the date of the entry of any judgment in any court of record in this state, ... or within five years from the date of any order reviving the judgment or, if five years have intervened between the date of the last renewal affidavit filed or execution proceedings undertaken on the judgment and the time of filing another renewal affidavit or undertaking execution proceedings on it, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate of the judgment debtor.” (Emphasis added.)
The fundamental rule of statutory construction is that the intent of the legislature governs. NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989). When construing a statute, a court should give words in common usage their natural and ordinary meaning. In re Estate of Robinson, 236 Kan. 431, 436, 690 P.2d 1383 (1984).
K.S.A. 1991 Supp. 60-2403(a) speaks of “any judgment” of any court of record in this state. The statute does not limit its application to a monetary judgment which becomes a lien on the judgment debtor’s real estate under K.S.A. 1991 Supp. 60-2202(a). Therefore, the statute is broad enough to include a judgment awarding a specific lien on specific real estate as well as a monetary judgment which becomes a lien on real estate under K.S.A. 1991 Supp. 60-2202(a).
William relies on In re Donahue, 862 F.2d 259 (10th Cir. 1988). The issue of dormancy of the judgment awarded in the Donahue divorce decree was not involved. Therefore, Donahue provides no direct guidance relative to the issues presented here.
Bank IV relies on Chapman v. Chapman, 184 Kan. 319, 336 P.2d 407 (1959). Chapman, a divorce case, involved a money judgment which was ordered to be a lien on the property of the ex-wife. In the case at bar, William was awarded a lien on the subject real estate rather than a money judgment. Nevertheless, the division of property made by a trial court in a divorce is a judgment. Because K.S.A. 1991 Supp. 60-2403(a) speaks of “any judgment,” the judgment in the underlying divorce action, awarding a lien to William, is subject to dormancy.
Tolling the Statute — The Default Judgment
William argues that K.S.A. 1991 Supp. 60-2403(a) was tolled from November 17, 1989, when the default judgment was entered barring his interest in the real estate, until Novemher 2, 1990, when the default judgment was set aside. He contends the five-year dormancy time period does not run during any period in which it is impossible to collect the judgment by legal process. According to William, the default judgment was a final judgment which extinguished his interest in the real estate. He had no interest in the real estate upon which to file an execution, and he had no other money judgment to pursue. Because the default judgment was merely voidable and not void, William contends that he could not collaterally attack the judgment by enforcing his lien in the divorce action. He asserts that he had to set aside the default judgment prior to an execution or other action to enforce his rights.
Bank IV emphasizes that although the divorce decree described William’s award as a “deferred lien,” the judgment was for a specific amount of money, $10,000. Any property held by Mary would be subject to William’s lien and, thus, subject to execution. Bank IV questions the actions taken by William following the second journal entry of foreclosure extinguishing his interest in the real estate. William revived the divorce judgment and caused execution to be issued. The actions demonstrate William’s acquiescence in that he could have filed an execution in the divorce case while the default judgment was in effect.
By its plain terms, the divorce decree awarded William a lien on the property in the amount of $10,000. The divorce decree did not award him a monetary judgment in the amount of $10,000. The lien became enforceable on November 20, 1985, when Jeffrey, the Pleins’ youngest child, turned 18 years old. Thus, the five-year dormancy period ran on November 20, 1990, unless the period was tolled.
William relies on Wichita Fed. Sav. & Loan Ass’n v. North Rock Rd. Ltd. Partnership, 13 Kan. App. 2d 678, Syl. ¶ 4, 779 P.2d 442 (1989), which states: “The time within which a judgment must be enforced to prevent it from becoming dormant does not run during any period in which it is impossible to collect the judgment by legal process.”
In 1990, the legislature amended 60-2403, adding the following provision: “(c) The time within which action must be taken to prevent a judgment from becoming dormant does not run during any period in which the enforcement of the judgment by legal process is stayed or prohibited. L. 1990, ch. 208 § 1. Thus, the holding in Wichita Fed. Sav. & Loan Ass’n has been codified.
On November 28, 1989, a journal entry reflecting the default judgment was filed in the case at bar, barring William from asserting his lien on the real estate. The default judgment effectively extinguished William’s lien on the subject real estate.
A judgment of foreclosure is a final judgment for purposes of appeal if it détermines the rights of the parties, the amounts to be paid, and the priority of the claims. Stauth v. Brown, 241 Kan. 1, Syl. ¶ 1, 734 P.2d 1063 (1987). The default judgment in the case at bar was a final judgment and was not appealed. A judgment which has been entered in a case and has become final cannot be collaterally attacked in a subsequent proceeding unless the judgment is void. Riney v. Riney, 205 Kan. 671, Syl. ¶ 4, 473 P.2d 77 (1970).
. The default judgment was entered without the notice required by K.S.A. 60-255. The failure to give a party who has appeared in the action three days’ notice of the application for a default judgment does not render a judgment void; however, such judgment is voidable. Wellsville Bank v. Sutterby, 12 Kan. App. 2d 585, 588, 752 P.2d 700 (1988). Thus, the 1989 default judgment •was final and valid until it was set aside on November 2, 1990. The default judgment could not be challenged collaterally.
Because the default judgment extinguished his lien, William had no judgment on which to issue an execution until the default judgment was set aside on Novembér 2, 1990. From November 28, 1989, until November 2, 1990, it was impossible for William to collect the judgment by legal process. Therefore, the five-year dormancy period did not run during this time.
•' The parties stipulated that William issued execution on the judgment on January 24, 1991. The record does not contain an order of execution; however, according to the parties’ stipulation, an execution was issued within the required time to keep the judgment alive. The trial court erred in finding the judgment granting William a lien on the subject real estate had become dormant. Our conclusion requires reversal and a remand.
Acquiescence in the Trial Court’s Judgment
Bank IV argues that William: (1) has waived his right to appellate review by acquiescence in the trial court’s judgment; and (2) has recognized the propriety of the trial court’s judgment that his lien had become dormant by filing a motion to revive the judgment. Only a dormant judgment may be revived. In addition, according to Bank IV, William recognized that he had the ability to issue an execution while the 1989 default judgment was pending by filing “General Executions” while the current journal entry in the case at bar that barred his lien was in place.
Counsel for William suggests that he has been in a “Catch-22” situation since becoming involved in the case in June of 1990. The motion to revive, order to revive, and subsequent executions were filed in the collateral divorce case as a protective measure in light of the trial court’s ruling. William contends that this court has recognized an exception to the rule regarding acquiescence in a judgment, where the acquiescence consists of protective acts. McDaniel v. Jones, 235 Kan. 93, 679 P.2d 682 (1984). William has neither received nor sought any benefit from the judgment. William emphasizes that his postjudgment actions were protective acts in the event the trial court is affirmed.
In McDaniel, we discussed the rules governing acquiescence in the judgment of the trial court sufficient to waive the right to appeal the judgment. “The gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment.” 235 Kan. at 102. “[I]t is generally the rule that a waiver is not implied from measures taken by an appellant in defense of and to protect his rights or interest.” 235 Kan. at 104. The “protective measure” exception applies in the instant action.
Following the trial court’s judgment in the case at bar (the foreclosure action), William revived the divorce judgment and caused execution to be issued. These postjudgment acts are inconsistent with his positions on appeal that the judgment never became dormant and that the dormancy statute was tolled because he could not file an execution until the judgment extinguishing his lien was set aside. However, these acts fit within the protective measure exception applied in McDaniel. William revived his judgment as a protective measure in the event that this court should affirm the trial court. William’s postjudgment actions were permissible protective measures which did not waive his right to appeal.
Having disposed of the issues necessary to resolve the instant appeal, we need not reach William’s additional assertions of: (1) the relation back of William’s answer under K.S.A. 60-215(c) and (2) the creation of an equitable mortgage to prevent unjust enrichment.
We reverse and remand with instructions to enter judgment for William. William’s claim of priority is established ahead of Bank IV. The proceeds from the sale of the real estate contested by William and Bank IV are to be applied to the satisfaction of William’s lien.
Holmes, C.J., not participating.
Paul E. Miller, District Judge, assigned. | [
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The opinion of the court was delivered by
Abbott, J.:
This dispute arises out of a party wall demolition. The parties do not discuss whether there was or is a party wall agreement or a right by prescription.
The trial court granted judgment on the pleadings in favor of the defendant, City of Emporia (City), and against the plaintiff, Admire Bank & Trust (Bank). Judgment was granted on the basis that the statute of limitations had run.
The trial court should have considered the motion for judgment on the pleadings as a motion for summary judgment. Thus, the issue becomes whether the trial court erred in granting summary judgment to the City.
The Bank filed a petition in July 1990, alleging that the buildings at 514 and 516 Commercial in Emporia, Kansas, shared a “party wall” and that the City demolished the building at 516 Commercial. The Bank claimed the City was a common owner of the party wall when it was demolished and had a duty to use reasonable care to protect the structural integrity of the party wall and to avoid damage to the building at 514 Commercial, which the Bank owned.
The City answered that it was the City’s “understanding” that the building at 516 Commercial was demolished in approximately 1970.
Most of the rest of the facts are taken from briefs filed with the trial court and from statements of counsel during argument on the motion for judgment on the pleadings.
The Bank acquired the properties at 510 and 514 Commercial in January 1990, after the property at 516 Commercial had been demolished. The Bank claims it does not know when the building at 516 Commercial was demolished, but claims one of its employees “thinks” it may have been within the last 10 years. The Bank also maintains that after it acquired the property, it received notice that the City was condemning the buildings at 510 and 514 Commercial, which were adjoined, because of structural integrity problems. The City denies it ever gave notice it was ordering the property to be demolished.
After the buildings at 510 and 514 Commercial were demolished, the Bank filed suit, alleging that the City’s negligence in demolishing the building at 516 Commercial caused damage to the Bank’s buildings at 510 and 514 Commercial. According to the Bank, the City “failed to leave the property at 514 Commercial with any lateral support”; “failed to close the stone caps on the parapet walls, allowing water to get into the north wall and causing the wall to crack and mortar to be washed out”; and further “failed to protect structures adjacent to the property owned by [the Bank] at 514 Commercial.” The Bank claimed that this damage necessitated demolition of the buildings. The Bank seeks compensation for the costs incurred in removing the buildings at 510 and 514 Commercial, for the diminution in value of the property, and for the loss of rent for a reasonable period of time.
The City filed a motion for judgment on the pleadings, pursuant to K.S.A. 1991 Supp. 60-212(c). The City claimed the applicable statute of limitations, K.S.A 1991 Supp. 60-513, barred the Bank’s claim because the building at 516 Commercial was removed in approximately 1970.
In its memorandum decision, the trial court specifically referred to the City’s motion as a motion for judgment on the pleadings. The trial court also stated it accepted 1970 as the date the building at 516 Commercial was demolished.
A motion for judgment on the pleadings is governed by K.S.A. 1991 Supp. 60-212(c).
“After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.”
A review of the record reveals the trial court considered matters outside the pleadings to reach its conclusion.
In its answer, the City stated it understood the date of demolition was “approximately 1970.” The City did not explain the basis for its understanding nor support it with any evidence. In its motion for judgment on the pleadings, the City stated the pleadings showed the building was demolished in approximately 1970. A hearing on the motion was scheduled for September 7, 1990. The Bank obtained a continuance in order to discover the demolition date, and the hearing was rescheduled for October 26, 1990.
The Bank filed its response to the City’s motion on October 24, 1990, and claimed a factual dispute existed whether the building at 516 Commercial was demolished in 1970. The Bank based its claim on the fact it did not know when the building was demolished. The Bank also noted that the City was not certain of the date because the City stated the demolition occurred in approximately 1970.
At the hearing on October 26, the trial court made the following observation: “So the date of the tearing down and the damage to the building would be the date that the Court Would be interested in, but that will have to be tied down some way or other. Is there not some evidence somewhere to tie this date down?” In response, the City stated:
“Well, Your Honor, we have provided through discovery some things that do tie it down as far as when the city acquired the property which was in early 1970. I also just procured today an affidavit from [a] representative of KP&L which indicated they installed a freestanding streetlight on the— on July 10, 1970, which I believe is a pretty good indication that the building must have been tom down at that time. The only other thing we’ve been able to come up with so far is in the minutes of December ’69 meeting when it was offered which again was provided through discovery was the idea that it would be boughten [sic] and then tom down and the date of the acquisition was December 31, ’69.”
The affidavit and the meeting minutes were never entered into evidence and are not a part of the record, nor is any discovery in the record before us.
At the hearing, the Bank argued the date the building was demolished was in dispute, but offered no evidence to counteract the City’s claims. Toward the close of the hearing, the court asked the Bank whether it was suggesting that demolition occurred within the past ten years. The Bank’s counsel replied:
“Your Honor, we don’t know. I mean I have been told that by the people at the bank that they do not believe it was that long ago. But we have not been able to find any definitive information as of yet as to when it occurred. So I can’t say. But we think it was in the last ten years, Your Honor.”
The trial court issuéd its memorandum decision and made the following findings:
“[The Bank] sought and obtained a continuance of the hearing in order to ascertain the date of demolition. At this time there is no evidence of when demolition took place other than ‘approximately 1970.’
“The Court finds that [the City] has alleged through these proceedings that the date of tearing down the building was ‘approximately 1970’. [The Bank] has pursued this question with discovery and merely argues [it doesn’t] know when it was torn down. The Court accepts the date of 1970.”
As illustrated by the hearing and the memorandum decision, the trial court considered matters outside the pleadings. The trial court erred in not treating the motion as a motion for summary judgment. “The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” State v. Wilburn, 249 Kan. 678, Syl. ¶ 5, 822 P.2d 609 (1991); see Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257, Syl. ¶ 6, 806 P.2d 997 (1991). Thus, if the trial court’s granting of the City’s motion withstands application of summary judgment standards, the trial court’s decision will be upheld on appeal.
The Bank argues it was not given a reasonable opportunity to present pertinent évidence. KiS.A 1991 Supp. 60-212(c) requires that in the event a motion for judgment on the pleadings is converted to a summary judgment motion, “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.” At the hearing on October 26, 1990, the Bank claimed that the motion for judgment on the pleadings had been turned into a motion for summary judgment. The Bank requested that it be allowed time to conduct limited discovery concerning the disputed demolition date.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” K.S.A. 1991 Supp. 60-256(c).
“The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, we read the record in the light most favorable to the party who defended against the motion for summary judgment, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Gilger v. Lee Constr., Inc., 249 Kan. 307, Syl. ¶ 1, 820 P.2d 390 (1991).
The trial court found no genuine issues concerning material facts that precluded granting the City’s motion. The Bank maintains that the trial court’s finding is in error because the Bank disputed the demolition date.
Here, the City did not file a statement of uncontroverted facts and offered no evidence concerning when the building was demolished. The dispositive facts are in issue and unsubstantiated by either the record or the pleadings. While we understand the trial court’s frustration in this case, the record does not show the trial court had any evidence before it that would support an approximate date the building was torn down.
“The statute of limitations is an affirmative defense and the burden of pleading and proving its applicability rests on the defendant.” O’Donnell v. Fletcher, 9 Kan. App. 2d 491, Syl. ¶ 1, 681 P.2d 1074 (1984). See Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970). The Bank did not plead any dates, and the City offered no evidence and did not file a statement of uncontroverted facts. The date of substantial injury was never established. A factual issue remains (when the statute of limitations commences to run), and the trial court erred in granting summary judgment on the record before it.
Both parties agree that the statute of limitations in section 60-513 of the Kansas Statutes Annotated governs. At issue is whether the preamendment statute (K.S.A. 60-513) or the 1987 amendment (now found at K.S.A. 1991 Supp. 60-513[b], [d]) applies.
K.S.A. 60-513(b), prior to the 1987 amendment, provided:
“Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
After analyzing the preamendment law, this court, in Gilger v. Lee Constr., Inc., 249 Kan. 307, held:
“Under K.S.A. 60-513(b), the two-year statute of limitations for a tort action commences on the date of substantial injury. A cause of action in tort does not accrue until there is substantial injury resulting from a breach of duty imposed by law.”
“The ten-year statute of limitations provided in K.S.A. 60-513(b) applies only when an injury is sustained but is not reasonably ascertainable until a later date. The ten-year limitation is merely a limit on the extension of the two-year limitation when an injury is not immediately ascertainable.”
“Under K.S.A. 60-513(b), a wrongful act alone does not give rise to a cause of action or start the running of the statute of limitations. Rather, when an act occurs which causes substantial injury at a date later than the wrongful act, both the two-year and ten-year statutes are triggered upon ascertainment of the substantial injury. If the injury is known but the facts of such injury are not reasonably ascertainable until later, K.S.A. 60-513(b) bars an action thereon unless the facts of injury are ascertained and action commenced within ten years of the substantial injury.” 249 Kan. 307, Syl. ¶¶ 3-5.
The 1987 legislature, in an éra of tort reform, amended K.S.A. 60-513(b) to adhere to the language suggested in Ruthrauff, Administratrix v. Kerisinger, 214 Kan. 185, 519 P.2d 661 (1974). In Ruthrauff, a gas explosion and fire destroyed the Smiths’ residence and caused the death of Mrs. Smith. The administratrix of Mrs. Smith’s estate filed suit against the building and plumbing contractors within 2 years of the explosion, but over 10 years after the construction of the house. The defendants filed for summary judgment. The trial court granted the motion, based upon its interpretation of the statute of limitations that “[n]o cause of action can arise if more than ten years have elapsed since the alleged wrongful act.” 214 Kan. at 187.
This court reversed the trial court, reasoning:
“Under K.S.A. 60-510 this primary 2 year period [in 60-513(a)] is not to commence until each cause of action shall accrue, i.e., when substantial injury results. The 10 year provision is secondary and speaks to this primary period when it states ‘but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.’ The ‘period’ referred to would appear to be the ‘period of limitation’ mentioned immediately preceding and this refers to the primary 2 year period provided for in the statute. This would indicate to us that the legislature did not intend to place a restriction on the primary 2 year period which commences when the action accrues. It is merely a limitation on the extension of the 2 year period when substantial injury is not immediately ascertainable. If the legislature intended otherwise it could have clearly expressed itself by saying that in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. This they did not do. Accordingly we hold that the last clause in this statute, which states ’but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action’, does not affect or limit the primary 2 year period for bringing an action where the fact of substantial injury is immediately apparent as in the case of an explosion and resulting fire.” 214 Kan. at 191.
K.S.A. 1991 Supp. 60-513, which incorporates the 1987 amendment, reads:
“(b) Except as provided in subsection (c), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. (Emphasis added.)
“(d) The provisions of this section as it was constituted prior to July 1, 1987, shall continue in force and effect for a period of two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.”
Relying upon Gilger, the Bank argues that the preamendment statute governs its cause of action because the 1987 amendment has no effect on cases in which the original wrongful act occurred prior to July 1, 1987. In our opinion, it misinterprets Gilger. In dicta, the Gilger court commented that “[i]n 1987 the legislature also recognized the rule of Ruthrauff by amending K.S.A. 60-513(b) to conform to the language suggested in Ruthrauff and continued the Ruthrauff rule in force until July 1, 1989.” 249 Kan. at 318. Gilger involved a preamendment application of K.S.A. 60-513: “Appellants filed their action in 1987, and the ten-year limitation, therefore, does not bar prosecution in this case.” 249 Kan. at 318-19.
Also instructive is Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 631 P.2d 222 (1981), in which this court discussed the 1976 amendment to K.S.A. 1975 Supp. 60-513 (codified in subsections [c], [d]). The 1976 amendment, in new subsection (c), reduced the “discovery period” of the statute of limitations in medical malpractice actions from 10 years to 4 years and redefined when such actions accrue by following the suggested language in Ruthrauff. New subsection (d) “granted a grace period of two years from the effective date of the 1976 amendments (July 1, 1976) during which existing causes of action might be filed. After that date, the 1976 act would be applicable and such actions would be controlled by the four-year limitation.” 230 Kan. at 120.
Stephens is on point. The amendment construed in Stephens and the amendment at issue here are, for our purposes, sufficiently similar. In Stephens, the plaintiff filed her cause of action in 1979, over a year past the two-year grace period. Here, The Bank filed its cause of action in 1990, a year past the two-year grace period. The Stephens plaintiff argued that the 1976 amendments did not govern her cause of action.
“The thrust of [plaintiffs] argument is essentially this: Subsection (d) of 60-513 does not apply to the plaintiffs cause of action, because section (d) is applicable only to acts giving rise to a cause of action which actually accrued prior to the effective date of the amendments, July 1, 1976. Here, plaintiff did not discover the improper placement of the IUD, nor did she suffer substantial injuries, until the hysterectomy was performed in 1979. It was only then that plaintiffs cause of action accrued. The negligent act of defendants was not an ‘act giving rise to a cause of action occurring prior to the effective date of [the] act’ because no cause of action had yet accrued at that time. Hence, the 1976 amendments did not bar her cause of action. Stated simply, plaintiff contends that what the legislature did intend was for K.S.A. 60-513(d) to apply to situations where both the negligent act complained of and the accrual of the cause of action took place prior to July 1, 1976. According to plaintiff, this was done so that causes of action which had not already accrued would still have the two-year period of limitation from the date the fact of injury was reasonably ascertainable as provided under the old statute.” 230 Kan. at 120-21.
In response, this court stated:
“[I]t must be emphasized at the outset that the plaintiff does not dispute that the legislature has the power to shorten an existing statute of limitations, provided a reasonable time is given for a person having an existing cause of action to commence an action before the bar takes effect. This principle of law was stated in Milbourne v. Kelley, 93 Kan. 753, 145 Pac. 816 (1915). Likewise, the plaintiff does not argue the unreasonableness of the ‘two year grace period’ provided by K.S.A. 60-513(d), but urges that the language in that section did not express an unequivocal intent that the 1976 amendments should have retrospective operation. We find no merit to this contention, since K.S.A. 60-513(d) clearly expresses the legislative intent to bar certain actions after the grace period, where injuries occurred prior to the effective date of the act.” 230 Kan. at 120.
This court adopted the reasoning of the trial court, quoting:
“ ‘Defendants tax plaintiff with trying to change a critical term in paragraph, (d) by saying that the limitation of (d) upon actions for injuries resulting from acts taking place prior to the effective date of the statute applies only to the causes which accrued (the injury was discovered) prior to the effective date, when in fact the statute speaks of acts occurring prior to the effective date. . . . The provisions of the statute which controlled prior to- the ef-. fective date of the amendment . . . remained applicable for a period of two years from the effective date of the amendment with respect to any act upon which a cause is predicated which occurred prior to that effective date. “With respect to any act,” clearly means that the date to be used for calculation of the period of grace is the date of the act causing the injury and not the date of the accrual upon ascertainment of injury. If plaintiff had a cause not accrued and thus not barred at the time of the - effective date of the act, she could have the benefit of the longer period for two years beyond the effective date of the act, but then the period of grace expired. If the act giving rise to the cause of action (the negligence) occurred on any date within ten years of July 1, 1978, she could institute: her action-under the prior limitation, but once the grace period passed, the absolute limit of four years applied.’
“ ‘It is presumed the legislature had and acted with full knowledge • and information as to the subject matter of the statute, as to prior and existing law and legislation on the subject of the statute and as to the judicial decisions with respect to such prior and existing law and legislation.’ ” 230 Kan. at 121-23.
The 1987 amendment to K.S.A. 60-513 governs the Bank’s cause of action. The amended statute still contains the substantial injury test: If the original wrongful act causes substantial injury, the two-year statute of limitations begins to run at the time of the original act. If substantial injury does not occur at the time of the original act but occurs later, then the two-year statute of limitations begins to run when the injury is reasonably ascertainable. Both prongs of the substantial injury test are subject to the ten-year “discovery” rule. The plain language of the statute and the applicable case law require that after July 1, 1989, a negligence action must be brought within 10 years of the original wrongful act or the action is barred.
Until the trial court has evidence before it concerning when the building at 516 Commercial was demolished, the trial court cannot determine when the statute of limitations commenced to run. The trial court is aware of Lambert v. City of Emporia, 5 Kan. App. 2d 343, Syl. ¶ 1, 616 P.2d 1080 (1980), in which the Court of Appeals reviewed party wall rules and held:
“The owner of a building sharing a party wall may remove his building without liability to the adjoining owner so long as he gives notice of the removal to the adjoining owner and uses reasonable care to protect the structural integrity of the party wall and avoid damage to the adjoining owner’s building resulting from the removal. This rule applies even though removal of the building leaves the party wall exposed to the elements or unsightly.”
The Bank contends the statute of limitations should not commence until the Bank acquired the property in 1990 because it could not maintain a legal action prior to owning the property. In support, the Bank cites Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986), in which this court stated:
“In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The true test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted his action to a successful conclusion.”
The Bank’s contention, while nqt incorrect, only tells part of the story. In State, ex rel., v. Masterson, 221 Kan. 540, 547, 561 P.2d 796 (1977), this court discussed the interplay between the accrual of a cause of action and statutes of limitations: “Under the provisions of K.S.A. 60-510 an action . . . can only be commenced within the period prescribed by the applicable statute after the cause of action shall have accrued.” K.S.A. 60-510 provides that “[cjivil actions, other than for the recovery of real property, can only be commenced within the period, prescribed in the following sections of this article, after the cause of action shall have accrued.”
The Bank maintains that because the trial court barred its claim before the claim ever arose, the Bank was denied its day in court. This, the Bank claims, is a violation of due process under the 14th Amendment of the United States Constitution.
Two cases dispose of that contention: Brubaker v. Cavanaugh, 741 F.2d 318 (10th Cir. 1984), and Stephens v. Snyder Clinic Ass’n, 230 Kan. 115. In Brubaker, the plaintiff raised a due process challenge to the 1976 amendment to K.S.A. 1975 Supp. 60-513. The plaintiff argued that a statute barring a cause of action before all of the action’s elements are present violates due process and that a party must be allowed a reasonable time after discovery of the injury to file a cause of action. The Tenth Circuit Court of Appeals rejected the plaintiffs argument, reasoning:
“ ‘[Statutes of limitation] are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. . . . They sometimes expire before a claimant has sustained any injury ... or before he knows he has sustained an injury .... If the limitation period is otherwise reasonable, a claimant is not thereby deprived of his right to due process.’ [Citations omitted.]
“. . . The state has a legitimate interest in preventing stale claims. The statute provides a reasonable length of time in which to bring suit. Although it works a hardship on particular plaintiffs, there is no violation of due process in its application.” 741 F.2d at 321.
In Stephens, the 1976 amendment to K.S.A. 1975 Supp. 60-513 survived an equal protection challenge. This court reviewed the. policy behind statutes of limitations:
“The courts recognize that statutes of limitations are matters of legislative prerogative, carrying the presumption of constitutional validity unless shown to be unreasonable and arbitrary. [Citations omitted.] The courts have acknowledged that the limitation can be harsh and inequitable in certain circumstances, particularly where the statute of limitations expires before the injury can be discovered. As stated in Schwartz v. Heyden Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, amended on other grounds 12 N.Y.2d 1073, cert. denied 374 U.S. 808 (1963):
‘[Pferhaps the possibility of feigned cases against unprepared defendants and the difficulties of proof in meritorious cases led to a decision that society is best served by complete repose after a certain number of years even at the sacrifice of a few unfortunate cases.’ p. 218.
In Chase Securities Corp. v. Donaldson, 325 U.S. 304, 89 L. Ed. 1628, 65 S. Ct. 1137 (1945), it was explained:
‘Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the .citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. . . . [Statute of limitations] have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a “fundamental” right or what used to be called a “natural” right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.’ p. 314.” 230 Kan. at 131-32.
Here, there is a reasonable basis, and it would not be a violation of due process to have the statute of limitations bar the claim prior to the Bank’s purchasing the property.
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