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The opinion of the court was delivered by
Holmes, J.:
Emcco, Inc., a plumbing contractor and the defendant below, appeals from an award of damages for negligence in an action tried to the court. Dondlinger & Sons’ Construction Company, Inc., a general contractor and the plaintiff below, cross-appeals from a denial of an additional amount of damages. Dondlinger recovered a judgment against Emcco for $29,415.97 for alleged negligence of Emcco’s employees in causing a fire which resulted in the destruction of property for which Dondlinger was responsible. Dondlinger originally claimed damages in the amount of $30,325.97, and claims error in the cross-appeal for the failure of the trial court to grant the full amount.
In 1968, Dondlinger entered into a contract with the United States Air Force for the construction of several apartment buildings at McConnell Air Force Base near Wichita. Dondlinger, as prime contractor, subcontracted the plumbing work to Rex Robertson, Inc. Prior to completion of the plumbing subcontract, Robertson encountered financial problems and eventually was declared a bankrupt. Robertson had furnished a performance and completion bond issued by Commercial Union Insurance Company. Upon Robertson’s bankruptcy, Dondlinger made a demand upon Commercial Union for completion of the plumbing subcontract. Commercial Union and the trustee in bankruptcy, with the approval of the bankruptcy court, contracted with Emcco for the completion of the plumbing work. As a part of that contract, Emcco was required to furnish a liability insurance policy covering any loss which might result from its negligence. The insurance coverage was obtained from Home Indemnity Company. Dondlinger, as a part of its contract with the Air Force, was required to furnish a builder’s risk insurance policy which was issued by Employers Liability Assurance Corporation, Ltd.
Emcco, pursuant to its contract with Commercial Union, commenced the task of completing Robertson’s original plumbing contract. During the course of its work, employees of Emcco caused a fire which resulted in the destruction of two apartments and loss to Dondlinger in an alleged amount of $30,325.97. Dondlinger contended the loss was due to the negligence of Emcco’s employees and made a demand upon Emcco for reimbursement of the loss. Emcco, and its insurance carrier, Home Indemnity, denied liability and refused to pay the loss. Dondlinger then made demand upon its insurance carrier, Employers Liability, and it allowed the loss in the amount of $29,415.97 and paid the same under the terms of a “loan receipt” from Dondlinger which obligated Dondlinger to repay the loan if the loss was later recovered from a third party. Dondlinger claims that in addition to the acknowledged loss paid by Employers Liability, it also incurred an additional $910.00 damages in an attempt to mitigate its damages. In a trial to the court Dondlinger was granted judgment against Emcco for $29,415.97. The court denied the additional $910.00. Emcco appeals from the judgment rendered against it and Dondlinger cross-appeals from the failure to receive judgment for the additional $910.00. No appeal is taken from the trial court’s findings that the loss resulted from negligence of Emcco’s employees.
At the outset we pause to observe that this is essentially a controversy between Employers Liability and Home Indemnity as to who will pay the loss caused by Emcco although neither insurance company was made a party to the action. We will first direct our attention to the appeal of Emcco.
Emcco first asserts it is a subcontractor of Dondlinger and as Dondlinger’s insurance policy with Employers Liability was issued to “Dondlinger & Sons’ Construction Co., its subcontractors and others of property under construction, fabrication, installation, erection or completion by the named insured,” Dondlinger cannot sue a subcontractor who is a coinsured under the policy.
In Stewart v. Cunningham, 219 Kan. 374, 548 P.2d 740 (1976), a case involving our mechanics’ lien statutes, we stated:
“A subcontractor is one who assumes a portion of a contract from the original contractor or another subcontractor for the performance of all or part of the services or work which the other has obligated himself to perform under contract with the owner.” Syl. ¶ 2.
Emcco argues that it comes within this definition in that a party to a contract may delegate the performance by the original promisor, unless the contract is of such a personal nature as to prevent its delegation to another or is prohibited by statute, public policy or the contract itself. 6 Am. Jur. 2d, Assignments § 9, p. 194. We have no quarrel with the definition of a subcontractor as set forth in Stewart or with the general principles expounded by Emcco but do not believe they apply to the facts of this case. The briefs submitted by counsel and our research have disclosed no Kansas cases determining the relationship between a prime contractor and a third party selected by others and substituted for an original subcontractor. In the ordinary situation, if a subcontractor subcontracts or assigns his duties to a third party, the subcontractor remains liable to the prime contractor through the original contract. In the present case, the subcontractor has been adjudicated a bankrupt and its obligations to Dondlinger delegated by Robertson’s bonding company and the trustee in bankruptcy to an outside third party, Emcco. Emcco relies heavily upon Dondlinger’s execution of an Air Force form required by the government which reflects that Emcco is to do a portion of the plumbing work. This form does not, in our opinion, establish the relationship of contractor and subcontractor between Dondlinger and Emcco. In fact, the form specifically states:
“The prime contractor whose signature appears below states in accordance with the provisions of the clause entitled ‘Subcontractors’ of his above-numbered contract with the United States of America that a subcontract was awarded on the date shown above by Commercial Union Insurance Co.”
Emcco was not selected or hired by Dondlinger but by Commercial Union and the bankruptcy court who substituted Emcco for Robertson without any contract with Dondlinger. Emcco argues that, being a subcontractor, Dondlinger’s insurance policy covered not only Dondlinger but also Emcco and that one insured cannot sue another coinsured in a subrogation action for a loss arising between the parties. Consequently, Employers Liability must bear the loss even though the court found, correctly, that the loss resulted from the negligence of Emcco’s employees. The trial court held Emcco was not a subcontractor of Dondlinger and was not an insured under the Employers Liability policy. Was the trial court in error? We think not.
Kansas cases and those from other jurisdictions that have had occasion to define the term “subcontractor” have generally involved workmen’s compensation claims, mechanics’ liens or claims in federal courts under the Miller Act. All three areas involve statutes which define subcontractor for a specific purpose and therefore common law contract theories have not always been controlling. Because of the statutory definitions and specific purposes behind these statutes, some of the formal requirements of contract law have been eliminated and subcontractors of subcontractors are frequently included. On the other hand, in Royal Indemnity Co. v. Kenny Const. Co., 528 F.2d 184 (7th Cir. 1975), it was held that a subcontractor, as used in a building construction contract, refers to one who takes from the principal contractor a specific part of the work undertaken by the principal contractor. Similar cases hold a direct contractual relationship between the contractor and subcontractor is required. See also Executive House Building, Inc. v. Demarest, 248 So. 2d 405 (La. App. 1971); 40 Words and Phrases, “Subcontractor,” pp. 534-537; 17 C.J.S., Contracts § 1(1) g. and § 11.
“A party to a contract may not assign an obligation so as to avoid liability on the contract and shift liability to the assignee, unless the assignee assumes the obligation of the assignor with the consent of the other party to the contract and the latter releases the assignor from further liability . . . .”6 Am. Jur. 2d, Assignments § 9, pp. 194-195.
Here, Robertson did not assign its subcontract, Dondlinger did not release Robertson, Dondlinger did not contract with Emcco, and Emcco was thrust upon Dondlinger by Commercial Union and the bankruptcy court. There was no contractual relationship between Dondlinger and Emcco that would bring Emcco within the terms of the policy. Under this factual situation the trial court did not err in finding that Emcco was not a subcontractor of Dondlinger and not an insured under the Employers Liability policy.
Emcco next asserts that Dondlinger was not the real party in interest and was precluded from bringing the action as it had been fully paid by Employers Liability. Dondlinger has asserted from the outset that the action is simply one for negligence and that the issue of insurance should not have been considered by the court. Emcco has contended throughout the proceedings that the real issue was whether an insurer can maintain an action, through its subrogation interests, against a party who is an additional insured under its policy. It should be noted that while the principal arguments hinge around the two insurance policies neither litigant sought to bring either insurance company into the case as a named party. Dondlinger originally claimed a total loss of $30,325.97 but, after negotiations with Employers Liability, submitted a proof of loss in the amount of $29,415.97 which was paid. Dondlinger had claimed the additional $910.00 as expense incurred in its attempt to mitigate damages which might result under the contract with the Air Force. The original contract contained a penalty clause and in order to perform the prime contract by the completion date, Dondlinger used overtime labor and ordered replacement materials by air freight rather than using regular time labor and ordinary freight. Dondlinger contends this was necessary due to the delay caused by the Emcco fire. These two items were not covered by the Employers Liability policy and were not paid by the insurance carrier.
It is a well-settled rule in this state that when the total amount of the loss has been paid by the insurer, the right of action against the alleged wrongdoer rests in the insurer who, under K.S.A. 60-217, becomes the real party in interest and must bring the action for his reimbursement if one is to be maintained. Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, 255 P.2d 658 (1953); J. C. Livestock Sales, Inc. v. Schoof, 208 Kan. 289, 491 P.2d 560 (1971).
The converse of the rule is also well-settled.
“The rule has long been established in this jurisdiction that an insured property owner, who has been but partly reimbursed for his loss, is the proper party to bring suit against a third party wrongdoer for the entire loss. In case of recovery, the insured is said to hold in trust for his insurer such part of the proceeds as has been paid him on his loss. (Citations omitted.)” Ellsaesser v. Mid-Continent Casualty Co., 195 Kan. 117, 118, 403 P.2d 185 (1965).
These rules and the argument of Emcco bring into play the cross-appeal of Dondlinger for the $910.00 not covered by insurance. At the beginning of trial the parties stipulated that the total damage was $30,325.97 and the trial court specifically found the damages to be that amount but did not allow the $910.00, stating that Dondlinger could have reduced its loss by not using overtime labor and air freight. The amount of damages had been stipulated upon the record by the parties and it was not incumbent upon plaintiff to prove the specific elements and reasonableness of, nor the necessity for, the amount involved. Plaintiff, having proved the negligence and liability of Emcco by competent evidence to the satisfaction of the court, was entitled to judgment for the full amount of the stipulated damages. In re Estate of Maguire, 204 Kan. 686, 466 P.2d 358 (1970); Manhattan Bible College v. Stritesky, 192 Kan. 287, 387 P.2d 225 (1963). For Emcco to prevail upon its theory that Dondlinger was not the real party in interest required proof that Dondlinger had been reimbursed $30,325.97, the full amount of the stipulated damages. Hence there was no error in the court’s finding that Dondlinger was the proper party to bring the action but the court did err in denying judgment for the $910.00.
The judgment is affirmed on appeal, reversed upon the cross-appeal and remanded with directions to enter judgment for plaintiff against defendant for an additional $910.00, making a total judgment of $30,325.97. | [
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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 James E. Baker (defendant-appellant) guilty of felony murder (K.S.A. 21-3401). The appellant asserts several errors on appeal.
This is the second appeal by the appellant, whose original conviction of felony murder was reversed by this court in State v. Baker, 224 Kan. 474, 580 P.2d 90 (1978). A second trial of the appellant resulted in a hung jury and mistrial. The felony-murder conviction now on appeal is the product of the third trial.
The facts of this crime were briefly summarized in our prior decision, as follows:
“The victim, Steve Burdolski, was discovered behind his desk in the Novotney Liquor Store in Kansas City, Kansas. He had been shot in the chest and was dead at the scene. The discovery was made at 9:45 p.m. on February 15, 1977. A short time prior to the discovery of the body, Linda Edwards had parked her car near this liquor store, preparatory to obtaining groceries in a nearby store. Before leaving her car she saw another car drive up and park to her left. The occupants got out of their car. The man on the passenger’s side walked past Mrs. Edwards as he headed in the direction of the liquor store. The man was identified by her at the trial as the appellant.
“As Mrs. Edwards went into the grocery store she passed the victim, Steve Burdolski, as he was leaving to return to work. Shortly thereafter a third party came into the grocery store and advised those present, including Mrs. Edwards, that Mr. Burdolski had suffered a heart attack while at work in the liquor store. An ambulance was called. Some time later Mrs. Edwards learned that, instead of suffering a heart attack, Mr. Burdolski had been shot. She notified the police as to what she had witnessed.
“The murder weapon was not found and no ballistics evidence was introduced at the trial. There was no fingerprint evidence introduced and the appellant made no statement or admission to the police. The evidence pointing to appellant’s participation in the crime largely consisted of his identification by Mrs. Edwards, together with the testimony of appellant’s former girl friend, Janice Hardenett.
“At the preliminary hearing Ms. Hardenett testified she talked with the appellant the day after the man was killed in the liquor store, and the appellant told her he robbed the liquor store and shot the man. She further testified appellant told her he shot the man because the man gave him some static. Janice Hardenett was 16 years old. On cross-examination she retracted her previous testimony. After a brief recess the state rehabilitated its witness and Ms. Hardenett iterated her previous story concerning what the appellant had told her. She testified that she changed her story on cross-examination because she was afraid of the appellant.” 224 Kan. at 474-75.
We reversed the appellant’s first conviction because “the cumulative effect of errors in admitting hearsay evidence and in unduly restricting evidence bearing on the credibility of the key prosecution witness resulted in denying the defendant-appellant a fair trial.” 224 Kan. at 474.
The first two points raised by the appellant are closely related. He contends the trial court erred in denying his motion to suppress evidence of a lineup identification by Mrs. Edwards. The appellant argues that his presence in the lineup as the only person with a distinctive physical feature — a forehead scar — rendered the lineup so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See State v. Hall, 220 Kan. 712, 717, 556 P.2d 413 (1976); State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976); State v. Deffenbaugh, 217 Kan. 469, 536 P.2d 1030 (1975). The appellant’s second point is that the trial court erred in permitting Mrs. Edwards to make an in-court identification which was tainted by the impermissibly suggestive lineup.
In State v. Hall, 220 Kan. at 717, we discussed a motion to suppress lineup identification evidence and stated:
“Some factors to be considered in evaluating the likelihood of misidentification at a line-up 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 State v. Bey, 217 Kan. 251, 535 P.2d 881.”
On viewing the totality of the circumstances we find nothing unnecessarily suggestive or conducive to irreparable mistaken identification. The lineup was fairly composed; the appellant’s forehead scar was barely discernible. Mrs. Edwards was not relying solely on the presence of a forehead scar to identify the suspect she had described. At the suppression hearing the trial court fully analyzed the circumstances and composition of the lineup and properly ruled the identification was reliable and admissible. The appellant had ample opportunity at trial to attack the credibility of the lineup identification.
This court has held that in-court identifications may be capable of standing on their own even though preceded by deficient pretrial confrontations. See State v. Perales, 220 Kan. 777, 780, 556 P.2d 172 (1976); State v. Bey, 217 Kan. 251, 259, 535 P.2d 881 (1975); State v. Calvert, 211 Kan. 174, 178, 505 P.2d 1110 (1973). The courtroom identification by Mrs. Edwards was not tainted by the lineup identification. Mrs. Edwards testified her courtroom identification was based upon recollection of the facial characteristics and physical features of the man she observed the night of the crime. Mrs. Edwards testified she got a good look at the appellant the night of the crime, and she positively identified him in the courtroom. The trial court did not err in overruling the motion to suppress Mrs. Edwards’ lineup and courtroom identifications.
The appellant contends the trial court erred in refusing to allow him to take a polygraph examination. This issue was held to be without merit in the first appeal by the appellant. See State v. Baker, 224 Kan. at 478. The appellant provides no justification to alter our prior holding.
The appellant next contends the trial court erred in admitting into evidence a transcript of the prior testimony of Linda Rainey. The primary foundation of the State’s case was the testimony of the appellant’s former girl friend, Janice Hardenett. Ms. Hardenett testified that the appellant had told her that he killed an old white man who had given him static in a liquor store on Parallel Road. At the appellant’s second trial, the State reinforced Ms. Hardenett’s testimony with testimony of Linda Rainey. Ms. Rainey testified that Janice Hardenett had previously told her of the appellant’s confession to the crime. At the appellant’s third trial, Linda Rainey was unavailable as a witness. Over the appellant’s objection, the State was permitted to read the transcript testimony of Linda Rainey from the second trial. The appellant claims this was error because the testimony was multiple hearsay, and he was denied the right to confront the witness.
On the first appeal we held Janice Hardenett’s testimony concerning the appellant’s confession was admissible under K.S.A. 60-460(f). See State v. Baker, 224 Kan. at 476. At the second trial, Linda Rainey’s testimony about Janice Hardenett’s statements to her was admissible; it was founded upon the provisions of K.S.A. 60-463, entitled “Multiple Hearsay,” as that statute relates to the hearsay exception in K.S.A. 60-460(a). At the second trial Ms. Rainey appeared and testified and the appellant was given full opportunity to cross-examine her. See State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977). In the instant case, the trial court properly admitted the transcript of Linda Rainey’s prior testimony in the second trial under K.S.A. 60-460(c)(2). Ms. Rainey was unavailable as a witness; and after a hearing the trial court found the State had exercised due diligence in its attempt to secure the personal presence of Ms. Rainey. See State v. Steward, 219 Kan. 256, 264-5, 547 P.2d 773 (1976). Ms. Rainey’s testimony was given in a former trial of the same action. The testimony of Ms. Rainey was multiple hearsay (K.S.A. 60-463), but nevertheless admissible. See State v. Childers, 222 Kan. 32, 46, 563 P.2d 999 (1977).
The appellant was not denied the right to confront the witness face-to-face, because the appellant was permitted full cross-examination of Ms. Rainey at the second trial. See State v. Henderson, 226 Kan. 726, 603 P.2d 613 (1979); State v. Alderdice, 221 Kan. 684, Syl. ¶ 1, 561 P.2d 845 (1977). The appellant’s claim that new evidence brought out at the third trial linked Ms. Rainey, Ms. Hardenett, and another person in a plot to get the reward money is without merit. This “evidence” was merely a passing reference by James Nelson, the appellant’s cousin, to the fact that Ms. Hardenett knew a reward was available. There was no “new evidence” at the third trial that Ms. Hardenett was engaged in a conspiracy to collect a reward. The appellant’s counsel extensively cross-examined Janice Hardenett at both the second and third trials because she had made inconsistent statements. The appellant had the opportunity to question Ms. Hardenett about this so-called “conspiracy,” but chose not to do so.
The appellant raises three points in regard to the trial court’s handling of the jury. The appellant contends the trial court should have sequestered the jury, that the court erred in failing to set aside the verdict due to juror misconduct, and that the court erred in making certain remarks to the jury.
The trial court instructed the jury on Thursday, February 8, 1979. That afternoon, before the jury was dismissed for the day, the appellant requested the court to sequester the jury. As justification for sequestering the jury, the appellant cited the serious nature of the crime charged, and the existence of newspaper articles about the trial. The appellant reminded the trial court that the first conviction was overturned, in part, because of juror misconduct in reading newspapers. The trial court denied the request, admonished the jury not to read any newspaper articles about the trial, and sent them home. On Friday evening the jury had not yet reached a verdict. The appellant requested the court to order the jury to return on Saturday morning or to sequester the jury. He informed the court of a prejudicial newspaper article in the prior day’s newspaper. The court refused to sequester the jury or order their return on Saturday. The judge stated that a three-day weekend was ahead, and he saw “no reason to ruin their weekend especially it being a holiday for some.” The court ordered the jury to return on Tuesday, February 13, and again admonished them to avoid reading or listening to news accounts of the trial.
The jury returned on Tuesday morning. After deliberating most of the morning they informed the court they were deadlocked. The court then made the following remarks to the jury:
“Have a seat for a moment. I just want to say one thing. As some of you may have guessed this is the third time around for this case. The first case was sent back by the Supreme Court. The second case the jury could not agree. I think as a benefit to everybody, the State and the defense, if you all could arrive at some verdict. I’ll ask you to take one more vote and I’ll discharge you, if you would.”
Shortly thereafter, the jury returned with a guilty verdict.
On February 26, 1979, the appellant entered a motion for judgment of acquittal and declaration of a mistrial. The appellant asserted several trial errors and insufficiency of the evidence. The appellant specifically claimed the trial court’s remarks to the jury on February 13 were prejudicial. The trial court denied the appellant’s motions and sentenced the appellant to life imprisonment.
On May 4, 1979, the appellant appeared again before the court, arguing for a new trial. The appellant presented an affidavit from one of the jurors. The affidavit stated inter alia that on February 8, the juror had read newspaper articles which reported the appellant’s prior conviction and reversal on a technicality, and the fact a second trial ended in a hung jury. The juror also stated that newspaper articles about the trial were read and discussed by several jurors. The trial court denied the motion for a new trial.
The State argues the juror misconduct was not prejudicial because on Tuesday morning the trial judge told the jury about the prior trials. In addition, the jurors already knew there had been at least two prior trials, because of references by witnesses and counsel throughout the trial.
“[I]t has been regarded as ordinarily proper for a trial judge, stressing the desirability and importance of agreement, to disclose that the case had been tried previously.” 76 Am. Jur. 2d, Trial § 1064, p. 59; see Annot., 38 A.L.R.3d 1281, 1322, § 12(a). Whenever the statements or instructions of a court to a jury are plainly coercive, or tend to be coercive and as such are prejudicial, a new trial shall be granted for abuse of discretion by the court. Coleman v. Patti Construction Co., 182 Kan. 53, Syl. ¶ 5, 318 P.2d 1028 (1957); see also State v. Anicker, 217 Kan. 314, Syl. ¶ 3, 536 P.2d 1355 (1975). There was no error in the trial court’s remarks to the jury. The court was correct that most of the jurors had probably guessed that this was the third trial. The judge’s remarks were not coercive, and they were not prejudicial.
We have stated that a juror’s reading of newspaper articles pertaining to the trial is not grounds for reversal, new trial, or mistrial unless the articles are of such a character that they might have resulted in prejudice to the losing party. Roy v. State, 213 Kan. 30, 32, 514 P.2d 832 (1973). In State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978), we stated:
“K.S.A. 22-3423(c) covers grounds for a possible mistrial in this case. This subsection provides: ‘Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution; . . .’ The granting of a mistrial on this ground lies within the discretion of the trial court. State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113 (1976). A mistrial will not be declared under K.S.A. 22-3423(c) unless the rights of either the defendant or the state have been substantially prejudiced. State v. Rhodes, 219 Kan. 281, 283, 546 P.2d 1396 (1976).”
The juror misconduct was not prejudicial. The newspaper articles contained the same information provided by the trial judge’s remarks.
The trial court did not commit error by failing to sequester the jury because the appellant’s rights were not prejudiced. The decision to sequester a jury lies within the trial court’s power of discretion. K.S.A. 22-3420(1). In the absence of a showing there has been an abuse of discretion which has prejudiced defendant’s substantial rights the ruling of the trial court will not be disturbed. State v. Jones, 218 Kan. 720, 723, 545 P.2d 323 (1976). See State v. Wilson, 188 Kan. 67, 75, 360 P.2d 1092 (1961), and cases cited therein. See also Annot., 72 A.L.R.3d 248.
Finally, the appellant contends the evidence is insufficient to support a verdict. In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Peoples, 227 Kan. 127, 605 P.2d 135 (1980); State v. McGhee, 226 Kan. 698, 602 P.2d 1339 (1979); State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979). In the first appeal, State v. Baker, 224 Kan. at 475, this court held the evidence was close, but sufficient, stating:
“The evidence to support the conviction in this case is not strong. However, appellant was identified as being in the vicinity just prior to the murder and this together with the testimony of Ms. Hardenett was sufficient to support the verdict . . . .”
We have reexamined the record on this appeal and find the appellant’s contention to be without merit. There was sufficient evidence for a rational factfinder to find the appellant guilty beyond a reasonable doubt.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
Two cases in the Saline County District Court were consolidated for post-judgment proceedings and have been consolidated on appeal. The defendant, George C. Etherington, appeals from orders of the district court entered during proceedings in aid of execution in which the district court denied his motion for an in camera inspection of certain documents and found him in contempt of court for failing to comply with prior orders of the court.
In separate cases, Jack C. Fleming and Allen R. Dodge filed suits to recover on promissory notes executed by the defendant Etherington. On June 8,1976, Fleming was granted judgment for the sum of $4,311.01, interest and costs, and Dodge was granted judgment for $3,250.00, interest and costs. No appeals were taken from these judgments and their validity is not an issue on appeal. Subsequently the two cases were consolidated for further proceedings in attempts to secure payment of the judgments. To date all such efforts have been unsuccessful. Defendant was represented in the original proceedings by Philip R. Herzig, a Salina attorney.
The record reveals that defendant is a prominent real estate broker and developer in Salina, having been in business for several years. He was involved in several closely held family trusts and corporations. G & K, Inc., was incorporated in 1964 and the 1977 records in the office of the Secretary of State revealed the defendant was president, secretary, treasurer and sole director. The stock, however, was held by defendant’s children. A. B. Seelye Co., Inc., was incorporated in 1959 and defendant was shown as secretary, treasurer and as a member of the board of directors. The stock was held by defendant’s children and G & K, Inc. Defendant also was the trustee of the Florence Anna Etherington Trust and his personal automobile was furnished to him by Nursing Home Foundation, Inc. Following various attempts to collect the outstanding judgments, plaintiffs instituted proceedings in aid of execution under K.S.A. 60-2419 and defendant was ordered to appear for examination on February 8, 1978. As a part of such proceedings, a subpoena duces tecum was issued to the defendant commanding him to bring with him:
“1. The last 3 yrs. tax returns of any business entity that you are an officer, director, own stock or receive any monies; 2. Personal income tax returns for the past three years. 3. Stock certificates held by you in your name or your name as custodian for another in any corporation or other business entity or trust; 4. Tax returns of any trust or other entity that you may handle funds on behalf of said entity; 5. Passbooks and all other documentation of all of your investments; 6. Titles to all vehicles owned or operated by you.”
On February 7,1978, a motion to quash the subpoena was filed pro se by the defendant. In the motion filed by defendant he stated he owned no stock; that although he was an officer and director of certain corporations, he did not have access to the corporate tax returns or records; that he was not authorized by the stockholders to produce such records; that he had no passbooks or investments and owned no motor vehicles. Defendant then retained Robert H. Royer, Jr., an attorney of Abilene. Mr. Royer also filed a motion to quash the subpoena duces tecum. After various proceedings and hearings the motions were overruled on October 24, 1978. On January 2,1979, an order was issued by the court directing the defendant to produce the books and records pursuant to the subpoena duces tecum on January 15, 1979, at his accountant’s office for inspection by the accountant for the plaintiffs. On January 11, 1979, Barta and Barta, attorneys of Salina, filed a motion on behalf of the defendant asking the court to conduct an in camera inspection of the books and records and make a determination of what should be made available to plaintiffs. This motion was overruled on January 12, 1979. The defendant failed to produce the books and records on January 15, 1979, and on January 16th a citation in contempt was filed and an order entered for defendant to appear on January 29, 1979, to show cause why he should not be held in contempt for failure to comply with the subpoena duces tecum and the order of January 2, 1979. On January 29, 1979, a hearing was held and the court found defendant in contempt of court and ordered him committed to the Saline County jail until he purged himself of contempt by producing the requested records and documents. The commitment was stayed upon application of the defendant and he appeals (1) from the order of the court overruling his motion for an in camera examination of the documents and (2) from the order finding him in contempt of court for failure to comply with the court’s orders.
Appellant’s first point on appeal is that the court abused its discretion when it refused to conduct an in camera inspection of the various books and records of the family corporations. It is appellant’s contention that the information which might be revealed concerned the rights of third parties not parties to the litigation and as such they were entitled to be protected from revealing such information to plaintiffs. Appellant relies upon Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 (1975), wherein this court stated:
“Finally, we think it timely to observe that where records or documents of a confidential nature are produced in court in response to a subpoena or other court order, the court is vested with authority to issue such protective orders as it deems advisable to keep the information from prying eyes and to prevent its misuse.” p. 321.
It is clear that the trial judge is vested with broad discretion in deciding whether an in camera examination of documents is necessary. The court is not required to grant such an examination in every instance. The question is, did the trial judge abuse his discretion in the case at bar? We think not.
Our statute on proceedings in aid of execution, K.S.A. 60-2419, is similar in nature to Fed. R. Civ. Proc. 69, which likewise provides procedures for the enforcement of money judgments. The scope of Rule 69 is discussed in 12 Wright & Miller, Federal Practice and Procedure: Civil § 3014 at 72 (1973):
“The judgment creditor is allowed discovery so that he may find out about assets on which execution can issue or about assets that have been fraudulently transferred or are otherwise beyond the reach of execution .... The scope of examination is very broad, as it must be if the procedure is to be of any value, but third persons can be examined only about the assets of the judgment debtor and cannot be required to disclose their own.”
Many of the cases under the federal rules involve situations in which a third party, not involved in the litigation, is sought to be examined about assets which might have some connection with the debtor. In the case at bar it was the debtor who was being requested to furnish information and documents about his possible connection with third parties. The situations are similar insofar as the protection of the interests of the third party non-litigant is concerned. In Burak v. Scott, 29 F. Supp. 775 (D.D.C. 1939), the court stated:
“In a proper case Rule 69, Federal Rules of Civil Procedure, permits examination by the taking of depositions, as provided for in said rules, in aid of judgments or executions. This is a salutary advance in those jurisdictions which theretofore did not have the advantage of statutory supplementary proceedings. These rules do not, however, give to a judgment creditor any right to subject to the judgment the property of persons other than the judgment debtor, nor to require the disclosure of assets of persons other than the judgment debtor.” p. 776.
More recent cases have not restricted the judgment creditor’s scope of discovery so severely. In Magnaleasing, Inc. v. Staten Island Mall, 76 F.R.D. 559 (S.D.N.Y. 1977), the United States District Court held that the rule banning disclosure concerning the assets of a non-party is not to be mechanically applied. “Discovery has been permitted against a non-party where the relationship between the judgment debtor and the non-party is sufficient to raise a reasonable doubt about the bona fides of the transfer of assets between them.” (p. 562.) See also Caisson Corporation v. County West Building Corp., 62 F.R.D. 331 (E.D. Pa. 1974); Monticello Tobacco Co. v. American Tobacco Co., 12 F.R.D. 344 (S.D.N.Y.), aff'd on other grounds 197 F.2d 629 (2d Cir. 1952); and Davis Acoustical Corp. v. Skulnik, 131 N.J. Super. 87, 328 A.2d 633 (1974).
In Davis Acoustical Corp. v. Skulnik, the Superior Court of New Jersey, Appellate Division, held that:
“The grant or denial of a petition for discovery rests within the sound discretion of the trial judge. It is not necessary to present positive proof that the debtor has an interest in property held by a third person.” p. 92.
In Skulnik a judgment creditor secured an ex parte order for discovery compelling the son of the judgment debtor to produce certain documents pertaining to a business which the son owned. Evidence was presented to the trial judge which tended to show that the judgment debtor had transferred his property to his son in an attempt to avoid paying the judgment. The court found that “sufficient information was furnished by the judgment creditor to raise a reasonable doubt of the ownership of the properties in question and to raise a sufficient possibility that the judgment debtor had interests in the properties.” p. 92.
Originally, defendant in these actions took the position that he could not reveal his personal tax returns to plaintiffs as the returns were joint with his wife and his wife would not consent. It is our understanding from statements made at oral argument that defendant has abandoned that argument and has made, or is willing to make, such returns available.
Appellant contends that in order to protect the interests of the third party non-litigants the court was under a duty to go through the records in an in camera inspection and sort out what plaintiffs’ accountant could examine and what he could not. The court, in overruling the motion, stated:
“[Tjhere is basically nothing new in the argument presented at this time so far as the position of the defendant that was not previously presented to the Court on the Motion to Quash. The difference being that there is a proposal that the Court take the responsibility of examining whatever books and records that are involved and then making a predetermination of what the defendant should disclose. Mr. Fisher refers to practical problems, I see tremendous, virtually insurmountable practical problems even if the Court were under, or inclined to undertake such an inspection. It affirmatively appears to the Court that this would be simply shifting the defendant’s responsibilities onto the shoulders of the Court. That there’s basically nothing new before the Court at this time other than the proposal that the Court make the inspection, that the arguments of all have been presented to the Court previously regarding these interests of other people, and I see nothing new in it. The Court has held previously that it’s the understanding of the Court that the proceedings in Aid of Execution require the judgment debtor to make good faith disclosure and the Court feels that it can only deny the motion; leave this responsibility on the defendant to make good faith disclosure. If he feels that he’s done everything that’s required of him then possibly the Court may have some other motion before it. But the Court’s going to leave the defendant to solve his own problems. I will say so far as the matter of issuing a protective order to keep information from quote, “Prying Eyes and prevent its misuse,” close quote. Mr. Etherington’s past conduct in this case has discredited his credibility so far as the protection of others interests and the Court is not persuaded at this time on Mr. Etherington’s presentation that the Court is obliged to enter any protective order to prevent misuse of the proceedings of Aid of Execution. So the motion is overruled and we’re adjourned.”
We have carefully examined the numerous authorities cited by appellant and have carefully considered his arguments. Considering the close family relationship existing between the defendant and the various principals in the corporations and the broad discretion vested in the trial court, we find no abuse of that discretion.
Defendant’s second point on appeal is that the district court erred in finding defendant in contempt of court for failing to produce the subpoenaed records. Defendant basically argues that he should not have been found in contempt because he had complied with the court order to the limits of his ability. It is well-settled that a party cannot be punished for contempt for failure to perform an act which is impossible or beyond his control. Haberer v. Newman, 219 Kan. 562, 566-567, 549 P.2d 975 (1976). See also Traub v. United States, 232 F.2d 43 (D.C. Cir. 1955), and Oriel v. Russell, 278 U.S. 358, 73 L.Ed. 419, 49 S.Ct. 173 (1929).
At the hearing on January 29, 1979, defendant testified that on January 2, 1979, he had been removed as president of G & K, Inc. and his wife named in his place. He testified that he had no control or access to the corporate records and no authority to produce them. Having produced his personal records and having testified that he owned no property, defendant contends he complied with the court’s orders to the extent of his ability to do so. One of the fallacies in defendant’s position is that on January 11, 1979, defendant filed his motion for an in camera inspection of the corporate records and on January 12,1979, argued to the court in support of such motion and thereby conceded that he did, in fact, have access to such records. If defendant were able to produce the records for an in camera examination, he was equally able to produce them in compliance with the prior subpoena and court orders. In a contempt proceeding where the prior orders of the court have not been complied with, the burden is upon the contemner to produce sufficient evidence to show cause why he should not be held in contempt of court. This defendant failed to do. In its ruling the trial court stated:
“Now so far as contempt citation question, what is involved is the failure of Mr. Etherington to produce the subpoenaed books and records on the 15th of January, 1979; these were records that were subpoenaed in February of 1978. The Court does not know but that possibly Mr. Etherington may have, may be judgment proof but it’s the Court’s understanding that the Kansas law on proceedings in Aid of Execution require a judgment debtor to respond and in good faith make disclosure to judgment creditor as required. It is clear that there has been a most effective delay in making disclosure; nearly one year. Various grounds have been argued and presented, one of those being a claim that the records were not under the control of the defendant, that the interests of others would be unduly publicized. The Court has never been persuaded by these arguments at any time through these proceedings. The maneuvers and procedures followed by the defendant add up to the Court to be a pure subterfuge. And as the Court announced to counsel upon the hearing on the motion for the Court to examine records in camera, the Court announced that the defendant’s position simply was without credibility. I don’t want to say that in a derogatory sense; simply the Court does not feel that these records could not have been produced by Mr. Etherington on February 8th, and the Court just simply does not feel that anyone else’s interest would have been prejudiced by them.
“Upon this finding the defendant is in contempt and the Court so finds that he has failed to show cause why he should not be found in contempt.”
Most of the cases which have come before this court involving contempt proceedings have arisen out of domestic problems between the litigants. The principles propounded in those cases regarding the powers and duties of the trial court apply equally to other contempt proceedings. In Haynes v. Haynes, 168 Kan. 219, 212 P.2d 312 (1949), we stated at page 226:
“It must be remembered that by the very nature of a contempt proceeding the decision of guilt or innocence of an accused rests in the sound discretion of the trial court before whom the matter is pending. ... It must, likewise, be kept in mind that when a trial court has exercised that discretion and its decision has been challenged by appeal the sole duty of the appellate court is to determine whether the record reveals such an abuse of discretion as to warrant a reversal of its action.”
We find no abuse of discretion.
Finally, appellant argues he should not have been found in contempt because the subpoena duces tecum was invalid as to all but personal records in that it was directed to the defendant individually and not as the appropriately named officer of the various family entities. This argument was not raised before, or presented to, the trial court and cannot be raised for the first time on appeal before this court. Landrum v. Taylor, 217 Kan. 113, 120, 535 P.2d 406 (1975).
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action brought by Friends University against the manufacturers of certain roofing materials used in the construction of the university’s new library building. The roof leaked and Friends alleges the defendants are liable therefor on theories of negligence, strict liability in tort, and breach of implied warranty. The two defendant insurance companies are successive sureties on defendant GAF Corporation’s bond. The district court granted summary judgment to defendants on the ground the claims were barred by the relevant statutes of limitations. Friends appeals from that judgment.
The library roof was completed in September, 1969. The general contractor for the building was the Johnson Construction Company, with the roofing subcontractor being the Buckley Roofing Company. Neither company is party to this action. The alleged defects are in the “built-up” roof, as opposed to the structural roof. The roof first leaked in 1970 or 1971 and continued to leak during virtually every rain occurring thereafter. Friends was particularly concerned with the leaks, inasmuch as the water presented a serious risk to the library contents. Complaints were initially made to the roofing company, but ultimately the manufacturers, W. R. Grace & Co., and GAF Corporation, were also involved. The roofing company made the first repairs in 1970. On October 18, 1974, the president of Friends wrote the following letter to the architect, the general contractor, the roofing company, and GAF:
“Gentlemen:
“Re: Edmund Stanley Library on Friends University campus
“I have been very reluctant to get involved in the problems of the leaking roof on the library on this campus. However, the situation seems to be getting no better and, as President of the school, I feel it is important for me to review the situation. I have been on campus only two years, but I have heard nothing but complaints about the leaking library roof.
“It is my understanding that the building was completed and ready for use in September, 1969. Less than two years later the roof started leaking. Mr. Bushfield sent a letter under the date of April 27, 1971 to the Buckley Roofing Company (copy attached).
“Again, according to my understanding, nothing was done even though the roof leaked almost every time it rained. Soon after I arrived on campus in August, 1972,1 became aware of the seriousness of this situation. After much pressure, Mr. Buckley wrote a letter dated January 19, 1973, to Mr. Cramer, our Business Manager (copy attached).
“We had hoped that with the completion of the work of the Buckley Company that the leaking problem would be over. Such was not the case.
“In October 1973, Ray Winchester wrote to G.A.F. Corporation (copy attached). This reply also attached. No action was forthcoming.
“Early this fall, 1974, we were faced once again with severe leaking problems.
“I feel that it was mandatory that we do something. Damage to thousands of books would indeed be a serious matter. Roof Mechanics, Inc. have just completed the following contract (copy attached). Again we have no guarantee that this is going to complete the job.
“Why should a college and the owner have to be the one to suffer for something that should have been right when the building was built in the first place? The college has very limited funds and it is quite a loss to have to spend this kind of money on a building that is only five years old.
“I wish, somehow, all of you people, who were involved in the building of this building, could get together to really solve the problem once and for all so that we would not have to worry constantly about the leaking roof. You can well appreciate how very frustrating this is, especially in a library.
“Any help or guidance you can give to this very troublesome matter will be greatly appreciated.
“Sincerely,
“Harold C. Cope
President”
The defendants participated in various conferences and inspections of the roof, but each consistently denied liability for the problem. In April of 1975 an independent expert was retained, who pinpointed the cause of the problem as being the failure of the W. R. Grace Zonolite Dyzone Board to bond to the substructure, and who was of the opinion that the structure would require complete reroofing. A like problem had occurred in other structures, and in 1971 W. R. Grace had developed a special Zonolite nail which apparently resolved the bonding difficulty. The special nail must be used at the time of initial roofing or reroofing and is not suitable for partial repairs of existing roofs. The action herein was commenced on March 29, 1977, and sought recovery on theories of negligence, strict liability in tort, and breach of implied warranty — causes of actions with two and three-year statutes of limitations (K.S.A. 60-512 and 60-513). The two defendant manufacturers filed motions for summary judgment based on the relevant statutes of limitations. The district court sustained the motions, determining:
“[T]he building in question was completed in September of 1969, and that Plaintiff was aware that the roof of the library was leaking less than two years after that date. At that time, Plaintiff knew or should have known that it had suffered a substantial injury giving rise to a cause of action. This action was commenced on March 29, 1977.
“The Court finds that claims of Plaintiff against these Defendants founded upon tort, breach of implied warranty, and strict liability are barred by the Statute of Limitations. The Court further finds that conduct of Defendant, W. R. Grace & Co., did not toll the Statute of Limitations as claimed by Plaintiff.”
Friends appeals from the entry of the summary judgments. Preliminarily, we note that whereas the appeal was taken from the summary judgment entered as to all three theories, the appellant’s brief is devoted wholly to the negligence claim. Defendant-appellees correctly point out that this constitutes a waiver or abandonment of claims of error relative to the other theories. Steele v. Harrison, 220 Kan. 422, 552 P.2d 957 (1976). However, by virtue of the result we reach herein the outcome of the appeal is not altered by the waiver of the claims of error relative to the other theories.
Friends contends the statute of limitations did not commence to run until April, 1975, when the expert’s report disclosed the substantial injury plaintiff had suffered. The position of Friends is that only upon receipt of such report was the severity of the problem revealed — only then did Friends ascertain the roof had wholly failed and would have to be redone in its entirety. Friends seeks to extend the two-year statute of limitations by application of K.S.A. 60-513(fc), which provides:
“(b) Except as provided in subsection (c) of this section, the cause of action in this 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.”
Friends relies heavily on Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971), which was a medical malpractice action arising from radiation therapy administered to treat Hodgkin’s disease. In Hecht, at 91-93, this court stated:
“The testimony of none of the parties deposed shows conclusively that the negligent acts alleged had caused substantial injury on March 13, 1966. . . .
“We believe a fair analysis of the testimony of the three physicians deposed clearly indicates that as of March 13,1966, none of them had made a diagnosis or prognosis of plaintiff’s condition in terms of substantial injury since it was too early to do so with reference to the time of the treatments and the healing condition of plaintiff at the time. We do not believe that plaintiff’s knowledge of her condition from her own observation, and that acquired from her physicians, is sufficient to justify a determination, as a matter of law, that she knew or could have reasonably ascertained on March 13,1966, that she had suffered substantial injury caused by the alleged negligent treatment of defendants.
“[Wjhere the evidence is in dispute as to when substantial injury first appears or when it becomes reasonably ascertainable, the issue is for determination by the trier of fact.”
The Hecht case is readily distinguishable on the facts. Radiation therapy, whether or not properly done, frequently produces substantial injury to the body, which generally heals in time. A lay person cannot readily ascertain whether or not negligent treatment has been administered. Further, with a living entity, healing can occur which remedies the problem in whole or in part. The new roof was obviously defective in some respect when leaking occurred. These defendants did not advise the plaintiff that the roof would heal itself or take any action to lull plaintiff into believing the problem was less severe than it appeared. Friends’ letter of October 18, 1974, above recited, clearly shows that Friends was aware of its serious problem at least as early as August, 1972.
Miller v. Beech Aircraft Corporation, 204 Kan. 184, 460 P.2d 535 (1969), also cited by Friends, again involves the question of when the injury done to the plaintiff’s body was reasonably ascertainable, and is easily distinguishable from the facts in the instant case. From 1970 forward, Friends was complaining about the roof and demanding that the roof problems be remedied. Friends frequently urged the defendants and the roofing company to stop arguing among themselves about whose fault it was and repair the roof. The fact Friends had not determined the exact scientific cause of the leaking did not toll the running of the statute. Fully cognizant that a severe problem existed, Friends elected to seek nonjudicial resolution of the controversy. Simply stated, Friends lost its right to a judicial determination of the dispute by its own delay and inactivity.
A rather analogous factual situation is presented in Cooksey v. Jones, 184 Kan. 300, 336 P.2d 422 (1959), involving refrigeration equipment in a cold storage plant. In the summer of 1953 plaintiffs were aware the equipment was not cooling properly. In February of 1957 plaintiffs brought an action based on fraudulent misrepresentation. This court stated at p. 303:
“This case now before the court seems clear in the last analysis. The facts alleged in the petition of the plaintiffs appear to affirmatively show discovery that the locker plant could not be kept cool as early as the summer of 1953. It is alleged that defendant represented that the plant was easily maintained at the proper temperature. When plaintiffs found that it was impossible to maintain the proper temperatures of the locker plant in 1953, a reasonable investigation would have shown all of the reasons therefor and plaintiffs cannot delay the running of the statute of limitations by merely alleging that they only discovered the defective machinery. This occurred more than two years prior to February, 1957, and the beginning of the plaintiffs’ suit to recover the money paid on the contract. It would seem that the two year statute of limitations had run before the filing of the suit.”
Friends next contends the conduct of the defendant manufacturers tolled the running of the statute of limitations. The specific conduct relied upon in support of this contention is the suggestion of defendants that an independent expert be hired to report on the roof and the offer of W. R. Grace to help pay the expert’s fee. These acts were the result of Friends’ October 18, 1974, letter. In support of this contention, Friends cites Safeway Stores v. Wilson, 190 Kan. 7, 12, 372 P.2d 551 (1962), where this court approved the following from Rex v. Warner, 183 Kan. 763, 771, 332 P.2d 572 (1958):
“ \ . . It is a legal maxim well understood that nothing can interrupt the running of the statute of limitations, and it is commonly stated without any qualification. Courts, however, have ingrafted upon such statutes an exception based upon estoppel. Generally speaking, actual fraud in the technical sense, bad faith, or an attempt to mislead or deceive is not essential to create such an estoppel; to invoke the doctrine, the debtor or defendant must have done something that amounted to an affirmative inducement to plaintiff to delay bringing the action.’ ”
The defendants herein at all times denied liability and there is no showing that their acts, individually or collectively, amounted to an affirmative inducement to Friends to delay bringing the action.
Finally, Friends contends the failure of W. R. Grace to disclose the crawling of other roofs and the development of the Zonolite nail constituted fraudulent concealment which tolled the statute of limitations. Friends argues the company knew the roof was a total failure and should have disclosed said information. This doctrine is discussed in 51 Am. Jur. 2d, Limitation of Actions § 148, pp.719-721, as follows:
“To constitute concealment of a cause of action within the general rule tolling the statute of limitations on that ground the concealment must be fraudulent or intentional and, in the absence of a fiduciary or confidential relationship, there must be something of an affirmative nature designed to prevent, and which does prevent, discovery of the cause of action. There must be some actual artifice to prevent knowledge of the fact, some affirmative act of concealment, or some misrepresentation to exclude suspicion and prevent injury.
“Although mere silence or failure to disclose may not in itself constitute fraudulent concealment, any statement, word, or act which tends to the suppression of the truth renders the concealment fraudulent. In such cases, by adding to the original fraud affirmative efforts to divert, mislead, or prevent discovery, a continuing character is given to the original act which deprives it of the protection of the statute until discovery. Where some affirmative act of concealment takes place, it is not material whether the concealment was previous or subsequent to the accruing of the cause of action. The question is whether there was a design to prevent the discovery of the facts which gave rise to the action, and whether the act operated as a means of concealment.
“There can be no concealment which will prevent the running of the statute of limitations where the cause of action is known to the plaintiff or there is a presumption of such knowledge. Where the defendant does not occupy a fiduciary or confidential relationship toward the plaintiff, neither affirmative nor passive conduct of the defendant will constitute such a concealment as to prevent the running of the statute of limitations, where through reasonable diligence on his part he could have learned of the existence of his cause of action. It has accordingly been held that the party seeking to toll the statute of limitations must explain why due diligence did not lead or could not have led to discovery of the facts and the cause of action.”
In the case before us a new roof on a new building was leaking. The cause had to be defective design, materials, workmanship, or some combination thereof. At anytime Friends could easily have obtained an expert opinion on the precise cause or causes for the leaking roof.
We must conclude that the trial court did not err in granting summary judgment to defendants W. R. Grace & Co., and GAF Corporation on the ground the action was barred by the statute of limitations.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an interlocutory appeal from an order of the trial court granting a temporary injunction against Blue Cross of Kansas, Inc. (Blue Cross), and in favor of Augusta Medical Complex, Inc., and twenty other hospitals (hospitals).
This action was commenced by appellees-hospitals against appellant-Blue Cross seeking a declaratory judgment as to the rights of the parties and specific performance of certain contracts. The hospitals sought a temporary injunction which was granted by the trial court. Blue Cross has taken this interlocutory appeal from the order granting the temporary injunction. The hospitals attempted to allege a cause of action for violation of antitrust laws but the order granting the temporary injunction did not involve those allegations and, hence, the antitrust allegations are not before the court in this appeal.
Blue Cross was organized as a private mutual nonprofit hospital service corporation, pursuant to K.S.A. 40-1801 et seq. Its primary purpose is to sell insurance to its subscribers covering hospital service costs. Blue Cross has entered into individual contracts with hospitals known as “member hospitals” whereby the hospitals provide hospital service to the Blue Cross subscribers, which services are covered by the subscriber’s Blue Cross insurance policies. The contracts are as contemplated by K.S.A. 1979 Supp. 40-1803.
Whenever a subscriber receives hospital services in a member hospital, the services are covered to the extent of one hundred percent (100%) of the covered charges, less any deductible as provided in his or her policy. A subscriber may seek hospital services in a hospital that does not have a contract with Blue Cross (hereinafter referred to as “nonmember hospitals”), but in that event, the benefits or services are covered only to the extent of eighty percent (80%) of charges, less any deductible. The additional twenty percent (20%) must be borne by the subscribers personally.
The past contracts between Blue Cross and member hospitals have generally provided for a procedure for reimbursement for services rendered to subscribers based upon the cost of the services provided by the hospitals. All of the appellees-hospitals are presently operating under such contracts which are referred to as retrospective reimbursement contracts. The contracts here involved were first executed in 1970. Pursuant to these contracts, the member hospitals are reimbursed directly by Blue Cross to the extent of one hundred four percent (104%) of allowable costs as determined by Blue Cross, which costs are established by considering the average costs over the preceding two-year period. The hospitals are generally reimbursed on an interim basis as the services are rendered and at the end of the year adjustments are made so as to effect the reimbursement of the hospitals to the extent of 104% of the allowable costs. If the hospitals have received excessive interim payments, reimbursements have to be made by the hospitals to Blue Cross.
The 1970 contracts here involved contain the following provisions:
“SECTION V. GENERAL CONDITIONS
“2. This agreement may be terminated by either party on prior written notice to the other, and in the event of such termination the obligations of both parties shall continue under this agreement until the expiration of a period of six months following the first of the month after notice of termination is given. This agreement will automatically be terminated at the time the Hospital changes ownership or leasing agreement for total operation.
“3. This agreement may be modified or may be replaced with a new agreement when the modification or the new agreement is approved by at least 75% of the Member Hospitals in the Kansas Blue Cross service area representing at least 75% of the beds and approved by the Blue Cross Board of Directors.”
In 1972, Blue Cross proposed a new type of contract which provided for a voluntary system of prospective reimbursement. This was an experiment and was not generally accepted. In 1975, Blue Cross offered another prospective reimbursement contract. This again received only limited acceptance. Finally in 1977, Blue Cross informed the hospitals that they were phasing out the 1970 agreement and would in the future offer only the mandatory prospective rate review agreement (the 1978 agreement). The changeover was to be effected by January 1,1979, which deadline was subsequently extended to January 1, 1980. The member hospitals were all advised of this plan by letter dated December 30, 1977. This change in contract was urged upon Blue Cross by the Insurance Commissioner of Kansas, who exercises certain control over the premiums which can be charged by Blue Cross. See Blue Cross & Blue Shield v. Bell, 227 Kan. 426, 607 P.2d 498 (1980).
Late in 1977, Blue Cross sent out the 1978 agreement to the hospitals and engaged in an extensive campaign to encourage voluntary execution of the replacement contracts. Blue Cross consistently indicated that it desired all of the hospitals to continue as member hospitals but to do so under the new mandatory prospective rate review agreement.
The campaign did result in the execution of the 1978 contracts by 107 of the 141 hospitals in the Blue Cross service area but these hospitals had only 68.2% of the beds. This was not sufficient to comply with Section V, paragraph 3, which authorizes unilateral modification or replacement of the 1970 agreement.
By letters dated November 20, 1978, Blue Cross gave official notice to the hospitals which had not executed a 1978 contract that Blue Cross was terminating their 1970 contract pursuant to Section V, paragraph 2 of the 1970 contract.
The notices of termination contained the following paragraph:
“The purpose of this letter is to provide official notice that Blue Cross will terminate the Contract at your hospital dated July 15, 1972, on May 31, 1979, which is the expiration of a period of six months following the first of the month after this notice of termination. This notice is given pursuant to Section V, paragraph 2 of the Agreement with your hospital. Between the date of this letter and May 31, 1979, the obligations of both parties shall continue pursuant to the terms of that agreement.”
After the official notice of termination was mailed Blue Cross continued to ask the hospitals to sign the 1978 contracts. This was by correspondence and personal interview. It was not until March, 1979, that Augusta Medical Complex advised Blue Cross of its intention to become a nonmember hospital. It was then that Blue Cross notified the hospitals that because of the obligation it had to subscribers it must notify subscribers of the names of the nonmember hospitals so the subscribers could, with full knowledge of the hospital cost consequences, choose the hospitals from which they desired services. Prior to this time all 141 hospitals in Kansas were member hospitals. It was at this point the 21 hospitals filed the present action. After a three-day evidentiary hearing the hospitals obtained the temporary injunction now in question.
In granting the injunction which enjoined Blue Cross from terminating the 1970 contracts the court found that the contracts were valid, that Blue Cross had tried but had been unable to comply with the provision in the contract for unilateral modification or replacement under Section V, paragraph 3, and that written notice of termination had been given to the hospitals in accordance with Section V, paragraph 2. The parties filed a written stipulation which supports these findings. However, the trial court, disregarding the effect of its own findings, determined that when Blue Cross started out to obtain modification or replacement of the 1970 contract and failed, it could not thereafter terminate the 1970 contracts under Section V, paragraph 2. We do not agree.
It is well established that a trial court is vested with a large measure of discretion in granting a temporary injunction, and that appellate courts will not interfere absent a manifest abuse of discretion. Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 373, 582 P.2d 1123 (1978); Smith v. City of Kansas City, 167 Kan. 684, Syl. ¶ 5, 208 P.2d 233 (1949). In order to prevail on this appeal, Blue Cross has the burden of showing that the trial court clearly abused its discretion in granting the temporary injunction. In assessing whether the trial court clearly abused its discretion in granting the temporary injunction it must appear that the contract at issue was valid and binding on the parties, that appellant fully complied with the provision for termination contained therein, and that the right to terminate was a separate and distinct right. It is an abuse of discretion for a trial court to grant a temporary injunction requiring appellant to continue to carry out the terms of a contract when under agreed facts, as a matter of law, the appellant had the right to terminate the contract and did so.
Both parties now state that the two paragraphs are clear and unambiguous and that the other paragraphs of the contract need not be considered in determining the meaning and effect of the two critical paragraphs.
The trial court gave some weight to evidence introduced at the hearing that several different modified or replacement contracts had been offered after the 1970 contract was entered into. In each instance the consent of 75% of the member hospitals having 75% of the beds could not be obtained, and Blue Cross reverted to the 1970 contract instead of attempting to terminate under Section V, paragraph 2. We fail to see the relevancy thereof. The prior actions of Blue Cross cannot be considered as changing the terms of the existing contract. To modify an existing agreement, either by expressed assent or by assent implied from conduct of the parties, the agreement to modify must be supported by an independent consideration. Bloch v. Fedak, 210 Kan. 63, 65, 499 P.2d 1052 (1972).
A contract must be interpreted in light of its particular provisions and every provision material to ascertainment of the intention of the parties must be construed, if possible, so as to be consistent with every other provision and to give effect to all. Wiles v. Wiles, 202 Kan. 613, 619, 452 P.2d 271 (1969).
In assessing whether the trial court abused its discretion in granting a temporary injunction the matter at issue is what, if any, force and effect should be given the two provisions of the 1970 written contract, and that in turn is a question of law. Duffin v. Patrick, 212 Kan. 772, Syl. ¶ 3, 512 P.2d 442 (1973). Both parties during oral arguments stated that these two provisions of the contract are clear and unambiguous. We agree. The question, then, is simply what is the intent and meaning of the clear words used by the parties in their contract.
We must keep in mind the positions of the parties and the purposes enumerated in the statute, K.S.A. 1979 Supp. 40-1803, authorizing the hospitals to contract with mutual nonprofit corporations to provide hospital services for subscribers. Execution of these contracts is voluntary on the part of the hospitals and Blue Cross. With that in mind we turn to the wording in Section V, paragraphs 2 and 3 of the 1970 contract.
Paragraph 2 states that the agreement may be terminated by either party on prior written notice. There is no limitation imposed as to when termination is possible other than when written termination notice is given; the obligations of the parties shall continue under the agreement for six months following the first of the next month after the notice. This provides a definite ascertainable date for termination which gives the parties six months’ time to arrange their business affairs during which period the parties continue to operate under the prior agreement. The right to terminate is a mutual right. The paragraph concludes with a provision for automatic termination at any time the hospital changes ownership or changes the leasing agreement for total operation of the hospital, which provision is not applicable here.
Paragraph 3 is a separate and distinct paragraph of the agree ment. It deals with how the agreement may be modified or replaced with a new agreement. Such a modification or replacement of the agreement may be accomplished by Blue Cross when such is approved by 75% of the member hospitals in the Blue Cross service area representing 75% of the beds. Such a modification or replacement must be approved by the Blue Cross Board of Directors. In such case when these requirements are met there is no break in payments for hospital services furnished Blue Cross subscribers, for a change in contract is accomplished without a loss of status as a member hospital.
The two paragraphs contain no reference to each other. There are no apparent reasons why the two paragraphs cannot operate independently of each other. Take a hypothetical case of modification in which 75% of the hospitals with 75% of the beds approve a new agreement. In such case there appears no reason why a hospital in the 25% group which refused to sign the new agreement could not exercise the right to terminate and thereby become a nonmember hospital, rather than be bound by the modified agreement. The choice would be up to the particular hospital. It could either join the 75% group or it could terminate with Blue Cross.
A similar choice would be open to Blue Cross if it should attempt to obtain a modification and fail to obtain approval of the required number of hospitals and beds. Blue Cross should be able to abandon its efforts to obtain a modified contract when that appears futile. Blue Cross should then be able to terminate the old contract with those hospitals who no longer desire to provide hospital services for Blue Cross subscribers under the terms of a new contract. If Blue Cross cannot terminate the contract it would become an agreement in perpetuity for it has no fixed term. Such agreements are frowned upon.
American courts have traditionally taken the view that competent parties may make contracts on their own terms, provided such contracts are neither illegal nor contrary to public policy, and in the absence of fraud, mistake or duress a party who has entered into such a contract is bound thereby. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903 (1976). This would include any provision for mutual termination of the contract.
The 1970 contract is neither illegal nor contrary to public policy for it was entered into to comply with a provision in the mutual nonprofit hospital service corporation act, K.S.A. 1979 Supp. 40-1803. The legislature in passing laws sets the public policy for the state. There is no charge by either party of fraud, mistake or duress.
The 1970 contract provided no date for termination of the contract. In place of a definite limitation on the life of the contract the parties agreed to a method of termination by written notice. A review of contract law reveals a traditional distaste for contractual rights and duties between parties unbounded by definite limitations of time. 17 A C.J.S., Contracts § 398 (1963). See also Mildfelt v. Lair, 221 Kan. 557, 563, 561 P.2d 805 (1977).
In Johnson v. National Beef Packing Co., 220 Kan. 52, Syl. ¶ 1, 551 P.2d 779 (1976), we held:
“In the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged.”
However, in the present case the parties specified a method of mutual termination, and we see no reason why this right of termination at the will of either party should not be honored by the parties and enforced by this court. See Batchelor’s Building Maintenance Service, Inc. v. Douglas Avenue Corp., Inc., 205 Kan. 149, 468 P.2d 189 (1970).
The hospitals argue that sending the termination notice amounted to only an attempt to circumvent the approval requirement in Section V, paragraph 3 necessary for replacement of the contract. In other words, Blue Cross was not sincere in its desire to terminate and was using termination as a subterfuge to accomplish replacement.
When the right to terminate a contract is absolute under the clear wording in the agreement the motive of a party in terminating such an agreement is irrelevant to the question of whether the termination is effective. Zaidan v. Borg-Warner Corporation, 228 F. Supp. 669, 671 (E.D. Pa. 1964), aff’d 341 F.2d 391 (3rd Cir. 1965); Kraus v. General Motors Corporation, 120 F.2d 109 (2nd Cir. 1941).
It was stipulated by the parties and found by the trial court that each of the hospitals had received the written termination notice in November, 1978. Under the clear terms of the 1970 contract the contract would have terminated on May 31, 1979, except for the temporary injunction issued by the trial court. We hold that the trial court was in error in granting the injunction; however, in order to give the hospitals time to reevaluate their positions with regard to becoming nonmember hospitals and to allow time for Blue Cross subscribers to be advised of their positions, the injunction shall remain in effect until the mandate of this court is spread of record in the court below.
The judgment is reversed and case is remanded to the trial court.
Herd, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
The State appeals from the court’s dismissal of a charge of theft (K.S.A. 21-3701 [a]) following the preliminary hearing. Such appeals by the prosecution are authorized by K.S.A. 1979 Supp. 22-3602(b)(l). The facts may be summarized as follows:
On April 30, 1979, Mrs. Agnes Knipper called the police department and reported that a young man was carrying a concealed weapon and had just left her store. She told the officers that he had a gun tucked into his belt underneath his shirt. She gave the officers a complete description of the young man, including a description of his car and the license number. Acting on this information, the officers stopped a can driven by the defendant, David Eugene Gainer. During the consent search of the car, officers seized two pistols in shoulder holsters.
Subsequent investigation revealed that the guns belonged to Edward Stumpff. According to Mr. Stumpff, the guns had been stored in his attic, and the last time he had seen the guns prior to April 30, 1979, was approximately three years before. He had given no one permission to remove the guns from his attic.
The defendant took the stand and testified that he had grown up next door to Mr. Stumpff and that he was a friend of Mr. StumpfFs son, John. According to the defendant’s testimony, he took the guns from the StumpfFs attic in January of 1977. When John went downstairs for some firewood, defendant threw the guns out the window into the bushes in the backyard. Defendant later retrieved the guns and hid them in his own attic. After approximately six months he used the guns as his own.
The defendant testified that he was.born on November 20, 1959, and was only seventeen years old when he took the guns.
In dismissing the charge of theft the trial court ruled that the theft occurred in January, 1977, when defendant removed the guns from his neighbor’s attic. The theft charge was filed in April, 1979. The trial court ruled, however, that defendant concealed the crime for a period of six months by hiding the guns in his attic. The trial court held that the two year statute of limitations was tolled for six months and that the information, filed on May 1, 1979, was timely. The trial court held, however, that the case must be dismissed and referred to the juvenile authorities because the defendant was only seventeen when the crime was committed in January, 1977.
The State appeals contending the theft in this case was a “continuing offense” and as such was not completed so long as defendant retained possession of the stolen guns. The State further contends that since defendant continued to possess the stolen guns after he turned eighteen he was properly charged as an adult because the continuing offense was still being committed when the arrest was made.
The defendant was charged with theft pursuant to K.S.A. 21-3701(a) which reads as follows:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
“(a) Obtaining or exerting unauthorized control over property;”
The State’s position is that the statutory prohibition against “[o]btaining or exerting unauthorized control over property” includes within its proscription the continued unauthorized possession of the property after the initial theft. The State cites no authority to support this rather inventive theory.
The concept of continuing offenses is essentially a legal fiction. Fictions are usually avoided in the criminal law. Perkins on Criminal Law, p. 263 (2nd ed. 1969). The courts have taken a very limited view of those crimes which constitute continuing offenses. Conspiracy is the most frequent example of a continuing offense. See Perkins on Criminal Law, p. 635. The continuing offense doctrine is usually advanced by the prosecution to avoid the running of the statute of limitations. The leading case on this point is Toussie v. United States, 397 U.S. 112, 115, 25 L.Ed.2d 156, 90 S.Ct. 858 (1970), where the court states the following rule:
“These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances since, as the Court of Appeals correctly observed in this case, ‘[t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.’ 410 F.2d at 1158. These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.”
Essentially the federal approach to continuing offenses was adopted by the drafters of our statute relating to time limitations in criminal cases. K.S.A. 21-3106. The statute reads:
“(1) A prosecution for murder may be commenced at any time.
“(2) Except as otherwise, provided in this section, a prosecution for all other crimes must be commenced within two (2) years after it is committed.
“(3) The period within which a prosecution must be commenced shall not include any period in which:
“(a) The accused is absent from the state;
“(b) The accused so conceals himself within the state that process cannot be served upon him;
“(c) The fact of the crime is concealed;
“(d) A prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal.
“(4) An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.
“(5) A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution: Provided, That no such prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay.” Emphasis supplied.
Although paragraph (4) of this statute is somewhat awkwardly stated the meaning is understandable. All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. Continuing offenses are committed when the course of prohibited conduct, or the accused’s complicity therein, has terminated. To constitute a continuing offense it must plainly appear in the statute defining such offense that there is a clear legislative purpose to make the prohibited course of conduct a continuing offense.
The State contends a legislative intent appears to make the exertion of unauthorized control over the property a continuing offense. It insists that the use of the words “[o]btaining or exerting unauthorized control” in the statute establishes that intent. The statutory definition of these words would seem, however, to belie that interpretation. K.S.A. 1979 Supp. 21-3110(12) reads as follows:
“The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.
“(12) ‘Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.”
We do not agree that a continuing offense was intended by the legislature when it defined the crime of theft. The use of the words “[ojbtains or exerts control” was for the purpose of consolidating what were formerly the crimes of larceny and embezzlement into a single crime of theft. See the Judicial Council note following K.S.A. 21-3701.
That section of our criminal code was drafted after examining the Illinois Criminal Code, 16-1 and the Model Penal Code, 223.1 as indicated in the Judicial Council note following the statute. In People v. Steinmann, 57 Ill. App. 3d 887, 373 N.E.2d 757 (1978), the Illinois court held that its theft statute did not make “exerting unauthorized control over the property” a continuing offense.
After considering the above authorities we hold the crime of theft by obtaining or exerting unauthorized control over property with intent to deprive the owner permanently of the possession, use or benefit of his property as proscribed in K.S.A. 21-3701(a) is not a continuing offense.
Our next question concerns a provision in the statute of limitations for criminal actions, K.S.A. 21-3106(3)(c). That paragraph of the statute provides that the period within which a criminal action may be filed does not include any period of time during which “the fact of the crime is concealed.” The State contends and the trial court held that since the defendant hid the guns in his own attic for six months the hiding of the guns tolled the statute of limitations and the prosecution was commenced within time. However, this case was dismissed anyway because defendant was under the age of eighteen years when he committed the crime.
The statute itself provides it is tolled during any period in which “[t]he fact of the crime is concealed.” Similar language in our former statute, G.S. 1935, 62-504, was considered in State v. Watson, 145 Kan. 792, Syl. ¶ 1, 67 P.2d 515, 110 A.L.R. 998 (1937), in which it was held:
“The concealment of the fact of a crime which suspends the operation of the statute of limitations must be the result of positive acts done by the accused and calculated to prevent the discovery that the offense has been committed. Mere silence, inaction or nondisclosure is not concealment.”
Hiding or disposing of the property stolen does not constitute concealment of the fact of the crime as contemplated in the statute. To hold otherwise would extend the statute of limitations beyond its stated term in practically every case of theft and this would lead to uncertainty in an otherwise certain provision of the statute of limitations. Concealment of the fact of the crime refers to concealment of those criminal acts which constitute the crime. Hiding or disposing of the property stolen does not constitute concealment of the fact of the crime. To constitute concealment of the fact of the crime of theft sufficient to toll the statute of limitations there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the theft by those owning or having possession of the property before the theft. Mere silence, inaction, nondisclosure, or disposal of the stolen property is not concealment of the fact of the crime as contemplated in K.S.A. 21-3106(3)(c).
Accordingly, on April 30, 1979, when defendant was discovered in possession of the stolen guns, the two year statute of limitations had run against the crime of theft. The crime had been committed in January, 1977. The district court was correct in dismissing the criminal charges, although it did so for the wrong reason.
Judgment dismissing the case is affirmed.
Herd, J., dissenting. | [
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The opinion of the court was delivered by
McFarland, J.:
This appeal involves disputes between the National Education Association-Topeka, Inc. (hereinafter referred to as NEA-Topeka), and Unified School District No. 501 (hereinafter referred to as Board), arising from their professional negotiations for the 1978-79 school year. The Board appeals from a number of adverse determinations by the trial court and others.
Inasmuch as this is the third appeal to this court arising from the professional negotiations of these parties for the same 1978-79 school year, it would be appropriate at the outset to establish the relationship of the three appeals.
1. In re NEA-Topeka, Inc., 224 Kan. 582, 581 P.2d 1187 (1978). This was an appeal by the Board from Judge Adrian Allen’s March 13, 1978, order declaring an impasse pursuant to K.S.A. 1977 Supp. 72-5426. We held that an order declaring an impasse was not a final decision by which the appellate jurisdiction of the supreme court may be invoked as a matter of right, and dismissed the appeal.
2. NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. 445, 592 P.2d 93 (1979). This was an appeal by the Board from various rulings made by Judge Allen, determining (1) the items which were mandatorily negotiable; (2) that NEA-Topeka had not acted in bad faith during the professional negotiations and, accordingly, had not committed prohibited practices; and (3) that an order of mandamus should issue against the Board to require it to negotiate in good faith. This court determined (1) the items which were mandatorily negotiable, and (2) there was no legal basis for the order of mandamus; and we affirmed Judge Allen’s finding as to NEA-Topeka’s lack of bad faith in negotiations. This appeal did not directly involve the declaration of impasse and events occurring as a result thereof.
3. NEA-Topeka, Inc. v. U.S.D. No. 501 (No. 50,220, the appeal now before us). This is another appeal from the same March 13, 1978, declaration of impasse, plus a number of alleged errors arising from the declaration of impasse and events subsequent thereto.
Having established the relationship of the three appeals to each other, we turn to the matters presently before us.
The first issue raised is whether Judge Allen erred on March 13, 1978, in declaring that an impasse existed between the parties. In In re NEA-Topeka, Inc., 224 Kan. at 585, we held:
“The finding of impasse merely triggers the procedure by which future negotiations are to be conducted, hopefully toward a rapid and successful conclusion. Thus, we hold that an order declaring an impasse pursuant to K.S.A. 1977 Supp. 72-5426 is not a final decision by which the appellate jurisdiction of the supreme court may be invoked as a matter of right.
“The appeal is dismissed.”
In re NEA-Topeka, Inc., is more than a “bay horse case” for the issue before us; it is a “same horse case.” The March 13, 1978, order, which was held to be unappealable in the In re NEA-Topeka, Inc., case, is the same order sought to be appealed herein. The full rationale for the holding in the earlier case is set forth in that opinion and will not be repeated. Suffice it to say the holding of In re NEA-Topeka, Inc., would be dispositive of this issue if it were properly before us.
The remaining issues raised are a mixed bag of complaints covering such diverse areas as the denial of the Board’s affidavits of prejudice filed against Judge Allen; whether the Secretary of the Department of Human Resources followed the statutory requirements set forth in K.S.A. 1977 Supp. 72-5427(a) in appoint ing the mediator; whether the mediator correctly set a meeting; whether Judge Allen erred in finding the Board acted in bad faith in failing to attend a meeting with the mediator, and in entering an order of mandamus against the Board directing it to proceed forthwith in good faith mediation; and the constitutional issue of whether supervisory authority could lawfully be granted supervisory authority over mediation. The constitutional question was decided adversely to the position of the Board in NEA-Fort Scott v. U.S.D. No. 234, 225 Kan. 607, 592 P.2d 463 (1979).
At oral argument herein the parties agreed that subsequent to the occurrences, rulings, etc., complained of herein, and the filing of this appeal, the parties negotiated a two-year contract, one year of which was the subject of the professional negotiations herein (1978-79 school year).
The outcome of the impasse resolution procedure is not binding on either the Board or the teachers, but either party may publicize the report of the fact-finding board. K.S.A. 1979 Supp. 72-5428(d) and (e). If agreement is not reached, the Board retains the final right to act in what it deems the best interest of both the teachers and the public. K.S.A. 1979 Supp. 72-5428(f). The impasse procedures are designed to assist the parties in reaching a mutually acceptable contract. The parties negotiated the contract and the agreement was not compelled by the finding of impasse or any of the matters upon which review is sought. Additionally, the parties are bound by their negotiated contract, regardless of how the issues herein might be determined.
We must conclude that the appeal should be dismissed, as any judgment this court might make herein would be unavailing and of no consequence.
The appeal is dismissed.
Prager, J., dissenting. | [
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The opinion of the court was delivered by
McFarland, J.:
Defendant Floyd Calvin Puckett entered pleas of nolo contendere to ten counts of violation of the Kansas Securities Act (now K.S.A. 1979 Supp. 17-1252 et seq.). The pleas were accepted and defendant was found guilty thereon. Prior to sentencing, defendant filed a motion to withdraw his nolo contendere pleas. The motion was sustained and the case was again placed on the jury trial calendar. The State filed its notice of appeal from said order.
We must first determine whether this court has jurisdiction to hear the appeal herein. The State contends its appeal is proper pursuant to K.S.A. 1979 Supp. 22-3602 in that the order was an arrest of judgment or, alternatively, that the appeal involves a question reserved. K.S.A. 1979 Supp. 22-3602, in relevant part, provides:
“(b) Appeals to the supreme court may be taken by the prosecution from cases before a district judge or associate district judge as a matter of right in the following cases, and no others:
“(1) From an order dismissing a complaint, information or indictment;
“(2) From an order arresting judgment;
“(3) Upon a question reserved by the prosecution.”
Appeals by the prosecution, as a matter of right after a final judgment, are allowed only in the three situations set forth in K.S.A. 1979 Supp. 22-3602(h) and no others. State v. Crozier, 225 Kan. 120, 587 P.2d 331 (1978).
K.S.A. 22-3502 sets out the procedural requirements for an arrest of judgment as follows:
“The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period.”
The history and effect of arrests of judgment are discussed in Crozier at 123. Clearly, the order permitting defendant to withdraw his nolo contendere pleas and setting the matter for jury trial is not an arrest of judgment pursuant to K.S.A. 22-3502.
Alternatively, the State contends the appeal herein is proper, pursuant to K.S.A. 1979 Supp. 22-3602(b), as a question reserved. The requirements for appeals on questions reserved are discussed in Crozier at 123-124. Inherent in appeals as a matter of right by the prosecution is the element that the trial court has entered final judgment in the case. An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. A question reserved by the State will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the State (Crozier at 123). Questions reserved presuppose that the case at hand has concluded, but that an answer is necessary for proper disposition of future cases which may arise. No final judgment has been entered in the case before us.
It is clear that the appeal herein is interlocutory in character and, accordingly, is governed by K.S.A. 1979 Supp. 22-3603, which provides:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of'the appeal.”
The appeal herein does not come within any of the situations set forth in 22-3603 and, accordingly, an interlocutory appeal is not available to the State. Inasmuch as no statutory basis for the appeal is shown, this court is without jurisdiction to hear the appeal and the appeal must be dismissed.
The appeal is dismissed.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This action arises out of a dispute over ownership to a strip of land in Dodge City. The record title is in plaintiffs-appellees Howard R. and Robert D. Stith. Defendants-appellants Richard and Avanell Williams claim title by adverse possession or alternatively, by boundary agreement. The trial court found for the Stiths, who are the holders of record title. The Williams appeal. We affirm the trial court.
The plat to Riverview Addition in Dodge City was filed of record July 1, 1906. Block Three is one of the blocks included within it. The block consists of 28 lots running north and south and angling to the northwest. Each lot is 125 feet long by 33 feet wide, except the lots located on the east side of the block. These lots, irregular in design, appear to contain the land left over inside the block lines after all others were symmetrically platted. The survey of the plat apparently commenced on the west side. One of these irregular shaped lots is lot 14, which is 51.9 feet wide at the north end and 47.4 feet wide at the south end. The strip of land in controversy is a part of lot 14. It measures 12.9 feet wide on the north and 7.9 feet wide on the south and runs along the west side of the lot.
In 1950, John Goldsberry owned lot 14 and Audrey Beard owned lots 11,12 and 13. On May 20,1950, Goldsberry conveyed the strip of land off lot 14 to Ms. Beard. She later entered into a contract to sell lots 11, 12 and 13 to Dorothy Faulkner in May of 1955. Ms. Faulkner assigned her contract to Elmer and Bonnie Thornbrugh and Audrey Beard deeded the land directly to the Thornbrughs on August 10, 1961. Appellants received a deed to lots 11, 12 and 13 from Bonnie Rail, formerly Thornbrugh, on August 4, 1972. None of the instruments from Audrey Beard mentioned the strip off the west side of lot 14.
On January 12, 1973, Howard R. and Robert D. Stith received a warranty deed from Goldsberry conveying lot 14 to them. Later, when appellees discovered Audrey Beard still owned the disputed strip of land off lot 14 they thought they owned, they confronted her and persuaded her to sell them the land. That land was purchased on January 25, 1974 and the Stiths obtained a quitclaim deed from Beard, which was duly filed of record. The Stiths are the record title holders of all of lot 14, block 13, Riverview Addition in Dodge City.
A boundary line dispute arose between the property owners in June, 1975. The Williams claimed the disputed strip as a part of lot 13 and the Stiths claimed it through the deed they received from Audrey Beard. Failing to reach agreement, the Stiths filed a petition for injunctive relief on July 23, 1975, after the Williams began constructing a fence on the east line of the strip of land. The Williams counter-sued for quiet title and possession of the disputed strip, in addition to damages. The trial court granted plaintiffs’ request for a temporary restraining order on July 23, 1975, and dissolved it on July 31, 1975. The case was tried to the court on an agreed statement of facts from which the Stiths obtained judgment. The Williams appeal.
The Williams base their claim of ownership on two theories. First, they claim title to the disputed strip under a boundary line agreement. Alternatively, they claim title by adverse possession.
The case was submitted for determination subject to stipulations and objections to: the agreed statement, the depositions of Howard and Robert Stith, Richard Williams and John Goldsberry and certain survey exhibits and photographs of the area in question. In light of the record before us, the proper standard of review, recently stated in Crestview Bowl Inc. v. Womer Constr. Co., 225 Kan. 335, 592 P.2d 74 (1979), is as follows:
“When a case is submitted to the trial court on an agreed stipulation of facts and documentary evidence, this court is afforded the same opportunity to consider the evidence as the trial court.
“Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish. [Citation omitted.]” p. 336.
See In re Estate of Thompson, 226 Kan. 437, 440, 601 P.2d 1105 (1979).
The entire record is before this court and our reconstruction of the facts will be revealed as we discuss each issue raised by appellants.
The Williams first claim they own the disputed strip of land as successors in title of an express boundary line agreement between the original owners of the land, who agreed the boundaries of their land stretched to the fence line. The basic principles of boundary line agreement were recently set forth in Landrum v. Taylor, 217 Kan. 113, 119, 535 P.2d 406 (1975), where we stated:
“Where parties by mutual agreement fix boundary lines and thereafter acquiesce in the lines so agreed upon, they must be considered as the true boundary lines between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession.
“The owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed upon, will be binding upon the parties and their grantees. Such an agreement, followed by possession, is not obnoxious to the statute of frauds.”
The Williams argue that because Audrey Beard and John Goldsberry established the boundary line at the fence this constitutes a boundary line agreement and the Williams, as successors to Beard, are entitled to consider the fence line as the east boundary of their property. That assumption would include the disputed strip of land. This claim is faulty. There is no evidence the boundary line was in dispute or unknown, requiring an express agreement by the parties. Fritzler v. Dumler, 209 Kan. 16, 22, 495 P.2d 1027 (1972). The record is void of evidence the parties agreed to establish a boundary line at variance with the stated boundaries set forth in the deeds to the property. John Goldsberry and Audrey Beard recognized the existence of the irregular strip of land and, rather than enter into a boundary line agreement, Goldsberry sold the land to Beard. Beard’s land stretched to the former fence line not by express boundary agreement, but by deed. There is no evidence they intended to do otherwise. We find the parties established the boundary lines in this case not by mutual agreement, but by deed. The boundary lines are, therefore, to be determined by reference to the deeds and the intention of the parties as reflected by the descriptions of the properties therein. Landrum v. Taylor, 217 Kan. at 118.
As an afterthought, it is interesting to note Williams testified when he bought lots 11, 12 and 13 from Audrey Beard, he was to receive 99 feet of land composed of three 33 feet lots. He claimed he didn’t receive that much land and argues the disputed strip off lot 14 will make up the difference. We have examined the survey exhibits provided in the record and find each of the three lots he purchased measures 33 feet across, totalling 99 feet. The Williams received the amount of land they purchased.
Now let us turn to the adverse possession argument. K.S.A. 60-503 provides:
“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under belief of ownership, for a period of fifteen (15) years.”
We note with approval the following presumptions regarding adverse possession:
“In an action involving a claim of title by adverse possession every presumption is in favor of the holder of the legal title and none is against him. The law will not allow the property of one person to be taken by another upon slight presumptions or probabilities.
“Every presumption is against the claimant and none is in his favor. The facts relied upon to establish adverse possession cannot be presumed, and presumptions will not be indulged in to establish a claim of title.” 2A C.J.S., Adverse Possession § 267.
There is always a fact issue involved in considering adverse possession. When did appellants’ possession commence on the disputed strip? The Williams seek to qualify for the fifteen year requirement by tacking their belief of ownership upon their predecessors in title. The tacking must reach to the Faulkners who purchased lots 11,12 and 13 in 1955 by virtue of a real estate contract. The tacking must evidence a continuous adverse possession for the statutory period. In addition, there must be no abandonments or other interruptions between those periods of possession that might return seisin to the owner. 3 Am. Jur. 2d, Adverse Possession § 58, p. 147. Appellants argue the Faulkners were holding the disputed strip under belief of ownership.
K.S.A. 60-503 amended G.S. 1949, 60-304 Fourth and became effective January 1, 1964. The former statute required adverse possession to be notorious and hostile. The new statute eliminated the element of hostility as a requirement to a claim of adverse possession and recognized a claim could be based on belief of ownership, rather than holding adversely. The new statute was first construed in Stark v. Stanhope, 206 Kan. 428, 480 P.2d 72 (1971). The determination of the existence of good faith belief of ownership was confronted by this court in Wallace v. Magie, 214 Kan. 481, 522 P.2d 989 (1974). In that case the parties stipulated the property had been held in open, continuous and exclusive possession and the question before this court was whether the party had held the property under a good faith belief of ownership. In reviewing the facts and circumstances surrounding the property in question, we found the parties had sold the house located on the real estate, granted a real estate mortgage on the premises, granted oil and gas leases on the premises, and made improvements on the property at a cost of $750.00. While the foregoing activities are not a prerequisite to the establishment of a claim of adverse possession, they do represent common acts of ownership not present in this case. The Williams must also comply with the other prerequisites of K.S.A. 60-503: an open, exclusive and continuous claim of possession. Examples of additional acts of ownership are found at 2 C.J.S., Adverse Possession §§ 33-41.
Our careful examination of the record before us reveals the following evidence: At one time, a cedar shrub, lilac bush, cellar and shed were located on the disputed strip of land. The cellar and shed overlapped onto the Williams’ land. The parties stipulated the cellar had been in existence for over 20 years and at one time housed the Williams’ hot water heater. There was testimony in the form of deposition from Williams that he and his wife used the cellar and shed only occasionally as a storage area. Howard Stith testified the disputed strip of land had been used for some time by several neighboring property owners as a trash dump. He stated he and his son and grandson hauled three truck loads of rubbish from the land, after they purchased the land from Ms. Beard. The Williams offered evidence, objected to by the Stiths, which appears to establish that if Dorothy Faulkner were called to testify, she would state that the fence was claimed to be the boundary line and that there had been sufficient room between the house located on lot 13 and the fence for her to park an automobile. The Williams offered opinions that they believed Ms. Beard intended to deed all her land to the Faulkners, and that the Faulkners, the Thornbrughs and finally the Williams, thought they had purchased all the land up to the fence.
We cannot find, from a review of the foregoing evidence, that there was open, exclusive, continuous possession under belief of ownership by the Williams and their predecessors. The evidence shows the use of the land was not exclusive, nor was it continuous. Without additional, solid evidence of the use and belief of ownership of the strip of land by the Williams and their predecessors, adverse possession will not lie.
We hold appellants have failed in their burden to prove ownership of the disputed strip of land by adverse possession or boundary line agreement. In addition, after an examination of the record, we find the facts do not support appellants’ claim for damages. We have considered appellants’ remaining issues on appeal and, in light of the foregoing holding, find them to be without merit.
The judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from a judgment in the district court denying a probate claim filed by appellant Mary Elaine Meyers. The claim is based upon a claim of title to certain funds used to restore the structure and furnishings of a residence owned by a decedent at the time of her death.
We are confronted at the outset with a motion to dismiss on the ground the appeal was not timely filed. The claim originally was heard in the district court, probate department, and rejected by an associate district judge in a letter dated May 16, 1978, stating: “The applicable date of appeal will be as of the date of this letter and Mr. Bukaty is directed to draw a journal entry accordingly.” A motion for “rehearing” was filed on June 16, 1978. (The motion was one to obtain a new trial.) The written journal entry was filed September 14, 1978. The order denying the motion for rehearing was filed September 15, 1978, and it provided: “For purposes of appeal, the application date shall be the date of receipt of this letter which shall be deemed to be September 18, 1978.” The notice of appeal was filed October 6, 1978.
K.S.A. 1979 Supp. 59-2401 in pertinent part appears as follows:
“(a) An appeal may be taken within thirty (30) days from the date of entry of any of the following orders, judgments, decrees and decisions:
“(5) An order allowing, or disallowing, a demand in whole or in part when the amount in controversy exceeds fifty dollars ($50).” Emphasis supplied.
Subsection (c) of the statute is also relevant. It reads as follows:
“(c) Except as otherwise provided in this section, appeals taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.”
K.S.A. 60-259(h) provides that a motion for new trial or to amend the judgment must be served not later than 10 days after the entry of judgment.
K.S.A. 60-2103(o) in pertinent part provides:
“The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (h) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.”
So it follows that the time for appeal is to be calculated from the entry of judgment or the entry of the order denying a new trial. K.S.A. 60-258 provides:
“Entry of judgments be subject to the provisions of section 60-254(h) [judgment on multiple claims]. No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court.” Emphasis supplied.
After considering the foregoing statutes we are of the opinion the appeal was filed within time. The first letter opinion, although setting an earlier time for appeal, required a journal entry to be drawn and filed. K.S.A. 60-258 provides that no judgment shall be effective unless and until a written journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. The written journal entry was filed September 14, 1978, and at this time the motion for new trial was pending. The motion was overruled and the order overruling the motion was filed September 15, 1978, setting September 18,1978, as the date from which the 30 days for appeal was to run. See K.S.A. 60-2103.
There has been some uncertainty since unification of the courts in Kansas as to whether the 30 days for appeal under K.S.A. 1979 Supp. 59-2401 for probate orders can be extended by filing a motion for new trial and similar motions as mentioned in K.S.A. 60-2103(a). See Karlin, Contested Estate Matters After Court Unification, 48 J.B.A.K. p. 97,103-104 (1979). Prior to unification this court held that such motions did not extend the time for appeal in probate matters. See In re Estate of Parker, 201 Kan. 1, 439 P.2d 138 (1968). There is now a separate section on appeals from orders entered by district magistrate judges which does not apply in our present case. The order was entered in this case by an associate district judge. See K.S.A. 1979 Supp. 60-2103a.
After unification of the courts in 1977 we no longer have a probate court, as such, and all appeals from orders and judgments of a district judge or an associate district judge are to the court of appeals as provided in K.S.A. 60-2102 and 60-2103. This is spelled out in K.S.A. 1979 Supp. 59-2401(c) where it is specified appeals taken pursuant to this section “shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.”
Accordingly we hold in appeals from judgments and orders in probate cases entered by a district judge or an associate district judge the running of the time for appeal is terminated by a timely motion for rehearing or such other motion as may be enumerated in K.S.A. 60-2103(a), and the full time for appeal fixed in K.S.A. 1979 Supp. 59-2401(a) commences to run and is to be computed from the date the written order on such a motion is signed by the judge and filed with the clerk of the court.
The appellee’s motion to dismiss is overruled and we turn to the merits of this appeal.
The decedent K. Agnes Burns (Burns) was the sister of Harry Butler (Butler). Butler died in 1971. Burns died in 1977. The claimant, Mary Elaine Meyers (Meyers) was a niece of Burns and she filed a claim against the estate of Burns claiming as a creditor for the cost of repairs to the furnishings and residence owned by Burns. The amount of the claim was $16,142.00. This amount was claimed by Meyers to have been paid in the spring of 1971.
The factual basis behind the claimed payment follows: Butler owned the residence in Kansas City, Kansas. Butler and his sister, Burns, were very close during a period of time preceding Butler’s death. Burns spent much of her time with her brother and it was her custom to have almost all of her evening meals with her brother in this residence. Butler executed and delivered a deed to the residence to Burns. The deed was not recorded until after Butler died. A fire occurred in the premises on January 1, 1971, and Butler was seriously injured. He died on March 3, 1971. Butler had insured the house and contents. He filed a claim with the insurance company and entered into a written contract with Lloyd Builders, Inc. to repair the house. This was several weeks before his death. Thereafter Butler died and his estate was administered by The Brotherhood State Bank. Butler died intestate leaving as his sole heirs his daughter, Mary Elaine Meyers, and his son, Tom Butler.
A check was issued by the insurance company for fire damage to the house in the amount of $11,700.00. It was made payable to the bank for the estate of Butler and to Lloyd Builders, Inc. as joint payees. This check was later endorsed by the bank to Lloyd Builders, Inc. at the direction of the claimant, Meyers. A second check in the amount of $8,700.00 was issued by the insurance company payable to the bank for the estate of Butler. The $8,700.00 check was deposited in a special account at the bank and was used to pay for refurbishing the house at a cost of $4,442.00. The balance was paid to the estate of Butler. This was done with the approval of Meyers. The $4,442.00 covered such expenses as installing carpet, refinishing and upholstering furniture, moving and cleaning furniture, installing draperies and installing central air conditioning. At that time neither the administrator of Butler’s estate nor Butler’s heirs asserted any claim to the insurance proceeds or to the house. The deed to Burns was never questioned. She did record her deed a few days after her brother’s death. The Butler estate was closed and the administrator was discharged in 1974. Burns moved into the home and lived there until her death in 1977. She paid the taxes and insurance during the time she lived in the house. The will of Burns was filed for probate in 1977 and the will devised the residence to someone other than Meyers. The Meyers’ claim then was filed against the estate of Burns.
Meyers testified that Burns had shown her a prior will devising the house to Meyers and it was upon the belief that the house was to belong to her that she had authorized the proceeds of the insurance policy be used in repairing the fire damage.
The appellant Meyers argues that the fire insurance proceeds belonged to Butler at his death and passed on his death to his heirs-at-law, Meyers and her brother Tom. She further argues that she permitted these proceeds to be used in restoring the premises because of assurances from her aunt that she had willed the house to Meyers. Meyers concludes that this court should declare the property subject to an equitable lien in her favor in the amount of $16,142.00, the amount of the proceeds used to restore the premises. Her brother Tom did not join in the claim but told Meyers she could go ahead and file it.
The cases cited by appellant refer to actions based on quasi-contract, to establish an equitable mortgage, and to recover for unjust enrichment because of mistake and misrepresentation. These cases are not in point. The question we have is who was entitled to the insurance proceeds?
The district court after hearing the case held: (1) That prior to his death Harry Butler authorized the insurance proceeds to be used for the restoration of the residence and its contents; (2) that title to the contents and the premises passed to K. Agnes Burns, his sister, by a general warranty deed issued to her on June 26, 1968, and recorded on March 5, 1971; (3) that the insurance proceeds were never a part of the Butler estate and were contracted by Butler to be used in repairing and restoring the premises for the benefit of his sister, K. Agnes Burns; and (4) that neither Mary Elaine Meyers nor Tom Butler had any claim to the insurance proceeds either then or now. The evidence supports these findings.
We believe the trial court was correct in its judgment. In the case of In re Estate of Elliott, 174 Kan. 252, 255 P.2d 645 (1953), an analogous situation presented itself. A tornado had destroyed the farm home of the husband and father. The 160 acres on which the buildings were located had been devised to the children. The husband and wife were caught in the tornado. The husband died the next day. The wife survived. The wife, who was the stepmother to her husband’s children, claimed that the devise to the children, including the destroyed buildings, did not carry with it the proceeds of insurance. This court held:
“The devise to the children included the home and other buildings located upon the land. The purpose of the insurance was to protect from loss or destruction of those buildings. The widow had waived any homestead rights she may have possessed. How, then, can it be said that under the circumstances here disclosed she would be entitled to the insurance proceeds which, for all practical as well as equitable purposes, represent destroyed real estate devised to the children? . . . The children, as devisees under the will, are entitled to the insurance proceeds as found and ordered by the probate court.” 174 Kan. at 258-259.
See also In re Thum’s Estate, 329 N.Y.S.2d 760, 69 Misc. 2d 244 (1972).
We are not unmindful of the split of authority which exists in factual situations similar to that set out in In re Estate of Elliott, 174 Kan. 252. See Annot., Specific Legacy—Insurance Proceeds, 35 A.L.R.2d 1056.
However, we believe under the facts of our present case none of these authorities are applicable. Butler contracted to use the proceeds to restore the premises before he died. Title to the proceeds of the fire insurance policy in the present case depends upon the intent of the insured, Harry Butler. In the present case his intent is clear. He transferred title to the house and furnishings to his sister during his lifetime. He retained an equitable interest in possession. When he insured this property he did so to protect the premises. After the premises were damaged by fire he arranged with a contractor to repair the fire damage. An agreement to repair was entered into. This shows a clear intent to use the proceeds to restore the premises. When Butler died he had already obligated his estate by agreement to use the proceeds from the fire policy to restore the premises. When a person contracts prior to his death to use the proceeds of a fire insurance policy to repair fire damage to an insured residence and its contents the intent of such person to restore the premises is clear. For all practical and equitable purposes the insurance proceeds stand in place of the damage to the premises and on death of the person the proceeds go with the premises and not into the estate of the deceased person. The insurance proceeds did not pass at death to Butler’s heirs-at-law, and since Mary Elaine Meyers and Tom Butler had no right, title or interest therein the claim of Meyers was properly denied.
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The opinion of the court was delivered by
Holmes, J.:
Two appeals from the district court of Montgomery County have been consolidated in this court.
Appeal No. 51,113 (District Court case No. 78 CR-138 I) is an appeal by Larry Eldon Rice from the sentence imposed after his plea of guilty to one count of aggravated escape from custody (K.S.A. 21-3810).
Appeal No. 51,114 (District Court case No. 78 CR-125 I) is an appeal by Rice from jury convictions of aggravated burglary (K.S.A. 21-3716), aggravated battery (K.S.A. 21-3414), aggravated assault (K.S.A. 21-3410), and rape (K.S.A. 21-3502). One count of aggravated battery and one count of aggravated assault were dismissed as being multiplicitous on motion of the defendant at the end of the evidence.
We will first turn to the appeal in No. 51,114. On June 10, 1978, a sixteen-year-old Independence girl left her home in the early evening to go to a nearby grocery store. As she walked to the store, she noticed a white pickup truck following her. After making purchases and leaving the store, she proceeded across the parking lot toward home and observed the same white truck in the parking lot. She walked past the truck and got a good look at the driver. She returned home and, after watching T.V., went to bed about 10:00 to 10:30 p.m. Near midnight she was awakened by a man in her room who was holding a chemically-treated cloth over her nose and mouth. She struggled with the intruder who wrestled her to the floor, threatened, beat and raped her. The victim testified she did not get a good look at the man due to the darkness of the room but that he was a large man wearing a dark-colored shirt and blue jeans. After he left, the victim ran to the other bedroom to call her mother. While calling she had a clear view, through the window, of the street which was illuminated by a street light. She observed her attacker leave the house and enter the white pickup truck she had seen earlier in the evening. She recognized the driver as the same person she had seen in the grocery parking lot. After contacting her mother, the victim was taken to a local hospital where police officers questioned her. Upon being shown a photo lineup, she was able to readily identify the defendant Rice as her attacker. Rice was arrested shortly thereafter at about 3:00 a.m. at his home at which time the officers found a doily soaked with some sort of chemical. Later defendant’s clothes were found hidden in a load of freshly laundered clothes. The victim’s purse, which was missing from her home, was found underneath a porch at Rice’s home and two necklaces, which had been in the purse, were found in the yard. At trial defendant asserted an alibi but none of his witnesses could corroborate it. Defendant asserts ten points on appeal.
I.
Appellant’s first point is that he was denied the effective assistance of counsel in violation of his constitutional rights. Defendant was represented throughout the proceedings which are pertinent to this appeal by appointed counsel Tom Crossan, an experienced and able member of the bar. In August, 1978, Mr. Crossan was seriously injured in an automobile accident. He was hospitalized in October, 1978, in December, 1978, and again in January, 1979, when he underwent surgery for the removal of two herniated discs. He was released from the hospital on January 19, 1979, and defendant’s case was scheduled for trial on January 25, 1979. At that time, Mr. Crossan was not physically able to begin trial and the court granted a continuance until February 27, 1979. On February 27th, the matter proceeded to trial and Mr. Crossan represented the defendant throughout the trial which lasted seven days. Due to Mr. Crossan’s recent surgery, he was compelled to use a wheel chair and crutches at times during the trial and numerous recesses were required. Mr. Crossan, with great candor and honesty, now comes before this court and indicates that due to his impaired physical condition, the defendant may not have received effective assistance of counsel. This possibility was also raised on the motion for a new trial which was denied by the trial court.
The standard used in determining whether counsel has been ineffective has been recently stated as:
“The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.
“Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant’s Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client’s conviction or otherwise works to the client’s substantial disadvantage, is also a deprivation of the constitutional guarantee of ‘effective’ counsel.
“In applying the foregoing standard to counsel’s performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.” Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶¶ 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978).
See also State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979); State v. Schrum, 226 Kan. 125, 595 P.2d 1127 (1979).
The United States Court of Appeals for the Tenth Circuit has recently adopted a similar standard. In Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.), cert. denied March 24, 1980, the court stated the test to be:
“The Sixth Amendment demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney.”
We have carefully reviewed the record in this case which includes, among other things, a trial transcript of 963 pages, transcripts of numerous pretrial and post-trial proceedings and the pleadings. Following arguments on the motion for a new trial the Hon. Floyd V. Palmer, trial judge, stated:
“No. 1, defendant denied effective assistance of counsel. I have reviewed the file in this case and reviewed the minutes of the trial docket, and they certainly reveal the contrary to me. In the court’s opinion, the defendant had as an effective assistance of counsel as this court’s ever seen . . . .”
Our review of the record confirms the trial court’s opinion. By whatever standard any court might adopt, the defendant in this case has been ably and effectively represented and has no valid complaint whatsoever about the representation furnished by Mr. Crossan. Mr. Crossan is to be commended for his candor in bringing this issue before the trial court and this court but the possibility that defendant was denied effective counsel by reason of Mr. Crossan’s physical infirmities at trial is totally and wholly without merit. Counsel has brought to our attention other incidents that occurred during the trial which he argues may have been the result of ineffective counsel. We have considered the same and conclude the defendant was in no way denied the effective assistance of counsel.
II.
Appellant’s next point is that the trial court erred in overruling a motion by Mr. Crossan to be relieved as defense attorney due to a possible conflict of interest and/or possible violation of the Code of Professional Responsibility. Cynthia Claus, an attorney and a partner in Mr. Crossan’s law firm, was also judge of the Municipal Court in Independence, Kansas. It is asserted that in her position as judge Mrs. Claus works closely with the police department of the city and that certain members of the city police force were involved in the investigation in this case and actually made the arrest of the defendant. While there is no specific provision in the Code prohibiting representation of defendants in criminal cases by the partners or associates of a judge or prosecutor, this has long been a problem of courts and judges who have the responsibility to appoint counsel for indigent defendants. It is often stated that such representation may give an appearance of impropriety and therefore should be carefully avoided under Canon 9, DR 9-101 (225 Kan. cix). On the other hand, it is the duty of every lawyer to assist the legal profession in fulfilling its duty to make legal counsel available. Thus, in any particular case there is a necessity to balance the conflicting duties and make a determination on an individual case by case basis. It is also generally accepted that a lawyer should not accept representation of any client if the lawyer’s partner or associate would be disqualified from accepting the same employment due to a conflict of interest. If there is a conflict of interest between one member of a law firm and a potential client, the Canons would preclude representation by any member of the firm.
In the instant case Mrs. Claus was employed as a part-time municipal judge of the City of Independence. This is generally the case throughout Kansas where local municipal courts exist separate and apart from the district court. It is also quite common for such cities to retain part-time city attorneys to handle the prosecution of criminal cases. Early opinions of the advisory section of the ethics committee of the Kansas Bar Association have held that a lawyer holding a position as a part-time municipal judge, city attorney or county attorney would be precluded from representing criminal defendants in all courts. See opinions 28,33 and 39, Handbook on Professional Ethics, Bar Association of the State of Kansas (1965). In a more recent opinion, the committee has advised:
“Lawyers holding part-time positions as Judges or Prosecuting Attorney, should, of course, never appear as counsel for defendants in criminal matters in the Courts in which they have responsibility. It is the opinion of the Committee, however, that they may be far enough removed that they can appear in other Courts, in which they have no substantial responsibility, as counsel for criminal defendants without giving an appearance of impropriety.
“It remains the opinion of the Committee that if a Lawyer is required to decline employment, or withdraw from employment, that none of his Partners or Associates may accept or continue such employment.”
The American Bar Association has also spoken to the problem. Formal opinion 55 of the American Bar Association Committee on Professional Ethics and Grievances may be summarized as follows:
“A duty rests on the bar to defend indigent prisoners as a public service when requested by the court. There is no impropriety in the city attorney of a rural community defending indigent prisoners in cases other than those which it is his duty to prosecute. A law partner of the city attorney may properly defend indigent prisoners whom his partner may defend.” Handbook on Professional Ethics, p. 56.
It must be conceded that the opinions of both the Kansas Bar Association and American Bar Association appear conflicting at times; however, we believe the more liberal and recent rule to be preferable. Ordinarily, a part-time judge or prosecutor would not be precluded, on a basis of conflict of interest, from representing defendants in criminal cases in other courts. The same is true of the law partners and associates of such public servants. Obviously, none of such persons should represent a defendant in the court in which the judge or part-time city or county attorney carries out his or her duties. Nor should any such lawyer represent a defendant in an appeal from a decision of the inferior court. It might also be pointed out that we see no distinction between appointed and retained counsel when it comes to a determination of a conflict of interest. In the last analysis the decision of whether a conflict of interest is actually present or whether the relationship of the defense attorney to the public servant law partner or associate might create an appearance of impropriety is one to be determined by the judge and counsel on an individual basis. Lacking any such actual conflict or appearance of impropriety, we do not believe the attorney should be precluded from the representation. In the instant case, the defendant was advised of the relationship of Mr. Crossan and Judge Claus, there was no conflict of interest and we see no appearance of impropriety which would have disqualified Mr. Crossan.
Assuming, for the sake of argument, that a conflict might exist there was no showing of prejudice to the defendant.
“A mere allegation of a conflict of interest of counsel is not sufficient to show a denial of an accused’s constitutional right to the effective assistance of counsel.” State v. Gross, 221 Kan. 98, Syl. ¶ 2, 558 P.2d 665 (1976).
Appellant’s second point is without merit.
III.
Appellant asserts that it was error for the court to refuse to grant a mistrial and dismissal because of alleged prosecutorial misconduct. During the opening statement of the State the prosecutor referred to acts of oral sodomy which the defendant allegedly forced the victim to perform. It appears that during the preliminary hearing which was conducted by different counsel for both the State and the defendant, there was some discussion whether defendant would be charged with oral sodomy. Defendant claims a stipulation was reached that there would be no mention or charge of oral sodomy. The trial court ruled that the exchange by counsel during the preliminary hearing might be considered to rise to the dignity of a stipulation but refused to grant a mistrial. No prejudice has been shown and the trial judge did admonish the jury to disregard the remarks. No error is shown. State v. Cunningham, 222 Kan. 704, 567 P.2d 879 (1977); State v. Hamilton, 222 Kan. 341, 564 P.2d 536 (1977).
IV.
One count of aggravated battery and one count of aggravated assault charged in the original information were dismissed by the court at the end of all the evidence as being multiplicitous to other charges against the defendant. Prior to trial and at the commencement of trial, defendant moved to have the charges dismissed. At the end of the evidence the motion was renewed and sustained. Appellant complains, on appeal, that he was prejudiced because these charges were “paraded” by the jury during trial.
“ ‘Multiplicity’ in a criminal pleading is the charging of a single offense in several counts.” State v. Dorsey, 224 Kan. 152, Syl. ¶ 6, 578 P.2d 261 (1978).
Appellant raises no question on appeal about the charges which were submitted to the jury. In the instant case the charges in the information were such that the court could not have determined in advance whether the charges complained of were the result of a single offense or separate offenses. There was no error in refusing to dismiss the two counts complained of prior to the evidence being presented.
V.
Appellant next asserts that he was denied a speedy trial in violation of his constitutional rights and K.S.A. 22-3401 and K.S.A. 1979 Supp. 22-3402. The case was originally scheduled for trial in January within 90 days from arraignment as required by statute. The continuance until February was at the request of defendant’s counsel, in open court, in the presence of the defendant. Counsel for the defendant states his client was unhappy and did not want or agree to the continuance. No objection by the defendant was made upon the record and as the delay was requested by defendant, it is chargeable to him. K.S.A. 1979 Supp. 22-3402(1).
VI.
Next, appellant alleges error for failure of the trial court to grant his motion for a new trial. As a basis for a new trial he asserts the cumulative effect of the points raised in I through V. These points have already been found to be without merit. The granting of a new trial rests within the sound discretion of the trial court and absent a showing of abuse, the trial court’s decision will not be overturned on appeal. State v. Bell, 224 Kan. 105, 577 P.2d 1186 (1978). No abuse of discretion has been shown.
VII.
It is asserted the trial court lost jurisdiction because defendant was not tried within 90 days as required by K.S.A. 1979 Supp. 22-3402. This is the same point raised in V and is without merit.
VIII.
Defendant was sentenced under the habitual criminal act to terms of 10 to 40 years for aggravated burglary; 6 to 20 years for aggravated assault; 10 to 40 years for aggravated battery and 10 to 40 years for rape. The first three sentences were to run concur rently and the sentence for rape was to run consecutively to the others. It is asserted there was insufficient competent evidence to invoke the habitual criminal act. The trial court took judicial notice of proceedings in the case of State of Kansas v. Larry Eldon Rice, No. 77 CR-214 I, in the same district court but tried before a different judge. Robert Schirk, the parole officer in case No. 77 CR-214 I, testified that the parolee in that case was one and the same person as the defendant in this case. Defendant argues that, as Schirk was not present during the trial of the former case, any information Schirk had was hearsay and inadmissible to prove the defendant in this action was the same person as the defendant in the prior case. Defendant had been reporting regularly to Schirk as parolee under the prior case and was adequately identified at the sentencing proceedings.
IX.
It is next alleged the trial court abused its discretion in ordering the sentence for rape to run consecutively to the other sentences. The sentences were within statutory limits and no abuse of discretion or vindictiveness by the trial court is shown. The sentences will not be disturbed on appeal. State v. Words, 226 Kan. 59, 596 P.2d 129 (1979).
X.
This now brings us to appellant’s final point on appeal in No. 51.114 and to the appeal in No. 51,113. Following defendant’s arrest on June 11, 1978, he subsequently escaped from custody and upon being apprehended was charged with several felonies. As a result of plea bargaining, he entered a plea of guilty to one count of aggravated escape from custody (K.S.A. 21-3810). Defendant was sentenced in the escape from custody action under the habitual criminal act to 2 to 5 years, with the sentence to run concurrently with the sentences in the rape case. This would result in the sentence in appeal No. 51,113 being served concurrently with the first three sentences as set out in point VIII. However, the trial court in the rape case ordered the sentences in that case to run concurrently with the sentence in the escape from custody case. Defendant argues that as a result it is physically impossible for him to serve the sentences as ordered. It appears obvious to this court that the first three sentences in appeal No. 51.114 and the sentence in No. 51,113 are to run concurrently and the sentence for rape in No. 51,114 is to run consecutively to the greatest term imposed under those felony convictions in which the sentences are to run concurrently. K.S.A. 1979 Supp. 21-4608. Defendant in case No. 51,113 also asserts that the habitual criminal act was improperly imposed for the same reasons asserted under point VIII in No. 51,114. Defendant was sentenced in both cases at the same time and the same evidence was used to invoke the act in both cases. We have already determined that evidence was sufficient.
Finally, defendant contends the sentence in No. 51,113 is invalid because the original journal entry filed in the trial court did not include a reference to the habitual criminal act statute, K.S.A. 21-4504. The defendant had been advised prior to the sentencing hearing that the act would be invoked. At the hearing the trial judge made it clear the sentences in both cases were being enhanced under the provisions of the act. The original journal entry recited that “the terms and conditions of the Habitual Criminal Act are imposed.” Subsequently, an amended journal entry, approved by defense counsel, was filed which included the proper statutory reference. This argument of the appellant is without merit.
One further matter, not raised by either party, which confuses the sentence in No. 51,113 is that both journal entries state that the sentence imposed was “not less than two nor more than ten years,” while the transcript of the actual proceedings clearly shows the sentence to be “a term of not less than two years nor more than five years.” Defendant’s brief refers to the sentence as being two to ten years while the brief of the State indicates two to five years.
“If there should be a variance between the oral pronouncement of sentence and the sentence as set forth in the written judgment, the oral sentence prevails.” 2 Wright, Federal Practice and Procedure: Criminal § 534 (1969).
Under these circumstances, the trial court is directed to file an order nunc pro tunc reflecting the correct sentence imposed by the court in district court case No. 78 CR-138 I (No. 51,113). See Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 (1974); Aeby v. State, 199 Kan. 123, 427 P.2d 453 (1967).
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The opinion of the court was delivered by
Herd, J.:
This is an action brought by the Board of Public Utilities against the City of Kansas City, Kansas and its three commissioners, John Reardon, Patrick Hanlon and Robert Zahnter, to determine whether the Board of Public Utilities or the City of Kansas City, Kansas has the authority to determine and prescribe the manner and procedure used in issuing revenue and refunding revenue bonds pursuant to K.S.A. 13-1252 et seq. On October 23, a three-judge panel on the Wyandotte County District Court ruled that such authority is to be exercised by the City of Kansas City, Kansas. The case was appealed to the Court of Appeals and subsequently transferred to this court.
Due to the urgency of the matter, the parties were given a deadline of November 21, 1979 to file their briefs. The case was argued before this court on November 26, 1979.
After giving the matter due consideration we hold, by a unanimous court, the City of Kansas City, Kansas is vested with the authority to prescribe the procedure and manner of issuing revenue and refunding revenue bonds, pursuant to K.S.A. 13-1252 et seq. The judgment of the three-judge panel is affirmed.
This abbreviated opinion announcing the decision of the court will be supplemented by a formal opinion to be filed at a later date. | [
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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 Ronald A. Peoples (defendant-appellant) guilty of felony murder (K.S.A. 21-3401), aggravated kidnapping (K.S.A. 21-3421), and rape (K.S.A. 21-3502). The appellant asserts several errors on appeal.
On September 14,1977, the appellant and Richard Reck spent the evening together drinking beer. They began drinking at Reek’s apartment shortly after Reck got off work at 8 o’clock; they went to a local tavern about 9 o’clock.
Reck shared the apartment, No. 414, at 1845 S. Hydraulic, Wichita, with his girl friend Carla Perkins. During the course of the evening Reck mentioned to the appellant that he and Carla were breaking up and she was moving out by the end of the month. The appellant told Reck that he would take over where Reck left off; Reck told the appellant to stay away from Carla because she did not like him.
While the two men drank several beers at the tavern, the appellant suggested he could find a female companion with whom they could have sexual relations. The appellant called the woman and the two men picked her up. After purchasing more beer the trio proceeded to Wichita Pump and Insulation Company, Reek’s place of employment. The appellant and the female companion engaged in sexual intercourse in one part of the building while Reck drank beer and did paper work at his desk. They left around 12:30 a.m. and returned to the parking lot outside Reek’s apartment. Upon arriving at the apartment complex, the woman and Reck exited the appellant’s car and entered Reek’s car. The appellant was driving a light-colored 1966 Ford station wagon. Reck and the woman watched the appellant drive north away from the apartments; they estimated this occurred between 12:30 and 1:00 a.m. Reck remained with the woman, going to her house, then returning to Wichita Pump and Insulation Company, and finally taking her to work at a donut shop around 2:15 a.m. Reck then returned to his apartment.
Meanwhile, about 1:00 a.m. Michael Cote arrived home after work. Cote and his wife lived in apartment No. 413, directly below the apartment shared by Reck and Carla Perkins. Shortly after entering his apartment Cote heard someone walk up the stairs outside his apartment and knock on the door of Reek’s apartment. Cote heard someone walk to the door and open it. Cote then heard a muffled scream, the door slam shut, and “a bunch of noises.” Cote heard pounding on the floor and sounds of things being moved or shoved around. The sound continued for about ten minutes, then stopped for about five minutes, then started again. Cote was about to call the police when the noise stopped again and he heard the door of Reek’s apartment open. Cote looked out his apartment window, which provided a shadowy view of the stairs descending from the above apartment. Cote saw a person take two steps on the stairs, and observed a pair of arms dangling beside the legs of the person walking down the stairs. He knew someone was being carried down the stairs. Cote testified that the person whose legs he saw was wearing pointed-toe black boots and dark gray slacks. While Cote was looking out the window his wife called the police. Cote talked to the police for about two minutes and returned to the window. On the parking lot he observed the lights go on, then off, in a light-colored station wagon. He saw only the back half of the car, but noticed it had vertical tail lights. He observed the car back out of the parking lot and drive south. Cote testified the car was the same as the one depicted in photographs at trial — the appellant’s car. Cote estimated all of this occurred between 1:00 and 1:30 a.m.
At approximately 2:30 a.m. Reck returned to the apartment and immediately noticed something was unusual. The lights were on, Carla’s panties were by the T.V., the couch had a broken leg, a lamp was tipped over, and cards were on the floor. When he had left earlier that evening the apartment was neat, clean, and orderly, and the lights were turned off. He stepped outside the apartment and was confronted by the police. Reck denied any knowledge of what had occurred and voluntarily gave statements to the police.
On his way to work at 5:30 a.m. September 15, 1977, Leo Engels discovered Carla Perkins’ nude body lying on the side of a county road. Engels determined that Carla was still alive and immediately sought police and ambulance assistance. Carla was taken to a hospital where she remained comatose for six days until her death on September 21, 1977.
The Wichita police gathered evidence at the scene where Carla was found. A lab investigator took photographs and plaster casts of a tire track that appeared to run across Carla’s chest and lower neck. The police collected dirt samples from the tire track area and from a grassy area adjacent to the road. At the hospital, hairs were removed from Carla’s head and a modified rape kit examination was performed. Photographs were taken of Carla’s body, showing tire tracks on her chest and neck, and bite marks on her left breast.
The appellant was arrested the same morning Carla was found. A police investigator removed hair and dirt samples from the interior of the appellant’s car; the tires were also removed from the car. The appellant’s clothing was taken from him that morning; hair samples were removed from his shirt. Pursuant to court order, dental casts were made of the appellant’s teeth.
At trial, both the appellant and the State presented comparison evidence and expert testimony on the tire tracks, hair samples, rape examination, dirt samples, the appellant’s clothing and dental impressions, and the bite marks on Carla’s breast. This evidence will be further examined later in the opinion.
The jury heard testimony from all the persons involved the night in question, except the appellant and Carla Perkins. The State also presented testimony of Richard Jones, a young man who knew the appellant in junior high school and shared a jail cell with the appellant after the arrest on September 15, 1977. Jones testified that he and the appellant had conversations when they shared jail cells. During one of the conversations the appellant stated that he raped Carla Perkins, knocked her out of the car, and then ran over her. In later conversations the appellant expressed concern that Carla was in critical condition and could die; he didn’t want to be charged with murder.
The jury returned guilty verdicts on felony murder, aggravated kidnapping, and rape. Appeal was duly perfected.
The appellant complains concerning the admission of opinion evidence of Dr. Thomas Krauss, a forensic odontologist. The appellant argues that bite-mark identification is a fledgling area of expertise which lacks reliability and the trial court erred in admitting the evidence.
The admissibility of expert testimony on bite-mark identification is a matter of first impression in Kansas. The requisites for admission of expert testimony were discussed in Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978), wherein this court stated:
“The purpose of an expert witness is to aid the jury in the interpretation of technical facts or to assist in understanding the material in evidence. (Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 105, 490 P.2d 619 [1971].) The witness must have skill or experience in the business or profession to which the subject relates. He must be qualified to impart knowledge within the scope of his special skill and experience that is otherwise unavailable to the jury. (State v. McClain, 216 Kan. 602, 606, 533 P.2d 1277 [1975]; Grohusky v. Atlas Assurance Co., 195 Kan. 626, 630, 408 P.2d 697 [1965].)
“The introduction of opinion or expert testimony is controlled by K.S.A. 60-456. An expert must base his testimony upon facts personally perceived by or known to him or made known to him at the hearing. ‘Perceived’ means knowledge acquired through one’s own senses. (K.S.A. 60-459[c].) ‘Made known’ refers to facts put into evidence. (Ziegler v. Crofoot, 213 Kan. 480, 484, 516 P.2d 954 [1973]; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 356, 437 P.2d 219 [1968]; Casey v. Phillips Pipeline Co., 199 Kan. 538, 546, 431 P.2d 518 [1967].) The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial judge. (State v. McClain, supra; Hagood v. Hall, 211 Kan. 46, 51-52, 505 P.2d 736 [1973]; American Family Mutual Ins. Co. v. Grim, 201 Kan. 340, 344, 440 P.2d 621 [1968]; Taylor v. Maxwell, 197 Kan. 509, 419 P.2d 822 [1966].) When the trial court admits the testimony it is deemed to have made the findings requisite to its admission. (K.S.A. 60-456[c]; State v. McClain, supra; Hagood v. Hall, supra; Taylor v. Maxwell, supra.) At that point the weight of such testimony is a matter of consideration for the trier of fact.”
Other jurisdictions which have considered this issue have unanimously recognized the validity and approved the admission of bite-mark identification evidence. See People v. Slone, 76 Cal. App. 3d 611, 143 Cal. Rptr. 61 (1978); People v. Watson, 75 Cal. App. 3d 384, 142 Cal. Rptr. 134 (1977); People v. Marx, 54 Cal. App. 3d 100, 126 Cal. Rptr. 350 (1975); People v. Milone, 43 Ill. App. 3d 385, 356 N.E.2d 1350 (1976); People v. Johnson, 8 Ill. App. 3d 457, 289 N.E.2d 722 (1972); Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, cert. denied 434 U.S. 902 (1977); State v. Routh, 30 Or. App. 901, 568 P.2d 704 (1977); Patterson v. State, 509 S.W.2d 857 (Tex. 1974).
The California courts have admitted bite-mark identification evidence after a two-step determination of the reliability of this new scientific technique and the qualifications of the expert witness. In People v. Slone, 76 Cal. App. 3d at 624, the court stated:
“The superior trustworthiness of the scientific bite mark approach ... is due to the fact that the trier of fact could see for itself, by looking at the material-object exhibits of slides, photographs, X-rays and models of the victim’s bite-mark wounds, what constituted the basis for comparison with a defendant’s dentition. . . . [T]he [dental] experts ‘did not rely on untested methods, unproven hypotheses, intuition or revelation. Rather, they applied scientifically and professionally established techniques ... to the solution of a particular problem which, though novel, was well within the capability of those techniques.’ ” [Quoting People v. Marx, 54 Cal. App. 3d at 111.]
The Indiana Supreme Court in Niehaus v. State, 265 Ind. at 661, distinguished bite-mark identification from polygraph test results and stated:
“The method of identification utilized here, however, is simply a matter of comparison of items of physical evidence to determine if they are reciprocal. The methods for making such comparisons are indeed complex and require skilled technicians to perform, but they consist of standardized procedures known to procure accurate models and measurements. We see no reason why such evidence should be rejected as unreliable, simply because it has thus far had limited application.”
We think bite-mark identification by an expert witness is sufficiently reliable and can be a valuable aid to a jury in understanding and interpreting evidence in a criminal case. When the witness has the requisite skill and experience, and demonstrates the accuracy and reliability of his models, photographs, X-rays and supporting exhibits in bite-mark identification, the trial court in the exercise of its power of discretion may properly admit the opinion testimony of the expert witness.
The appellant also challenges the admission of Dr. Krauss’ opinion testimony, claiming that an inadequate foundation was presented to qualify Dr. Krauss as an expert, and that the exhibits and models were inaccurate.
Dr. Krauss described himself as a general dentist, specializing in forensic odontology. He was a 1955 graduate of Northwestern University, and served five years in the military before entering private practice. He is a certified diplomat of the American Board of Forensic Odontologists, a fellow in the American Academy of Forensic Sciences, and a member of the American Society of Forensic Odontology. He teaches forensic odontology to senior students and provides continuing education courses for graduate dentists at the University of Colorado School of Dentistry. Dr. Krauss has been a consultant for various law enforcement agencies, including the Kansas and Colorado Bureaus of Investigation. He has attended many lectures and seminars on forensic odontology and is acquainted with the major literature and experts in the field of bite-mark identification.
Dr. Krauss testified at length about the various procedures and practices underlying bite-mark identification. The testimony spans more than 150 pages in the record. He discussed the manner of comparing dental casts, wax impressions, and photographs. He also testified to the numerous factors that are considered in bite-mark identification. In comparing the appellant’s dentition with the bite marks on Carla’s breast, Dr. Krauss used casts and photos of the appellant’s teeth and compared those to the bite marks shown in the photographs of the victim. Dr. Krauss also used several photographic enlargements of the bite marks, the cast of the appellant’s teeth, and the wax imprints to illustrate the many shared characteristics of the teeth and the bite marks. All of these exhibits and models were admitted into evidence. After explaining the procedure he used to develop the exhibits and identify the many important points of comparison, Dr. Krauss gave his opinion. He testified that in his opinion it was highly probable that the appellant had bitten the left breast of Carla Perkins.
After carefully reviewing the detailed testimony of Dr. Krauss, we find no error in the trial court’s admission of his testimony. Dr. Krauss was sufficiently qualified to be an expert witness and provided an adequate foundation for his testimony. He was shown to have special skill and expertise in the field of forensic odontology, and was qualified to impart this otherwise unavailable knowledge to the jury. See Plains Transp. of Kan., Inc. v. King, 224 Kan. at 21.
The appellant specifically challenges the use and admission of a set of dental casts and several enlarged photographs. pr. Krauss testified to the origin and production of those exhibits and stated he found them reliable and acceptable for his use. The trial court did not abuse its discretion in admitting those exhibits. Any discrepancies go to the weight of that evidence, and the testimony based upon it, and are properly a matter for the jury. See Plains Transp. of Kan., Inc. v. King, 224 Kan. at 21; Borth v. Borth, 221 Kan. 494, 498, 561 P.2d 408 (1977); Hildebrand v. Mueller, 202 Kan. 506, 509, 449 P.2d 587 (1969).
The appellant next contends that there was insufficient evidence to support the convictions.
In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. McGhee, 226 Kan. 698, 602 P.2d 1339 (1979); State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979). In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by any competent evidence the conviction must stand. State v. Racey, 225 Kan. 404, Syl. ¶ 3, 590 P.2d 1064 (1979). A careful review of the record shows the Wichita Police Department conducted a thorough investigation and the State presented sufficient competent evidence to support the verdict of the jury.
Michael Cote testified that he overheard a struggle and saw a man carrying a body down the stairs. Cote saw a light-colored station wagon with vertical tail lights leave the apartment complex. At trial, Cote identified the appellant’s car as the one he saw that night. The police photographed the impressions of tire treads on the victim’s body and compared them to a tire removed from the appellant’s car. Richard Cook, a police lab technician, testified that his comparison found nothing to exclude the appellant’s tire from having made the impression. Cook observed the same tread design in both the appellant’s tire and the photograph of the tire tread impression taken at the scene where the victim was found.
The State also presented evidence of microscopic comparisons of hair samples found on the appellant’s shirt and hair taken from the victim’s head. One of the hairs removed from the appellant’s shirt displayed the same microscopic characteristics as the hair from the victim’s head. A modified rape kit examination was performed on the victim the morning she was found. Chemical tests indicated the presence of acid phosphatase, a substance found in seminal fluid. Human blood was found on the front of the appellant’s undershorts and in the fly area of his blue jeans. Insufficient quantities were available to determine whether the blood was menstrual. A soiled sanitary napkin was found in the dining room of the victim’s apartment. The State presented the testimony of Gerard James, head of the Geochemistry Section of the Kansas Geological Survey. Mr. James compared dirt samples taken from the area where the victim was found and samples taken from the floorboard of the appellant’s car. James explained the three tests he performed and testified all samples had virtually the same composition and characteristics.
The State presented the expert testimony of Dr. Krauss that it was highly probable the appellant bit the victim’s left breast. Richard Jones testified concerning the appellant’s statement that he raped Carla Perkins, knocked her out of the car and ran over her. The appellant’s extrajudicial admission carries significant weight. There was no challenge to the voluntariness of the admission, and Jones’ credibility, though not shown to be impaired, was for the jury to determine.
We are convinced that based upon this evidence a rational factfinder could have found the appellant guilty beyond a reasonable doubt.
The appellant contends the trial court erred in failing to give an instruction on circumstantial evidence. We held in State v. Wilkins, 215 Kan. 145, 156, 523 P.2d 728 (1974), that instructions on circumstantial evidence are not necessary, stating:
“The probative values of direct and circumstantial evidence are intrinsically similar and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each. We believe that whatever type of evidence is introduced in a criminal trial (whether it be termed direct, indirect, testimonial, circumstantial or a combination) the trier of fact must apply the same test to convict the defendant and if there is a reasonable doubt as to his guilt then the defendant should not be found guilty. This court now feels it is time to discard our former rule requiring a circumstantial evidence instruction to be given.
“A proper instruction on ‘reasonable doubt’ as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further on the probative force of circumstantial evidence is to invite the confusion of semantics; and we disapprove statements to the contrary found in State v. Skinner, 210 Kan. 354, 362, 503 P.2d 168, State v. Hale, 207 Kan. 446, 450, 485 P.2d 1338, and in any other decision of this court contra to our holding in the instant case.
“We hold an instruction on circumstantial evidence, which cautions the jury that a defendant should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence or states that the jury cannot convict the defendant on circumstantial evidence unless the circumstances exclude every reasonable hypothesis of his innocence, is unnecessary when a proper instruction on ‘reasonable doubt’ is given; and we overrule State v. White, 211 Kan. 862, 508 P.2d 842, and all other decisions in which this court has required a special instruction on circumstantial evidence.”
The trial court did not err in failing to give an instruction on circumstantial evidence. The appellant had an opportunity in closing argument to impress the jury with the circumstantial nature of most of the evidence.
The appellant next contends the trial court erred in failing to properly instruct the jury on his theory of defense. The appellant’s theory of defense was that the State could not prove guilt beyond a reasonable doubt. The appellant argues the trial court should have included a statement on reasonable doubt in each of the four instructions which stated the elements of the offenses. The appellant also claims the trial court erred in failing to give a converse charge instruction similar to the instruction we approved in State v. Johnson, 222 Kan. 465, 476, 565 P.2d 993 (1977); State v. Reed, 213 Kan. 557, 562-63, 516 P.2d 913 (1973); State v. Potts, 205 Kan. 42, 45, 468 P.2d 74 (1970); and State v. Runnels, 203 Kan. 513, 456 P.2d 16 (1969). The trial court gave an instruction on reasonable doubt which substantially conformed with PIK Criminal 52.02. Indeed, the trial court modified the first sentence of the PIK instruction to emphasize reasonable doubt. It was not error for the court to refuse to add the words “reasonable doubt” to each of the instructions which set forth the elements of the offenses. When the instructions are considered as a whole, the jury was adequately apprised of the State’s burden of proof. See State v. Stewardson, 121 Kan. 514, 247 Pac. 429 (1926); State v. McDonald, 107 Kan. 568, 572, 193 Pac. 179 (1920). “Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused.” State v. Wilson, 221 Kan. 92, Syl. ¶ 3, 558 P.2d 141 (1976); State v. Taylor, 212 Kan. 780, Syl. ¶ 2, 512 P.2d 449 (1973).
Finally, the appellant contends the cumulative trial errors merit reversal. This contention has no merit.
Judgment of the lower court is affirmed. | [
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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 Stephen R. McGrew; and
WHEREAS, following a full hearing as to such complaint, the Board of Discipline found that Stephen R. McGrew, of Johnson County, Kansas, after accepting employment to defend a client in a civil action in the District Court of Johnson County, Kansas, failed to file an answer to the petition in such action; failed to file a counterclaim, which appears to have been valid, on behalf of his client; failed to appear in court on numerous occasions after having been duly noticed to do so and allowed a default judgment to be taken against his client, which default judgment upon a subsequent hearing was modified but not set aside; all in violation of DR 6-101(A)(2) and (3), and DR 7-101(A)(2), 225 Kan. 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, Stephen R. McGrew, be disciplined by public censure; and
WHEREAS, such recommendation is advisory only and not binding upon the Court; and
WHEREAS, respondent was duly notified of the findings and conclusions of the Board of Discipline and has not filed any exceptions thereto, but requested an 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 the Court, after consideration of the report and being fully advised in the premises, finds that the respondent Stephen R. McGrew 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 Stephen R. McGrew 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
Prager, J.:
This case involves a controversy between a school teacher and school board over the nonrenewal of her teaching contract. Unified school district No. 276 appeals from a judgment of the district court reversing the school board’s decision not to renew the teacher’s employment contract. The trial court ordered the teacher to be reinstated with back pay.
The facts in the case are not greatly in dispute and essentially are as follows: Unified school district No. 276 is located in Jewell County. Jessie Mae Gillett is a tenured teacher who had been continuously employed by the school district for a period of seven years. Her last term of employment covered the 1976-77 school year. On March 11, 1977, the school board delivered to Mrs. Gillett a notice of nonrenewal of her teaching contract for the following year pursuant to K.S.A. 1977 Supp. 72-5437. The notice, which was contained in a letter from the president and clerk of the school board, was in the form required by statute. The reason given for nonrenewal was the existence of criminal charges of shoplifting pending against Mrs. Gillett in Hastings, Nebraska. Mrs. Gillett promptly filed a request for a due process hearing in the matter. On May 5, 1977, the board served on the teacher a notice which contained a supplemental list of reasons for nonrenewal including the following:
1. Inability to properly handle school funds;
2. Excessive absences from teaching school duties for allegedly being ill;
3. Improper use of sick leave;
4. Physical and mental instability; and
5. Loss of community, student, and school board respect for this teacher.
Mrs. Gillett, through her counsel, objected to the consideration of the supplemental reasons contending they were not timely served. The hearing committee overruled the objection, stating that it would consider the supplementary reasons.
On September 21, 1977, a full evidentiary hearing was held by the hearing committee in Mankato. The committee heard evidence pertaining to both the original reason and the supplemental reasons for nonrenewal. The evidence presented at the hearing will be summarized in detail later in the opinion. At this point, it is sufficient to state that the evidence disclosed that the teacher had been charged in Adams County, Nebraska, district court in Hastings in two separate cases for the offense of shoplifting. One incident occurred on October 16, 1976, when Mrs. Gillett took two articles from Gibson’s shopping center in Hastings. The other incident occurred on November 17,1976, when Mrs. Gillett took an article from the Safeway store. In regard to those charges, the committee heard the testimony of Mrs. Gillett’s psychiatrist, Dr. Dale Peters, who was called as a witness by the teacher. He testified that she had a metabolism disorder, triggered by certain foods, which resulted in periodic alterations in her state of consciousness. His testimony tended to show that the two shoplifting episodes occurred when Mrs. Gillett was in such an altered state of consciousness, that at the time she was unable to control her actions, and that she was, therefore, incapable of forming any criminal intent. At the time of the hearing, the criminal charges were still pending but had been continued in order to provide Mrs. Gillett with an opportunity to obtain psychiatric and medical treatment. Other evidence was introduced pertaining to the supplemental reasons for nonrenewal.
The testimony presented at the hearing was transcribed, and counsel were afforded an opportunity to file briefs with the hearing committee. On January 24, 1978, the hearing committee entered its order recommending by a two-to-one vote that the school board reverse its decision of nonrenewal for the reason that there was insufficient evidence to support the charges. In its findings, the committee found that the school board had failed to show that the pending charges had any harmful effect on the community, the faculty, or the students. The committee further concluded that there was insufficient evidence to show a loss of student respect or of ineffectiveness of the teacher or to establish the supplemental charges.
The recommendation of the hearing committee was delivered to the school board, which considered all of the evidence presented in the case together with arguments and briefs of counsel. The board unanimously decided to follow its previous decision of nonrenewal of Mrs. Gillett’s contract. The board made no findings of fact and gave no specific reason in writing for rejecting the committee’s recommendation. Mrs. Gillett then appealed the school board’s decision to the district court, using K.S.A. 60-2101(d) as required by K.S.A. 1977 Supp. 72-5443. The district court reviewed the transcript of the evidence presented at the due process hearing and heard arguments of counsel. The district court entered judgment in favor of Mrs. Gillett, ordering her reinstated with back pay. As a part of the journal entry of judgment, the trial court made findings of fact including the following:
10. The court finds that the supplemental reasons for nonrenewal should not have been considered by the hearing committee since they were filed subsequent to March 15, 1977, and contained nothing which was not known or should have been known on March 15, 1977.
11. That the scope of review by this court should be confined to the reason given for the petitioner’s nonrenewal as contained in the notice of March 11, 1977.
12. The court finds that the nonrenewal of the petitioner by the Board of Education is an act that is within the authority of the board.
13. The court finds that the respondent did not act in a fraudulent or capricious manner. The board’s conduct might be arbitrary only to the extent of not following the hearing committee’s decision. That the Board of Education’s not following the recommendation of the hearing committee’s recommendation is not in and of itself an arbitrary act.
14. The court finds that the respondent failed to present substantial evidence to support their reason for nonrenewal.
15. The court further finds that had the court considered the supplemental reasons for nonrenewal, it would have found that the board had also failed to present substantial evidence to support nonrenewal for any of the supplemental reasons given.
Following entry of judgment by the district court, the school board appealed to this court. The school board raises two points of claimed error:
1. The district court erred in holding that there was no substantial evidence to uphold the school board’s decision to nonrenew the teacher’s employment contract.
2. The trial court erred in holding that the hearing committee had improperly considered the school board’s supplemental reasons for nonrenewal submitted to the teacher on May 5, 1977.
The teacher has filed a cross-appeal, claiming that the district court erred in holding that the board did not act in an arbitrary, fraudulent, or capricious manner in refusing to follow the recommendations of the hearing committee.
Before considering the evidence, it would be helpful to review certain basic concepts and principles of law pertaining to the termination of employment contracts of tenured teachers and the due process procedure provided for by K.S.A. 1977 Supp. 72-5436 et seq. At the outset, it should be stated that the dismissal of teachers and the nonrenewal of their teaching contracts is sometimes a complex, difficult process with serious implications. Because of the fact that, under the statutory procedures, the dismissal or nonrenewal of a teacher requires a long and time-consuming effort, school administrators and boards of education are often reluctant to institute such procedures against teachers who ought to be dismissed. As a result the students suffer in the quality of their education. On the other hand, teachers at times in the past have not been fairly treated and have been dismissed or nonrenewed without good reason. As a result of the due process procedure established by the legislature in 1974, teachers are now seeking and being afforded protection of their rights by the courts. In determining cases involving the dismissal or nonrenewal of a teaching contract, the courts are obligated to consider the rights of the teacher, the rights of the school board, and the rights of the school children to receive a quality education in a proper school atmosphere. In every such case, the challenge presented to the court is to provide a decision, fair and equitable both to the teacher and to the school board, with a minimum amount of disruption of the educational opportunity for the children. See Jacobsen, Sperry, & Jensen, The Dismissal & Non-Reemployment of Teachers, 1 J. L. & Educ. 435 (1972).
Statutes providing protection for at least some tenured teachers from unjust dismissal have been in existence in Kansas for many years. Teachers and other professional employees, employed in public school systems in cities having a population of 120,000 inhabitants or more, were provided tenure by statute in 1937 (G.S. 1949, 72-5401 et seq.). In Million v. Board of Education, 181 Kan. 230, 310 P.2d 917 (1957), the purpose of the Tenure of Instructors Act (G.S. 1949, 72-5401 et seq.) was stated to be as follows:
“The evident purpose of the Tenure of Instructors Act (G.S. 1949, Chapter 72, Art. 54) is to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind — political, religious or personal, and secure for them teaching conditions which will encourage their growth in the full practice of their profession, unharried by constant pressure and fear, but it does not confer special privileges or immunities upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public-school system; and, notwithstanding it grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified.” (Syl. ¶ 1.) (Emphasis supplied.)
K.S.A. 72-5401 through 72-5409 were repealed in 1974. At that time, the legislature enacted K.S.A. 1977 Supp. 72-5436 et seq., as a comprehensive due process procedure covering the termination or nonrenewal of teacher’s contracts in every school district, area vocational-technical school, and community junior college in the state. It is clear to us that the statutory scheme to provide tenure for all school teachers throughout the state has the same purpose as that of the Tenure of Instructors Act which is discussed in Million.
If the courts are to carry out the legislative purpose of the teacher tenure statutes, they must require a board of education to show good cause in order to justify the dismissal or nonrenewal of a tenured teacher. The requirement of good cause is inherent in the statutory scheme created by K.S.A. 1977 Supp. 72-5436 et seq. 72-5437 provides that all contracts of employment of teachers shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served. A written notice of intent to nonrenew a contract must be served by a board upon any teacher on or before the fifteenth day of March. In passing, it should be noted that the date for notice of nonrenewal was changed in 1978 to require the written notice of the school board’s intent to nonrenew a contract must be served upon the teacher on or before the fifteenth day of April (K.S.A. 1979 Supp. 72-5437). 72-5438 requires the written notice of nonrenewal to include;
1. A statement of the reasons for the proposed nonrenewal or termination, and
2. A statement that the teacher may have the matter heard by a hearing committee.
Under 72-5439, specific procedural due process requirements are set forth including the right to an orderly hearing and the right of the teacher to a fair and impartial decision based on substantial evidence. It should be noted that 72-5439(d) affords to the board the right to present its testimony and give reasons for its actions, rulings, or policies. 72-5442 places the burden of proof upon the school board in all instances other than where the allegation is that the teacher’s contract is nonrenewed by reason of the teacher’s exercise of a constitutional right. 72-5443 requires the hearing committee to render a written recommendation, setting forth its findings of fact. The recommendation of the hearing committee is required to be submitted to the teacher and to the board. The board, after considering the hearing committee’s recommendation and hearing arguments, decides whether the teacher’s contract shall be renewed or terminated. The decision of the school board is final, subject to appeal to the district court as provided by K.S.A. 60-2101.
This summary of the applicable statutes has been provided to make it clear that the purpose of the due process hearing is to inquire into the reasons for the dismissal or nonrenewal of the teacher and to determine whether or not the evidence presented establishes good cause within the spirit and purpose of the teacher tenure statutes. The Tenure of Instructors Act, G.S. 1949, 72-5401 et seq., contained certain specified statutory causes for dismissal of a tenured teacher. 72-5406 listed those causes as “immoral character, conduct unbecoming an instructor, insubordination, failure to obey reasonable rules promulgated by the board of education, inefficiency, incompetency, physical unfitness or failure to comply with reasonable requirements of the board of education as may be prescribed to show normal improvement and evidence of professional training.” The statute also states that instructors may be dismissed because of decrease in the number of pupils or for other causes over which the board of education has no control. When the legislature adopted the present due process procedure in 1974, it did not specify with particularity any causes as justification for the termination or nonrenewal of a teacher’s contract. Since causes for dismissal or nonrenewal are no longer enumerated under the 1974 act, it follows that the power and responsibility for specifying such causes must rest with the board of education. However, it must again be emphasized that, when an action to dismiss or nonrenew a teacher is initiated, there must be good cause for the proposed action. Tenured teachers cannot be dismissed for arbitrary rea sons and the responsibility for substantiating charges rests with the board of education.
The purpose of the due process hearing granted a teacher by statute is to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of the notice. The hearing must be fair and just, conducted in good faith, and dominated throughout by a sincere effort to ascertain whether good cause exists for the notice given. If it does not, or if the hearing was a mere sham, then justification for the board of education’s action is lacking. The words “good cause” are somewhat indefinite and to a great degree are dependent upon the peculiar facts and circumstances presented to a court in a particular case. In Rinaldo v. School Committee of Revere, 294 Mass. 167, 169, 1 N.E.2d 37 (1936), the term “good cause” was applied in a case involving the dismissal of a teacher. A Massachusetts statute provided that a school committee could dismiss a teacher for “good cause.” As applied to a teacher dismissal situation, the court held the term “good cause” to include “any ground which is put forward by the committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system.” See also Nutter v. School Com. of Lowell, 5 Mass. App. Ct. 77, 359 N.E.2d 962 (1977). The definition of “good cause” adopted in the Massachusetts case could reasonably be applied to the dismissal or nonrenewal of teachers in Kansas. We hold that under the Kansas due process statute (K.S.A. 1977 Supp. 72-5436 et seq.) a tenured teacher may be terminated or nonrenewed only if good cause is shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.
The primary responsibility for determining “good cause” rests with the school board. As provided in K.S.A. 1977 Supp. 72-5443, the decision of a school board on the question of whether a teacher’s contract should be renewed or terminated is final, subject to appeal to the district court as provided by K.S.A. 60-2101. This leads us to the question of the scope of review by the district court of the school board’s decision in a nonrenewal case. That question is answered by Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978). In Brinson, a school teacher was terminated by a school board; she filed her grievance in accordance with the established grievance procedure of the school district. The board held a grievance hearing and refused to reinstate her. She appealed to the district court under K.S.A. 1974 Supp. 60-2101(a) (now 60-2101[d]). The district court tried the matter de novo. The controversy in Brinson arose before the enactment of K.S.A. 1977 Supp. 72-5436 et seq. In Brinson, the scope of review by a district court of a school board’s decision to nonrenew a teacher is clearly established. In Brinson, this court held that, in reviewing a decision of an administrative agency under 60-2101, a district court may not substitute its judgment for that of the administrative agency or tribunal and may not examine the issues de novo; it is limited to deciding whether: (1) the agency or 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 the judgment of the district court in an administrative appeal, this court is required to determine whether the district court properly limited its scope of review. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 451, 436 P.2d 828 (1968); Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817, rev. denied 225 Kan. 843 (1978).
In the case now before us, the district court specifically set out the findings required by Brinson. It limited its scope of review to that required in Brinson. The school board contends, however, that the district court erroneously weighed the evidence and substituted its judgment for that of the school board. Here the district court found that the school board had acted properly within the scope of its authority. It further found that, even though the board had not followed the recommendations of the hearing committee, the board had not acted arbitrarily, fraudulently, or capriciously. The district court did find, however, that the school board had failed to present substantial evidence to support its reason for nonrenewal.
The teacher vigorously objects to the failure of the school board to make specific findings of fact and conclusions of law to justify the overruling of the hearing committee’s recommendation. Mrs. Gillett concedes that, under K.S.A. 1977 Supp. 72-5443, while the hearing committee is required to set forth its findings of fact in its written recommendation, the school board is not specifically required to make formal findings of fact in accepting or rejecting the hearing committee’s recommendation. This court has held that while specific findings of fact by administrative agencies may be desirable, they are not indispensable unless required by statute or rule. Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975). The issue of the necessity of administrative findings was not covered in Brinson. We agree that specific findings of fact may be indispensable in some cases for a reviewing court to determine whether there was substantial evidence to support an administrative agency’s order. In Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P.2d 660 (1968), this court noted that although no method of insuring against arbitrary action by an administrative agency has yet been found, the nearest approach is to require that findings of fact be made. When a conclusion must be buttressed by findings of fact for which there is supporting evidence, it becomes more difficult to conceal arbitrary action. We believe that the better procedure in all school termination cases is for a school board to either adopt the findings of the hearing committee or, if it cannot accept them, to make its own findings of fact so that the propriety of its action may be more easily determined upon review in district court. In the present case, however, the controlling facts are undisputed and we cannot find that the teacher involved here was in any way prejudiced by the failure of the school board to make specific findings of fact in rejecting the recommendation of the hearing committee.
Before considering the sufficiency of the evidence to establish “good cause” for nonrenewing the teacher’s contract in this case, we will consider an issue of law raised by the school board. That issue, as stated by the school board, is whether the district court erred in holding that the hearing committee improperly considered the board’s supplemental reasons for nonrenewal submitted by the school board to Mrs. Gillett on May 5, 1977. As noted above, K.S.A. 1977 Supp. 72-5437 requires a written notice of intention not to renew a contract to be served by the school board upon the teacher on or before the fifteenth day of March. 72-5438 requires the written notice of the proposed nonrenewal to include a statement of the reasons for the nonrenewal. The school board maintains that, where a notice of nonrenewal is timely served prior to March 15, supplemental reasons for nonrenewal may be considered by a hearing committee where there is no showing that the teacher has been prejudiced thereby. At the hearing in this case, the committee considered both the original and supplemental reasons. The hearing was held on September 21, 1977, four-and-one-half months after the supplemental reasons were served. There is nothing in the statute which precludes school boards from amending a notice and giving additional reasons for nonrenewal. We have concluded that, if a teacher is afforded a full opportunity to dispute any supplemental reasons and has not been prejudiced in any way, supplemental reasons for nonrenewal of a teacher’s contract may be considered by a hearing committee. This is especially proper where the supplemental reasons given are closely connected with a teacher’s conduct complained of in the original notice. We believe that, in the long run, a teacher and the school system will be better off if all existing complaints against a teacher are aired and fully considered by the hearing committee. So long as a school board is required to sustain its burden of proof and the teacher is afforded a full opportunity to present evidence in her defense, a school board should be permitted to serve supplemental reasons for nonrenewal after the statutory date.
The primary issue raised on this appeal is whether the district court erred in holding that the school board had failed to present substantial evidence to support its reason for nonrenewal. From the evidentiary record in the case, we have concluded that there was substantial competent evidence showing good cause which justified the school board in its decision not to renew the teaching contract of Mrs. Gillett. In the original notice of nonrenewal served on the teacher on March 11, 1977, the reason given for nonrenewal was the criminal charges pending against Mrs. Gillett in Hastings, Nebraska. The evidence of the pendency of these two criminal cases was undisputed. Although Mrs. Gillett did not take the stand herself, the evidence presented on her behalf showed without question that she had taken articles at two stores in Hastings, Nebraska, on October 16, and November 17, 1976. The teacher did not deny that she took the articles of property. Her defense to the accusation was that, because of her mental condition at the time, she was not criminally responsible for her actions. Dr. Dale W. Peters, a practicing psychiatrist, testified that he was a consultant to the Sunflower Guidance Center in Concordia. Mrs. Gillett was referred to that center for psychiatric evaluation in March of 1977. Dr. Peters examined her to determine her mental capacity and state of health, primarily for determining her mental state in relationship to the shoplifting incidents in Hastings, Nebraska. From these examinations, he concluded that, although she was not mentally ill, she was subject to altered states of consciousness resulting from sensitive reactions to a wide variety of foods. Various tests showed her sensitive to numerous foods which at times interfered with the functioning of her brain cells. During these attacks, she would become mentally disturbed and her judgment adversely affected.
At the time of her arrests in Hastings, Nebraska, it appeared that Mrs. Gillett was acting strangely and out of touch with reality. The thrust of Dr. Peters’ testimony was that, at the time of the shoplifting incidents in Hastings, Nebraska, Mrs. Gillett, being in an altered state of consciousness, was not responsible for her actions. The evidence showed that she had been involved in another shoplifting incident in 1973. Apparently on a number of occasions, she had become confused and lost while driving her motor vehicle. Each of these situations involved an altered state of consciousness which came on gradually. Dr. Peters testified that acute episodes can be dramatic. Such episodes could last up to one hour and could occur at any time, including during classroom hours. Dr. Peters conceded that Mrs. Gillett could again be involved in shoplifting incidents in the future and that she was still under treatment at the time of the hearing. Although Dr. Peters was of the opinion that there was no danger to the students in the classroom, he indicated an attack during class could be disruptive. Similar attacks could occur either from the consumption of certain foods or from a withdrawal from such foods. At the time of the hearing Mrs. Gillett was in the course of an elimination diet which, hopefully, might eliminate her problem. If it did not work, then additional testing and treatment would be required. Dr. Peters mentioned over 80 foods which could cause Mrs. Gillett to go into an altered state of consciousness. He further stated that this list was inconclusive and that there might be other foods which could affect her in the same way.
A teacher testified that at one time she had observed Mrs. Gillett in an altered state of consciousness while seated in her automobile. After the arrests at Hastings, she heard a student discussing the fact that Mrs. Gillett had been arrested. Another teacher testified that she had also heard students mention the fact that Mrs. Gillett had been arrested. This was the first time the teacher had known about it. There was no evidence presented at the hearing as to the ultimate outcome of the criminal actions. There was testimony tending to show that Mrs. Gillett had been careless in keeping candy sale proceeds in her desk drawer and in failing to make daily deposits at the bank as directed by the school superintendent. However, there was no proof of any misappropriation or loss of any money as the result of Mrs. Gillett’s handling of the school funds. In regard to excessive absences from teaching duties for allegedly being ill, the record is devoid of any misconduct on the part of the teacher in this regard. In regard to loss of community, student, and school respect for the teacher, the president of the school board testified that in his opinion the school board had community support in the nonrenewal of Mrs. Gillett’s contract. A substitute teacher testified about a classroom incident where students were caught copying. When she told them copying wasn’t allowed, the students responded: “The teacher can get away with it.”
Mr. Ralph Hooten, who was president of the school board at the time the letter of nonrenewal was delivered to Mrs. Gillett, testified that the school board had unanimously decided that Mrs. Gillett’s teaching contract should not be renewed because of the criminal charges of shoplifting pending in Nebraska. This conclusion was reached only after substantial discussion by the board over a period of hours. The board had concluded that these shoplifting charges reduced her efficiency as a teacher. It appeared to him that, with the charges pending, the learning atmosphere would be improved if her contract was not renewed. Mr. Hooten stated that the board was aware of a similar charge of shoplifting in the year 1973 which was subsequently dismissed. At that time the board decided not to pursue the matter further. When the charges came up again in 1976, the board felt that they could not ignore those charges, having knowledge of the prior incident in 1973. It is fair to conclude, from Mr. Hooten’s testimony, that the school board was very much concerned about the criminal charges against Mrs. Gillett, that the board spent hours discussing the situation, and that they decided to nonrenew her contract rather than to terminate her in midyear.
The issue to be determined here is whether there is substantial evidence in the record sufficient to establish good cause, justifying the school board’s decision of nonrenewal of the teaching contract. The district court found that there was not. We have concluded there was. The problem presented in this case was obviously one of great difficulty for the school board. The trial court specifically found that the school board had not arbitrarily and fraudulently refused to accept the findings of the hearing committee. The district court was correct in that finding. It is difficult to reconcile that finding with the additional finding that there was no substantial evidence to support the board’s reason for nonrenewal. Here the evidence was undisputed that, for a period of at least three years, the teacher had been subject to altered states of consciousness, during which she did not know what she was doing and her judgment and her conduct were adversely affected. At the time of the hearing, a testing and treatment program for Mrs. Gillett had been undertaken but not completed. She was attempting to get to the cause of her problem and was taking appropriate action to do something about it. However, we do not believe that, at that time, the school board acted unreasonably in concluding that it would be for the best interests of the school system to nonrenew Mrs. Gillett’s teaching contract for the following school year.
We think it significant that in this case the teacher did not personally take the witness stand to give her own explanation as to her physical and mental condition or to deny that she, knowingly with larcenous intent, took property from the stores in Hastings, Nebraska. She did not testify that the treatment then being administered was effective or was beginning to solve her problem. She did not testify as to her relationship with the students, with other teachers, or with the school administrators. Not a single witness testified as to any contributions she was making to the educational program of the school district.
We cannot in good conscience find from the evidence that the board’s action was not taken in good faith, or that it was arbitrary, irrational, unreasonable, or irrelevant to the school board’s objective of maintaining an efficient school system for the students in the school district. It follows that the judgment of the district court must be reversed and the case remanded to the district court with directions to enter judgment in favor of the school board.
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The opinion of the court was delivered by
Prager, J.:
This appeal is a consolidation of two actions brought by a husband and wife to recover damages for personal injuries suffered in a gas explosion. The plaintiffs-appellants are Alden Dennis and Velma Dennis. In the trial court, the defendants were Southeastern Kansas Gas Company, Inc., and the City of Moran, Kansas. Only the city is a party to this appeal as appellee.
The facts necessary to determine the appeal are undisputed and are essentially as follows: On September 28, 1953, the governing body of the city of Moran enacted an ordinance granting the Southeastern Kansas Gas Company, Inc. a franchise for the establishment of a gas plant and the supplying of natural gas to the city and its inhabitants. Section 4 of the ordinance provided in part as follows:
“Section 4. The said grantees, their successors or assigns, shall at all times protect and save the City harmless from any and all damages and loss which said City might be liable to pay from the operation, and maintenance of said plant . . .
The gas company accepted the franchise, including the hold-harmless provision of section 4, constructed a gas plant, and proceeded to supply gas to the city and its inhabitants.
On February 11, 1975, a gas explosion occurred at the Dennis home in Moran and plaintiffs were severely injured. On July 18, 1975, the plaintiffs filed statements of claim with the city clerk of Moran, claiming in substance that the city had failed to discover a leakage of gas, failed to make proper tests, and failed to take proper action under the circumstances. These claims were denied by the city. On November 24, 1975, each plaintiff filed a separate action against the gas company and the city seeking to recover damages on the basis of negligence, trespass, and strict liability in tort. These actions were consolidated. On December 3, 1975, the gas company filed its answer to each plaintiff’s petition denying liability. On January 16, 1976, the city filed its answer in each case and included therein a cross-claim against the gas company, seeking indemnity from the gas company for any damages or losses suffered by the city as a result of the plaintiff’s claim. The basis for the city’s cross-claim against the gas company for indemnity was that the city was entitled to recover a judgment over against the gas company under the hold-harmless provision of the gas franchise ordinance. Additionally, the city contended the gas company had a duty to indemnify the city for any judgment obtained by the plaintiffs because the city’s negligence, if any, was passive and secondary, while the gas company’s negligence was active and primary.
As discovery proceeded, counsel for the plaintiffs learned that the gas company was insolvent and had limited liability insurance coverage in the amount of $25,000. The briefs of counsel indicate that, in an attempt to settle the claims, the gas company offered to turn over the entire gas plant to the plaintiffs. It appears that the gas company actually filed a voluntary bankruptcy petition during the course of the litigation. Plaintiffs then started looking for prospective purchasers for the gas company franchise and assets and located Compton Industries, Inc., who agreed to buy the gas plant, provided the plaintiffs would settle all claims against the gas company. After negotiations, on January 16, 1976, a settlement agreement was executed between the plaintiffs and Compton Industries, Inc., as successors and purchasers of the gas company assets. By the terms of this agreement the plaintiffs received $75,000 in cash from Compton Industries, Inc., plus an additional $25,000 from the gas company’s liability insurance carrier. Under section 6 of the agreement, the plaintiffs agreed to hold harmless the Southeastern Kansas Gas Company, Inc., and Compton Industries, Inc., from any claims that might arise or judgments for damages that might be entered against Southeastern Kansas Gas Company, Inc., as a result of the injuries to the Dennises resulting from the gas explosion that occurred on February 11, 1975, at the Dennis home. This provision enabled Compton Industries, Inc., to take over the operation of the gas company without the danger of further liability to the plaintiffs or others for damages resulting from the explosion.
Thereafter, on February 27, 1976, plaintiffs dismissed without prejudice their action against the Southeastern Kansas Gas Company. On April 16, 1976, the city filed a motion for default judgment on its cross-claim against the gas company. On April 28, 1977, a discovery conference was held at which counsel for the plaintiffs and for the city appeared. There was no appearance by the gas company. At that time, the trial court issued an order granting the gas company twenty days to show cause why judgment should not be entered in favor of the city on its cross-claim. The gas company took no action and, on May 26, 1977, the trial court entered judgment in favor of the city against the gas company on the city’s cross-claim. The judgment entered was in favor of the city against the gas company for all sums that may be adjudged in favor of the plaintiffs on their claim against the city of Moran. It is clear from the journal entry of judgment that in the event plaintiffs should recover a judgment against the city of Moran, the city in turn would be entitled to reimbursement from the gas company for any damages awarded to the plaintiffs.
Thereafter, on motion of the city on April 6,1978, the trial court certified that there was no just cause or reason to delay entry of final judgment on the city’s cross-claim against the gas company, and final judgment was entered by journal entry pursuant to K.S.A. 60-254(¿>). There was no appeal taken from that judgment. Thereafter, the city filed a motion for summary judgment on plaintiffs’ petition. In its motion, the city maintained that it was entitled to summary judgment on the basis that a “circle of indemnity” had rendered the pending claim of plaintiffs against the city moot. In support of its position, the city reasoned as follows: Under the judgment finalized April 6, 1978, in favor of the city on its cross-claim against the gas company, the gas company became obligated to indemnify the city of Moran for any amounts recovered by the plaintiffs on their claim against the city. By their agreement of January 16, 1976, the plaintiffs agreed to indemnify the gas company for any amounts which it might be required to pay as a result of the explosion oh which the suit was based. Thus, the city argued in its motion, there is a full circle of indemnity running from the plaintiffs to the city. Should plaintiffs recover a judgment against the city of Moran, the city will be entitled in turn to recover that same amount from the gas company pursuant to the city’s judgment for indemnity. The gas company in turn will be entitled to recover that same amount back from the plaintiffs, pursuant to the settlement and hold-harmless agreement of January 16, 1976. The end result is that, through this indirect process, plaintiffs will be required to indemnify the city for any judgment recovered by plaintiffs against the city. The city reasons that the issues in the present case have now become moot, and the city is entitled to summary judgment on plaintiffs’ claim against the city. The trial court agreed with the position of the city and sustained the city’s motion for summary judgment against the claim of the plaintiffs. The plaintiffs then brought a timely appeal to this court.
On the appeal, the plaintiffs contend that the trial court erred in entering summary judgment in favor of the city on the plaintiffs’ claim for damages. The plaintiffs do not disagree with the conclusion that the case is now moot if it is assumed that the circle of indemnity among the parties is unbroken and complete. The plaintiffs recognize that in order to avoid mootness they must show some break in the circle of indemnity so as to restore viability into the claim of the plaintiffs against the city. The plaintiffs do not attack the validity of their own agreement with Compton Industries, Inc., and Southeastern Kansas Gas Company, Inc., to save the gas company harmless in the event the city recovers a judgment for damages against the gas company as a result of the gas explosion. The substance of the plaintiff’s contention is that there is no valid judgment or obligation requiring the gas company to indemnify the city for the city’s negligence in the event the plaintiffs prevail in their claim and recover damages from the city. The obstacle to sustaining this position is the default judgment obtained by the city which requires the gas company to reimburse the city for all sums that may be adjudged in the case in favor of the plaintiffs against the city. If that judgment, entered in favor of the city on April 6, 1978, is res judicata and is binding on the plaintiffs, then the circle of indemnity remains unbroken and the claim against the city is now moot. The key issue to be determined on the appeal is whether the judgment in favor of the city against the gas company holding the gas company liable to the city under the hold-harmless agreement in the gas franchise, is res judicata and binding upon the plaintiffs.
Plaintiffs first maintain that they have a right on this appeal to have that judgment reviewed and considered on its merits. They rely on K.S.A. 60-2102(<z)(4) which provides in part as follows:
“In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.”
Relying on this language, plaintiffs argue that any action taken by the court from the beginning of the litigation is reviewable provided an appeal has properly been perfected after the final decision of the trial court terminating the litigation. As a general rule, the contention of the plaintiffs would be correct. However, the language quoted is not applicable where a judgment entered pendente lite has been certified as final and appealable under the provisions of K.S.A. 60-254(¿). That statute provides as follows:
“(b) When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form or decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
After certification of a judgment as final under K.S.A. 60-254(fc), a journal entry is required to be signed by the judge and filed in the action. Under K.S.A. 60-258, on the filing of the journal entry, a final judgment becomes effective which is appealable under the provisions of K.S.A. 60-2103(a), which provides in part as follows:
“60-2103. Appellate procedure, (a) When and how taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258 . . . .”
In this case, the judgment in favor of the city on its cross-claim against the gas company was certified under K.S.A. 60-254(b) and became final and appealable when the journal entry was filed on April 6, 1978. The summary judgment was entered in favor of the city against the plaintiffs on April 9, 1979. Plaintiffs filed their notice of appeal on May 7, 1979. Under the provisions of the statutes cited above, the plaintiffs were clearly out of time in appealing any issue determined by the certified judgment which became a final, appealable judgment on April 6, 1978.
In Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976), the right to appeal from an interlocutory partial judgment was before the court for consideration. In Fredricks, the court noted that K.S.A. 60-254(fe) is identical to and based upon Rule 54(b) of the Federal Rules of Civil Procedure, and that the federal interpretations of Rule 54(b) are persuasive. The court observed that Rule 54(b) reestablishes the ancient federal policy against piecemeal appeals with clarity and precision, with the addition of a discretionary power to afford a remedy in the infrequent, harsh case. The policy against piecemeal appeals is implemented in Kansas in K.S.A. 60-254(h). When the district court under this rule has fully disposed of the interest of one or more but fewer than all of the multiple parties, its order lacks finality unless the district court makes an express “direction for the entry of judgment” and a “determination that there is no just reason for delay.” The combination of the direction and determination can be referred to as a “certification” that a particular judgment is ripe for review. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2660, p. 82 (1973). The purpose behind K.S.A. 60-254(b) is the same as that behind Rule 54(b) of the Federal Rules of Civil Procedure. It is to provide a practical means of permitting an appeal to be taken from one or more claims in a multiple claims action without final decisions being rendered on all the claims. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 100 L.Ed. 1297, 76 S.Ct. 895 (1956). See also Henderson v. Hassur, 1 Kan. App. 2d 103, 106, 562 P.2d 108 (1977).
Under the federal decisions once there has been a Rule 54(b) certification and a final judgment has been entered, the time for appeal begins to run. It has res judicata effect if no appeal is taken during the time permitted for an appeal. Government of Virgin Islands v. 2.6912 Acres of Land, 396 F.2d 3 (3rd Cir. 1968); Fujiwara v. Clark, 477 F. Supp. 822, 828 (D. Hawaii 1979). See also 10 Wright & Miller, Federal Practice and Procedure: Civil § 2661, p. 90 (1973). In interpreting K.S.A. 60-254(h), we adopt and follow the federal decisions which interpret Rule 54(b) of the Federal Rules of Civil Procedure. If a certification and final judgment has been entered pursuant to K.S.A. 60-254(fc), the time for appeal immediately commences to run and such a judgment becomes res judicata where a timely appeal is not taken by an aggrieved party. If a timely appeal is not taken in such a case, such a judgment may not later be reviewed as an intermediate ruling when an appeal from the final judgment disposing of the entire case is taken pursuant to K.S.A. 60-2102. We have, therefore, concluded that the judgment of the trial court in favor of the city on its cross-claim against the gas company, granting indemnity to the city, is a final and binding judgment and is not reviewable on this appeal under the provisions of K.S.A. 60-2102(a)(4).
The plaintiffs next maintain that the judgment in favor of the city against the gas company on its cross-claim is not res judicata and binding on the plaintiffs, because the causes of action and the parties are not identical and, hence, the principle of res judicata is not applicable. We do not agree. We hold that plaintiffs, as the indemnitors of Southeastern Kansas Gas Company, Inc., are bound by the judgment for indemnity entered against the gas company in favor of the city on its cross-claim. The rule is well settled that where an indemnitor has notice of a suit against his indemnitee and has been afforded an opportunity to appear and defend, a judgment therein rendered against the indemnitee, if without fraud and collusion, is conclusive against the indemnitor in respect to all questions therein determined. 42 C.J.S., Indemnity 32(a), p. 613. An indemnitor is defined in Black’s Law Dictionary 910 (4th ed. rev. 1968), as a “person who is bound, by an indemnity contract, to indemnify or protect the other.” In the same dictionary, an indemnity contract is defined as a “contract between two parties whereby the one undertakes and agrees to indemnify the other against loss or damage arising from some contemplated act on the part of the indemnitor, or from some responsibility assumed by the indemnitee, or from the claim or demand of a third person, that is, to make good to him such pecuniary damage as he may suffer.” The plaintiffs clearly fall within the category of indemnitor of Southeastern Kansas Gas Company, Inc., by virtue of their agreement with the gas company and Compton Industries, Inc., executed on January 16, 1976. The hold-harmless agreement in section 6, as noted above, constitutes an indemnity contract.
Another general rule applicable to this case is that a valid and final judgment is binding on all parties of record in the proceeding in which the judgment is rendered. 50 C.J.S., Judgments § 767, p. 295. Where a person who is responsible, either by operation of law or express contract, to another for whatever may be recovered in a suit against such other, has notice of a suit against the latter and an opportunity to appear and defend, the judgment rendered in the action, if obtained without fraud, will be conclusive on him, whether or not he appeared, and whether he did or did not participate in the defense of the suit. 50 C.J.S., Judgments § 811(a), p. 361. These basic principles of law have been recognized and applied in Kansas in Kansas Turnpike Authority v. Watson, 189 Kan. 593, 599, 371 P.2d 119 (1962); City of McPherson v. Stucker, 129 Kan. 262, 266, 282 Pac. 703 (1929); and City of Fort Scott v. Penn Lubric Oil Co., 122 Kan. 369, 371 Pac. 268 (1927). In this case, plaintiffs are parties of record, fully participating in the case and also standing in the position of indemnitors or persons responsible over to another for whatever may be recovered in the suit against the other. As parties, they had actual knowledge of the city’s motion for judgment on its cross- claim and, as indemnitors, had an opportunity to appear and defend against it and to appeal from the decision within the statutory time for appeal. Having failed to do so, the plaintiffs are bound by the judgment entered in favor of the city against the gas company on its cross-claim determining that, under the hold-harmless agreement contained in the gas franchise, the gas company is liable to the city for any damages which may be awarded against the city on the claim asserted by the plaintiffs. The trial court in this case properly sustained the city’s motion for summary judgment against the plaintiffs on the basis that the circle of indemnity was complete and, as a result, the claim of the plaintiffs against the city was thereby rendered moot.
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The opinion of the court was delivered by
Prager, J.:
This case is a consolidation of two separate actions: First, an appeal from an order of the district court of Leavenworth County admitting a will to probate and appointing as executor the person designated in the will and, second, an original proceeding in mandamus brought by the named executor against the district judge for an order directing the judge to accept the petitioner’s oath as executor for filing, to issue letters testamentary to the petitioner, and to compel the special administrator to turn over all estate property to the petitioner.
The facts in the case are not greatly in dispute and essentially are as follows: The decedent is Robert R. Petty who died on April 19, 1979. The decedent was survived by his second wife, Kathleen Petty, and by two adult children, his daughter, Teresa Foley, and his son, Richard Petty. On November 21, 1975, Robert R. Petty and Kathleen Petty, then Kathleen Shepard, in contemplation of marriage entered into an antenuptial agreement which limited the rights of each in the property of the other. They were subsequently married and remained married until the death of Robert R. Petty in an automobile collision on April 19, 1979. On August 17, 1976, Robert R. Petty executed a will which provided that Kathleen Petty, as a widow, was to receive $50,000 and the family automobile while the son and daughter were to receive the remainder of the estate. Robert R. Petty was a building contractor and sole shareholder of Westside Construction Company, Inc., a successful construction business. Over the years, Edward J. White, a lawyer, had represented Petty in certain business matters, including the drafting of several wills at various times. In the will dated August 17,1976, Edward J. White was designated to be the executor with broad powers to sell and dispose of estate assets.
Following the death of Robert R. Petty, a petition to probate the will of Robert R. Petty was filed on April 25, 1979, by White, as named executor, in the district court of Leavenworth County. On April 27, 1979, the widow and two children, as all of the named heirs and devisees under the will, filed a petition alleging that Edward J. White was not competent to act as the executor of the estate. They objected to his appointment and requested that the three of them be appointed coadministrators, C.T.A., and that White be restrained from collecting or disposing of any of the estate assets or from interfering, with the construction business. Kathleen Petty, as widow, also filed an election to take against the will and by intestate succession. A hearing was held on April 30, 1979, following which the court ordered all parties restrained from collecting or disposing of any assets of the estate. The court then appointed Robert W. Loyd as special administrator of the estate. The special administrator immediately took possession of all estate assets. Thereafter, the heirs filed objections to the probate of the will and petitioned the court to have the estate administered in accordance with a family settlement agreement which provided for an agreed distribution of the estate and for abrogation of the will and of the antenuptial agreement and for the appointment of Commercial National Bank as administrator instead of Edward J. White.
After several hearings, the district court on November 20, 1979, entered judgment admitting the will of Robert R. Petty to probate, appointing Edward J. White as executor, and denying the petition for an order to administer the estate under the family settlement agreement. The court then ordered that the appointment of Edward J. White should be stayed pending the appeal. This left the special administrator in the position of administering the estate while the appeal was pending. The heirs appealed to the Court of Appeals. On December 17, 1979, Edward J. White filed an origi nal proceeding in the Supreme Court for a writ of mandamus to require the district court to accept the oath of Edward J. White, as executor, to issue letters testamentary to Edward J. White, and to issue an order requiring the special administrator to turn over all estate property to Edward J. White as named executor. The Supreme Court accepted jurisdiction of the mandamus action and immediately transferred the direct appeal of the heirs to the Supreme Court, so that the heirs’ appeal and the mandamus action could be disposed of in a single proceeding. We will consider first the issues raised on the appeal and then the issue raised in the proceeding for mandamus.
The first point raised by the heirs on their appeal is that the will of August 17, 1976, was not properly executed and should not have been admitted to probate because the will was not properly signed at the end as required by K.S.A. 59-606, which provides as follows:
“59-606. Execution and attestation; self-proved wills and codicils; affidavits; form. Every will, except an oral will as provided in K.S.A. 59-608, shall be in writing, and signed at the end thereof by the party making the same, or by some other person in the presence and by the express direction of the testator and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the same. Such will, at the time of its execution or at any subsequent date during the lifetimes of the testator and the witnesses, may be made self-proved, and the testimony of the witnesses in the probate thereof may be made unnecessary by the acknowledgments thereof and the affidavits of the testator and the attesting witnesses, each made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this state, such acknowledgments and affidavits being evidenced by the certificate, with official seal affixed, of such officer attached or annexed to such will in form and contents substantially as follows:
State of Kansas ) ) ss. County of )
“Before me, the undersigned authority, on this day personally appeared _,_, and_, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me first duly sworn, said__, testator, declared to me and to the said witnesses in my presence that said instrument is his/her last will and testament, and that he/she had willingly made and executed it as his/her free and voluntary act and deed for the purposes therein expressed; and the said witnesses, each on his/her oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his/her last will and testament, and that he/she executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of each other and in the presence of the testator and at his/her request, and that said testator at that time possessed the rights of majority, was of sound mind and under no restraint.
(Testator)
(Witness)
(Witness)
“Subscribed, acknowledged and sworn to before me by _ testator, and_and_;_, witnesses, this _, A.D___ day of
(seal)
(Signed)
(Official capacity of officer)
“A self-proved will, unless contested, shall be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved. A self-proved will may be contested or be revoked, or be amended by a codicil in the same fashion as a will not self-proved. A codicil or the consent to take under the will by the spouse may be self-proved in the same manner as a will may be self-proved.”
The pertinent portions of the will dated August 17, 1976, admitted to probate, omitting paragraphs making specific bequests, are as follows:
“Last Will and Testament of Robert R. Petty
“I, Robert R. Petty, the undersigned Testator hereby declare that I am a resident of Kansas City, Kansas, and do hereby make, publish and declare this as and to be my Last Will and Testament, hereby revoking any and all former Wills and Codicils thereto, if any, heretofore by me made.
“In Witness Whereof, I to this, my Last Will and Testament, consisting of two (2) pages, having subscribed my name of on this 17th day of Aug., 1976.
“Is/ Robert R. Petty
Robert R. Petty
“State of Kansas
“County of Wyandotte, ss:
“Before me, the undersigned authority, on this day personally appeared Robert R. Petty, Edward T. White and Elizabeth A. Couts, known to me to be the Testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me first duly sworn, said Robert R. Petty, Testator, declared to me and to the said witnesses in my presence that said instrument is his Last Will and Testament, and that he had willingly made and executed it as his free and voluntary act and deed for the purposes therein expressed; and the said witnesses, each on their oath stated to me, in the presence and hearing of said Testator, that the said Testator had declared to them that said instrument is his Last Will and Testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness of each other in the presence of the Testator and at his request, and that said Testator at that time possessed the rights of majority, was of sound mind and under no restraint.
“/s/ Robert R. Petty
Robert R. Petty
“Is/ Edward J. White
Witness
‘7s/ Elizabeth A. Couts
Witness
“Subscribed, acknowledged and sworn to before me by Robert R. Petty, Testator, Edward T. White and Elizabeth A. Couts, witnesses, this 17th day of August, 1976.
“/s/ Deborah Anne Haynes
Notary Public”
The heirs contend that the will of August 17, 1976, is a nullity because it does not contain the usual attestation clause with the signatures of the subscribing witnesses. K.S.A. 59-606 does not require the attestation clause to be in any particular form. The only requirement is that every will “shall be in writing, and signed at the end thereof by the party making the same, or by some other person in the presence and by the express discretion of the testator and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the same.” From the will, as depicted above, it will be observed that the two subscribing witnesses signed the sworn “attestation” statement, reciting that the testator executed the will in their presence and that they subscribed to the same as witnesses in the presence of each other and in the presence of the testator and at his request. The mere fact that the attestation, in form, resembled an affidavit, does not destroy its validity.
Here the sworn statement was on the same page of paper as the last article of the will and may be said to have been incorporated into the will by words of reference therein. The evidence is undisputed that the will was signed by the testator, Robert R. Petty, in the presence of each of the subscribing witnesses and that they signed the will, as subscribing witnesses, at his request and in his presence and in the presence of each other. It is also undisputed that the testator was mentally competent to execute a will. The Oklahoma Supreme Court in In re Estate of Cutsinger, 445 P.2d 778 (Okla. 1968), had before it the precise question presented here and found that the so-called “self-proving clause” signed by the testator and by the subscribing witnesses was legally sufficient to satisfy the requirements of a similar Oklahoma statute (Okla. Stat. tit. 84, § 55 [1965 Supp.]). It has been the policy of this court to uphold wills if the form of the will substantially complies with the requirements of the statute. For example, see In re Estate of Ellis, 168 Kan. 11, 210 P.2d 417 (1949). We have concluded that, under the circumstances of this case, where the subscribing witnesses signed “a self-proving” sworn statement which appeared on the last page of the will after all of the dispositive provisions, the signatures were sufficiently at the end of the will to comply with the provisions of K.S.A. 59-606. It follows that the trial court was correct in reaching the conclusion that the will was executed in compliance with that statute and could be admitted to probate.
The second point raised by the heirs on the appeal is that the family settlement agreement before the court, entered into by all of the heirs and devisees of the decedent, abrogated the will and thus the trial court erred in refusing to order administration to proceed in accordance with the family settlement agreement. The identical issue was before this court in In re Estate of Harper, 202 Kan. 150, 446 P.2d 738 (1968). In syllabus ¶ 6 of Harper, this court held as follows:
“In a probate proceeding on a petition for probate of a will, the inquiry is limited to the single question whether such instrument is entitled to probate. A family settlement agreement executed by all the beneficiaries under the will and filed in the probate court to withhold the will from probate is not a valid or proper defense to that probate proceeding, and the probate court lacks power and authority at the hearing of such petition to approve such an agreement and thereupon determine the rights of the heirs at law entitled to the estate, or determine the administration of the estate in a manner different than that provided in the will. Such beneficiaries are interested parties in the estate and may at a proper time commence a probate proceeding for the approval of the family settlement agreement by the probate court.” ■
Harper was decided by a four-to-three decision of the Supreme Court. We have carefully reconsidered the issue and concluded that the rule of Harper should be adhered to. As noted in Harper, the pertinent statutes, K.S.A. 59-618, 59-620, and 59-621, express the legislative intent that the will of every person shall be offered for probate and that there is a clear public policy in establishing every legally executed will. Although family settlement agreements are favored by the law and beneficiaries of a will have a right to agree among themselves for a distribution of the estate contrary to the distribution made under the will, a district court should not determine the validity of the family settlement agreement at the time of the hearing on the petition to admit the decedent’s will to probate. A family settlement agreement should be submitted to the court 'at a later time and its validity then determined. Based on our decision in In re Estate of Harper, 202 Kan. 150, we have concluded that the trial court did not err in admitting the will dated August 17, 1976, to probate as the last will and testament of Robert R. Petty.
The third point raised by the heirs is that, under the undisputed factual circumstances shown in this case, the district court abused its discretion in appointing Edward J. White as executor over the objection of all of the heirs-devisees of the decedent. Simply stated, it is the position of the heirs that White, by his actions following the death of Robert R. Petty, has caused so much antagonism and friction between himself and all of the heirs of the estate, that the estate can not be efficiently and fairly administered by him. White, as the designated executor, contends, in substance, that the district court had no discretion whatsoever to deny his appointment as executor in view of existing Kansas case law. White relies on In re Estate of Snyder, 179 Kan. 252, 294 P.2d 197 (1956); In re Estate of Smith, 168 Kan. 210, 212 P.2d 322 (1949); and In re Estate of Grattan, 155 Kan. 839, 130 P.2d 580 (1942).
In re Estate of Grattan involved a controversy over the appointment of a person designated in the will as executor whose appointment was opposed by the heir and beneficiaries under the will. There was no question raised as to the capacity of the testator to execute the will or that the will was in fact the last will and testament of the testator. In Grattan, we held that when a testator in his will names an executor, normally the court has no discretion respecting the appointment, if the executor so named is legally competent and will accept the trust. The court stated that the naming of an executor by a testator in his will should be treated by the court as a part of his will — much as a devise or bequest should be treated. The court relied on the provisions of G.S. 1941 Supp. 59-701, which provided in substance that, when a will is admitted to probate, letters testamentary shall be granted to the named executor, if he is legally competent and shall accept the trust. The court, in the opinion, discussed the statutes and court decisions of many states and made the following statement:
“The well-established general rule is that one is ‘legally competent’ to act as an executor if he is legally competent to make a will; but it appears always to have been the rule that peculiar and abnormal facts disclosed may make it clear that the person designated is not a suitable person.” p. 853.
At the hearing before the trial court in Grattan, no one contended that the named executor Ernst F. Pihlblad was not legally competent to make a will or to act as executor. The evidence disclosed that Dr. Pihlblad was a man of high standing in his community as an educator and theologian and that no one attributed any bad motives to him. There is nothing in the opinion to indicate any misconduct on the part of the proposed executor which would have justified the trial court in finding that Dr. Pihlblad was not fully competent to act as executor. There was, likewise, no substantial evidence to establish that he was not a suitable person to serve as executor. Under the circumstances, the trial court erred in refusing to appoint as executor the person designated by the testator in his will.
Grattan is cited in In re Estate of Smith, 168 Kan. 210, but that case is of no assistance here because there was no contention that the designated executor was not qualified or a suitable person to serve in that capacity. Grattan is also cited and relied on as a basis of the decision in In re Estate of Snyder, 179 Kan. 252. In Snyder, the two heirs of the testatrix, Isabelle Snyder, strongly objected to the appointment as executor of James N. Snyder, an attorney from Leavenworth who was the stepson of the testatrix and son of the sole beneficiary under the will who was deceased. Snyder was also the executor of the estate of his father, Charles Snyder, and was adversely interested, both individually and as his father’s executor, to the interests of his stepmother’s estate and her heirs. The heirs contended that, during the lifetime of the deceased, the proposed executor had been antagonistic to Isabelle’s welfare and had denied to her the possession and enjoyment of her property and the income therefrom. They further contended that, as exec utor of his father’s estate, he was asserting claims to substantially all of the assets of Isabelle’s estate and, therefore, he was not a suitable and proper person to serve as executor of her estate. These allegations were set forth in the answer filed by the heirs. James N. Snyder, as petitioner, filed a motion for judgment on the pleadings for the reason that the answer failed to state a defense as shown on its face. The trial court sustained his motion and ordered that the will be admitted to probate and that James N. Snyder be appointed. The heirs appealed to the Supreme Court which affirmed the appointment of James N. Snyder as executor of Isabelle Snyder’s estate. The Supreme Court took a hard position in its interpretation of the holding in Grattan and rejected the contention of the heirs of Isabelle Snyder that the interests of James N. Snyder, as executor of Charles Snyder’s estate, were so antagonistic to the interests of Isabelle Snyder’s estate that he was an unsuitable person to serve as executor of both estates. The court discussed Grattan in some depth and held that when a testator in his will names an executor, normally the court has no discretion respecting the appointment if the executor so named is legally competent and will accept the trust. The court noted that, if at any time it appeared during the administration of the estate that James N. Snyder’s interests were actually antagonistic to the interests of the estate, then on proper application, a special administrator may be appointed. The essence of the opinion in Snyder is that, no matter how antagonistic the proposed executor might be to the interests of the estate, if he is legally competent and will accept the trust, he must be appointed. Then, if his antagonism is later expressed in some way, a special administrator at that time may be appointed.
The trial court in the present case apparently relied on Grattan and Snyder in deciding that it had no discretion except to appoint Edward J. White as executor. Such a result was clearly required by the decision of the court in Snyder. We have concluded that the opinion in Snyder unduly limits the discretion of a district court in considering the appointment of a proposed executor where peculiar and abnormal facts make it clear that the person designated is not a suitable person to act as executor. In Grattan, the general rule was recognized that one is legally competent to act as an executor if he is legally competent to make a will. However, in Grattan, this general rule was qualified by the condition that a trial court is not required to name a designated person as executor where peculiar and abnormal facts are shown which make it clear that the person designated is not a suitable person.
We reject the holding in Snyder which would require a district court to appoint a designated person as executor no matter how antagonistic he might be toward the interests of the estate and the heirs and later, if such antagonism is expressed in some way, then order a special administrator to be appointed. We approve the rule stated in Grattan that when a testator in his will names an executor, normally the court has no discretion respecting the appointment, if the executor so named is legally competent and will accept the trust. However, as stated in Grattan, a district court should refuse to appoint a designated executor where peculiar and abnormal facts are disclosed which make it clear that the person designated as an executor is not a suitable person. If the evidence is clear that a person designated is not a suitable person to serve as executor, then he should not be appointed and the administration of the estate should be undertaken by a special administrator.
We wish to make it clear that the mere fact the heirs of the testator have a feeling of hostility toward the designated executor and do not want him appointed is not alone a sufficient reason for a district court to refuse to appoint the designated person. In some cases, the testator may recognize that dissension and division exist among his heirs and, as a result, intentionally designates a person as executor who has the fortitude to administer his estate, even in the face of such animosity. Where, however, the designated person is in a position or has acted in a manner antagonistic toward the interests of the estate or the heirs in a way indicating that his administration of the estate would probably result in prolonged and unnecessary difficulty or expense, then such a person should not be appointed as executor. The courts have a duty to see that estates are administered in such a way as to secure a just, speedy, and inexpensive determination of the proceeding.
After carefully considering the evidence presented at the hearing on the appointment of an executor in this case, we have concluded that it was an abuse of discretion for the trial court to appoint Edward J. White as executor. The trial court, at the conclusion of the hearing, made a specific finding that White had conducted himself in such a manner as to irritate the heirs and the decedent’s business associates and found specifically that White had conducted himself in an arrogant manner causing conflict with the heirs. There is plenty of evidence to support these findings of fact. We have concluded that the heirs are correct in their position that the named executor, by his actions, had caused such dissension and conflict between himself and all the heirs that the estate cannot be effectively and efficiently administered by him and that the best interests of the estate and of the heirs require the appointment of an administrator, C.T.A. It is clear from the testimony that, on the Friday following the death of Robert R. Petty, White presented himself at the corporate offices of Westside Construction Company and represented himself as having full and complete control of the business. Such power had not been granted by any court order. He cleared out the personal effects of Mr. Petty’s desk, none of the heirs or beneficiaries being present at that time. The evidence indicated that White was reluctant to show and disclose to the heirs the items removed from the desk. Later, White represented himself as a member of the board of directors of the construction company, when he clearly was not a member of the board. He made statements that the business had not been run properly and that he intended to change the way the business was run. He told the corporate accountant not to give any information about the business to the heirs. It should be noted that White’s appearance at the corporate offices was the day before the funeral. Kathleen Petty, widow of the decedent, testified that, at the funeral home, White interfered with the funeral arrangements. White later came by the family home and, according to the widow, advised her that she was now a widow and out of everything, that she would have to change her lifestyle, and that, as of the first of May, she would be responsible for her own expenses. White indicated that he had total control of the construction company, of the property, of the estate, of the family home, of everything. White’s actions and attitude were established by the testimony of not only the heirs but also employees of the business who had no interest in the estate. All of the heirs testified that there was no way the heirs could get along with White, if he were appointed as executor.
On this testimony, we have concluded that the trial court abused its discretion in appointing Edward J. White as executor of the estate. In our judgment, sufficient peculiar and abnormal facts were disclosed by the evidence to make it clear that White was not a suitable person to handle the estate. Under the provisions of K.S.A. 59-704, the powers of a named executor before letters are granted are limited as follows:
“59-704. Powers of executor before letters granted. No executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay reasonable funeral expenses, nor to interfere in any manner with such estate, further than is necessary for its conservation.” -
Here the designated executor went beyond his statutory authority and acted in a manner evidencing an arrogant and callous disregard for the feelings of the testator’s widow and children. We further note that, although the heirs testified that they had entered into a mutually satisfactory family settlement agreement, White’s attorney indicated an intention of litigating its validity and possibly using the antenuptial agreement between the decedent and the widow as a means of upsetting the family settlement agreement. Furthermore, it is quite apparent that White intended to take the major role in the management of the construction company, although arrangements had been made for its operations to be supervised by Richard Petty and Larry Meadows, a qualified construction contractor and the decedent’s business associate and former general superintendent. At the time of the hearing, conflicts had already arisen as to who was to run the business. It seems obvious to us that considering White’s attitude, the prospects were excellent for prolonged and expensive litigation which would delay the closing of the estate to the detriment of the heirs. From all of the factual circumstances, we can reach no other conclusion than that the district court abused its discretion in appointing Edward J. White as executor of the estate.
The only issue raised in the mandamus action may be stated as follows: Where the district court has found the designated executor to be legally competent and has appointed him over the objection of the heirs, is the designated executor entitled as a matter of law to administer the estate during the pendency of an appeal to an appellate court from the order of appointment? White contends that, having been appointed executor by the trial court, it was error for the trial court to stay the effect of the order of appointment until the appeal had been determined. We have concluded that the trial court’s order staying the order of appointment of White as executor was a permissible exercise of the court’s discretion. In re Estate of Teichgraeber, 217 Kan. 373, 537 P.2d 174 (1975), holds that the executor named by a testator decedent in his will gains stature only if the validity of the will is upheld by the probate court, or if an appeal is taken, only upon final determination of the validity of the will. We also note Hutchinson v. Pihlblad, 157 Kan. 392, 395, 139 P.2d 835 (1943), where an appeal was taken to the Supreme Court from an order appointing an executor and this court held, in substance, that an appeal from an order appointing an executor does not revoke the order of appointment but only suspends its operation after appeal is taken and until it is determined. We cannot say that the trial court abused its discretion in staying the order of appointment of Edward J. White as executor until the appeal had been determined by this court.
For the reasons set forth above, the petition for a writ of mandamus in Case No. 51,738 is denied. The judgment of the district court on appeal in Case No. 51,406 is reversed and that case is remanded to the district court with directions to set aside the appointment of Edward J. White as executor of the estate and to appoint an administrator C.T.A. for the estate.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a civil action from a judgment of the trial court ordering Roy L. Johnson (defendant-appellant) to account to Robert Blakesley (plaintiff-appellee), a minority stockholder, for the latter’s equitable share of the proceeds from the sale of corporate stock. The appellant raises several issues on appeal. Prior to trial the lower court granted a partial summary judgment, dismissing V. A. Lathem Water Service, Inc., as a defendant.
The trial court made 29 separate findings of fact and six conclusions of law. The factual findings are not challenged on appeal.
In August 1973, Blakesley began working as a truck driver for Johnson and V. A. Lathem Water Service, Inc.; within three weeks Blakesley assumed foreman duties. The business of V. A. Lathem Water Service, Inc., was the delivery and removal of large quantities of v/ater used in oil and gas exploration and production. The nature of the business required constant operation — 24 hours per day, seven days per week.
On April 1, 1974, after eight months’ employment, Blakesley entered into a stock purchase and employment contract with V. A. Lathem Water Service, Inc., and Johnson. Blakesley agreed to purchase 37 shares of the corporation’s unissued stock, and agreed to assume duties as manager of the business. Blakesley promised to pay $50,000 for the stock over a twelve-year period, with 6% interest per annum, in annual installments of $5,625. The corporation promised to hold the 37 shares of stock in escrow until paid in full; Blakesley was given the right to vote the 37 shares at stockholders meetings. Blakesley was appointed manager of the corporation by the same agreement. Blakesley and Johnson agreed to yearly salaries of $15,000 for Johnson and $13,000 for Blakesley. In addition, Blakesley was promised a bonus of 15% of the net profit each year, with a minimum bonus of $7,500 guaranteed. Finally, Blakesley and Johnson made a “buy and sell agreement,” which granted to each other the first option to purchase the corporate stock of the other and a second option to the corporation.
The trial court found the original contract between Blakesley and Johnson was prepared by Edwin Hooper, C.P.A., the corporation’s accountant. The trial court specifically found that the contract was prepared “at the insistence of both” Blakesley and Johnson. The agreement was discussed among the three men, and revised. The contract was not submitted to or reviewed by an attorney, despite Hooper’s suggestion that the parties consult an attorney for advice.
Johnson owned 110 shares of the 111 issued shares of stock; Johnson’s wife owned the single share. The corporate charter authorized issuance of 250 shares at $100 per share. After the sale to Blakesley, the total outstanding shares numbered 148.
A stockholders meeting was held on April 1, 1974. Blakesley, Roy Johnson and Betty Johnson elected themselves to the board of directors. Roy Johnson was elected president of the corporation, Blakesley was elected vice-president, and Betty Johnson was elected secretary-treasurer.
Blakesley attended all stockholder and board of directors meetings. At the March 27, 1975, stockholder and board of directors meeting, Edwin Hooper reported the corporation’s financial condition. Hooper, Blakesley and Johnson also discussed the salaries and management bonus. Sometime prior to August 1975 Blakesley conferred with Hooper about disposition of the corporate stock. Hooper advised Blakesley that his minority stock should sell for the same price per share as the majority stock.
As manager and stockholder of the corporation Blakesley knew the business demands, customers, equipment owned, and rates and volume of water supply. Blakesley’s wife was also employed by the corporation to prepare invoices and bill the customers.
The trial court made the following pertinent findings of fact in regard to the actual discussions about the sale of the corporate stock:
“8. During the month of July, 1975, Don H. Carpenter, while on vacation from his duties in the Ulysses area as field engineer for Amoco Production Company, called defendant Roy Johnson by long distance telephone from Oklahoma to inquire whether he would be willing to sell the business of V. A. Lathem Water Service, Inc. At this time Johnson indicated that he would be willing to sell and the conversation was concluded with the agreement that the two of them would discuss the matter at a later time.
“9. Upon Don H. Carpenter’s return from vacation, he went to the business office of V. A. Lathem Water Service, Inc. and conferred further with defendant Roy L. Johnson about the purchase of the business. At this time no firm agreement to purchase and sell was made by the parties and no purchase price was set. At a later time and place the parties again conferred and a base price of $370,000.00 subject to adjustments for certain assets and liabilities which were at that time undetermined but which the parties agreed would be ascertained and applied to the adjustment of such purchase price.
“18. During the forepart of August, 1975, plaintiff, Robert Blakesley and defendant, Roy Johnson had a conversation in the course of which plaintiff was advised that defendant intended to sell the business of V. A. Lathem Water Service, Inc. and that plaintiff had the first right to purchase the same if he desired. Shortly after this conversation plaintiff took his vacation and upon his return had another conversation with defendant, Roy L. Johnson, in which plaintiff inquired how much ‘down money’ defendant Johnson would require if plaintiff were to purchase the business. The defendant’s response was that he would have to have $80,000.00 to $90,000.00 which would be approximately 27% of the total purchase price. During this conversation defendant informed plaintiff that he would protect him in the matter if he did not wish to dispose of his stock and make arrangements for him to retain his employment as manager of the corporation. At this point plaintiff informed defendant that he wanted out, would not be Number Two man to anyone, and that he wanted his money back on the purchase of the 37 shares of stock. Following this conversation defendant negotiated his transactions with Don H. Carpenter, Willynda H. Carpenter and V. A. Lathem Water Service, Inc. to the conclusion heretofore recited.
“19. During his conversations with Don H. Carpenter, defendant informed him that plaintiff had the first right to purchase the business of V. A. Lathem Water Service, Inc. and, following defendant’s conversation with plaintiff, upon plaintiff’s return from vacation, Defendant told Don H. Carpenter that Plaintiff did not want the business and that the stock necessary for control would be available to the Carpenters for purchase.
“22. At no time material herein did Plaintiff make any inquiry as to the financial condition of V. A. Lathem Water Service, Inc., or the value of the common stock of such corporation. Defendant, Roy Johnson, made no representations concerning the value of such stock to the Plaintiff, was ready, able and willing to recognize Plaintiff’s right to purchase the business of V. A. Lathem Water Service, Inc. and told Plaintiff nothing about the affairs of the corporation or his sale transaction with the Carpenters that was untrue, but did not reveal to Plaintiff the sales price or share value in the sale of the business negotiated prior to the re-purchase.
“26. Plaintiff was aware of Roy L. Johnson’s intent to sell his stock in V. A. Lathem Water Service, Inc. from the forepart of August, 1975 up to and including the date of his resignation as manager, director and Vice President of V. A. Lathem Water Service, Inc. on September 30, 1975.
“29.....
“Defendant received $338,000.00 from the sale of the corporation which includes Plaintiff’s 37 shares. The Carpenters would purchase the corporation only if they received all the outstanding stock.”
On August 15,1975, Don Carpenter tendered his resignation to AMOCO Production Company. On September 1,1975, Carpenter and his wife became employees of the corporation. They were employed to familiarize themselves with the business prior to assumption of management and control on October 1, 1975.
On September 30, 1975, Blakesley signed an agreement for the corporation to repurchase his 37 shares of stock. Blakesley was then indebted to the corporation for $48,542.25, which was the remainder of the original purchase price for the 37 shares. The September 30 stock-purchase agreement forgave the unpaid balance, and provided for payment to Blakesley of an additional sum of $2,871.60. That sum represented a return of a principal payment on the stock made by Blakesley in March 1975. The same agreement recited Blakesley’s entitlement to one-half of his $13,000 yearly salary and one-half of the 15% management bonus. Blakesley executed an assignment of the 37 shares to the corporation on the same day, and tendered his resignation as the corporation’s manager, officer and director.
The next day, on October 1, 1975, Johnson, the corporation, and Don and Willynda Carpenter executed a stock-purchase agreement. Don Carpenter purchased from the corporation two newly issued shares of stock for $5,000. Willynda purchased from the corporation eighteen newly issued shares for $55,000. Don Carpenter purchased sixteen shares from Johnson for $50,000.
On October 15, 1975, Johnson and the corporation executed a “stock termination redemption agreement.” By this agreement the corporation redeemed Johnson’s remaining 94 shares for $288,000. When both the October 1 and October 15 agreements are considered together, the Carpenters obligated themselves to pay $398,000 for 130 shares of corporate stock. Johnson was to receive $338,000 of that sum.
The trial court rendered six conclusions of law, as follows:
“1. Defendant contends the stock sale agreement (Plaintiff’s Exhibit # 1) is void for want of mutuality in that no fixed period of employment was set forth as obligating the parties. The court finds at least the portion providing for sale of stock to the Plaintiff is not made contingent on any other factor and is a valid agreement between the parties.
“2. Defendant also contends that the provision for Plaintiff to assume responsibility as manager was breached by Plaintiff and that the agreement dated September 30, 1975, is a mutual rescission of the original agreement set forth above. While there was some evidence that Plaintiff was on occasion somewhat cantankerous or testy, there was no pattern of conduct to indicate a breach of his duties but rather conduct consistent with an employee on 24 hour call and duty seven days a week. Plaintiff signed the ‘agreement’ for sale of his shares as requested by Defendant but did not cash the check therefor or agree to the amount tendered. Hence, there was not a mutual rescission of the original agreement.
“3. Johnson, the majority and dominant stockholder in V. A. Lathem Water Services, Inc., occupied a fiduciary relationship to Blakesley as a minority stockholder (Delano v. Kitch, 542 F2d 550 [1976] Syl 3 and Syl 4).
“4. The burden of proof is upon the dominant stockholder in his fiduciary capacity to show affirmatively that the transaction was conducted in good faith and that there was a full disclosure of all material facts affecting the value of the corporate stock before any validity can attach to the sale. Where one director or officer of a corporation has a superior knowledge of corporate affairs because he is intimately involved in the daily financial operation of the corporation and the other director or officer has only a limited role in the routine operation of servicing the customers of the corporation, the fiduciary duty is the same as if the minority stockholder were not actively engaged in corporate affairs. (Sampson v. Hunt, 222 K 268, 271) (Stewart v. Harris 69 K 498, 77 Pac 277)
“5. Where knowledge of facts affecting the value of the price of stock comes to an officer, director and dominant stockholder by virtue of his ownership of said stock and his position in the company, he is under a fiduciary duty to disclose such facts to the other stockholder before dealing in company stock with minority stockholders including the fact that he had set a value on the sale of the company to an individual who required 100% thereof. (Sampson v. Hunt, 222 K 268, Syl 2)
“6. The purchase price of $338,000.00 divided by the 148 outstanding shares means each share sold for $2,283.78 and thus Plaintiff’s share of the sale would be $84,499.86. Thus, Defendant is obligated to Plaintiff in the sum of $34,499.86, plus interest from September 30, 1975.”
Judgment was entered for Blakesley against Johnson in the sum of $34,499.86 plus interest from September 30,1975, and for costs of this action.
Johnson duly filed a notice of appeal to the Kansas Court of Appeals. Pursuant to the authority granted in K.S.A. 1979 Supp. 20-3018(c) the case was transferred to the Supreme Court on April 13, 1979.
Johnson first contends the original contract with Blakesley was void for want of consideration and lack of mutuality. Johnson argues that the stock-purchase provisions were tied to the management employment provisions; that there was no duration specified for Blakesley’s employment; and that there was no remedy if Blakesley defaulted on the stock purchase. The trial court concluded the stock-purchase provision of the contract was not contingent on any other factor and was a valid separate agreement between the parties.
We agree with the trial court; the portion of the contract governing sale of stock was a valid 'agreement supported by consideration and mutual promises. Whether or not a contract is entire or divisible is a question of construction to be determined by the court according to the intention of the contracting parties as ascertained from the contract itself and upon a consideration of all the circumstances surrounding the making of it. Big Chief Sales Co., Inc. v. Lowe, 178 Kan. 33, 39, 283 P.2d 480 (1955); Sykes v. Perry, 162 Kan. 365, 369-70, 176 P.2d 579 (1947).
When Blakesley resold his stock to the corporation in September 1975 he resigned as manager the same day. However, that does not conclude the inquiry. No language in the contract expressly tied the employment provisions to the stock-purchase provisions. By its general character the contract dealt with two separate subjects: stock purchase and employment. There is no reason to conclude that Blakesley had to retain his stock to continue as manager, or that Blakesley was required to continue as manager as long as he was a shareholder. We are not required to determine whether the employment provisions were supported by consideration and mutuality of obligation. The trial court correctly determined the stock-purchase provisions were sever-able.
There was no want of consideration or lack of mutuality of obligation in the stock-purchase provisions. Both Blakesley and Johnson bound themselves to legally enforceable promises. Blakesley began to perform his obligations by making the first payment in March 1975. He exercised his shareholder rights by voting and participating at meetings. Johnson and the corporation duly performed their legal obligations by placing the stock in escrow, accepting payment, and recognizing Blakesley’s rights.
Johnson next contends the original agreement was mutually rescinded by the September 30, 1975, agreement. Blakesley’s statements that he wanted out, that he would not be second man, and that he wanted his money back on the purchase of the 37 shares are cited as proof of intent to rescind. The trial court ruled there was no rescission of the original agreement because Blakesley did not cash the check or agree to the amount tendered, although he did sign the September 30 agreement.
Rescission depends upon the intent of the parties as shown by their words, acts, or agreement. Parties to a contract may mutually rescind the transaction although neither party had a right to compel a rescission. Owens v. City of Bartlett, 215 Kan. 840, 844, 528 P.2d 1235 (1974); Peoples Finance Co. v. Burdg, 128 Kan. 390, 277 Pac. 796 (1929).
We are satisfied no rescission was intended or accomplished. The original agreement specifically provided for future stock transfers between shareholders and the corporation. The “buy and sell” procedures outlined in the original agreement were not followed by the parties. Johnson’s offer to sell to Blakesley was oral and not in writing or for the requisite period of time. However, Blakesley and Johnson were acting pursuant to the terms of the original agreement when the September 30, 1975, agreement was executed. They recognized the validity of the stock-purchase agreement. The original contract was three-sided, including Johnson, Blakesley and the corporation. The September 30 contract was between only Blakesley and the corporation, of which Johnson was the majority shareholder. The failure of Blakesley to cash the check is immaterial to the issue of rescission for the reasons hereafter stated.
Johnson contends he had no duty to inform Blakesley of the price Carpenter was willing to pay for the corporation stock. Johnson argues he had a legal right to negotiate and procure the redemption and sale of his majority stock independently of Blakesley’s minority stock interest. Johnson relies on Ritchie v. McGrath, 1 Kan. App. 2d 481, 571 P.2d 17 (1977). On oral argument, Johnson’s counsel further argued that if a duty existed to inform Blakesley of the price, then that duty was fulfilled by the information supplied. Blakesley was told that purchase would require $80,000-$90,000 down, which was about 27% of the total price. Johnson argues Blakesley could have used simple mathematics to calculate the total price — ranging from approximately $296,296 to $333,333; and the value on each of the 148 shares— ranging from approximately $2,002-$2,252. Blakesley was paying $1,351.35 per share under the original agreement.
The Court of Appeals decision in Ritchie v. McGrath, 1 Kan. App. 2d at 490, is distinguishable on its facts. There the court stated:
“This is not a case where an officer or director, with undisclosed knowledge of information affecting the value of stock, goes about buying up shares from minority shareholders, which he in turn sells at a profit. Here, the shares sold were already owned at the time of the offer to purchase, and those shares were not acquired from any of the plaintiffs.”
This is a case where an officer, director and majority shareholder, with undisclosed knowledge affecting the sale value of the stock, negotiated a purchase of shares from a minority shareholder, which he in turn sold for a profit. By effecting a corporate redemption of Blakesley’s 37 shares of stock, Johnson maneuvered himself in a position to sell all of the outstanding corporate stock to Carpenter, who made purchase of all stock a condition of his agreement to purchase at the price specified. The result in this case is controlled by our decisions in Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978), and Sampson v. Hunt, 222 Kan. 268, 564 P.2d 489 (1977).
In Sampson v. Hunt, 222 Kan. 268, Syl. ¶¶ 1, 2, we stated:
“Corporate directors and officers are under a very strict fiduciary duty in their relations both to the corporation and to its stockholders.”
“Where knowledge of facts affecting the value or price of stock comes to an officer or director of a corporation by virtue of his office or position, he is under a fiduciary duty to disclose such facts to other stockholders before dealing in company stock with them, even if they too are directors or officers, and regardless of whether these facts pertain to intracompany matters, such as the value of assets, or relate to events ‘outside’ the corporation, such as the existence of favorable contracts, the availability of additional financing, or any other matters which would tend to increase the value of the corporation’s stock.”
In Newton v. Hornblower, Inc., 224 Kan. 507, Syl. ¶¶ 8, 9, 10, we stated:
“Officers and directors of a corporation occupy a strict fiduciary relationship with respect to both the corporation and its shareholders. The same fiduciary standard applies as between directors.”
“Any unfair transaction undertaken by one in a fiduciary relationship may result in liability for unjust enrichment of the fiduciary. Where the fairness of a fiduciary transaction is challenged, the burden of proof is upon the fiduciary to prove by clear and satisfactory evidence that such transaction was fair and done in good faith.”
“Where the trial court found that corporate directors failed to meet the burden of proof in showing good faith and the fairness of certain questioned transactions, and where such finding is supported by competent evidence, the finding will not be disturbed on appeal.”
Applying the above rules to the facts of this case we must conclude that Johnson, as president, director, and majority shareholder of the corporation, committed a breach of his fiduciary duty to Blakesley, a director, manager, and minority shareholder. Johnson failed to disclose material information affecting the value of the corporate stock before the September 30, 1975, agreement was executed by Blakesley. While Blakesley could have calculated a price range to determine the value of the stock upon information Johnson provided in his offer to sell to Blakesley, it is undisputed that Johnson never disclosed the actual price to Blakesley that Johnson had negotiated with Carpenter. A condition of the sale to Carpenter at the negotiated price was delivery of all of the corporate stock. This fact was not disclosed by Johnson to Blakesley, and it was the fulfillment of this condition by Johnson in negotiating the sale that commanded the price Carpenter was willing to pay. Absent full disclosure by Johnson to Blakesley, on September 30, 1975, Blakesley’s shares were purchased by the corporation for approximately $1,389 each. On the facts in this case redemption of Blakesley’s shares of stock by the corporation was equivalent to a purchase of these shares by Johnson. The day after Blakesley’s shares were purchased by the corporation Don Carpenter purchased two shares from the corporation for $2,500 each; Willynda Carpenter purchased eighteen shares from the corporation for approximately $3,055 each; Don Carpenter purchased sixteen shares from Johnson for approximately $3,125 each.
The most decisive information withheld from Blakesley by Johnson was that the Carpenters would complete the purchase only if they received 100% of the corporate stock. Although Blakesley had access to general information concerning the value of the corporation’s stock, Johnson as the majority shareholder and as president of the corporation had superior knowledge regarding the transaction with the Carpenters. Under our case law Blakesley had a legal right on the facts in this case to rely upon Johnson to make a full disclosure.
The judgment of the lower court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action to rescind a contract for the purchase of real estate on the grounds of fraud and misrepresentation and to recover punitive damages. The defendants counter-sued to foreclose the purchase contract. The trial court rendered judgment for the plaintiffs. We affirm.
Carl and Cleo Nordstrom, plaintiffs, entered into a contract with John Lee and Marilee Miller, defendants, for the purchase of 480 acres of farm land located two miles west and ten miles north of Holcomb in Finney County. The land was described as follows: the Southeast Quarter (SE/4) of Section Three (3), the East Half (E/2) of Section Ten (10), all in Township Twenty-two (22) South, Range Thirty-four (34), West of the 6th P.M., Finney County, Kansas. The purchase price was $480,000.00. Defendants first offered their land for sale during February, 1975. They placed advertisements in the Garden City Telegram and The High Plains Journal, newspapers of wide circulation in the area. Both advertisements represented the land to be irrigated with 14,000 feet of underground pipe. Later, defendants listed the land for sale with Legere Real Estate & Auction Co., Inc. of Hays. Legere described the irrigation potential of the land in its brochure as follows:
“Cropland: There are 480 acres of good irrigated land. Out of this, there is approximately 130 acres of wheat, approximately 50 acres of alfalfa, approximately 50 acres of summer fallow. Going to plant 170 acres to milo and 50 acres to corn.
“Soil Type: This soil is a Richfield silt loam and Ulysses silt loam. Very deep, nearly level, upland soils with medium and moderately fine textured, surfaces and subsoils. These soils are well drained; permeability is moderate to moderately slow. They have few limitations that restrict their use.
“Irrigation: The well located in the Southeast Quarter (SE/4) of Section Three (3), the north well, is 120 ft. deep and pumps 800 G.P.M. This well was drilled in 1971. It has a Layne & Bowler pump on it. The south well located in the East Half (E/2) of Section Ten (10) is 130 ft. deep and pumps 1500 G.P.M. This well was drilled in 1969 and has a Hydro pump. All irrigation motors are on natural gas. One of these is a 428 Ford motor and one is a 262 Allis Chalmers. U.S. gear heads on both wells and the pumps are 8". High Plains Drilling and Supply of Garden City drilled both of the wells. There is 14000 feet of underground 10"PVC pipe. All of this is layed so as to connect both wells, if need be.
“All of the land is watered from the west side and the water runs to the east. Good slope to the land and it takes approximately 12 hours per run. A run is 120 ft. wide and V2 mile long.”
Its newspaper ad read as follows:
“480 acres of Prime Developed irrigated land located northwest of Garden City in Finney County, Kansas. Two irrigation wells and approximately 14,000 ft. of underground pipe. This land is flood irrigated and all runs are one-half mile long. New Brick 3 bedroom home, 2,000 square ft. with double car garage, also 50’ x 70’ Machine Shed, new.
POSSESSION: To be worked out between buyer and seller.
TERMS: Excellent on this Prime Irrigated Farm.
“THIS IS ONE THAT YOU HAVE TO SEE TO BELIEVE.”
Robert Legere, real estate broker with the company, contacted the plaintiffs and showed Carl Nordstrom the farm on November 23, 1975. Nordstrom, in the company of defendants, inspected the buildings, the land and the two irrigation wells. Plaintiffs again viewed the farm on December 15, 1975 with their family, and paid Legere a $15,000.00 downpayment on the land. Thereafter, plaintiffs sold their home and store in Colorado and moved their belongings and a few pieces of farm machinery to the Millers’ farm. The transaction was closed on March 2, 1976, by the signing of a formal contract and the payment of an additional $75,000.00.
Plaintiff purchased necessary farm machinery and some gated pipe for use in the irrigation operations on the farm. On March 7, 1976, defendant assisted plaintiff in starting the two pump engines to commence irrigating the land. During the spring of 1976, Nordstrom watered 120 acres of wheat, 50 acres of alfalfa on three different occasions, pre-irrigated 200 acres of milo, and on two later occasions irrigated the growing milo. Nordstrom harvested 6,000 bushels of milo, 5,640 bushels of wheat and 100 tons of alfalfa hay from the farm during 1976.
During the second application of irrigation water to the milo in the summer of 1976, one of the two irrigation wells went dry. Upon further investigation, Nordstrom found there was insufficient available water to supply either well and the farm could no longer be operated as an irrigated farm due to geological limitations, which will be discussed later in this opinion.
Plaintiffs confronted defendants with this information and demanded rescission of the contract and the return of their money. Defendants offered to drill another well at no cost to plaintiffs, change the structure of payments under the purchase contract and defer the next payment due thereunder. The offer was refused and on August 12, 1976, plaintiffs instituted this action for rescission and damages for misrepresentation and fraud against the Millers and Robert Legere and Legere Auction & Real Estate. The trial court granted a motion for summary judgment as to Legere and the case was tried to the court November 9- 11, 1977. The court rendered its decision for plaintiffs on April 12, 1978, and ordered rescission of the contract, awarding the plaintiffs $90,000.00 with interest at the statutory rate to accrue as of the date of the order. The request for punitive damages was denied. The Millers appeal. The Nordstroms cross-appeal against the trial court’s actions in sustaining the motion for summary judgment on behalf of Legere and Legere Real Estate & Auction Co., Inc. and in overruling the plaintiffs’ request for punitive damages.
We will first consider the cross-appeal against Legere Real Estate & Auction Co., Inc. and Robert Legere. Plaintiffs claim Legere fraudulently conspired with Miller to sell the land as irrigated land when in truth it was dry land, incapable of natural irrigation. They claim Legere flatly stated the irrigation water would last a hundred years. They also point out the land was advertised for sale as irrigated land. They claim they were induced to make the purchase by the false and fraudulent representations of Legere and they should be awarded rescission and damages against him. The defendants Legere Real Estate & Auction Co., Inc. and Robert Legere contend all representations concerning the real estate were provided by Miller to Rodney Einsel, a Legere employee. Robert Legere states he used that information in his presentation to Nordstrom and believed it to be true, having no personal knowledge of his own.
The relationship between a principal and a real estate broker is essentially that of agency. Henderson v. Hassur, 225 Kan. 678, 683, 594 P.2d 650 (1979); Marcotte Realty & Auction, Inc. v. Schumacher, 225 Kan. 193, 589 P.2d 570 (1979); 12 Am. Jur. 2d, Brokers §§ 83, 101, pp. 835, 851. We have held that in order for an agent to be liable for fraud there must be a fraudulent intent to deceive. In Hussey v. Michael, 91 Kan. 542, 138 Pac. 596 (1914), we stated:
“Where the owner of land, by misrepresentation as to its character, effects a sale, agents who have acted for him in the matter are not rendered personally liable to the buyer for the fraud, merely by reason of their having innocently and in good faith repeated to him the false statements concerning the property made to them by the seller.” Syl. ¶ 1.
“ ‘If . . . the agent makes false representations on behalf of his principal honestly believing them to be true, the mental element of fraud is lacking and he is not guilty of fraud and not liable for such, although his principal may have known that such representations were false. In order that an agent may be held liable for fraud there must be some fraudulent intent to deceive, in the circumstances of the particular case.’ ” p. 543.
See Langston v. Hoyt, 108 Kan. 245, 249, 194 Pac. 654 (1921).
The question of Legere’s liability for fraudulent misrepresentation arises on his motion for summary judgment. Legere admits he represented to Nordstrom the irrigation wells were good and would last a long time, but claims he was merely reflecting information furnished by Miller. Legere relies on his own deposition and those of John Lee Miller, Marilee Miller, Cleo Nordstrom, Carl Nordstrom, Richard Bennett, Lawrence Jonagan, Ronald Werner and Albert Savalt. After plaintiffs advised the trial court discovery had been completed, the court reviewed the depositions and found no issue of fact remained as to Legere and granted summary judgment.
We have held that summary judgment is authorized if the pleadings, depositions, answers to interrogatories and affidavits, if any, show no genuine issue of material fact remains and a party is entitled to judgment as a matter of law. Fredricks v. Foltz, 225 Kan. 663, 666, 594 P.2d 665 (1979). We have also held a party cannot escape summary judgment, if otherwise proper, on the hope further discovery might reveal evidence favorable to his case after he has reported discovery completed. Johnston v. Farmers Alliance Mutual. Ins. Co., 218 Kan. 543, 545 P.2d 312 (1976); Cherry v. Vanlahi, Inc., 216 Kan. 195, 531 P.2d 66 (1975); Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 490 P.2d 615 (1971); In Fredricks v. Foltz, 225 Kan. at 666, we stated:
“An appellate court should read the record in the light most favorable to the party who defended against the motion for summary judgment. It should take such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.”
An examination of the depositions reveals no issue of material fact remaining as to Legere. All representations made by Legere to Nordstrom were made innocently and in good faith and there fore do not amount to fraud. The trial court did not err in granting summary judgment as to Legere and Legere Real Estate & Auction Co., Inc.
The remaining issue is whether plaintiffs sustained the burden of proving fraudulent misrepresentation by the Millers. Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury and damage. See Loucks v. McCormick, 198 Kan. 351, 424 P.2d 555 (1967); Shirk v. Shirk, 186 Kan. 32, 348 P.2d 840 (1960); Ware v. State Farm Mutual Automobile Ins. Co., 181 Kan. 291, 311 P.2d 316 (1957); McGuire v. Gunn, 133 Kan. 422, 300 Pac. 654 (1931); Shriver v. National Bank, et al., 117 Kan. 638, 232 Pac. 1062 (1925); Miles v. Love, 1 Kan. App. 2d 630, 573 P.2d 622 (1977); Kiser v. Gilmore, 2 Kan. App. 2d 683, 587 P.2d 911 (1978); Goff v. American Savings Association, 1 Kan. App. 2d 75, 561 P.2d 897 (1977); 37 Am. Jur. 2d, Fraud and Deceit § 12.
We have held fraud is never presumed and must be proven by clear and convincing evidence. Gonzalez v. Allstate Ins. Co., 217 Kan. 262, Syl. ¶ 1, 535 P.2d 919 (1975); Fox v. Wilson, 211 Kan. 563, 507 P.2d 252 (1973). The term “clear and convincing evidence” means:
“[T]he witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue.” Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979).
Gonzalez v. Allstate Ins. Co., 217 Kan. 262, Syl. ¶ 2; In re Estate of Shirk, 194 Kan. 424, Syl. ¶ 2, 399 P.2d 850, rehearing denied 194 Kan. 671, 401 P.2d 279 (1965).
“The existence of fraud is ordinarily a question of fact.” An appellate court’s review “is limited to determining whether the trial court’s finding is supported by competent evidence when that evidence is weighed in a manner most favorable to supporting the trial court’s determination.” Miles v. Love, 1 Kan. App. 2d at 631; 37 Am. Jur. 2d, Fraud and Deceit § 487. This court is
“not concerned with the credibility of witnesses of tin- weight of their testimony, and the trier of facts, not the court of appellate review, has the responsibility of determining what testimony should be believed.” Loucks v. McCormick, 198 Kan. at 358.
The evidence in this case reveals Miller advertised his land for sale as irrigated land through advertisements of his own and those of his agent for which he is responsible as principal. He obtained the going price for irrigated land - $1,000.00 per acre. Evidence showed dry land was worth around $450.00 - $500.00 per acre. Unrefuted evidence showed the irrigation wells both failed within six months of the effective date of the contract. The record also reveals there remained no sufficient recoverable irrigation water under the Miller land to operate it as an irrigated farm.
Turning now to the final elements needed to establish fraud, we are called upon to determine whether Miller knew the representations he made were false. If not, were the statements made with a reckless disregard for the truth?
There can be no doubt Miller knew his wells were producing from the Niobrara Formation, a limestone deposit known as a chalk aquifer. This formation lays below the Ogallala sand, the aquifer for much of the irrigation water in Colorado, Nebraska, Kansas, Oklahoma and Texas. The Niobrara has no porosity but where it erodes, it is capable of trapping water in cracks and crevices from perculation through a thin layer of Ogallala sand and gravel. If a driller is lucky he can sometimes tap a crack reservoir and obtain production in paying quantities until the deposit is depleted. Since there is no significant recharge and the supply is a subterranean pond, the small ponds, known as “crack wells,” usually are short-lived and deplete without warning. This condition exists north of Holcomb where the Miller land is located. There are about 45 irrigation wells in Finney County producing from the Niobrara, most of them short-lived.
John Lee Miller drilled the south well in 1969 and the north well in 1971. Similar wells were going dry in the area. He knew his irrigated farm would be a dry land farm soon. Nonetheless, he advertised the land as an irrigated farm with two wells, pumping 2300 gallons per minute. He later admitted that figure did not represent the current gallonage being produced. The gallonage had decreased by the time the advertisements appeared. There is substantial, competent evidence to show he told Nordstrom the water production was from the Ogallala aquifer, when the source of the water supply was actually the Niobrara.
Defendants next argue even if their representations were untrue, plaintiffs negligently failed to make inquiry about the nature and condition of the irrigation wells and are, therefore, stuck with their bargain. They argue they asked Nordstrom to check the production of both wells with Lloyd Harkness, who drilled the wells. They also argue Carl Nordstrom is a knowledgeable buyer, having had farming and irrigation experience, and he could not rely on Miller’s representations.
These arguments are without merit. The evidence is clear, convincing and uncontroverted that Nordstrom had had no experience with irrigation, except one year’s work with water which was obtained from a surface reservoir and connecting ditch. Such is not comparable with the facts in the instant case. A subterranean water resource is a complicated geological study about which even the experts know too little. It could not be expected that one with no experience or education on the subject would anticipate or even recognize a problem. In Wolf v. Brungardt, 215 Kan. 272, 524 P.2d 726 (1974), we stated:
“Many years ago this court said the modern tendency is to restrict rather than extend the immunity of one who gains an advantage over another by purposely misleading him. [Citation omitted.]
“In Speed v. Hollingsworth, 54 Kan. 436, 440, 38 Pac. 496, the court said:
‘The trend of the decisions of the courts of this and other states is towards the just doctrine, that where a contract is induced by false representations as to material existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the deceit, that the party to whom the representations were made might, with due diligence, have discovered their falsity, and that he made no searching inquiry into facts . . .
“Where one party to a contract or transaction has superior knowledge, or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud, especially when the other party relies upon him to communicate to him the true state of facts to enable him to judge of the expedience of the bargain. [Citations omitted.]
“Many decisions of this court hold the law does not deprive a defrauded party of relief because he had opportunity to investigate when his lack of knowledge was such that the investigation would disclose nothing to him. [Citations omitted.]” p. 282.
The trial court found:
“The Nordstroms came from a long ways away. They were strangers in this area. They certainly had no knowledge of the existence of this most unique water production system called crack wells or production from the niabrara limestone. They have testified that they were told by Mr. Legere that this production was from the Ogallala. I asked him a question about Ogallala and he indicated to me he knew something about Ogallala. They have also testified that he told them that they had water for 100 years. They testified that Mr. Miller told them there were no worries about water; there was good water, no problems, no dry wells around, that there was no drop in the water table. The drop in the water table is not too awfully important when it comes to the crack wells anyhow. I have to determine what the truth of this matter is.
“We get down to the basic fact, if the Nordstroms under these circumstances asked either Miller or his agent, Legere, as to this water supply and how long it would last. If they asked those questions they were entitled to receive straight answers, and under all the circumstances I cannot believe that a man with some irrigation farming experience in an area a long ways away, who was putting everything he had, his lifetime’s savings, into this kind of a venture, where everything was determined by whether or not those wells kept producing, a man with a farm background, I cannot believe that he did not ask, and I am going to find that he did ask and that he was told that there was ample water, there was water at least until his children were grown, that there were no dry wells around, that there was good water, no problems, that he had no worries about water. I am going to find that these statements told him were material representations, that they were false representations known to be false and that he relied on them, and that he had the right to rely on them, and that he is entitled to relief.”
We are in complete agreement with these findings and, after examining the entire record, find there is substantial, competent evidence to support the trial court’s conclusion that Miller knowingly and fraudulently misrepresented facts, upon which the plaintiffs had a right to rely and did rely, to their detriment.
Defendants next argue plaintiffs are estopped to rescind because they remained in possession of the land after the suit for rescission was instituted. The applicable rule of law is expressed in Cleaves v. Thompson, 122 Kan. 43, 46, 251 Pac. 429 (1926), where we stated:
“Rescission is an equitable remedy designed to afford relief from contracts entered into through mistake, fraud or duress. Ordinarily, the nature of relief asked in such cases must be such as to place the parties in their original situation. Where one with knowledge of facts entitling him to rescission of the contract, afterwards without duress ratifies it, he is not entitled to have it cancelled. Ordinarily an express ratification is not necessary in order to defeat the remedy of rescission. Acts or conduct, inconsistent with an intention to avoid it, or in recognition of the contract, have the effect of an election to affirm it.”
See Garrison v. Berryman, 225 Kan. 644, 646, 594 P.2d 159 (1979); Dreiling v. Home State Life Ins. Co., 213 Kan. 137, Syl. ¶¶ 4-6, 515 P.2d 757 (1973). In Beneke v. Bankers Mortgage Co., 119 Kan. 105, 107, 237 Pac. 932 (1925), we stated:
“A person fraudulently induced to buy and pay for property delivered to him has two remedies, one legal and one equitable. He may affirm the contract and sue for damages, or he may disaffirm and sue for rescission .... Because the remedy by way of damages rests on affirmance, and the remedy by way of rescission rests on disaffirmance, the two are inconsistent and incompatible. Resort to one excludes resort to the other, and in choosing a remedy it is the first decisive step which counts.”
The acts of the Nordstroms from the moment they discovered they had been misled are consistent with rescission and restoration to the status quo. Their continued possession of the real estate was dictated by the circumstances. They had sold their former home as the result of the fraud which induced the contract. Therefore, they had no place to go. While laboring under the mistaken belief they had purchased an irrigated farm, plaintiffs harvested the growing wheat, cut the hay, and planted milo. To say they must walk away from the farm and permit the growing crops to deteriorate, is a tortured, irrational interpretation of the rule. They had the duty to do equity, which in this case, involved preventing waste. This they did commendably and they should not suffer or be punished for their actions. We do not find acts or conduct on the part of plaintiffs that will defeat the remedy of rescission. Plaintiff’s demeanor was proper under the circumstances and estoppel will not lie.
The trial court then ruled as follows on the question of damages:
“Now with regard to the things that are necessary to restore these parties to their former position under the rescission that’s in effect here, we have just concluded a long pretrial conference and, as I understand it, the parties are willing to stipulate and agree that there has been evidence admitted in this case and evidence conceded in the informal pretrial conference which would be sufficient, if the Court believed it, for the Court to arrive at a position that when all of the compensating factors are weighed back and forth, that is, the possession, the farm crops, the time spent, the losses incurred, the use of the land on the other side, the value of the three quarters of land and everything, that they would be in balance. Are the parties able to so stipulate?
“MR. BRAUN: The plaintiff is, your Honor.
“THE COURT: Defendant?
“MR. CALIHAN: The Defendant is, your Honor.
“THE COURT: Well, for the record, first, upon the proposition of punitive damages, I think that as a matter of law punitive damages could be awarded in this case, but when I consider all of the circumstances I do not believe that they should be. Therefore, I am not going to award any punitive damages.
“I have looked over all this evidence and I have heard the stipulations of the parties and I am convinced that when all of the factors are balanced on both sides that the retention of possession as against the use and value of the land and such, that it comes out even, and I am going to hold that the parties can be restored to their previous position by simple rescission based upon the repayment of the $90,000.00. I am going to give judgment for the $90,000.00 as of today, with interest at the rate of 8%. Now the judgment actually will not be entered until the journal entry is filed, but the 8% will start as of today. . . .
“I am going to order that the court costs be paid by the defendants, and that’s going to include the appraisers’ fees and Mr. Wallace’s fees.”
It is apparent from the record that the parties stipulated plaintiffs’ 1976 and 1977 farm income resulting from their possession under the contract is to be treated as liquidated damages in lieu of interest or other damages in the event of rescission. We will not disturb their stipulation and the trial court’s judgment is affirmed.
As to the question of punitive damages:
“[Punitive damages] are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. [Citations omitted.] Such damages are allowed not because of any special merit in the injured party’s ease, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. [Citations omitted.]” Newton v. Hornblower, Inc., 224 Kan. 506, 525, 582 P.2d 1136 (1978).
Sanders v. Park Towne, Ltd., 2 Kan. App. 2d 313, 318-319, 578 P.2d 1131, rev. denied 225 Kan. 845 (1978). See Modem Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70; Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979). Punitive damages are not an automatic, mandatory result even when recklessness is shown, but are awarded in the discretion of the trial court. See Garcia v. Southwestern Bell Tel. Co., 216 Kan. 591, 533 P.2d 1242 (1975). As the trial court stated, this is a case where punitive damages could legally be awarded because of the independent tort of fraud but the court refused to make the award. We have examined the record and the facts of this case, and we find the trial court acted properly in denying the request for punitive damages.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is an action for compensatory and punitive damages arising out of the deduction of wages by defendant Kent-Brown Chevrolet from the check of its employee, plaintiff Gerald R. Temmen. The wages, which were deducted without written authorization required pursuant to K.S.A. 44-319(a)(3), were withheld to cover the cost of repairing plaintiff’s car.
This action was originally begun in September, 1973. The trial ended in a summary judgment, which was appealed to this court. Temmen v. Kent-Brown Chevrolet Co., 217 Kan. 223, 535 P.2d 873 (1975). A second action was filed, a mistrial declared and a jury trial completed.
The facts, as disclosed by a voluminous record, reveal the following: In April, 1969, Charles Frisbie purchased a new 1969 Chevrolet Camaro from Van-T Chevrolet Co. The manufacturer’s new car warranty was issued to Frisbie at the time of purchase by the delivery of a Protect-O-Plate card in his name. To obtain repairs under warranty, the card is presented to an authorized dealer for imprinting on the work order. Frisbie traded the Camaro to Kent-Brown Chevrolet Co., Van-T’s successor, in July, 1972. Thereafter, in August, 1972, Gerald R. Temmen and his father, Joseph R. Temmen, purchased the car from Kent-Brown. Both plaintiff Gerald Temmen and his father were employees of Kent-Brown. Gerald worked as a body fender repairman and his father was employed as a salesman. At the time of purchase, the Camaro had been driven about 24,000 miles and was under the balance of a 50,000 mile warranty covering certain specified parts.
Both Gerald and his father were given instructions on how to obtain the benefits of the unexpired warranty covering the car. A second purchaser of the car is required to apply to his dealer for a Protect-O-Plate within thirty (30) days or 1,000 miles following purchase and pay a $25.00 fee to the dealer. Neither plaintiff nor his father complied with the warranty requirements. Instead, plaintiff obtained the Protect-O-Plate of the previous owner, Frisbie, and used it to replace the water pump at no cost to him on December 8,1972. There was evidence this practice had occurred on other occasions.
The crucial date to this lawsuit is July 16, 1973, when plaintiff again brought the Camaro to Kent-Brown’s shop for repair work to the rear wheel bearings. The vehicle had 42,000 miles on it at the time and the Protect-O-Plate had not been transferred. Plaintiff inquired if the warranty applied to such a problem and was assured by two employees that it was covered. The work order was prepared with the notation “under warranty.” The repair work was ordered after a conversation with Larry Shuckman, service manager, who observed that the Frisbie Protect-O-Plate had never been transferred. Shuckman told plaintiff the vehicle was no longer under warranty because the time and mileage for transfer had passed. Shuckman marked through the “under warranty” notation on the work order and wrote “no warranty.” The car was repaired at a cost of $112.85. After plaintiff took possession of the car without paying the bill, Shuckman wrote on the work order “take out of next week’s check.” Shuckman contends the action was authorized. Plaintiff denies he gave permission for the withdrawal. The evidence is undisputed there was no written authorization to deduct the amount from plaintiff’s paycheck.
Temmen’s petition fails to articulate a precise theory but adopts a scattergun-type pleading, apparently hoping to hit some target without taking specific aim.
The petition alleges:
“[T]hat on or about August 1, 1973, plaintiff delivered his 1969 model Camaro automobile, which was at that time under full factory warranty (having only 42,000 miles thereon), to the defendant Kent-Brown for necessary repairs to the rear end thereof; that defendant Kent-Brown was advised by plaintiff at that time that unless said repairs would be made by said defendant under and pursuant to the terms of the said factory warranty, plaintiff would not leave his said vehicle with said defendant for the making of said repairs; that plaintiff was advised at that time by said defendant that said repairs would be made at no cost to him, all pursuant to and in accordance with said factory warranty; that a fiduciary relationship existed between plaintiff and defendant Kent-Brown; that defendant Kent-Brown had in its possession funds due to plaintiff at said time and thereafter; that plaintiff relied upon said representations of said defendant relative to said repairs being made under warranty and at no cost to him; and in reliance upon said representations he did leave his said 1969 Camaro vehicle with said defendant for the installation of new bearings in the rear end and other work thereon to be performed under and pursuant to said factory warranty; that said representations were in fact false and known by said defendant at said time to be false, and were made to this plaintiff for the purpose of inducing this plaintiff to rely upon said representations and in reliance thereon to act thereon; that when said repairs were duly completed by said defendant the said vehicle was returned to plaintiff without a further word; that approximately two weeks later when plaintiff received his payroll check for work and services regularly done and performed on the behalf of said defendant in the course of his regular employment, approxi mately $112.00 was deducted therefrom; that when plaintiff inquired as to the reason for said deduction, plaintiff was advised that said deduction was made from his wages as and for payment to said defendant for said repairs upon said vehicle, all in outrageous and oppressive and fraudulent violation of the said agreement between this plaintiff and said defendant relative to said repairs.
III.
“That in the doing of these things, all as aforesaid, these defendants have conducted themselves in bad faith toward one who was in a fiduciary relationship with them; and further, defendants, being under the circumstances herein in a vastly superior bargaining position vis-a-vis, plaintiff, have been guilty of overreaching and oppression; further, defendants herein have committed the tort of fraudulent misrepresentation toward and to plaintiff; and further, defendants, in the doing of these things, have made out the separate tort of outrage.”
No pretrial order was filed although the record indicates a rather informal pretrial conference was held. In response to a pretrial questionnaire, plaintiff alleged:
“5. Theory of your claim, if any: A fiduciary relationship existed between plaintiff and defendant Kent-Brown. Defendant had in its possession funds due to plaintiff. Plaintiff relied upon representations made by defendant relative to repairs being made under warranty and at no cost to plaintiff. The representations were false and were made to induce the plaintiff to rely upon them. Defendant committed the torts of fraudulent misrepresentation and of outrage. Plaintiff has suffered indignity, embarrassment, inconvenience, mental and emotional pain and distress. The elements of fraud, oppression, over reaching, bad faith, outrage and unjust enrichment are involved.”
Plaintiff requested a verdict of $10,112.85 compensatory damages and $100,000.00 punitive damages.
On the theory, inarticulate as it is, of the petition and pretrial questionnaire the case went to trial January 17, 1978. During plaintiff’s case in chief, the trial court was asked to take judicial notice of K.S.A. 44-319, which became effective July 1, 1973, fifteen days before the repair work was ordered to be done on plaintiff’s car. At the end of plaintiff’s case, the defendant moved for a directed verdict and the trial court made its order as follows:
“The Court did sustain the motion concerning the count of outrage, and the record shows the reason why the Court sustained that motion.
“On the matter of fraud, the record also shows the concerns this Court had concerning the elements under P.I.K. And the Court made some references to the elements as to whether there was sufficient evidence to enable it to go to the jury on the theory of fraud. The Court is satisfied that the elements of fraud have not been proven in this case.”
After directing a verdict for the defendant on the theories of fraud and outrage, the trial court permitted plaintiff to amend his pleadings by substituting conversion for fraud and outrage. The court directed a verdict against the defendant for $112.85 as compensatory damages for converting the amount of the repair bill from plaintiff’s check and submitted the question of punitive damages to the jury. The jury awarded plaintiff a verdict in the amount of $20,000.00, which the trial court set aside for lack of evidence on defendant’s motion for judgment notwithstanding the verdict. Plaintiff appealed to the Court of Appeals, which found sufficient evidence to support a punitive damage award, but reduced the amount to $5,000.00. Plaintiff was given ten days to accept the remittitur. If he declined to accept the reduced amount the defendant was granted a new trial on the issue of punitive damages. Plaintiff petitioned this court for review of the Court of Appeals decision.
Before discussing the main issues on appeal, we must resolve a procedural matter raised by the Court of Appeals opinion. In that opinion, the court states:
“The propriety of recovery of actual damages for conversion founded upon violation of K.S.A. 44-319 is not before us. That such an action lies has become the law of this case since defendant has not appealed the point.”
We disagree with the Court of Appeals assessment of this issue. At trial, defense counsel vigorously objected on the basis of “surprise” to the action of the trial court in allowing plaintiff to amend his pleadings to state a claim based upon conversion. In its brief to the Court of Appeals, defendant alleged the trial court erred in allowing the conversion theory based upon a violation of K.S.A. 44-319(a)(3). In addition, defendant specifically argued punitive damages were not justified under the above mentioned theory. Although defendant did not specifically argue the actual damage issue, we find the question was adequately covered by the objection at trial and the argument contained in defendant’s brief.
Turning now to the main points on appeal, we find there are two troublesome questions in this case. The first is the action of the trial court in permitting plaintiff, after resting his case, to amend his pleadings pursuant to K.S.A. 60-215(h) to state a claim for relief for conversion. There can be no argument a trial court has wide discretion in allowing amendments to pleadings to permit them to conform to the evidence. Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 522 P.2d 438 (1974); Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 484 P.2d 38 (1971). In this case, however, the amendment to the pleadings does not conform to the evidence presented at trial. The evidence shows Kent-Brown withheld $112.85 from its employee’s wages without written authority. That action does not constitute the tort of conversion.
It has been uniformly held that conversion is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another. Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 552 P.2d 917 (1976); Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, 527 P.2d 1059 (1974); Watkins v. Layton, 182 Kan. 702, 324 P.2d 130 (1958). We note also that:
“An action will not lie for conversion of a mere debt or chose in action. Hence, where there is no obligation to return identical money, but only a relationship of debtor and creditor, an action for conversion of the funds representing the indebtedness will not lie against the debtor.” 18 Am. Jur. 2d, Conversion § 10.
See Baker, Administrator v. Brial, 185 Kan. 322, 341 P.2d 987 (1959); Free v. Elberson et al., 157 Mont. 424, 486 P.2d 857 (1971); 89 C.J.S., Trover & Conversion § 23; Prosser, Cases and Materials on Torts, pp. 95-96 (6th ed. 1976).
An employer’s withholding of an employee’s wages without written authorization pursuant to K.S.A. 44-319(a)(3) constitutes a breach of the employment contract. The defendant is liable for damages for that breach and could be charged with a class C misdemeanor, pursuant to K.S.A. 44-323. With respect to the existence of a private remedy by the employee for a violation of K.S.A. 44-319(a)(3), we note counsel for amicus points out a statement in Head v. Knopp, 225 Kan. 45, 46, 587 P.2d 867 (1978), wherein we stated: “K.S.A. 44-319 does not provide a basis for a cause of action . . . .” Amicus suggests that statement establishes actual damages are not recoverable for a violation of K.S.A. 44-319(a)(3). We hold the above mentioned statement is dicta and was not a part of the issue before the court in Head v. Knopp. We find a remedy does exist for an employee whose wages are improperly withheld.
The trial court’s action in permitting plaintiff to amend his pleading to allege conversion was improper in this case because the amendment did not conform to the evidence and was therefore impermissible under K.S.A. 60-215(&). The only permissible amendment would have been to allege breach of contract and the resulting damages.
The second issue in this case deals with the recovery of punitive damages for a breach of this kind. We have long adhered to the rule that damages for breach of contract are limited to pecuniary losses sustained, and exemplary or punitive damages are not recoverable in the absence of an independent tort. Dold v. Sherow, 220 Kan. 350, 355, 552 P.2d 945 (1976). Proper allegations of fraud, malice, gross negligence, oppression or wanton disregard of plaintiff’s rights are needed in order to recover punitive damages. For an excellent discussion of the law of punitive damages see Cantrell v. R. D. Werner Co., 226 Kan. 681, 602 P.2d 1326 (1979). It would be wise to note with respect to the recovery of punitive and compensatory damages for an injury as a result of an act which is also punishable under a criminal statute, we adhere to the following:
“While it has been stated that the violation of a criminal law, which results in any actual damage to a person, is a sufficient foundation for punitive damages, in general the fact that an act for which a recovery of damages is sought is punishable criminally will not alone authorize a recovery of exemplary damages, nor, according to the more generally accepted rule, will such fact bar a recovery of such damages.” 25 C.J.S., Damages § 122.
See also Chasteen v. Childers, 218 Kan. 519, 528, 546 P.2d 935 (1976).
Turning to the facts in the present case, we find they do not warrant the recovery of punitive damages. The trial court found there was insufficient evidence to support the claims of fraud and outrage. Specifically, with respect to the claim of fraud, the trial court found there was no evidence Kent-Brown tried to deceive plaintiff. The record indicates at the time the work order was originally prepared, all of the parties believed the work would be done under warranty. We note also that the statute in question, K.S.A. 44-319, had been in effect only fifteen days prior to the date the repair order was made on the car. There is no question Kent-Brown’s action was contrary to the law; however, viewing the record in its entirety, we do not find facts indicating fraud, malice or wanton behavior on the part of defendant. The absence of such acts constituting an independent tort bars the recovery of punitive damages.
We affirm the result reached by the trial court and remand with directions to amend plaintiff’s pleadings to allege breach of contract and to direct a verdict to him for $112.85. The trial court costs are assessed against the defendant and the costs of the appeal assessed against the plaintiff.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by defendant Clay C. Ward from a jury conviction of aggravated robbery (K.S.A. 21-3427) from the district court of Sedgwick County.
The facts are not in issue. On July 19, 1978, defendant and a companion, Glenn H. Haley, accompanied by his wife, Jean Haley, were driven to Consumer’s Pharmacy at 1035 North Emporia, Wichita, by Steven A. Morgan. Another man, Michael Harris, was also involved in the planning of the robbery but did not participate in the actual event. Upon arriving at the pharmacy, Morgan parked the car on a lot adjacent to the store. Haley went inside and asked the pharmacist to recommend some vitamins. He then left and returned with the defendant. Ward announced “this is a robbery” and said he had a gun which would “go off.” He used a .410 pistol which he held on the pharmacists and demanded the following drugs: Dilaudid, Demerol, Quaalude and Preludin. In addition to the pharmacists, two other employees were present during the robbery. Ward and Haley stuck the pills in their pockets and ran. Wichita police detectives were in the process of a stake-out at Haley’s residence, 855 South Broadway when they received the word to apprehend the suspects. Within an hour, all of the participants were arrested and returned to the pharmacy for identification.
All three men were charged with aggravated robbery on July 20.1978. Haley and Morgan subsequently testified for the State at trial and their charges were reduced. Ward was convicted and the court found he used a firearm in the commission of the crime, contrary to K.S.A. 1978 Supp. 21-4618. Ward was sentenced to serve not less than ten years to life pursuant to K.S.A. 21-3427 and K.S.A. 21-4501(h).
The defendant was declared indigent and Robert Mitchell was appointed to represent him. On September 6, 1978, a preliminary hearing was held after which the defendant was bound over for trial. Defendant was arraigned on September 20,1978. Thereafter on October 5, 1978, Ward filed notice of his defense of insanity and requested a psychiatric examination. The trial court failed to respond to the motion, but on October 20,1978, ordered testing to determine defendant’s competency to stand trial. On November 30.1978, the court determined Ward was competent to stand trial and at the same time allowed Robert Mitchell to withdraw as defendant’s attorney. Edward Hund was appointed as replacement counsel and the case was scheduled for trial on December 11, 1978.
On December 11, 1978, defendant’s attorney, Hund, obtained a continuance to December 26, 1978, in order to acquaint himself with the case. On December 26, 1978, the court continued the case to January 8, 1979, on its own motion. Hund was allowed to withdraw from the case on December 29, 1978, and Dan Garrity was appointed as defendant’s attorney. Each time his attorneys requested leave to withdraw, Ward filed pro se motions objecting to the withdrawal. Thereafter, defendant’s attorney, Garrity, re quested and obtained consecutive continuances of two weeks each on January 8, January 22, February 5, February 20 and March 5, 1979. The defendant objected to most of the continuances in spite of his attorney having made the request. There was evidence the last three continuances were for the purpose of obtaining a psychiatric examination and report in support of the insanity plea, previously filed. Finally, the trial was commenced on March 19, 1979, approximately 180 days after arraignment, during which time Ward had been held in jail, unable to make bond.
The defendant contends he was denied his statutory right to a speedy trial under K.S.A. 1979 Supp. 22-3402(1) and his constitutional right to a speedy trial guaranteed under the Sixth Amendment to the U.S. Constitution and Section 10 of the Bill of Rights of the Kansas Constitution.
K.S.A. 1979 Supp. 22-3402 provides:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall 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 under subsection (3).
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall 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 under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
(a) The defendant is incompetent to stand trial;
(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section;
(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date;
(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.
“(4) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.”
Ward acknowledges all but the December 26th continuance were requested by his attorneys but he argues the time his first two attorneys spent familiarizing themselves with the case, the time spent after they withdrew and the continuances requested by his third attorney should not be charged to him because he objected to the withdrawal of the first two attorneys and, at least on two specified occasions, he objected to continuances requested by his third attorney. Defendant argues his pro se statements objecting to the withdrawal of his attorneys and to the continuances rise to the level of a clear disagreement between Ward and his attorneys about when to proceed to trial. Defendant argues the timing of trial should be a decision left solely to the defendant, rather than his attorney.
In State v. Ames, 222 Kan. 88, 100, 563 P.2d 1034 (1977), this court stated:
“An indigent accused has a right to either appointed counsel or pro se representation, but both rights cannot simultaneously be asserted. [Citations omitted.] A defendant who accepts counsel has no right to conduct his own trial or dictate the procedural course of his representation by counsel.”
In Winter v. State, 210 Kan. 597, Syl. ¶¶ 1, 2, 502 P.2d 733 (1972), we stated:
“In the control and direction of a criminal case certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether to testify in his own behalf.
“In the conduct of the defense of a criminal case the technical and professional decisions, which require trained professional skill and judgment, must rest with the lawyer. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.”
See State v. Nixon, 223 Kan. 788, 796, 576 P.2d 691 (1978); ABA Standards for Criminal Justice, Defense Function, § 5.2 (1971). It is clear defendant wanted appointed counsel but he wanted his Counsel to conduct the trial according to his instructions. The record reveals defendant’s first two attorneys withdrew because of this continued interference with the direction of the defense. Both attorneys explained to the court they had had disagreements with the defendant over the development of a defense to the charges and each believed his further involvement in the case could provoke questionable ethical considerations. Defendant’s reliance upon an insanity defense caused the last two continuances to which he objects. A defense is worthless without supporting evidence and the delays were for the purpose of obtaining the needed evaluation. The matter of preparation and date of the trial and the type of defense relied upon are clearly strategical and tactical decisions which require trained professional skill and judgment which must rest with the lawyer. All of the delays except one are the result of the application of the defendant through his attorney or the fault of the defendant himself. The one delay not chargeable to the defendant was the court’s continuance from December 26, 1978, to January 8, 1979, to avoid calling a jury during the Christmas holiday. Though coninuing a jury trial past the holiday season cannot always be justified where a defendant is in jail pending trial, under the facts in this case it was appropriate considering the constant shifting of defense counsel and the fact that the two week delay taken by the trial court would not have extended the trial beyond ninety days but for the continuances charged to the defendant. This court stated in State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979):
“Delays which are the result of the application or the fault of the defendant are not to be counted 'n computing the statutory period.”
See State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). The delays in this case did not violate the statutory right to a speedy trial.
The defendant next contends the delays in his trial violate his constitutional right to a speedy trial. We are dealing with the Sixth Amendment of the U.S. Constitution, which states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.”
The right is also guaranteed under the Kansas Constitution in Section 10 of the Bill of Rights, which states:
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.”
The factors to be considered in a claim of denial of a constitutional guaranty of a speedy trial were set forth in Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972), and were first adopted in Kansas in State v. Otero, 210 Kan. 530, 532-533, 502 P.2d 763 (1972):
“In that case [Barker v. Wingo] the supreme court fathered the thought that there is more than one criterion for determining whether an accused has been deprived of or has been accorded a speedy trial; that the true test rests not alone on the length of time transpiring after charges have been filed or on whether demand for trial has been made. Rather, opined the august court, the approach to the problem is a balancing test in which the conduct of both prosecution and accused is to be weighed. This approach suggests an ad hoc basis in which various factors are to be taken into account.
“Barker identifies four factors entitled to consideration, although the list is obviously not intended to be exclusive: Length of the delay, reason for the delay, the defendant’s assertion of his rights and prejudice resulting to the defendant. A discussion by the court of the four factors named by it is to be found in Barker but the same need not be repeated here. The opinion is readily accessible to every reader who may be interested in the reasoning on which the decision rests.”
See State v. Wilson, 227 Kan. 619, 608 P.2d 1344 (1980); State v. Cuezze, Houston & Faltico, 225 Kan. 274; State v. Smith & Miller, 224 Kan. 662, 585 P.2d 1006 (1978), modified 225 Kan. 199, 588 P.2d 953, cert. denied 441 U.S. 964 (1979); State v. Clark, 222 Kan. 65, 563 P.2d 1028 (1977); State v. Fennell, 218 Kan. 170, 542 P.2d 686 (1975); State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975); State v. Dolack, 216 Kan. 622, 533 P.2d 1282 (1975); State v. Smith, 215 Kan. 34, 523 P.2d 691 (1974); State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972); State v. Taylor, 3 Kan. App. 2d 316, 594 P.2d 262 (1979). Defendant contends the length of the delay, (243 days from arrest to trial), the reason for the delay, (withdrawal of counsel for no reason over defendant’s objections), defendant’s assertion of his rights, (statements on February 20, 1979, and March 5, 1979) and resulting prejudice in the form of being forced to remain incarcerated, disruption of family life and hindrance in ability to gather evidence, contact witnesses and otherwise prepare his case, all fall within the four areas discussed in Barker v. Wingo. The Kansas Court of Appeals considered the constitutional guaranty of a speedy trial in State v. Taylor, 3 Kan. App. 2d 316, Syl. ¶ 5, and stated:
“The constitutional guaranty of a speedy trial attaches when one becomes accused and the criminal prosecution begins.”
That court held that one hundred eighty days’ delay from arrest to trial was not a violation of the guaranty because it was not a deliberate attempt to undermine the defense. In State v. Smith & Miller, 224 Kan. 662, a five month delay elapsed between arrest and informing defendants of the charges brought against them. Defendants had been in federal custody during that time. We held they were not denied a speedy trial. In State v. Smith, 215 Kan. 34, the defendant claimed he was denied his constitutional right to a speedy trial because of an eight month delay from arrest to trial. We held that hospitalization of the victim and the competency determination of the defendant were sufficient justification for the delay and not a denial of a speedy trial. Bearing in mind the standards enunciated in State v. Otero, 210 Kan. 530, that of balancing the conduct of both prosecution and accused, we hold the defendant was not denied a speedy trial. The second issue is without merit.
We have considered all of the points raised in defendant’s brief and at oral argument and find them without merit. The judgment of the trial court 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 George E. Tillery (defendant-appellant) guilty of kidnapping (K.S.A. 21-3420) and indecent liberties with a child (K.S.A. 1979 Supp. 21-3503). The appellant challenges the State’s use of a confession and attacks the sufficiency of the evidence.
On June 15, 1978, four year old Stacy and her mother, Glenda, visited a neighbor, Duane Findley. Stacy and her mother resided in one of three apartments in a triplex unit; Findley lived in an adjacent apartment in the same triplex. About 9:30 p.m. Stacy left Findley’s residence. When Stacy did not return within a few minutes Glenda, Findley, and other neighbors began searching the area.
After searching about 45 minutes, Findley observed Stacy and an adult white male crossing 31st Street and entering a field. Findley testified that the man was walking with his left hand placed on Stacy’s shoulder. Findley heard Stacy call his name, but did not respond for fear of her safety. He observed the man push Stacy to her knees, then the man got to his knees and laid down. Findley lost view of them because the field was covered with knee-high grass and weeds.
Findley immediately notified Glenda, and Glenda ran into the field. As she approached Stacy and the man, he fled. Some neighbors gave chase, but were unable to catch the man. Glenda testified the man was clothed in blue jeans, but wore no shirt. She observed him squatting on his knees, leaning over Stacy. When Glenda picked up Stacy, she noticed Stacy’s underwear was pulled down a little bit.
On the morning of June 16, 1978, the appellant called the Wichita Police Department and told them he wanted to discuss a reported child molesting incident. The appellant met with Detective Jan McCloud and Detective Dan Stewart. Detective McCloud advised the appellant of his Miranda rights, and witnessed the appellant sign a waiver form. The appellant told Detective McCloud that he had seen a man in a field with a young girl the night before, and had chased the man away; that he returned to the girl to check her condition, but he too fled when several people ran toward him shouting; he fled because he feared they would think he molested the girl. Detective McCloud expressed disbelief of that story and told the appellant it would be better if he told the truth. The appellant then confessed to taking Stacy from the porch to the field, kissing her on the mouth and lips, kissing her in the vaginal area, and rubbing his penis on her. The appellant stated that he had to quiet Stacy’s crying several times by placing his hand over her mouth. On June 19, 1978, the appellant repeated his confession for tape recording.
At trial the appellant testified the first story he told the police was the truth; he had attempted to rescue Stacy. The appellant testified the second story was false; he told it because he felt it would be better for him to tell a story the police believed. The appellant was convicted of kidnapping and taking indecent liberties with a child. Appeal has been duly perfected.
The appellant contends the trial court erred in admitting his confession into evidence.
We discussed admissibility of confessions in State v. Higdon, 224 Kan. 720, 722, 585 P.2d 1048 (1978), and stated:
“As a general rule uncoerced statements made to police officers by a defendant who has been given warning as to his constitutional rights are admissible as evidence at his trial. State v. Cook, 224 Kan. 132, 137, 578 P.2d 257 (1978); State v. Coe, 223 Kan. 153, 161, 574 P.2d 929 (1977), and cases cited therein. To be admissible, a confession or extrajudicial statement must have been freely and voluntarily given. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by the accused, determines the statement was freely, voluntarily, and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. State v. Treadwell, 223 Kan. 577, 578-79, 575 P.2d 550 (1978); State v. Freeman, 223 Kan. 362, 372, 574 P.2d 950 (1978); State v. Coop, 223 Kan. 302, 309, 573 P.2d 1017 (1978).”
Here the appellant testified he read and signed the Miranda warnings under his own free will and talked to the police voluntarily. The appellant made the confession on Friday, June 16, 1978, and returned on Monday, June 19, and had his confession tape recorded. In a pretrial hearing the trial court ruled the confession was freely, voluntarily, and knowingly given. Nevertheless, the appellant contends Detective McCloud’s statement, that things would go better if the truth was told, was a promise of a benefit which vitiated the voluntariness of the confession.
We analyzed the nature of the positive promise required to render a confession involuntary in State v. Kanive, 221 Kan. 34, 37, 558 P.2d 1075 (1976), and State v. Harwick, 220 Kan. 572, 574-76, 552 P.2d 987 (1976). In State v. Kanive, 221 Kan. at 37, we stated:
“In considering the effect of a promise made by the police to an accused during an interrogation various factors have been recognized as worthy of consideration in determining the voluntariness of a subsequent confession. To render such a confession involuntary it is generally held that the promise must concern action to be taken by a public official, that the promised action must be such as would likely cause the accused to make a false statement to obtain the benefits of the promise and the promise must be made by a person whom the accused reasonably believed to have the power or authority to execute the same. (State v. Stuart, 206 Kan. 11, Syl. 4, 476 P.2d 975; State v. Harwick, 220 Kan. 572, 576, 552 P.2d 987; K.S.A. 60-460[f] [2].)”
Detective McCloud’s statement was not a positive promise of a benefit. No action was promised, and the statement was not likely to induce a false confession. The trial court correctly ruled the appellant’s second confession was freely and voluntarily given; it was properly admitted at trial.
The appellant next contends the evidence is insufficient to support the verdicts, and that the trial court erred in denying the motion for judgment of acquittal. A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. State v. Rodriquez, 226 Kan. 558, 564, 601 P.2d 686 (1979). When the sufficiency of evidence is questioned on appeal a similar standard is used. The appellate court must be convinced that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. McGhee, 226 Kan. 698, Syl. ¶ 1, 602 P.2d 1339 (1979); State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979).
The appellant asserts two specific challenges to the sufficiency of the evidence. First, he contends the State did not prove all the elements of the kidnapping charge, because there was no evidence of force used to abduct Stacy. Second, he contends there is insufficient evidence to prove either the charge of kidnapping or indecent liberties with a child, because the only evidence is the uncorroborated extrajudicial confession.
K.S.A. 21-3420 provides in pertinent part:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(b) To facilitate flight or the commission of any crime.”
Count I of the complaint/information, in pertinent part, charges that the appellant, on June 15, 1978, “did then and there unlawfully, willfully, take by force” (emphasis added) Stacy, to facilitate the commission of the crime of indecent liberties with a child.
Kidnapping a child may be accomplished by using minimal force. State v. Clark, 80 N.M. 340, 342, 455 P.2d 844 (1969); see also State v. Zimmer, 198 Kan. 479, 500, 426 P.2d 267, cert. denied 389 U.S. 933 (1967), and 51 C.J.S., Kidnapping § 1, p. 497. Each case will depend on the particular facts of the taking or confining. Duane Findley’s testimony and the appellant’s con fession provide sufficient evidence that force was used in Stacy’s abduction.
Duane Findley testified that he observed Stacy and a man walking across the street into a field. Stacy was on the left-hand side of the man with his hand placed on her shoulders. Stacy turned and called Duane’s name, but he did not respond for fear of her safety. Findley observed the man push Stacy down to her knees after they were further into the field. In his confession the appellant admits he initially led Stacy by hand away from the apartments. He took her to a nearby tree where she began hollering, and he put his hand over her mouth to quiet her. The appellant also picked up Stacy and carried her further away because she was too loud.
The appellant’s second basis for questioning the sufficiency of the evidence is that the only evidence supporting the offenses is his uncorroborated extrajudicial confession.
An uncorroborated extrajudicial confession is insufficient to sustain a conviction. Opper v. United States, 348 U.S. 84, 89-90, 99 L.Ed. 101, 75 S.Ct. 158 (1954); State v. Cardwell, 90 Kan. 606, 609, 135 Pac. 597 (1913); see State v. Pyle, 216 Kan. 423, Syl. ¶ 2, 532 P.2d 1309 (1975); Annot., 45 A.L.R.2d 1316. However, any material facts, including the corpus delicti itself, may be proved by direct testimony or by indirect or circumstantial evidence or a combination of both. No exclusive mode of proof of the corpus delicti is prescribed by the law. State v. Higdon, 224 Kan. at 723; State v. Pyle, 216 Kan. at 432. The corpus delicti in a rape case may be proved by extrajudicial admissions and circumstantial evidence. State v. Higdon, 224 Kan. at 723; State v. Cardwell, 90 Kan. at 609. The elements of the offenses of kidnapping and indecent liberties with a child were sufficiently proved by the appellant’s confession combined with circumstantial evidence.
The appellant’s confession to the crimes was corroborated by testimony of Duane Findley and Stacy’s mother, Glenda. Findley testified he saw a man and Stacy walking across the street. Findley heard Stacy call his name, he saw Stacy pushed to her knees, and he saw the man lie on Stacy. Stacy was missing for several minutes. When Glenda ran into the field she saw a shirtless man kneeling over Stacy. Glenda testified that Stacy’s “underwear was pulled down just a little bit.” No witnesses identified the appellant as the offender, but a man’s shirt and shoes were found near the scene. In his confession the appellant stated he removed his shirt before molesting Stacy, and he lost his shoes while being chased. The appellant testified he smokes Pall Mall unfiltered cigarettes; a package of Pall Mall unfiltered cigarettes was found in the shirt pocket.
The convictions of kidnapping and indecent liberties with a child were supported by sufficient evidence. Viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found the appellant guilty beyond a reasonable doubt. The trial court did not err in denying the motion for judgment of acquittal.
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The opinion of the court was delivered by
Miller, J.:
The defendants appeal from the verdict and judgment in this wrongful death action. Plaintiffs are the survivors of Stephen White, who died as the result of a car-truck collision near Independence, Kansas on December 23, 1976. The truck was owned by defendant IMCO, Inc., driven by its employee, defendant Pendleton, and insured by defendant New Hampshire Insurance Company. The jury found the defendants sixty per cent negligent, found the decedent forty per cent negligent, and returned a total verdict of $224,150, resulting in judgment in favor of the plaintiffs of $134,490.
Eight issues are raised in the appellants’ brief. Some of these overlap, and some include several points. We will enumerate and discuss the various issues presented later in this opinion.
The collision which gives rise to this action occurred on Tenth Street Road between Independence and Coffeyville about 6:15 o’clock p.m. on December 23, 1976. The decedent, Stephen White, was driving his Chevrolet Vega in a southerly direction; the truck, a White Freightliner pulling a trailer loaded with sheet metal, and having a total vehicle and load weight in excess of thirty-five tons, was being driven in a northerly direction by defendant Pendleton. The two vehicles collided almost head-on in the west or south-bound lane, with the Vega being pushed north over one hundred feet. The exact path each vehicle followed immediately prior to the accident was in sharp dispute. Defendants claim that the Vega was off the road on the east, on the north-bound shoulder, when it was first observed by the defendant truck driver; the Vega veered onto the traveled portion of the road and into the path of the oncoming truck, causing the truck to swerve into the west or south-bound lane. Plaintiffs claim that the decedent was south bound in his right-hand lane, and that the truck failed to keep to the east half of the road and was traveling in the west or south-bound lane of the roadway prior to and at the time of the collision. Other facts will be developed later in this opinion as may become necessary.
This action was commenced by the plaintiffs, Sharon Ann White, for herself and as mother and next friend of the two minor daughters of the decedent, early in February, 1977. An extensive pretrial conference was held and concluded on December 2, 1977; shortly thereafter the case was set for trial on January 9, 1978. Counsel for the plaintiffs prepared a proposed draft of the pretrial order; this was not received by counsel for the defendants until January 3, 1978. A continuance of trial was requested, and was granted on January 5; the trial court advanced the trial date to January 16. On January 5 the trial court also considered some of defendants’ objections to the pretrial order; the matter was continued until January 13, when a hearing was held on defendants’ objections to the pretrial order. At the conclusion of that hearing, the pretrial order was settled, signed and filed.
I
Defendants first complain of various errors in the pretrial proceedings. Pretrial conferences are governed by K.S.A. 60-216, patterned after Rule 16 F.R. Civ. P. and our Rule No. 140 (224 Kan. lxvii). The statute provides for the entry of a pretrial order which “controls the subsequent course of the action.” Rule 140 provides that the conference shall be held at least two weeks before trial, and either the court or designated counsel shall prepare the order. If counsel objects to the proposed order, the objection and the proposed order must be submitted in writing to the court within ten days.
The order in this case was prepared by plaintiffs’ attorney at the direction of the court. The original pretrial conference was taken by the court reporter, and a transcript of that hearing was not completed until December 29. Plaintiffs’ counsel immediately prepared the proposed order, which was received by counsel for the defendants on January 3. On the tenth day thereafter, January 13, the trial court considered defendants’ written objections to the proposed order, heard both counsel, and resolved the matter.
Appellants object to the timing of the pretrial conference. From the facts previously recited it is apparent that the conference was held more than thirty days prior to trial. The rule does not provide a time limitation for finalization ^of the order; the critical time periods, conference more than two weeks before trial, and objections within ten days after the proposed order is received, were met.
Appellants contend that the court erred in refusing to permit the defendants to include some additional photographs as exhibits. These were first offered on January 13, two days prior to trial. They were enlargements of portions of photographs already in evidence. The enlargements were not disclosed at the original pretrial conference, held on December 2, nor was opposing counsel or the court advised that defendants intended to offer such enlargements. The refusal of a trial court to permit a party to offer additional exhibits not disclosed at pretrial is discretionary, and absent a showing of prejudice or abuse of discretion the trial court’s ruling will not be disturbed.
Appellants complain of the trial court’s refusal to require the plaintiffs to select and designate character witnesses prior to trial. Plaintiffs originally listed twelve character witnesses; the defendants objected vigorously, and sought to have the court limit the number to three, and to require the plaintiffs to select the three before trial. The trial court granted the first request, and limited the character witnesses to three; but the trial court did not require plaintiffs to designate which three of the twelve listed witnesses would be called. These witnesses were friends and acquaintances of the plaintiffs and the deceased, who testified merely as to the deceased’s employment, his income, his family responsibilities, and the like. There is no showing that defend ants were surprised by the testimony of the three witnesses called. The testimony was not critical, like that of an eyewitness or an expert. The matter requiring an advance choice was a discretionary one, and we find no abuse of discretion and no prejudice.
Next, appellants extensively complain with respect to the order regarding an expert witness for the plaintiffs, Hal Cook. Defendants contend that they were prevented from deposing the witness, because of certain rulings of the trial court. The witness was not called by the plaintiffs and did not testify; objections to the court’s ruling are thus without substance.
Finally, defendants contend that the trial court erred in failing to grant a lengthy continuance after the pretrial order was resolved, in order to give defendants additional time to prepare for' trial. The record indicates that counsel were given over thirty days’ notice of the original trial setting; the continuance of one week was granted at the request of defendants’ counsel. The trial record certainly does not reflect any lack of preparation. In the absence of any showing of prejudice, we find no error.
II
Defendants contend that the court erred in refusing to allow testimony concerning intoxication of the decedent; they claim that this resulted in the suppression of evidence. During the pretrial conference on December 2, we find the following discussion:
“MR. HALL: Now, wait a minute. Is there any contention on your part that the decedent was intoxicated or driving under the influence of liquor?
“MR. PALMER; No, we’re not.....
“MR. HALL: Well, I thought perhaps there would be an attempt on your part to show that Mr. White was under the influence of liquor, intoxicated or something of that sort. You’re not going to do that?
“MR. PALMER: Didn’t I just state that, Mr. Hall? I thought I just stated that.
“MR. HALL: All right. Very good.”
Defense counsel objected to the recitation in the pretrial order that “[t]he parties stipulate that there will be no contention on the part of either and no attempt to introduce evidence on the part of either to show that either defendant Pendleton or decedent Stephen White were intoxicated at the time of the collision.”
Clearly, defendants stipulated that there was no issue as to intoxication of the decedent. The defendants offered no evidence of the decedent’s intoxication upon trial; no proffer of such evidence was ever made; no such evidence was ever disclosed to the trial court; and no such evidence was disclosed to this court on oral argument. If the defendants contended that the decedent was intoxicated, they had a duty to disclose that claim at the pretrial conference. The trial court did not err in including the stipulation of counsel in the pretrial order, and it did not err in excluding evidence of intoxication since none was ever offered.
Ill and IV
These issues have been included within issue I, above, and need no further discussion.
V
Defendants contend that the trial court erred in failing to direct a verdict since the plaintiffs failed to prove negligence on the part of the defendants, and the plaintiffs failed to meet the required burden of proof. The motion for a directed verdict was sought by the defendants on the basis that there was no evidence that decedent’s car was struck while on its proper side of the highway. The evidence indicated a gouge mark on the surface of the highway, west of the center line; witnesses, including defendants’ expert, placed the point of impact in the south-bound lane of travel. Defendants’ driver testified that he saw the Vega when it was seven or eight hundred feet away; he did not slow the truck, but attempted to “try to drive through the accident.” Another motorist, who was following the truck, saw no indication that the Vega was anywhere other than in its proper lane of travel. Further, investigating officers were unable to locate any physical evidence indicating that the Vega had been where the truck driver said it was — on the east shoulder or in the east, or north-bound lane — prior to impact.
The rule governing both trial and appellate courts, in ruling upon motions for directed verdict, is set forth in Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977):
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict. (Following, Simpson v. Davis, 219 Kan. 584, Syl. 3, 549 P.2d 950.)”
This was a fact case. Pendleton, driving the truck, gave his version to the jury; the physical facts did not support his testimony. The evidence was such that reasonable minds could reach different conclusions. We conclude that the trial court did not err in overruling the motion for a directed verdict. There was no failure of proof on the part of the plaintiffs.
VI
Defendants complain of a remark made by the trial judge during the testimony of Kenneth Razak, defendants’ reconstruction expert. An objection was lodged to his testimony “as invading the ultimate question in the case and the province of the jury.” The trial court overruled that objection, saying:
“THE COURT: Well, I think he’s qualified as an expert and I’ll permit him to answer. It doesn’t necessarily mean he’s infallible. That’s his opinion based upon what he knows.
“MR. PALMER: We understand that, Your Honor.
“THE COURT: Only the Almighty knows exactly what happened.
“THE WITNESS: You are not classifying me in that category, I presume?
“MR. PALMER: I hope not.”
Although a trial judge should refrain from remarks which may excite prejudice in the minds of jurors, the “mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment, and, where a construction can properly and reasonably be given to a remark which will render it unobjectionable, it will not be regarded as prejudicial.” Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975). The exchange did not invade the province of the jury or deprive defendants of a fair trial. An unobjectionable construction can be given to the remark: It only repeats common knowledge and supports the court’s rationale in ruling upon the objection. The trial court in this case also gave a specific instruction to the jurors, stating that:
“Neither in these instructions nor in any ruling, action or remark that I have made during the course of this trial have I intended to interpose any opinion or suggestion as to how I would resolve any of the issues of this case.”
Although the judge’s comment was unnecessary, it does not constitute prejudicial error. In their brief, appellants indicate the presence of judicial hostility toward the defendants throughout the trial; this allegation is not substantiated by additional references to the record, and we find nothing in the trial record to support the claim.
VII
Appellants claim error in the admission or exclusion of certain testimony. They contend that it was error for the trial court to permit the plaintiffs to offer background evidence as to the decedent’s family, employment, and character, and to restrict the testimony regarding defendant Pendleton’s background, personal life, and character. The evidence of the decedent’s background was relevant and admissible upon thé damage issue; similar evidence regarding the surviving driver, Pendleton, was not relevant on any issue. Pendleton’s character and credibility was not attacked, and evidence of his good character and credibility was not relevant to the issues being tried. Further, the matter was not raised at trial. We find no error.
Defendants also object to the testimony of Harley Cox, a retired Southwestern Bell Telephone Company employee, who testified that Bell had a retirement plan for its employees, which required thirty years of service and fifty years of age as prerequisites for benefits. The decedent had been employed by Southwestern Bell for four years and was 29 years of age at the time of his death. No testimony as to the amount of any possible pension was presented. The testimony was presented merely to show that had the decedent lived, he could have become entitled to pension benefits. At most, the admission of this evidence was harmless error.
Appellants contend that it was error for the trial court to permit the plaintiff to recall Gerry Harding as a rebuttal witness, and to permit him to testify concerning the location of gouge marks on the accident report which he prepared, and to point out the gouge mark on the Razak diagram. The Razak diagram was not in evidence at the time Harding initially testified. We find no error.
VIII
The defendants contend that the trial court erred in its jury instructions by failing to give an “issues” instruction and by giving an erroneous instruction on rules of the road. No instruction similar to PIK Civ. 6.01, defining the issues, was given. Apparently this was an oversight on the part of the court and of counsel. This omission was not called to the judge’s attention before the case was submitted to the jury. The issues were, of course, fully argued by counsel, both in their opening statements and in their closing arguments. The situation is similar to that which was before us in Lucas v. Pearce, 223 Kan. 749, 576 P.2d 670 (1978). As in Lucas, we agree that the failure to give an issues instruction was error. The matter was raised for the first time in the motion for new trial. Upon a review of the entire record, however, we conclude that the issues were fully presented to the jury and that substantial justice was done. We find no prejudicial or reversible error.
Finally, defendants contend that it was error for the trial court to instruct the jury that the purposes and object of rules of the road are to avoid accidents, but “[t]he fact a motorist is on the proper side of the road does not entitle him to make an unreasonable use thereof nor relieve him of the duty to exercise due care to avoid injury to others, including those who may be on the wrong side of the road.”
The instruction follows the rules laid down in DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P.2d 527 (1951), followed in Morris v. Hoesch, 204 Kan. 735, 466 P.2d 272 (1970). The instruction as given did not misstate the law, and was as applicable to the decedent as it was to defendant Pendleton. The instruction was not erroneous.
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The opinion of the court was delivered by
Herd, J.:
This is a direct appeal by Robert W. Prince from a jury conviction on three counts of aggravated robbery, (K.S.A. 21-3427) and two counts of kidnapping (K.S.A. 21-3420) arising out of a series of three robberies of Church’s Fried Chicken in Wichita. We affirm.
The pertinent facts are that on August 27, 1978, at 9:00 p.m., a black male entered Church’s Fried Chicken store at 1305 N. Hillside in Wichita. He was wearing a ski mask exposing his eyes, nose and mouth. After forcing the customers away from the serving window, the robber pulled a gun, jumped over the counter, and ordered Louis Coleman, the manager, and other employees to the back of the store next to the offices. Coleman, following orders, opened the safe and gave the robber the money in five red money bags, marked “Central State Bank and Trust Company,” and the money from the cash register. Thereafter, the robber fled the scene.
About a week later, on September 3, 1978, at the same hour, while Coleman and another employee were getting supplies from a storage shed near the store, a man, wearing a bandana over the lower part of his face, approached asking for the time. Coleman recognized the face, voice and hairstyle as that of the person who had robbed him the week before. The man ordered them to enter the store from the rear and get the money from the safe. Coleman demurred, stating he could not enter the store through the back door since he didn’t have the keys, so the three went around and entered from the front. The robbér brandished his gun, ordered everyone to go into the office and face the wall, and Coleman delivered the store’s money contained in the same type bags as were taken in the first robbery. During the course of the robbery, Jeannie Webb, one of the employees, came out of the restroom and went to the office to investigate the disturbance. The robber ordered her to the front of the store to bring the money from the cash registers. Webb complied and returned. The robber obtained the keys to Coleman’s car, took Ms. Webb as a hostage, and left. He released her about five minutes thereafter and she returned to the store unharmed.
Apparently, the robber appreciated the service at Church’s because he returned again on the evening of September 17, 1978, while the store was experiencing a power interruption. While employee Chris Allen was locking one of the doors, he saw a man wearing a dark raincoat enter the store and approach one of the serving windows. Upon being advised the window was closed, the man turned to Allen, stuck what felt like a gun in Allen’s back, and told him to “shut up and turn around.” The two went to the back of the store, where Allen attempted to open the cash registers and the safe but was prevented by the power failure. The robber ordered Allen to flip the power switch which restored the electricity. He then opened the safe and handed over six red money bags in addition to Coleman’s cassette tape recorder. There was no doubt in Coleman’s mind that the robber was the same man who had robbed the store on the two previous occasions. Unnoticed by the robber, Coleman had slipped out and called the police at 7:39 p.m. At 8:00 p.m., while searching the general area for the suspect, Officers Almon and Mouser observed a car matching the general description of the robber’s car, a black over green 1969 Ford LTD. It was parked in a driveway at 1552 North Estelle with the dome light on and two men in it. The driver was identified as Robert W. Prince. When Prince stepped out of the car, Almon noticed a bulge in his right pants pocket which was found to be a large roll of currency. Because Prince fit the general description of the man who had robbed Church’s Fried Chicken, he was returned to the store where he was identified as the robber. The Miranda warning was given and Prince was returned to his car. The officers requested to search the vehicle. The search produced a small cassette tape recorder and a red money bag with the name, “Central State Bank” — or “Central Bank and Trust” written on it. A pistol was removed, examined and placed on the seat. A laboratory investigator, Patrie Cunningham, was called to the scene. He photographed the car and the collected evidence.
The cassette tape recorder was later identified by Louis Coleman as the one taken from him. The defendant and his companion were taken to the police station to be interviewed. All other property, including the roll of bills, was taken from Prince, inventoried and placed in the safe.
Defendant was tried, convicted and sentenced to five concurrent terms of not less than five years nor more than life.
Defendant first contends the trial court erred in failing to instruct on lesser included offenses. He believes he was entitled to the instruction because two theories of the case were presented with evidence that would justify a jury conviction of a lesser offense. One theory is that his alibi, if believed, would justify a conviction of possession of stolen property. He also contends that because the gun used was an unloaded, inoperable BB gun, it could not be defined as a dangerous weapon pursuant to K.S.A. 21-3427. Thus, he argues, he was entitled to an instruction on simple robbery. K.S.A. 21-3426.
K.S.A. 21-3107(3) states:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
The court is required to instruct on a lesser included crime only when there is evidence under which a defendant might have reasonably been convicted of the lesser crime. State v. Taylor, 225 Kan. 788, 793, 594 P.2d 211 (1979). The test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction on the lesser charge. Prince’s defense was alibi and the employees testified they saw the robber use a gun. Therefore, the jury had to find him guilty of aggravated robbery or nothing at all. He was not charged with possession of stolen property and that crime is not a lesser included offense of aggravated robbery.
Alternatively, defendant argues that if he were at the scene, the gun was not loaded and had a missing mechanism making it incapable of firing. The fact the gun was not loaded does not warrant an instruction on simple robbery.
“One can be convicted of aggravated robbery by-means of a dangerous weapon or deadly weapon, notwithstanding the fact .that the gun allegedly used was unloaded.” State v. Mitchell, 220 Kan. 700, Syl. ¶ 5, 556 P.2d 874 (1976); State v. Deutscher, 225 Kan. 265, 268, 589 P.2d 620 (1979).
May a gun, incapable of firing, be a dangerous weapon under our statute? Authorities are split on the test to determine a dangerous weapon, objective or subjective. We adopted the subjective test in State v. Robertson, 225 Kan. 572, 592 P.2d 460 (1979), and reaffirmed it in State v. Davis, 227 Kan. 174, 605 P.2d 572 (1980), holding a starter’s pistol is a dangerous weapon. See also 81 A.L.R.3d 1006. In the instant case there is no question the BB pistol used was unloaded. We hold this weapon, though unloaded and therefore incapable of firing a projectile, is a dangerous weapon pursuant to K.S.A. 21-3427. The pistol is heavy and could easily have been used as a bludgeon against the victims, rendering serious injury or even death. There is nothing in the record to suggest the robberies were committed in any other fashion than urged by the State. The giving of an instruction on the lesser included offense of simple robbery was not warranted and the trial court did not err.
Defendant next complains that his Jackson v. Denno hearing was inadequate because it was concerned only with the Miranda warning. The crucial facts adduced at the Denno hearing show Officer Pate questioned Prince on September 18, 1978, in an interview room on the third floor of the county courthouse. Only defendant and the officer were present. The interview lasted from 3:30 p.m. until about 4:45 p.m. Pate identified himself as a detective, then apprised Prince of his constitutional rights according to the Miranda warning. He produced the standard form used by the police department containing a printed reproduction of the Miranda warnings. The officer began by showing the form to the defendant and putting an “X” by the first section stating an accused has the right to remain silent. He read the statement to Prince and asked him if he understood it. Prince replied in the affirmative. Officer Pate then circled the “X” to show the defendant acknowledged he understood the statement. Thereafter, the officer went through the entire form, reading each warning to the defendant and noting whether he understood his rights. The testimony shows the defendant told Pate he understood his rights and so indicated on the form. The officer then testified he asked Prince if, having his rights in mind, he wanted to talk to him now. Prince indicated he did. The officer then marked the slot on the form indicating the defendant was willing to talk to him. The officer then stated: “I then handed him my pen, placed an ‘X’ at the signature line indicating to him again that if he understood what his rights were and he was willing to talk to me, I needed his signature on that line.” Defendant signed the line and initialed the two “X’s” indicating he understood his rights and he was willing to talk to the officer. The form was completed a few minutes after they had started. The officer placed the sentence, “no need for an attorney,” his initials, the time of completion, 3:34 p.m., and the date at the top of the form. The State offered the signed form, marked Exhibit No. 8, into evidence. It was admitted without objection.
After defendant’s attorney had cross-examined Pate, the hearing ended. Defendant contended the hearing should have gone further and included proof by the State that appellant’s subsequent statement was freely and voluntarily given. The State argued that neither Miranda nor Jackson v. Denno required a showing of that kind and argued all that need be shown is that appellant was advised of his rights and his statement was freely and voluntarily made.
At trial, Pate was called to testify and again related the procedure in regard to the Miranda warning given defendant. Exhibit No. 8 was again admitted without objection. The officer continued:
“Q: After exhibit 8 was fully executed and completed in the manner you’ve described, did you then have a conversation with Mr. Prince?
“A: Yes, we had a conversation.
“Q: Would you describe the conversation? Tell us what was said as near as you can recall the specific words used and who said what, you or him.
“A: At 1534 hours when I completed the form I then asked Mr. Prince if he cared to talk to me concerning the robberies. He indicated no, that he didn’t have anything to talk about. He stated apparently you have something on me. I indicated to him that I did have something on him, and in fact I had evidence that could link him to three strong arm robberies. I then began telling him pieces of each robbery — .”
At this point defendant objected on the ground he had previously said he didn’t want to talk with the officer. The trial court agreed, but permitted the officer to testify as to defendant’s statements. Officer Pate went on:
“Mr. Prince then stated to me when you dance I guess you have to pay the price.
“Q: Then what occurred?
“A: I indicated to him that that was quite true; that when you play a game of robbery you’re bound to get caught and when you do you leave enough evidence behind to link you to the robbery. I then stated to him that I had no intentions of telling him my entire case against him or the cases against him and that — .”
At this point defense counsel objected on the grounds the entire conversation was involuntary and should not be before the jury, and moved for a mistrial. The motion was overruled but Officer Pate’s testimony was later stricken and the jury was admonished to disregard it.
Should the trial court have required further questioning of Officer Pate about the voluntariness of the defendant’s statement at the Jackson v. Denno hearing? A Jackson v. Denno hearing must be “fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession . . . .” Jackson v. Denno, 378 U.S. 368, 391, 12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205 (1964).
The purpose of this type of hearing is to determine the voluntariness of a statement or confession. The determination must include more than a showing a defendant received and understood his Miranda rights. The trial court should have required further probing into the circumstances surrounding the statements given by defendant, once it was known he had demurred, even temporarily. The State has the burden of establishing the accused’s statements were voluntary. State v. Law, 214 Kan. 643, 651, 522 P.2d 320 (1974).
On appeal, in determining whether the trial court should have accepted more evidence at the Denno hearing regarding defendant’s statement against interest, we stated in State v. White & Stewart, 225 Kan. 87, 92, 587 P.2d 1259 (1978):
“The determination of whether a statement is freely and voluntarily given must be based upon a consideration of the totality of the circumstances. Where there is a genuine conflict in the evidence, an appellate court must place great reliance upon the findings of the trial court. If the trial court’s findings are based upon competent evidence, they will not be disturbed on appeal.”
See also State v. Young, 220 Kan. 541, 552 P.2d 905 (1976); State v. Ralls, 216 Kan. 692, 533 P.2d 1294 (1975); State v. Harden, 206 Kan. 365, 480 P.2d 53 (1971).
“Factors generally considered as bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Generally if the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary.” State v. Creekmore, 208 Kan. 933, 934, 495 P.2d 96 (1972).
State v. Watkins, 219 Kan. 81, 547 P.2d 810 (1976).
Defendant offered no evidence to show the statement was coerced and produced only one witness to explain the money in the red bag and the cassette player were won gambling. No further evidence was offered concerning the police interrogation and defendant did not testify.
The officer testified the interrogation was not long and it appears, from the evidence, it was fairly conducted. Defendant signed the form stating he would talk and then orally stated he had nothing to say. He then made a voluntary statement to the effect that the officer “had something on him.”
Looking at the entire record, we find the trial court should have required further inquiry at the suppression hearing when it became apparent the accused made subsequent statements. See generally State v. Warden, 224 Kan. 705, 585 P.2d 1038 (1978). We find, however, that the statements were freely and voluntarily given and were not the product of compulsion. The statements should have been admitted. Any error on the part of the trial court is, therefore, harmless.
Defendant next contends the trial court erred in allowing the State to endorse a new witness the day of trial, while at the same time denying defense counsel’s request to endorse an alibi witness.
As the trial began, defendant moved for leave to file notice of alibi out of time and to endorse an alibi witness. In support of his request, defendant argued he hadn’t known the name of the witness until the Monday before the Thursday trial and, therefore, could not have endorsed her earlier. He further argued if the State were permitted late endorsement of a witness he, in turn, should be allowed a late endorsement. The trial court denied defendant’s motion on the grounds he had failed to file notice of alibi and granted the State’s motion, permitting it to endorse Detective Patrie Cunningham as a witness.
Cunningham is a laboratory officer whose testimony was needed to connect one link in the chain of evidence of property found in the defendant’s vehicle at the time of arrest. After his name was added to the list of State’s witnesses, defendant was given an opportunity to interview him before he testified. K.S.A. 1979 Supp. 22-3201(6) states:
“The prosecuting attorney shall endorse the' names of all witnesses known to said attorney upon the complaint, information and indictment at the time of filing the same. Said attorney may endorse thereon the names of other witnesses as may afterward become known to said attorney, at such times as the court may by rule or otherwise prescribe.”
It is well established the endorsement of additional witnesses during the course of trial is within the sound discretion of the trial court. That discretion is abused only where the rights of the defendant were unfairly prejudiced by the endorsement. State v. Taylor, 217 Kan. 706, Syl. ¶ 6, 538 P.2d 1375 (1975); State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395 (1975); State v. Smith, 215 Kan. 34, 523 P.2d 691 (1974); State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973). The trial court’s ruling with respect to additional witnesses will not be disturbed in the absence of a showing the rights of the defendant were unfairly prejudiced by the late endorsement. There was no such showing in this case.
With respect to defendant’s contention that he should be afforded the same right to endorse late witnesses as that given the State we find that is not the real issue here. Defendant wants to use the defense of alibi without having given the seven day statutory notice. K.S.A. 1979 Supp. 22-3218(2) states:
“On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.”
Here the request was to endorse an alibi witness the date of the trial. Defendant must first obtain the trial court’s permission to serve notice of alibi out of time by showing good cause. Defendant failed to show good cause. The point is without merit.
Defendant’s next issue concerns the trial court’s exclusion of a statement allegedly made by one inmate to another while in jail. The declarant is alleged to have stated he, and not the defendant, committed the robberies at Church’s Fried Chicken. Defendant contends the testimony should have been admitted under authority of K.S.A. 60-460(d) and (j). Defendant did not argue K.S.A. 60-460(d) at trial or at the hearing on the motion for a new trial. It is therefore not before us. We will consider only K.S.A. 60-4600'), which states:
“Subject to the limitations of exception (J), a statement which the judge finds was at the time of assertion so far contrary to the declarant’s pecuniary or proprietory interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by him or her against another or created such risk of making him or her an object of hatred, ridicule or social disapproval in the community that a reasonable man in the declarant’s position would not have made the statement unless he or she believed it to be true.”
Defendant preserved the evidence he desired by proffer. It is to the effect that one Max Potts, while in jail, heard one David Turntine, another inmate, say he had robbed Church’s Fried Chicken on September 17, 1978, and had “knocked over” Church’s many times during the summer and fall of 1978. Defendant stated Potts would so testify. Turntine was represented by attorney Warner Eisenbise who advised the court he would not permit his client to testify. This rendered Turntine unavailable for cross-examination. The court excluded the testimony on that theory, making no mention of K.S.A. 60-460(j), which defendant urges as his basis for admissibility.
It is clear the alleged statement of David Turntine, if reported to authorities, might subject him to criminal liability. But does it meet the test of “so far contrary to the declarant’s penal interest that a reasonable man in the declarant’s position would not have made the statement unless he or she believed it to be true?” State v. Quick, 226 Kan. 308, 317, 597 P.2d 1108 (1979). We think not. An incriminating conversation between two prisoners sitting in a cell, without sufficient evidence they expected the conversation to be reported does not place the declarant in the position of possible criminal liability so as to make the statement a declaration against interest. As we stated in Quick, at 318, “This is not a case where an inmate in a penal institution comes forward to take the entire blame for a crime, or where accomplices are involved.”
The test of admissibility under K.S.A. 60-460(j) was correctly stated in Thompson v. Norman, 198 Kan. 436, 424 P.2d 593 (1967). This court stated the statute requires, as a “preliminary measure of trustworthiness” the trial judge make a finding, prior to admitting a declaration against interest, that
“the character of the declaration was of such nature a reasonable man would not make it unless he believed it to be true. Probability of veracity is the safeguard sought; the reasonable man test is the criterion to be used. The judge may in a particular case be faced with a difficult decision where caution should be exercised; in making it he necessarily must be vested with a wide discretion.
“In determining admissibility he may consider the nature and character of the statement, the person to whom it was made, the relationship of the parties, the probable motivation of the declarant in making the statement, and the circumstances under which it was made.
“The burden was upon the defendant to satisfy the foundational requirements prior to admission of the declaration. Whether these requirements were satisfied is a matter committed to the discretion of the trial judge.” Thompson v. Norman, 198 Kan. at 443.
The rule that such admissions are a matter of judicial discretion was affirmed in State v. Quick, 226 Kan. 308.
It is clear defendant did not meet his burden of laying a proper foundation for the admission of this evidence. The evidence before the trial court showed only that Max Potts and David Turntine were in the holding cell of the jail and Turntine allegedly told Potts he committed the robberies at Church’s Fried Chicken. There is no showing of trustworthiness or indicia of reliability. We hold there was insufficient evidence for the trial judge to find the probability of veracity needed for admission of the declaration. The testimony was properly excluded. The fact it was excluded under the wrong theory is harmless error.
Appellant’s issue is without merit. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from a jury conviction of aggravated kidnapping (K.S.A. 21-3421) and felony murder (K.S.A. 21-3401). The defendant was sentenced to two life terms. He appeals.
On August 1, 1978, at 5:00 a.m., Leroy Jenkins was awakened by the defendant, Cleophas C. Phillips, Jr., knocking on his door. Phillips asked Jenkins to go fishing. Jenkins agreed and followed Phillips to his truck which was parked outside Jenkins’ home. In the ensuing conversation, Phillips inquired of Jenkins as to the whereabouts of one Michael Mitchell. Phillips displayed an automatic pistol and insisted Jenkins show him where Mitchell lived. There is no evidence Jenkins was threatened by the gun. The two drove the truck to Mitchell’s home. Once there, Phillips went to the door and got Mitchell out of bed, saying the three needed to talk. He did not display the gun to Mitchell at that time. Mitchell and the defendant returned to the truck. As he approached the truck, Mitchell inquired of Jenkins, who was sitting in the passenger’s side, what this was all about. Mitchell sat down on the curb with Phillips and the three of them talked a short time, while Jenkins remained in the truck. At this juncture, Phillips said he wanted to talk to Mitchell and they went to the back of the pickup and held a brief conversation. Jenkins stated the two then came around to the driver’s side of the truck. Phillips told Mitchell to get in the pickup and brandished the pistol. Mitchell got in and thereafter, Phillips proceeded to pistol whip him and to hit him about the face and head with a whiskey bottle. Jenkins testified he asked Phillips to leave Mitchell alone but Phillips ordered him out of the truck. Jenkins testified he got out of the pickup on the passenger’s side, walked behind the vehicle and across the street from where he observed Phillips outside of the open door of the pickup on the driver’s side with Mitchell, bent over on the seat, partially out of the truck. Jenkins further testified Cleophas was making comments to the effect that Mitchell was trying to seduce Phillips’ ex-wife and his sister. Jenkins approached the truck and again attempted to tell Phillips to stop hitting Mitchell, but the defendant ordered him away. Cleophas struck one more blow with the pistol to Mitchell’s head and the gun fired the fatal shot. Jenkins testified as the pistol came down and fired it appeared to him the blow was the same as the others and Phillips had no intent to fire the gun. He stated Phillips appeared shocked and held Mitchell’s head up. Phillips propped Mitchell up in the pickup and sped to the hospital to obtain medical treatment; however, Mitchell died.
The shooting was reported to the police, immediately following the shot, by Mitchell’s girl friend, Betty Glenn, who heard gunfire and rushed from her apartment to the pickup to investigate. She was able to see that Mitchell was bleeding and wounded. Phillips hurriedly drove away just as she arrived and was met by the police at the hospital. He again brandished the pistol but later surrendered without a struggle.
The defendant was charged with premeditated murder, felony murder, aggravated assault and aggravated kidnapping. He was convicted of felony murder and aggravated kidnapping.
Defendant’s first issue on appeal is the State’s failure to comply with a court order to produce a prior taped statement of a witness. Leroy Jenkins was the primary witness for the prosecution. He testified about the events which occurred immediately prior to and during the time of the alleged murder. Among other things, Jenkins testified at trial that Phillips forced Mitchell at gun point to get into his truck and confined him there for the purpose of inflicting bodily harm on him. He testified defendant had been drinking but his state of intoxication caused no visible change from his normal behavior pattern. On cross-examination, Jenkins referred to a taped statement he gave the police on August 1,1978. The defense requested production of the tape. It had been provided only with a taped statement Jenkins made twelve days after the shooting and knew nothing of a prior statement. The court ordered the tape be furnished to defendant that evening. The order was not complied with.
After both parties had rested, prior to the giving of instructions, the defendant moved to strike the testimony of Jenkins because the State had not produced the August 1 tape as ordered. At that time it was revealed the prosecutor had had the tape in his possession but had not revealed it to the defendant’s attorney because he considered it inaudible and because the tape had not again been requested by the defendant. Defendant was given the opportunity to hear the tape at that time but refused. The trial court overruled the motion to strike.
Defendant contends the unrevealed tape differs significantly from Jenkins’ second statement and his testimony at trial. He contends Jenkins said nothing in his first statement about defendant yelling at Mitchell and ordering him into the truck. Rather, Jenkins said he couldn’t hear what, if anything, was said. On the other hand, at trial Jenkins testified Phillips brandished a gun and ordered Mitchell into the truck. Jenkins admitted in his first statement the defendant was talking out of his head and not making sense, while at trial he testified Phillips was acting normal. Defendant also contends the unproduced tape revealed Jenkins had prior interviews and discussions with the police, notes and writings which were also not produced pursuant to the general discovery order filed before the trial.
Defendant filed a motion for a new trial raising these issues again, and again the court denied the motion, this time because defendant was given an opportunity to listen to the tape prior to submitting the case to the jury. The controversial tape was marked Exhibit # 22 and made a part of the record on appeal. We have listened to it and read the transcription. We find the tape completely audible and at variance with Jenkins’ trial testimony and to a lesser degree his second statement. Also, it is apparent from listening to the tape that Leroy Jenkins had talked to the police before he made the August 1 tape. Defendant was not informed of those discussions.
The court ordered all statements of witnesses and police notes of statements delivered to the defendant. None were provided. It is clear defendant spoke with the police prior to making the August 1 statement. If there are any notes of that meeting, they should have been provided pursuant to the general discovery order.
With regard to the production of the first tape for use at cross-examination, we stated in State v. Wilkins, 220 Kan. 735, 741, 556 P.2d 424 (1976):
“A trial court in exercising its discretion in ruling upon a motion to strike the testimony of a witness for failure of the prosecution to produce a statement pursuant to K.S.A. 22-3213(2), should consider why the statement was not produced; if it was lost, the facts and circumstances surrounding the loss; the negligence or fault on the part of the state; the nature, relevance and importance of the statement; the risk of prejudice to the defendant; the essentiality of the testimony to the state; and the other evidence in the case. The administration of the ‘Little Jencks Act’ is thus entrusted to the sound discretion of the trial judges, who must use the ‘balancing approach’ described in the cited cases in determining what sanctions, if any, to apply.”
In State v. Kelly, 216 Kan. 31, 35, 531 P.2d 60 (1975), we stated:
“It was pointed out in the opinion [State v. Hill, 211 Kan. 287, 507 P.2d 342 (1973)] that our statute, K.S.A. 22-3213 (Weeks), preserves the confidentiality of statements of witnesses, other than the defendant’s, until after the witnesses have testified. Such pretrial statements of witnesses are to be made available to the defense on request after the witnesses have testified.
“. . . Under our decision in Hill, in order to constitute reversible error when there has been a deliberate refusal of the prosecution to honor a request for the written statements of witnesses, the request must come after the witnesses have testified, the evidence withheld must be clearly and unquestionably exculpatory and the withholding of the evidence must be clearly prejudicial.”
Kelly goes on to state when the court is dealing with the credibility of an eyewitness to the crime and the prosecution’s case is built entirely on the testimony of that witness, credibility may become a material issue. In that instance, the “reliability of the testimony of the witness may well be a determining factor by which the jury arrives at guilt or punishment. For this reason evidence materially affecting credibility may fall under the heading of exculpatory evidence.” State v. Kelly, 216 Kan. at 36-37.
It is apparent the evidence in this case was purposefully and willfully withheld by the prosecution in violation of the court’s order to produce it. At the argument on defendant’s motion to strike Jenkins’ testimony, the prosecutor stated:
“Now, I had in my possession in the courtroom for the last two days of the State’s case that earlier taped statement plus the taped statements' — all of the taped statements associated with this case. Mr. Shultz never said a word to me about listening to that taped statement, and I think that while the State is in the course of presenting its case that I had one or two other things to think about other than trying to make arrangements or set up an appointment with Mr. Shultz to listen to that tape.”
The State appears to be laboring under the mistaken belief that compliance with the discovery order will cause them undue hardship and loss of valuable time in preparing their case. The simple act of producing the tape for defendant’s use would have been sufficient to comply with the court’s order. The State was under no obligation to formally meet with the defendant and listen to the contents of the tape. By the same token, the defendant was under no obligation to follow up the court’s order with additional requests for compliance with that order.
The tape clearly varies from the witness’s trial testimony and other statements to the police by a sufficient amount to affect his credibility. The jury must be allowed to weigh the inconsistencies between the statements to determine for themselves the witness’s credibility. The evidence is so material the withholding of it was clearly prejudicial to the defendant. The trial court abused its discretion in refusing to grant defendant a new trial.
Defendant next contends there is not sufficient evidence of a taking or confining of the victim, accompanied by force, to establish aggravated kidnapping, the underlying felony of the felony murder charge, and that his conviction on both counts should be reversed. Defendant claims the evidence shows Mitchell went voluntarily to the truck with Phillips. He argues there is no evidence showing Phillips forced Mitchell into the pickup after their conversation at the back of the vehicle.
The kidnapping and aggravated kidnapping statutes applicable to this case are set forth below:
21-3420. “Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage; or
(b) To facilitate flight or the commission of any crime; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of any governmental or political function.
Kidnapping is a class B felony.”
21-3421. “Aggravated kidnapping is kidnapping, as defined in section 21-3420, when bodily harm is inflicted upon the person kidnapped.
Aggravated kidnapping is a class A felony.”
In State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976), this court stated, in construing K.S.A. 21-3420:
“We therefore construe our statute as requiring no particular distance of removal, nor any particular time or place or confinement. Under our present statute it is still the fact, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping.”
We have carefully reviewed and compared all of Jenkins’ statements and his trial testimony from which we conclude there is sufficient evidence, although varying from statement to statement, upon which a jury could convict defendant of aggravated kidnapping and felony murder beyond a reasonable doubt. The defendant brandished a gun, opened the pickup door and forced Mitchell to get in. He then proceeded to pistol whip him about the head and face. If that evidence is believed by a jury, the necessary elements of confinement, infliction of bodily injury and the resulting bodily harm are present to constitute a violation of K.S.A. 21-3421, thereby providing the underlying felony necessary to find felony murder.
The judgment of the trial court is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Miller, J.:
The plaintiff, Mrs. Nancy Dugan, appeals from the order of the trial court granting summary judgment to all defendants. Mrs. Dugan brought this action for damages and for reformation or cancellation of two mortgages and two subordination agreements against defendants First National Bank in Wichita, K & B Development Corporation, and Harry D. Bledsoe. The Bank impleaded defendants Emmet A. Blaes, William D. Shirk, Claire E. Shirk, and Dolores J. Engels, as interested parties.
The primary issue is the propriety of the entry of summary judgment. Other of the numerous issues raised will be stated and discussed later in this opinion. The facts are somewhat lengthy and complex, but a statement of the background facts is necessary to an understanding of the issues presented.
Mrs. Dugan is a widow in her seventies. She has some infirmities and suffers from Parkinson’s disease and coronary disease. She owns a large tract of farm land located in the west part of Wichita, adjoining or near the municipal airport. Parts of the land, and particularly that along Kellogg, have been extensively developed through various arrangements, often including long-term leases of parcels to commercial developers. Most of the development occurred prior to the death of her husband in 1971.
Mrs. Dugan, as lessor, entered into an 87-year lease with defendant Bledsoe, as lessee, in 1972. The lease covers slightly over one acre of land. The provisions of an earlier recorded lease are included by reference. Of interest here is the following special provision:
“a) If the Lessee in financing new construction on the leased premises encounters a requirement requiring Lessors to subordinate in favor of a first mortgage, Lessors agree to cooperate with Lessee in said financial arrangements and subordinate their leasehold interest thereto.”
Bledsoe, in 1973, assigned his interest in the 1972 lease to K & B Development Corporation, of which Bledsoe was the principal (51%) stockholder. K & B then secured a construction loan of $275,000 and executed a note and mortgage to the Bank. Mrs. Dugan, on August 8, 1973, executed a subordination agreement, whereby she subordinated her fee simple interest in the leased land to the lien of the Bank’s mortgage. The subordination agreement executed by Mrs. Dugan and also by corporate officers on behalf of K & B and the Bank contained the following provision:
“WHEREAS, in order to induce Lessors to execute this Subordination Agreement, Lessee does hereby covenant, warrant and represent that the actual costs of new construction of improvements on the leased premises described in Exhibit “A” shall exceed the sum of $275,000.00.”
This document was prepared by an attorney for the Bank.
Mrs. Dugan and her late husband were customers of the First National Bank in Wichita from the 1930’s up until the time of the events giving rise to this litigation, and during the same period they were clients of the Wichita law firm of Jochems, Sargent & Blaes. In later years Mr. Robert Braden of that firm handled their affairs. Mrs. Dugan sought Mr. Braden’s advice before signing the $275,000 subordination agreement; thereafter she signed it, the mortgage and subordination agreement were placed of record, and the loan was disbursed to K & B.
The leased land included a building which was operated as a restaurant by Mr. Wong. Mrs. Dugan was aware that K & B was buying his business, including furniture and fixtures, at a cost of $40,000. K & B utilized the old building or at least portions of it, remodeled extensively, built an extensive new addition, installed all new furniture and fixtures, and opened the new club and restaurant for business in late 1973. At that time K & B had outstanding debts in addition to the bank loan, and when the financial picture did not improve in 1974, K & B sought unsuccessfully to increase the bank loan. Mr. Bledsoe consulted his attorney, Mr. Blaes, and eventually Blaes and the other impleaded defendants agreed to loan K & B the sum of $100,000, conditioned upon Mrs. Dugan again subordinating her fee interest.
K & B agreed to execute a mortgage to the First National Bank in Wichita. The Bank, as escrow agent and the named mortgagee, was to handle the loan. Mr. Blaes and his associates, William S. Shirk, Claire E. Shirk and Dolores J. Engels, were to advance the money; the Bank was to receive all loan payments and remit to the actual lenders in their appropriate proportionate shares. Documents to accomplish these ends were prepared and executed.
Meanwhile, Mr. Blaes prepared a subordination agreement for Mrs. Dugan’s signature, and this was presented to her at her home one evening in April, 1975, by Mr. Bledsoe. Mrs. Dugan was not informed as to the actual parties involved in the loan or as to the intended use of the money. According to her deposition testimony, Mr. Bledsoe told her that it had taken more for construction and equipment than had been anticipated; and he told her or led her to believe that he would take the document to Mr. Braden so that he might look it over for her. With that understanding, she signed the second subordination agreement. Bledsoe did not present the document to Braden for review. Instead, the second subordination agreement and the new mortgage were placed of record, and the loan proceeds were delivered to K & B.
When the original subordination agreement was executed in 1973, construction was nearing completion. Bledsoe informed Mrs. Dugan that the loan proceeds of $275,000 would be used for building construction costs and equipment. The loan proceeds were disbursed by the Bank under the following authorizations:
“Working Capital ............................ $ 10,000.00
Architect .................................. $ 5,946.28
Equipment and Fixtures ...................... $ 82,131.82
Contractor................................. $176,171.90
Engineering................................ $ 750.00”
Mrs. Dugan complains of the “working capital” disbursement. In 1976, Mrs. Dugan discovered that Bledsoe had not taken the second subordination agreement to Braden; that Braden had not examined and approved it on her behalf; that the $100,000 loan proceeds had not gone into building and construction costs but instead had gone to pay debts of K & B; and that Mr. Blaes and other persons, and not the Bank, had made the second loan. Soon thereafter this action was filed.
The plaintiff claims that a portion of the funds from the 1973 mortgage was not used for the construction of improvements and to that extent the mortgage and the subordination agreement are void:
(1) for failure of consideration;
(2) because the representations by K & B in the subordination agreement were false, or negligent, and constitute a breach of the lease;
(3) because the Bank was negligent in advancing mortgage proceeds for purposes other than for new construction; and
(4) because both Bledsoe and the Bank breached a fiduciary duty to plaintiff by permitting the use of such funds for such purposes, and by failing to advise plaintiff of the consequences of the misuse of funds.
She asks that the 1973 mortgage be reformed. As to the 1975 mortgage and subordination agreement, she claims that these instruments are void:
(1) for failure of consideration;
(2) because of an implied obligation of K & B not to request plaintiff’s subordination except when required by a mortgagee to finance new construction;
(3) because of false representations by Bledsoe and K & B that the mortgage proceeds would be used for construction of improvements on the real estate; in stating that the instrument would be presented to her attorney for examination prior to filing; and in advising her that the Bank would be the mortgagee; and
(4) because the Bank, K & B, and Bledsoe each breached fiduciary duties owed to the plaintiff.
Plaintiff asks that the 1975 mortgage be declared void; and she seeks damages as against the Bank, K & B, and Bledsoe. She asserts no claim against the impleaded defendants, and no cross-claim and no third party claim is made against them. After the completion of discovery, motions for summary judgment were sustained. The trial court made findings of fact (some of which are disputed) and conclusions of law, and entered judgment for the defendants. In substance, its conclusions of law were:
(1) that the Bank owed plaintiff no duty to supervise the disbursement of the proceeds of either loan, and therefore could not be negligent towards her;
(2) that neither the Bank, Bledsoe, nor K & B occupied a fiduciary relationship with or owed a fiduciary duty to plaintiff;
(3) that Bledsoe was not the agent of Shirk, Shirk, or Engles in obtaining the $100,000 subordination;
(4) that there is no clear and convincing evidence that K & B fraudulently obtained the subordination agreement to the $100,000 mortgage; and that even if there were fraud, there is no evidence of complicity in or knowledge of such fraud by the Bank or the impleaded defendants, and the mortgage must be held valid with respect to them;
(5) that on the basis of G. Credit Co. v. Mid-West Land Development, Inc., 207 Kan. 325, 485 P.2d 205 (1971), plaintiff was obligated to subordinate for equipment, inventory and operating capital;
(6) that plaintiff’s' action against the bank on the basis of fraud, negligence or breach of fiduciary duty with respect to the 1973 mortgage is barred by K.S.A. 60-513; and
(7) that the consideration for the original lease is sufficient consideration for the subsequent subordination agreements.
The first issue presented is the claim of plaintiff that the trial court erred in entering summary judgment when there were disputed facts. The rules to be applied when considering motions for summary judgment have been set forth in many of our decisions. Mildfelt v. Lair, 221 Kan. 557, 559, 561 P.2d 805 (1977); Stripling v. Star Lumber & Supply Co., Inc., 216 Kan. 507, 509, 532 P.2d 1101 (1975). Summary judgment is proper only if there are no genuine issues as to any material fact. The trial court, in ruling upon motions for summary judgment, may not determine factual issues; instead, the trial court should search the record to determine whether issues of material fact do exist. Pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. If there is a reasonable doubt as to the existence of issues of fact, a motion for summary judgment should not be sustained. And finally, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.
Plaintiff’s contentions regarding the second subordination agreement center upon the events surrounding her signing of that instrument. Her version is substantially as related above. Mr. Bledsoe, when his deposition was taken, did not recall where the document was signed, nor did he have any recollection of specific conversations with Mrs. Dugan at that time. Mrs. Dugan’s deposition testimony is to the effect that Bledsoe told her that the Bank was making the loan; he promised to deliver the document to her attorney for examination prior to recording; and he misled her as to the proposed use of the proceeds of the $100,000 mortgage. These facts were material; they were in dispute; and we conclude that the trial court erred in entering summary judgment as to these issues.
In this connection we should also discuss the appropriate standard to be applied when considering a motion for summary judgment against a claim of fraudulent conduct. The trial court found “no clear and convincing evidence” of fraud. Although to withstand a motion for summary judgment, an allegation of fraud must be pleaded with particularity under K.S.A. 60-209(¿>), and the party resisting the motion cannot rely solely upon pleadings, there is no special test of the evidence presented different from the usual standards on summary judgment. Neither K.S.A. 60-256 nor Rule 141, 224 Kan. lxviii, make any distinction between fraud and other causes of action, when a motion for summary judgment is before the court. We find no Kansas cases where this matter has been considered, but we note that federal courts apply the usual summary judgment rules to actions based upon fraud. Knoshaug v. Pollman, 148 F. Supp. 16 (D.N.D.), aff’d 245 F.2d 271 (8th Cir. 1957); United States v. Gill, 156 F. Supp. 955 (W.D. Pa. 1957). We conclude that a party resisting a motion for summary judgment in an action based upon fraud need not present “clear and convincing evidence” of fraud in opposing the motion.
The second issue presented is plaintiff’s claim that there was a fiduciary relationship between Mrs. Dugan and the Bank, and that the Bank had a duty to tell her the purposes for which disbursements were being made out of the $275,000, and the use being made of the $100,000.
Kansas recognizes the general rule that the relationship between a bank and its depositor is that of creditor-debtor and not of a fiduciary. Baker, Administrator v. Brial, 185 Kan. 322, 341 P.2d 987 (1959); Herbel v. Peoples State Bank, 170 Kan. 620, 228 P.2d 929 (1951); Epley v. Bank, 104 Kan. 489, 180 Pac. 187 (1919). Mrs. Dugan and her husband were long-time customers of the Bank; they had both a checking account and a savings account. Through the years they occasionally borrowed from the Bank, and after Mr. Dugan’s death, Mrs. Dugan borrowed a sum of money in order to pay the estate and inheritance taxes. Mrs. Dugan saw one of the bank officers at the site during construction of the restaurant and club, and exchanged pleasantries with him. At no time did she seek the advice of any bank officer or employee, nor did she have any discussion with anyone at the Bank concerning the lease, the construction, the mortgages, or the subordination agreements. There is no evidence that the Bank served as Mrs. Dugan’s financial adviser.
The determination of a fiduciary relationship is essentially a factual one. In Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, Syl. ¶ 4, 553 P.2d 254 (1976), we said:
“A fiduciary relation does not depend upon some technical relation created by, or defined in, law. It may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one v^ho, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.”
The existence of a fiduciary relationship between a bank and a customer has arisen under unusual circumstances; usually, the bank had dealt directly with the customer regarding the matters involved in the litigation, and the bank had knowledge of the reliance and confidence of the customer; in some instances the bank stood to profit from non-disclosure to the customer. Many of these cases are collected in the annotation found at 70 A.L.R.3d 1344. We have been unable to locate any case in which a fiduciary relationship was held to arise solely through a long-standing creditor-debtor relationship or prior dealings between the customer and the bank.
In the case of Amortibanc Investment Co. v. Jehan, 220 Kan. 33, 551 P.2d 918 (1976), relied upon by plaintiff, there were direct dealings between Jehan and Amortibanc, both orally and in writing; Amortibanc knew that Jehan was relying upon it to inspect and to make proper disbursement of mortgage proceeds during construction. In Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50 (1928), plaintiff was improvident, had no sound business judgment of the value of property, and practically her only business experience had been with Nelson, a banker, and Holmquist, the administrator of her husband’s estate. Nelson was held to owe plaintiff a fiduciary duty; his purchase of all of plaintiff’s assets for a fraction of their worth was set aside. Similarly, a fiduciary relationship was found to exist, giving rise to a fiduciary duty, under the particular facts of the following cases: Brasher v. First Nat. Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936), where the plaintiff employed a bank’s trust department to advise and assist her in the probate of her deceased husband’s will, and the bank failed to make certain disclosures; Tone v. Halsey, Stuart & Co., Inc., 286 Ill. App. 169, 3 N.E.2d 142 (1936), where a bank employee made false and fraudulent representations to the plaintiff regarding the financial conditions of a business whose bonds plaintiff was purchasing through the bank; First National Bank in Lenox v. Brown, 181 N.W.2d 178 (Iowa 1970), where the bank loaned money to a customer to purchase a business, and the bank failed to disclose its superior information about the business being purchased, and where the bank stood to benefit from the transaction; and Richfield Bank and Trust Co. v. Sjogren, 309 Minn. 362, 244 N.W.2d 648 (1976), where the bank made a loan for a particular purpose, knowing that the purpose could not be fulfilled.
Mrs. Dugan and her husband had a long-standing relationship with the Bank, but there is no indication that the Bank served as a financial adviser to Mrs. Dugan, and there was no direct contact regarding the present transaction. The Bank made no false representations; it did not induce Mrs. Dugan to enter into the subordination agreements; it was not requested by her to disclose any information; and it did not withhold any information which it should, in good conscience, have disclosed. We conclude that there was no fiduciary relationship between the Bank and Mrs. Dugan as a matter of law, and there was no breach of fiduciary duty. Likewise, the Bank had no obligation to Mrs. Dugan to supervise the expenditure of the mortgage proceeds, or to see that each dollar was spent for actual construction. The Bank was not negligent as a matter of law. We therefore conclude that the trial court was correct in entering summary judgment in favor of the Bank on these issues. We have not overlooked other cases and authorities cited by industrious counsel for plaintiff, but we find them distinguishable upon the facts and not persuasive.
Next, plaintiff contends that her evidence of fraud on the part of Bledsoe and K & B was clear, as was her evidence that Bledsoe breached his fiduciary duty to her. The question of fraud or fraudulent misrepresentation, as we have noted above, is one which is based upon disputed facts, and which remains for the trier of facts to resolve. We turn then to the plaintiff’s claim that Bledsoe owed her a fiduciary duty at the time of the execution of the second subordination agreement. The relationship between Mr. Bledsoe and Mrs. Dugan was primarily that of lessor-lessee, and under usual circumstances this is not a confidential relationship. Although confirming this rule, Robinson v. Eagle-Picher Lead Co., 132 Kan. 860, Syl. ¶ 1, 297 Pac. 697 (1931), also qualifies the rule, stating:
“[Pjeculiar and unusual facts, circumstances or provisions in the lease may impose such duties and obligations as to constitute the relationship as fiduciary.”
The record indicates that Mrs. Dugan had been a party to other leases in which Bledsoe was involved; however, it appears that all of their dealings had been at arms’ length, and there is no indication that she reposed special confidence in him or relied upon him for guidance and advice. Construing her deposition most favorably for her position, we conclude that the facts may support a finding of misrepresentation or fraud, but the facts do not support the legal conclusion that Bledsoe occupied a fiduciary relationship with Mrs. Dugan.
Plaintiff contends that there was a failure of consideration to the extent that mortgage proceeds were not used to improve the real estate. She strictly construes the provision of the lease, and seeks to have the mortgage construed to secure only that portion of the funds which is directly traceable into construction. The appellees, on the other hand, would not measure the required subordination against the disbursements, but against the value of the improvements, and the total cost to K & B. In G. Credit Co. v. Mid-West Land Development, Inc., 207 Kan. 325, 485 P.2d 205 (1971), we considered the phrase “for purposes of financing the improvements to be placed upon said property” to include the cost of incidental and preliminary expenses prior to actual construction. We mentioned fees for engineering and architectural plans and specifications, lease rental, and interest during construction, as examples of such preliminary expenses. From the record before us, it appears that in excess of the $275,000 mortgage proceeds were used for actual construction or for items allowable under the Mid-West rule. Bledsoe and K & B contend that much more than $375,000 was spent on the improvements, including construction, architect’s fees, equipment, and fixtures; and they claim that the present value of the improvements exceeds $500,000. The latter we regard as immaterial. It is undisputed that very substantial improvements were made on the property. It is not necessary that every mortgage dollar be traceable directly into the project; K & B may well have spent some funds directly for improvements while the original loan papers were being prepared, but prior to receipt of the loan proceeds. Substantial improvements were made, and we conclude that there was ample consideration to support the 1973 subordination agreement.
The second or 1975 subordination agreement, however, is a different kettle of fish. Mrs. Dugan claims that none of the proceeds from the 1975 loan was spent for improvements of any kind to her property. She was obligated under the lease to subordinate her fee interest only “in financing new construction on the leased premises.” Nothing in the lease requires her to subordinate her fee interest in order to bail the lessee out of a financial predicament. The lease contemplates improvement to the land in exchange for subordination. A promise of improvement is the consideration; here plaintiff alleges in effect that no improvements to the land were contemplated or intended by K & B and none were made. Ordinarily, where there is some consideration, a valid contract may result; but where there is a complete lack of consideration, there can be no contract. Every contract, to be legally enforceable, must be supported by a consideration. Feaster Trucking Service, Inc. v. Parks-Davis Auctioneers, Inc., 211 Kan. 78, 85, 505 P.2d 612 (1973); Alliance Mutual Casualty Co. v. Scheufler, 203 Kan. 171, 176, 453 P.2d 15 (1969); Coder v. Smith, 156 Kan. 512, 134 P.2d 408 (1943); and see 17 C.J.S., Contracts § 71. We conclude that the trial court, on the facts before it, was correct in holding that there was consideration for the 1973 agreement, but that the court erred in holding as a matter of law that there was consideration for the 1975 subordination agreement. Consideration for the original lease is not consideration for a subsequent subordination agreement, at least where the latter is one not required by the terms of the lease.
The next issue is whether the Bank, Blaes, the Shirks, and Engels are necessary parties to this action. Plaintiff seeks reformation or cancellation of the 1975 mortgage and subordination agreement. The Bank is the escrow agent of the others, who advanced the money for the loan. The mortgage and the subordination agreement provide security for the loan. Should the trial court hold, after trial, that those documents are void as to Mrs. Dugan, then while such a holding would not affect the obligation of K & B to make payment of the funds advanced, it would directly affect the efficacy of the mortgage and wipe out the lien created by that instrument on the land. We conclude that Blaes, the Shirks, Engels, and the Bank are necessary parties to a complete determination of this action. See K.S.A. 60-219. The Bank, however, will be affected only tangentially in its position as designated mortgagee and escrow agent; it has no financial interest in the 1975 mortgage.
The statute of limitations issue, and all other issues raised in the briefs, have been carefully considered but need not be determined in view of our disposition of this appeal.
We affirm the trial court’s judgment in favor of the defendants and against the plaintiff as to all issues concerning the 1973 mortgage and subordination agreement, for the reasons that neither the Bank nor Bledsoe occupied a fiduciary relationship towards plaintiff; there was no breach of fiduciary duty; there was no actionable negligence; there was consideration sufficient to support the subordination agreement; and the mortgage proceeds were spent substantially to pay the cost and related expenses of the project.
We reverse the judgment as to all issues (except the claims of breach of fiduciary duty) arising from the 1975 mortgage and subordination agreement, and we remand this case for trial of those issues.
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The opinion of the court was delivered by
McFarland, J.:
Defendant Leonardo Q. Hernandez appeals from his jury trial conviction of first degree murder (K.S.A. 21-3401). In the early morning hours of April 16,1978, defendant was patronizing the San Luis Club in Wichita. Hector L. Espinoza was also present at the club. The two men had a history of personal conflicts with each other, including physical violence. At approximately 2:00 a.m. the men engaged in another alterca tion. Defendant left shortly thereafter. Thirty to forty minutes later defendant, now armed with a .38 caliber handgun, returned to the club, walked over to the table where Espinoza was seated, and fired four shots into Espinoza, who died almost immediately thereafter. Additional details will be supplied where necessary for the determination of the three issues raised on appeal.
Issue No. 1: Did the district court err in allowing the deposition of Rudolpho Perez to be read to the jury?
Rudolpho Perez was also a patron of the San Luis Club at the time of the shooting and was standing within a few feet of defendant when the shooting commenced. He grabbed defendant, wrestled him to the ground, pinned defendant’s arms behind his back, took possession of the gun, held defendant until the police arrived, and gave an on-the-scene statement to the police. Within a day or two Perez contacted the police and advised them that he had been threatened in relation to the case. The police also learned that Perez was a Mexican national illegally in this country, and that his legal name was Sergio Gallardo. On May 1, 1978, concerned by the threats made to Perez and his possible deportation, the State caused a material witness bond to be set for Perez. He was unable to make the bond and was placed in a jail (different from that which was housing defendant). On May 9, 1978, the State filed the following motion:
“Comes now the State of Kansas by and through its attorney, James D. Turner, Assistant District Attorney, and moves this Honorable Court for an Order that the testimony of one Sergio Gallardo be taken by deposition at 11:00 A.M. on May 10, 1978.
“In support thereof, the Movant alleges that on or about 2:00 A.M. on April 16, 1978, Sergio Gallardo was present at the San Luis Club at 2255 N. Broadway in Wichita, Sedgwick County, Kansas; that he observed Leonardo Q. Hernandez shoot and kill Hector L. Espinoza; that he took possession of the handgun used in the shooting and kept Mr. Hernandez from leaving until the police arrived some 10 to 15 minutes later; that he turned the handgun over to the police and gave an interview describing what he had observed and done; that Mr. Gallardo’s testimony is material in the First Degree Murder Case No. 78CR721 against Leonardo Q. Hernandez.
“That Sergio Gallardo is a citizen of Mexico and is illegally present in the United States; that the U. S. Department of Immigration is aware of this situation and plans to deport Mr. Gallardo if he is released from the $5,000.00 material witness bond which is presently securing his custody; that Mr. Gallardo has agreed to return voluntarily which promise is reinforced by his past cooperation with law enforcement authorities; that despite his promise, Mr. Gallardo may be prevented from attending because there have [been] threats on his life from another illegal alien concerning his testimony in this case.”
The court granted the motion and the deposition was taken on May 10, 1978, with both defendant and defendant’s counsel present. Perez was thoroughly cross-examined by defense counsel. Preliminary hearing was had on May 18, 1978, and Perez was apparently present but was not called to testify. The State secured a temporary work permit for Perez (valid through October 31, 1978) and sought authorization for Perez to remain longer within this country. On June 6, 1978, the material witness bond was released and Perez went to work on a Reno County farm under the monitorship of the State. Perez promised to be present for the September 5, 1978, trial and had been fully cooperative throughout. The State continued to seek extension of the time Perez could remain in this country and had contact with Perez. On or about September 1, 1978, the State learned that all efforts in this regard had failed and that October 31, 1978, would be the last day Perez could remain in this country. This information was imparted to Perez on the same date so that he could start winding up his affairs and be advised of what to expect. Perez left for parts unknown shortly thereafter, but the State was not so advised until September 6.
The State then sought leave to introduce the deposition of Perez and such leave was granted, over defendant’s objection. The deposition had been taken pursuant to K.S.A. 22-3211, which provides:
“(1) If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an information or indictment may upon motion of a defendant and notice to the parties order that his testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.
“(2) If a witness is committed for failure to give bond to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may order that his deposition be taken. After the deposition has been subscribed the court may discharge the witness.
“(3) The prosecuting attorney may apply to the court for an order authorizing him to take the deposition of any witness for any of the reasons and subject to the limitations stated in subsection (1). Upon the filing of such application, the court shall set the matter for hearing and shall make an order requiring the defendant to be present at such hearing. If, upon hearing, the court determines that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to prevent a failure of justice the court may authorize the prosecuting attorney to take the deposition of such witness in the county where the information or indictment has been filed.
“(4) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time.
“(5) A deposition shall be taken in the manner provided in civil actions. The court upon request of the defendant may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.
“(6) In every instance in which the court authorizes the taking of a deposition, other than a deposition upon written interrogatories, the court shall make a concurrent order requiring that the defendant be present when the deposition is taken. If it appears that the presence of the defendant may be coercive to the witness whose deposition is to be taken, the court shall order that the deposition be taken before a judge.
“(7) At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:
“(a) That the witness is dead; or x
“(fi) That the witness is out of the state of Kansas and his appearance cannot be obtained, unless it appears that the absence of the witness was procured by the party offering the deposition; or
“(c) That the witness is unable to. attend or testify because of sickness or infirmity; or
“(d) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena or other process.
“Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is relevant to the part offered and any party may offer other parts.
“(8) Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.” '
Defendant contends the trial court erred in allowing the deposition of Perez to be read to the jury. No challenge is or was made to the propriety of the order directing the deposition to be taken, and the order was clearly appropriate under the circumstances. No objection to the taking, time, or place of the deposition was or is asserted. Likewise, no challenge is made to the validity of the statute which authorized the taking of the deposition (K.S.A. 22-3211). We are confronted only with the use of the deposition at trial (K.S.A. 22-3211[7], particularly [b] and [d]). Defendant challenges the use on the grounds that the absence of Perez was occasioned by negligence or bad faith on the part of the State, the specific wrongful conduct being the September 1 conversation in which Perez was told that efforts to extend his stay beyond October 31, 1978, had terminated unsuccessfully. Additionally, the use of the deposition is challenged on the basis that the Perez subpoena was addressed to his old Wichita address when in fact he was living in Reno County.
K.S.A. 22-3211(7) provides the deposition may be used if it appears:
“(b) That the witness is out of the state of Kansas and his appearance cannot be obtained, unless it appears that the absence of the witness was procured by the party offering the deposition; or
“(d) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena or other process.”
The subsections are in the disjunctive — the State need show only one of the conditions precedent exists. Under the circumstances there was certainly a fair presumption that Perez was out of the state. Did the State procure his absence? We think not. “Procure” is defined by Black’s Law Dictionary 1373 (4th ed. rev. 1968), as “[t]o initiate a proceeding; to cause a thing to be done; to instigate; to contrive, bring about, effect, or cause.” For the absence of a witness to have been “procured” by a party there must be a showing that the party collusively instigated or induced the witness to absent himself. See Weiss v. Weiner, 10 F.R.D. 387, 388 (D. Md. 1950); and Kono v. Auer, 51 Hawaii 273, 276, 458 P.2d 661 (1969). The State was working with a very cooperative witness in an effort to assist him in remaining in this country past October 31, 1978. The fact the State in good faith advised Perez on September 1 that its efforts had been futile, does not constitute procuring the witness’s absence, although, when viewed in retrospect, such information may have added to the witness’s existing reasons for absenting himself. This is especially true where in the same conversation Perez promised to appear at the trial which was just a few days hence.
Defendant relies heavily on Motes v. United States, 178 U.S. 458, 44 L.Ed. 1150, 20 S.Ct. 993 (1900), which involved the use of preliminary hearing testimony of a former codefendant, now State’s witness, who absconded from the prosecution’s custody on the day of trial under highly suspicious circumstances. The court in Motes held the testimony should not have been allowed by virtue of the prosecution’s negligent acts. Negligence is not synonymous with procuring. In order for negligence to come within the meaning of “procure” the complained of activity has to reach the level of collusive instigation or inducement. There is no showing that the State desired the absence of the witness and acted directly or indirectly to obtain a desired absence.
Defendant further contends the State failed to meet the requirement of K.S.A. 22-3211(7)(d) by not issuing a subpoena to Perez at his Reno County residence (subpoena was issued to his old Wichita address). As previously stated, 22-3211(7)(b) and (d) are in the disjunctive. Nevertheless, the State was in close contact with the witness and had placed him on the Reno County farm with its owner as supervisor. On September 1 the witness assured the State he would be present when needed at the trial a few days hence. After the witness absconded the subpoena would have been a futile act. An earlier subpoena, under the circumstances, would not have altered the subsequent events. The State was already monitoring the witness’s activities and had no reason to anticipate his last minute absence.
The points raised under Issue No. 1 have been considered and found to be without merit.
Issue No. 2: Did the absence of Perez and the reading of his deposition to the jury deny defendant his right of confrontation and his right to effective counsel?
This issue is closely related to the first issue. Defendant’s counsel was appointed on April 27,1978. The deposition of Perez was taken on May 10, 1978. The preliminary hearing was on May 18, 1978. The coroner’s testimony indicated that three bullets lodged in the victim and a fourth grazed the victim’s arm; further, that two of the shots caused fatal wounds. At trial defendant’s counsel presented a theory that the two nonlethal shots were the first shots fired; further, that the two lethal shots were fired while Perez was struggling with defendant, and that the fatal shots were fired when defendant did not have complete control of the gun. Defendant now claims he was denied effective assistance of counsel by virtue of the Perez deposition being taken prior to development of this defense theory and the lack of opportunity to cross-examine Perez with this theory in mind.
The deposition herein was taken pursuant to K.S.A. 22-3211, which by its very nature presupposes a strong possibility that the deposition may be introduced at trial in lieu of the witness. The purpose of taking a deposition pursuant to K.S.A. 22-3211 is to perpetuate testimony. State v. Steward, 219 Kan. 256, 547 P.2d 773 (1976). Counsel must proceed accordingly. Testimony at preliminary hearings is not taken under comparable circumstances. Depositions to preserve testimony in criminal proceedings are rarely taken and little case law has developed. They stand in a different category from prior testimony from preliminary hearings which, if admissible, come in through K.S.A. 60-460(c).
There is no claim that defendant did not have effective assistance of counsel at the time the deposition was taken. The claims of ineffective counsel and lack of confrontation arise from the combination of two subsequent events — a change of theory of defense plus the absence of Perez. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells. Schoonover v. State, 2 Kan. App. 481, Syl. ¶4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978). Defense counsel’s cross-examination in the deposition was carefully and capably done. Wisdom gained through hindsight cannot be used to gauge effectiveness of counsel. In retrospect, the possibility that some strategy or procedure, different from that used by the accused’s lawyer, might have brought about better results for the accused, is wholly insufficient to sustain a claim of ineffective assistance of counsel. State v. Pencek, 224 Kan. 725, Syl. ¶4, 585 P.2d 1052 (1978).
Defendant’s claim of violation of his constitutional right of confrontation of the witness testifying against him is equally without merit. Even if the Perez testimony had come from the preliminary hearing rather than by deposition it would have been admissible under the facts herein, applying the rules as set forth in State v. Alderdice, 221 Kan. 684, 561 P.2d 845 (1977). Perez had been extremely cooperative with law enforcement officers. The only way his appearance could have been guaranteed would have been to keep him in jail from the date of the homicide (April 16) through trial (September 12), which would have been highly inappropriate under the existing circumstances. Additionally, we have reviewed the trial transcript carefully and note that the primary thrust of the theory of defense was that defendant was acting in self-defense. In closing argument, defendant’s counsel argued self-defense with the theory that the fatal shots were fired while Perez was grappling with defendant. Also, in his closing argument, he urged the theory that defendant did not intend to kill the deceased and that the fatal shots were not aimed shots. In so arguing, defense counsel relied heavily on the Perez deposition.
All points raised in Issue No. 2 have been carefully considered and found to be without merit.
Issue No. 3: Did the trial court err in denying defendant’s motion for funds for the transportation from Arizona of a witness who was in federal custody?
The witness involved in this issue was Jacob Galavez Sifuentes. He was also a patron of the San Luis Club on the night in question (along with almost 100 others). Sifuentes was taken into custody sometime after the events herein to await transfer by federal authorities to face federal charges in Arizona. On July 27, 1978, his deposition was taken in the Sedgwick County jail. The record is bare of any court proceedings pursuant to K.S.A. 22-3211 for the taking of Sifuentes’ deposition, but the deposition was taken by defendant, with the State cross-examining. No issue is made as to the procedure involved. At the time of the trial the witness was in federal custody in Arizona.
The thrust of Sifuentes’ testimony was that the deceased had threatened defendant earlier in the evening and it was adduced to support the self-defense theory.
On August 24, 1978, defendánt filed the following motion:
“Comes now the defendant, Leonardo Hernandez, by and through his attorney, Barry L. Arbuckle, and moves the Court for an order pursuant to K.S.A. 22-4507 and K.S.A. 22-4508, advancing funds to the U. S. Government to insure the appearance and testimony of the witness Jacob Galavez [Sifuentes] at the defendant’s trial. In support of said motion defendant informs the Court of the following:
“1. The defendant is charged with the State’s most serious offense, the first degree murder of one Hector Espinosa.
“2. The witness, Jacob Galavez, is currently a prisoner in the custody of the U. S. Marshal in Phoenix, Arizona, awaiting disposition in Federal Court on a drug charge. Defendant’s counsel has filed a Writ of Habeas Corpus Ad Testificandum to secure Jacob Galavez’s presence.
“3. The witness, Jacob Galavez, was present at the club in Wichita when the homicide took place and actually witnessed an altercation between the defendant and deceased Hector Espinosa shortly before the shooting.
“4. The witness, Jacob Galavez’s testimony is crucial to the defendant’s defense of self defense or would at least corroborate a killing in the heat of passion (manslaughter) instead of first degree murder.
“5. The witness, Jacob Galavez, has no prior felony convictions affecting his credibility and would make a very credible witness being much more effective in person than through his deposition transcript.
“6. The defendant had been drinking for approximately twelve (12) hours before the shooting and therefore his recollection of the events leading up to the shooting is significantly impaired and therefore he is hampered in effectively describing his defense of self defense.
“7. Counsel for the defendant has been in close contact with the U. S. Marshal’s Office in Wichita, Kansas, and has been told by Deputy Marshal Ron Evans that the cost would be approximately $3,000.00 for Jacob Galavez’s presence for two (2) days in Wichita, Kansas.”
The motion was heard at the beginning of the trial (September 5, 1978) and defense counsel stated:
“Your Honor, I have expressed in my motion the reason, the specific reason I think Mr. Galavez [Sifuentes] should be returned, and I do know that, in talking with Mr. Hernandez, that is his personal wish, also. I don’t know what else to add other than to say I think Mr. Galavez is a matter of strategy and trial tactics, and would make a good witness, and I think it would be to Mr. Hernandez’ advantage to have him here personally, because I don’t know that the instruction will be followed by the Jury. I think he makes a good witness, and the impact would be better if he were here personally, and we would make that request here. At that time the only reason the deposition was taken was that I was afraid this would happen, and therefore took the deposition. We would ask the Court to return him. I think we can have him here probably in a couple days, if the funds were released.”
The motion was overruled.
Defendant’s brief states he “filed a Writ of Habeas Corpus Ad Testificandum in the Kansas District Court.” We assume he means the United States District Court for the District of Kansas, but this is unclear. There is no allegation that the writ was acted upon. Defendant cites K.S.A. 22-4209, which provides:
“The order to the witness and to the person having custody of the witness shall provide for the return of the witness at the conclusion of his testimony, proper safeguards on his custody, and proper financial reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness, and may prescribe such other conditions as the judge thinks proper or necessary. The order shall not become effective until the judge of the state requesting the witness enters an order directing compliance with the conditions prescribed.”
The above statute is a part of the Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act (K.S.A. 22-4207 et seq.). There was no showing of any effort to comply with the provisions of the act or that said act applies to federal prisoners. Clearly, the witness was beyond the jurisdiction of the district court. Although the deposition was not taken in accordance with K.S.A. 22-3211, it appears from defense counsel’s arguments to the trial court (above quoted) that it was his intent to perpetuate testimony by the taking of the deposition. The deposition was read to the jury.
Defendant contends his right to compulsory process was violated and he was thereby denied a fair trial. We do not agree. Under the circumstances herein we have no hesitancy in concluding that the trial court did not abuse its discretion in denying defendant’s motion for funds.
All points raised, whether or not specifically enumerated in this opinion, have been considered and found to be without merit.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by intervenors from a judgment finding the action of the Board of County Commissioners of Butler County denying an application for a zoning change to be arbitrary and unreasonable, and ordering the approval of the application.
The Combined Investment Company, a partnership consisting of G. Marc Myers and others, owns the land. It commenced this action, against the Board of County Commissioners after its request for a change of zoning was denied. Charles Rombold and several other residents of the county who opposed the change intervened. We will refer to the parties as the plaintiff or the landowner; the Board; and the intervenors.
The first issue is whether the findings of the trial court are supported by the evidence. Additionally, appellants contend that the trial court erred in its conclusions as a matter of law. A somewhat detailed statement of the background facts is necessary.
The plaintiff has owned a quarry in Butler County since 1969; the quarry was in existence prior to that time, and has been in operation since 1952. The quarry is operated by the George M. Myers Construction Company, and is known as the Myers Quarry. This quarry is the only source of state approved concrete aggregate in Butler County; it mines what is known as Cresswell rock. The supply of suitable rock appeared to be dwindling, so in 1969 plaintiff purchased a quarter section of land immediately east of the present quarry as a reserve, and in 1976 it sought to have the zoning on about 137 acres of that quarter section changed from agricultural to quarry. The Butler County Planning Board held two hearings, then recommended approval. A protest by the owners of 20% of the land within 1000 feet of the boundáries of the 137-acre tract was filed in the office of the county clerk; therefore a unanimous vote of the Board of County Commissioners was required to grant the requested zoning change. K.S.A. 19-2920. The Board, without hearing further evidence, denied the change, two members of the Board voting in favor of plaintiff’s application and one member, Commissioner Mauk, voting against it. This action followed.
The petition set forth two causes of action. By the first, plaintiff seeks a decree granting rezoning on the basis that Commissioner Mauk’s vote was arbitrary and capricious; by the second, plaintiff seeks a determination that K.S.A. 19-2920 is unconstitutional. The trial court upheld the constitutionality of the statute, and that ruling is not challenged on appeal.
At a pretrial conference held immediately before trial, the trial court ruled that it would limit plaintiff’s evidence to those matters and evidence presented to Commissioner Mauk or available to him from the Planning Board minutes and to any other evidence relevant to the conflict of interest question raised by plaintiff on the day of trial. The court further ruled that any other evidence that the parties wished to present would not be considered, but would be permitted to be proffered to preserve the record in the event of an appeal. Trial was completed in two days; some evidence was not admitted but was proffered, and as to the latter the trial court did not permit cross-examination.
The trial judge made extensive and detailed findings of fact and conclusions of law. The findings were attacked by the intervenors; the judge then reviewed all of the findings and modified many of them. The resulting amended findings of fact, and the conclusions of law, are as follows:
“1. The Combined Investment Company filed an application for and paid the zoning fee for change of zoning from Agricultural to Quarry on the [137-acre tract here involved] on July 29, 1976 ....
“2. The appropriate legal notices were mailed and published, and the first hearing before the Butler County Planning Board was held August 2, 1976.
“3. Two of the three County Commissioners . . . attended the hearing before the Butler County Planning Board on August 2, 1976. All three County Commissioners had received notice of the hearing and were aware that the Plaintiff’s zoning request would be considered at that time.
“4. The third County Commissioner, William D. Mauk, Sr., did not attend the August 2,1976, hearing even though the property to be rezoned was in his district.
“5. A substantial majority of the evidence presented by Combined Investment Company in support of its request for a zoning change was presented at the August 2, 1976, hearing.
“6. Minutes of the August 2, 1976, hearing were taken by a secretary from the office of John Tipton, zoning officer for Butler County, Kansas. At the September 7,1976, hearing, A. Martin Millard, representing some of the land owners in the area, objected to the minutes .... In this trial Plaintiff has likewise objected to them as incomplete and sometimes inaccurate. Nevertheless, the Planning Board adopted them with an amendment which had been mailed, by vote of 7-0. No recording or other transcription was made. The evidence was that the meeting was lengthy and admittedly the 9 or 10 pages of minutes would represent a rather highly summarized report of the proceedings, but one that is substantially accurate.
“7. At this August 2, 1976, hearing, the Butler County Planning Board requested that Plaintiff conduct a seismographic study of a quarry blast. Combined Investment Company agreed to conduct such a study, and report same to the Planning Board at the next hearing.
“8. Evidence presented at the first hearing indicated as follows:
a. The highest and best present use of the property to be rezoned was quarry use.
b. That the described property is 2,440' X 2,440' with an 8' overburden and 8' to 10' of rock.
c. That the quarry would provide an economic impact for Butler County as it was the only quarry in the County that has quarriable commercial State approved aggregate.
d. Plaintiff purchased the subject property in 1969 as a reserve for an existing quarry, east of and adjacent to the subject property. This quarry is presently operated by the George M. Myers Construction Company, as it was at the time of Plaintiff’s purchase of the subject property in 1969. . . .
e. The existing quarry has been in operation since 1952. It is now almost depleted and will cease operations in a short period of time if Plaintiff’s application is not approved.
f. From the time of its inception, the existing quarry has been in a sparsely populated area. The continued operation of the quarry in the subject area will not have any more impact on persons living or using the surrounding area than now exists.
g. Mr. Martin Goedecke, an engineer for Plaintiff, estimated that the new quarry would last about 15 years; that the shocks would not increase; and if they got closer to houses, they would decrease the charges.
h. The quarry’s economic importance to Butler County and the State of Kansas is substantial. The more important elements are as follows:
(2) The quarry directly employs 15-20 persons in Butler County, and the income paid those employees directly supports 120-180 Butler County residents.
(3) Support for these residents and jobs for those employees will be lost if the quarry is not permitted to mine its reserves in the subject property.
(5) The Myers quarry is one of two principal quarries in western Butler County that produces gravel and rock material for both Butler and Sedgwick Counties. The other quarry is owned and operated by L. A. Knebler and is known as the Knebler Quarry.
i. Ted Farmer is a licensed professional civil engineer employed by Butler County, Kansas, as county engineer. He is in charge of the construction, maintenance and repair of all roadways and bridges in the county road system. No one made any complaints of blasting or of dust from the operation of the quarry itself to the county engineer prior to the August 2, 1976, hearing.
j. The Butler County engineer personally inspected the Myers quarries on numerous occasions and believes that dust therefrom is not any more significant than dust from a blowing wheatfield.
k. Mr. Farmer further testified, without contradiction, that the portion of 21st Street that Mr. Nath complained of lies within a township in Commissioner Mauk’s district. Commissioner Mauk has never before or after this incident approached the county engineer on behalf of that township to discuss improvements in dust or other road conditions in that area.
l. Mr. Farmer made no secret of the fact that he favored Plaintiff’s request for a zoning change and both the Planning Board and the County Commission were aware of his position at the time of their votes on Plaintiff’s application.
m. Ralph Dawson, a blasting expert from Tulsa, Oklahoma, testified that the Plaintiff was using a 10 year study made by the U. S. Bureau of Mines, which determined the number of pounds of charge and the distance to the nearest house in figuring the amount that could cause damage. He further stated that the area to be quarried was a shallow ledge and a small charge would be used; and that Plaintiff was presently using 10% of the amount required to cause damage.
n. Mr. Dawson had toured the area surrounding the quarry and was familiar with the structures in that area. In his opinion, neither the noise nor the air or ground vibration from any of the quarry blasts was sufficient to cause damage to persons or property in the quarry area.
o. Marc Myers testified that in July of 1976, the State Department of Health required the Plaintiff to install dust control measures.
“9. Evidence was introduced at the first hearing showing the amount of explosives used at the existing quarry and the manner of their use. That evidence was supplemented at a subsequent hearing on September 7, 1976, by a report on the use of seismographic instruments to test the effect of the use of explosives on surrounding property. That seismographic evidence, presented to the Planning Board by geophysicist David Bowling, indicated the Myers Quarry could use 10 times as much explosive per delay as they are presently using without creating or causing structural damage to buildings in the vicinity of the quarry.
“10. At the September 7, meeting Marc Myers stated that they had constructed a one-story, metal, scale-house with a poured concrete foundation at the quarry site, several years ago and that it was in sound condition.
“11. At the September 7, meeting there was concern expressed by Dr. Berg and others relating to the effect of blasting, if any, on water wells in the area. Mr. Myers testified that they had 3 wells at the quarry, 35', 70', and 160', respectively; that the 160' well produced about 800 gallons of water a minute; and that they had never experienced any drawing down of the water, although great amounts were used in their operations.
“12. The principal explosive used by the Myers Quarry is a product from DuPont Company called ‘Tovex.’ Tovex is the safest, stablest, most reliable explosive compound in use today.
“13. 85% of the products removed from the Myers Quarry are shipped to Sedgwick County by truck. The products leave the plant on a north-south gravel road that runs approximately one quarter mile north, then west one mile, where the trucks leave the gravel surface and travel on asphalt. The east-west road is North 21st Street. It is a township road in the Augusta township and is a public thorough-fare. Neither the Plaintiff nor the George M. Myers Company has the right to control, restrict, or otherwise determine the use, maintenance, or traffic along the two roads in question. 21st Street west of its intersection with Santa Fe Lake Road is one of the strongest and best asphalt roads in Butler County and has been improved expressly to accommodate the truck traffic to and from the Myers Quarry.
“14. Despite the absence of any legal obligation on behalf of the Plaintiff or the George M. Myers Company to maintain the gravel portion of 21st Street, the George M. Myers Company has placed gravel and has applied dust control substances on the road surface.
“15. At the August 2, 1976, hearing, Lynn Woodward, professor of real estate and land use economics at Wichita State University, presented evidence that the highest and best present use for the subject property is as a quarry. Quarrying the rock would make the property such that its highest and best use would be for residential purposes, in conjunction with pleasing lake-front home sites. Within a ten-fifteen year period, such residential development of the subject area would substantially increase surrounding property values.
“16. Commissioner Mauk testified that the present value of rock is $2.75 per ton.
“17. The majority of the objections to the quarry operations at the zoning board hearings pertained to the dust which apparently comes from the use of the gravel portion of North 21st Street. This is followed by complaints of blasting noise, cracks in foundations and walls allegedly caused by blasting, and miscellaneous complaints pertaining to trafile, speeding violations, etc.
“18. The second hearing before the Butler County Planning Board was held September 7, 1976, and was attended by the following members of the Planning Board: Don Irwin, Chairman, Gene Spear, Vice-Chairman, and the following members: Charles Petrie, Lowell C. Pennington, Kenneth Weber, Ray Harvey, Dwight Adams, and Art Stevens. [Gene] Spear was the only member of the Planning Board at that meeting who had not attended the meeting on August 2, 1976. At the second meeting, all three commissioners were in attendance, to-wit: Robert Patterson, John B. Cameron and William D. Mauk, Sr. Also in attendance were John Tipton, Butler County Zoning officer, and Ted Farmer, Butler County engineer. Prior to this meeting, affidavits had been filed in the zoning office by E. W. Nath, Gene Simmons, A. Martin Millard, Guy N. Jensen and G. Maxwell Corbin, claiming that the minutes of the August 2, hearing did not accurately reflect the proceedings before the Planning Board. These affidavits are marked and admitted as Plaintiff’s Exhibit No. 12.
“19. One of the purposes of the meeting of September 7, was to receive the evidence of seismographic testing conducted by David S. Bowling, and to hear and determine the validity, if any, of complaints of residents in the quarry area. At the conclusion of that hearing, Lowell Pennington moved to grant Plaintiff’s request to rezone the area in question from A-l to Q (general agriculture to quarry and mining district). Art Stevens seconded the motion. The motion carried 6-1, the only opposing vote being registered by Mr. Spear, the one member of the board who had not attended the August 2, 1976, hearing.
“20. Following the September 7, Planning Board hearing and prior to voting on November 22, Commissioner Mauk testified that he was contacted and talked privately with the following land owners in the area of the quarry: A. Martin Millard, G. Maxwell Corbin, E. W. Nath, Guy N. Jensen and Virgil Ralston. He also received a large number of phone calls from people objecting to rezoning. He also talked to Marc Myers and received a phone call from State Senator Frank Gaines on behalf of Mr. Myers.
“21. Commissioner Mauk did not apprise the other commissioners of these conversations, nor did he advise the Plaintiff of these conversations prior to his vote on November 22, 1976.
“22. On Monday, November 22, 1976, Plaintiff’s application came on for hearing before the Board of County Commissioners of Butler County, Kansas. Just prior to the meeting, the three County Commissioners met informally, and determined that they would nót permit further evidence on the questions and stated how each Commissioner was going to vote. Prior to this time, Commissioner William Mauk, who had not attended the initial Planning Board hearing, read the minutes of that hearing, but he did not examine any of the exhibits or other like evidence introduced at that hearing, and he did not discuss the question in depth with the other two Commissioners before voting. Thereupon, the Commissioners voted as follows: In favor of the zoning change, Robert Patterson and John Cameron; against the zoning change, William D. Mauk, Sr.
“23. Thereafter, Plaintiff filed a request for reconsideration of the Commission’s action and that matter came on before the Board of County Commissioners on Monday, December 6, 1976. Commissioner Mauk stated at that meeting that he would not change his vote.
“24. The reasons Commissioner Mauk gave for voting as he did was his reliance on Max Corbin, Ralston, Nath; because he felt Plaintiff owed certain obligations to the people in that area, relating to the road conditions of 21st Street, although he admitted that the maintenance of this road was not Plaintiff’s obligation; because of the long term residents of that area; and finally, he stated that he had considered the loss of tax revenue, plus the salaries of Plaintiff’s employees. Mr. Ralston claimed he lost 2 water wells because of concussions from the explosives originating at the quarry; G. Maxwell Corbin complained of noise from the explosions, but he had suffered no physical damage of any kind by reason of the operation of the quarry; E. W. Nath complained of dust from the traffic on 21st Street. Commissioner Mauk made no effort to verify the validity of the complaints of these 3 individuals and disregarded the complaints of all other protestors, believing that only long time residents in the quarry area had grounds to complain of its operation.
“25. E. W. Nath did not reside in the area until he built his house in 1977, and his house is located approximately one mile west of the present quarry operation. G. Maxwell Corbin’s house is located approximately one mile northwest of the present quarry operation; and Virgil Ralston’s house is located approximately one mile west of the present quarry operation, to the southeast of E. W. Nath. The Nath house and the Ralston house are located to the south of 21st Street, and the Corbin home is located one mile north of 21st Street.
“26. Commissioner Mauk did not attend the Planning Board hearings, because he believed the Planning Board members were all good people, and were the ones who should hear the evidence and determine what should be done in regard to the zoning and planning for the county. Mauk relied upon them to carry out their duty and to hear all the evidence. Until the vote on November 22, 1976, commissioners had always voted to affirm the Planning Board’s recommendation, except in one case where a matter was sent back to the Planning Board for further study.
“27. In 1972, E. W. Nath and A. P. Nath instituted a suit in the District Court of Butler County, Kansas, against George M. Myers, Inc., George M. Myers, and the Augusta Township, seeking $10,000 in damages for injuries and damages received by reason of dust coming from 21st Street and blowing onto property that they owned on the north side of 21st Street, east of Santa Fe Lake Road. The Naths claimed that the dust made a house located on that property untenable and uninhabitable and that it caused injury to property and crops located on that same property. They requested that the Court declare 21st Street a nuisance and enjoin defendants’ use of that street. Counsel representing the defendants filed answers denying those allegations, and discovery work was carried forward. The plaintiffs voluntarily dismissed their lawsuit on the fourth day of March, 1975, at their own cost.
“28. Prior to the hearing of August 2, 1976, there were no complaints made to the governing body of Butler County, Kansas, or to the Plaintiff in regard to the use of explosive material in the quarry. Neither were there complaints of damage and destruction to water wells or any other structure. The only complaint previously lodged concerned dust from trucks and other vehicles using 21st Street.
“29. Few of the vehicles using 21st Street are owned, operated, or controlled by the George M. Myers Company. Most of the trucks hauling quarry products belong to quarry customers and not to George M. Myers Company.
“30. Commissioner Mauk did not consider the following aspects of the zoning matter at the time he voted on Plaintiff’s application.
a. The amount of rock available in the new location and its value;
b. The best use of the property;
c. Whether the real estate had gone up or down over the years;
d. That this was the only quarry in Butler County with State approved aggregate;
e. The cost to the county taxpayer to pay for county rock if the quarry was closed.
“31. The only economic aspect that Commissioner Mauk did consider was the loss of personal property revenue derived from the tax on quarry equipment and the loss of employment for quarry employees.
“CONCLUSIONS OF LAW
“1. The Court has jurisdiction of the parties and the subject matter in this case, and venue is proper in Butler County, Kansas.
“2. The following principles of law enunciated in Gas Light Villa vs. City of Lansing, 213 Kan. 862, apply in this case.
(a) That the trial court’s review of Board’s action under K.S.A. 12-712 (K.S.A. 19-2913 for counties) is the reasonableness of the ordinance or action of the body.
(b) The mark of unreasonable action as contemplated in K.S.A. 12-712 (K.S.A. 19-2913 for counties) is when the action is so arbitrary it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties and was so wide of its mark, its unreasonableness lies outside the realm of fair debate.
(c) That there is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show unreasonableness.
(d) The reviewing Court may not substitute its judgment for that of the governing body and should not declare the action of the latter unreasonable, unless clearly compelled to do so by the evidence.
“3. That the principle of law cited in Arkenberg vs. City of Topeka, 197 Kan. 731, also applies as follows;
“ ‘Zoning is not to be based on a plebiscite of the neighbors. Their wishes are to be considered, but the final ruling is to be governed by the basic consideration of the benefit or harm involved to the community at large.’
“4. There is no evidence to support the claims of Virgil Ralston that quarry operations damaged wells on his property.
“5.. Neither Plaintiff nor the George M. Myers Company has any legal obligation to maintain, improve, or otherwise care for 21st Street. Thus, any commission consideration of dust or other complaints concerning that road was improper.
“6. Plaintiff’s request for permission to use its reserves in order to continue the quarry operation will not cause any different environmental impact upon the surrounding property owners and residents than that which exists at the present time and has existed over several years.
“7. The vote of Commissioner William D. Mauk, Sr., based upon his conversations with and the complaints by three individuals; and in the face of the overwhelming and credible evidence concerning the safe operation of the quarry and its economic benefit to the community at large, both in Butler County and the State of Kansas, was arbitrary and unreasonable and should therefore be set aside.
“8. In making this ruling, I do not equate arbitrary actions with dishonest actions; and I reject the arguments made herein that Commissioner Mauk voted as he did to help the Plaintiff’s competitor, Knebler Construction Company. The only evidence in this case pertaining to Commissioner Mauk’s honesty was given by the county engineer who testified that he was an honest man.
“9. I have previously ruled that the question of whether or not Commissioner Mauk violated the conflict of interest statute, K.S.A. 75-4301, et seq., is not an issue in this case.
“10. Following Anderson vs. City of Parsons, 209 Kan. 337,496 P.2d 1333, this Court disqualifies the vote of Commissioner William D. Mauk, Sr., and affirms the vote of the remaining commissioners, thus providing unanimous approval for Plaintiff’s application.
“11. In accordance with the above stated findings of fact and conclusions of law, the Court orders that Plaintiff’s application be and the same hereby is approved.”
Intervenors claim that seven of the court’s findings of fact are either erroneously based upon proffered evidence, or upon no evidence at all, and that there is no evidence supportive of those findings. We shall consider each of the challenged findings.
The first is finding 8(a). We find support for that statement in the summary of the testimony of Professor Lynn Woodward, included in the minutes of the Planning Board meeting of August 2.
The next finding challenged is 8(f). That the quarry is located in a sparsely populated area is shown by the photographs, and presumably is a fact of general knowledge in the area which could well be judicially noticed by the trial judge. K.S.A. 60-409(h)(3). Testimony at the planning board hearings included estimates of the thickness of the rock formation, the amount and type of explosives used, and the times blasting occurred. The aerial photographs disclosed the location of homes and the dis tance from both the existing and the proposed quarry area. We conclude that finding 8(f) is supported by the record.
Finding 8(g) is challenged. It was modified by the trial judge; the version finally adopted is taken almost verbatim from the minutes of the Planning Board meeting, and is amply supported by the record.
Finding 8(h)(3) deals with the loss of jobs for quarry employees and loss of support for their dependents. The minutes of Professor Woodward’s testimony show that he stated in substance that every quarry employee supports three other persons and that 120 to 180 people are supported by the quarry. The minutes of Mr. Myers’ testimony show that he said in substance that the present site would be quarried out in six months to two years; if the new site could not be used, the quarry would have to shut down. The record thus supports this finding.
Finding 8(n), concerning the testimony of Ralph Dawson, is next on appellants’ list. The information that Dawson toured the area surrounding the quarry and was familiar with structures in that area is not specifically included in the minutes of the August 2 meeting of the Planning Board, at which meeting Dawson testified. The minutes do, however, support the balance of this finding of fact, and indicate that Dawson knew the size of the rock ledge being quarried, and in his opinion Myers was using only 10% of the amount of explosive needed to cause damage. It might be inferred that Dawson would need to be familiar with the area in order to be able to form the opinions expressed; in his proffered testimony, he indicated that he was very familiar with the operation, and that he had so testified before the Planning Board.
Finding 12 relates to the brand of explosive used, “Tovex,” manufactured by Du Pont. The written reports of seismographic tests, submitted at the Planning Board hearing, list the explosive as Type: “ANFO Detaprimes.” Type of Delay Employed: “MS-EBC Du Pont.” We find no other information about the specific explosive used in the minutes, in the exhibits, or on the taped record of the September 7 meeting. The information contained in this finding is included in the proffer of Mr. Dawson’s testimony; he testified that these facts were presented to the Planning Board during his testimony on August 2.
The last finding attacked is the last sentence of finding 15. The minutes of Professor Woodward’s testimony at the August 2 meeting indicate that he proposed a residential area be developed around the old quarry after the excavated area is filled with water, similar to “Briarcliff Lake Estates.” He showed slides demonstrating how the area could be developed. The minutes support finding 15.
After a careful review we conclude that the findings challenged are substantially supported by the original minutes and record. The few deviations are not critical factual findings, and although erroneous are not of sufficient substance to constitute prejudicial or reversible error.
A district court reviewing a zoning decision of an administrative agency “may take additional evidence that is relevant to the limited issues of reasonableness and legality of the order appealed from.” International Villages, Inc., of Amer. v. Board of Comm’rs of Jefferson County, 224 Kan. 654, 660, 585 P.2d 999 (1978). The rules of evidence contained in the code of civil procedure apply to district court review of a zoning ordinance. Records of prior proceedings and also relevant evidence not presented to the commission are admissible, subject to judicial discretion. Keeney v. City of Overland Park, 203 Kan. 389, 394, 454 P.2d 456 (1969). See also Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239 (1969). Evidence repeating testimony given before the Planning Board which has been condensed into minutes presented to the county commissioners would be admissible both on the issue of reasonableness and because it was considered by the commissioners or was available to them.
Because the proffered evidence was admissible, appellant’s claim of error is reduced to being precluded from cross-examining witnesses giving the proffered testimony. Control of the scope of cross-examination is subject to reasonable control by the trial court, and exercise of such control will not constitute reversible error, absent a showing of abuse resulting in prejudice. Manley v. Rings, 222 Kan. 258, 564 P.2d 482 (1977). Here appellant makes no claim of prejudice.
The primary issue on appeal is whether the trial court erred in its ultimate conclusion that Commissioner Mauk’s vote was arbitrary and unreasonable and should be set aside, and that plaintiff’s application for rezoning be approved.
This is not an appeal to the courts from the decision of an administrative board; instead, it is a direct action challenging the reasonableness of the action taken by the local authority, the Board of County Commissioners. Such an action is specifically authorized by K.S.A. 19-2913, a part of the general county zoning law, which provides:
“That any and all acts and regulations provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act or regulation determined by bringing an action against the county commissioners in the district court in the county in which any such township is situated.”
Highway Oil, Inc. v. City of Lenexa, 219 Kan. 129, 547 P.2d 330 (1976), was an action commenced under K.S.A. 12-712, an act authorizing the bringing of an action in the district court to determine the reasonableness of city zoning ordinances or regulations. We discussed the rules governing the scope of judicial review of zoning matters in Highway Oil, and more recently in Golden v. City of Overland Park, 224 Kan. 591, 595-596, 584 P.2d 130 (1978). Concisely stated, the rules are these:
(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
(2) The district court’s power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
(3) There is a presumption that the zoning authority acted reasonably.
(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
(8) An appellate court must make the same review of the zoning authority’s action as did the district court.
In the case at hand, unanimous commission action was imposed through the protest procedure provided in K.S.A. 19-2920, which states:
“If ... a protest against such amendment, supplement or change be filed in the office of the county clerk within fourteen (14) days after the date of the conclusion of the hearing duly signed and acknowledged by the owners of twenty percent (20%) or more of any property proposed to be rezoned, or by the owners of twenty percent (20%) of the total area, excepting public streets and ways which is located within one thousand (1,000) feet of the boundaries of the property proposed to be rezoned, such amendment shall not be passed except by unanimous vote of the board of county commissioners.”
Does the unanimity requirement alter the scope of review? We hold that it does not. Whether zoning action is taken by one, three, or a dozen people sitting as a board, commission, or authority is immaterial; what is important and controlling under our law is that the action taken must not be arbitrary, capricious or unreasonable. Here the vote of one commissioner controlled the action of the commission; by the vote of Commissioner Mauk the motion to allow the change was defeated. The action of the commission as a whole — controlled by that single vote — was to deny the petition for change. The action of the commission must be reasonable, and is subject to review on that basis, whether the action resulted from a minority or a majority vote. Technically, the district court was reviewing the action of the commission, not the vote of a single commissioner; but the vote of that commissioner controlled the action of the commission; it was the action of the commission; and any error in terminology notwithstanding, it was the action of the commission which the court held to be arbitrary and unreasonable.
Was the action of the commission in denying the application unreasonable as a matter of law? Was it “so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties”? Was it “so wide of the mark that its unreasonableness lies outside the realm of fair debate”? This is the critical issue.
The findings of the trial court disclose what evidence was considered and what evidence was not considered by the “commission” in denying the requested rezoning. These findings — 20, 21, 22, 24, 30 and 31 — are not challenged by appellants.
Considered were private and undisclosed ex parte statements of three interested people, dust caused by traffic on a county road, loss of tax revenue, and loss of salaries. The minutes of the August 2 hearing were reviewed; there was no in-depth discussion of the evidence by the three commissioners, two of whom had attended the important August 2 hearing. Not considered were all of the exhibits introduced by the landowner, as well as all of the important matters deserving consideration listed in finding 30. The benefit or harm to a select few was considered; the benefit or harm to the people of Butler County, the “community at large,” was ignored.
Appellants urge us to consider the criteria listed in Golden, in determining reasonableness of the commission’s denial. The first two of these are the character of the neighborhood and the zoning and uses of nearby property. The property is located in the extreme southwest portion of Butler County. Surrounding properties are agricultural except for the existing quarry, which adjoins the proposed site. There are residences on some nearby properties; from the aerial photographs there appears to be an average of three or fewer homes on nearby sections. It would be impossible to locate a quarry anywhere in the state where all the surrounding properties were quarries. The surrounding land is not highly developed residential property; some of it is terraced, some farmed on the contour; obviously it is agricultural with a few scattered homes. The record indicates that one area has been platted; we are unable to find any concentration of building sites in the exhibits.
The third factor is suitability of the property for agricultural uses to which it is presently restricted. Testimony indicates it is unsuitable for some agricultural purposes due to outcroppings of rock. The highest and best use is undoubtedly for quarrying; the underlying rock is said to have an estimated value of $16,500,000.
Another important factor is the extent to which the requested zoning change will affect nearby property. This was considered only insofar as the ex parte complaints of three neighbors were concerned. The complaints were discredited by evidence at the hearing and were not found to be valid by the trial court. The requested zoning change will allow quarrying to continue; it will not cause any new or different impact upon properties nearby.
Another factor to be considered is the relative gain to the public health, safety and welfare accomplished by the denial of the application, as compared to the hardship imposed on the landowner. If the application is denied, the quarry closes; the land will retain its agricultural value, and the value of the underlying rock will be lost. There is no evidence that public health, safety, and welfare will be promoted by denial of the application. On the other hand, there was an abundance of evidence as to the cost of importing approved aggregate into Rutler County if this quarry is closed. This would also affect neighboring Sedgwick County, and state highway projects in the area. These matters affect the public welfare.
Further discussion would only belabor this opinion. It is apparent that only a few of the factors listed above were considered. The evidence supporting the granting of the application, as characterized by the trial judge, was overwhelming; the evidence in opposition to it was minimal. The trial court stated and properly applied the correct rules of law. We have carefully examined the entire record and we conclude that the able trial judge was correct in finding that the commission’s action in denying rezoning was unreasonable as a matter of law. Other matters raised in the briefs have been considered, but discussion of them would not be of benefit.
The judgment is affirmed.
Fromme and Holmes, JJ., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal involves rights to possession and use of land taken by a public utility in a condemnation proceeding. The condemnation proceeding was filed by Kansas Gas and Electric Company (KG&E) for the purpose of acquiring a site for the construction of an electric generating plant afid a reservoir for the impoundment of water. This site is commonly referred to as the Wolf Creek Nuclear Power Plant. It is located near Burlington, Kansas.
The appraisers’ report was filed on February 21, 1975. The amounts of the two awards involved here were paid into court, drawn down by the landowners, and no question is raised concerning the amounts of these awards or the procedure followed in arriving at the amounts.
Some difficulty arose in 1978 over possession of the land and KG&E applied to the district court for writs of assistance under K.S.A. 26-507. KG&E sought possession and use of a 320 acre tract, hereafter referred to as the “Winn property,” and of an 80 acre tract, hereafter referred to as the “Lance property.” KG&E filed separate motions in the condemnation proceeding. The district court held separate evidentiary hearings. It fully explored the facts surrounding the stages of construction of the facilities, the current construction needs of KG&E, and the nature and extent of the possession and use requested by the utility.
The construction plans for the reservoir called for the construction of various buffer or saddle dams on these properties to be located along the high water mark of the reservoir. The construction area designated in the plans for this purpose included 250 feet on both sides of these saddle dams plus additional areas from which earth was to be taken to build the dams. Certain farm buildings, which had been appropriated, were located within the 250 foot strip designated as the construction area on the “Lance property.” As to the “Lance property,” the court limited the construction area to be used. KG&E and its contrac tors were not allowed to use the area where the buildings were located. It was ordered that heavy construction equipment should get no closer than 20 feet east of a chicken house and 50 feet east of a barn. Although the court found that demolition of the buildings would facilitate and lower costs of construction, it prohibited demolition of the buildings saying such was not absolutely necessary to carry out the purposes for which the land was condemned. The court further restricted the condemner’s use of the land appropriated by limiting access on the west to five areas.
As to the “Winn property,” the court found that KG&E was entitled to possession of the property to the extent necessary for the purpose for which it was taken, and consistent with the easement condemned. The only specific restrictions imposed against possession and use of this property were limited to the period of any appeal and until the mandate of this court is returned. The seemingly inconsistent holdings of the court as to these two properties were explained and justified by the court on the basis of separate hearings and differences in the evidence. The Winns have appealed from the order entered on the “Winn property.” KG&E has appealed from the order entered restricting its possession and use of the “Lance property.”
KG&E argues that K.S.A. 26-501 et seq., the eminent domain procedure act, does not empower the district court in a condemnation proceeding to hear evidence and determine in specific instances the extent to which a condemner is entitled to possession and use of a permanent easement previously condemned. It further argues that such a determination may be obtained only by filing a separate action, such as an injunction action. KG&E paid for full legal title to the land as shown by the appraisers’ report.
The Lances and the Winns in answering the foregoing contentions assume a condemnation proceeding is the proper forum in which to obtain a determination on the extent of the use acquired and argue that the nature and extent of the interest taken by KG&E limits and restricts the possession and use which KG&E may make of the premises.
The first question to be answered is whether KG&E obtained fee simple title by reason of the appraisers’ report and the payment of the entire value of these properties as set by the appraisers.
The statute authorizing KG&E to exercise the right of eminent domain in this case is K.S.A. 17-618 and provides that “lands may be appropriated for the use of” certain corporations. The general rule is that an eminent domain statute will be construed to authorize only the taking of an easement on land sufficient for the public use intended in the authorizing statute. Unless a statute specifically authorizes the condemning authority to take title to real property in fee simple, no language incorporated in the papers of the eminent domain proceeding can enlarge or extend the power of the condemning authority beyond the limits imposed by the authorizing statute. Sutton v. Frazier, 183 Kan. 33, 34, 325 P.2d 338 (1958); State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P.2d 127 (1947). The authorizing statute in this case does not specifically authorize the taking of a fee simple estate and therefore KG&E is limited to an appropriation for the use and purposes of the corporation, a permanent easement.
The jurisdictional instrument in a condemnation proceeding is the petition. In this case the petitioner expressed a desire to obtain a permanent easement over, on, under and through the entire property. It stated that KG&E was organized and is operating as an electric public utility corporation for the manufacture, generation, transmission and distribution of electric current and energy for light, heat and public use within the meaning of K.S.A. 17-618. The purpose of the taking as stated was “for the acquiring of a site for the location of an electric generating plant and reservoir to be constructed by the Plaintiff for the generating of electricity and the distribution of the same.” The petition included a statement that the permanent easement sought would be the dominant estate over, on, under and through the entirety of the property and would be burdened with all ad valorem taxes and assessments. Prayer was made for immediate possession.
The appraisers’ report set the value of the entire “Winn property” before condemnation at $299,250.00, with no value remaining after condemnation, and a total award of $299,250.00. On the “Lance property” the value of the entire property before condemnation was set at $86,190.00, with no value remaining after condemnation, and a total award of $86,190.00. In addition to the usual recitations in their report, the appraisers stated: “We did not consider the permanent easement aspect of the petition, but made our appraisals on the basis of a complete taking of the property.”
On the basis of Sutton v. Frazier, 183 Kan. 33, and State, ex rel., v. State Highway Comm., 163 Kan. 187, the petition controls. It is the jurisdictional instrument. A permanent easement was sought. K.S.A. 17-618, which authorizes certain corporations to appropriate land for public use, does not authorize the taking of a fee simple estate.
The appraisers’ report could not authorize an appropriation of more than a permanent easement. KG&E did not acquire fee simple title.
In the case of a permanent easement the condemner has the paramount right to possession and use of all the land covered by the permanent easement for the purposes and uses set forth in the appraisers’ report. The former proprietor of the soil retains fee title to the land and his rights extend to all purposes not incompatible with the rights of possession and use of the condemner. K.C. Rly. Co. v. Allen, 22 Kan. 285 (1879).
In Harvey v. Railroad Co., 111 Kan. 371, 373, 207 Pac. 761 (1922), it is said:
“It was not necessary for the condemnation commissioners in 1879 to limit the amount of land to be condemned for railway purposes to the actual acreage required at that time. In the exercise of their discretion they could look to the future and to the gradually expanding need for switch yards, sidings, workshops and the like, and condemn such amount as seemed reasonable to them. Nor was this any hardship on the owner. He was paid for the land taken; and yet he and his successors in title down to and including the plaintiff have none the less enjoyed the possession, emblements and profits of most of the condemned property for all these years. Of course, so long as the railway company did not need all the property condemned, the successive fee-title holders were strictly within their rights in occupying and using it.”
In Spears v. Kansas City Power & Light Co., 203 Kan. 520, 529, 455 P.2d 496 (1969), we recognized the rule that the use made of an easement acquired by eminent domain must not only be germane to the purposes for which the easement was acquired but it must be reasonable as well. In Spears it is held:
“In an eminent domain proceeding the report of the appraisers becomes the evidence and the only evidence of the extent of the easement taken and the extent of its use.” Syl. ¶ 4.
“An easement, or servitude imposed upon the lands of another, extends to uses which are directly or indirectly conducive to advance the purposes for which it was obtained.” Syl. f 6.
“In determining the extent of land required for or the use needed of an easement serving legitimate public purposes, account may be taken of future demands which may reasonably be anticipated.” Syl. f 8.
It goes without saying that in the present case the easement or servitude imposed on defendants’ lands included possession and use for the purpose of constructing the saddle dams. KG&E was entitled to full use and possession of the construction areas indicated in the construction plans and the district court had no right to restrict and limit such rights merely because certain areas were not absolutely necessary in the judgment of the court.
In Sutton v. Frazier, 183 Kan. at 37-38, it is stated:
“The eminent domain proceeding does not provide a forum for litigation of the right to exercise the power of eminent domain nor the extent thereof. Upon appeal to the district court from an award the sole issue is the amount of compensation due and no contest of the condemner’s right to exercise the power of eminent domain is permitted. The condemnees may and must litigate the condemner’s right to the exercise of the power of eminent domain in an individual civil action, usually by suit for injunction.”
The procedure followed in the present case does not comply with the law gleaned from the foregoing decisions. This is an eminent domain proceeding, not an individual civil action.
Running through all these cases is the rule that a condemnation proceeding instituted under K.S.A. 26-501 et seq., is a special statutory proceeding. Such proceeding does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right. Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P.2d 373 (1966). It is further held that the right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking can only be litigated in an individual civil action, usually by suit for injunction. Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755 (1974).
KG&E was acquiring 10,500 acres of land on which to build a huge nuclear plant for the generation and transmission of electrical power. A large dam was to be constructed so as to impound a large reservoir of water, necessary for cooling purposes. Much of the land had been acquired by outright purchase from the owners. The balance had to be appropriated through eminent domain proceedings. The reservoir being built and the saddle dams located at the high water mark are located where they are required by the contours of the land. Therefore, some of the outer portions of these two rectangular tracts were not in any construction area. The former proprietors contested the issuance of the writs of assistance because of the possible effect construction might have on the farm buildings and upon the land located outside the immediate construction area. All of this land, together with the buildings and farm ponds, was included in the eminent domain proceeding. The full value of the real property taken was paid into court and drawn down by the former proprietors. When the amount of the award is paid into court the condemner is entitled to possession and use of the property and if necessary may obtain a writ of assistance to place it into possession of the land appropriated.
K.S.A. 26-507 in pertinent part provides:
“If the plaintiff desires to continue with the proceeding as to particular tracts it shall, within thirty (30) days from the time the appraisers’ report is filed pay to the clerk of the district court the amount of the appraisers’ award as to those particular tracts and court costs accrued to date, including appraisers’ fees. Such payment shall be without prejudice to plaintiff’s right to appeal from the appraisers’ award. Upon such payment being made the title, easement or interest appropriated in the land condemned shall thereupon immediately vest in the plaintiff, and it shall be entitled to the immediate possession of the land to the extent necessary for the purpose for which taken and consistent with the title, easement or interest condemned. The plaintiff shall be entitled to all the remedies provided by law for the securing of such possession.”
When the amounts of the appraisers’ award, appraisers’ fees and court costs have been paid into court the title to the permanent easement vested in the plaintiff-condemner. The plaintiff-condemner was then entitled to the immediate possession for the purposes for which the land was taken and consistent with the easement condemned. When the court has made the determination that the money has been paid into court the plaintiff is entitled to all remedies provided by law for securing possession. The court then must issue the writ of assistance without limitations. In an eminent domain proceeding the court has no right to litigate outside issues raised by the condemnee in an effort to restrict and limit the rights appropriated. Sutton v. Frazier, 183 Kan. 33; Urban Renewal Agency v. Decker, 197 Kan. 157; and Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218.
In the present case KG&E condemned and paid for a permanent easement over every acre of these two properties. During the construction stages of the project KG&E had full right of possession and use thereof. The district court had no legal authority to limit and restrict KG&E in the possession and use made of the easement so long as that use was a reasonable use and germane to the purposes for which the easement was acquired. Spears v. Kansas City Power & Light Co., 203 Kan. 520. As previously pointed out the determination of necessity for and the extent of the taking is left to the condemning authority subject to any limits imposed by the authorizing statute. When a permanent easement is obtained the condemner is restricted to the particular area condemned. Here the entire premises, including the buildings, fences and farm ponds were condemned. The condemner had the right to full access and use of the premises condemned during the construction phases of the project. After the construction has been completed according to plan the former proprietor of the soil who still retains the fee title to the land has the rights not appropriated by the holder of the permanent easement. The former proprietor’s possession and use of the premises must not be incompatible with the rights of possession and use by the condemner during construction phases of the project.
If a condemning authority makes some use of the land which is not germane to the purposes for which the permanent easement was acquired or which use is unreasonable and incompatible with the necessary and proper possession and use of the property appropriated, the condemnee is not without a remedy. The condemnee who holds the fee title subject to the rights appropriated may litigate the extent of the condemner’s rights of possession and use in an individual civil action, such as a suit for injunction. Sutton v. Frazier, 183 Kan. 33; Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218.
In the present case the motions for writs of assistance should have been granted. The eminent domain proceeding had progressed to the point where this property had been appraised, the appraisers’ report had been filed and the total amount of the awards plus appraisers’ fees and court costs had been paid into court. When this was done the plaintiff-condemner was entitled to a writ of assistance to put it in possession of the entire premises. If the condemnee desired to raise outside issues concerning the extent of possession and use of the property by the condemner, this had to be done by separate action brought by the condemnee.
The judgments are reversed and the case is remanded with directions to proceed in accordance with what has been said in this opinion. | [
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The opinion of the court was delivered by
Miller, J.:
This is a workmen’s compensation case involving the application of K.S.A. 1974 Supp. 44-510f(c), since repealed. The examiner terminated claimant’s disability benefits pursuant to that section of the act since claimant had attained age 65 and was entitled to and was receiving federal old age social security benefits. The order was sustained by the director, affirmed by the district court, and affirmed by the Court of Appeals. Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 599 P.2d 1031 (1979). We granted review.
After carefully considering the record, briefs and arguments, we conclude that the Court of Appeals correctly disposed of each issue raised. We adopt the opinion of the Court of Appeals.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Harvey A. Moses, Jr., following his conviction by a jury of kidnapping, K.S.A. 21-3420, and aggravated robbery, K.S.A. 21-3427. Defendant was sen tenced to consecutive terms of 15 years to life and 10 years to life.
Defendant claims that the trial court committed prejudicial error in admitting three exhibits and in failing to recess trial and grant defendant sufficient time to obtain an expert witness. Before turning to these issues, however, we must first determine whether this appeal is timely filed and thus determine whether we have jurisdiction.
The jury returned its verdict on June 14, 1978. A journal entry reciting the trial, verdict, and conviction was filed July 17, 1978. On that date, however, sentencing was deferred, and Moses was committed to the Larned State Hospital for mental examination and evaluation pursuant to K.S.A. 22-3429. Sentence was imposed in open court on November 9, 1978. The journal entry covering sentencing was filed on November 22, 1978. Notice of appeal was not filed until April 5, 1979; at the same time, defendant filed a motion to extend time to file notice of appeal, and that motion was sustained on April 24, 1979; the trial court granted defendant an additional 30 days in which to file his notice of appeal.
Several statutes come into play. K.S.A. 22-3608 fixes the time for taking appeals in criminal cases. It reads:
“(1) If sentence is imposed, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court’s power to modify the sentence. The power to revoke or modify the conditions of probation shall not be deemed power to modify the sentence.
“(2) If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within ten days after the order suspending imposition of sentence.”
The district court’s power to modify the sentence imposed is controlled by K.S.A. 1979 Supp. 21-4603(2), which reads in applicable part as follows:
“Any time within one hundred twenty (120) days after a sentence is imposed . . . the court may modify such sentence ... by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits.”
The rendering of judgment and the imposition of sentence in a criminal case is likewise governed by statute. K.S.A. 22-3424(1) declares:
“The judgment shall be rendered and sentence imposed in open court.”
In felony cases, the defendant must be present in person at the time of sentencing. K.S.A. 22-3405(1). A record of the judgment rendered or the sentence imposed must be made upon the journal of the court, and the judge must personally examine and sign the journal entry. K.S.A. 22-3426. The journalized entry is thus a record of the sentence imposed; but the actual sentencing occurs when the defendant appears in open court and the judge orally states the terms of the sentence.
In Parks v. Amrine, 154 Kan. 168, 117 P.2d 586 (1941), we held that under the statutes then in force, the sentence “was effective when rendered, even though the entry of it was not made on the journal until three days later.” 154 Kan. at 173. The failure of the clerk to make the required entry did not impair the judgment’s effectiveness. Parks was followed in State v. Carte, 157 Kan. 139, 138 P.2d 429 (1943), and State v. Nichols, 167 Kan. 565, 572, 207 P.2d 469 (1949). This has always been the rule in Kansas, and present statutes have not changed it. The journals and records are said to be merely formal evidence of the judgment and sentence; the sentence itself is that actually imposed by the judge. Foster v. Zerbst, 92 F.2d 950 (10th Cir. 1937). In Walden v. Hudspeth, 115 F.2d 558 (10th Cir. 1940), the late Judge Huxman explained judgments in criminal cases, saying:
“Neither the commitment nor the clerk’s entry is the judgment. The judgment is the pronouncement by the court from the bench.” (p. 559.)
Applying these statutes to the facts at hand, we find that sentence was imposed on November 9, 1978; the trial court’s power to modify that sentence expired 120 days later, on March 9, 1979; and the time for appeal expired ten days thereafter, on March 19, 1979.
When the defendant appears for sentencing in a criminal case, the court may commit the defendant to the custody of the appropriate authority, impose a fine, grant probation, suspend the imposition of sentence, or impose any combination of those alternatives. K.S.A. 1979 Supp. 21-4603(2). Regardless of which of the alternatives the court selects, the judgment is effective upon its pronouncement from the bench; the filing of a formal journal entry is but a record, evidence of what has been done. The court’s order does not derive its effectiveness from the journal entry, or from any act of the clerk; it is effective when announced. The defendant is personally present, and thus knows that at that moment he or she has been sentenced, fined, or placed on proba tion, or that the imposition of sentence has been suspended. If the defendant has pled not guilty and has been convicted at trial, the court is required to advise the defendant of his or her right to appeal and that the clerk will file the requisite notice of appeal if the defendant so desires. K.S.A. 22-3424(5).
Our Court of Appeals, in State v. Brady, 2 Kan. App. 2d 382, 580 P.2d 434 (1978), held that the final order of a trial court in a criminal case, placing the defendant on probation and suspending the imposition of sentence, was not effective until the journal entry was filed. The court relied upon K.S.A. 60-258 which says that “[n]o judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk . . . .” That statute does not apply in criminal cases; the rendering of judgment and the imposition of sentence in criminal cases are governed by K.S.A. 22-3424 and the making of a record thereof is governed by K.S.A. 22-3426. For these reasons we overrule syllabus ¶ 2 and corresponding statements in the Brady opinion.
Next, we must determine whether the district court’s order granting Moses leave to file his notice of appeal out of time was valid. There is no express authority for such an order in the statutes and rules governing appeals in a criminal case. K.S.A. 1979 Supp. 22-3606 provides that:
“Except as otherwise provided by statute or rule of the supreme court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases.”
K.S.A. 60-2103 reads in part as follows:
“(a) When and how taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed.”
Does this statute authorize the district courts to extend the time for appeal in criminal cases? We hold that it does not. The defendant in criminal cases is personally present if the offense is a felony, or is present either personally or by counsel if the offense is a misdemeanor, when sentence is imposed and judgment is entered. K.S.A. 22-3405. There can be no “excusable neglect based on a failure of a party to learn of the entry of judgment,” the only basis upon which an extension of time may be granted under K.S.A. 60-2103(<z). The quoted portion of that statute has no application to criminal appeals. Notice of appeal must be filed in a criminal case within 130 days from the date on which sentence is imposed from the bench in open court.
This court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal. State v. Leopard, 191 Kan. 581, 582, 382 P.2d 330 (1963); Fildes v. Fildes, 215 Kan. 622, 527 P.2d 1007 (1974).
The filing of a timely notice of appeal is jurisdictional. The appeal in this case was not taken within the 130-day period fixed by statute, K.S.A. 22-3608 and K.S.A. 1979 Supp. 21-4603, and must therefore be dismissed.
Although we are without jurisdiction to entertain the merits of this appeal, we have examined both points raised in the briefs and find them wholly without merit. When, either during the presentation of his case or during his cross-examination of prosecution witnesses, a defendant opens an otherwise inadmissible area of evidence, the prosecution may then present evidence in that formerly forbidden sphere. State v. Roach, 223 Kan. 732, 576 P.2d 1082 (1978); State v. Ralph, 217 Kan. 457, 537 P.2d 200 (1975). And finally, denial of a continuance is within the trial court’s discretion and will not be disturbed on appeal absent a showing of abuse of discretion which has prejudiced defendant’s rights. State v. Nelson, 223 Kan. 251, 573 P.2d 602 (1977). No abuse of discretion or resulting prejudice is shown by the record in this case.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an action seeking a permanent injunction against the misuse of trade secrets and the misappropriation of protectable proprietary rights under exclusive license agreements. An injunction was granted. The defendant, Wayne C. Faulconer, appeals, saying no injunction should have been granted. The plaintiff, Koch Engineering Company, Inc., cross-appeals, saying the injunction was not broad enough. The defendant, Faulconer, contends on appeal that plaintiff, Koch, failed to establish that plaintiff used or possessed protectable trade secrets or protectable proprietary rights under exclusive license agreements. The following background facts are not in dispute and are taken from the court’s findings.
Koch entered into an exclusive licensing agreement with Sulzer Brothers, Ltd., Winterthur, Switzerland, hereinafter referred to as Sulzer. By the agreement dated July 3, 1967, and supplemental amendments thereto, Koch obtained exclusive manufacturing and sales rights to certain Sulzer packings and other products in the United States, Canada and Mexico. The license agreement is for an initial period of 15 years, and grants Koch certain rights of renewal. Sulzer packing is a crimped, perforated wire cloth and is arranged in alternating layers for application within distillation or fractionation columns or towers.
Distillation, or fractionation, is an operation used to separate different chemicals by their boiling points. This is normally accomplished in a tower, or column, containing devices of differing designs to mix the vapor and liquid. The lightest material (lowest boiling point) comes off the top of the tower as a vapor. The heaviest material (highest boiling point) is removed as a liquid out the bottom of the tower. Intermediate materials, if they are present, can be taken off at various positions up the tower corresponding to their boiling temperature. The same sort of fractional separation can be accomplished by a series of towers where the first one is used to remove the lightest material out the top, with everything else going out the bottom to the next tower where the next lightest material is taken out overhead, and so forth.
The diameter size of the rectification tower is determined by the vapor and liquid flows and the capacity of the packing device inside the tower. The height of the tower is dependent upon the efficiency, often referred to a^ height equivalent to a theoretical plate of the device used inside the tower. Koch-Sulzer packing is among the most efficient devices now used commercially for separating chemicals. Koch-Sulzer packing is a woven-wire gauze material which spreads out the liquid to a fine film by capillary action thus improving the opportunity for the lower boiling chemical to be vaporized out of the higher boiling liquid and taken out of the tower. The Koch-Sulzer packing consists of crimped layers of this specially chosen mesh wire which are placed side by side, but with reversed inclined corrugation angles. As the vapors pass up through these triangular shaped channels the vapor in one layer is constantly being sheared and mixed with the vapor in the adjacent layer. This action provides superior vapor composition mixing and intimate contact with the liquid film so that any heavy material in the vapor can be cooled and condensed into the liquid containing material of the same or lower boiling point. Because Koch-Sulzer packing does such an efficient job of maintaining gas-liquid contact, it has a very low height equivalent to a theoretical plate when compared to other devices and therefore less tower height is required. The intimate mixing characteristic and the relatively large open area of KochSulzer packing also give it more relative capacity for vapor and liquid flow so a tower utilizing it can be smaller in diameter than one with another type of packing.
The higher the pressure inside a tower, the higher the temperature must be to vaporize a certain chemical material. A great many chemicals are affected by high temperature which causes decomposition and undesired coloring of the material. KochSulzer packing is a very low pressure-drop device which means that the temperature of the liquid in the bottom of the tower can be lower while the temperature in the top is the same as a tower with another device which has a higher pressure drop. The low liquid retention in Koch-Sulzer, because of the thin film effect, also aids in preventing degradation because the liquid is not subjected to the inside temperature for as long a time.
Sulzer packing and the equipment for the manufacture thereof were developed by Dr. Max Huber, a Swiss chemical engineer, while he was director of the laboratory for process engineering of Sulzer Brothers. Dr. Huber is now assistant vice-president of Sulzer Brothers, an internationally-known industrial firm. After experiments with approximately ten different configurations over a six month period in 1961, the present arrangement was found to be most effective on a small scale. However, it was not until 1965 that a final design was developed which would operate on an industrial scale. The first large scale application of Sulzer packing for a distillation column was not in operation until the end of 1966.
The machinery for crimping the wire cloth packing was also developed over a substantial period of time, beginning with a hand press to make each crimp and ending with a hydraulic crimper with an automatic forwarding mechanism. Numerous problems were encountered with the feed mechanism because the wire cloth must be fed into the machine at an angle. Also, because of the elasticity of the wire cloth, the die had to be designed to crimp at a sharper angle than the resulting angle in the wire cloth. Additional experimentation was necessary to determine the best perforating configuration for the cloth.
Sulzer Brothers had invested approximately $5,000,000 in research, development and testing of the packing, distillation columns, and related items. The licensing agreement required Koch to make an initial payment to Sulzer of approximately $20,000 for initial technology transmitted and during the term of the license agreement, Koch has made over $1,000,000 in additional royalty payments to Sulzer for exclusive license rights and for additional technology transmitted under the agreement. Eight hundred thousand dollars of the royalty payments are directly attributable to sales of packing and related items.
By the terms of the Koch-Sulzer license agreement, and as a part of the consideration therefor, it is expressly recognized that the information, technical data, and documents made available to Koch by Sulzer are confidential in nature and that any disclosure thereof might be harmful to Sulzer. The agreement provides that the rights granted Koch are personal to it and Koch is specifically prohibited from ceding, assigning, mortgaging, charging or transferring any rights thereunder. Koch expressly agreed that it would hold all information, technical data and documents obtained from Sulzer in confidence and safeguard the same and to cause its employees to do likewise.
Defendant Wayne Faulconer was first employed by plaintiff Koch on September 13, 1971, as a process engineer with particular responsibility for Sulzer packing. In said capacity, and solely by virtue of his position with plaintiff, defendant Wayne Faul coner obtained access to and knowledge of confidential Sulzer manuals, progress reports, blueprints, drawings, specifications and patent information.
Faulconer had no written employment agreement with Koch. Faulconer had obtained a BS degree in chemical engineering from Kansas State University in 1968, and had graduate credits from the University of Michigan in mathematical modeling and in distillation and mass transfer.
Before going to work for Koch, Faulconer was employed as a process engineer by Dow Chemical Company doing column and plant design. He worked with a chemical used in making 2-4D and methoxyflurane. He worked for Dow a little less than three years. Thereafter he worked less than one year for Hooker Chemical Company as a design engineer, working with KochSulzer packing used in distillation of chemicals.
From the time he was initially employed by plaintiff, the defendant’s general sphere of work related to Koch-Sulzer packings. The first thing the defendant did for plaintiff upon his employment was to write a test report on a pilot plant test and defendant immediately started designing columns for Koch employing Koch-Sulzer packing. His supervisor was Peter Reich. When defendant was first employed at Koch, Koch had sold only 88 jobs employing Sulzer packing. By the time defendant’s employment terminated, 512 jobs had been sold.
Koch never asked Faulconer to sign a secrecy or confidentiality agreement but on October 17, 1976, Koch and Faulconer signed an agreement whereby in consideration pf annual payments by Koch, Faulconer agreed he would not for five years from the termination of employment with Koch, either take part in any competing profession or business, or himself enter into such competition.
Sulzer technology was made available to certain professional employees of Koch, such as Wayne Faulconer, on a “need-to-know” basis because of the company’s trust and confidence in them and because of their professional training and status. The responsibility of employees not to disclose confidential information or use it for their own personal interests was stated as an express condition of continued employment in a conflict of interest memorandum distributed to key Koch employees under date of January 9, 1975. Beginning in May, 1977, all new em ployees of Koch were required to sign a patent and confidential information agreement. Defendant Faulconer was not required to sign same because he had been an employee for six years.
Many documents pertaining to Sulzer technology which were delivered to defendant Faulconer contained restrictive notices of confidentiality. The following are taken from the court’s findings.
“a. Sulzer Design Manual — ‘This information is intended for the personal use of Wayne C. Faulconer. Master Copy and remains our property. The contents are to be regarded as confidential and not to be communicated to third parties.’
“b. Sulzer Handbook, EV-40 — ‘This report is confidential! It must never leave the premises of the company and is to be kept under lock. If you advise customers, do not tell all the reasons why.
“Most of the everyday needed information is contained in the handbook. Each person needing this information should have a personal copy of the handbook, which should be taken along on trips. The contents as a whole is^ confidential too.’
“c. Chemical Separations Index, EV-50 — ‘This index is confidential. Under no circumstances must it be shown to customers or used for publicity.’
“d. Sulzer Test Report — ‘Confidential. This report is the property of Sulzer Brothers Limited, Winterthur, and being private and confidential is supplied on the express condition that it is not to be used for any purpose or copied or communicated to any other person without our written permission.’
“e. All Sulzer Blueprints — ‘The copyright of this drawing which was entrusted to the receiver personally belongs to our company. Without the written permission of Sulzer this drawing shall not be copied or in another way duplicated nor given to third persons or made available in another way to third persons.’ The legend on these blueprints is in German.
“f. Most Koch Blueprints — ‘Note — The information contained hereon is of a confidential nature and is the property of Koch Engineering Company, Inc., Wichita, Kansas, U.S.A. and shall not be traced, photographed, photostated or reproduced in any manner, nor used for any purpose whatever except by written permission of Koch Engineering Company, Inc.’
“Some Koch blueprints contain the notation or legend, ‘Issue to Koch Shop only.’ ”
Pursuant to the license agreement, Sulzer had made available to Koch confidential technical information, data, blueprints, equipment and various other documents to enable Koch to commence the manufacture and sale of Sulzer packing, which packing is utilized in rectification towers or columns for distillation of chemicals. Said confidential information obtained and utilized by Koch in the manufacture and sale of Koch-Sulzer packing, together with further information developed by Koch in regard to customers, marketing information and the manufacture of packing, constitutes a valuable asset used by Koch in the course of its business. Sulzer packing is highly efficient; it can be scaled up easily to large column sizes, and its performance characteristics have been tested by Sulzer and have experienced industry acceptance. From 1968 to 1976, sales of Sulzer packing by Koch went from $200,000 to $4,500,000.
Defendant Faulconer was aware of the confidential nature of some of the information concerning the design and manufacture of Sulzer packing. He was furnished with various test reports, Sulzer manuals and documents which were expressly marked confidential.
Detailed technology concerning design and manufacture of Sulzer packing is available from diverse public sources. The defendant obtained some of the knowledge he now seeks to use from those sources. The evidence discloses at least the following instances wherein Faulconer accumulated Koch-Sulzer technology directly from his position as an employee of Koch:
(1) Faulconer succeeded Peter Reich, a former Sulzer employee, as the designated custodian of Sulzer technology reports at Koch and when Reich left Koch, Faulconer “inherited” Reich’s files.
(2) Faulconer was sent to Winterthur, Switzerland, in 1976 by Koch and while at the Sulzer Brothers’ facility, Faulconer received new copies of Sulzer Progress Reports for the years 1969 to 1976, and an up to date copy of the Sulzer Design Manual from Dr. Huber, in order to insure that Faulconer had a complete set of Sulzer materials.
Defendant Wayne Faulconer first used the name “Faulcon Engineering” in the spring of 1977. In the fall of 1977, he used that name for various contacts to develop his so-called Faulcon packing. On November 7, 1977, defendant Faulconer contacted one of plaintiffs suppliers of stainless steel wire cloth, Kansai Wire Netting Co., Ltd. Wire cloth is the essential component in Sulzer packing, and defendant Faulconer was, by the above letter, seeking a quote for 25,000 lineal feet of said cloth. The specifications provided by defendant Faulconer were virtually identical to those used by Koch in the manufacture of Sulzer packing. By a subsequent letter, defendant Faulconer advised Kansai that his inquiry was for “a new business venture” and that “we wish to maintain all aspects of the inquiry in the strictest of confidence.”
In late 1977 and early 1978, Faulconer contacted other suppliers of wire cloth. In each instance, the specifications provided were virtually identical to those used by plaintiff in the manufacture of Sulzer packing, with the exception of a minor additional requirement not related to performance characteristics. Further, as a means of illustration, Faulconer provided the various suppliers with actual samples of wire cloth which Koch was using in the manufacture of Sulzer packing.
A unique characteristic of Sulzer packing is the angle by which the wire cloth is crimped. Sulzer provided Koch with a machine to accomplish the crimping and Koch also had blueprints and specifications for a Sulzer crimping machine. Koch also had a crimping machine custom-built by Master Kraft Tooling Corporation, Tulsa, Oklahoma, by utilizing photographs and measurements of the Sulzer crimper.
Defendant Faulconer was aware that plaintiff had its crimping machine manufactured by Master Kraft Tooling Corporation. He contacted Mr. Abernathy of Master Kraft to obtain a quote to build a crimping machine like the one previously built for Koch. Thereafter, defendant went to Abernathy at Master Kraft in Tulsa to discuss construction of a crimping machine. Faulconer personally delivered to Abernathy a set of Sulzer blueprints for the crimping machine.
Upon delivery of the Sulzer blueprints, defendant Faulconer advised Mr. Abernathy that he wanted a crimping machine built like the blueprints. Defendant went over the Sulzer blueprints and noted some minor changes, but otherwise the machine to be built was to be identical to Koch’s. At no time did defendant Faulconer ever instruct Mr. Abernathy that the crimping machine was to be built any differently from the blueprints or from that previously built for Koch. Abernathy quoted defendant a price for building the crimping machine.
The machine used by Koch for crimping the wire cloth is unique and must be custom built. Mr. Abernathy has been in the business of custom building machine tools for 16 years, attends trade shows and is familiar with machine tool manufacturers’ catalog offerings. He had never seen a machine technically identical to the Koch-Sulzer crimper. The feeding mechanism is intricate and when Master Kraft built a crimper for Koch it required various adjustments to function properly.
When Master Kraft built the machine for Koch, it had the benefit of pictures and the opportunity to inspect and take precise measurements from the original Sulzer machine. Even so, Mr. Abernathy had a great deal of difficulty in completing it. Without the blueprints and the availability of another duplicate machine, it would be very difficult and expensive for someone else to build a similar machine.
In December, 1977, Faulconer placed an order with Norlan Ferguson, Eureka, Kansas, for the manufacture of a crimping machine. The drawings provided Ferguson for the construction of a crimping machine were substantially identical to the ones used by Koch. Ferguson was instructed to make the angle and depth of crimp as close as possible to the specifications in the drawings he was given, and those specifications were, in all significant respects, identical to those of the Koch crimper. The machine built was based on those drawings, although Ferguson deviated from them. A sample of the Koch wire cloth which Faulconer had obtained and which was run through the Ferguson machine produced a crimped result identical to that used by Koch.
In February, 1978, Faulconer contacted Allen Welding to obtain a quote on a spot welder that would weld wire mesh around Faulcon packing. Allen had sold a Miller welder to Koch and suggested a Miller welder to Faulconer. Faulconer also provided Allen Welding with a piece of wire cloth taken from Koch as an illustration of what he would be welding. Thereafter, Faulconer also contacted Lampton Welding to secure a quote on a spot welder and defendant provided Lampton with a sample of Koch’s wire cloth to determine if the welder would perform as required.
In early 1978 while employed at Koch, Faulconer made written proposals to Grant Chemical Company and to Cut> les Bopp to furnish them with Faulcon packing. Bopp and Grant Chemical were customers of Koch and Faulconer had dealt with them in his capacity as an employee of Koch. Faulconer told Grant Chemical that his packing would possess the technical properties of Koch packing at a price one-third less. Neither proposal was accepted.
In making his proposal to Mr. Bopp, defendant used an original Koch sepia drawing of a flange which he had taken from Koch, obliterated the Koch title block and confidentiality notation, and then made some changes in the parts’ dimensions and configurations by overdrawing on the reverse side.
All of the above actions were taken while defendant Faulconer was still a full-time employee of plaintiff. On learning of some of defendant’s actions in late February and early March, 1978, Koch terminated defendant’s employment.
Immediately after his termination, defendant contacted various Koch customers to offer his packing for sale. Each company which defendant contacted were customers of plaintiff which defendant had called on for plaintiff. In a letter to Dow Chemical Company, defendant specifically claimed that his packing would meet or exceed the performance of that of Koch-Sulzer and that the physical configurations would be nearly identical.
The documentary evidence obtained from defendant’s own files shows a clear pattern of actual business activity by Faulconer, commencing in October, 1977, while still a Koch employee, and culminating in Faulconer’s bids to Grant Chemical and Charles Bopp.
The defendant introduced evidence that Dr. Huber of Sulzer had written and published various articles in trade magazines concerning Sulzer columns and packings explaining the advantages of the system and main properties thereof. The purpose of this evidence was to show that the Sulzer system was in the public domain. The wire cloth used in the Koch-Sulzer packing is a standard manufactured item and was not developed by Sulzer. The specifications for crimping the wire cloth to form the corrugation and the inclination thereof may be learned by studying the finished packing. The court found there was nothing secret about the application of the packing, the column design, column tolerances, internals, installation in towers or pricing practices and policies. It appeared from the evidence that various types of packing, such as ceramic, plastic, flexipac, and mixer, are being used in other systems but that Sulzer research indicated the wire cloth packing used in the Koch-Sulzer system was superior.
In final summarization of the evidence the trial court found:
“In summary, but not in limitation, all of the information necessary to manufacture Koch-Sulzer packing is in the public domain. The knowledge of the best combination of processes or systems of combination of elements amounts to a trade secret in this case.
“The combination is not widely known outside the plaintiff’s business or by employees within the business. The plaintiff has taken reasonable means to guard the secrecy of the information which is valuable to the plaintiff and to its competitors.
“It would be extremely difficult, time-consuming, and expensive for anyone to duplicate the Koch-Sulzer process by utilizing the information that is in the public domain if that person had to find the information for himself. The ability of the defendant to avail himself of the vast resources of the plaintiff and Sulzer Brothers accelerated his ability to produce a product virtually identical to the plaintiff’s.”
In granting the injunction the trial court in its original order effective February 8, 1979, stated:
“For clarity, and in order to insure the protection of the trade secrets of plaintiff, the defendant is permanently enjoined from directly or indirectly manufacturing or designing packing and/or distillation towers which utilize a substantial duplication of Koch-Sulzer BX or CY packing.
“The defendant is further ordered to remove the die, the feed mechanism, and the take-off assembly from the machine owned by defendant and to forthwith deliver said die, feed mechanism, and the take-off assembly to plaintiff.”
An appeal was then taken by defendant. Plaintiff filed a cross-appeal. While the appeal and cross-appeal were pending Faulconer continued his efforts to establish his distillation packing business. On February 12, 1979, he wrote to Allied Chemical Company stating that the trial court’s decision had left the scope of his present packing business unrestricted. On February 19, 1979, he wrote to G. Valeri of Union Carbide Company stating that under the court’s decision he could undertake any business activity he wished. Between February and June of 1979, Faulconer contacted various potential customers including Fiber Industries, Inc., Dow Chemical and Artisan Industries for possible sales of “Faulcon Packing.” On August 30, 1979, Faulconer shipped twenty elements of Faulcon packing to Artisan Industries.
On September 19, 1979, Koch obtained an order directing Faulconer to appear and show cause on a motion for supplemental relief. On September 26, while the matter was pending, Faulcon packing was shipped to Dow Chemical of Freeport, Texas. After various motions and objections by Faulconer he was held in contempt of the February 8th order to deliver the die, feed mechanism, and take-off assembly. This occurred on October 10 and on that same day Faulconer shipped Faulcon packing to Fabrication Engineering Service Co., Inc., in connection with a sale to Fiber Industries, Inc. Faulconer continued to contact customers during the month of October. On November 16, 1979, the court granted supplemental permanent injunctive relief after a hearing at which it made additional findings and conclusions substantially as follows:
1. Koch-Sulzer packing is the only commercially produced packing that utilizes woven wire gauze, crimped, arranged in reverse corrugated layers, with the wire gauze containing perforations of varying patterns, and assembled in the configurations or variation of configurations as shown by the various exhibits in evidence labeled Sulzer or Koch-Sulzer packing.
2. The research, testing, experimentation, and technology concerning each configuration is part of the trade secret as found in the original Journal Entry of Judgment. This technology is not only essential to the design, manufacture, and application of Faulcon packing, it is necessary to the so-called test reports used by Faulcon packing.
3. Faulcon packing attains the same basic result that is attained by Koch-Sulzer packing, uses the same means of attaining the result as does Koch-Sulzer packing, and uses the same manner in which the different parts of the packing operate and cooperate to produce the result as does Koch-Sulzer packing.
4. Each Koch-Sulzer packing described by the six parameters is a substantial duplicate of the other.
5. Faulcon packing is a substantial duplicate of Koch-Sulzer “BX” and/or “CY” packing.
6. Based upon the trial court’s comparison of defendant’s “Faulcon Packing Performance” report and defendant’s “May 1979 Experimental Study,” with plaintiff’s Fractionation Research, Inc. (FRI) Plant Test Report, and based upon the similarity between the reports in language and basic tabulated data, including the chemicals tested, the size of the columns, and the pressures at which the chemicals were tested, and further based upon defendant’s admission that he has never run any of the tests that defendant’s documents purport to display or report, the trial court found that defendant’s reports had been basically copied from the FRI report. Nothing in defendant’s reports make it apparent, even to a graduate chemical engineer, that defendant did not in fact run the tests on which the reports are based. Defendant’s reports do, however, convey the idea that Faulcon packing, as purportedly tested, performs in substantially the same manner as Koch-Sulzer packing, and that the applications or uses of Faulcon packing duplicate or are interchangeable with KochSulzer packing. The trial court, therefore, found that defendant distributed his reports in an attempt to palm off Faulcon packing as a substantial duplicate of Koch-Sulzer packing.
7. Defendant, Wayne C. Faulconer, designed and manufactured a packing known as “Faulcon packing” which is a substantial duplicate of Koch-Sulzer BX or CY packing, and which is virtually a direct copy of Koch-Sulzer AX packing. In designing and manufacturing Faulcon packing defendant has continued to misappropriate the trade secret technology transferred from Sulzer to Koch pursuant to the Koch-Sulzer License Agreement.
8. The court’s prior injunction prohibited the defendant from utilizing plaintiff’s trade secrets by substantially duplicating BX and CY packing. The trial court at the supplemental hearing further found that Faulcon packing is a substantial duplicate of Koch-Sulzer BX, CY, AX, and BW packing and all other packings of the petitioner, and the manufacture of same is a violation of the original injunction.
As a result of these additional findings the court’s supplemental injunction against Faulconer enjoined him permanently from directly or indirectly:
“a. Utilizing all or any portion of the design, specifications, technique, or methods used by the plaintiff or Sulzer Brothers, Ltd., in designing or assembling any type of Koch-Sulzer packing elements both in the cylindrical and segmental configurations;
“b. Utilizing in any manner any drawings, documents, test data, monographs, correspondence, papers, technical data, or information concerning the KochSulzer product line and/or Koch-Sulzer packing and/or equipment previously identified in the evidence in the hearings herein as part of the compilation of Koch-Sulzer technology;
“c. Disclosing or transmitting in any manner to any firm, person, or corporation any technical data, information, or documents pertaining to the design, manufacture, or sale of the Koch-Sulzer product line;
“d. Assembling, manufacturing, offering for sale, selling, or delivering any product, packings, or equipment acquired by the defendant or in the process of being assembled, manufactured, or sold by defendant which in any manner incorporates any of the compilation of Koch-Sulzer technology which has previously been found by this Court to constitute a trade secret.
“e. Designing, manufacturing, or assembling any packing or distillation tower that utilizes a substantial duplicate of any Koch-Sulzer packing or distillation tower.”
Faulconer perfected an appeal from this second supplemental injunction questioning the authority of the court and the validity of the supplemental injunctive order.
We turn now to the issues raised in the two appeals in light of some of the controlling law in the area of trade secrets and unfair competition.
In an action to enjoin unfair competition arising by reason of the unauthorized use of a trade secret, the plaintiff must establish (1) the existence of a trade secret used by plaintiff in its business or trade, (2) a confidential relationship between the parties, (3) disclosures made in confidence by plaintiff to defendant concerning the trade secret, and (4) an unauthorized use of those disclosures by the defendant. Mann v. Tatge Chemical Co., Inc., 201 Kan. 326, 332, 440 P.2d 640 (1968); Restatement of Torts § 757 (1939).
The threshold issue in every case is not whether there was a confidential relationship and a breach of contract or some other kind of misappropriation, but whether, in fact, there was a trade secret to be misappropriated. So we must answer the primary question — What is a trade secret? A trade secret has an intangible pecuniary value. It may relate to a single item of information, a plan or compilation of information, or a combination of ideas and tangible expressions, such as drawings, patterns, devices, plans, notes and lists with which to put the item, plan or compilation to use. 2 Callmann, Unfair Competition Trademarks and Monopolies § 51.1 (3d ed. 1968 and 1979 Supp.).
In Mann v. Tatge Chemical Co., Inc., 201 Kan. at 333, quoting from the Restatement, it is pointed out an exact definition of a trade secret may not be possible, but factors to be considered in recognizing a trade secret are: (1) the extent to which the information is known outside the business, (2) the extent to which it is known to those inside the business, i.e., by the employees, (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information, (4) the savings effected and the value to the holder in having the information as against competitors, (5) the amount of effort or money expended in obtaining and developing the information, and (6) the amount of time and expense it would take for others to acquire and duplicate the information. See also Abbott Laboratories v. Norse Chemical Corp., 33 Wis. 2d 445, 147 N.W.2d 529 (1967).
In Mann v. Tatge Chemical Co., Inc., 201 Kan. at 334, we state that no cases in Kansas have provided a definition for a trade secret, but the following cases involving trade secrets are cited: Mayfield v. Hesston Mfg. Co., 187 Kan. 91, 353 P.2d 789 (1960); Miller v. International Harvester Co., 179 Kan. 711, 298 P.2d 279 (1956); Ballard v. Claude Drilling Co., 149 Kan. 506, 88 P.2d 1021 (1939); Southwest Specialties Co. v. Eastman, 130 Kan. 443, 286 Pac. 225 (1930); Morrison v. Woodbury, 105 Kan. 617, 185 Pac. 735 (1919). A statement as to what a trade secret may consist of can be found in Mann, 201 Kan. at 333, as quoted from Restatement of Torts § 757, Comment b:
“ ‘A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. . . .’ (p. 5.)”
Let us examine the factors to be considered in determining whether a trade secret exists in the present case. The process we are to examine consists of a combination of devices and a compilation of information which, when operated, assembled, and made use of in a certain manner, can result in the construction of a distillation plant with internal packings which obtain an advantage over competitors.
First, to what extent was the information known outside the business? The process in general was known by those who had seen the components of the Koch-Sulzer distillation process but the methods, research information, patents and machines which were necessary to produce the types of packing were unique and intricate. They were not generally known outside the business of Koch-Sulzer.
Second, to what extent was it known to those employees inside the business? The employees were acquainted with the process to varying degrees and certain key individuals had access to confidential blueprints, books and manuals in which the process was completely explained. The blueprints of the crimping machine were available to Faulconer and others but were understood to be confidential.
Third, what precautions were taken by the holder of the trade secret? The books and manuals obtained from Sulzer and placed in the hands of Faulconer and other key employees were marked confidential. Most of the employees were required to sign secrecy agreements.
Fourth, what savings were effected and what was the value to the holder in having the information as against competitors? Koch entered into an exclusive licensing agreement with Sulzer Brothers, Ltd., Winterthur, Switzerland, to obtain exclusive manufacturing and sales rights to the Sulzer packings. Koch made a down payment of $20,000 and has paid over $1,000,000 in royalty payments for continued rights.
Fifth, what amount of effort or money was expended in obtaining and developing the information? Sulzer invested $5,000,000 in research, development and testing which resulted in valuable technology. The licensing agreement required Koch to keep the technical data confidential and to safeguard the same. In addition Koch had financed a trip by Faulconer to Winterthur, Switzerland, to attend a training session on later developments by Sulzer in the field of distillation technology.
Sixth, what amount of time and expense would it take for others to acquire and duplicate the information? Sulzer Brothers, Ltd., had worked on perfecting this process from 1961 to 1965. Faulconer worked for Koch using the confidential materials from 1971 to 1977, before he began developing his business venture. There was no evidence of the amount of expense it would take for others to acquire and duplicate the information. The only evidence available was the amount Koch paid to obtain the exclusive licensing agreement.
Considering the above factors the trial court correctly determined from the evidence that Koch was using and was legally in possession of a valuable trade secret which consisted of patterns, devices and a compilation of information obtained through extensive research which was used in its business in manufacturing and selling Koch-Sulzer packings, and which gave Koch an advantage over competitors who did not use it. There can be little question that a confidential relationship existed between Koch, as employer, and Faulconer, as employee. Disclosures were made in confidence by Koch concerning the trade secret. Manuals, documents and blueprints were marked and understood to be confidential. Faulconer, in spite of having signed an agreement not to compete, made unauthorized use of the confidential disclosures, set up his own competing business and persisted in manufacturing and selling a packing which was practically identical to the Koch-Sulzer packing.
It is little wonder that Faulconer was able to underbid KochSulzer packing, for Koch was required by the licensing agreement with Sulzer to pay royalty on all Koch-Sulzer packing sold; Faulconer was not. In addition, Faulconer had copied not only the packing but also the research data, which was a valuable sales tool. The research data clearly established the superiority of wire cloth crimped packing over other types of packing. Faulconer had no research expense to recoup; Koch-Sulzer did.
The evidence introduced in this case clearly supported the court’s findings, and the findings in turn supported the court’s conclusion that a permanent injunction should be issued.
Turning now to the supplemental appeal, it appears there is one primary question which, when answered, will determine all others. The question concerns the authority of the court to supplement and enlarge its original order granting injunctive relief.
The appellant Faulconer continues to deny that a trade secret existed. Based on that premise he argues the issuance of the permanent injunction and the enlargement thereof was erroneous. We disagree. We have discussed the issuance of the permanent injunction and nothing further need be said thereon. However, appellant questions the power and authority of the trial court to enlarge and supplement its injunction once the order has been entered.
A district court clearly has both a statutory and an inherent power in Kansas to enforce its orders. K.S.A. 60-909 provides that a court may enforce an injunction by (1) contempt, (2) damages, and (3) other appropriate remedies. K.S.A. 60-910 outlines the procedure for vacating or modifying an injunctive order both before and after final judgment. As far back as State v. Pittsburg, 80 Kan. 710, 104 Pac. 847 (1909), this court recognized the inherent and indisputable power of a district court to punish those who violate its injunctive orders. In Campbell v. Campbell, 198 Kan. 181, 194, 422 P.2d 932 (1967), this inherent power is recognized in the following words:
“[I]t perhaps should be emphasized that nothing herein is to be taken in diminution of the inherent power of the district court to punish for contempt and to make such reasonable orders as are necessary to preserve and protect its judgment if a litigant maintains a position at variance with that judgment.”
Even if a court issues an erroneous order, the parties to the litigation must obey the order when it was within the court’s jurisdiction, and, for the sake of orderly administration of justice, any disobedience with that order may be punished as contempt. Small v. Small, 195 Kan. 531, 534, 407 P.2d 491 (1965).
The proper manner for a party to test the validity of an order of a court is not to defy the order, but to move to have it set aside in the court which issued it or in some court having supervisory jurisdiction. When a permanent injunction has been issued, the court issuing the same is empowered to enforce both the letter and the spirit, or purpose, of the injunction and should do so at the request of the party who obtained the injunction. As stated in 11 Wright & Miller, Federal Practice and Procedure: Civil § 2961, p. 600 (1973):
“Inasmuch as an injunctive decree is drafted in light of what the court believes will be the future course of events, a court must continually be willing to redraft the order at the request of the party who obtained equitable relief in order to insure that the decree accomplishes its intended result.”
A trial court has the jurisdiction, the authority, and the power not only to enforce its orders but also to entertain a motion for supplemental relief and to issue appropriate additional orders to make effective the relief previously granted. See State, ex rel., v. Riverside Drainage District, 123 Kan. 46, 254 Pac. 366, rehearing denied 123 Kan. 393, 255 Pac. 37 (1927); State, ex rel., v. Riverside Drainage District, 129 Kan. 150, 155, 281 Pac. 881 (1929); Brookings v. Riverside Drainage Dist., 135 Kan. 234, 235, 9 P.2d 656 (1932).
One final matter raised in the supplemental appeal merits comment. Appellant quotes K.S.A. 60-906 which states that every order granting an injunction shall set forth the reasons for its issuance, shall be specific in terms, and shall describe in reasonable detail the acts sought to be restrained. On the basis of this statute appellant questions the sufficiency of the court’s order because it refers, to “thousands of pages of exhibits.” The first order consisted of 32 pages of facts found and conclusions reached. The supplemental order consisted of seven additional pages of facts found and conclusions reached. All but seven of the thirty-nine pages set forth the findings with reasons for the issuance of the orders. The remaining seven (7) pages describe in reasonable detail the acts sought to be restrained as heretofore quoted.
In these orders it was noted:
“[T]he defendant is permanently enjoined from directly or indirectly manufacturing or designing packing and/or distillation towers which utilize a substantial duplication of Koch-Sulzer BX or CY packing.
“The defendant is further ordered to remove the die, the feed mechanism, and the take-off assembly from the machine owned by defendant and to forthwith deliver said die, feed mechanism, and take-off assembly to plaintiff.”
This describes in reasonable detail the acts sought to be restrained in the first order of the court. The supplemental order as previously quoted herein extended the injunction to Faulcon packing which is a substantial duplicate of Koch-Sulzer AX and BW packing, in addition to the BX and CY packing previously covered. The supplemental order was more specific and covered the prohibitions imposed by the injunction in more detail.
Reading the two orders together there is little doubt that they fully advised appellant of the prohibited acts and complied with the provisions of K.S.A. 60-906.
Now we turn to the cross-appeal of Koch, filed in the original appeal of Faulconer. The first issue raised was directed at the trial court’s failure to enjoin Faulconer from duplicating the entire line of Koch-Sulzer packing. This was done by the court in its supplemental order and no further mention was made of it by cross-appellant. Accordingly the matter complained of by Koch was disposed of in the supplemental order in Koch’s favor, and now is approved and affirmed by this court.
The second issue raised on the cross-appeal concerns failure of the trial court to enjoin Faulconer from soliciting customers of Koch. We see little purpose for the trial court to extend the injunction to solicitation of customers, since Faulconer is enjoined from manufacturing, offering for sale, selling or delivering the products. The trial court found the list of customers of the plaintiff was not a trade secret. Both parties have acquiesced in the court’s findings and this ends the question. Whether a particular customer list is a trade secret depends on the facts and circumstances of each case, and is a question of fact for the trier of fact. Here the court found against the cross-appellant and the finding must stand.
By way of illustration we have two cases in Kansas which involved the use of customer lists. In Morrison v. Woodbury, 105 Kan. 617, the court enjoined the use of a customer list. In Garst v. Scott, 114 Kan. 676, 220 Pac. 277, 34 A.L.R. 395 (1923), the court held the solicitation of laundry customers of a former employer should not be enjoined. The determination in each case is one of fact. For those who would like to explore the subject further see Annot., Customer List — As Trade Secret — Factors 28 A.L.R.3d 7.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State from a decision denying its application for a permanent injunction against the defendant-appellee, St. Francis Hospital. The action was brought by the Secretary of Health and Environment seeking to enjoin St. Francis Hospital from implementing an open heart surgery unit without first obtaining a certificate of need, which the Secretary alleged was required under the provisions of K.S.A. 1977 Supp. 65-4801 et seq.
The United States Congress, in 1974, enacted the National Health Planning and Resources Development Act (42 U.S.C. § 300k et seq.). The act creates a structure for carrying out health planning and dictates health resources allocation and regulation. Regulations are imposed upon the various states and are enforced by the mechanism of withholding federal funding from states that do not comply. The Kansas Legislature, in order to take advantage of federal funding and to comply with the federal regulations, passed in 1976 comprehensive certificate of need legislation (L. 1976, ch. 280), now codified as K.S.A. 1978 Supp. 65-4801 et seq. One of the goals of this legislation is to prevent unnecessary duplication of health resources and facilities which will theoretically prevent higher medical costs resulting from duplication. The statutes require any health care facility that wishes to undertake expansion, a new construction project, adoption of new major services, etc., to obtain a certificate of need by application to the Secretary of Health and Environment.
In 1974, St. Francis Hospital and Stormont-Vail Hospital, two of the major health care facilities in Topeka, desired to embark upon major expansion programs and submitted applications for certificates of need under the appropriate statutes which existed prior to the enactment of K.S.A. 1976 Supp. 65-4801 et seq. Stormont-Vail proposed to add 118 beds and establish a cardiac (open heart) surgery unit. St. Francis proposed to add 115 beds and establish facilities for high voltage radiation (cancer) therapy. The requested certificates of need were approved in 1975 and both hospitals have proceeded with the authorized expansions and additional services.
In early 1978, officials of St. Francis decided to implement their own cardiac surgery unit and discussed such plans with representatives of the Department of Health and Environment. On March 22, 1978, Richard J. Morrissey, Associate Director of the department, directed a letter to St. Francis which stated, in part:
“During our meeting you informed us of plans to open a Cardiac Surgery Unit at St. Francis in the near future. Your application for Certificate of Need specified that you would not provide this service unless existing providers of the service were unable to meet the demand. . . . Under the current Certificate of Need Statute, 65-4811, et seq., you will be required to obtain a Certificate of Need for this service if the capital expenditure involved exceeds $150,000. The Kansas Legislature has approved amendments to the current statute (H. B. 3199) that, when approved by the Governor, will require that you obtain a Certificate of Need for this service regardless of the capital expenditure involved.” (Emphasis added.)
St. Francis determined that the capital expenditure for the necessary equipment to establish a cardiac surgery unit in their then existing facilities would be $48,291.36. With this information defendant proceeded to secure the equipment and implement the cardiac surgery unit without applying for a new certificate of need. The unit is now installed and in use.
The Secretary of the Department of Health and Environment, pursuant to K.S.A. 1977 Supp. 65-4820, then brought this action in the name of the State to permanently enjoin St. Francis from establishing a cardiac surgery unit until it obtained an amendment to its existing certificate of need. A temporary restraining order was issued, ex parte, April 7, 1978, and the hearing on the application for a permanent injunction commenced April 17, 1978. Following testimony which took the greater part of five days, the trial court found for the defendant, St. Francis, dissolved the temporary restraining order and denied plaintiff’s request for a permanent injunction. The Secretary has appealed.
At the outset we might observe that while Stormont-Vail Hospital was not a named party to this action, it appears to have been vitally interested in the outcome and provided testimony and evidence on behalf of the Secretary.
The first point on appeal is that the trial court erred in finding St. Francis did not need a certificate of need to implement its open heart surgery program. The learned trial judge found that K.S.A. 1977 Supp. 65-4801 et seq., did not require such a certificate. The pertinent statutes in force at the time provided:
K.S.A. 1977 Supp. 65-4802:
“No person shall undertake a project described in K.S.A. 1976 Supp. 65-4805 unless a certificate of need has been obtained under the provisions of this act.”
K.S.A. 1977 Supp. 65-4805:
“(a) Projects requiring a certificate of need before they are undertaken include, and shall be limited to, the following:
(1) The construction of a new health facility.
(2) The construction of additional bed capacity in a health facility.
“(b) The following projects require a certificate of need if a capital expenditure, as defined in subsection (c), is required to complete the project:
(1) Modernization of an existing health facility.
(2) Substantial changes in the services of a health facility resulting in the addition of a clinically related diagnostic, curative or rehabilitative service not previously provided in the facility.
(3) The termination of a service which had previously been provided in the facility.
(4) The acquisition of a health facility or part thereof or equipment for a health facility obtained under lease or comparable arrangement or through donation, the expenditure for which would have been considered a capital expenditure if the person had acquired the facility or equipment by purchase and the fair market value of which exceeds the minimum amount specified in subsection (c) of this section.
“(c) As used in this section ‘capital expenditure’ means an expenditure, including an expenditure for a construction project undertaken by the facility as its own contractor, which, under generally accepted accounting principles, is not properly chargeable as an expense of operation and maintenance and which exceeds one hundred fifty thousand dollars ($150,000). The total individual project cost shall be limited to all depreciable assets to be owned or used by the health facility as a result of the project and which would normally be capitalized under generally accepted accounting procedures.
“(d) Where the estimated costs of a proposed project, including cost escalation factors appropriate to the area in which the project is located, is certified, within sixty (60) days of the date on which the obligation for such expenditure is incurred, by a registered architect or licensed professional engineer to be one hundred fifty thousand dollars ($150,000) or less, such expenditure shall be deemed not to exceed one hundred fifty thousand dollars ($150,000) regardless of the actual costs of such project. Where the actual cost of the project exceeds one hundred fifty thousand dollars ($150,000), the health facility on whose behalf such expenditure is made shall provide written notification of such cost to the state agency not more than thirty (30) days after the date on which such expenditure is incurred. Such notification shall include a copy of the certified estimate.” (Emphasis added.)
On April 14, 1978, Janis Vilums, Jr., a registered architect who had worked on the previous expansion of St. Francis Hospital, executed a certificate in which he certified that the equipment necessary to implement the cardiac surgery unit at St. Francis Hospital would cost $48,291.36. The certificate states it is certified in accordance with K.S.A. 1977 Supp. 65-4805(d). The court found the architect’s certificate to be sufficient and ruled that under the statute St. Francis was not required to obtain a certificate of need from the Department of Health and Welfare.
The Secretary argues that the certificate of need statutes were enacted to bring Kansas into conformance with the federal regulations under the National Health Planning and Resources Development Act of 1974 and that the court should have looked to the federal statutes and regulations to determine the legislative intent behind K.S.A. 1977 Supp. 65-4805. The appellant points out that under federal HEW guidelines (43 Fed. Reg. 13040 to 13050 [1978]), the “limitations of certain resources, such as open heart units, can lead to improvements in quality of care while at the same time containing costs” (43 Fed. Reg. 13040 [1978]). St. Francis contends the statute is clear and unambiguous and by its specific terms does not require an amendment to the existing certificate of need and does not require a new certificate of need because the capital expenditure was less than $150,000.00. Is the statute ambiguous? We think not.
“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.” Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, 438-39, 573 P.2d 1073 (1978).
K.S.A. 1977 Supp. 65-4805 is clear and unambiguous in its terms, and rules of statutory construction do not apply. The statute clearly exempts the St. Francis cardiac surgery unit from its requirements as it was shown the unit would not involve capital expenditures of $150,000.00 or more. Appellant’s first point is without merit. In passing, we might comment that the legislature recognized the proper application of the statute and, effective July 1, 1978, amended 65-4805 to require a certifícate of need whenever the offering of a new health service is proposed, regardless of the capital expenditure or cost. The amendment came after the establishment of the cardiac unit by St. Francis and is of no consolation to the Secretary in this case.
Appellant’s second point is that the trial court erred in not issuing a permanent injunction. The argument appears to be that the action was properly brought under K.S.A. 1977 Supp. 65-4820 and that under the statutes and cases, an injunction should have been granted. There is no question but what the Secretary had the standing and authority to bring the action but, upon the facts in this case, as found by the court and supported by the evidence, the action of St. Francis did not require a certificate of need and, therefore, was not subject to injunction. It is also argued that there had been an agreement between Stormont-Vail and St. Francis, when the 1975 certificates of need for their respective expansions were granted, to the effect that St. Francis would not ask for a cardiac surgery unit and Stormont-Vail would not ask for a radiation therapy unit. The court found that while there may have been some such discussion between the principals of the two hospitals, the certificates of need and the minutes of the regulatory body did not reflect any such agreement. The point is without merit.
The next argument by the Secretary is that the trial court erred in excluding certain proffered expert testimony. Marlon Dauner, Senior Director of Institutional Affairs for Blue Cross and Blue Shield of Kansas, proposed to testify as to the increased costs which would result from the implementation of a second cardiac surgery unit in Topeka. The proffered testimony based upon a hypothetical situation assumed a fact which was not in evidence and was therefore excluded. There was no abuse of discretion in the trial court’s ruling. Stucky v. Johnson, 213 Kan. 738, 518 P.2d 937 (1974); K.S.A. 60-456(6).
Appellant’s final point is the court erred in admitting in evidence the architect’s certificate of Janis Vilums, Jr. At the trial plaintiff objected to the introduction of the certificate on the grounds of an insufficient foundation. The first argument is that as the architect based his certificate on information gained from others, it was inadmissible as hearsay. Vilums testified that the information was compiled by members of his architectural firm, under his direction, and he executed the certificate in his capacity as a registered architect and vouched for its contents and accuracy. No error is shown. Next, appellant argues the trial court should have looked behind the certificate and determined the equipment was inadequate and the unit could not be equipped for the amount certified to by the architect. While there was conflicting evidence on these items, the arguments of appellant go to the weight of the evidence and not its admissibility. The decision is supported by sufficient competent evidence and no error is shown. Finally, appellant argues the certificate was not certified “within 60 days of the date on which the obligation for such expenditure is incurred . . . .” in accordance with K.S.A. 1977 Supp. 65-4805(d). There were purchase orders admitted in evidence showing the required equipment had been ordered by St. Francis between March 23,1978 and April 5, 1978. The architect’s certificate was dated April 14, 1978. This argument lacks merit.
We have carefully reviewed the entire record and find no error on the part of the trial court.
The judgment is affirmed. | [
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Per Curiam:
In July, 1978, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers and Express and Station Employees (BRAC) commenced a legal strike against the Norfolk & Western Railway Co. (N & W). As a part of their striking activities BRAC established picket lines around the premises of the Rock Island Railroad which were removed from, and no part of, the property occupied by N & W. The Rock Island filed suit to enjoin such secondary picketing under the provisions of K.S.A. 44-809(13) and (14). After a hearing the trial court denied the request for an injunction holding that the matter was controlled by federal law and that federal law as enunciated in Railroad Trainmen v. Terminal Co., 394 U.S. 369, 22 L.Ed.2d 344, 89 S.Ct. 1109 (1969), prevented state proscription of the picketing by BRAC.
It is conceded that while jurisdiction to hear the action is vested in the state courts, federal law must be applied by the court. It is further conceded that no labor dispute now exists between BRAC and N & W and no picketing is being done by BRAC on Rock Island property. Any opinion rendered at this time would be advisory only as the issues between the parties are moot. This court has held that even though the issues in a particular appeal may be moot if the issues are capable of repetition and are of extreme public importance then the appeal may be considered and an opinion rendered. Reece Shirley & Ron’s, Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 592 P.2d 433 (1979).
In the case now before the court all parties were governed by federal statutory law including the Norris-LaGuardia Act and the Railway Labor Act and the federal cases interpreting those statutes. We do not deem it to be in the public interest for the court at this time to attempt to render an advisory opinion upon conflicting federal decisions and statutes when no actual controversy now exists.
The appeal is dismissed as being moot. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Jefferson W. Sanders from his conviction by a jury of rape, K.S.A. 1979 Supp. 21-3502. He contends that the trial court erred in failing to accept the jury announcement that it was deadlocked and in holding hearings and conducting proceedings when defendant was not personally present; that the State’s failure to disclose exculpatory evidence to the defense was prejudicial error; and that the evidence was insufficient to sustain the conviction.
The jury retired for deliberation before noon on Friday, March 23, 1979. At approximately 5 o’clock p.m., the judge had the jury returned to the courtroom. The jury had reached a verdict on Count I (which later turned out to be a not guilty verdict on a charge with which we are not here concerned), but it had not reached a decision as to Count II, the rape charge. The judge then asked the jurors if further deliberation would be useful, and suggested that perhaps with a weekend’s rest and a chance to reflect, they might come back on Monday and find that they could agree. After some discussion with the foreman, the judge let the jurors return to the jury room to consider the matter. In a few minutes they returned, and the foreman announced that the jurors would like to come back on Monday morning. The jury was then recessed until Monday morning. It resumed its deliberations at 9 o’clock that morning, and returned a verdict of guilty on the rape charge at 11:30 o’clock a.m.
We have reviewed the record of these proceedings carefully, and hold that the trial judge did not coerce the jury and he did not abuse his discretion in the least in inquiring as to the desires of the jury and in complying with the expressed wishes and desires of that body. The primary case upon which defendant relies, State v. Green, 254 Iowa 1379, 121 N.W.2d 89 (1963), is one in which, a deadlocked jury was required to deliberate continuously for some 27 hours, until a verdict was reached. There was no coercion of that nature in the matter at hand, and that decision is not persuasive. Under the circumstances here, the court did not abuse its discretion in failing to find that the jury was deadlocked after its first few hours of deliberation.
Defendant complains of two conferences between court and counsel at which he was not present. The first was immediately following voir dire and considered motions in limine concerning the admissibility of the record of defendant’s prior conviction and the admissibility of evidence of the victim’s prior sexual activity. See K.S.A. 60-447a. Evidence of defendant’s prior conviction was not offered or received in evidence during the trial. As to the evidence of the victim’s alleged prior sex acts, the court ruled that no such evidence would be admitted until the affidavit mandated by K.S.A. 60-447a(l) was furnished. No such affidavit was forthcoming.
K.S.A. 22-3405 provides that the defendant in a felony case shall be present “at every stage of the trial.” We have construed this section of the statute to require defendant’s presence at all times when the jury is present or at other proceedings where “[defendant’s] presence is essential to a fair and just determination of a substantial issue.” State v. Mantz, 222 Kan. 453, 463, 565 P.2d 612 (1977); State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942, November 5, 1979. Proceedings involving only matters of law are not included. Mantz, 222 Kan. at 463. The in-chambers conference on the motions in limine was not crucial, considered only matters of law, and defendant was not prejudiced because of his absence. The evidence of the defendant’s prior conviction, which the State wished to offer, was not introduced. The matter of the admissibility of the victim’s prior sex acts was already controlled by statute, and no attempt was made to comply or to offer any such evidence. Defense counsel stated later that he knew of allegations that the prosecutrix had been a prostitute, but he was unable to secure any testimony to that effect.
The second conference complained of was one at which jury instructions were considered. The record discloses that defendant was personally present at that time, and that issue was withdrawn on oral argument.
The “exculpatory evidence” which the defendant claims the prosecution withheld consists of (1) evidence that the prosecutrix was formerly a prostitute, and (2) evidence that results of tests taken disclosed that the prosecutrix tested positively for gonorrhea and the defendant tested negatively.
As to the former, there is no indication that the prosecutrix was ever charged with or convicted of prostitution. There is no showing that the prosecutor knew of such evidence, or withheld it, or that it existed. The prosecutor recalls hearing that the prosecutrix had been a prostitute during her early teens, but says that to the best of his recollection he heard this after the trial of the case. The claim that such evidence was withheld is thus without merit; the defense already knew as much in this regard as the prosecution.
The fact that tests for venereal disease were taken was disclosed to defense counsel, and the fact that the prosecutrix tested positive for gonorrhea was disclosed to defendant’s original attorney; trial counsel was not made aware of the test results. There was no issue, however, as to the fact that sexual intercourse took place between the prosecutrix and the defendant; he admitted that fact to arresting officers and again during his trial testimony. The sole issue was consent. The test results were thus immaterial. Under the circumstances we find no error.
Finally, defendant contends that the evidence is insufficient to support the conviction. The test of the sufficiency of the evidence is set forth in State v. Voiles, 226 Kan. 469, Syl. ¶6, 601 P.2d 1121 (1979):
“In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? Following Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979).”
Rape is the act of sexual intercourse committed by a man with a woman not his wife, and without her consent, when her resistance is overcome by force or fear. K.S.A. 1979 Supp. 21-3502. Here the act of sexual intercourse was admitted. The parties were not married; the victim’s testimony in this regard is not challenged. The victim testified that the defendant struck her repeatedly, twisted her arm, forced her to go with him to the bedroom, threatened to beat her and to kill her, and twice forced her to have intercourse with him. The testimony of the victim establishes all of the elements of the offense and, if believed, is adequate to support the conviction.
The testimony of the prosecutrix need not be corroborated to sustain a conviction for rape in this state. In State v. Brown, 85 Kan. 418, 116 Pac. 508 (1911), Chief Justice Johnston said:
“Under the common law evidence corroborating that of the prosecutrix was not essential to a conviction. In some states it is expressly provided by statute that the defendant can not be convicted unless the prosecutrix is corroborated by other evidence tending to connect the defendant with the commission of the offense. No such statute has been enacted in this state, and it has already been held that, in the absence of a statute, there may be a conviction on the uncorroborated evidence of the prosecutrix if it is believed by the jury. (The State v. Tinkler, 72 Kan. 262.)” (p. 421.)
This rule has been followed in our later cases. See State v. Orth, 101 Kan. 183, 165 Pac. 652 (1917); State v. Wilhelm, 112 Kan. 236, 237, 210 Pac. 347 (1922); State v. Thompson, 166 Kan. 466, 201 P.2d 630 (1949); State v. Morgan, 207 Kan. 581, 485 P.2d 1371 (1971); State v. Robinson, 219 Kan. 218, 220, 547 P.2d 335 (1976); and see PIK Crim. 57.04.
It is true that there were inconsistencies in the evidence. The victim testified that she was beaten, yet no bruises were found on her person upon medical examination the following day, and none were observed by her friends. Her testimony was inconsis tent in many ways with that of other witnesses. Yet the crucial issue — whether the act was accomplished by mutual consent or against the victim’s will by force and fear — had to be determined by the jury on the basis of the testimony of the prosecutrix and the defendant. The jury found her testimony believable and rejected defendant’s version. The function of this court is not to weigh the evidence, but to determine whether upon the evidence introduced a rational factfinder could have found guilt beyond a reasonable doubt. We conclude that the evidence was sufficient.
The judgment is affirmed.
Herd, J., dissenting: I don’t believe a rational factfinder viewing the evidence in the light most favorable to the prosecution could have found the defendant guilty of rape beyond a reasonable doubt. The facts reveal the defendant met prosecutrix at an after hours party and gambling establishment in East Topeka. He offered to take her home as she had no transportation of her own. The two had been engaged in smoking marijuana in the party house. A taxicab was called and defendant and prosecutrix left together. The defendant and prosecutrix willingly went to defendant’s house, which was also occupied by defendant’s father. They then engaged in sexual intercourse. The prosecutrix claims she was forced to submit by threats and that she was beaten by defendant. An examination at the hospital revealed no evidence of physical abuse.
The prosecutrix testified she left the defendant’s house late that night and went to her home and went to bed and awoke the next day between 10:00 and 11:30 a.m., and after discussing the events of the previous night with a friend she decided to call the police and report she had been raped.
That uncorroborated testimony taken in its most favorable light to the prosecution is not convincing.
Schroeder, C.J., and Holmes, J., join in the foregoing dissenting opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
Defendant State Farm Mutual Insurance Company appeals from a judgment of the trial court awarding plaintiff Leslie O. Dreiling personal injury protection (PIP) benefits under the Kansas automobile injury reparations act (K.S.A. 1979 Supp. 40-3101 et seq.).
The sole issue on appeal is whether the trial court erred in awarding PIP benefits to plaintiff, who was injured while operating a borrowed automobile, but who, at the time of the accident, owned a registered, uninsured and inoperable automobile.
The facts are as follows. In 1976, plaintiff, a resident of Hays, Kansas, purchased a 1970 Chevrolet Malibu automobile. At that time plaintiff secured insurance on the vehicle, registered the vehicle, and operated it on the highways of the state. At some point in 1976 plaintiff lost his driving privileges and attempted to sell the vehicle. When his insurance lapsed in 1976 he advised the insurance agent that he was trying to sell the vehicle. In 1977, plaintiff regained his driving privileges and again operated the vehicle. Plaintiff states he obtained automobile liability insurance from another company, but does not know when or from whom such insurance was obtained.
In October of 1977, the vehicle developed transmission problems which rendered it inoperable. The vehicle was towed to plaintiff’s residence where it remained for two months. Later it was towed to a friend’s house. The vehicle was not repaired until June of 1978. At some point between October of 1977 and February 3, 1978, the vehicle was no longer insured, but there is no evidence of dates or circumstances involved therein. On February 3, 1978, plaintiff suffered injury while operating a motor vehicle borrowed from Denise Morgan. At the time of the accident plaintiff’s Malibu was in current registration and bore current license tags. The Morgan vehicle was insured by defendant State Farm Mutual. Plaintiff then claimed PIP benefits from the Morgan policy. State Farm Mutual denied the claim on the ground plaintiff was not entitled to same pursuant to the Kansas automobile injury reparations act, inasmuch as he owned a motor vehicle for which liability insurance was required. This action was commenced as a result of the denial of coverage.
The trial court found in favor of plaintiff on the ground that insurance was not required for plaintiff’s inoperable vehicle. State Farm Mutual appeals from said judgment. The issue raised is one of first impression.
K.S.A. 1979 Supp. 40-3102 states the purpose of the act as follows:
“The purpose of this act is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided herein.”
K.S.A. 1979 Supp. 40-3109, in relevant part, provides:
“(a) A self-insurer or the insurer of the owner of a motor vehicle covered by a policy of motor vehicle liability insurance meeting the requirements of this act shall pay any personal injury protection benefits which are required to be provided by this act or in such owner’s policy of motor vehicle liability insurance for any injury:
“(4) sustained in this state by any other person while occupying such motor vehicle or, if a resident of this state, while not an occupant of such motor vehicle, if the injury is caused by physical contact with such motor vehicle and the injured person is not himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.”
K.S.A. 1979 Supp. 40-3104 provides, in relevant part:
“(a) Every owner shall provide motor vehicle liability insurance coverage in accordance with the provisions of this act for every motor vehicle owned by him or her, unless such motor vehicle is included under an approved self-insurance plan as provided in subsection (d) or is expressly exempted from the provisions of this act.
“(b) An owner of an uninsured motor vehicle shall not permit the operation thereof upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act.
“(c) No person shall knowingly drive an uninsured motor vehicle upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act.”
Said statute also provides various penalties for its violation, including criminal prosecution and suspension of driving privileges.
K.S.A. 1979 Supp. 40-3103(m) defines “motor vehicle” as:
“(m) ‘Motor vehicle’ means every self-propelled vehicle of a kind required to be registered in this state, including any trailer, semitrailer or pole trailer designed for use with such vehicle, but such term shall not include a motorized bicycle.”
K.S.A. 1979 Supp. 40-3118 (amended since the date of the accident, but said amendments not relevant to issues herein) provides:
“(a) No motor vehicle shall be registered in this state unless the owner at the time of registration, has in effect a policy of motor vehicle liability insurance covering such motor vehicle, as provided in this act, or is a self-insurer thereof. As used in this section, the term ‘financial security’ shall mean and include such policy or self-insurance. The director shall require that the owner certify that he or she has such financial security, and the owner of each motor vehicle registered, in this state shall maintain financial security continuously throughout the period of registration. When an owner certifies that such financial security is a motor vehicle liability insurance policy meeting the requirements of this act, the director may require that the owner or owner’s insurance company produce records to prove the fact of such insurance. Failure to produce such records shall be prima facie evidence that no financial security exists with regard to the vehicle concerned. It shall be the duty of insurance companies, upon the request of the director, to verify the accuracy of any owner’s certification. Failure by an insurance company to deny coverage within twenty (20) days may be considered by the director as an acknowledgment that the information as submitted is correct.” (Emphasis added.)
Said statute further provides that upon cancellation, nonrenewal, etc., of a liability policy the insurer is to notify the director of vehicles of the termination. Various procedures are then §et forth for the director to revoke the registration and gain custody of the license tags. Sanctions, including loss of driving privileges and criminal prosecution, may also result under certain circumstances.
The act is complex legislation intended to accomplish its purpose. In Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P.2d 1363 (1976), the purpose of the act was stated as follows in Syllabus ¶1:
“The purpose of the Kansas automobile injury reparations act is to make personal injury protection insurance mandatory by requiring every owner of a motor vehicle obtain first party coverage for personal injury protection benefits payable by his own insurance company.”
Registration of motor vehicles and the maintenance of liability insurance thereon are inexorably bonded together by the act. By so doing the likelihood of abidance with the act is greatly increased, as the display of current license tags provides visual evidence of compliance, and the absence of license tags or the display of outdated tags on a vehicle does not often long go unnoticed.
In Farm and City Ins. Co. at 333-334, this court interpreted certain provisions of the act and stated:
“As to our present case we have a provision in the act requiring the owner of the accident vehicle (Zimmerman) to insure himself and any passenger in such motor vehicle. (40-3107[/l.) We have a further provision in the act requiring any person who owns a motor vehicle (Tiller) to obtain insurance to insure himself both as an owner and as an occupant of a motor vehicle. (40-3109[o][l].) At first blush these appear to be separate provisions which result in duplicate coverage, and justify equitable pro-rata sharing of the expense of benefits due Tiller’s survivors.
“However, section 40-3109(a)(4) of the act, relating to coverages for both occupants and pedestrians, contains a qualification on such coverage or coverages. The last phrase of this section imposes this qualification, ‘ . . . and the injured person is not himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.’ Because of the sentence structure and punctuation supplied by the legislature this phrase would appear to qualify the coverage as to pedestrians only. In other words, in order for a policy issued to the owner of the accident vehicle to extend coverage to a pedestrian struck by the owner the pedestrian must not own another vehicle covered by the act.
“American Standard, the insurer of the present accident vehicle, contends this phrase of qualification was intended to apply to both an occupant and a pedes trian. American Standard reads the qualifying phrase in 40-3109(o)(4) as if a comma and the word ‘provided’ were inserted after the word ‘and’. These suggested additions to punctuation and phraseology would clearly show that the final phrase was meant to modify both of the preceding clauses conjoined by the word ‘or’. Under such a construction both an occupant and a pedestrian would be required to look to their own insurance company for payment of PIP benefits if they owned another vehicle covered by the act.
“Section 40-3109(«)(l) clearly requires the insurer of the owner of a motor vehicle to pay its insured for any injury suffered while an occupant of another motor vehicle or while he is a pedestrian. A construction of paragraph (4) of sub-section (a) as urged by American Standard would place the final modifying clause of that sub-section in harmony with paragraph (1) of sub-section (a).
“This construction of the two provisions would be in line with the observations of this court in Manzanares v. Bell, supra, i.e., that the act makes provision for first party coverage and direct benefits coming from an injured person’s own insurance company. We further note that such a construction is in harmony with the provisions of 40-3109(a) paragraph (3) relating to injuries sustained by relatives of the owner residing in the same household. Such relatives are not covered by the owner’s insurance if such injured relative is himself the owner of a motor vehicle required to be insured under the act.
“Throughout the act it appears the legislature intended every owner of a motor vehicle to carry his own PIP insurance and to look to his own company for payment. Insurance is made mandatory for each owner of a motor vehicle. In the act the legislature made certain that every owner of a vehicle could obtain the required PIP insurance for it set up an assigned claims plan. See section 40-3116. Under sub-section (c) of section 40-3116 the legislature sought to require compliance with the mandatory insurance provisions by providing that if you fail to have a policy in effect and own a motor vehicle for which insurance is required you are not entitled to personal injury protection benefits.”
K.S.A. 1979 Supp. 40-3109 specifies the circumstances under which an insurer must pay PIP benefits. Is plaintiff excluded therefrom by subsection (a)(4) by being “himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act”? We must conclude that he is excluded.
Pursuant to K.S.A. 1979 Supp. 40-3118(a), plaintiff was required to maintain continuous insurance on his vehicle throughout each period of registration. This he did not do. K.S.A. 1979 Supp. 40-3109 excludes from PIP benefits those injured by vehicles of others who themselves own motor vehicles required to be insured by the act. This statute does not limit the exclusion to those who have insurance — it broadens it to those required to have insurance. Repeatedly, throughout the act, sanctions are imposed for noncompliance therewith. The result reached by the trial court and urged herein by plaintiff is wholly inconsistent with the act, as it would subsidize noncompliance. If plaintiff had complied with the act he would be entitled to PIP benefits from his own insurer — not the insurer of the Morgan vehicle. His failure to comply with the act cannot create PIP benefits coverage for him in the Morgan policy. To hold otherwise would be contrary to the purposes of the act and the provisions therein intended to assure compliance.
We are not unmindful that the State of Florida, in rather analogous factual situations, has reached a different result. See Ward v. Florida Farm Bureau Cas. Ins., 375 So.2d 898 (Fla. App. 1979), and Malen v. American States Ins. Co., 376 So.2d 473 (Fla. App. 1979). Florida may be distinguished, as the Florida Automobile Reparations Reform Act (Fla. Stat. § 627.730 et seq. [1979]), while similar to our own act, differs in many respects. Florida has no registration or security requirements for motor vehicles which are neither operated on the highways of Florida nor maintained for that purpose. See Tapscott v. State Farm Mutual Automobile Ins. Co., 330 So.2d 475 (Fla. App. 1976). No requirement for continuous insurance coverage during registration has been noted in the Florida act.
We must conclude that the trial court erred in awarding PIP benefits to plaintiff. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Holmes, J.:
The Kansas Department of Transportation (DOT) and the Secretary of Transportation, defendants below, appeal from a jury verdict in favor of the plaintiff-appellee, Dorothy Schaeffer. Defendants will hereafter be referred to as DOT, the defendant or appellant. Plaintiff recovered a jury verdict for personal injuries received in a three-car collision on U.S. Highway 77-56 near Lincolnville. Plaintiff, pursuant to K.S.A. 1978 Supp. 68-419 (repealed, L. 1979, ch. 186, § 33), brought her action based upon a defect in the highway. Defendant contended no defect existed and plaintiff’s injuries were the result of her husband’s negligence in the driving of his vehicle.
On the night of April 1, 1975, plaintiff was a passenger in an automobile driven by her husband. At about 10:30 p.m., while traveling south on Highway 77-56 approximately three miles north of Lincolnville, the Schaeffer vehicle slid across the center line on the ice-covered highway, struck the left front of an oncoming vehicle and then struck a third vehicle which had also been proceeding north. The third vehicle was stopped, waiting to make a left turn into private property. Michael Schaeffer, driving at a speed of about 35 - 40 mph, was unfamiliar with the highway. The road was covered with sleet and ice and at the crash site there is a small hill (referred to by the experts as a vertical curve). At the crest of the hill the road curves first to the east and then to the west in what is commonly referred to as an “S” or reverse curve. The curve itself is apparently well known to local inhabitants and is generally called “the Beneke curve” after the name of the owners of the adjacent property. The third automobile was occupied by members of the Beneke family who were preparing to enter their rural residential property. Plaintiff suffered extensive personal injuries and another passenger, Chuck Garrett, was killed. The jury allocated responsibility for the unfortunate accident 49% to DOT and 51% to Michael Schaeffer. The DOT has appealed. Plaintiff filed a notice of cross-appeal but has not pursued it.
Plaintiff’s cause of action against the DOT is based upon alleged design and maintenance defects at Beneke’s curve.
K.S.A. 1978 Supp. 68-419 (now repealed) provided in pertinent part:
“68-419. Action for damages against state for defect in bridge, culvert or highway; notice of defect; venue; service of process; time limitations; limitations on liability, (a) Any person who shall without negligence on his or her part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state. Such recovery may be from the state when the secretary of transportation, or state transportation engineer, geographic engineer, supervisor or foreman in charge of the construction, maintenance or upkeep of such highway, shall have had notice of such defects five (5) days prior to the time when such damage was sustained,' and for any damage so sustained, the injured party may sue the secretary of transportation, and any judgment rendered in such case shall be paid from any funds in the state highway fund on the order of the secretary of transportation. . . .
(b) Neither the state or the secretary of transportation, or any officer or employee of the state or the department of transportation, shall be liable to any person for any injury or damage caused by the plan or design of any state highway, or of any bridge or culvert thereon or of any addition or improvement thereto, where such plan or design, including the signings or markings of said highway, bridge or culvert, or of any addition or improvement thereto, was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared.”
The first issue presented by the DOT is that the trial court erred in not finding as a matter of law that no defects as contemplated by the statute existed. It is the plaintiff’s contention that the original design of the highway, constructed in 1929, did not meet prevailing standards then in effect, and that the highway was not constructed in accordance with the original plans and specifications. Plaintiff also contends a maintenance defect existed by reason of the lack of any warning sign advising the approaching motorist of the existence of Beneke’s curve. The DOT contends the highway was properly designed and constructed by 1929 standards and that there was no maintenance defect as a warning sign was not required as a matter of law.
The long established rule as to whether an alleged defect comes within the purview of K.S.A. 1978 Supp. 68-419 is as follows:
“[I]n the first instance, [whether a defect is within the purview of the statute is] a question of law to be determined by the court. There is no legal foot rule by which to measure conditions generally and determine with exact precision whether a given condition constitutes a defect. Some conditions may be so patently dangerous as to clearly constitute defects, while others may be so trifling as to be clearly outside the purview of the statute. The policy of courts is to handle each case separately and either to include it in or exclude it from the operation of the statute. Where circumstances are such that an alleged defect cannot be excluded from the operation of the statute as a matter of law, it presents a proper case for a jury to determine. Without any legal foot rule by which to measure an alleged defective condition, it must be compared with general conditions and surrounding circumstances, and, in one sense of the word, the question whether a given condition constitutes a defect within the meaning of the statute is relative.” Earnest v. State Highway Commission, 182 Kan. 357, 359-60, 320 P.2d 847 (1958).
Martin v. State Highway Commission, 213 Kan. 877, 518 P.2d 437 (1974), was an action under K.S.A. 68-419 based upon an alleged failure of the highway commission to install a guardrail. In Martin we held:
“The state’s liability for a defect in a state highway is purely statutory, and the state has no liability under the statute (K.S.A. 68-419) unless the alleged defect in the state highway comes within the purview of its terms, and such determination is in the first instance a question of law for the court. The court has steadfastly adhered to the proposition that there is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition in a state highway constitutes a defect. In the final analysis it is the policy of the Supreme Court to handle each case separately and to either include it in or exclude it from the operation of the statute.” Syl. f 1.
“Broadly speaking, highway defects may be categorized as ‘design’ defects which are built into a highway at the time it is designed and constructed, and ‘maintenance’ defects which arise by reason of the passage of time.” Syl. ¶ 4.
“Regardless of whether a condition is characterized as a ‘design’ defect or a ‘maintenance’ defect, liability must be predicated on either (a) a failure to comply with a specific legislative mandate or (b) the existence of a condition creating actual peril to persons using the highway with due care.” Syl. f 5.
“While an apparently adequate design may prove to be unduly hazardous in practice, in the absence of evidence showing such a practical result the adequacy of a highway design is judged by the conditions prevailing at the time it is adopted and not in the light of later experience or changing conditions.” Syl. ¶ 6.
Appellant argues that plaintiff failed in her burden of showing a design or construction defect based upon a failure to comply with 1929 standards. While the evidence as to the standards, if any, applicable in 1929 was contested and certainly was not strong, there was testimony that, if believed by the jury, would support a finding of a design defect. Claud McCamment and Thomas Van Wagoner both testified as experts for the plaintiff. Mr. McCamment was employed for nearly thirty years by the State Highway Department, the forerunner of the DOT, as the safety engineer in charge of all safety operations. Van Wagoner was also a safety engineer and both qualified as experts to the satisfaction of the trial court. It was the contention of the plaintiff that the combination of the vertical and horizontal reverse curves created a situation wherein there is insufficient “sight distance” for one traveling the highway from north to south. One approaching from the north is not made aware of the upcoming curves until reaching the crest of the hill, resulting in the driver being required to make an immediate change in direction to the left and then again back to the right. It was conceded that the original plans and diagrams for the 1929 construction called for a straight road at the point in question without the horizontal curves. Evidently the curves were built into the road to avoid a barn on the Beneke property and, presumably, avoid the necessity of condemning the Beneke barn. One of the experts for the DOT testified there were no standards for highway construction in 1929 and that the sight distance was adequate for speeds in excess of that of the plaintiff’s automobile. Both Mr. McCamment and Mr. Van Wagoner testified the condition was a hazard and that proper warning signs should have been in place. In view of the conflicting expert testimony and other evidence, whether a design defect existed was a proper issue for the jury.
Plaintiff’s second allegation of a defect was that the failure to post signs warning of Beneke’s curve constituted a maintenance defect within the terms of the statute.
K.S.A. 8-2003 mandates that the Secretary of Transportation shall adopt a manual and specifications for a uniform system of traffic control devices and that such system:
“shall correlate with and so far as possible conform to the system set forth in the most recent edition of the manual on uniform traffic-control devices for streets and highways and other standards issued or endorsed by the federal highway administrator.”
All parties agree that the 1971 federal Manual On Uniform Traffic Control Devices for Streets and Highways (manual) published by the U.S. Department of Transportation had been adopted and was legally applicable on April 1, 1975. The manual sets forth certain warrants or specifications describing the physical requirements necessary to justify the authorization and use of the various warning signs recommended by the manual. It is the position of the DOT that as the physical aspects of the highway did not come within the warrant’s requiring a reverse curve sign, no maintenance defect existed as a matter of law. Pertinent sections of the manual provide in part:
1A-4. “In the Manual sections dealing with the design and application of traffic control devices, the words ‘shall,’ ‘should’ and ‘may’ are used to describe specific conditions concerning these devices. To clarify the meanings intended in this Manual by the use of these words, the following definitions apply:
1. SHALL - A mandatory condition. Where certain requirements in the design or application of the device are described with the ‘shall’ stipulation, it is mandatory when an installation is made that these requirements be met.
2. SHOULD - An advisory condition. Where the word ‘should’ is used, it is considered to be advisable usage, recommended but not mandatory.
3. MAY - A permissive condition. No requirement for design or application is intended.” pp. 5-6.
2A-1. “Signs should be used only where warranted by facts and field studies. Signs are essential where special regulations apply at specific places or at specific times only, or where hazards are not self-evident. They also give information as to highway routes, directions, destinations and points of interest. Signs ordinarily are not needed to confirm rules of the road.” p. 11. (Emphasis added.)
2A-6. “Care should be taken not to install too many signs. A conservative use of regulatory and warning signs is recommended as these signs, if used to excess, tend to lose their effectiveness. On the other hand, a frequent display of route markers and directional signs to keep the driver informed of his location and his course will not lessen their value.” p. 13.
2A-7. “Functionally, signs are classified as follows:
Regulatory signs give notice of traffic laws or regulations.
Warning signs call attention to conditions on, or adjacent to, a highway or street that are potentially hazardous to traffic operations.
Guide signs show route designations, destinations, directions, distances, services, points of interest, and other geographical or cultural information.” pp. 13-14.
2C-1. “Warning signs are used when it is deemed necessary to warn traffic of existing or potentially hazardous conditions on or adjacent to a highway or street. Warning signs require caution on the part of the motorist and may call for reduction of speed or a maneuver in the interest of his own safety and that of other motorists and pedestrians. Adequate warnings are of great assistance to the vehicle operator and are valuable in safe-guarding and expediting traffic. The use of warning signs should be kept to a minimum however, because the unnecessary use of them to warn of conditions which are apparent tends to breed disrespect for all signs.” p. 63. (Emphasis added.)
2C-5. “The Curve sign (W1-2R or 2L) is intended for use where engineering investigations of roadway, geometric, and operating conditions show the recommended speed on the curve to be in the range between 30 and 60 miles per hour and equal to or less than the speed limit established by law or by regulation for that section of highway.” p. 66.
2C-7. “The Reverse Curve sign is intended for use to mark two curves in opposite directions, as defined in the warrants for curve signs (sec. 2C-5) that are separated by a tangent of less than 600 feet. If the first curve is to the right, a Right Reverse Curve sign (W1-4R) shall be used, and if the first curve is to the left, a Left Reverse Curve sign (W1-4L) shall be used.” p. 67.
The DOT points out that the highway at Beneke’s curve does not meet the speed requirements of 2C-5 and as a result signing is not required or necessary. Hence, it is argued that as a matter of law, based upon the directions of the manual, there can be no maintenance defect.
On the other hand, plaintiff points to other sections of the manual which, when considered with the evidence, she contends required the posting of warning signs at the point in question. Plaintiff relies on the language in Section 2A-1 that “[s]igns are essential . . . where hazards are not self-evident” and 2C-1 that “[w]arning signs are used when it is deemed necessary to warn traffic of existing or potentially hazardous conditions on or adjacent to a highway or street.”
It is plaintiff s position that the manual contemplates some discretion in DOT as to the location of warning signs and that the physical configuration of the highway as specified in the warrants in the manual, is not the only test to determine the necessity of posting warning signs. Both of plaintiff’s experts, Claud McCamment and Mr. Van Wagoner, testified that in their opinions signs were required by the terms of the manual.
K.S.A. 8-2004(a) provides:
“The secretary of transportation shall place and maintain such traffic-control devices, conforming to the manual and specifications adopted under K.S.A. 8-2003, upon all state highways as the secretary shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn or guide traffic.”
As we held in Martin, liability of the DOT “must be predicated on either (a) a failure to comply with a specific legislative mandate or (b) the existence of a condition creating actual peril to persons using the highway with due care.” The DOT argues repeatedly that if the physical configuration of the highway is such that the warrants for warning signs do not mandate a warning sign then there can be no liability for failure to install one even though a hazardous or perilous condition may in fact exist. We do not construe the statutes and the manual so narrowly. It appears obvious that both vest in the DOT the discretion and obligation to maintain adequate warning signs if, in fact, a hazard does exist. In our opinion the manual merely establishes minimum, not maximum, standards for safety. To hold otherwise would place form over substance and would negate the actual objectives of the statutes and manual of effecting uniform traffic control with a maximum amount of protection for the motoring public. When considered in connection with other evidence, which will hereafter become apparent, we cannot say the trial court was in error in failing to find as a matter of law that a highway defect did not exist within the purview of K.S.A. 1978 Supp. 68-419.
Appellant’s second point is that the trial court erred in not granting a motion for a new trial based upon a series of alleged trial errors which the DOT argues had the cumulative effect of denying it a fair trial. The first alleged trial error is that it was error for the trial court to allow the partial deposition of Larue Delp to be admitted in evidence. Mr. Delp was a longtime employee of the DOT and at the time of the accident was head of the department of maintenance. Plaintiff had scheduled Delp for a discovery deposition beginning July 26, 1976. During direct examination by plaintiff’s counsel it developed that the witness did not have available certain materials and records necessary for his testimony. The deposition was then continued to be resumed at a later date. Counsel for defendant was specifically asked if she wanted to cross-examine the witness and she decided to withhold cross-examination until plaintiff had completed the direct examination. On January 1, 1977, Mr. Delp retired and moved to the Philippine Islands. The deposition had not been rescheduled in the meantime and defendant, with full knowledge that the witness would be retiring, took no steps to preserve its right of cross-examination. The DOT contends that the partial deposition of Mr. Delp should not have been admitted in evidence because the DOT did not have the opportunity to cross-examine the witness.
K.S.A. 60-232 allows depositions to be introduced at trial and reads in part as follows:
“60-232. Use of deposition in court proceedings, (a) Use of deposition. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(B) the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state of Kansas, unless it appears that the absence of the witness was procured by the party offering the deposition . . . .”
The general rule with respect to the admissibility of depositions is stated in 23 Am. Jur. 2d, Depositions and Discovery § 50, p. 393, as follows:
“The deprivation of the right of cross-examination, by lack of notice or otherwise, renders a deposition vulnerable to a motion to suppress it. Ordinarily, the cross-examination is conducted in the same manner as if the deponent were being examined as a witness in court. Since the right of cross-examination may be lost if not availed of at the taking, it is said that the only safe procedure is to cross-examine upon the theory that the testimony taken upon the direct examination may be admitted. The failure of the adverse party to exercise his right of cross-examination does not affect the admissibility of the testimony taken upon the examination in chief.”
The trial court in a hearing to determine the admissibility of the Delp deposition found that counsel for the defendant was given an opportunity to cross-examine the deponent at the time of the original taking of the deposition and had an opportunity for several months to reschedule the deposition but did not seek to do so.
The defendant was not deprived of the right to cross-examine by any action of the plaintiff. While it is understandable that defendant would prefer to reserve cross-examination until completion of the direct examination, when the deposition was not rescheduled by plaintiff the defendant had some obligation to protect its rights if it felt cross-examination was essential. The witness was the employee of the defendant; defendant is charged with knowledge of Delp’s impending retirement, and had six months in which to reconvene the deposition. As Delp was unavailable under the provisions of K.S.A. 60-232, the trial court did not err in allowing plaintiff to use the deposition in evidence.
Next appellant contends it was error for the court to allow in evidence Kansas Highway Patrol reports of seven accidents which occurred at Beneke’s curve between April 19, 1968, and February 1, 1975. Plaintiff sought to introduce a total of ten reports for the purpose of showing that the DOT had notice of the alleged highway defect and that a defect in fact existed. The court, after a hearing and after examination of each of the ten reports, found that seven of the accidents were sufficiently similar to the one before the court for the reports to be relevant on the issue of notice. In Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972), a highway defect case, this court held:
“Defendant objected to the admission of evidence of other accidents and general traffic conditions in the area. We think such testimony was relevant not only to the existence of the alleged defect but on the issue of notice, as pointed out in III above. In the case of each accident the trial court held a careful inquiry outside the presence of the jury as to its nature. Only when the court was satisfied that the accident occurred under similar circumstances was the evidence presented to the jury. We see no error in its admission.” p. 575, IV.
The trial court followed the procedure described in Hampton and specifically found that three of the reports were inadmissible due to a lack of sufficient similarity with the accident in question. Seven reports were found to be sufficiently similar to be relevant upon the question of notice of the existence of the alleged defect. The jury was instructed that the reports were to be considered only for the purpose of showing notice. We find no abuse of discretion. Horn v. Chicago, R. I. & Pac. Rld. Co., 187 Kan. 423, 357 P.2d 815 (1960); 29 Am. Jur. 2d, Evidence § 305; 40 Am. Jur. 2d, Highways, Streets and Bridges § 595; 70 A.L.R. 2d 167, 178-198.
Photos taken by the Highway Patrol showed certain beer cans in the automobile in which plaintiff was riding. Some of the cans appeared to be empty while others appeared to be unopened. Plaintiff filed a motion in limine to prevent any testimony about the consumption of beer by plaintiff or others in the car. At the hearing on the motion, it was disclosed that the evidence would show plaintiff had consumed one beer; Chuck Garrett, the fatally injured passenger, had consumed more than one beer and the driver, Michael Schaeffer, had consumed none. Defendant wanted to introduce evidence about the consumption of beer by plaintiff and Garrett, contending it was relevant to the issue of plaintiff’s negligence. Rhoades v. Atchison, T. & S. F. Rly. Co., 121 Kan. 324, 246 Pac. 994 (1926); McIntosh v. Oil Co., 89 Kan. 289, 131 Pac. 151 (1913). The trial court held a hearing on the motion in limine and specifically found that the evidence should be excluded as the chance of prejudicing the jury outweighed any probative value that might result from the admission of the evidence. The pretrial order reveals that while negligence of the plaintiff was asserted by the DOT to be a contested fact, it was not among the factual or legal issues to be determined at trial. Under K.S.A. 60-445, the trial court is given wide discretion on the admission or exclusion of evidence and no abuse of that discretion is shown.
Next appellant objects to the admission of the deposition of L. W. Newcomer, a witness for the plaintiff. Newcomer was the Secretary of Transportation on the date of the accident and defendant appears to argue that the deposition, which went primarily to the issue of notice, should not have been admitted because there was other evidence which showed notice to the DOT. However, at the time of admission of the deposition the question of the notice required under the statute was being contested by the DOT. Defendant also objects to the admission of a letter written by Newcomer subsequent to the accident contending it could not be used to show notice. The court excised certain portions of the letter and then let it be admitted solely for the purpose of showing the alleged defect and not for the purpose of notice. The jury was so instructed. The evidence was relevant to one of the issues and no error is shown.
Next, it is contended it was error for the court to admit evidence from McCamment, Alfred Beneke and a Mr. Pogenkopf of the fact that warning signs had been posted at Beneke’s curve for several years from the 1940’s to the 1960’s. Defendant again contends that the warrants in the manual when applied to the physical configuration of the highway did not require a warning sign; while plaintiff contends a hazardous condition existed and signs were required. Under the theory propounded by the plaintiff, the evidence was relevant to show the DOT and its predecessors had considered warning signs necessary prior to adoption of the manual. All agree that there had been no change in the physical features of the highway since its construction in 1929. In addition, the testimony of Mr. Beneke, among others, about the increase in accidents after the signs were removed bears out the relevancy of the admitted evidence. Mr. McCamment testified the signs had been posted in the past and were necessary. Appellant’s point is without merit.
On the fatal night, Delmer Palmer, undersheriff of Marion County, observed the Schaeffer vehicle from a point a few miles north of the accident. Defendant attempted to elicit testimony from Undersheriff Palmer that he thought the Schaeffer vehicle was traveling too fast. Plaintiff objected and the evidence was excluded although plaintiff made it clear she had no objection to Palmer stating his opinion of the speed of the Schaeffer vehicle. Defense counsel declined to inquire as to the witness’ opinion of the actual speed of the vehicle and abandoned the line of questioning. Defendant also attempted to introduce evidence of Palmer’s “thoughts” through the Highway Patrolman who investigated the accident and discussed it with Palmer. No error is shown in the exclusion of the proposed testimony of both witnesses.
During the trial plaintiff questioned certain DOT employees about their duties and obligations as employees of DOT. Defendant contends error asserting this was not a negligence case and therefore any duty or obligation by employees of DOT was not relevant. The inquiries of the plaintiff were directed toward the issues of whether a defect actually existed and whether defendant had notice thereof. In Hampton we said:
“The answer here is that we are not dealing with the commission’s exercise of discretion any more than we are dealing with its negligence or lack of it. Its action or non-action is judged by the result - i.e., whether it produced such a hazardous condition that it constituted a ‘defect’ in the highway. The absence of a warning sign was one factor to be considered in making that judgment, regardless of any mental processes involved in the decision making.” Hampton v. State Highway Commission, 209 Kan. at 577-8.
The inquiries of the plaintiff were relevant to the issues.
Defendant’s next point concerned certain instructions given by the trial court. At argument counsel for defendant advised this court that the point was being abandoned.
Defendant requested that certain special questions be submitted to the jury as a part of its verdict as authorized by K.S.A. 60-249. The decision to submit special interrogatories to the jury rests within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 535 P.2d 865 (1975). No abuse of discretion has been shown in the court’s refusal to give the requested special interrogatories.
Once again, defendant raises the question of the admissibility of the testimony of Claud McCamment relative to a design defect in the highway as constructed in 1929. We do not deem it necessary to further prolong this opinion by reviewing the qualifications of Mr. McCamment. Suffice it to say they are extensive and impressive. The trial court has wide discretion in allowing the testimony of expert witnesses and the use of such testimony ordinarily goes to the weight of the evidence and not its admissibility. Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 578 P.2d 1095 (1978).
Finally, defendant contends that the totality of the events as hereinbefore discussed resulted in the denial of a fair trial to the DOT. The record is voluminous and reveals the case was competently tried by counsel for both sides. Twenty witnesses testified for the plaintiff and nine for the defendant. Over fifty exhibits were admitted. Experts testified for both sides. This was essentially a fact case that was hotly contested. The verdict of the jury and the rulings of the court are supported by substantial competent evidence and the record reflects that both parties received a fair, if not a perfect, trial. Defendant complains that the trial judge was “inexperienced”; that the jury was “worn out”; that the trial should have started on Monday instead of Tuesday so more time would be available; that the jury was required to deliberate on Saturday; that trial extended after 5:00 p.m. on two days; that plaintiff’s case took 3 more hours than the two and one-half days originally estimated; that plaintiff’s counsel “bootlegged” inadmissible evidence before the jury; that plaintiff’s counsel tried the DOT and not the facts and numerous other complaints, all of which are without merit. The parties have had their day in court and no prejudicial error has been shown.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the defendant, Paul A. Cooper, Jr., from judgment entered against him in the Logan district court in an action brought by Farmers State Bank of Oakley on a past-due promissory note. The issues are (1) whether the note sued upon was subject to the Uniform Consumer Credit Code, K.S.A. 16a-l-101 et seq.; (2) whether defendant is entitled to recover civil penalties, costs, and attorney’s fees; and (3) whether the bank unjustifiably impaired the collateral by failing to perfect its security agreement, and by allowing the removal of the collateral from the State of Kansas. In determining the last of these issues, we must also determine whether the defendant is an accommodation party or a principal maker of the note.
The factual background is necessary to an understanding of the issues. In July, 1971, Dr. Michael P. Cooper, son of defendant Paul A. Cooper, Jr., moved with his wife Georgia to Oakley, Kansas. Michael, a chiropractor, intended to establish a practice in Oakley. He approached the bank for a loan in order to purchase equipment and remodel his office, rented from the bank and located on an upper floor of the bank building. The bank committed a line of credit of five thousand dollars. The president of the bank testified that when the original commitment was made, the professional equipment, household items, and automobile that were offered as security were not sufficient to completely secure the loan; therefore Paul Cooper’s signature was necessary to protect the bank for the total amount.
The first promissory note in the amount of three thousand dollars was executed on August 12, 1971. It was signed by Michael P. Cooper, Georgia L. Cooper, and Paul A. Cooper, Jr. The note was secured by a security agreement of the same date, designating all equipment, instruments, and furnishings in the office, and all household goods located in the Michael Cooper residence, and a 1967 Chevrolet, as security. Michael P. Cooper and Georgia Cooper, together with William R. Griffith as agent for the bank, signed the security agreement. The security agreement was never perfected.
Four additional notes for amounts under one thousand dollars, signed only by Michael P. Cooper, were made in subsequent months. The five notes were consolidated on February 12, 1972, when a note for five thousand dollars, secured by the security agreement of August 12, 1971, was executed. This note was signed by Michael, Georgia, and Paul Cooper. This note was renewed by the execution of new notes signed by all three persons on August 12, 1972, February 12, 1973, December 1, 1973, and July 1, 1974. Some payments of principal and interest were made; the face amount of the final renewal note, due January 1, 1975, was $4,550.63. The majority if not all of the payments on the notes were made by defendant Paul Cooper. The final note is on a form substantially different from the earlier notes; it includes provisions for applicability of the UCCC.
Michael’s chiropractic practice did not prosper. During 1975 he moved from Oakley to the State of Washington. It then appeared that Dr. Cooper had a splendid opportunity in Washington, and the bank was hopeful that his practice would prosper there enabling him to satisfy the note. The bank gave permission to Dr. Cooper to remove the collateral to Washington. The move was not financially successful, and Dr. Cooper returned to Oakley for a short time during 1976. He then moved to Macksville, Kansas, and later returned to his home in Shawnee, Kansas. He has not practiced chiropractic medicine since his return to Kansas. Dr. Cooper disposed of some of the collateral; the only items the defendant has seen in his recent possession are a hand-held vibrator, a sewing machine, and the automobile. The record does not indicate any attempt of the bank to obtain payment from Dr. Cooper or to foreclose on the remaining collateral.
On October 26,1977, the bank filed suit against defendant Paul Cooper for the balance due on the note plus accrued interest. Paul Cooper filed an answer and counterclaim, and later filed a third- party petition against his son, Dr. Michael Cooper, and his son’s wife, Georgia, for indemnity in the event a judgment is entered against Paul Cooper and in favor of the bank. Neither Michael nor Georgia Cooper have answered or otherwise appeared in this action.
The trial court made findings of fact substantially similar to the foregoing recitation, and then made conclusions of law as follows:
“1) Under K.S.A. 16a-l-301(14)(ii), a business loan is' not a consumer loan. Under K.S.A. 16a-l-109, the parties may make such a loan subject to the UCCC by agreement in writing signed by both parties. The Court would conclude that the parties did not intend the renewal note (Plaintiff’s exhibit 10) to be subject to the UCCC for the following reasons:
(a) The loan was a business loan before the passage of UCCC and this was merely a renewal note.
(b) Plaintiff’s exhibit 10 is not signed by the bank as required to bring 16a-l-109 into play.
(c) The typed-in comment ‘business loan’ in the blank for a finance charge controls over the printed form language relating to the UCCC.
“2) The Court does not feel that the plaintiff bank’s failure to perfect its security in the collateral constitutes unjustifiable impairment of recourse or collateral under K.S.A. 84-3-606 in this case for the following reasons:
(a) The security in the collateral was unperfected in 1971, and this fact was easily ascertainable by defendant before he signed the 1974 note.
(b) The plaintiff never misled the defendant by promises that it would protect him or look to the collateral first or perfect its security. It should have been obvious to the defendant by 1974 that the plaintiff was looking primarily to his signature rather than the aging collateral for the payment of this loan.
(c) The defendant was in a better position than plaintiff to know the whereabouts of 3rd party defendants and to take steps to protect his right of recourse under K.S.A. 84-3-415.
“For the above and foregoing reasons judgment is rendered for the plaintiff and against the defendant in the sum of $4,550.63 with interest at the rate of 9% from and after July 1, 1974. The defendant is given a right of recourse and a judgment over against the 3rd party defendants in the same amount and at the same rate of interest.”
Judgment was entered in accordance with those conclusions. This appeal followed.
The first issue is whether the final renewal note, the one forming the basis for this lawsuit, is subject to the provisions of the Uniform Consumer Credit Code, K.S.A. 16a-l-101 et seq. K.S.A. 16a-l-109 provides in substance that the parties to loans which are not consumer credit transactions may agree in writing to the application of the act. The trial court concluded that it did not apply. We concur.
There is no dispute that the original loan was for a business purpose and that the original and the first several renewal notes were not subject to the UCCC. “A renewal signifies the substitution in place of one engagement of a new obligation on the same terms and conditions; that is, the re-establishment of a particular contract for another period of time.” 11 Am. Jur. 2d, Bills and Notes § 307. We adopted that view in Fourth National Bank v. Hill, 181 Kan. 683, 695, 314 P.2d 312 (1957).
Most of appellant’s arguments rely upon finding the note unambiguous and therefore not subject to construction. Examination reveals substantial ambiguity. On the one hand, the printed portion of the note states that the UCCC applies. On the other hand, the note is a renewal of a business note not previously subject to the UCCC, the finance charges are not entered, and the total number of payments is omitted. In addition, the interest rate specified does not exceed that allowable outside the UCCC; and the typed words “business loan” control over the printed form under K.S.A. 84-3-118. Even more conclusive is the unrebutted testimony of William B. Griffith, an officer of the bank, that the loan was for business purposes and outside the UCCC, and that the bank used this form for both consumer loans, within the UCCC, and for business loans which were not within the act. The finding of the trial court that the parties did not intend that the UCCC apply is supported by substantial competent evidence. The note considered in Rosedale State Bank & Trust Co. v. Stringer, 2 Kan. App. 2d 331, 340, 579 P.2d 158 (1978), was by agreement made subject to the UCCC, and an interest rate not otherwise permitted by law was charged. Rosedale is distinguishable from the case at hand. We conclude that the trial court was correct in its conclusion that the partiés did not intend the renewal note to be subject to the UCCC.
The next issue is whether the trial court erred in failing to award defendant statutory penalties and attorney’s fees under K.S.A. 16a-5-201(8) for the bank’s failure to comply with the UCCC. Since we have held that the note is not governed by the UCCC, this issue was correctly decided. By motion filed with this court, and presented during oral argument, appellant seeks allowance of attorney’s fees in connection with this appeal. Since the basis for fees is the UCCC, appellant’s application for attorney’s fees for appellate services is denied.
The third and determinative issue is whether the bank, by failing to perfect its security agreement and by allowing the removal of the collateral from Kansas, unjustifiably impaired the collateral, thus discharging the defendant, an accommodation party. Defendant claims discharge under K.S.A. 84-3-606(l)(fe), which reads:
“(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
“(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”
The discharge provisions of that statute apply only to signers who occupy the position of sureties, such as accommodation parties. The official UCC Comment to K.S.A. 84-3-606 states that the section has been reworded to make it clear that:
“1. The words ‘any party to the instrument’ remove any uncertainty arising under the original section. The suretyship defenses here provided are not limited to parties who are ‘secondarily liable,’ but are available to any party who is in the position of a surety, having a right of recourse either on the instrument or dehors it, including an accommodation maker or acceptor known to the holder to be so.”
Another statute, K.S.A. 84-3-415(1), comes into play, for we must first determine whether under that section defendant is an accommodation party. K.S.A. 84-3-415(1) provides:
“(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.”
The official UCC Comment to K.S.A. 84-3-415 reads in applicable part:
“1. Subsection (1) recognizes that an accommodation party is always a surety (which includes a guarantor), and it is his only distinguishing feature. He differs from other sureties only in that his liability is on the instrument and he is a surety for another party to it. His obligation is therefore determined by the capacity in which he signs.”
On the original note defendant was designated as “co-signor.” He was designated in successive notes, on the line below his signature, as “co-signor” or “co-maker.” On the last three notes there was no designation. The undisputed evidence is that the bank required the defendant’s signature at the time of the original commitment because the collateral offered was not of sufficient value to secure the loan. Dr. Cooper called the defendant and told him “that he wanted my signature on a note so he could get the practice started.” The note was signed by Dr. and Mrs. Cooper at the bank, then was mailed to the defendant who signed and returned it. The renewal notes were executed in similar fashion. There is no evidence that defendant received any of the proceeds of the loan.
The trial court made no specific finding that defendant was an accommodation party; however, it made a tacit finding that he was such a party by its consideration of the applicability of K.S.A. 84-3-606, and by granting to the defendant as third-party plaintiff a judgment over against Dr. Cooper and his wife, third-party defendants, for the full amount of the judgment recovered by the bank against the defendant. The legal basis for the judgment over is the surety’s right of action against the party accommodated; had the defendant been found jointly liable as co-maker, his right of recourse would not have been for the entire amount of the judgment.
“The intention of the parties is the significant element in determining whether a party is an accommodation party and the identity of the party accommodated.” 2 Anderson, The Uniform Commercial Code § 3-415:9 (2d ed. 1971). Except as to holders without notice, accommodation status may be established by parol evidence when the note does not disclose the party’s status. K.S.A. 84-3-415(3).
Two primary factors are indicative of accommodation status: (1) no benefits from the proceeds of the instrument are received by the accommodation party, and (2) the signature is needed by the maker to acquire the loan. See annotation, Who is Accommodation Party, 90 A.L.R.3d 342 (1979). The “proceeds” and “purpose” tests are followed and applied in Stockwell v. Bloomfield State Bank, _ Ind. App. __ , 367 N.E.2d 42 (1977), and Lasky v. Berger, 536 P.2d 1157 (Colo. App. 1975). Applying those tests, we conclude that defendant’s status was that of an accommodation party when the first note was signed.
The trial court’s conclusions of law might be taken to indicate that defendant’s status changed from accommodation party to that of a jointly liable maker on the final note. We do not think this is so. “When it is shown that one indorser signed the original note to accommodate a subsequent indorser, it will be concluded that this intent governed their signing of a renewal note in a similar manner, in the absence of proof that the intent did not continue over to the renewal note.” 2 Anderson, The Uniform Commercial Code § 3-415:7. The Stockwell court examined the whole series of transactions when suit was brought on a renewal note and concluded accommodation status continued. Stockwell v. Bloomfield State Bank, 367 N.E.2d at 43-45. See also Tampa Bay Bank v. Loveday, 526 S.W.2d 480 (Tenn. App. 1974); Schafran v. Harris, 17 N.C. App. 500, 194 S.E.2d 864, cert. denied 283 N.C. 666 (1973); Niebergall v. A.B.A. Contracting & Supply Co., 24 App. Div. 2d 799, 263 N.Y.S.2d 589 (1965). Pre-U.C.C. Kansas case law also adheres to the rule that renewal of a note continues the liabilities as they existed under the original note. In Fourth National Bank v. Hill, 181 Kan. 683, 314 P.2d 312 (1957), Justice (later Chief Justice) Fatzer, writing for a unanimous court, said:
“This court has consistently held that where a note is given merely in renewal of another and not in payment thereof, the renewal does not extinguish the original debt nor in any way change the debt except by postponing time of payment, and, as a general rule, the holder is entitled to the same rights and remedies as if he were proceeding on the original note.” p. 695.
We have reviewed the several renewal notes, and the evidence pertaining to them. Although the bank had several conversations with the defendant, there is no indication that there was an agreement to change his liability on the note. The discussions were “general conversations”; defendant at no time agreed that his liability or status be changed, and the bank made no request for or suggestion of a change. Upon the record before us we conclude that defendant continued to be an accommodation party, and was such on the final renewal note.
Is defendant released from part or all of his liability because the bank failed to perfect its security agreement and Dr. Cooper has since sold a part of the collateral? Defendant contends that the failure of the bank to perfect its security agreement constituted an unjustifiable impairment of collateral. A review of the principles involved may be helpful.
An unperfected security agreement is valid and effective between the parties to the agreement according to its terms. K.S.A. 84-9-201; and see K.S.A. 84-9-203. Ordinarily, a financing statement must be filed to perfect it. K.S.A. 1979 Supp. 84-9-302. Except in the circumstances encompassed by K.S.A. 1979 Supp. 84-9-307, a secured party’s interest in collateral is prior to that of a purchaser if the security interest is perfected; however, if the interest is not perfected, a buyer for value without knowledge takes free of the security interest. K.S.A. 1979 Supp. 84-9-301(l)(c).
Defendant relies on Redlon v. Heath, 59 Kan. 255, 52 Pac. 862 (1898). The creditor in Heath recorded the mortgage in the wrong county; the error was not discovered until other mortgages, exceeding the total value of the property, had been properly filed of record. We noted in that case that the evidence showed that the mortgaged land was of sufficient value to have paid prior encumbrances as well as the amount of the improperly filed one, but that other mortgages, later filed and “sufficient in amount to absorb the entire property, took precedence and swept his security away.” We held that the person who signed the note as a surety or accommodation party was released from liability because of the failure of the creditor to record the mortgage in the right county and thus protect the collateral.
The U.C.C. has codified this rule in K.S.A. 84-3-606(l)(h) which provides for discharge of any party to the extent that without such person’s consent the holder unjustifiably impairs collateral. It is clear from the statute that the release is only pro tanto, and the cases so hold. See Langeveld v. L.R.Z.H. Corporation, 74 N.J. 45, 376 A.2d 931, 22 U.C.C. Rep. 106 (1977), and Mikanis Trading Corp. v. Block, 59 App. Div. 2d 689, 398 N.Y.S.2d 679 (1977). The failure of the holder of a security agreement to perfect it, which failure results in a loss of available collateral to an accommodation party, is an impairment of the collateral. Here, the sale of collateral was wrongful, if not criminal (see K.S.A. 21-3734), and the failure of the bank to perfect its security agreement has resulted in a loss of some of the collateral, so far as the defendant is concerned. Part of the collateral is gone, and presumably is not subject to the security agreement.
Should the defendant be released from liability? We think not. No evidence of the value of the missing collateral, or of the value of the remaining collateral, was offered. No such evidence is contained within the record.
K.S.A. 84-3-307(2) provides:
“When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.”
The official U.C.C. comment to this section reads in part:
“2. Once signatures are proved or admitted, a holder makes out his case by mere production of the instrument, and is entitled to recover in the absence of any further evidence. The defendant has the burden of establishing any and all defenses, not only in the first instance but by a preponderance of the total evidence.” (Emphasis supplied.)
The bank did not know until trial of the sale or disposal; it did not know when, to whom, or for what price or on what terms it was sold or transferred. Defendant had all this evidence available; his son, the third-party defendant, had the information; defendant knew of his son’s whereabouts but the bank did not; defendant could have called his son as a witness had he wished to do so.
We conclude that the burden of proof was upon defendant to establish the extent to which the collateral was impaired. See Christensen v. McAtee, 256 Or. 333, 473 P.2d 659, 8 U.C.C. Rep. 66 (1970); Langeveld v. L.R.Z.H. Corporation, 74 N.J. 45, 376 A.2d 931 (1977); and Telpner v. Hogan, 17 Ill. App. 3d 152, 308 N.E.2d 7 (1974). Having failed to establish the extent of the impairment, defendant is liable for the full amount of the note.
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. Crow v. City of Wichita, 222 Kan. 322, Syl. ¶ 1, 566 P.2d 1 (1977); Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 582 P.2d 1111 (1978).
The judgment of the trial court in this case was correct. It 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 court judgment which found Edward R. Davis (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427). The appellant contends the trial court erred in finding the use of a starter pistol in the robbery elevated the crime to aggravated robbery, and that the court erred in imposing sentence under K.S.A. 1978 Supp. 21-4618.
On January 21, 1979, the appellant and a male juvenile entered a 7-11 store in Kansas City, Wyandotte County, Kansas. The appellant displayed a .22 caliber starter pistol and ordered the female store attendant to the rear of the store, where she was told to remove her clothes. While the appellant emptied the cash register his juvenile accomplice raped the store attendant. When the appellant returned to the rear of the store and began talking with his accomplice, the attendant escaped and summoned the police.
The appellant was originally charged with aggravated robbery (K.S.A. 21-3427), rape (K.S.A. 1978 Supp. 21-3502[1][a]), and kidnapping (K.S.A. 21-3420[fe]). After preliminary hearing the latter two charges were dropped and the parties proceeded to trial on the single count of aggravated robbery. The information, in pertinent part, charges that “Edward R. Davis and one John Doe, a juvenile, did take property, to wit: U.S. currency from the person or presence of [store attendant] while said defendants were armed with a dangerous weapon, to wit: handgun, contrary to K.S.A. 21-3427.”
On May 4, 1979, the case was submitted to the court on stipulated facts. Both the State and the appellant requested the court to determine if the use of a starter pistol elevated the crime from robbery to aggravated robbery. The weapon was described as a .22 caliber blank gun which was incapable of firing a projectile because the barrel was blocked by a piece of metal.
The trial court personally examined the gun and found the appellant guilty of aggravated robbery. Sentence was imposed pursuant to K.S.A. 1978 Supp. 21-4618 after the trial court determined that a firearm was used in the crime. Appeal was duly perfected.
The appellant first contends the trial court erred in finding that the display of a starter pistol, which was incapable of firing a projectile, elevated a robbery to an aggravated robbery. K.S.A. 21-3427 defines aggravated robbery as “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” Simply stated, our task is to determine whether a starter pistol is a dangerous weapon.
In State v. Mitchell, 220 Kan. 700, 706, 556 P.2d 874 (1976), we held an unloaded gun is a dangerous weapon. In State v. Deutscher, 225 Kan. 265, 267-70, 589 P.2d 620 (1979), we held an unloaded revolver was a deadly weapon, and stated there is no distinction between the terms deadly weapon and dangerous weapon. We have also upheld convictions when the existence or condition of the weapon was questionable. In State v. McCambry, 225 Kan. 803, 804, 594 P.2d 222 (1979), the defendant argued the gun was not a dangerous weapon because it was in two pieces at the scene of the crime. We upheld the conviction, stating that the dangerous nature of the weapon was a question of fact which the jury decided. In State v. Robertson, 225 Kan. 572, 574, 592 P.2d 460 (1979), the defendant never exhibited a weapon to the robbery victim. We nevertheless held the evidence was sufficient to support the charge of aggravated robbery. In reaching that conclusion we stated:
“As his first point on the appeal, the defendant contends that the trial court erred in refusing to dismiss the charge of aggravated robbery on the basis that the evidence presented in the case was insufficient to establish that the defendant was armed with a dangerous weapon at the time of the robbery. In support of his position, the defendant points out that no one actually saw a gun or any other dangerous weapon, that the robber did not expressly inform the store employees that he was armed or had a gun, that no excessive bulge was observed in the robber’s pocket prior to the time he put his hand into his pocket, and that no gun was ever recovered in the investigation. From these facts, the defendant argues that he should not have been charged with aggravated robbery.
“We have concluded that the question of whether the defendant was armed with a dangerous weapon at the time of the robbery was one of fact for the jury to determine. It was not necessary for the State to show that the robber actually exhibited the weapon to the victim in order to raise a jury question. The only requirement was that there be some substantial evidence which raised a reasonable inference that the defendant was armed. As this court pointed out in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the aggravated robbery statute (K.S.A. 21-3427) requires only that the robber be ‘armed with’ a dangerous weapon, not that the robber openly display the weapon to the victim. Here the victim, Larry Williams, testified that the actions of the defendant in the store led him to believe that the defendant had a pistol or some other type of weapon. The conduct of the defendant, coupled with his statements at the time, constituted circumstantial evidence that the defendant was armed with a firearm. The fact that the jury chose to find the defendant guilty of simple rather than aggravated robbery does not mean that the evidence was insufficient to support the original charge. It means only that the jury had a reasonable doubt as to whether the defendant was armed and, therefore, acquitted the defendant of the greater offense. We hold that the trial court did not err in submitting to the jury the charge of aggravated robbery.”
There is a split of authority existing among other jurisdictions as to whether a starter pistol is a dangerous weapon. Those decisions are discussed in 67 Am. Jur. 2d, Robbery § 6, p. 33, and in Annot: Robbery by Means of Toy or Simulated Gun or Pistol, 81 A.L.R.3d 1006, 1047. Generally, the courts which hold starter pistols are dangerous or deadly weapons rely on a subjective analysis. Since robbery has always involved intimidation or fear, the circumstances of the robbery, including the weapon, are examined from the victim’s point of view. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon. Our decision in State v. Robertson, 225 Kan. at 574, reflects this subjective analysis. See also State v. Prince, 227 Kan. 137, 605 P.2d 563 (1980).
We are satisfied the trial court correctly ruled the appellant’s use of a starter pistol elevated the robbery to aggravated robbery. The appellant clearly intended the store attendant to believe the gun was operable and dangerous. The victim could not determine from viewing the gun that it was a starter pistol with a blocked barrel. The cash register was emptied, and the victim was forced to disrobe and submit to rape, because the appellant had the apparent ability to execute the implied threat to use the weapon if resistance was offered. We also note that the starter pistol could easily have been used as a bludgeon. Under these circumstances the starter pistol was a dangerous weapon.
The second issue raised by the appellant is whether the starter pistol was a “firearm” within the meaning of K.S.A. 1978 Supp. 21-4618, which provides:
“Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act.”
We specifically deferred to future consideration of this issue in State v. Deutscher, 225 Kan. at 272-73, wherein we held an unloaded revolver was a “firearm.” Kansas statutes do not define “firearm.”
The State contends the trial court properly found the starter pistol was a firearm based on examination of the gun, the gun’s use during the crime, and the victim’s perception of the gun. The appellant contends the finding was erroneous because criminal statutes must be construed strictly against the State and in favor of the defendant. State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 (1978).
After reviewing the decisions from other jurisdictions which have dealt with this issue we find but one logical conclusion. A firearm is consistently defined in terms of its design or capacity to propel a projectile by force of an explosion, gas, or other combustion. See People v. Norton, 80 Cal. App. 3d Supp. 14, 146 Cal. Rptr. 343 (1978); Schmit v. Guidry, 204 So. 2d 646 (La. 1967); State v. Millett, 392 A.2d 521 (Me. 1978); Coleman v. State, 506 P.2d 558 (Okla. Crim. 1972); State v. Hash, 34 Or. App. 281, 578 P.2d 482 (1978); Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973). See also Black’s Law Dictionary 761 (4th ed. rev. 1968). It was stipulated that the appellant’s starter pistol lackéd the capacity to propel a projectilé. In light of the definition adopted herein, the trial court erroneously determined the pistol was a firearm. See State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211 (1979); State v. McCarty, 224 Kan. 179, Syl. ¶ 1, 578 P.2d 274 (1978).
The judgment of conviction is affirmed. However, based upon the facts and circumstances of this case, the sentence is set aside and vacated. The case is remanded to the lower court with directions that the appellant be resentenced. | [
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Per Curiam:
On December 5, 1979, LARRY DOUGLAS FRIESEN voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is BY ORDER OF THE COURT CONSIDERED AND ACCEPTED.
The Clerk of this Court is ORDERED AND DIRECTED to mark the certificate VOID and to STRIKE Larry Douglas Friesen’s name from the roll of attorneys.
BY ORDER OF THE COURT. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Albert L. Wilson, following his jury conviction of aggravated robbery, K.S.A. 21-3427, aggravated burglary, K.S.A. 21-3716, and felony murder, K.S.A. 21-3401. Wilson was sentenced to consecutive terms of fifteen years to life, five to ten years, and life imprisonment. The principal issues on appeal are whether defendant’s constitutional right to a speedy trial was infringed or alternatively whether his due process rights were violated by the State’s action in bringing the matter to trial. A chronological statement of the background facts is necessary to an understanding of the issues.
Wilson escaped from the Kansas State Penitentiary at Lansing, Kansas, in June, 1975. During the next several months he traveled extensively, spending some time in Wichita and some time in the State of California. On August 28, 1975, the body of Johnnie Mae Hull Rider was found in her Wichita home. She had sustained some 48 stab wounds; knives were left in her back, chest, and throat. The front door of the house had been “kicked in”; various items of personal property and the victim’s car were missing. A complaint, charging Wilson with felony murder, aggravated robbery, and aggravated burglary was filed on October 3, 1975; this was given Case No. 75 CR 1451. Two weeks later, Wilson was arrested in Missouri. He waived extradition and was returned to the Kansas State Penitentiary.
The defendant was taken before a magistrate at Wichita on October 28, 1975, for his first appearance on the murder and related charges. Counsel was appointed, and a preliminary hearing date was set. Short continuances were granted, one at defendant’s request and one on the State’s motion.
The State of California also had a pending first-degree murder charge against defendant Wilson, and California was seeking to bring him to trial. A crucial witness in both the California and Kansas prosecutions, Mrs. Julie Adams, was in custody in California. The Kansas court, on motion of the State, removed the pending case from the docket on November 21, 1975, over defendant’s objection. No preliminary hearing was then held. Defendant was extradited, was tried and convicted of first-degree murder in California, and was sentenced to death. Before the sentence was carried out, the California death penalty law was declared unconstitutional. On July 29, 1977, the sentencing court reduced Wilson’s sentence to life imprisonment, concurrent with any other sentence previously imposed, and ordered that Wilson be returned to Kansas to complete serving his earlier Kansas sentence. Wilson was returned to the Kansas State Penitentiary on or about July 30, 1977.
On February 1, 1978, a new complaint (Case No. 78 CR 231) charging Albert L. Wilson with the aggravated robbery and felony murder of Robert Hind and Jerry Wilson, and including the earlier charges of aggravated burglary, aggravated robbery, and felony murder of Johnnie Mae Hull Rider, was filed in Sedgwick County. Upon learning of the new charges, defendant filed a motion for a speedy trial. He was taken to Wichita and first appeared before the court on May 10, 1978; counsel was appointed. On July 20, 1978, defendant appeared with counsel before the trial court; Cases No. 75 CR 1451 and 78 CR 231 were consolidated; preliminary hearing was waived; and a trial date of September 18 was agreed upon by stipulation. On defendant’s motion, the trial was set over until October 16, 1978, on which date trial commenced. The Hind-Wilson charges added by the February 1 complaint were dismissed before trial, and defendant was tried and convicted of the original Rider charges of felony murder, aggravated robbery, and aggravated burglary. The sentences imposed were made consecutive to each other but concurrent with the California and the earlier Kansas sentences.
Defendant alleges no denial of statutory speedy trial rights, and therefore we need not consider the time frames fixed by various statutes. Instead, defendant alleges that he has been denied his constitutional right to a speedy trial, as preserved by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Bill of Rights. The Sixth Amendment guarantee of the right to a speedy trial is enforceable against the states through the due process clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 18 L.Ed.2d 1, 87 S.Ct. 988 (1967). The right preserved by both state and federal constitutional mandate is the same: the right of one accused of crime to be tried promptly and with due dispatch. The right attaches when an individual becomes an “accused.” United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971).
The right applies not only when the accused is within the jurisdiction but also when the accused is confined in a penal institution in another jurisdiction. For example, when a federal prisoner demands to be brought to trial on pending State charges, the constitution imposes on the State the duty to “make a diligent, good faith effort” to bring him to trial. Smith v. Hooey, 393 U.S. 374, 383, 21 L.Ed.2d 607, 89 S.Ct. 575 (1969); and see Dickey v. Florida, 398 U.S. 30, 26 L.Ed.2d 26, 90 S.Ct. 1564 (1970), and Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 35 L.Ed.2d 443, 93 S.Ct. 1123 (1973).
The determination of a constitutional violation of the right to speedy trial depends upon the facts and circumstances of each case; the mere passage of time alone is not determinative. Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972), adopts a test of balancing the action or inaction of the State with that of the accused. Four relevant factors are identified: length of the delay; the defendant’s assertion of his right to speedy trial; the reason for the delay; and prejudice resulting to the defendant. We adopted these criteria (noting that the list is not exclusive) in State v. Otero, 210 Kan. 530, 532-33, 502 P.2d 763 (1972), and we have adhered to it in later cases. State v. Fink, 217 Kan. 671, 678, 538 P.2d 1390 (1975); State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979): State v. Ward, 227 Kan. 663, 608 P.2d 1351 (1980). When a defendant’s right to speedy trial has been violated, the “only possible remedy” is dismissal of the charges. Strunk v. United States, 412 U.S. 434, 440, 37 L.Ed.2d 56, 93 S.Ct. 2260 (1973); State v. Cuezze, Houston & Faltico, 225 Kan. 274; Williams v. Darr, 4 Kan. App. 2d 178, 603 P.2d 1021 (1979).
We turn now to examine the four Barker v. Wingo factors in the light of the facts of this case. The first is the length of the delay. The right to speedy trial attached at the time the complaint was filed and the warrant issued, October 3, 1975, or at the latest on the date of arrest, October 17, 1975. See Dillingham v. United States, 423 U.S. 64, 46 L.Ed.2d 205, 96 S.Ct. 303 (1975). Trial commenced on October 16, 1978; the elapsed time was about three years. Times greater than three years have been found nonviolative of the speedy trial right. Barker v. Wingo, 407 U.S. at 514 (five years); State v. Dolack, 216 Kan. 622, 636, 533 P.2d 1282 (1975) (over 3 years); State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972) (over 4 years). Although the delay in itself does not establish a violation, extended delay does serve to trigger examination of the other three factors. Barker v. Wingo, 407 U.S. at 530.
The second Barker factor requiring consideration is the defendant’s assertion of his right to, and his request for, speedy trial. He objected to the continuance of the Kansas proceedings in November, 1975, and asked for trial in Kansas; coupled with this was his objection to extradition. From November, 1975, until February, 1978, however, defendant took no action and made no request for disposition of the Kansas charges which he knew were pending against him. Although the Supreme Court has explicitly rejected a requirement that an accused must assert his right to a speedy trial, Barker v. Wingo, 407 U.S. at 529, cases where a constitutional violation has been found generally arise after the State has failed to respond to repeated demands for speedy trial. See, for example, May v. Georgia, 409 F.2d 203 (5th Cir. 1969). The absence of demand, however, must be weighed with other factors. Defendant was given a prompt trial of the California charge, although this resulted ip delay of the Kansas proceeding. Kansas failed to bring defendant to trial promptly upon his return to this state in the summer of 1977; but he made no demand for trial for some six months after his return. Once he did so, the State moved with reasonable promptness.
The third Barker factor is the cause of the delay. Here most of the delay is attributable to the prosecutor’s decision to suspend proceedings and to allow California to complete its prosecution before trial on the Kansas charges. As we noted in State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973):
“Throughout the judicial history of this state this court has consistently held that a criminal proceeding is a matter of state concern and the control of it is in the county [or district] attorney. . . .
“[T]he power effectively to control a prosecution involves the power to discontinue, if, and when, in the opinion of the prosecutor in charge this should be done.” (p. 45.)
An accused has no right to require that pending charges be prosecuted to termination in the jurisdiction which first has custody of him, before removal to a different jurisdiction for trial on other charges. Beavers v. Haubert, 198 U.S. 77, 49 L.Ed. 950, 25 S.Ct. 573 (1905). As the court observed in that case:
“[S]uppose [a defendant] is charged with more than one crime, to which does the right [to speedy trial] attach? . . . He cannot be tried for all at the same time, and his rights must be considered with regard to the practical administration of justice. . . . The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. ... It does not preclude the rights of public justice. It cannot be claimed for one offense and prevent arrest for other offenses; and removal proceedings are but process for arrest — means of bringing a defendant to trial.” 198 U.S. at 86-87.
Beavers has not been overruled; it is relied upon in United States v. Stein, 18 F.R.D. 17, 21 (S.D. N.Y. 1955), and cited by the Supreme Court as recently as United States v. Marion, 404 U.S. 307, 315, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971). In Stein, the defendant was charged by separate federal indictments in New York and California. The court said that the defendant:
“was entitled to a speedy trial on each indictment but obviously both trials could not proceed simultaneously. A defendant so circumstanced cannot dictate which of the two indictments should be tried first. . . . The orderly administration of criminal justice leaves that choice with the prosecuting officials to be exercised in good faith.” (p. 21.)
We agree with that analysis.
The reason for permitting California to proceed first was a practical one: a principal witness was in custody in that jurisdiction. We conclude that the delay of the Kansas case pending disposition of the California charges, through July 29, 1977, was reasonable and cannot be charged against the State of Kansas as needless delay.
After removal of the California impediment, and after Wilson was returned to this state, however, Kansas was lax in resuming prosecution. No reason for the six-month delay, from July 29, 1977 through January, 1978, is reflected in the record. This delay weighs against the State.
The fourth and final Barker factor is that of actual prejudice to the defendant in the preparation and presentation of his defense. Defendant enumerates five sources of prejudice which he alleges were caused by the delay. The first of these is his conviction of murder in the State of California. This conviction was not caused by Kansas delay; it resulted from his prosecution and trial in California. Whether that trial and conviction was before or after termination of the Kansas prosecution is not material here; it is not a prejudicial result of Kansas delay.
The second prejudice which he contends was caused by the delay is that he has received consecutive sentences. As we noted earlier, the California sentence is concurrent with other sentences imposed earlier, and the Kansas sentences, though consecutive to themselves, are concurrent with the California and earlier Kansas sentences. Delay caused no prejudice in sentencing.
The third factor of which defendant complains is his claim that his defense was severely limited and he was unable to establish his expected defense of alibi. He contends that his memory of places and people during the time he was on “escape” status has faded; that defense counsel were unable to contact witnesses because defendant was unable to recall the aliases he used and the names of airlines or bus companies he patronized; and further, that witnesses who were contacted by counsel had faded memories and were uncertain of dates, times, and places.
The record simply does not support these claims. A reading of defendant’s 1978 testimony indicates that although he could not completely reconstruct his whereabouts during the critical period, he did retain good recall in 1978 of events in 1975. Counsel was appointed for him in 1975 and could have contacted witnesses had defendant then been able to describe and list them. The difficulty appears to have been that the proposed witnesses were persons with whom defendant had chance and fleeting contact — people whom he met in bars in Florida and in Colorado, for example. Finding such witnesses, most of whose names and addresses are unknown, is difficult under optimum circumstances, but defendant and counsel had that opportunity in 1975 if they wished to exercise it.
Next, defendant complains of anxiety and stress, not because of the pending Kansas charges, but because he was sentenced to death by the California court and he spent nine months on “death row” in San Quentin penitentiary, before his death sentence was reduced to life imprisonment. The California death sentence, however, was a result of the California prosecution and application of the law of that state; neither the imposition of the sentence nor the anxiety suffered by the defendant while under the sentence is attributable to the delay in the Kansas prosecution.
Finally, Wilson contends that the delay was intentionally brought about by the Kansas prosecutor to gain “tactical advantage” or to “harass” this defendant. He contends that Kansas was aware of California’s mandatory death penalty law and released him to California with the expectation that he would be convicted and executed, thus making trial in Kansas unnecessary. As we see it, the prosecutor simply made a choice as to which trial should be held first, a proper matter for prosecutorial discretion. The prosecution gained no “tactical advantage” in the Kansas prosecution by the delay, and the fact that a more serious charge, or at least one carrying a more severe penalty, was tried first does not constitute harassment.
Upon consideration of all of the Barker factors in concert, we conclude that Wilson was not denied his right to a speedy trial. Although the delay was sufficient to trigger consideration of all of the factors, their consideration as a whole weighs against the defendant. The State exercised its allowable discretion in consenting to trial of the California charges before trial of the Kansas case. Discretion may properly be exercised for reasons consistent with the public interest to defer trial of one charge while another is handled to completion; charges in separate jurisdictions cannot be tried together; one or the other must be tried first. We find no abuse of discretion in the exercise of the prosecutorial function.
In separate arguments, defendant contends that he was deprived of due process by being first sent to California for trial, and he claims that the evidence presented is insufficient to support the conviction. We have reviewed the authorities cited in support of the first of these issues and find them factually dissimilar and unpersuasive. And we have reviewed the record and find that the evidence introduced at the trial, when viewed in the light most favorable to the prosecution, is amply sufficient. A rational trier of the fact could readily have found Wilson guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979); State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979).
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The opinion of the court was delivered by
Graves, J.:
On September 20, 1905, the plaintiff in error commenced this action in the district court of .Sumner county to recover taxes paid to the county treasurer under protest, which are alleged to be illegal. A joint general demurrer to the petition was sustained, and, the plaintiff electing to stand upon its pleading, a judgment in favor of the defendants was entered for costs. This action óf the district court is .assigned as error and constitutes the only question presented. The petition, excluding formal parts, reads:
“That during the year 1903 the said plaintiff was the owner of certain railroad property situated in said county of Sumner, state of Kansas, which said property was by the state board of railroad assessors of the state of Kansas duly assessed and valued, as required by law, at the sum of $570,130, for the purposes ■of taxation for said year 1903.
“That the rate of - taxation levied for state purposes .against all property in the state of Kansas for said year 1903 was 6.4 mills; that the total assessed valuation of all taxable property in said county of Sumner for the year 1903 was the sum of $6,969,809, of which sum $1,258,695 was the valuation of railroad property and $5,711,114-was the valuation of taxable property -in said county other than railroad property; that the-state board of equalization of the state of Kansas, at. its meeting held in the month of July, 1903, as required by law, raised the assessment of all taxable property in said Sumner county, except railroad property, ten per cent, for state purposes, in accordance with authority conferred upon it by law, and apportioned the-amount of taxes to be raised for state purposes in said Sumner county at the sum of $48,262, which amount, was duly certified to the county clerk of said Sumner county, Kansas, by the auditor of state of the state-of Kansas.
“That the said county clerk of Sumner county, Kansas, instead of raising the assessed value of all taxable-property in said county, other than railroad property, ten per cent., as required by the order of the state-board of equalization, raised the rate of taxation for state purposes on all taxable property in said county, including railroad property, from 6.4 mills to 7.25 mills on the dollar valuation, thereby raising the sum of $50,531 for state taxes,’ said sum being $2269 in excess of the amount of taxes required for state purposes from said Sumner county, as certified by the state board of equalization as aforesaid; that if a rate-of 7.04 mills had been levied for state purposes against, all the taxable property in said Sumner county except railroad property, and the aforesaid rate of 6.4 mills-, had been levied for state purposes upon all railroad property in said Sumner county, Kansas, as provided-by the order and certificate of the state board of equalization, hereinbefore referred to, there would have been produced thereby the exact amount of taxes required from said Sumner county for state purposes, as certified by said state board of equalization to said county clerk of Sumner county, to wit, the sum of $48,262.
“That the said county clerk of Sumner county, by making the said illegal increase in the levy for state-purposes upon railroad property in said county, in effect raised the assessed value of the property of said plaintiff in said county thirteen and one-quarter percent. (13i%) ; and the said plaintiff avers that said county clerk had no authority to change the assessed' value of railroad property in said county as fixed by the state board of railroad assessors for said year 1903, but that the state board of equalization of the state of Kansas alone had authority to change such assessment.
“And the said plaintiff avers that said levy of 7.25 mills for state purposes upon railroad property in said county, so as aforesaid made by said county clerk of Sumner county, was unlawful, illegal, excessive and. void to the extent of said excess over said legal rate of 6.4 mills aforesaid, to wit, 85/ioo of a mill, which said unauthorized, illegal, excessive and void rate of taxation, so as aforesaid levied against said property of this plaintiff in said Sumner county, Kansas, to wit, $570,-130, produced the sum of $484.58, which said sum was, together with the legal taxes due upon said property of the plaintiff in said county of Sumner, extended upon the tax-rolls of said county by said county clerk and charged against the property of said plaintiff.
“That by reason of said excessive levy of 85/ioo of a mill against its said property in said Sumner county the said plaintiff was compelled to pay a higher rate per cent, of taxation for state purposes than was levied against other property in said Sumner county and in other counties in the state of Kansas for such purposes, and was thereby denied the benefit of a uniform and equal rate of assessment and taxation, guaranteed by the constitution and statutes of the state of Kansas.
“That on or before the 20th day of December, 1903, being desirous of paying the full amount of all taxes legally due from it on its said property in said Sumner county, said plaintiff notified .said county treasurer of Sumner county, Kansas, in writing, that said sum of $484.58, being the amount produced by said illegal levy of 85/ioo of a mill, as aforesaid, was unauthorized, excessive, illegal and void, and protested against paying the same on account of said illegality; that said plaintiff offered to pay all legal taxes then due from it in said Sumner county, but said county treasurer declined and refused to give his receipt in full for the legal taxes due from the plaintiff unless the plaintiff should also pay the aforesaid illegal tax, less the amount of rebate thereon allowed by law; that thereupon said plaintiff, protesting, as. aforesaid, involuntarily and under urgent and immediate necessity, paid said defendant county treasurer the sum of $472.50, being the amount of said illegal tax less the usual rebate, solely to avoid the issue of legal process for its collection. And said plaintiff avers that if it had not. so paid said illegal taxes, the said defendant county-treasurer of Sumner county would shortly thereafter have issued his warrant to the sheriff of said Sumner county for its collection, and the said property of said plaintiff would have been levied upon and sold under the forms of law. And said plaintiff further avers that said defendant county treasurer of Sumner county receipted for the payment of all taxes due from said plaintiff in said Sumner county for the year 1903; that the payment by said plaintiff to said defendant county treasurer of Sumner county of said illegal tax and of the taxes due from the plaintiff to said county of Sumner for the year 1903 was made by voucher, which contained a further protest against the payment of said illegal taxes, and said defendant-county treasurer receipted said voucher for the payment of said illegal tax and all other taxes of the plaintiff- for the said county of Sumner for the year 1903.”
The demurrer, of course, admits the truth of all the-facts pleaded in the petition.
It is the duty of the state board of railroad assessors, to assess for taxation all railroad property in the state. (Gen. Stat. 1901, § 7551.) It is the duty of township trustees and city assessors to assess for taxation all other property. (Gen. Stat. 1901, §§ 7564, 7565.) It is the duty of the state board of equalization to equalize values throughout the state by increasing or diminishing the values fixed by the assessing officers as to it shall seem equitable. (Gen.Stat. 1901, § 7609; Braden, Sheriff, &c., v. Union Trust Co., 25 Kan. 362.) It is the duty of the county board of equalization to equalize the values of property assessed by the assessing officers of the county, which does not include railroad property. (Gen. Stat. 1901, §§ 7602, 7603.) In the case of Braden, Sheriff, &c., v. Union Trust Co., supra, in considering the duty and powers of the state board of equalization, it was said:
“The board, having before it all assessments for taxation made upon all the taxable property within the state, may, under the provisions of the foregoing section, equalize such assesments by increasing or de~ creasing the assessments made on any particular portion of the property, provided such equalization does not reduce the aggregate amount of the assessment. Railroad property may be assessed too high or too low, as well as any other property; and it may be assessed at a higher or at a lower rate than the other property of the state is assessed. And to do justice to the railroad companies and to the people of the state, it may' be necessary in many cases to increase or diminish the, assessments on railroad property.” (Page 365.)
The action of the state board of equalization is certified to each county clerk, and it is his duty to comply therewith. (Gen. Stat. 1901, §§ 7610, 7611.) The last-named section reads:
“It shall be the duty of the county clerk in each county, when he shall have received the report of the auditor, as provided in section eighty pf this act, to determine the rate per cent, necessary to raise the taxes required for state purposes, as determined by the state board of equalization, and place the same upon the tax-roll of the county, in the manner prescribed by section eighty-four of this act.”
In conforming to the requirement of the state board of equalization the county clerk may either increase the values fixed by the assessing officers so that the rate already made will produce the amount required by the state, or increase the rate sufficient for this purpose, as he prefers. (Geary County v. Railway Co., 62 Kan. 168, 61 Pac. 693; Railway Co. v. Miami County, 67 Kan. 434, 73 Pac. 103.) The action of the state board of equalization does not affect local taxes, but relates wholly to the tax for state purposes. The whole procedure as applicable to this case, sufficiently summarized, amounts to this:
The state board of equalization, after having performed its duty as prescribed by law, informed the proper official of Sumner county that the railroad property in that county, as compared with other parts, of the state, had been fairly assessed, but the other property, as compared with similar property in the state, had been valued too low, and to be fairly equal to other counties the assessment should be raised ten per cent.; that in accordance with this conclusion the amount of taxes for state purposes apportioned to that county was $48,262; that to raise this amount it would be necessary to increase the assessed value of all the taxable property in the county, other than railroad property, ten per cent., or to increase the rate upon such property so that it, together with the railroad property at the present rate, would produce the required amount.
This seems like a simple proposition. The state board of equalization only exercised the power expressly conferred upon it by law. The county clerk did not perform his duty as prescribed by law, and thereby, the plaintiff in error was compelled to pay more than its just proportion of the tax for state purposes. By reason of this illegal levy $2269 state tax was collected in excess of the amount which the state had charged against the county. There does not appear to be any regular way in which this money could be disbursed by the county treasurer, and naturally it would still seem to be in his possession.
We think the petition states a good cause of action as against the demurrer, and therefore the judgment of the district court is reversed, with direction to overrule the demurrer and proceed with the cause. | [
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The opinion of the court was delivered by
Graves, J.:
In April, 1907, D. E. Cornell was elected mayor of Kansas City, Kan. After entering upon the discharge of the duties of that office he, in connection with the city council, appointed the defendants to fill ■existing vacancies in certain official positions in that ■city, as follow: George K. Addison to the office of sanitary sergeant, J. L. B. Eager to the office of city ■physician, Larkin Norman to the office of building in spector, Alex Eagle to the office of police clerk, and R. L. McAlpine to the office of city engineer. These appointments were claimed by certain veterans of the civil war residing in that city to have been made in violation of section 1 of chapter 374 of the Laws of 1907, commonly known as the “veterans’ preference law.”
To determine this question the county attorney of Wyandotte county, on June 1, 1907, commenced this-action in this court to oust the defendants from such offices. The defendants filed separate demurrers to the petition, upon the grounds (1) that the plaintiff has no legal capacity to sue; (2) that there is a defect of parties plaintiff; (3) that several causes of action are improperly joined; and (4) that the petition does, not state facts sufficient to constitute a cause of action against the defendants.
Upon the issue thus made the case has been presented. The plaintiff in the action is the state of Kansas, on the relation of the county attorney; the' defendants are the incumbents of the various offices above mentioned. The petition, so far as is necessary to an understanding of the contention of the parties,, reads:
“(2) That Kansas City is and has been for several years last past a city of the first class in said county, and that there is and has been for many years past maintained and established in said city the offices of sanitary sergeant, city physician, building inspector, police clerk, and city engineer, which offices are filled by appointment by the mayor of said city, by and with, the advice and consent of the city council.
“(3) That on or about the first day of May, 1907,. said defendant George K. Addison did unlawfully usurp and intrude himself into said office of sanitary sergeant of said city, and still usurps and claims the same, without any color of right or title thereto, as. will hereinafter appear.”
Paragraphs four, five, six and seven contain substantially the same averments concerning the other defendants. Subdivisions one, two and three of paragraph eight reads:
“(1) That one Dudley E. Cornell was elected mayor ■of said city of Kansas City on the 2d day of April, 1907, and on the 5th day of April, 1907, qualified and entered upon the discharge of his duties, and ever since has been the duly elected, qualified and acting mayor of said city.
“(2) That the term of office of the former incumbents of each of the appointive city offices hereinbefore referred to expired on or about the 9th day of April, 1907, and on said date there was a vacancy in each of said offices, and said Dudley E. Cornell, as mayor of said city, had full power and authority and it was his duty to appoint a suitable and qualified person to fill each of said offices for a term of two years.
“(3) That on or about the 15th day of April, 1907, one'F. T. Albertson, who had served in the army of the United States in the war of the rebellion, and was honorably discharged from said army, and who was and is fully competent to discharge the duties of sanitary sergeant of said city, applied verbally to said Dudley E. Cornell, as mayor of said city, for appointment to the office of sanitary sergeant of said city, and said Dudley E. Cornell, as said mayor, then and there promised said F. T. Albertson to appoint him to the office of sanitary sergeant of said city; and said F. T. Albertson was and is entitled to said appointment, and entitled to said office, but on April 30, 1907, said Dudley E. Cornell, as mayor of said city, notwithstanding his promise to said F. T. Albertson, and the application of said Albertson, unlawfully appointed defendant George K. Addison sanitary sergeant of said city, and the city council of said city in regular session unlawfully pretended to ratify and confirm said unlawful appointment, and said George K. Addison accepted said unlawful appointment, and still continues to usurp and hold said office contrary to law.”
The succeeding subdivisions — four, five, six and seven — contain substantially the same averments concerning the other veterans who were applicants for •appointment to these offices. Subdivisions eight and nine read:
“(8) That said F. T. Albertson, W. F. Waite, A. D. Tanyer, C. M. Mendenhall, and C. L. McClung, and each of them, are and were men of good reputation, and citizens of the United States; and are now and for many years last past have been residents in good faith of said city and qualified electors thereof, and each of said applicants was and is fully competent and qualified to perform the duties of the particular office for which he applied; and each of said applicants was the only person, who applied in each instance for the par-' ticular office for which he made application' for appointment who had served in the army or navy of the United States in the war of the rebellion and had been honorably discharged therefrom; and said Dudley E. Cornell well knew that each of said applicants had served in the army or navy of the United States in •the war of the rebellion, and well knew that each of said applicants was competent and qualified to perform the duties of the office for which he applied, and knew at the time' that he made said unlawful appointments that said applicants were entitled to preference and to said appointments under the law of Kansas.
“ (9) That none of the defendants ever served in the army or navy of the United States in the war of the rebellion, which fact was well known to said Dudley E. Cornell at the time that he made said unlawful appointments, and said defendants, and each of them, at the time they applied for appointment to the respective offices to which they were unlawfully appointed, and at the time of their said unlawful appointment, and at the time that they took possession of said offices, well knew that an honorably discharged veteran of the army or navy of the United States who had served in the war of the rebellion and who was competent to discharge the duties of the office for which he applied to said mayor for appointment had applied' for each of said offices, and that an application by such qualified veteran was pending in each case, and that it was the duty of the mayor to appoint such veteran and to refuse to appoint defendants and each of them.”
The first and second grounds of the demurrer are not well taken. There is no defect of parties plaintiff. It is true that each of the veterans might have brought an action in his own name to recover possession of the office to which he thought himself entitled, but having failed to do so the public is not concluded by such forbearance. The people generally are interested in having the laws of the state enforced. If any citizen, be he veteran or not, is wrongfully deprived of a right which by express enactment of the legislature has been conferred upon him, every other citizen is interested in having the wrong corrected. In all actions which involve the public interest the state is a proper party, and the attorney-general or county attorney is the proper person to represent the public interest therein. (Bartlett v. The State, 13 Kan. 99; Miller v. Town of Palermo, 12 Kan. 14, 16; Bobbett v. The State, ex rel. Dresher, 10 Kan. 9; The State, ex rel., v. Faulkner, 20 Kan. 541, 547; The State, ex rel., v. Comm’rs of Marion Co., 21 Kan. 419, 432; Comm’rs of Harvey Co. v. Munger, 24 Kan. 205, 209; The State, ex rel., v. Eggleston, 34 Kan. 714, 723, 10 Pac. 3.)
In the case first above cited it was 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 done 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. But each has a separate action, and the two together do not have a joint action. Neither is a necessary party when the other commences the action. 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. . . . 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. The 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.” (Pages 102, 103.)
The third ground of the demurrer seems to be well taken. The petition contains as many separate and distinct causes of action as there are defendants, and each of these several causes of action depends upon its own peculiar facts. Neither defendant is necessarily interested in the defense or success of his co-defendants. A separate and different judgment must be entered upon each cause of action. Under the code every cause of action in the petition must affect all the parties to the action; otherwise they cannot be joined. (Code, § 83; Gen. Stat. 1901, § 4517; Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961; Rizer v. Comm’rs of Davis Co., 48 Kan. 389, 392, 29 Pac. 595; L. N. & S. Rly. Co. v. Wilkins, 45 Kan. 674, 677, 26 Pac. 16.)
The remaining ground of the demurrer involves a question that is more difficult, viz., Does the petition state facts sufficient to constitute a cause of action? The statute under which the petition was drawn reads:
“In grateful recognition of the services, sacrifices and suffering of persons who served in the army and navy of the United States in the war of the rebellion, and have been honorably discharged therefrom, they shall be preferred for appointments and employed to fill positions in every public department and upon all public works of the state of Kansas, and of the counties, cities and towns of this state, if competent to perform such services; and the person thus preferred shall not be disqualified from holding any position in said service on account of his age or by reason of any physical disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for; and when any such ex-soldier or sailor shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a'man of good reputation and can perform the duties of the position applied for by him, appoint said ex-soldier or sailor to such position, place, or employment.” (Laws 1907, ch. 374, § 1.) .
No motion to make more definite and certain having been filed, the language of the pleading as against the challenge by demurrer will be liberally construed. (Long v. Thompson, 73 Kan. 76, 78, 84 Pac. 552; Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557.)
The conditions named in the statute which compel the recognition and appointment of a veteran are: (1) a vacant office; (2) an application by a veteran for appointment to such office who (3) served in the army or navy of the United States in the war of the rebellion and was honorably discharged therefrom, (4) is competent to perform the duties of such office, and (5) sustains a good reputation.
When these conditions exist it is the duty of the appointing power to appoint the applicant. The statute, however, is silent upon the subject as to how the existence of these facts is to be made known; it would seem, therefore, under the general rule applicable to such cases, to be incumbent upon the applicant to establish them as a part of his application for appointment. This question is not important, however, in this case, as the petition avers that the mayor already knew the facts. It was unnecesary, therefore, for the applicants to present any showing or for the mayor to make any inquiry. If in any case the existence of the essential facts which under the law give veterans the preference should be disputed, the question as to the manner in which they are to be determined would become important.
While the questions now presented arise upon a demurrer to the petition, we deem it proper to notice generally some of the provisions of the law under which this action is brought, that counsel may be guided thereby in the future progress of the case.
The law expressly makes the right of preference depend upon the existence of the facts enumerated— “ shall be preferred ... if competent,” etc., “shall [be appointed] if the applicant be,” etc., is the language of the statute.' The proposition that a vet eran, before he can claim a preference to an office over other citizens, must place himself within the terms of the statute which gives such right seems too clear to admit of discussion.
How or where these questions, so important to- the veteran applicant, are to be determined, cannot be ascertained from the express terms'of the statute. The duty of. ascertaining whether these legal requirements exist or not naturally belongs to the appointing power, and to place ’ this duty there would appear to be so eminently appropriate that under ordinary circumstances it would be assumed at once that the statute so intended, and the omission expressly so to state would be supplied by implication. A peculiar difficulty, however, stands in the way of such an interpretation of this statute. The former enactment expressly provided that the officer, board or person whose duty it was to make the appointment should, before any appointment was made, make an investigation's to the qualifications of the veteran applicant. The present law repeals this provision and does not provide in any way for the performance of this duty. From this it might be argued that it was intended to withdraw the performance of this duty from such tribunal, or to dispense with an investigation altogether. Either of these conclusions would leave the statute shorn of its most important’features and would probably destroy its validity. Both should, therefore, be avoided, and some interpretation adopted, if possible, which will sustain the law. It seems clear from the language of the statute as it now stands that the' legislature intended to confer this preference upon such veterans as might possess the prescribed requirements. In the absence of any provision to the contrary it may be held that the duty of determining all questions involved in making such, appointments belongs to the appointing power, notwithstanding the repeal of the former act.
We conclude, therefore, that the real purpose of the later act was not so much to change the old law with reference to the investigation and determination of the claims of applicants thereunder as. to change the standard of qualifications required. Under the former act the applicant was required to possess qualifications equal- to his competitors. Now it is sufficient- if he is merely competent and able to perform the duties of the office.
The meaning of the word “competent,” as used in this statute, is not very clear. To ascertain the signification intended reference may be made to the subject-ma,tter about which it is used. “Competent,” when used to indicate the qualifications which a public officer should possess, must necessarily include every qualification essential to the prompt, efficient and honest performance of the duties pertaining to the office to be filled. A law which means less than this cannot stand. The maintenance of an efficient public service in all the departments of the government is. a matter of paramount importance. Desirable as it may be to confer special public favors upon the rapidly disappearing patriots of this state, it cannot be done at a sacrifice of the public welfare.
Many old veterans remain who are abundantly qualified to meet all the requirements which the best public service may demand, and to such the provisions of the veteran’s preference law were intended to apply. The determination of the appointing board or officer as to the qualifications of the applicant involves official discretion, and, when made fairly and in good faith, is final. (Dever v. Humphrey, 68 Kan. 759, 75 Pac. 1037.) The former law was upheld as valid by this court because by its provisions only men possessing qualifications which would satisfy the requirements of an efficient public service could receive its benefits.. (Dever v. Humphrey, 68 Kan. 759, 75 Pac. 1037; Goodrich v. Mitchell, 68 Kan. 765, 75 Pac. 1034, 64 L. R. A. 945, 104 Am. St. Rep. 429.)
The constitutionality of this and similar laws has been challenged upon the ground that they confer special privileges upon particular citizens to the exclusion of others. There is no constitutional provision in this state which, in express terms, prohibits this kind of legislation. (Goodrich v. Mitchell, 68 Kan. 765, 769, 75 Pac. 1034, 64 L. R. A. 945, 104 Am. St. Rep. 429.) The question, therefore, must be regarded as one of public policy rather than of constitutional law. The appointment of incompetent, inefficient or dishonest persons to public office is generally conceded to be bad public policy; and a law under the provisions of which unsuitable persons can be preferred over those who are suitable is manifestly opposed to good government and contrary to the ordinary conception of a sound public policy. On the other hand, it is a wise and beneficent public policy which provides that the patriotic citizen who has endured the perils and privations. of war in defense of his country shall in his declining years be preferred for appointive offices, when such preference does not impair the efficiency of the public service; Under the law of 1907, as here interpreted, the veteran who is found competent, upon a fair and impartial inquiry conducted by a public officer in the discharge of an official duty, is entitled to receive the office desired. The law is therefore constitutional, and in harmony with a wise and beneficent public policy.
We conclude (1) that a veteran who shows himself competent, within the meaning of the law, to perform the duties pertaining to the office applied for is entitled thereto; (2) that it is the duty of the appointing power to determine whether or not the applicant possesses the qualifications which make him competent; and (3) that the examination of such questions shall be conducted fairly, impartially, and in good faith, and, when so conducted, is not subject to review.
The demurrer is overruled as to the first, second and fourth grounds, and sustained as to the third. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Wyandotte Coal and Lime Company instituted this action against W. W. Atkin to recover $533.36 for material which it furnished to him to be used in the paving df a street, and also to recover the same claim from the National Surety Company under a bond which it gave undertaking to pay all bills for labor and material incurred by Atkin in paving that street.
Atkin made no defense, but the National Surety Company set up a number of defenses, one of which was that the Diamond Brick and Tile Company, in order to defeat competition in paving the street and in violation of the statute requiring competition in the letting of such contracts, had secretly and fraudulently hired petitioners and had otherwise assisted in procuring petitioners who asked that the paving be done with brick of the Diamond brand, which was exclusively manufactured and sold by that company; that the illegal action extended to procuring the passage of an ordinance by the city council and inducing the contractor to bid on the work and enter into the contract, and that all was done in order that the company might sell its brick to the exclusion of any other. It was then alleged that if the Wyandotte Coal and Lime Company sold any of the material upon which it based its claim the.sale and delivery were made with full knowledge of the illegal action of the Diamond Brick and Tile Company.
A demurrer to this defense was interposed and sustained, but upon a review in this court the ruling was reversed. (Atkin v. Coal Co., 73 Kan. 768, 84 Pac. 1040.) Later, upon issues joined, a trial was had, and when the plaintiff had offered its testimony the surety company filed its demurrer to the evidence, which was overruled, and no testimony being offered in behalf of the surety company verdict and judgment were given for the plaintiff.
It is contended that the testimony was insufficient to sustain the plaintiff’s claim or warrant the judgment that was rendered, in view of the taint in the proceedings leading up to the paving contract and in the contract itself. It has been directly held that where a paving contract is obtained by stifling competition in violation of a statute the proceedings, including the contract, are illegal and void, and that those who furnish labor or material with full knowledge of the facts which render the proceedings illegal are bound thereby and cannot maintain an action against the surety of the contractor. (Surety Co. v. Brick Co., 73 Kan. 196, 84 Pac. 1034; Atkin v. Coal Co., 73 Kan. 768, 84 Pac. 1040.) At the trial no testimony was offered showing that the Wyandotte Coal and Lime Company had actual knowledge of any of the facts which tainted the proceedings or contract with illegality. Its position differs materially from that of the brick company, which, it was alleged, acted fraudulently in procuring petitioners and in securing the enactment of an ordinance and the making of a contract, all to accomplish its purpose of suppressing competition in the bidding.
If, as alleged in the answer of the surety company, the plaintiff in this action had furnished cement with full knowledge of the illegal transactions, it would, in a sense, have been a participant in the fraud and illegality and would have occupied no better position than the parties who initiated and carried out the unlawful scheme. But plaintiff had no.part in the proceedings preliminary to the contract nor with the passage of the city ordinance. It had nothing to do with Atkin’s contract with the city and was not even a party to the bond which the surety company gave to guarantee the payment of labor and material furnished to the contractor.
It is said, however, that the plaintiff was chargeable with knowledge that the material was furnished to carry out a contract with the city — a contract mentioned in its petition, and that notice should have been imputed to it of the illegality disclosed by the contract itself and the proceedings of the city council. The contract, it is true, was spoken of in the plaintiff’s petition and referred to in its evidence, and it is argued that as its claim is based on that contract it must fail. Its claim against the surety company is based upon the surety bond, in which that company agreed to pay all bills for material which Atkin incurred in the prosecution of the work and failed to pay; and, besides, the relation between it and the surety company is altogether too remote for the application of the doctrine of constructive notice of the wrong-doing of other material men or contractors. That doctrine, it has been said, “has always been regarded as a harsh necessity; and the statutes'which create it have always been subjected to the most rigid construction.” (Call v. Hastings, 3 Cal. 179, syllabus.)
The law imputes knowledge to a person acquainted with facts which make it his duty to inquire, where his act or negligence is such as to lead to imposition upon an innocent party. Facts and circumstances from which knowledge of the fraud and illegality in the present case might be inferred were as accessible to the surety company as to the plaintiff, and that company, having so close, a connection with the illegal contract, has no right to insist that the plaintiff, who furnished material on the faith of its guaranty, shall exercise greater diligence than it did to discover the fraud. As against the surety company nothing short of actual knowledge of' the illegal contract and of the fraudulent steps by which it was procured can bind the plaintiff, who sold the material on the security of the bond given by the surety company. It must be a knowledge so ample and complete that those who contribute labor or material in furtherance of the unlawful contract can be regarded as active agents in promoting the fraud and illegality. This was in effect held in Bonding Co. v. Dickey, 74 Kan. 791, 88 Pac. 66, where another surety company asked to be relieved from responsibility for material used in a contract with a city, the payment for which it had guaranteed, because the contract was made in violation of a statute. There, as here, it was urged that the plaintiff furnishing material to the contractor was bound to take notice of what the contract and records of the city disclosed, and Surety Co. v. Brick Co., 73 Kan. 196, 84 Pac. 1034, was cited as an authority. The court, however, refused to apply the doctrine of constructive notice of the illegality to the material man, and pointed out that he could only be justly bound and barred from a recovery where he had actual knowledge and was in a sense an active agent in carrying out the illegal features of the contract or transaction. That case is sufficient authority for the holding of the trial court that the plaintiff was not barred from recovering the amount of its claim, which it had established, from the surety company.
The only remaining question arises upon the contention that there was a failure to prove that all the cement sold by the plaintiff and included in its claim went into the construction of the pavement. The testimony, however, although not full and explicit in that respect, was certainly sufficient to make a prima facie case of delivery and use, and since there were no discrediting circumstances, or anything to raise a suspicion that the cement furnished was not used for the purpose for which it was purchased, the court was justified in holding the testimony to be sufficient. No greater strictness of proof is required in this case than would be in the enforcement of a claim for a mechanic’s lien. In a case of that kind, where it was contended that there was a lack of positive and specific proof that the articles furnished for the building were actually used in its construction, Mr. Justice Brewer said:
“It is undoubtedly true that it is not affirmatively and specifically shown that each separate article charged in these bills actually went into such buildings. It does appear, however, that each one of the three separate claimants made contracts for furnishing materials for said buildings; that in pursuance of said contracts they furnished materials, and supposed that they were to be used in the construction of said buildings; and, as to a few articles, that they did in fact go into said buildings. To this there is no contradictory testimony; nothing tending to show that any of the materials so delivered were in fact taken away by the builder and used elsewhere; nothing even tending to raise a suspicion that there was any deviation of materials from their intended and contracted use. Under these circumstances, it would not be justice to refuse the lien.” (Rice & Floyd v. Hodge Bros., 26 Kan. 164, 170.)
(See, also, McGarry v. Averill, 50 Kan. 362, 31 Pac. 1082, 34 Am. St. Rep. 120; Seattle Lumber Co. v. Sweeney [Wash.], 85 Pac. 677.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The board of county commissioners of Cowley county attempted to open a highway upon a section-line crossing land owned by L. F. Johnson. He sought and obtained a judgment enjoining such attempt, and the board prosecutes error. The case was heard upon an agreed statement of facts and turns wholly upon questions of statutory interpretation.
In 1872 the legislature passed an act (Laws 1872, ch. 178) the first section of which declared all section-lines in Cowley county (and in several other counties, none of them contiguous thereto,) to be public highways. A subsequent section (§3) provided that “all the unenclosed or unimproved highways, provided in section one of this act, shall be opened by the board of county commissioners upon the presentation of a petition to said board, signed by not less than ten freeholders, residents of the county in which said highway is located.”
The tract in question was at the time unenclosed and unimproved. No effort was made to open a road upon it until some time in 1905. No compensation has been made to Johnson or his grantors and none is contemplated. The tract was once a part of what is known as the “Osage Trust and Diminished Reserve Lands.” The county contends, and Johnson denies, that in 1872 this was public land within the meaning of the federal statute of 1866 (U. S. Rev. Stat. 1878, § 2477) which granted “the right of way for the construction of highways over public lands, not reserved for public uses.” If it was, then under the authority of Tholl v. Koles, 65 Kan. 802, 70 Pac. 881, when it passed into private ownership it was taken subject to the easement resulting from the state and federal statutes. Assuming for the present that this is the case, the question then presented is as to the effect of the following statute, which was enacted in 1879:
“That any county road or part thereof which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of seven years at any one time after the order made or the authority granted for opening the same, shall be and the same is hereby vacated, and the authority granted for erecting the same is barred,by lapse of time; and any state road or part thereof which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of ten years after the passage of the act authorizing the same, shall be vacated, and the authority for opening it repealed for non-use.” (Gen. Stat. 1901, § 6058.)
The county maintains that the highway under consideration was neither a state nor a county road, as those terms are used in this statute; that by state roads are there meant roads laid out by the legislature directly, and by county roads those laid out by the county commissioners under the terms of the general road law; that this highway became such by neither of these methods, but by dedication on the part of the general government through the act of congress referred to, followed by acceptance by the state through the statute of 1872. We cannot agree to these contentions. It was held in Barker v. Comm’rs of Wyandotte Co., 45 Kan. 681, 26 Pac. 585, that a dedication of a strip of ground by the owners for the purposes of a road, and its acceptance by the county commissioners, does not make it a county road or a regularly laid out road; and in Tholl v. Koles, 65 Kan. 802, 70 Pac. 881, the acts of congress and of the legislature in such a case as the present are spoken of respectively as a dedication and acceptance of land for a highway. But the grant by the general government to the local authorities of a right to locate a highway wherever they see fit across public lands is a very different thing from the tender by the owners to the public of a specific tract for that purpose — the kind of dedication referred to in Barker v. Comm’rs of Wyandotte Co., supra. In the one case the position of the road is determined by the representatives of the public charged with that duty, and in the other by persons having no official responsibility. A road created by act of the legislature is no less a laid out highway because the right of way therefor without compensation is granted in advance of any step being taken for its creation.
The terms “state road” and “county road” seem to have no precise technical meaning, and it might be permissible to suppose that in the statute under consideration they were used merely to distinguish highways created directly by the legislature and those erected by the county authorities under general laws. (See opinion of Mr. Justice Lyon in The State v. Hayden, 32 Wis. 663, 673.) But a better-supported view is that any public road lying wholly within one county is a county road, while a state road extends through or into several counties.
“What is known in some sections as a state road is a highway laid out by the direct authority of the state, generally between distant places and through different counties, to supply a want felt by a large district of country, which because of the diversity of interests the local.authorities are not always willing to supply.” (15 A. & E. Encycl. of L. 352.)
“A state road is a road running into two or more counties, and is distinguished by this from a county road, which lies wholly within one county. The first was formerly established by acts of special legislation ; the latter by county commissioners, under general laws.” (Ohio, ex rel. Stebbins v. Treasurer of Wood County, 17 Ohio, 184, 186.)
The distinction recognized by the Ohio court is entitled to especial weight from having been announced in a decision rendered in 1848, our road laws being largely derived from those of that state. The road here involved, lying wholly within Cowley county, was by this test a county road. And the title is not inappropriate, since its essential character is no different whether the legislature created it directly by special act or indirectly through the county board acting under a general law.
It is said, however, that the. statute of 1879 conflicts with that of 1872, and there being no express repeal the provisions of the earlier act should stand, upon the principle that the special law should prevail over the general. The later act, however, is not one of repeal, and amends the first one only as all new legislation is in a sense 'amendatory. It sets a limit to the rights offered to the public under the other act. That it is general while the other is special does not affect the matter. Its expressions are clear and unambiguous. In set terms it refers to all roads authorized but not actually opened for travel. Its reference to roads created by act of the legislature demonstrates that it applies to some special statutes, and if it covers any there is no reason why it should not reach all.
There is, however, room, for doubt as • to when the limitation of seven years allowed for the opening of a road which has been authorized is to begin to run. The statute says “after the order made or the authority granted for opening” the road. The act of 1872 provided for the opening of the road by the county board upon the presentation of a petition of ten freeholders, and the language quoted might be deemed to refer to the time such a petition should be presented. To adopt this construction, however, would be to put too narrow an interpretation upon the statute. The expression “to open,” as applied to a street or road, is used almost indifferently to express two very different processes — the act of establishing or creating a highway, and that of actually putting in shape for travel one already having a legal existence. The purpose and intent of the act is manifestly to fix a limit within which roads must become such in fact, after they have been given that character by law. It is essentially a statute recognizing and defining abandonment by non-user. The alternative phrases “the order made” or “the authority granted” for opening the road seem to have been suggested by the two methods by which a county road may be created — by order of the board or by authority granted by special act of the legislature. The act of 1872 made the tract in question a highway in contemplation of law. Nothing remained but to open it for public use. The statute of 1879 allowed those interested seven years in which to avail themselves of the privilege offered. We think it was the legislative intent that if no advantage should be taken of it within that time it should be withdrawn. And as in fact no step was taken in that direction until 1905, the road which was created by the act of 1872 was vacated by the operation of that of 1879.
This conclusion makes it unnecessary to decide whether the land now owned by Johnson was in 1872 a part of the public domain.
The judgment is affirmed. | [
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TKe opinion of the court was delivered by
Graves, J.:
The plaintiff in error is the father-in-law of the defendant in error, who commenced this action against him in the district court of Mitchell county, March 15, 1905, to recover damages for aliénating the affections of her husband and causing their separation. She recovered a judgment of $2000, and he brings the case here for review.
The first error complained of is the refusal of the court to require the plaintiff to state her place of residence and post-office address in her petition. It appears from the petition that she was a non-resident of Mitchell county up to within a few days before the action was commenced, and under the provisions of chapter 327 of the Laws of 1905 the motion should have been allowed. However, it also appears that the defendant was a frequent visitor at her home and was familiar with her residence and post-office address. The error was therefore harmless.
Complaint is made of the court for refusing to require the plaintiff to make her petition more definite and certain by stating more specifically the facts showing how and in what manner the defendant accomplished the alienation of her husband’s affections. Upon this point the petition avers that the defendant, about December 25, 1904, conceived an intense dislike for the plaintiff, and thereafter persistently urged, coaxed and entreated her husband to leave and separate from his wife; that he advised with lawyers as to the best methods by which a separation and divorce could be secured, wrote letters to plaintiff’s husband urging and entreating him to separate from her immediately, and advised him to induce her to consent to a separation by the payment of money, if necessary; that he visited the plaintiff and her husband at their home and there persisted in his efforts to effect a separation, stating to the plaintiff that he would not permit his son to live with her, and by this course of conduct he finally succeeded in causing his son to leave the plaintiff. These averments were sufficient to inform the defendant of what he might expect upon the trial and enable him to make preparation therefor. We do not think this ruling of the court was material error. (Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492.)
The plaintiff was permitted to testify to the contents of a letter which she' said her husband received from his father, the defendant. This is alleged to be error. The plaintiff found the letter on her husband’s desk and read it, after which she replaced it upon the desk. She did not see it afterward. When they moved out of the house she made a thorough search but was unable to find it. We think this evidence was properly admitted. The letter was not in her possession or under her control. It was presumably in the possession of her husband. She could not make a witness of him and compel him to produce it. She was in a position where the letter would be unavailing to her if she were not permitted to state its contents. If it had been shown that the letter was destroyed this objection probably would not have been made. The same reason exists here for the admissibility of its contents —she was unable to produce the letter.
The defendant also complains of the admission in evidence of his acts prior to and after the parties actually separated. The plaintiff fixes this date at February 24, 1905. It is not alleged that the defendant accomplished the act complained of in one day, nor is it reasonable to suppose that it could be done within such a short period. A long and persistent course of conduct, consisting of many different transactions, which would be competent and material testimony, might be required. The evidence here objected to occurred within less than a week prior to the actual separation, and within two days thereafter. Especial complaint is made on account of the admission of a conversation had by a neighbor with the defendant on February 26, which it is claimed was after the separation. In fact, however, the separation had not become final at that time. They last slept together February 23, but were otherwise together about the house and premises until after the sale on the 24th. The plaintiff was still hopeful that a separation would be averted, and at or about the time the conversation objected to occurred she made a last appeal to her husband to remain with her. The conversation was admissible evidence against the defendant without reference to when it was made. It was a direct admission of the acts charged against him. The witness said:
“I asked Mr. White if they had quit living together —that is, Charles L. White and his wife — and he said they had quit; he said, ‘we have stood it as long as we could;’ he said that they got her and him to move down there to get them away from her folks, and he said they had followed them down here, got down to Frankfort, and he said they even went so far as to check Charley’s money out for her folks while he was out there at home visiting, and he said ‘we could not stand it any longer.’ He said he told Charley, ‘let’s come back home and see if you can’t start right,’ and that ended it.”
There was other evidence of the same import. We do not understand that an admission like this should be excluded because made after the act has been accomplished.
Further complaint is made of the court for permitting the plaintiff to describe the actions and manner of her husband and his father during a conversation had by them in the dooryard, beyond her hearing but within her view. She described the defendant as gesticulating while talking, “as though he was very angry,” and her husband as standing quietly with his head down, “as though he was crying.” This is said to be objectionable because stating a conclusion and expressing an opinion. As no part of the conversation was heard we are unable to see how the testimony could have been prejudicial, even if erroneous. If the attitude of the parties was material, the evidence thereof was properly given; so, in any event, no material error can be predicated thereon.
Objection is also made to evidence of the plaintiff in which she stated that about December 25 the defendant made improper advances toward her, which she repelled, whereupon he threatened to make her regret her conduct. -This is criticized as being immaterial and not tending to prove any averment in the petition. The petition does allege that about this date the defendant conceived an intense dislike for the plaintiff. This evidence tends to sustain that allegation, and also to show a motive for the alleged desire of the defendant to cause the plaintiff and her husband to separate. We cannot .say that, its admission was erroneous. (Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492.)
It appears that defendant’s father, after plaintiff’s marriage and before the acts complained of, died leaving a large estate to the defendant and his three children, and by a settlement between the legatees the defendant became the owner of an estate worth from $40,000 to $50,000. As a part of the influences used by him to cause his son to abandon plaintiff, he threatened to disinherit him if he remained with the plaintiff. Evidence to this effect was admitted over the objection of the defendant. Its admission is justified upon the ground that the financial ability of the defendant is generally admissible in cases where exemplary. damages are permissible (12 A. & E. Encycl. of L. 47; Beck v. Dowell, 111 Mo. 506, 20 S. W. 209, 33 Am. St. Rep. 547; Coleman v. Allen, 79 Ga. 637, 5 S. E. 204, 11 Am. St. Rep. 449), and also for the purpose of showing the weight of influence which such a threat might have upon the conduct of the plaintiff’s husband. In actions of this kind exemplary damages may be awarded (Beck v. Dowell, supra; Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492), and such damages were allowed in this case. We think the evidence was properly admitted.
There are other objections made to the introduction of evidence, on the part of the plaintiff, of the same general character as those mentioned, but after examination thereof we do not find that error was committed and they need not be considered further.
The jury returned special findings of fact, a part of which read:
“ (5) Ques. Do you find from the evidence that the husband of the said plaintiff separated from the plaintiff because of the advice and counsel of the defendant? Ans. Yes.”
“(7) Q. If you find in favor of the plaintiff and allow her any damages, state what amount you allow her for the loss of the society of her husband. A. $100.
“(8) Q. If you find in favor of the plaintiff, what amount, if any, do you allow her for the loss of support? A. $1700.
“(9) Q. If you find in favor of the plaintiff,' what amount, if any, do you allow for mental anguish and injury to her feelings? A. $100.
“(10) Q. If you find in favor of the plaintiff, what amount, if any, do you allow for exemplary or punitive damages? A. $100.
“(11) Q. If you answer question No. 5 in the affirmative, was not such advice and counsel given and offered to the husband of the plaintiff by the defendant on account of his desire for the welfare and happiness of his son? A. No.
“(12) Q. If you answer question No. 5 in the affirmative, was such advice and counsel on the part of the defendant given with the wilful and malicious intent on his part to take away the plaintiff’s husband from her? A. Yes.”
From these findings it appears that the defendant maliciously alienated the affections of the plaintiff’s husband and caused the separation.
Complaint is made of the exclusion of evidence offered by the defendant tending to show the general reputation of the plaintiff for chastity at the time of the marriage. It is not alleged in the answer that the separation was caused by this fact, or even that it had ever come to the knowledge of the plaintiff’s husband, nor did the defendant offer to show that this reputation had any influence whatever in causing the estrangement, and no evidence was offered which would justify such an inference. On the contrary, the testimony shows that the young couple lived happily together until the acts averred in the petition occurred. However unchaste a young woman may be before her marriage, if she and her husband afterward live together in peace, affection and marital happiness a third person cannot invoke her past conduct as a defense for maliciously wrecking the home and destroying her happiness. The evidence could have no legitimate purpose in the trial of the case, and was properly excluded.
Several other questions were contained in the brief and argument of counsel, but we think they have been covered by what has already been stated and will not consider them further.
Each special finding of fact returned by the jury was assailed by a motion to set it aside as not supported by the evidence, and also by the motion for a new trial. These motions were denied. They are therefore binding here on all the facts involved.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In this case it is claimed the district court erred in placing the burden of proof upon the defendant and in sustaining a demurrer to his evidence.
The action was brought by a landowner to quiet title against an oil lease which it was claimed had been forfeited. Instead of being in the short statutory form the petition stated all the facts. The answer set up an affirmative defense, which was denied by the reply.
The trial was by the court, without a jury. The evidence introduced by' the defendant extended to every fact in controversy. It covered fully the question of possession, the conduct of each party under the lease, all the transactions between the parties, and all the circumstances pertinent to their relations. Therefore the case is governed by the decision in McCormick v. Holmes, 41 Kan. 265, 21 Pac. 108, the third paragraph of the syllabus of which reads: “It becomes immaterial upon whom the burden of proof rests when all the evidence concerning the transaction inquired into is introduced.”
The demurrer to the evidence was rightfully sustained. The oral agreement whereby for a consideration paid monthly in cash the defendant was permitted to discontinue the development of the property for a time was terminated by the defendant’s resuming work in 1901. The agreement never was renewed, and under the terms of the lease a cessation of work for more than ten days in any month put an end to the defendant’s rights. The check of $20f on October 22, 1904, was not given under any contract for the suspension of operations, and could not save a forfeiture. If it were to be allowed the effect of authorizing a delay of two months the lease was still subject to cancelation on account of its breach after the lapse of that time. None of the excuses offered for the defendant’s dilatory conduct was sufficient to justify it.
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The opinion of the court was delivered by
Graves, J.:
The plaintiff in error presents two questions: (1) Does section 322 of the code (Gen. Stat. 1901, § 4770), concerning transactions had with deceased persons, apply to corporations? (2) Will injunction lie to prevent a naked trespass to realty?
The school district, to show the transaction with David Ross, used as witnesses the district officers with whom Ross had conversations at and about the time the district accepted and took possession of the new site. Some of these witnesses were officers of the district when the transaction occurred, and others were its officers at the time of the trial. It is urged that these witnesses were all incompetent, under the provisions of section 322 of the code, which reads:
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from siich deceased person.”
Statutes which exclude persons from testifying will be strictly construed in favor of the witness. Classes of persons not named in the statute will' not be excluded by implication from testifying, even though the reasons therefor may seem as strong as those which apply to the persons expressly designated. (30 A. & E. Encycl. of L. 983; Wootters v. Hale, 83 Tex. 563, 19 S. W. 156.) Our law excludes the “party” only. In many states having a similar statute this word has been defined to mean a party to the suit in its strict legal sense. In the case of Potter v. National Bank, 102 U. S. 163, 26 L. Ed. 111, Mr. Justice Harlan, in construing a statute substantially the same as this, said:
“The proviso of section 858 excludes only one of the classes described in its first clause — those who are, technically, parties to the issue to be tried — and we are not at liberty to suppose that congress intended the word ‘party,’ as used, in that proviso, to include both those who, according to the established rules of pleading and evidence, are parties to the issue, and those who, not being parties, have an interest in the result of that issue.” (Page 164.)
In the case of Merchants Bank v. Cook, 21 Mass. 405, it was said:
“The word party then is unquestionably a technical word, and has a precise meaning in legal parlance. By it is understood he or they by or against whom a suit is brought, whether at law or in equity; the party plaintiff or defendant, whether composed of one or more individuals, and whether natural or legal persons.” (Page 411. See, also, Cullen v. Woolverton, 65 N. J. Law, 279, 47 Atl. 626.)
In the following cases it has been held that statutes of this kind do not apply to officers or agents, of corporations: City Savings Bank v. Enos, 135 Cal. 167, 67 Pac. 52; Merriman v. Wickersham, 141 Cal. 567, 75 Pac. 180; Flach v. Gottschalk Co., 88 Md. 368, 41 Atl. 908, 42 L. R. A. 745, 71 Am. St. Rep. 418; N. J. Trust Co. v. Camden Safe Co., 58 N. J. Law, 196, 33 Atl. 475; In re Will of Bruendl, 102 Wis. 45, 78 N. W. 169.
This suit was brought by the school district as plaintiff. None of the witnesses called by it was a party to the action. The most that can be said against their competency is that as taxpayers of the district they were interested in the result of the suit, but interest does not now render a witness incompetent. We think the trial court properly permitted them to testify.
As a general rule, injunction will not lie to restrain a naked trespass. The reason of the rule is that an action for damages ordinarily will afford an adequate remedy, and will give each party the opportunity to have his rights adjusted by the verdict of a jury. If, however, the trespasser is insolvent, or for any other reason an action at law would be inadequate, injunction will be granted to restrain even a naked trespass. Where the injuries inflicted by a trespass are of a continuing kind, or are injurious to growing trees or other property for which damages would not compensate, injunction will lie. (28 A. & E. Encycl. of L. 595; 16 A. & E. Encycl. of L. 361; Webster v. Cooke, 23 Kan. 637; Godfrey v. Black, 39 Kan. 193, 17 Pac. 849, 7 Am. St. Rep. 544.) An adequate remedy at law which will preclude proceedings in equity must be equally complete, efficient, practical and prompt with the remedy in equity. (Keplinger v. Woolsey, 4 Neb. [unofficial] 282, 93 N. W. 1008; Beardsley v. Bennett, 1 Day [Conn.], 107; State ex rel. v. Guinotte, 156 Mo. 513, 57 S. W. 281, 50 L. R. A. 787.)
Applying these principles to this case, we find the school district annoyed by a hostile party claiming to be the owner of premises which it has peaceably occupied as owner for many years. This claimant removed the fence which enclosed the schoolhouse site, removed the outbuildings and rendered them unfit for use, plowed the land and planted it in corn, and openly proclaimed his ownership of the premises. He served notice upon the district to remove its improvements and surrender the premises to him; and further, by a hostile attitude toward the district, intimidated the people so that a public school could not be satisfactorily held there. In addition to this, the claimant, without legal proceedings, asserted the right to continue in the actual possession of the land, and to continue to plow and cultivate the land, and thereby prevent its use by the district for school purposes. No mere action for damages would give the district an adequate remedy. It was entitled to immediate relief from disturbance and annoyance, in order that school might be continued until the rights of the parties could be peacefully determined by proper legal proceedings. Such a suit was* commenced and a temporary injunction was granted by which the district was protected pending the suit. We think this was highly proper under the' circumstances.
We are unable to find that the court committed material error in any of the matters of which the plaintiff in error complains, and therefore its judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The negligence of the defendant company in failing to sound the whistle on approaching the crossing was found by the jury. The only matter that we deem it necessary to comment upon is the alleged contributory negligence of the plaintiff in failing to look for an approaching train. After he left his field, and while driving his herd east along the road parallel to the track, he stopped and looked and listened several times; and when he reached the point 400 feet west of the crossing he diligently looked along the track. From that point to the crossing his view to the west was unobstructed 'for half a mile. He was assisted by a suitable person in managing and driving his cattle, and was having no difficulty with them, and there wás nothing to prevent his looking for a train. But he did not look after leaving that point until his attention was drawn to the coming train by its rumbling, when he was 100 feet from the crossing and the head of his herd was just going upon the track. He then made all possible effort to save his cattle, but he could not, for want of time.
In these circumstances the rule announced in U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529, applies. The plaintiff ought to have looked and listened within the 400 feet before driving his cattle upon the track, which itself was a warning of danger. He was familiar with the place and knew the peril, but still neglected to take the ordinary precautions after stopping at the point mentioned. In Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6, it was held:
“A person familiar with a railroad-crossing, where she was injured, and who knew that a train was due, looked for a train when she was on a road 111 feet away from the crossing, and afterward drove the distance named on a road parallel with the track and upon the crossing without looking for a train, when, if she had looked at any point within 100 feet of the crossing, or when she was about to cross, she could have seen the coming train and averted the injury. Held, that she was guilty of contributory negligence.” (Syllabus.)
The plaintiff in that case had looked for a train when she was 111 feet from the crossing, but not afterward, the view being unobstructed, and she was held to be guilty of contributory negligence. The plaintiff in that case knew that a train was due; while in this case the train that inflicted the injury was late. Mr. Entsminger, however, appears to have been sensible of the danger, for he watched for a train at other points, and it will not do to say that a person in such circumstances need only look and listen at the times when regular trains are due. It is common knowledge that trains are often run that are not upon schedule time, and that regular trains are often delayed. The plaintiff'was approaching a public crossing of a great line of railway, and was thereby warned of danger; his failure to use his senses is not excused by the fact that the train was late.
In view of the peril to others as well as to the one whose person or property is injured, the rule requiring vigilance on the part of persons at railroad-crossings, so often announced by this court, cannot be relaxed. (Railroad Co. v. Willey, 57 Kan. 764, 48 Pac. 25; Young v. Railway Co., 57 Kan. 144, 45 Pac. 583; Bressler v. Railway Co., 74 Kan. 256, 86 Pac. 472; Railway Co. v. Wheelbarger, 75 Kan. 811, 88 Pac. 531.)
As the findings of the jury state the facts upon which the plaintiff’s negligence appears, the judgment is reversed, with directions to the trial court to render judgment in favor of the railway company. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Edward Bennett and Nettie Seyster, children of Orrin E. Bennett, to recover an- undivided! one-half interest in a tract of land lying near the city of Concordia, and they asked for partition as well as rents and profits. The tract was formerly owned by D. W. Williams, who conveyed an undivided one-half interest to Orrin E. Bennett, and together they operated a brewery on the land until 1881, when the prohibitory law went into effect. About that .time Williams removed to Missouri, while Bennett remained at Concordia and for a few years gave the property some attention. In a foreclosure proceeding against Williams a sale of the land was decreed, and the sheriff sold the same to the First National Bank of Concordia, conveying the property by a deed dated May 5, 1892. On December 21, 1900, the bank executed a deed purporting to convey the property to Renard Brothers, who are named as defendants in this action.
The theory of the action is that Bennett’s interest in the tract had never been sold or transferred by any of the prior instruments or proceedings; that Bennett was dead and that his interest had passed to his children, who were his only heirs. When plaintiffs had introduced their testimony, which was largely devoted to an attempt to show the death of Orrin E. Bennett, its sufficiency was challenged by a demurrer to the evidence, which the court overruled, and at the end of the trial it was adjudged that Edward Bennett and Nettie Seyster each owned an undivided quarter interest in the property in question, the rents and profits were determined, and the partition of the property directed.
The only claim of the Bennett children to a share in the land in controversy is based on heirship, or inheritance from their father, and it therefore devolved upon them to establish his death. There was no direct proof of death as a fact, and to supply this lack they offered testimony which was intended to raise the presumption of death. The controlling question is, Were the circumstances proved sufficient to end the presumption of life and start the presumption of death? If not, then the demurrer to the evidence should have been sustained, as counsel for the Renard Brothers contend. When the action was brought Bennett had been absent from Concordia for more than fifteen years, but his mere absence from that city, although it extended for more than seven years, did not create the presumption of death. That presumption cannot arise from a change of residence or a removal from the place where the family or relatives reside. It is the unexplained absence from the absentee’s last known residence or place of resort for the seven-year period that gives rise to the presumption. Nor is it enough that he has been absent and unheard of for this period, but the presumption can only arise after diligent and fruitless inquiry of persons and at places where news of him, if living, might likely be obtained.
The identical question was before the court in Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, 2 L. R. A., n. s., 809. Gerdom, an unmarried man, left his home in Kansas and went to California, where he obtained employment. After several letters to members of his family and some changes of location he ceased to communicate with them, and no tidings of him were received by his father or mother for more than seven years. He carried life-insurance in a fraternal society, which was claimed by beneficiaries, who insisted that he was- dead. It appeared that only a limited inquiry as to whether he was living had been made by them, his father being the only witness who testified on the subject, and it was shown that he had not inquired of all the people and at all the places where news of the son, if living, might have been obtained. On this state of the case it was held that it was not a question as to whether there was some testimony to support the finding of death, but it was rather whether facts indispensable to start the presumption of death had been produced. Mr. Justice Burch, in a carefully prepared opinion, in speaking of the missing party and the circumstances which might give color to his absence, said that he “was a young, un married man, in good health, with the wander-lure upon him, trying his fortunes in a distant state, able to make his own way in the world, but whose circumstances had become such, or whose disposition toward his relatives had so far changed during his absence from home, that he no longer advised them, as he had been in the habit of doing, of changes in his affairs, of his plans, and of his movements from town to town.” (Page 396.) In treating of the inquiry which should be made and the preliminary proof necessary to start the presumption of death it was said:
“In order that the presumption of life may be overcome by the presumption of death there must be evidence, not merely of absence from hqme or place of residence for the period of seven years, but there must be a lack of information concerning the absentee on the part of those likely to hear from him, after diligent inquiry. [Quoting authorities.] It is conceived, however, that the character of the inquiry, the persons of whom it must be made and the. place or places where it must be made are all to be determined by the circumstances of the case, with the obligation always upon the person who is to derive a benefit from the death of the absentee to exclude by the best evidence and with as much certainty as possible reasonable belief that he continues to live.” (Pages 396, 397.)
After referring to the fact that inquiry was not made of certain intimate friends with whom the absentee might have communicated the opinion proceeded:
“All those persons who in the ordinary course of events would likely receive tidings if the party were alive, whether members of his family or not, should be interrogated, and the result of the inquiry should be given in evidence, or the testimony of the parties themselves should be produced at the trial. . . . Any word received by any one who might naturally be expected to hear at any time within the seven-year period destroys the presumption of death, and unless the resources of this field of information have been exhausted an allegation of death cannot successfully be sustained.” (Page 398.)
The principles applied in that case control the present disposition of the one before us. While Bennett has been absent from Concordia for a long period of time, it is clear that there has not been the diligent inquiry for him essential to the presumption; that is, the inquiry has.not exhausted “all patent sources of information, and all others which the circumstances of the case suggest.” (Modern Woodmen v. Gerdom, 72 Kan. 391, syllabus.) He took his departure from Concordia about 1890, leaving a family consisting of a wife and three children, one of whom has since died, and also an aged mother. A married sister of his lives in Concordia, another married sister in Kansas City, Mo., and a half-brother near Frankfort, Kan. It is in testimony that he had a passion for gambling, one of the witnesses stating that “that is really what he lived for,” and that he gambled whenever “he had the money to gamble with.” Before he left he had become estranged from his wife, and, as one witness expressed it, he “wanted to get away from the family.” His relations with his mother were friendly, but he did not want to live in the same town with his wife. He went west, and within six months after leaving he wrote a letter to his mother from a town on the Pacific coast stating that he was in good health and was just about to sail on a vessel from that port to one in Alaska. About the same time he wrote a similar letter to his son William, who afterward died in the Philip7 pines. His wife, who died in 1894, never received a letter from him, nor did he ever write to his surviving children, Edward and Nettie.
There was a rumor that he had been seen in a town in the state of Washington by some one who was not within speaking distance, and his sister wrote a letter •addressed to him at that place but received no reply, and, although there was a return address on the envelope, the letter was never returned to her. When his mother died, which occurred about a year' after he left Concordia, notices of action to be taken in the probate court toward a settlement of her estate were published in the newspapers, and copies of these papers were mailed to him at the town where rumor said he had been seen. The sending of the letter and the newspapers was the extent of the inquiry made to find Bennett in his new home in the West. Rumors of his having been in Kansas City, Mo., reached some of the members of his family, but they did not appear to have any foundation. It does not appear that his children, who are claiming his property as an inheritance, ever made any effort to find their father. The testimony of his brother, who lives in Kansas, was not produced, nor was that of his sister who lives in Kansas City, Mo., nor of the brother-in-law, a former partner, who still resides at the last-named place. Moreover, it was not shown that any inquiry was made at the place from which the letters to his mother and son were written. His letter to his mother gave the name of the place on the coast, which the witnesses could not remember, and that furnished a clue from which those interested might have learned something of him — the name of the ship upon which he sailed, as well as his destination and subsequent domicil in Alaska. It does not appear that any inquiry was made in Alaska, nor any effort to learn from sailing lists, public records, or other sources of information, what had become of the absentee.
According to his own statement his departure from his Kansas home was final and permanent. It was a case of a change of domicil, and therefore little can be based upon the fact that he did not return to Concordia. Since .the removal was permanent and without an intention to return, a more extended inquiry should have been made. It should have extended to the new home. It is absence from his last known domicil that gives rise to the presumption. It was said of the absentee in the Gerdom case, supra, that “there is nothing to indicate that a purpose to return was bound up with his leaving.” (Page 399.) Here there was an avowed purpose to stay away from Concordia, and in the Tetters received from him there was no hint of an intention to réturn. It is quite unlike a case where there is a sudden disappearance by one of good habits, who is successful in business, is respected by his neighbors, and has a good home and pleasant relations. There were no attachments to draw Bennett báck to Concordia — no business interests, and the only property left was encumbered and unprofitable.
There is no proof of illness, disease, dangerous occupation, or disposition to suicide, nor yetthat he had been exposed to any specific perils likely to have ended his life, to support the presumption. On the other hand it does appear that he was a healthy, vigorous man, in middle age, as there was testimony that he was from 55 to 59 years of age at the time of the trial, and besides there is an absence of any special circumstances inconsistent with the continuation of life. The patent defect in the testimony, however, is the lack of diligent inquiry. To establish a death and the right of inheritance plaintiffs rely only upon the presumption arising from absence. The inference of death to be derived from unexplained absence is, at most, only a presumption, and it cannot arise unless the absence remains unexplained after diligent inquiry is made of the persons and at the places where tidings of the absentee, if living, would most probably be had. (Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, 2 L. R. A., n. s., 809; Iberia Cypress Company v. Thorgeson, 116 La. 218, 40 South. 682; Barr v. Chapman, 30 Weekly Law Bulletin, 264; Burnett et al. v. Costello, 15 S. Dak. 89, 87 N. W. 575; Hitz v. Ahlgren, 170 Ill. 60, 48 N. E. 1068; Francis, Appellant, v. Francis et al., 180 Pa. St. 644, 37 Atl. 120, 57 Am. St. Rep. 668; Posey v. Hanson, 10 App. Cases, D. C. 496; Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S. W. 1060; 2 Greenl. Ev., Lewis’s ed., § 278a; 13 Cyc. 301.)
Diligent inquiry, as held in the Gerdom case, required the interrogation of the members of Bennett’s •family, with whom he might have communicated, but it appears that there was a failure to produce the testimony of a sister and a brother which was accessible and could easily have been obtained. The rule of that case also required that reasonable inquiry should have been made at the place on the Pacific coast, where Bennett was when the letter to his mother was written, and also at his last domicil or places of Resort in Alaska, which might have been ascertained .by inquiry. Until diligent inquiry is made and the sources from which information is likely to be obtained have been exhausted the presumption of death does not arise, and hence there was -error in overruling the demurrer to plaintiffs’ evidence.
The judgment is therefore reversed and the cause remanded for further proceedings.' | [
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The opinion of the court was delivered by
Smith, J.:
Joseph Mundell brought an action in the district court of Anderson county to recover damages for the loss of the society and services of his wife and for his expenses for nursing and medical attendance received by her in consequence of a fall upon a sidewalk of the city of Greeley, Kan. An adverse judgment having been rendered against him, he seeks a reversal on the ground of trial errors.
In his petition the plaintiff set forth that his wife, Hannah F. Mundell, had recovered a final judgment against the city for the injuries resulting to her from the same accident upon which he predicated his claim, and, upon the trial of his‘case, he offered in evidence the record of this judgment as tending to establish his cause. This proffered evidence was excluded by the court, and the ruling thereon seems to be the principal ground of complaint. It is not contended that the wife’s judgment is an estoppel or in any way conclusive against the city, but that, as the city has once had a trial upon the same issue and was defeated therein, the judgment is some evidence of defendant’s liability for the injury and the incident effects thereof.
It is hardly necessary to say that The State v. Mosley, 31 Kan. 355, 2 Pac. 782, which is cited and in which the record of the conviction of the principal was held to be proper evidence of the fact of the-principal’s guilt on the trial of an accessory, is not in point here. The record of the judgment was properly' excluded. The husband is in no sense a privy to the judgment in favor of- his wife in this case. The husband and his wife having brought separate and successive actions against the defendant city for damages for personal injuries sustained by the wife, the judgment in her action is not evidence in any way affecting his right of recovery. (23 Cyc. 1263, note; Selleck v. The City of Janesville, 104 Wis. 570, 80 N. W. 944, 47 L. R. A. 691, 76 Am. St. Rep. 892; Walker v. Philadelphia, 195 Pa. St. 168, 45 Atl. 657, 78 Am. St. Rep. 801.)
The only other claim of error which is deemed worthy of special comment arose as follows: A witness for the plaintiff, after having given some description of the sidewalk where the accident to Mrs. Mundell occurred, was asked:
“Ques. Did you notice the boards in that condition before that? Ans. Yes, sir; it throwed me down; one of them throwed me down one day;, that is what made me notice it.”
The defendant objected to the answer as incompetent, and moved to strike it out. The court allowed the motion.
On the authority of City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933, it must be said that upon the same conditions being shown to exist evidence of prior accidents at the same place is relevant in this class of actions. But in this case the condition of the sidewalk at the time of the prior accident was not disclosed except that there was a loose board which tripped up the witness. Mrs. Mundell’s injury also occurred in a similar manner. There was no evidence as to the length of time between the accidents or as to whether boards in .the walk had been permitted to remain loose during the interval. The condition of the walk at the time of the injury to Mrs. Mundell was quite fully detailed to the jury, and we cannot say that even if the evidence of the prior accident was admissible any prejudice to the plaintiff resulted from striking it out.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Henry Denton, as administrator of the estate of Thomas M. Haekett, deceased, brought this action against the city of Atchison to recover on a street-improvement contract. The work was to be done at the rate of ninety cents per linear foot, for which Hackett was to receive bonds issued against the property abutting on the improvement, and was to be paid only out of the money in the city treasury collected from assessments made in 1885.
Upon the completion of the work, in 1884, bonds were issued, but the assessment of abutting property was enjoined at the instance of the property owners; and these suits, in which the plaintiff was a party and wherein injunctions were granted, were dismissed in 1893. No further steps were taken by the city or the plaintiff until 1897, when the plaintiff brought an action against the city to recover upon the claim involved in the present action. That action pended until 1899, when it was dismissed by the plaintiff without prejudice to a future action. Before May 17, 1900, a similar action was brought by the plaintiff against the city, and it remained pending and undetermined until April 26, 1904, when it was dismissed by the court because of the failure of the plaintiff to appear and prosecute the same. On April 24, 1905, more than twenty years after the work was done, this action was brought, but the trial court held that the delay was fatal and that it was barred by the statute of limitations.
It is contended by plaintiff that no statute of limitations could run against his cause of action while the injunction suits of the property owners were pending. These were dismissed, as we have seen, in 1893, and it is claimed that plaintiff’s original action, which was brought against the city within five years of that time, was commenced in good time. That suit was dismissed in 1899 and a new action was instituted within one year- from the dismissal, and the contention of the plaintiff is that it, too, was commenced in good time. The second suit was dismissed in 1904 and within one year after the dismissal the third suit was begun, and it is insisted that as it was brought within one year after the dismissal of a live action it is still in time. Assuming that the operation of the statute of limitations was postponed by the injunction suits, and that the plaintiff’s first action against the city was brought within the statutory period, it would follow that the second action, instituted as it was within one year after the dismissal of the first, was properly brought under section 23 of the civil code, which reads:
“If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.” (Gen. Stat. 1901, § 4451.)
Does that section authorize repeated - new actions within one year after the discontinuance of the preceding one? If it does, then a cause of action may be kept alive and litigation upon it prolonged indefinitely. Such an interpretation of the section is not warranted. In effect the section provides that any action commenced before the statute of limitations has run and disposed of otherwise than upon the merits after the statute has run may be brought anew within one year after such disposition. Nothing in this saving clause justifies the interpretation that a new action may be brought more than one year after that disposition. The general periods of limitation are not changed by this provision, but it is intended to give a party who within the proper time brought an action which was disposed of otherwise than upon the merits after the statute of limitations had run a year of grace in which to reinstate his case and obtain a determination upon the merits. It is a. substitute for the common-law rule of “journeys account,” in which a plaintiff whose writ was abated for some matter of form which did not go to the merits might have a new writ within a reasonable time, computed by the number of days which the plaintiff must spend in journeying to reach the court. Under the rule of our statute, if the dismissal occurs after the time limit has expired the plaintiff has one year from that dismissal to bring a new action. To get the benefit of this extension two things are essential: First, the action must have been commenced within due time; and, second, there must have been a failure otherwise than upon the merits after the general limitation of time had expired. Only one year after such failure is given to bring a new action. A new action begun more than one year after such failure, whether it was the second or third action, would be an enlargement of the time fixed by statute and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. The statute is remedial, and should be liberally construed, with a view of carrying into effect the purpose of the legislature; but a liberal construction does not warrant an addition to the period fixed by statute. In Shively v. Beeson, 24 Kan. 352, in speaking of this provision, it was said that “no general prolongation of the right of action is intended.” (Page 357.)
The case of McWhirt v. McKee, 6 Kan. 412, referred to by counsel, does not sustain his contention. The point there decided was that the cause of dismissal, if it did not dispose of the merits, was immaterial, and the question now under consideration was not mentioned. It will be observed, however, that while there had been three suits brought upon the same cause of action what is termed the second one was brought before the statute of limitations had run, and hence it was not preserved to the 'plaintiff by section 23 of the civil code. It may be properly treated as the original action, which was dismissed after the limitation had expired. The third suit was brought within one year after that dismissal, and hence was in time.
As tending to sustain the view taken reference is made to the following authorities: Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22; Robinson v. Merchants’ & Miners’ Trans. Co., 16 R. I. 637, 19 Atl. 113; Foote v. Pfeiffer, 70 Mich. 581, 38 N. W. 586; Humphrey v. Carpenter, 39 Minn. 115, 39 N. W. 67; Bagley et al. v. Stephens, 80 Ga. 736, 6 S. E. 695; Adams v. Holden, 111 Iowa, 54, 82 N. W. 468; Wetmore v. Crouch, 188 Mo. 647, 87 S. W. 954.
It is clear that the plaintiff’s right of action on the first count of his petition, as well as on the assessment bonds, set up in the subsequent counts, was barred by the statute of limitations.
The judgment of the district court is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Each of the appellants was proceeded •against upon an accusation in the district court charging contempt of court in violating a temporary injunction allowed in a suit brought by the state to enjoin a nuisance under the prohibitory law. Upon conviction the cases were appealed to this court, where the judgments were affirmed. Subsequently counsel for the state moved for an allowance for attorney’s fees in this court. The same question is therefore involved in all of the cases, which is: whether the statute authorizes the allowance of an attorney’s fee in such cases in this court. Section 1 of chapter 338, Laws of 1903, reads as follows:
“In case judgment is rendered in favor of the plaintiff in any action brought under the provisions of this section, the court rendering the same shall also render judgment for a reasonable attorney’s fee in such action in favor of the plaintiff and against the defendants therein, which attorney’s fee shall be taxed and collected as other costs therein, and when collected paid to the attorney or attorneys of the plaintiff therein.”
A similar question arose in West v. Lumber Co., 56 Kan. 287, 43 Pac. 239, which was whether an attorney’s fee in this court could be allowed in a suit brought by an artisan or day laborer to foreclose a mechanic’s lien. The statute construed at that time was section 638 of the code of civil procedure, which reads as follows :
“In any action brought by any artisan or day laborer to enforce any lien under this act, where judgment be rendered for plaintiff, the plaintiff shall be entitled to recover a reasonable attorney’s fee to be fixed by the court, which shall be taxed as costs in the action.” (Gen. Stat. 1901, § 5125.)
It was held that the provision applied only to the trial court and did not authorize an allowance for attorney’s fees in this court. The fact that this section of the statute was subsequently, in Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640, 64 L. R. A. 325, held to be unconstitutional because it denied persons within the jurisdiction of the state equal protection of the laws does not, we think, destroy the force of the former decision as a precedent. The language of the s’ection allowing an attorney’s fee in a suit brought by an artisan or day laborer to enforce a mechanic’s lien is in all respects similar to that used in the statute under consideration. Each statute provides that where judgment is rendered in favor of plaintiff in an action brought under its provisions an attorney’s fee shall be allowed, which shall be taxed as costs in the action. The question is not discussed in West v. Lumber Co., supra. The opinion merely declares that section 638 of the code does not apply to this court.
The same question was before the court in K. P. Rly. Co. v. Wood, 24 Kan. 619, which was an action to recover damages for stock killed by the railway company. The act of 1874, under which the action was brought, provided that the owner might recover the full value of the animal killed, together with a reasonable attorney’s fee for the prosecution of the suit, and also that it should be the duty of the court or jury where the judgment or verdict was in favor of plaintiff to make a finding of the amount allowed for an attorney’s ‘fee. A motion was filed by defendant in error asking the court to tax against the railway company a fee for services in this court. In the opinion it was said:
“On a motion so filed therefor defendant in error asks us to tax against the railroad company an additional amount, as fees of counsel in this court. This motion will be overruled. The statute gives no attorney’s fee for defending actions, and no new judgment is recovered in this court.” (Page 626.)
The jurisdiction of the supreme court in actions of this kind is purely appellate. The only judgment it can render is to affirm, modify or reverse the judgment rendered in the court below. It is not a judgment rendered in favor of plaintiff in the language of the statute, but one which merely affirms, modifies or reverses the judgment which was rendered below in favor of plaintiff in the action. The appellant in each case was convicted of a contempt of the district court, not of a contempt of this court. And this court has no power to render any judgment in actions of this kind except the kind of a judgment it must always render on proceedings brought here on appeal or error.
Counsel for the state urge that the provision for the allowance of attorney’s fees in actions of this character w;as adopted by our legislature from the law of Iowa, and with it there was adopted the construction' placed upon the statute by the decisions of the Iowa supreme court, and we have been cited to a number of Iowa, cases holding that the statute there authorizes the 'allowance of attorney’s fees in the supreme court. We recpgnize the force of the rule that where one state adopts the statute of another it adopts the definite, known construction placed thereon by the courts of the other state, but we have held the rule to be subject to the exception that where such construction is contrary to the weight of reason or authority or is against the-general policy of our laws the construction will hot be followed. (The State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 L. R. A., n. s., 533.) Prior to the énactment of this statute the rule was announced by Mr. Justice Brewer in K. P. Rly. Co. v. Wood, supra, that a similar statute would not authorize the allowance of fees in this court.
There is, however, another reason which suggests, itself why the rule' cannot be applied. The Iowa statute was enacted in 1886, and our-statute followed in 1887. The earliest Iowa decision construing the statute to which we have been cited or which we have been able to find was rendered in 1889, in the case of Farley v. O’Malley, 77 Iowa, 531, 42 N. W. 435. The rule of adopted statutes only applies to the definite, known construction placed thereon by the courts of the state from which it is borrowed prior to its adoption. (26 A. & E. Encycl. of L. 700, 702; Myers v. McGavock, 39 Neb. 843, 863, 58 N. W. 522, 42 Am. St. Rep. 627.) In the latter case it was said that the rule has no application when such construction is not placed on the statute until after its adoption. (To the same effect see Insur ance Co. v. Ross Lewin, 24 Colo. 43, 51 Pac. 488, 65 Am. St. Rep. 215.) This limitation of the rule is also recognized in A. T. & S. F. Rld. Co. v. Franklin, 23 Kan. 74, 80, and in Holden v. Garrett, 23 Kan. 98.
It is urged by counsel for the state that it is highly proper that the statutes should confer this power upon the supreme court in order to maintain the dignity of the courts and properly punish contempts, and that to construe the statute as not granting this authority will result in embarrassments and delays in the enforcement of the prohibitory liquor law. These suggestions might have considerable force if addressed to the legislature, but they furnish no reason why we should read into the statute a provision which the legislature has not placed there. We are satisfied that there is no statutory authority for the allowance of these fees, and the motions are denied. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The purpose of the main proceeding is to procure a reversal of a final judgment for $1225.12 recovered by J. A. Mosher against the Chicago, Rock Island & Pacific Railway Company for the alleged negligent burning of fruit and forest trees, hedges, grass, fodder, lumber, posts, and a wagon. The railroad runs diagonally through Mosher’s farm, on which there were growing many fruit and forest trees. On November 15, 1905, a fire, which started on the right of way shortly after th.e passing of a train, ran through Mosher’s orchard and fields, burning trees and other property. There were several grounds of negligence charged in the petition, but the jury found that the negligence of the i-ailroad company, which caused the loss, consisted in its failure to keep its right of way clean and clear of combustible material, which finding was based upon-the allegation that the company had carelessly allowed dead and dry grass, weeds and other combustible material to accumulate and remain on its right of way; that the fire escaped from its locomotive and ignited combustible material on the right of way, and thence spread and burned continuously to the plaintiff’s land, destroying his trees and other property. The answer was a general denial, and an averment that the plaintiff was guilty of contributory negligence in allowing dry grass and weeds to accumulate on his premises, thus inviting and facilitating the spread of the fire and the destruction of his property.
The first complaint here is that Mosher, who was a witness for himself, was permitted, over objection, to give his opinion as to the result of the fire upon his trees and to answer that the effect was to kill them. Later he was asked to state the result to a living tree-if a fire burned it enough to heat the sap. He answered: “It kills it. It will string along sometimes and leave out and string along for a year or two, but it finally dies. It might just as well be taken up and got out of the way.” It is insisted that the effect of fire on trees is not a question of science or skill or one-which is the subject of opinion evidence. The trees, it appears, were only partially consumed by the fire. Some of them were burned much more than others.. The effect of a partial burning on the life and growth, of a tree involves peculiar knowledge and experience.. Those who have had experience in growing trees and have observed the injury to trees resulting from a running fire through an orchard or nursery and the-extent which they may be burned and still live, and also, the effect if the sap of trees is heated with fire, are competent to give an opinion as to the effect of' fire upon trees, and any one having experience and knowledge of this character is an expert. It cannot be assumed that jurors are qualified, either by experience or observation, to form an opinion as to the extent of the injury resulting from a partial burning of trees. Mosher was shown to have had not only experience in growing forest and fruit trees and hedges, but he had had much experience with burned trees and hedges, and had observed the effect which fire had upon them. In an Iowa case, brought to recoyer damages for the burning of a hedge and meadow, the-plaintiff, who had had experience with hedges and observed the effect of fire upon them, was not permitted to answer whether a fire would kill a green hedge like-the one involved in that case. The supreme court held it to be error, saying: “All jurors cannot be supposed to know the effect of fire on growing Osage orange hedges, and it was proper to show this by one experienced in that line.”. (Swanson v. K. & W. Ry. Co., 116 Iowa, 304, 310, 89 N. W. 1088.)
Exception is also taken to the admission of testimony-in regard to the value of the trees as a part of the farm, and it is contended that the evidence should have been confined to the market value of the trees or to how much the injury diminished the market value of the farm. It appears that the trees growing in Mosher’s orchard and burned ha„d no market value, but witnesses who appeared to be qualified testified to the value of such trees growing upon and as a part of the land. This character of testimony has been frequently received and its admission approved. In Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, where the burning of fruit and forest trees was in contest, testimony of a similar kind was admitted. The court sanctioned the rule, saying:
“Where a particular thing attached to the soil, and, therefore, a part of the realty, but which has a distinct value as such, susceptible of definite measurement, is injured or destroyed, the evidence in an action to recover damages therefor may properly be directed to the value of such specific thing as a part of the land, and, in actions of this kind, is ordinarily the best and most satisfactory evidence.” (Syllabus.)
(See, also, Railway Co. v. Arthurs, 63 Kan. 404, 65 Pac. 651; Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68; Railroad Co. v. Noland, 75 Kan. 691, 90 Pac. 273; Railroad Co. v. Owens, 6 Kan. App. 515, 50 Pac. 962.)
Objections are made to other rulings on the admission of testimony, but they are not deemed to be material. Although questioned, there appears to be sufficient evidence to sustain the findings and verdict of the jury.
Complaint is made of the refusal of the fifth request of the railway company for an instruction as to the burden of proof. The court in its charge instructed the jury correctly, stating that the burden of proof was upon the plaintiff. In the same connection the ■court advised the jury that when the plaintiff had shown by a preponderance of the testimony that the fire was caused by the operation of the defendant’s railroad, and the extent of the damages, it was prima facie evidence of negligence on the part of the defendant, and also instructed the jury as to the character and meaning of prima facie evidence.
There is no reason to complain of the refusal of the eighth request. It was of doubtful import, and, besides, the rule of contributory negligence, to which it related, was given to the jury in the tenth instruction, where among other things it was said:
“It is the law that even though you should find from the evidence that the defendant railway company was negligent in the operation of its line of road through the land of the plaintiff, and the plaintiff suffered damage thereby, still, if the plaintiff by any acts of negligence on his part directly contributed to the cause of the damages, life cannot recover. If you find from the evidence that the plaintiff used his land in question with a reasonable amount of care and prudence, that is, with such care and prudence as would be used by a reasonably careful and prudent man under such circumstances, and for the purpose for which his said land is adapted, and while so using the land the grass and other combustible matter accumulated which was consumed by the fire, this would not be contributory negligence which would prevent his recovery; but if on the other hand he failed to use such care and prudence as would be used by a reasonably careful and prudent man in handling his said land, and such want of reasonable care and prudence directly contributed to the cause of the damages which he has suffered, then he would not be entitled to recover.”
So far as the evidence shows it may be doubted whether there was any occasion for submitting to the jury the question of contributory negligence, but if there was in the testimony anything which afforded an excuse for submitting the question the defendant has no cause to complain of the instruction given. It comes fairly within the rule laid down in Walker v. Railway Co., ante, p. 32, and this authority answers other contentions made by the railway company. None of the errors assigned warrant a reversal of the judgment.
The second proceeding is based on an independent action brought under section 310 of the civil code (Gen. Stat. 1901, § 4758) to obtain a new trial. A motion for a new trial in the original case had been made and denied on February 3, 1906, and on that day final judgment was rendered. On January 9, 1907, the railway company filed its petition for a new trial, alleging that the burned trees and hedges which Mosher testified had been killed and for which he had recovered had been found, upon examination made in the summer of 1906, to have leaved out and to be alive and growing.' In support of the petition several witnesses testified that many of the trees for which there had been a recovery were not dead but alive, and were thrifty and' growing trees. In addition to-this a number of photographs were taken, from which it appeared that some of the trees and hedges were alive. After hearing, the evidence, and considering it in connection with that offered on the trial before the jury, the court denied the petition and refused to grant a new trial. Another case-made, embracing only the proceedings on the petition for a new trial, was prepared and settled, and on this a review of the' order refusing a new trial is asked. It is contended that the evidence produced on the petition is newly discovered, not cumulative, and that it justified the-granting of a new trial.
Counsel for Mosher challenges the right to review the order on the record as presented because it does not bring before this court all the testimony upon which the trial court acted. In passing upon the petition and the evidence produced under it it was proper for the trial court to consider the evidence received in the original trial in connection with the newly discovered evidence. In Sexton v. Lamb, 27 Kan. 432, it was decided that on a petition for a new trial the trial court is not concluded by the petition and proof in that proceeding, but may consider the same as affected by and bearing upon all the testimony and all the facts as developed upon the original trial. The supreme court of Nebraska, under a similar provision, held that when a new trial is sought upon a petition after the term in which the judgment was rendered, because of newly discovered evidence, the evidence on the original trial should also be presented, so that the court might determine whether the new evidence would probably change the result or whether the testimony was merely cumulative. In the same case it was ruled that “where a new trial is sought upon a petition filed after the term at which the judgment was rendered, the evidence on the trial as well as the newly discovered evidence must be set out in a bill of exceptions.” (O., N. & B. H. R. R. Co. v. O’Donnell, 24 Neb. 753 [syllabus], 40 N. W. 298. See, also, Overstreet v. Brown [Ky.], 62 S. W. 885.)
Here' we are asked to review the evidence upon which the trial court made its decision and yet only a part of it is preserved and presented in the record. The evidence on the subject in the original case which was considered by the court is not included in the •case-made, nor is it referred to or made a part of this record in any way. While the petition to obtain a new trial grows out of the original action, it is a new and distinct proceeding, begun by the filing of a pleading and the issuance and service of a summons as in other cases. To review the rulings in such a case a record must be made and preserved as in any ordinary proceeding in error. The record made here is wholly independent of the one made for a review of the original case. It is true that in the earlier proceeding in error the testimony lacking in this record is preserved, but it has been uniformly .held that the evidence and proceedings in the records of one case cannot be considered in a different cause unless they have been properly brought into and made a part of the latter proceeding. In an earlier case it was said:
“Each proceeding in error is distinct and independent of the other, and the errors assigned in each proceeding are to be determined upon its own record. In determining errors assigned in this proceeding we must look alone to the matters and things revealed by the present record, and cannot examine or be governed by anything on the files of this court in a former proceeding in error, although it was brought to review a former judgment rendered in this case.” (C. B. U. P. Rld. Co. v. Andrews, Adm’r, 34 Kan. 563, 565, 9 Pac. 213.)
(See, also, Insurance Co. v. Thorp, 48 Kan. 239, 28 Pac. 991; Sanford v. Weeks, 50 Kan. 339, 31 Pac. 1088; Parkhurst v. National Bank, 55 Kan. 100, 39 Pac. 1027; McDonald v. Swisher, 60 Kan. 610, 57 Pac. 507.)
While we cannot review the ruling denying a new trial, it is obvious from an examination of both records that if the evidence in both could have been considered the order of the court must still have been affirmed. Before the court could have granted a new trial it must have appeared that the newly discovered evidence, if it had been introduced, would with, reasonable probability have compelled a different verdict. (Sexton v. Lamb, 27 Kan. 432.) Mosher and some other witnesses testified in "the original case that in their opinion the fire had killed the trees or that the effect of the fire would be to kill them, while the newly discovered evidence disclosed that in an examination made the following year many of the trees were alive and growing. There was testimony offered in behalf of Mosher in the original case, however, to the effect that the trees, or some of them, might leave out the next year and might live for a year or two afterward, but that they would finally die from the effect of the burning. Much of the new evidence is therefore not in conflict with that of Mosher. While some of the trees for which a recovery was had may not. die from the effects of the fire, it can hardly be said that the newly discovered evidence, if considered in connection with that given on the original trial, would in all reasonable probability require a different verdict.
It follows from what has been said that the judg-. ment in the first case as well as the order in the second one must be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued for the interest due upon certain municipal bonds represented by interest coupons, one of which, typical of the others, reads as follows:
“No. 25. July 1, 1899,
“The township of Lakin, Finney county, state of Kansas, will pay to bearer, at the fiscal agency of the state of Kansas, in the city of New York, seven dollars and fifty cents, being six months’ interest on funding bond No. 1 for $250. .
Attest: A. B. Boylan, trustee.
F. C. Kennedy, ip. clerk.”
The date stated is that of the maturity of the coupon. Proper allegations were made showing that the defendant had succeeded to the liability of Lakin township in Finney county. When the action was commenced .more than five years had elapsed since the maturity of the coupons, and to avoid the effect of the statute of limitations the following allegations were inserted in each cause of action of the petition:
“That when said coupon by its terms became due and payable the same was duly presented at the place of payment therein mentioned and payment demanded, but was refused because said defendant had not, and did not have at any time before or since, any funds at said place for the payment thereof, nor has said defendant, at any time, made any levy -for taxes or provided funds odt of which said coupon could be paid.”
A demurrer to the petition was sustained, and the question is if the matter quoted can have the effect claimed for it. The plaintiff argues that the rule which governs the liability of a municipality upon treasury warrants should apply to its ordinary bonded indebtedness. The rule with respect to warrants is stated in School District v. Bank, 63 Kan. 668, 66 Pac. 630, as follows:
“Orders were drawn by the proper officers of a school district on the treasurer for the payment of money out of a designated fund. In an action against the district on the warrants, it appeared that at no time since the debt was created had there been any money in the treasurer’s hands applicable to the payment of the orders. Held, that the school district was estopped from interposing the defense that the action was barred by the statute of limitations.” (Syllabus.)
In Hubbell v. South Hutchinson, 64 Kan. 645, 68 Pac. 52, it was said:
“The statute of limitations will not begin to run in favor of a city on its outstanding warrants until it has money in its treasury to satisfy such obligations.” (Syllabus.)
Although warrants may take the form of negotiable paper and be made payable at a specific date, they are not negotiable in the commercial sense, belong in a class by themselves, and are fundamentally different from ordinary municipal bonds and coupons representing instalments of interest upon such bonds. This is made clear by the general law relating to the issuing, registration and order of payment of municipal warrants. All warrants must specify out of what fund they are payable and the nature of the claim or service for which they are issued. The clerk and the treasurer of the municipality both make a record of them before delivery. It is the treasurer’s duty to pay them on presentation, provided, however, he has' sufficient money in the fund on which they are drawn to do so. If the treasurer cannot pay on presentation he stamps them “Presented and not paid for want of funds’’ (Gen. Stat. 1901, § 6011) and registers them. Thereafter they are to be paid in the order of registration, and as funds come in the treasurer sets apart a sufficient sum to take them up. At stated times the treasurer publishes a call for the redemption of as many warrants as he can pay, and interest upon them ceases after publication of the call. (Gen. Stat. 1901, ch. 87.) Under this statute warrants are simply drafts on anticipated revenue (City of Burrton v. Savings Bank, 28 Kan. 390; School District v. Bank, 63 Kan. 668, 66 Pac. 630), which, whatever the form or expressed date of maturity, are not in law or in fact payable except as from time to time money to meet them is received into the specific fund of the treasury upon which they are drawn. A. judgment upon a warrant merely establishes the claim against the municipality, and it is still payable only in the order- of its registration from the fund designated for the purpose.
Obligations of the character of those in suit are general promises to pay at all events upon a certain day. True, a fund must be created by taxation to meet coupons representing the interest upon bonded indebtedness; but no particular fund is, at the time of their issue, expressly pledged in advance to their payment, and whether or not money has been raised to meet them they are due and payable absolutely upon the stated days of their maturity. Perhaps under exceptional circumstances warrants -may sometimes be come payable when funds to meet them ought to be in the treasury, but ordinarily it is the condition of the public treasury which matures them. Unless the circumstances be decidedly exceptional bonds and their attendant coupons mature according to contract.
The foregoing being true, it may properly be said the legislature intended that the statute of limitations should be regarded as commencing'to run upon a warrant from the, time funds are in the treasury, and not from the date of the instrument or from the nominal date of maturity expressed on its face. In any event a municipality with power to. provide the funds nec-‘ essary to mature its outstanding warrants should not be allowed to assert its own neglect to take steps to that end for the purpose of raising the bar of the statute. But since all the reasons upon which such conclusions are based fail in respect to ordinary negotiable bonds and coupons, they must be left to be governed by the law applicable to instruments of the class to which they belong.
The plaintiff’s argument presumes largely upon general statements made in decisions referring to particular obligations governed by particular statutes. Thus the language of this court in the opinion in the case of Hubbell v. South Hutchinson, 64 Kan. 645, 68 Pac. 52, is quoted as if decisive of this one. It was there said:
_ “This action was based upon certain written obligations and, in the absence of intervening circumstances, would become barred within five years from the date of their issuance. It is the settled law of this state, however, that the statute of limitations does not run in favor of a municipal or quasi-municipal corporation upon its outstanding obligations until the corporation has provided a fund with which payment thereof may be made. (School District v. Bank, 63 Kan. 668, 66 Pac. 630, and cases there cited; Miller v. Haskell County, post, 66 Pac. 1084.)” (Page 646.)
The syllabus of the case, the authorities cited and the context show that the court had in mind nothing but the specific class of instruments it was then considering; viz., municipal warrants. It was not the purpose to settle (or, more accurately stated, to overturn) the law relating to the limitation of actions upon ordinary municipal bonds.
The plaintiff maintains that, according to a certain line of decisions, when municipal bonds are payable out of a fund which the debtor must provide by a levy of taxes it is estopped to plead the statute of limitations until that duty has been performed and funds for payment have been provided by that method. It is claimed the decision in the case of Underhill v. Trustees of the City of Sonora, 17 Cal. 172, is to that effect. The court announced no such principle in that case. The ground of the decision is apparent from the second paragraph of the syllabus, which reads:
“Bonds of the city of Sonora, dated March 25, 1853, and falling due in two years, are sued on April 5, 1860. March 9, 1855, an act of the legislature was passed, reincorporating the city, and providing that ‘in case the public debt is not liquidated at the expiration of three years the trustees shall have power to levy a sufficient tax, in addition to the one per cent, authorized’ in another section for general purposes of revenue, ‘to pay the outstanding debt.’ March 29, 1858, another similar act was passed, the time mentioned being six instead of three years. These acts were passed at the instance of the corporators. Held, that these acts recognize the city debt, and provide for its payment; and hence withdraw the bonds from the statute of limitations.”
The opinion is equally clear. An abstract from it is quoted in School District v. Bank, 63 Kan. 668, 671, 66 Pac. 630.
The decision in the case of Freehill v. Chamberlain, 65 Cal. 603, 4 Pac. 646, is cited. It is only necessary to quote the syllabus to show that the coupons.there in suit were, by the statute authorizing their issue, in effect placed in the same category as warrants in this state. It reads :
“Where a statute provides for the issuing of bonds of a city, with interest coupons payable as fast as money should come into, the treasury from special sources designated by the act, the statute of limitations does not commence to run against the coupons until the money is received in the treasury in accordance with the terms of the act.
“The interest coupons upon bonds of the city of Sacramento, issued under the act of April 24, 1858, are not demands which are required to be presented for allowance to the auditor or board of trustees. They are payable on presentation to the treasurer, whenever there are funds in his possession which have been appropriated to the payment of the coupons by the act authorizing the bonds.”
The case of Lincoln County v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33 L. Ed. 766, is relied upon. The coupons there involved were virtually converted into treasury warrants by an act of the legislature passed after they were issued and accepted by the creditor. An extract from the opinion by Mr. Justice Brewer is quoted in School District v. Bank, 63 Kan. 668, 670, 66 Pac. 630.
The case of Sawyer v. Colgan, 102 Cal. 283, 36 Pac. 580, is also referred to. The bonds there under consideration were state bonds issued under- a special act for a special purpose. It was expected that congress would provide funds to pay them. If it did not do so the intention of the legislature, as expressed in the act, was that they should be payable out of money which should be found in the state treasury at their maturity, and which should come into .the treasury after maturity, that had not been appropriated to some other purpose. No surplus existed in the general fund of the state treasury for many years after the date of maturity stated in the bonds had passed and no provision for paying them was made. If they had been presented for payment they could not have been paid, for want of funds. The bondholder could not sue the state, for no law authorized him to do so. “The state, by reason of her sovereignty, still held control of the question of payment as to all its incidents of time, mode and measure.” (Page 292.) So it was said, upon the authority of Underhill v. Trustees of the City of Sonora, Freehill v. Chamberlain, and Lincoln County v. Luning, supra, that “it is a general rule that when payment is provided for out of a particular fund, or in a particular way, the debtor cannot plead the statute of limitations without showing that the particular fund has been provided, or the method pursued.” (Page 292.)
This certainly falls very short of establishing the doctrine contended for. Taxes are the primary source of municipal revenue, and money accumulated entirely from taxes with which to meet a general obligation to pay cannot be said to be a particular fund in the sense of the decision, nor can it be said that taxation, the chief method of raising municipal revenue, is a special or particular method.
No other authority cited by the plaintiff supports his argument, and this court is unwilling to extend the exceptional rules relating to the treasury warrants of a municipality to its bonded indebtedness.
Therefore the judgment of the district court is affirmed. | [
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The opinion of the court was delivered' by
Smith, J.:
This action was commenced in the district court of Allen county by A’lvin Boman to recover, as the surviving beneficiary, his wife having died, the indemnity on a joint policy of life-insurance issued to them during her lifetime. The policy on its face purports to afford indemnity to the survivor in the sum of $1000, payable ninety days after the receipt of proof of the death of the other spouse. It is specified in the policy that the payment of all benefits under the policy shall be governed by the provisions of the by-laws, but there is no agreement authorizing any change in the by-laws or any agreement to abide by any subsequent change, therein which may affect the amount of the indemnity. The policy reads:
“This certifies, that Alvin Boman and Helena Boman, having each complied with all of the requirements of the order, and in consideration of the páyments of premiums and fees necessary to be paid in advance herein, are members of Jeddo lodge No. 1073 of the Bankers’ Union of the World, located at Humboldt, in the state of Kansas, and they are each entitled to all the rights, privileges and benefits of membership therein.
“That upon receipt by the supreme lodge at its office in the city of Omaha, Neb., of satisfactory proofs of the death of either of said members while in good standing in this order, and within ninety days after the receipt of such proofs, there will be paid to the surviving member, . . . upon surrender and cancelation of this policy, the sum of one thousand’ dollars. The payment of all benefits under this policy shall be governed by the provisions of the laws pertaining to this class of policies, which provisions, together with the statements made by the insured in their application for membership and the statements certified by the insured to the medical examiner, are hereby made a part of this contract.
“This policy is issued to, and accepted by, both "of said members upon the terms and subject to the conditions set forth in the constitution and by-laws of this union, and'subject to the conditions and stipulations on the reverse side hereof, all of which are hereby made a part of this contract, as fully as if they were recited at length over the signatures hereto affixed.”
The only conditions • or stipulations on the reverse side of the policy which can affect the questions here involved are:
“DEATH BENEFIT.
“Within ninety days after receipt and approval of satisfactory proofs of the death of either of the said members there shall be paid to the surviving member, if living, otherwise to the legal heirs of such surviving member, upon the surrender and cancelation of this policy, such balance, if any, of the amount payable under this policy, if such remains unpaid to the said member; payable at the supreme office at Omaha, Neb., upon the surrender and cancelation of this policy.
“Should either of said members die before .having lived out their expectancy of life, based upon age at time of entry, according to the American experience tables of mortality, there shall be deducted from the death benefit payable hereunder a sum equal to the amount of one payment (at the rate of the member whose death shall first occur, from which the joint rate was fixed) for each month of the unexpired period of such life expectancy with four per cent, on the unpaid balance of such sum. Accident and disability payments hereunder shall be subject to proportionate deductions. All deduction, as provided above, shall remain in the benefit fund until transferred to the reserve fund, in accordance with the constitution and bylaws of the order.”
From this it will be seen that there is here no provision for a subsequent fixing of the amount of the deduction in case of the death of either of the assured before the expiration of his or her life expectancy. But the reduction is to be determined from the amount of one payment at the rate of the member whose death shall first occur, from which the joint rate was fixed.
It is contended that the following stipulation in the application for membership binds the members not only to comply with any by-laws which may be enacted but also authorizes the corporation to change or reduce the benefit:
“I agree that the maintenance of my membership in the lodge of the Bankers’ Union of the World and the compliance on my part with the coristitutioh, by-laws, rules, regulations and requirements which are now in force or may hereafter be enacted by the said Bankers’ Union of the World, is the express condition upon which I am entitled to enjoy the rights, benefits and privileges of membership in the beneficiary department of this order.”
Certain it is that the by-laws were explicit on this subject. Division 9 of section F thereof reads:
“Every certificate of insurance heretofore issued, or that may be hereafter issued, shall be subject to, governed by, and construed in accordance with, the constitution and by-laws of this order or any amendments thereto that may be hereafter adopted, and all claims shall be settled in accordance with the various provisions thereof as the same may be in force at the time such claim arose.”
Also, division 12 of section B provides that “the constitution may be altered or amended by the supreme lodge at any regular or special meeting.”
The case was tried to the court upon an agreed statement of facts. The policy and all the pertinent portions of the by-laws necessary to an understanding of such agreed statement are above set forth. The agreed statement of facts is as follows:
“In addition to the- facts admitted in the pleadings, and without waiving any such admissions, now, to wit, it is hereby stipulated and agreed that the following facts be and are hereby admitted herein:
“ (1) That the defendant is now, and was at all times mentioned in plaintiff’s petition, a fraternal beneficiary association organized and incorporated under the laws of the state of Nebraska, and authorized to do, and do ing, business as such fraternal beneficiary association in the state of Kansas.
“(2) That on or about the 31st day of December, 1901, said defendant duly executed and delivered to said plaintiff and one Helena Boman, now deceased, who was at said time and thereafter the wife of plaintiff, a certain joint policy of insurance, as provided by the constitution and by-laws of the defendant in force at that time, granting therein benefits or indemnity in case of death of one of said parties to the surviving one, the sum of $1000; a copy of which policy is attached to plaintiff’s petition, marked ‘Exhibit A,’ and which is referred to and made a part of this agreed statement of facts.
“ (3) That prior to the execution and delivery of said policy, said plaintiff and said Helena Boman each separately made application for the same; copies of which applications are attached to the answer of defendant herein, marked ‘Exhibit A’ thereof, and are here referred to as a part of this agreed statement of facts.
“(4) That at the time of the issuance of the said policy of insurance, and prior thereto, and thereafter, said plaintiff and his said wife complied with the constitution and by-laws of said defendant in force at the time of the execution of the said policy, and with the terms of said policy. A copy of which constitution and by-laws is attached to defendant’s answer herein and marked ‘Exhibit B,’ which is here referred to and. made a part of this agreed statement of facts.
“(5) That on or about the 13th day of January, 1904, said Helena Boman died intestate, leaving surviving her this plaintiff, who was and is the sole surviving beneficiary under the said policy of insurance.
“(6) That thereafter, on or about the 15th day of March, 1904, said plaintiff submitted to said defendant due and proper proof of the death of the said Helena Boman under said policy; and thereafter, on the 16th day of August, 1904, the same was approved by the board of directors of the defendant and the said policy ordered paid within ninety (90) days thereafter, and that the sum payable under - the terms of said policy became due and payable to the said Alvin Boman at the expiration of the said ninety (90) days from said date.
“(7) The total amount paid into the mortuary fund of the defendant by said plaintiff and said Helena Bo man, during their membership, under said policy, was the sum of $25.58.
“(8) That subsequently an amended and substituted constitution and by-laws of the defendant was adopted by the supreme lodge of said defendant association, and duly filed with the auditor of public accounts of the. state of Nebraska, December 19, 1902; a copy of which is attached to defendant’s answer, marked ‘Exhibit C,’ and is here referred to as a part of this agreed statement of facts.
“(9) That by the laws of the state of Nebraska, under and by virtue of which the defendant association was organized and incorporated, it is provided that amendments to the constitution and by-laws of the defendant should take effect and be in force after the same have been filed with the auditor of public accounts of the state of Nebraska, who is the officer entrusted with the supervision of such association.
“(10) That said Helena Boman was 27 years of age and said plaintiff was 33 years of age at the date of the issuance of the said policy of insurance; and that the expectancy of life of said Helena Boman at her age, at the date of her entry into said order, to wit, date of issuance of said policy, according to the American experience table of mortality, was 37.4 years.
“(11) That said Helena Boman, while living, and said plaintiff, at no time until after the death of his said, wife, Helena Boman, had any notice or knowledge of the said amended and substituted constitution and by-laws of 1902, referred to in paragraph 8 of this agreed statement of facts.
“(12) That the premium rates therein provided for were never enforced or attempted to be enforced as against him or his said deceased wife; and that all payments of premiums made by the plaintiff or said Helena Boman were at the rates, and all transactions had with reference to said beneficiary certificate, were in accordance with the constitution and by-laws of the defendant of 1901, referred to in paragraph 4 of this agreed statement of facts, and never at any time was any reference .made to the amended and substituted . constitution and by-laws of 1902; and that all payments of premiums made by said plaintiff and said Helena Boman were accepted by said defendant without objection or question concerning their sufficiency.
“(13) That computing the amount due under said policy according to the constitution and by-laws of 1901 or the terms of said policy the amount would be $739.65, with interest at six per cent, per annum from November 16, 1904.
“(14) That computing the amount due under said policy according to the constitution and by-laws of 1902 the amount due would be the sum of $224.25, with interest at six per cent, per annum from November 16,1904.”
The writer is inclined, under the terms of the policy and the constitution and by-laws of the association, to deny the right of the corporation to diminish the indemnity by the enactment of a by-law subsequent to the issuance of the policy and without the consent of the assured. This association is an insurance corporation under the decision in National Council v. Shawnee County, 63 Kan. 799, 806, 66 Pac. 1011. It was held in Miller v. National Council, 69 Kan. 234, 76 Pac. 830, that where a member in such an association “agreed to be bound by subsequently enacted by-laws, he is bound by a new law which changes and increases his rate of monthly assessment, if it be reasonable and necessary to the accomplishment of the purposes of the association” (syllabus) ; still, it would seem- repugnant to every idea of right that one party, to a contract could, by a by-law which increases the benefit thereof to itself, entirely wipe out or in the least diminish the benefits to the other party thereto. If this association could, as it claims, by increasing the monthly assessments increase the deductions from the face of the policy, and thus decrease the indemnity by over two-thirds the value thereof, it could by only a slight additional increase wipe out the entire indemnity. By the same act it would convey more money to its coffers than the assured contracted to pay for carrying the risk. As the assured grew older, by enacting new bylaws the corporation could increase its demands and keep the indemnity at nil. Without deciding whether the corporation has this power, we are agreed that it is not entitled to enforce the new by-law against Boman.
It appears by the agreed statement of facts that neither Boman nor his wife, prior to her death, had any notice or knowledge of the new by-law; that they paid all the assessments according to the rate prescribed by the by-laws in force at the time of the issuance of their policy; and that the association neither enforced nor attempted to enforce the new rate as to them, but received all their payments without objection or question as to the sufficiency thereof. If the association had demanded payment of assessments under the new rate, it would have been notice to the assured of the change in the by-laws, and they could at least have exercised their discretion to continue to pay at the new rate or to -drop out by non-payment. If there be ambiguity under the contract, consisting of the certificate, the constitution and the by-laws, as to whether the new by-law applied to the Bomans, the action of the parties would amount to a mutual construction thereof adversely to -the claims of the association, and the court should adopt such construction, or at least give it great weight. If there be no such ambiguity or uncertainty, still it must be held that the association, by keeping the assured in ignorance of the existence of the new by-law and by accepting payments 'without objection at the old rate, waived the new law as to them and is now estopped from asserting it against the beneficiary. (Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Wyatt v. Irrigation Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280; Williamson v. Association, 54 S. C. 582, 32 S. E. 765, 71 Am. St. Rep. 822; Modern Woodmen v. Breckenridge, 75 Kan. 373, 89 Pac. 661.)
The case is remanded, with instructions to modify the judgment by increasing the same in favor of the plaintiff to the aggregate amount of $739.65, with interest at six per cent, thereon from November 16, 1904, and costs. The costs of this court will be taxed to the defendant.
Greene, Mason, Porter, Graves, JJ., concurring. | [
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The opinion of the court was delivered by
Mason, J.:
The parties to this proceeding agree that it turns upon this question: Does the statute relating to the election by a widow to accept- the provisions of her husband’s will or to take what she is entitled to under the law of descents and distributions apply also to a husband for whom provision is made by the will of his deceased wife? The statute reads:
“If any provision be made for a widow in the will of her husband, and she shall not have consented thereto in writing, it shall be the duty of the probate court, forthwith after the probate of such will, to issue a citation to said widow to appear and make her election, whether she will accept such provision or take what she is entitled to under the provisions of the law concerning descents and distributions, and said election shall be made within thirty days after the service of the citation aforesaid; but she shall not be entitled to both.” (Gen. Stat. 1901, § 7979.)
A section of an Iowa statute substantially similar to this, so far as relates to the matter under consideration, was held to require an election by a husband who wished to take the benefit of his wife’s will. (Everett v. Croskrey, 92 Iowa, 333, 60 N. W. 732, citing Shields v. Keys, 24 Iowa, 298.) That section, however (Iowa Code 1873, § 2452), was a part of a chapter in another portion of which this language occurred: “All provisions made in this chapter in regard to the widow of a deceased husband shall be applicable to the surviving husband of a deceased wife.” (§2440.) Practically the same language is found in the Kansas act concerning descents and distributions (Gen. Stat. 1901, § 2529), which was adopted in 1859 (Laws 1859, ch. 63), being taken with but slight changes from the Iowa statute.
In this state, however, the whole subject of wills) including the matter of the election by the widow, is. treated in a different chapter, enacted at a later date. It is therefore difficult to find in the bare words o'f the' statute justification for extending to the husband a. provision relating in terms only to the wife. When, however, the 'matter is considered broadly, in the light of the history of this particular enactment and of the spirit of equality and uniformity which pervades all our legislation affecting the parties tó the marriage contract, it is difficult to reach any other conclusion than that the real intention of the legislature' was that their reciprocal rights should be precisely the same with regard to wills as in all other matters. There would be less occasion to depart from the literal reading of the statute if nothing more weré involved than the manner of election — if the question were merely whether the husband should indicate his choice formally, 1 as is required of a widow, or might do so by any method ordinarily open to a devisee who has rights inconsistent with the terms of a will — one, fctf instance, whose property the testator assumes to dispose of. But the issue is- more important than this ;■ the question is not hów the husband shall elect but whether he shall be réquiréd to elect at all.
The Kansas act relating to wills (Gen. Stat. 1901, ch. 117) was frárhed by the commissioners appointed for the -revision of the statutes in 1868, and passed in that year. It was borrowed very largely from the Ohio law. (Rev. Stat. Ohio, 1860, ch. 123.) There was inserted, however, á new section (Gen. Stat. 1901, § 7972) forbidding either spouse to bequeath áwáy from the other, except by written consent, more' than one-half of the property of the testator. The section of the Ohio statute upon which that now ¡under consideration was based reads as follows:
“If any provision be made for a widow in the will of her husband it shall be the duty of the probate judge, forthwith after the probate of such will, to issue a citation to said widow to appear and make her election, whether she will take such provision, or be endowed of the lands of her said husband, and said election shall be made within one year from the date of the service of the citation aforesaid; but she shall not be entitled to both, unless it plainly appears by the will to have been the intention that she should have such provision in addition to her dower.” (Rev. Stat. Ohio, 1860, ch. 123, § 43.)
It will be observed that two of the changes made were rendered necessary by the addition of the new section referred to, and by the fact that the estate of dower had already been abolished in Kansas. The words “and she shall not have consented thereto in writing” were added, and for the phrase “or be endowed of the lands. of her said husband” there was substituted “or take what she is entitled to under the provisions of the law concerning descents and distributions.” (Gen. Stat. 1901, § 7979.) The only other change, aside from that reducing the time for election from one year to thirty days, was the dropping of the words “unless it plainly appears by the will to have been the intention that she should have such provision in addition to her dower,” thereby making the rule absolute that the widow could not have the benefit of the will and the law both. The legislature cannot have regarded the provisions relating to this rule either as surplusage or as merely declaratory. At common law the. wife was permitted to claim her dower while accepting devises under her husband’s will. (2 Underhill, Wills, § 744; 1 Jarman, Wills, 6th ed., 463, *p. 429.)
“It is Well established, as general dpefcrine, that since ■dower is a legal right,' the intention to exclude that right, by a devise or bequest of something else, must be demonstrated, if not by express words, at least by (what appears to the court to amount to) necessary-implication. It is only where the claim of dower would be inconsistent with the will, or plainly tend to defeat some other part of the testator’s disposition of his. property, that the widow can be compelled to elect whether she will take her dower, or the interest devised to her.” (1 Cooley’s Blackstone, 2d ed., book 2, p. 138, note 34.)
The same is said to be true as to a statutory right granted in lieu of dower.
“It is a general rule in equity, as regards the widow’s, dower, that the court will not compel her to elect between her dower or other statutory right and interest which she may have in the estate of the testator, and a provision made for her in the will, unless, first, it shall appear in express terms that the bequest or devise was given in lieu or satisfaction of her dower;, or second, unless it appears by clear and manifest implication on the circumstances of the case that the testator intended her to elect. She will not be compelled to elect unless her claim of dower is plainly inconsistent and irreconcilable with the will of the testator and so repugnant to it that both her claim of dower and the devises in the will cannot consistently be upheld. She has a right to take both, despite the' fact that the benefit given by the will may be much greater in fact than her dower.” (2 Underhill, Wills, § 744.)
It seems naturally to follow that if, in the absence of a statute to the contrary, a wife might claim the half of her deceased husband’s estate under the law of descents and distributions and also take the benefit of his will, the husband could do the same with respect: to his deceased wife’s estate, where the law gives each the same interest in the other’s property. If the section now under consideration is to be applied to the widow exclusively, it must be upon the assumption that the lawmakers intended to deny such a privilege to the wife, while suffering the husband to continue in its enjoyment. Such an intention ought not to be imputed to the legislature if any reasonable alternative is presented, for it is entirely at variance with the purpose manifested in every other part of the Kansas statutes affecting the relations of husband and wife— a purpose to give the same property rights to each. Rather than accept such an interpretation the court may well conclude, and does conclude, that the framers of the act regarded it as so intimately connected with the chapter on descents and distributions as to be affected by the rule there laid down that provisions in relation to the widow of a deceased husband should be applicable to the husband of a deceased wife. Of course, if the statute is to be construed as forbidding the husband as well as the wife to take under the will and under the law at the same time, it necessarily follows that all its provisions relating to the election, including the method by which it shall be made known, must be held to apply in the one case as well as in the other.
If the revision commissioners in 1868 had undertaken to draft in their own language a statute regarding election, adapted to the rights of the husband and wife as they exist in Kansas, they would doubtless have made it refer in terms to both spouses. But they evidently chose to accomplish their purposes by making only such changes in the Ohio law as seemed necessary to that end. Proceeding in this manner it is not surprising that they should have omitted an express mention of the privileges and duties of the surviving husband, upon the assumption that other parts of the statutes would make it clear that they were the same as those specified in the case of the widow.
This view of the question discussed requires an affirmance of the judgment of the district court. | [
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The opinion of the court was delivered by
Smith, J.:
This case is entirely analogous to Spencer v. Smith, 74 Kan. 142, 85 Pac. 573, and to Beatty v. Smith, 75 Kan. 803, 90 Pac. 272, as to the service of notice and proceedings to forfeit the rights of the original purchaser of the school-lands in question. Following those controlling decisions it must be held that the attempted service of the notice in the forfeiture proceedings in this case is void, and consequently the proceedings are void and the rights of the original purchaser were not forfeited; and it follows that the plaintiff by a succession of assignments from such purchaser became and is vested with all the latter’s rights to the land.
It is sought by the defendants to invoke the protec tion of the decision in Burgess v. Hixon, 75 Kan. 201, 88 Pac. 1076, but no facts appear in this case that can operate as an estoppel as against the plaintiff so far as the forfeiture proceedings are concerned.
This case differs essentially from Spencer v. Smith and Beatty v. Smith, supra, in this: In those cases Smith, the county treasurer, based his refusal to receive the money tendered upon an alleged superior right to the land of a subsequent purchaser, and it was held, in substance, that at the time of the tender the treasurer had no judicial power to decide between contending claimants and that in the mandamus actions he could neither plead the rights of another as a defense nor would he be recognized as appearing therein for another to defend the rights of such other; that it was his only duty to receive the money tendered and leave it to the contending claimants to settle their contentions amicably or in a court of competent jurisdiction. In this case, however, the defendants are the sole agents of the state, authorized by law to contract in the name of the state for the sale of its school-Jands and to receive payment therefor. No third party has any interest in the matter. It is a question purely as to the duty of the defendants, as official agents of the state, toward the plaintiff.
The county treasurer and clerk have, however, such power only to contract for the sale of school-lands as is granted to them by statute. The statute is their power of attorney, and it authorizes a resale of school-lands only after the right of the former purchaser has been forfeited. (Gen. Stat. 1901, § 6857.) The preceding section of the statute provides the steps necessary to be taken to effect such forfeiture. Since the attempted forfeiture proceedings were void, as we have before determined, it follows that the attempted contract of sale of 1906 to the plaintiff was also void as not authorized by law.
The plaintiff upon discovering his situation under this so-called contract of 1906 had a right to ignore it and to proceed to assert his rights under .the legal contract he had procured by assignment. The defendants should have accepted his money tendered for that purpose.
Let the peremptory writ issue, as prayed for. • | [
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The opinion of the court was delivered by
Burch, J.:
The state of Kansas, on the relation of the attorney-general, brings this action to oust the defendant from exercising corporate franchises within the state. The defendant is a corporation of the state of Missouri whose corporate purpose, as stated in its charter, is “the brewery business and the business appurtenant thereto, and the buying, making and selling of beer.”
The petition alleges that the defendant has obtained no permission from the charter board of the state of Kansas to transact business within the state, and has no authority to do so, but that, through its agents, it engages in the sale, barter and delivery of intoxicating liquors in the state, keeps and maintains places within the state where intoxicating liquors are sold, bartered and given away, and keeps and maintains places where persons are permitted to resort for the purpose 'of drinking intoxicating liquors, all contrary to law, and in the conduct of such unlawful business it holds and owns real and personal property, and owns and uses bars and all manner of saloon fixtures.
The prayer of the petition is that the defendant be required to show by what warrant it exercises the corporate franchises described, and by what warrant it holds real and personal property in the state; that it be ousted, prohibited and restrained from the exercise of the corporate powers and franchises which it has exhibited within the state; that such franchises be assumed by the state; that a receiver be appointed for the defendant’s property in the state; that such property be seized as the public property of the state of Kansas, to be disposed of in a manner to secure the rights of creditors and of the state; and that pending the proceeding the defendant be restrained from removing or disposing of its property and from continuing to use it for unlawful purposes.
At the time the proceeding was commenced similar petitions were filed against a number of other foreign brewing companies. The petitions were duly verified, but the court required a further showing to be made in support of the applications for restraining orders. This showing was duly made. The details need not be stated. It sufficiently appeared that the exercise of corporate franchises within the state was accomplished '’through the instrumentality of real and personal property which was devoted to unlawful uses; that whenever attempt was made by officers of the law to circumvent such uses all manner of shifts, devices and subterfuges were resorted to for the purpose of keeping such property in unlawful employments; and that among those devices' was the passing of such property from one agent to another in persistent attempts to defeat the enforcement of the laws of the state.
Restraining orders were issued in all the cases, and the applications for receivers were set down for hearing upon notice. At the hearing evidence was introduced on the part of the state which left the court in some doubt respecting the good faith of the conduct of the defendant in this case after the service of the restraining order. The court was not satisfied that property belonging to the defendant was not still being made the instrument for the exercise of corporate franchises contrary to law, and it was not certain that property belonging to the defendant was not being placed colorably in the ownership and possession of others so that after a judgment of ouster, if such should be the result of the action, it would continue to accomplish an unlawful usurpation of corporate privileges.
At the preliminary hearing the defendant greatly accelerated the proceeding by making a final submission of the cause upon an answer and an affidavit containing proposals respecting the withdrawal of its property from the state.
The court having convened for the special purpose of hearing the application for provisional relief, and the merits of the case not being determinable in the orderly- course of the court’s work for some time, the application for the appointment of a receiver was granted and receivers for the defendant’s property were appointed pending the consideration of the cause.
The authority of the court to seize the property of a defendant before final judgment in a quo warranto proceeding was vigorously contested as a breach of constitutional jurisdiction and a depredation upon the right of private property. It is proper, therefore, that, before rendering final judgment, the reasons for the court’s conduct be stated.
It is always a delicate matter for a court of last resort to interpret its own jurisdiction: Pride of place, lust of power, zeal for spectacular innovation and other weaknesses which exhibit themselves with sufficient frequency in those having authority may be tolerated for a time in other departments of government, however much they may be deplored, without registering lasting effects. But the administration of justice cannot be scandalized by usurpation of power without irreparable harm, and any act of a court from whose judgment there can be no appeal which proceeds from will or pleasure or other unjudicial motive inflicts an incurable wound upon free institutions. And no palliation for unauthorized stretches of power can be found in the fact that the person or corporation against whom it is directed is itself engaged in the most contemptuous disregard of law.
Ours is a constitutional government. The people are sovereign, and in the adoption of a constitution they have carefully limited the scope of the authority vested in the various agencies of government. More than this, they have limited even their own power. Doubtless there are vast funds of power resident with the people upon which they have not yet drawn, but until an amendment of the constitution takes place the people themselves cannot lawfully make use of them. Much less can legislative, executive or judicial officers, whose authority is derived solely from the constitution, lay hands upon them, and if they should attempt to do so they gain no increment of lawful power. Thomas M. Cooley, whose competency to speak will scarcely be questioned, has said:
“The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each state created a state government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.” (Cooley’s Const. Lim., 7th ed., 56.)
The question is, therefore, Under the constitution of the state of Kansas, what is the jurisdiction of its supreme court in quo warranto? The jurisdiction is original, and is established by the constitution itself:
“The supreme court shall have original jurisdiction in proceedings in quo ivarranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law.” (Const., art. 3, § 3; Gen. Stat. 1901, § 150.)
There is no definition in the constitution of the phrase “proceedings in quo warranto.” The words are used as if their meaning were a matter of common understanding, and there must have existed at the time the constitution was adopted a body of knowledge in which the terms were current and to which resort may be had to ascertain their signification. That body of knowledge was the common law.
When the constitution was adopted various notions were entertained respecting some of the essential common-law features of jurisdiction in quo warranto. By some courts it was held that all the virtues of the ancient prerogative writ of right, the writ of quo warranto, still persisted, while it was contended by others that proceedings of that nature had been entirely superseded by informations in the nature of quo warranto; and it was the opinion of many that the naming of one remedy differentiated it from the other. In framing the constitution the purpose appears to have been to confer jurisdiction broadly, and language was chosen which avoided the consequences of this diversity of opinion and authorized all the relief which at common law could be given by a quo warranto proceeding of any kind. Such was the interpretation placed upon the constitution by the legislature of 1868, which in regulating the procedure authorized a civil action in any case in which a remedy might formerly have been obtained either by the writ of quo warranto or by an information in the nature of quo warranto. The court is of the opinion that this is the correct view, and holds that it possesses all the jurisdiction which the common law afforded in quo warranto in any form.
The writ was of a civil nature. The information in the nature of quo warranto was originally criminal in form and purpose, the object of the proceeding being not merely to oust but to fine the usurper. In the progress of time the fine fell to a nominal amount and its imposition was ultimately discontinued in England, although the practice still prevails in some of the American states. Therefore through a gradual process of evolution the procedure by information became essentially civil in character. (The State, ex rel., v. Foster, 32 Kan. 14, 41, 3 Pac. 534.) In no case was it used as an adjunct of the criminal law generally, and in seizing the property of the defendant in this case the court had no purpose to distort the procedure into a mere auxiliary of the prohibitory liquor law.
The proceeding, whether by original writ or by information, was a feature of a legal system in which law and equity were sharply distinguished and administered in different courts, and it was always insti tuted and maintained in a court of law. By the grant of jurisdiction in proceedings in quo warranto no equity jurisdiction was conferred upon the court, and the right to appoint a custodian of the defendant’s property pending the hearing, who for convenience is called a “receiver,” was not sought to be derived from the practice prevailing in matters relievable and cognizable only in courts of equity.
Receivers for the defendant’s property were not appointed for the ultimate purpose of confiscation or other appropriation, except to such an extent as might be necessary to prevent the defendant from rendering ineffectual a judgment for costs. There is no law of the state transferring to itself the title to property of a corporation which has unlawfully usurped franchises, and without such a law the court cannot enter a judgment of forfeiture. “The court has no power to create a forfeiture, and no power to declare a forfeiture where none exists.” (The State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828.)
Even if the defendant were ousted from certain franchises wrongfully exercised it would continue to be a corporation, and its property would still belong to it for the prosecution of all enterprises in which it might lawfully engage elsewhere. If all its franchises were seized and the corporation dissolved the further conduct of business would necessarily cease, but the claims of creditors upon the corporate assets could not be annihilated, and the residue upon the winding up of the concern would belong to its stockholders. All this is elementary (State Bank v. The State, 1 Blackf. [Ind.] 267; The State v. The West Wisconsin Railway Company, 34 Wis. 197, 215; People v. O’Brien et al., 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684), and at the hearing of the cause the attorney-general asserted no right, of confiscation on behalf of the state.
From what source, then, is the power which was exercised to be derived, and to what end was it exer cised in this proceeding? No principle of the common law is better established than that plenary power is vested in all courts to protect and preserve their jurisdiction so that the exercise of granted functions may be made effectual, and in this case that power was exercised to prevent the defendant, by manipulations of property which it could not lawfully hold, from circumventing an actual ouster and rendering the whole proceeding a solemn farce, the expenses of which should be borne by an outraged commonwealth. This power the defendant concedes in its brief:
“It cannot be ousted from its franchises to do business. It can only be forbidden to do business within the borders of the state of Kansas, and orders that are necessary to accomplish that end are the only orders that it is the province of the court within the terms of its jurisdiction to make. Indeed, it cannot be concerned with reference to its property that it may have brought into the state, except to see and to insure by its orders that that property shall not be used for an unlawful purpose or for a continuation of the business in which it is engaged.”
The exercise of jurisdiction of this character is in no sense new or strange. This court has no original jurisdiction to issue injunctions or writs of prohibition. It has original jurisdiction in mandamus, a prerogative proceeding which under the common law was prosecuted in the court of king’s bench. An original action of mandamus was brought here to compel the issuance of bonds by a county board. Meantime a local suit had been commenced to restrain the issuance of such bonds, and an application was made for a restraining order to prohibit the further prosecution of the injunction suit pending the determination of the mandamus proceeding. In the opinion vindicating the power of the court to protect its own jurisdiction in this manner it was said:
“The original jurisdiction given by the constitution to the supreme court is specific and named, while the appellate jurisdiction is such as may be provided by law. Hence, with respect to the original jurisdiction that may be exercised by the supreme court, it would seem that it was the intention of the authors of the constitution that the supreme court should exercise only just such original jurisdiction as is prescribed by the constitution, and not any more nor any less; and that, as neither prohibition nor injunction is named or mentioned in the constitution, such matters cannot rightfully come within the original jurisdiction of the supreme court. But this will not prevent the supreme court from exercising jurisdiction with regard to such matters where they are mere incidents or auxiliaries necessary for the rightful and proper exercise of the jurisdiction actually conferred upon the supreme court by the constitution and statutes. Inherently the supreme court must have the power to protect its own jurisdiction, its own process, its own proceedings, its own orders, and its own judgments; and for this purpose it may, when necessary, prohibit or restrain the performance of any act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before it. It can hardly be supposed that the action of the supreme court may be thwarted, impeded or embarrassed by the unwarranted intermeddling of others without any power in the supreme court to prevent it.” (C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kan. 223, 225, 21 Pac. 1071.)
In Ohio the constitutional jurisdiction of the supreme court is the same as that of this court, except that procedendo is added. In a quo warranto proceeding an injunction was asked to protect the subject-matter. of the litigation pending the hearing. The court said:
“It is urged that we are without authority to make the order which the motion contemplates. The present action is a resort to our original jurisdiction. That we have not original jurisdiction of suits for injunctions is entirely clear. If the language of section 5573, Revised Statutes, should be thought appropriate to confer it, the effect to be given to that section would, nevertheless, be indicated by section two of article four of the constitution, which ordains that ‘it [the supreme court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may be provided by law.’ Applying to this grant the maxim, expressio unius est exclusio alterius, the conclusion is irresistible that the general assembly cannot add to the enumerated subjects of our original jurisdiction. Marbury v. Madison, 1 Cranch (U. S.), 137, 2 L. Ed. 60; Kent v. Mahaffy, 2 Ohio St. 497. But our original jurisdiction in quo %oarranto is not doubted, and we have to inquire whether the desired order may be made in its exercise. In the consideration of that question the case of Yoeman v. Lasley, 36 Ohio St. 416, is suggestive. . . . The pertinent inference from the case cited is that a court has authority to make any judicial order which, from the nature of the case, may be necessary to the effective exercise of its jurisdiction, whether original or appellate. Jurisdiction is the power to hear and determine the-subject-matter in controversy between the parties to a suit. Authority to determine is exercised in the form of judgments, décrees, and orders, and it implies power to make all such orders as may be appropriate to the case presented and necessary to give practical effect to the final judgment, as well as to preserve the subject of the action, pending the final determination of the case.” (State v. Board, 70 Ohio St. 341, 348, 349, 71 N. E. 717.)
In the case of The Columbian Athletic Club v. State, ex rel. McMahan, 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727, 52 Am. St. Rep. 407, quo warranto was brought for the forfeiture of corporate franchises which were being usurped. The property of the defendant was being put to unlawful uses to the common nuisance of the people in its vicinity. An injunction was asked and granted and a receiver was appointed upon an application showing that fraudulent transfers were likely to be made to perpetuate the wrongs complained of. Objection was made to the order appointing a receiver. The syllabus of the case reads:
“An injunction against the abuse of corporate privileges by conducting prize-fights will not be denied because the wrongful acts constitute crimes.
“A receiver of the property of a corporation which has forfeited its franchise by unlawfully conducting prize-fights may be appointed to hold the property subject to the order of the court, when necessary to aid an injunction against the further unlawful use of the property.”
In the opinion it was said:
“So here, while it is perhaps true that the commission of crime, strictly speaking, cannot be enjoined, yet the transfer of property for fraudulent purposes, or to evade the processes of the court, or to prevent the execution of its decree, may be enjoined. If this corporation might transfer its rights, franchises and property to another company or to individuals during the pendency of this action, and so continue the perpetration of the acts complained of in the very face of the court, it would be but a mockery of justice to have instituted the action in the first place. This is a proceeding against property as well as against the corporation. The property itself is criminal and can be used only for criminal purposes. If there be any virtue in the quo warranto proceeding, it must result not only in the dissolution of the corporation but also in the discontinuance of the use of its property for the evil purposes to which it had been prostituted.” (Page 105.)
Seizures of the lands and chattels of defendants in quo warranto at common law for the purpose of aiding jurisdiction were an acknowledged feature of the proceeding. In early times the contumacy of defendants who unlawfully usurped franchises seems to have extended chiefly to evading the requirement to appear and show “quo warranto,” etc. Therefore disobedience of process was followed by a distringas, upon which lands and goods were seized until the defendant appeared and submitted to the jurisdiction of the court. (See note in 4 Cow. [N. Y.] 100.)
It requires no subtlety of analysis to find here every vital element of the principle involved in the impounding of the property of the defendant in this case. The application of the principle is novel only in that it is made to reach the exigencies of new and unanticipated states of fact, and in the adaptation of ancient rem edies to modern uses the substance of jurisdictional authority is the essential thing to be regarded. In the beginning the power of the court was adequate to make jurisdiction in quo warranto effective-, and that power the attrition of time has never lessened.
It is urged, however, that in the code of civil procedure (§ 659; Gen. Stat. 1901, § 5155) the legislature has authorized the court to restrain the disposition of the property of a corporation and to appoint a receiver for such property after judgment in quo warranto, and hence that such orders before judgment are impliedly prohibited. The court needs no assistance from the legislature to enable it to exercise its constitutional jurisdiction in quo warranto. If so its power would be completely emasculated if the legislature failed or refused to act. (The State, ex rel. v. Allen, 5 Kan. 213; The State of Florida v. William H. Gleason, 12 Fla. 190; State v. Messmore, 14 Wis. 115; The People, etc. v. Boughton, 5 Colo. 487; Commonwealth of Ky. v. Dennison, Governor, &c., 65 U. S. 66, 16 L. Ed. 717; State ex rel. Wood v. Baker, 38 Wis. 71; The State ex rel. Macklin v. Rombauer, 104 Mo. 619, 15 S. W. 850, 16 S. W. 502.) Arid the court will brook no abatement of its authority by the legislature.
It is true that legislative regulations of matters of procedure which’do not impair jurisdiction will be recognized and utilized, and the legislature may invent new processes and new forms of remedy calculated to aid the court in the exercise of its jurisdiction, but the jurisdiction itself can neither be augmented nor diminished. (The State, ex rel. v. Allen, 5 Kan. 213; The State, ex rel. v. Wilson, 30 Kan. 661, 2 Pac. 828; Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575; In re Burnette, 73 Kan. 609, 85 Pac. 575.)
The statute cited serves to illustrate the principle. The court may avail itself of the authority given by the code to make restraining orders and to appoint re ceivers to any extent necessary effectually to exercise its constitutional power, but it cannot, under the guise of a statutory quo warranto, undertake to entertain general equity jurisdiction over the winding up of the affairs of dissolved corporations.
If the foregoing views are sound, and such is the opinion of the court, the restraining order was law•fully issued and custodians of the defendant’s property were rightfully appointed.
Upon the merits of the case the court finds for the plaintiff, and judgment is rendered for the ouster of the defendant and for costs. The defendant is permanently ousted and enjoined from owning, holding or using property, either real or personal, in this state contrary to law, but the restraining order is otherwise vacated. The receivers are continued in office and in possession to execute the judgment.
Saloon fixtures, equipments and paraphernalia, and other personal property employed in and about the unlawful sale or keeping for sale of intoxicating liquors or in keeping places where such liquors are sold or drunk contrary to law, shall, as soon as practicable, be. removed from the state. Personal property whose ordinary use is lawful may be sold or removed from the state at the defendant’s option, expressed to the receivers. The receivers may permit removals and sales of personal property to be made by the defendant, but only under their supervision and when satisfied of the good faith of the transaction.
All real estate belonging to the defendant shall be sold. The defendant is allowed a reasonable time in which to make sales, and upon application to the court accompanied by proof of an actual sale in good faith any parcel of real estate will be discharged from the custody of the receivers. If after reasonable opportunity to dispose of it without undue sacrifice any real estate remains unsold, the receivers shall sell it as upon execution and pay the proceeds, after deducting expenses, to the defendant.
The receivers shall reserve and sell as upon execution sufficient property to pay costs and accruing costs, unless the same are voluntarily paid by the defendant.
The receivers shall report their conduct to the court. Applications for allowances and expenses will be determined upon notice to the defendant. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiff in error brought suit in the district court of Rawlins county to quiet her title to a tract of land which she claimed to own in that county. The defendant abstract'.company answered denying the plaintiff’s title, and set up a mortgage on the land and asked a foreclosure thereof.
At the trial it developed that the plaintiff’s title rested upon a tax deed issued to C. F. McGrew more than five years before the commencement of the suit. The court adjudged the tax deed void, allowed the plaintiff a first lien for taxes paid and awarded the defendant a second lien for the amount of its mortgage, and ordered a foreclosure and sale of the land to satisfy the liens. The plaintiff brings the case here.
As was said in the brief of each party, the only question in this case is whether the tax deed is void upon its face. If the deed is void, the judgment should be affirmed; otherwise, the plaintiff is entitled to all the relief prayed for in her petition and the defendant is entitled to nothing.
The deed was duly acknowledged and was duly recorded on the day following its issuance. The court found that the plaintiff and her immediate grantors had been in the actual possession of the land from the date of the deed to the time of the trial, and had paid all the subsequent taxes and had made valuable improvements thereon. The tract of land in question is the southeast quarter of section 17, in township 3, of range 32, in Rawlins county. The tax deed was offered in evidence and on objection was excluded as void upon its face. Omitting the acknowledgment and certificate of filing and recording it reads:
“Know all men by these presents: That whereas, the hereinafter described tracts or pieces of ground situated in the county of Rawlins and state of Kansas were subject to taxation for the year A. D. 1894; and whereas, the taxes assessed upon said respective tracts and pieces of real property, for the year aforesaid, remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the 3d day of September, A. D. 1895, by virtue of the authority in him. vested by law, at (an adjourned sale of) the sale begun and publicly held on the first Tuesday of September, A. D. 1895, expose to public sale at the county seat of said county in substantial conformity with all the requisitions of the, statute in such case made and provided each of said tracts and pieces of ground separately for the payment of the taxes,, interest and costs, then due and remaining unpaid upon said tracts and pieces of ground respectively ; and whereas, at the place aforesaid, said tracts and pieces of ground could not be sold for the amount of taxes and charges thereon, and was, therefore, bid off by the county treasurer for said county, for the whole amount o,f taxes and charges then due thereon; the said amount being herein stated as follows ; to wit:
“The SE1/^ of Sec. 1, Town. 1, Range 31, for $20.46.
The NE^, of Sec. 12, Town. 1, Range 32, for $13.57.
The NE% of Sec. 10, Town. 1, Range 35, for $19.76.
The E% NE% of Sec. 9, Town. 2, Range 32, for $5.42.
The SW% of Sec. 25, Town. 2, Range 32, for $21.70.
The NE% of Sec. 20, Town. 2, Range 34, for $12.45.
The SW% of Sec. 15, Town. 2, Range 36, for $10.80.
The SE% of Sec. 17, Town. 3, Range 32, for $9.83.
The SW14 of Sec. 24, Town. 4, Range 31, for $19.02.
“And whereas, for the sums of
“$30.65 for the SE% of Sec. 1, Town. 1, Range 31, and
$20.22 for the NE1/^ of Sec. 12, Town. 1, Range 32, and
$29.46 for the NE% of Sec. 10, Town. 1, Range 35, and
$8.13 for the E% NE1^ of Sec. 9, Town. 2, Range 32, and
$32.55 for the SW% of Sec. 25, Town. 2, Range 32, a,nd
$18.65 for the NE*/i of Sec. 20, Town. 2, Range 34, and
$16.20 for the SWJ/4 of Sec. 15, Town. 2, Range 36, and
$14.70 for the SE1^, of Sec. 17, Town. 3, Range 32, and
$28.50 for the SW1/^ of Sec. 24, Town. 4, Range 31,
aggregating the sum of one hundred ninety-nine dollars and six cents, paid to the treasurer of said county, on the 7th day of December, A. D. 1898, the said treasurer did give to C. Fl McGrew, certificate of that date, as in such case provided by law, for and concerning said property, and the county clerk of said county did on the same day duly assign to the purchaser aforesaid the said certificate of sale, and all the interest of said county in said property;
“And whereas, three years have elapsed since the date of said sale, and the said tracts or pieces of ground have not been redeemed therefrom as provided by law;
“Now, therefore, I, Frank Johnson, county clerk of the county aforesaid, for and in consideration of the sum of one hundred ninety-nine dollars and six cents, taxes, costs and interest due on said land for the year A. D. 1894, by him to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said C. F. McGrew, his heirs and assigns, the real property hereinbefore described, to have and to hold, unto him, the said C. F. McGrew, his heirs and assigns, forever; subject, however, to all rights of redemption provided by law.
“In Witness Whereof, I, Frank Johnson, county clerk as aforesaid, by virtue of authority aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on this 7th day of December, A. D. 1898.
• 50c. I. R. S. Frank Johnson, County Clerk.” affixed to document. (seal.)
The deed does not literally follow the form prescribed by the statute, arid mainly for this reason it is reproduced here. It does not follow that the deed is void because not in the exact statutory form,, but to sustain it we must find therein all the essential statutory requirements. (Martin v. Garrett, 49 Kan. 131, 30 Pac. 168.) The objections to the deed are set forth in the following conclusions of the court, to wit:
“(5) The deed fails to describe any property taxed. It describes only property which was sold.
“(6) The deed is for a large number of tracts, and fails to state the amount of tax, interest and penalty for which each separate tract is sold and conveyed, and the sums or amounts which are given do not, when computed, make the gross or aggregate consideration of the deed.
“(7) None of the several tracts is so numbered or marked in any way that reference can be made thereto.
“(8) The county and the state of the residence of the assignee, C. F. McGrew, does not appear in the deed.
“(9) The interest of the county in all the various tracts was conveyed in one certificate.
“(10) The lands were not severally and separately taxed.
“(11) The lands were not severally and separately sold.
“(12) The lands were not severally and separately bid off by the county treasurer for the county, but were by him bid in one bunch at one time.
“(13) No sufficient separate consideration is given for each of the several tracts in the deed, nor for the tract involved in this case.
“(14) The consideration charged for the tract in question appears to be in excess of the amount legally chargeable for the certificate given to the assignee, C. F. McGrew, and assigned to him by the county clerk.
“(15) Said.deed contains several separate tracts of land and the same were not purchased at any tax sale.”
A comparison of the language of the deed with the form prescribed by the statute (Gen. Stat. 1901, § 7676) shows conclusion No. 5 to be very technical. The prescribed form has the description of the land subject to taxation at the beginning of the deed, and the land sold is thereinafter referred to as “the real property above described.” In this deed the land subject to taxation is described as “the hereinafter described tracts or pieces of ground,” and the land sold is fully thereinafter described. One way of describing the land is as definite as the other, and neither can lead to mistake.
Conclusion No. 6, except so far as it evinces a mistake in computation, by the court, is evidently based upon the statutory form where taxes paid subsequently to the sale form a part of the consideration for the deed, which is not the case here.
The omission noted in conclusion No. 7 would occur had the statutory form been literally followed.
As stated in conclusion No. 8, the deed does not give the residence of the assignee of the certificate, who is also the grantee, although the statutory form leaves a blank for that purpose. The mention of the county in which the purchaser resides, however, hardly amounts to one of the recitals of a tax deed in any strict sense.
“A recital in a deed is defined to be the setting down or report of something done before, or, more specific ally, the narration of the previous agreements or matters of fact upon which the transaction is founded.” (24 A. & E. Encycl. of L. 57.)
The residence of the purchaser has no relation to the tax proceedings — does not affect them in any way. Moreover, the prescribed form does not contemplate a statement that the purchaser is a resident of a certain county. The recital of fact is that the assignment was made to a certain person, who is indicated by his name and residence. The reasonable conclusion seems to be that the legislature in preparing a form for such conveyances merely conformed to the general practice of conveyancers of adding to the name of the grantee the county and state of his residence — that the reference thereto was intended merely as a part of the designation of the purchaser and not as an independent fact essential to the validity of the deed. Although the blanks left for the residence follow the ones left for the names of the original purchaser and his assignee, not that left for the grantee of the deed, this is plainly because in the orderly recital of the proceedings the name of the grantee is first stated in connection with the sale of the land or the assignment of the certificate, and naturally provision is'made for the addition of the county and state of his residence where his name is mentioned for the first, rather than for the last, time.
It is worthy of mention that in Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951, as well as in Edwards v. Sims, 40 Kan. 235, 19 Pac. 710, a tax deed was upheld which was set out in full in the opinion and did not state the residence of the assignee, or grantee. The point here urged was not raised in either of those cases, and therefore they do not amount to authorities upon the proposition, but the fact that the obvious omission was not made a ground of attack affords some indication that the view here announced was regarded by a part of the profession as too plainly correct for serious challenge.
A somewhat similar question has been raised under an earlier statute. The statutory form of tax deed formerly contained the word “witnesses” opposite the signature of the county clerk. (Comp. Laws 1862, ch. 198, § 10.) It was contended in McCauslin v. McGuire, 14 Kan. 234, that this amounted to a requirement that the clerk’s signature should be attested by “witnesses” —that is, by at least two persons, but the contention was denied upon a full discussion. The same conclusion was stated in the last paragraph of the syllabus in Stebbins v. Guthrie, 4 Kan. 353.
It is difficult to conceive how the statement of the assignee’s residence could be of any benefit to any person claiming an interest in the land or how the omission thereof could be prejudicial to him, any more than the omission of the residence of the maker from a promissory rióte.' However, if it were really a recital or if the statute specifically required it to be stated it should be held essential. The omission is as to a mere matter of form, and, not being prejudicial, will be disregarded.
Conclusion No. 9 simply points out an irregularity in tlie certificate that does not render the tax deed void upón its face.
Conclusions Nos. 10, 11, 12, 13 and 15 seem to be in direct contradiction of the recitals in the deed.
As to conclusion No. 14, a computation shows that the amount charged against the tract is about twenty cents, in excess of the amount for which it was, bid in by the county treasurer, with interest to date of the deed. Legal fees could easily cover this discrepancy.
We conclude that the tax deed is not void upon its face, and hence the plaintiff is entitled to the relief prayed for. The judgment 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
Mason, J.:
Cornelius Carr and his wife executed to the Independence Gas Company an oil-and-gas lease; that is, an instrument granting the right to explore a tract of land for oil or gas and -to appropriate either if found. The company is a Kansas corporation and at the time of the execution of the lease the only purpose mentioned in its charter was “to dig or mine for natural gas and sell the same for heat and lighting purposes.” Later an amendment was made adding thereto the mining and selling of oil. What are called the “gas rights” under the lease have been transferred to another gas company and no point is raised with regard to them. The Carrs, claiming that the lease so far as it related to oil was void because at the time it was executed the lessee had no authority to engage in the oil business, undertook to grant the oil privileges anew to C. C. Harris, who upon that ground brought a suit against the Independence company to cancel all of its contract excepting that portion relating to gas, joining his grantors as coplaintiffs. The trial court sustained a demurrer to a petition setting out substantially these facts and this proceeding is brought to review that ruling. •
The defendant maintains: (1) That it had the implied power to produce and market oil as an incident to the express power granted to it to produce and market gas; (2) that if it originally lacked such power the defect was supplied by the charter amendment; and (3) that even if it had no authority to enter into the contract the plaintiffs cannot take advantage of the fact. It will only be necessary to consider the questions involved in the third proposition.
Although the decisions relating to the doctrine of ultra vires are characterized by some confusion as well as by much conflict, they admit of classification into fairly well-defined groups and exhibit a development in the direction of restricting the scope of its operation. Those courts which accord it the most favorable treatment — allow it the largest field of action— proceed upon the conception that a corporation, being the creature of the state, possesses no power whatever beyond that granted in its charter, and cannot directly or indirectly acquire rights or incur liabilities under any contract not thereby authorized. They refuse under any circumstance's to enforce or give effect .to an unauthorized contract, as such, but where it has been acted upon will protect the parties against hardship and injustice by allowing whatever relief may be suited to the facts of the case; for instance, by permitting either party to recover money or property which has been parted with in the transaction, or to have compensation therefor. The cases illustrating this treatment of the matter are collected in volume 29 of the American and English Encyclopædia of Law, at page 54, note 2. The theory is consistent and logical, but its practical effect is so to circumscribe the power of the court as to make the relief furnished at times inadequate to the occasion.
In a larger number of jurisdictions, although the same conception of corporate capacity is adopted, its effect is greatly changed by the application of another principle. Here the courts concede that a corporation has no power to make a contract. except such as is conferred by its charter, expressly or by necessary implication. But they hold that as it must have some discretion in the manner, of carrying out the purposes of its creation — some freedom of action — it is amenable to the same rules of conduct as a natural person, and may estop itself to question the validity of an agreement it has assumed to make, or may acquire the right to invoke a similar estoppel in its own behalf. Where this theory is accepted recovery may be had upon a contract which is in fact void, simply because its validity cannot be put in issue. The cases in point are gathered in volume 29 of the American and English Encyclopædia of Law, at page 57, note 1.
These cases have been criticised for the use they make of the word “estoppel” as descriptive of the principle upon which they are based. It is argued that as a corporation must know the terms of its own charter, and as one dealing with it is charged with like knowledge, neither party to an ultra vires contract can be misled in that respect, and therefore there must always be lacking an essential element of what could with technical accuracy be called estoppel. This, however, is a mere question .of terminology. The requirement that one shall be consistent in conduct — shall not occupy contradictory positions — shall not retain the advantages of a transaction and reject its burdens— is often spoken of as a form of estoppel. The term is convenient, and, if inaccurate, is not misleading. This rule of estoppel affords a good working hypothesis to-accomplish just results. If it fails to accomplish all that might be desired in a practical way it is because it is not made sufficiently far-reaching. It is generally held to be inapplicable to purely executory contracts, one reason stated being that “where neither party has acted upon the contract, the only injustice caused by a refusal to enforce it is the loss to the parties of prospective profits, and this is too slight a consideration to weigh against the reasons of public policy for declaring it void and not enforceable.” (29 A. & E. Encycl. of L. 49.)
It might seem reasonable that a system which attempts not only to protect a party to an ultra vires contract from actual loss, but, where equity requires it, to insure to him the actual fruits of his bargain, ought for the sake of completeness and symmetry to enable him to insist upon the performance even of a purely executory contract. It certainly seems against conscience that one who has entered into a contract in the expectation of deriving a profit from it may upon discovering the probability of a loss repudiate it and escape responsibility by raising the question of want of corporate capacity. Parties to a contract who deal with each other upon the assumption that one of them is a corporation are ordinarily precluded' from questioning the validity of its organization.
“Although, as against the state, a corporation .cannot be created by the mere agreement, admission, assent, or other act or omission of private persons, yet, as between themselves and' for the purposes of their own private litigations and contestations, they may, by their agreements, their admissions, or their conduct, estop themselves from denying the fact of the existence of the corporation; so that for the purpose of such private litigations the body claiming to be a corporation and having a colorable existence as such becomes such to all intents and purposes as much as though it were a corporation de jure. ... A leading branch of the doctrine is that whenever a private person enters into a contract with a body purporting to be a corporation, in which contract the body is described by the corporate name which it has assumed, such private person solemnly admits the existence of the corporation for the purposes of the suit brought to enforce the obligation, and in such an action will not be permitted to plead nul tiel corporation or otherwise to deny the corporate existence of plaintiff. . . . One theory of the rule is that by entering into a contract with tire assumed corporation as such the contracting party admits its existence and will not thereafter be permitted to change front and deny it. . . . The rule of estoppel works both ways. A body which has held itself out as a corporation and which has incurred obligations in a corporate name and character is, when proceeded against by the obligee, estopped to deny the regularity of its organization or otherwise to deny the validity of its corporate existence.” (10 Cyc. 244-246, 249.)
The question whether a corporation has power under its charter to engage in a particular business is so like the question whether a body has capacity to act as a corporation at all as to afford good ground for arguing that whatever circumstances work an estoppel to raise the one have the same effect with respect to the other. This is recognized in volume 10 of the Cyclopedia of Law and Procedure, at page 248, where it is said:
“A person contracting with an ostensible corporation to do an act which is not prohibited by law becomes estopped, in an action by the corporation to enforce the contract, either to deny the existence of the corporation or its power to enter into such a contract.” (U)
The cases cited in support of this text, however, arose upon executed contracts, and we do not discover that the principle has actually been applied in actions upon purely executory agreements, unless where the question sought to be raised was whether a body assuming to act as a corporation had a legal existence as such. Nevertheless, no good ground is apparent for a distinction in this regard.
A large majority of the adjudications on the subject of ultra vires fall into one or the other of the two groups already referred to. The conception of corporate power upon which they depend has been styled that of “special capacities,” in distinction from that of “general capacities.” (See article by George Wharton Pepper on “Exercise of Corporate Power,” 9 Harv. L. R. 255.) The conception designated by the latter term is in brief that while a corporation has no right to exceed the limits of its charter it has the power to do so. The theory was elaborated in the opinion of Mr. Chief Justice Comstock in the celebrated case of Bissel v. The Michigan Southern and Northern Indiana Railroad Companies, 22 N. Y. 258, where it was said:
“Like natural persons, they [corporations] can over-leap the legal and moral restraints imposed upoh them ; in other words, they are capable of doing wrong. . . . The distinction, between power and right is no more to be lost sight of in respect to artificial than in respect to natural persons. . . . Why, it may be asked, does the law provide the remedy by quo warranto against corporations for usurpation and abuse of power ? Is it not the very foundation of that proceeding that corporations can and do perform acts and usurp franchises beyond the rightful authority conferred by their, charters? Most assuredly this is so. The sovereign power of the state interposes, alleges the excess or abuse, and on that ground demands from'the courts a sentence of forfeiture.” (Pages 264, 265.)
These expressions were merely those of the chief justice, for the case was decided upon other considerations, but the theory presented has since been adopted by the New York courts. (See Vought v. Eastern Bldg. & Loan Assn., 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761.) This theory, logically followed out, would obviously make all corporate contracts, executory as well as executed, enforceable between the parties. It has not, however, met with any large acceptance, at least in the form stated. (See, however, 29 A. & E. Encycl. of L. 45, note 2.) But a recent tendency has been developed to reach substantially the same result by a somewhat different course of reasoning, resulting in a doctrine which is thus stated in volume 10 of the Cyclopedia of Law and Procedure, at page 1164:
“A most important doctrine connected with this subject, and one which rises above the mere principle of ■estoppel, is that whether a corporation has acted without authority conferred on it by the legislature or has acted in contravention to an act of the legislature cannot be set up collaterally by individuals who deal with it, or by third persons, but can be set up only by the •state- in a direct proceeding to forfeit its charter, to ■oust it of some particular franchise,, or to subject it to punishment; or where the question is otherwise litigated between the state and the corporation.”
The cases applying or discussing the doctrine are collected in notes to this text and to succeeding para graphs in the same work. The principle referred to, if sound, is manifestly sufficient in itself to defeat the defense of ultra vires even when interposed against the enforcement of an executory contract; but it must be admitted that in practice it seems to have been applied only where the agreements had been at least partially performed. It seems often to have been invoked, however, in aid of the ordinary doctrine of estoppel, in cases where the contract upon one side or the other had already been performed. The best and most complete expression of it is found in the decisions of the Wisconsin court. In John V. Farwell Co. v. Wolf and others, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109, 37 L. R. A. 138, 65 Am. St. Rep. 22, it was said:
“Judge Thompson, in his valuable treatise on the Law of Corporations (volume 5), commenting on the subject (secs. 6033-6038), appears to deprecate the prevalence of the ‘new doctrine,’ and to argue against its further extension, upon the ground that it practically destroys the effect of the doctrine of ultra vires, as applied to the unauthorized exercise of corporate power; but the learned author is manifestly in error in that respect. Such doctrine, notwithstanding the limitation which modern development has placed on the means by which it may be called into use, still exists, and may and will continue to exist, adapted as-fully as ever to restrain the abuse of corporate franchises and authority, and to punish such abuse whenever the state, in its sovereign capacity, sees fit to exercise it: That such doctrine cannot be resorted to as a weapon for attack and defense in the hands of mere private persons, and used as a ready means of embarrassing business operations by and with corporate bodies, which directly or indirectly touch and administer to human desires at every turn of the individual in modern life, while its effectiveness for all essential purposes of restraint and punishment is fully preserved, furnishes no cause for regret, but rather cause for gratification at the evidence of how certainly principles, by natural growth and development, adapt the law and its administration to the ever-changing needs of advancing civilization, so as best to promote justice and the common welfare. When a corporation offends against the law of its creation, such offense is against the sovereignty of the state; hence it is most proper that the state should apply the remedy and be charged with the sole responsibility in that regard, and such is the law by the trend of modern authorities, which we approve.” (Page 16.)
And in The Zinc Carbonate Co. v. The First National Bank of Shullsburg, 103 Wis. 125, 79 N. W. 229, 74 Am. St. Rep. 845:
“This and other courts have so often held that a corporation cannot violate its charter for pecuniary gain and retain the benefits of its illegal conduct by putting up the shield of ultra vires, or a person set himself up as the champion of the state in a court of justice to either* punish or defend a corporation by an appeal to such doctrine in order to enable him or it to obtain or retain an unconscionable advantage, that we may safely reject the idea that it was thought a contrary view ruled the issue of law in .the case adversely to appellant. The doctrine of ultra vires is a most powerful weapon to keep private corporations within their legitimate spheres and to punish them for violations of their corporate charters, and it probably is not invoked too often; but to place that power in the hands of the corporation itself,. or a private individual, to be used by it or him as a means of obtaining or retaining something of value which belongs to another, would turn an instrument intended to effect justice between the state and corporations into one of fraud as between the latter and innocent parties. Such is the modern doctrine, evolved and settled in the progress of events, reaching from the time when private corporations were few and the doctrine of ultra vires invoked quite as freely as to them as to public corporations, to a time when substantially all restrictions to the formation of such private bodies were removed, and they were authorized and commenced to exist, great and small, everywhere, for the purpose of conducting almost every kind of legitimate business. If such a body transcend its powers it commits a wrong against the state, and ordinarily it is for the state only to call it to account for such violation.” (Page 131.)
And in Security Nat. Bank v. St. Croix Power Co., 117 Wis. 211, 94 N. W. 74:
“This court, by a series of decisions, has held that, when a corporation enters into business relations not authorized,'by its corporate grant of power, the doctrine of ultra vires cannot be used by it or by the person with whom it assumes to deal as a means of defeating the obligations assumed. The state alone can take advantage of the abuse. . . . The fact that this court has adopted the principle that the question cannot be litigated by private parties, a principle with which we are entirely satisfied, relieves us from further consideration of the question.” (Pagés 217, 218.)
None of these cases arose upon an executory contract, and in John V. Farwell Co. v. Wolf and others, supra, that consideration was referred to, the decision being expressly limited to the question before the court. But in Security Nat. Bank v. St. Croix Power Co., supra, although the contract involved was in fact executed, the principle was broadly stated without reference to that matter, as shown by the quotation made from the opinion.
The principle referred to is closely allied to, if indeed it is not substantially identical with, that which forbids the regularity or validity of the organization of a corporation to be inquired into except at the instance of the state. (10 Cyc. 256.) The reason for such rule is thus stated in Pape v. Capitol Bank, 20 Kan. 440, 27 Am. Rep. 183:
“This is not upon the ground of equitable estoppel, but upon grounds of public policy. If the state, which alone can grant the authority to incorporate, remains silent during an open and notorious assertion and exercise of. corporate powers, an individual will not, unless there be some powerful equity on his side, be permitted to raise the inquiry. The law holds out no such encouragement to attempt to avoid the payment of contract debts.” (Page 445.)
The question whether a corporation has a legal existence is a question whether it has capacity to act at all. This is essentially of the same character as the quéstion whether it has capacity to enter into a particular contract — in other words, whether it has a legal existence for that purpose. The state grants the corporation the right to do business under limitations expressed in language to which both agree. Whether the language of the charter shall be interpreted to authorize a given act is a matter between the parties to it. If the state is satisfied with the construction upon which the corporation acts no reason is apparent why it should be open to question by a stranger, much less by one who has recognized it as valid by contracting with the corporation upon that basis.
This court has already held that a contract made by a corporation without authority may be rendered enforceable by estoppel. (Town Co. v. Morris, 43 Kan. 282, 23 Pac. 569.) It was there said that the rule did not apply to executory contracts, but that question was not involved. In Morisette v. Howard, 62 Kan. 463, 63 Pac. 756, other Kansas cases to the same effect are collected. The court there refers to the matter of collateral attack, saying:
“Aside from these considerations, the transaction had been completed, the money had been paid, the property had changed hands; all having been done with the knowledge and consent of those in whom the ultimate authority rested, and from whom the board of directors derived its power, the transaction, however irregular, is not open to attack by any one other • than the state.” (Page 467.)
The case of Scott v. Bankers’ Union, 73 Kan. 575, 85 Pac. 604, turned merely upon a matter of constructive notice. The notes sued upon were not enforceable unless they were held by an innocent holder. ■ As was said in the opinion: “The scheme of consolidation failed. These notes were not to be paid unless it succeeded.” (Page 588.) The. question was not whether a corporation could be held to the terms of a contract to which it had agreed, but whether the law would attach to its promise to pay money the peculiar qualities of commercial paper. What was decided was that the corporation had no power to issue negotiable notes; that the purchaser was charged with notice of that fact, and therefore took them subject to any defenses that could have been made against the original holder.
The case of Bankers’ Union v. Crawford, 67 Kan. 449, 73 Pac. 79, 100 Am. St. Rep. 465, growing out of the same transaction, can be distinguished from the one at bar on several grounds. The attempt there was to hold one assessment-insurance company for the payment of a beneficiary certificate issued by another on the theory that there had been a consolidation of the two. The contract of consolidation was held to be void as beyond the powers of either company. The corporations there involved were not ordinary business concerns. They possessed no corporate stock. The contract relied upon, to which the plaintiff was not a party, was one incapable of performance, and against good morals as involving a diversion of trust funds.
Very much the same principle as that already discussed was applied in The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041, in denying the right of a party to a contract to demand its cancelation because of the failure of the other party — a foreign corporation — to comply with the statute relating to such organizations. In the opinion it was said:
“From this survey of the statute it appears that the legislature intended it to be complete; that the regulation of foreign corporations, and not the penalizing of business transactions, is its purpose; that such regulation is made the concern of the state in its special capacity as visitor, and not of any individual as a mere party to a contract; that a party to a contract is allowed to interfere in but a single instance, and then only to the exent of abating a suit against him; and that specific penalties are chosen to meet certain contingencies. The conclusion obviously and naturally follows that the legislature intended the state to rely upon the common-law remedies for the enforcement of the statute where none other was expressed; that the courts, have no authority to interpolate in the law provisions concerning which the legislature, with all the resources of the English language at its command, remained silent, or to annex penalties for a violation of the law which the legislature, with a great arsenal to choose from, failed to mention. Hence contracts made with a foreign corporation before it has obtained permission to do business in the state are not, for that reason, invalid or subject to cancelation. ... It is utterly illogical to compromise in a matter of interpretation, to palter with the status of such contracts and attempt- to distinguish between those which are executed and those which are unexecuted, or to say they may be voidable if they are not void, or withhold remedies for- a time. ' Such contracts are valid or invalid, and if valid are not subject to cancelation, and are enforceable as other contracts are enforceable, except as the law has restricted the corporation in its right to maintain an action or recover a judgment.” (Pages 7, 18.)
As in that case, the whole question here presented is as to the real intention of the legislature. A section of the corporation act reads:
“No corporation created under the provisions of this act shall employ its stock, means, assets, or other prop- - erty, directly or indirectly, for any other purpose whatever than to accomplish the legitimate objects of its creation.” (Gen. Stat. 1901, § 1285.)
Such provisions are regarded, however, as merely declaratory and do not affect the ordinary rule as to the enforceability of contracts.
“A provision in a general corporation law that no corporation created thereunder shall employ its assets for any other purpose than to accomplish the legitimate objects of its creation is merely declaratory of the common-law rule by which corporations are confined in their powers to the purposes for which they are created, and does not amount to such an express statutory prohibition of ultra vires loans and other transactions as to render them illegal instead of ultra vires merely.” (1 Clark & Marshall, Priv. Corp. § 225b.)
No Kansas statute declares that a contract made by a corporation in excess of its legitimate powers shall- be void, or in terms permits the question of corporate ■capacity to be raised by one of the parties. Where it is held that no recovery can ever be’had upon an ultra vires contract, as such, whatever relief is afforded is logically made to turn upon whether and how far the agreement has been acted upon. Where a recovery is sometimes permitted under the contract itself, upon the principle of estoppel, the question whether it has been carried out is likewise of manifest importance, there being a difference in degree at least between the attitude of one who has merely entered into an engagement in expectation of obtaining an advantage from it and that of one who has actually reaped its benefits in whole or in part. But the doctrine that only the state ■can challenge the validity of acts done under color of a corporate charter, if. accepted, must necessarily protect an executory contract from collateral attack ■equally with one that has been executed. The court is convinced of the soundness of the view that in the absence of special circumstances affecting the matter neither party to even an executory contract should be allowed to defeat its enforcement by the plea of- ultra vires. The doctrine is logical in theory, simple in application, and just in result. It of course does not apply to contracts which are immoral or which are illegal, •as distinguished from merely unauthorized, or to those made by public corporations. Nor does it forbid interference by a stockholder to protect his rights as such.
Upon these considerations the judgment is affirmed; | [
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The opinion of the court was delivered by
Johnston, C. J.:
T. W. Silven, an owner of taxable property in Osage county, feeling aggrieved with the valuation placed upon it by the assessor, appealed to the board of equalization for a reduction, but the application was denied. From this decision he attempted to appeal to the district court. There a motion was made to dismiss the appeal, for the reason that the ■court had no jurisdiction of the subject-matter and was without authority to entertain the appeal. The district court dismissed the appeal, and error is predicated on that ruling.
The plaintiff bases his claim of right to an appeal upon a recent statute, which provides:
“Section 1. Any person owning real estate in the state of Kansas, deeming himself aggrieved by any decision of the county board of equalization relative to the taxable valuation of his real estate, shall have, within ten days from and after the decision of the said board, the right to appeal therefrom to the district court of the county in which the real estate in question is situated.
“Sec. 2. All appeals provided for by section 1 of this act shall be governed by the law providing for appeals from judgments of justices of the peace to the district court.” (Laws 1905, ch. 8.)
The trial court held that this act attempts to make the district courts of the state share in the exercise of the taxing power and to confer upon those tribunals legislative and administrative functions with which they cannot be constitutionally vested. If the act were held to be valid it would operate to transfer to the courts a large part in the valuation of property for purposes of taxation, and in practical effect make them assessors. By the terms of the act any one dissatisfied with, the valuation of his property may apply to the board of equalization to reduce the valuation and to reassess his property, and, if an unfavorable decision be made, take an appeal to the district court. The act provides that such an appeal shall be governed by the law relative to appeals from judgments of justices of the peace. Under that law the appeal vacates the judgment or decision and there is a trial de novo in the appellate court.- The effect of such an appeal would be to set aside the assessment made, and would devolve upon the court the duty, not only of revising or correcting the assessment, but also of making a new and independent one,, and thus substitute the judgment of the court, as to valuation, for that of the as-' sessors. Since any aggrieved party may appeal, all owners of property may likewise avail themselves of the right; and thus the courts would be transformed into boards of assessment, with the responsibility of fixing the ultimate valuation of property for purposes of taxation. This is wholly impracticable, and, according to a number of decisions of this court, in contravention of the limitations of the constitution. Under the constitution a court may only be vested with judicial power. The power of taxation is a legislative function. It is the province of the legislature to determine the subject and extent of taxation and to provide the means and agencies for enforcing it. In the absence of constitutional restrictions the taxing power of the legislature is supreme, and complete, and nothing in that instrument justifies a division of that power with the judiciary.
Of course, if the legislature should violate a constitutional limitation in the enactment of a tax law the judicial power of the courts might be invoked to determine its validity and prevent its enforcement. And if the officers or agencies provided by the legislature for administering the tax laws were not proceeding in a legal manner their hands might be stayed by appro-priate proceedings in the courts, and it is doubtless competent for the legislature to provide that any invalidity in tax proceedings shall be tested or any controversy arising from the unlawful actions of officers in administering the tax laws shall be tried in the courts in either original or appellate proceedings. These matters, however, are purely judicial in their nature, and are wholly apart from the taxing power vested in another department of the government, which cannot be delegated to, or exercised by, the courts. An assessor appointed under the law to place a valuation on property for purposes of taxation is an administrative officer, and, while his act in assessing property is administrative, it is in fact an incident to the legislative power of taxation. It is true that the valuation of property involves judgment and discretion, but not every act requiring judgment and discretion is judicial in its nature, and the court has consistently held from the early case of Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575, down to the case of Symns v. Graves, 65 Kan. 628, 70 Pac. 591, that the matter of assessment of property for taxation is not a judicial function. In Auditor of State v. A. T. & S. F. Railroad Co., supra, where the right of an appeal to a court from assessment of property by a board of assessors was involved, it was held that “the power to tax is a legislative power, and not in any sense judicial.” (Syllabus.) In deciding that the statute giving an appeal was invalid Mr. Chief Justice Kingman said:
“The assessment of the property of the state, being then an incident to- the taxing power, which is wholly legislative and not judicial, may well be ascertained by agents appointed under the law; but in no sense under our constitution can such agents be considered-judicial officers. It is true that their duties require of them judgment and discretion; but this is also true of most of the duties of ministerial and executive officers, but this does not make them judicial officers, nor constitute them courts, or render their conclusions judicial acts; and not being such, it follows from what has been heretofore said that there can be no appeal from the decision of such agents to this court.” (Page 507.)
In K. P. Rly. Co. v. Comm’rs of Ellis Co., 19 Kan. 584, an attack was made upon the decision of the board of equalization in raising an assessment of the property of the railway company. The increase was made by the board without the swearing of witnesses or the taking of any proof whatever. It was contended that the functions of the board on revising the assessment were judicial in their nature and they could not change the assessment upon their own knowledge or without the submission of testimony by the parties in a judicial way. It was there decided:
“The proceedings before the county commissioners were not judicial, but in assessment. Section 65 of the tax law under which these proceedings were had provides simply for the correction of an assessment. It prescribes notice to the taxpayer as a condition of a valid action; but such notice does not turn the proceeding from one in the nature of an assessment into a judicial inquiry. Indeed, unless the legislature had prescribed notice, it is doubtful whether any were essential. Correcting an assessment is no more of a judicial act than making the assessment originally. True, it involves a determination; but so does almost every political or executive act. But it is not a judicial determination. The most that can be said is that it is quasi-judicial. The case of Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575, is directly in point. There it was held that appeal would not lie from an original assessment to this court, because such assessment was the exercise of a legislative power. The county board, sitting as a board of equalization of real-estate assessments, raises the valuation of some tracts, and lowers that of others. It thus corrects the assessments. But is it then acting in a judicial capacity? Clearly not.” (Page 587.)
The character of the board of equalization and the nature of its acts was again before the court in K. P. Rly. Co. v. Comm’rs of Riley Co., 20 Kan. 141. The nature of the power exercised was tested by the kind of proof upon which equalization might be made. It was said:
“Upon what may a board of equalization act? May they act entirely upon the ^assessments and returns made to them, guided by their personal knowledge, or must they accept the assessment and returns as conclusive unless other and outside testimony is produced ? We think they may act entirely upon the assessment and returns made to them, guided by their own knowledge. We do not mean that they are limited to these matters, and that they cannot procure testimony and avail themselves of other means of information. The matter of equalization is committed to their discretion. It is not a judicial proceeding, nor one from which error will lie.” (Page 144.)
While the taxing power is essentially a legislative function, the process of working out the legislative scheme of extending levies and collecting taxes is largely devolved on administrative officers, and much of what is done by them is ordinarily spoken of as an exercise of administrative power. In that way assessment has been designated as an administrative act; but, of course, such an act is always understood to be a mere incident of the legislative, power, just as there may be administrative acts in the execution of the other great governmental powers. So it was said in the recent case of Symns v. Graves, 65 Kan. 628, 70 Pac. 591:
“Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. These are fundamental principles in the law of taxation and cannot be waived aside to meet the exigencies of any particular case.” (Page 636.)
While holding that the matter of assessment could not be transferred to the courts, Mr. Justice Burch called attention to judicial functions that might arise out of the exercise of the taxing power. He remarked:
“But fraud, corruption- and conduct so oppressive, arbitrary or capricious as to amount to fraud will vitiate any official act, and courts have power to relieve against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity.” (Page 636.)
As has been seen, the act under which the proposed appeal was taken would operate to vacate the assessments made by the officers charged with that duty and give the courts authority to make new assessments, thus substituting their judgment of values for those of the assessors and boards of equalization. The cited cases make it clear that such functions cannot be vested in the courts and that the act imposing them is invalid.
The judgment of the district court is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Freidericka Hinze is the widow of A. F. Hinze, who died intestate March 17, 1905, leaving his widow and a number of heirs at law, who were children of a former marriage, .surviving. This suit was brought by the widow to enforce a resulting trust in her favor in land purchased by her husband in his lifetime with her money, the title having been taken in his name, as she alleges, without her knowledge or consent. The case was tried to the court without a jury, and judgment was rendered in her favor, giving her the absolute title to the land. The heirs seek to reverse the judgment.
The petition states facts sufficient to show that plaintiff was entitled to the relief prayed for, and the rulings of the court on the motions and demurrer were correct. As we view the case, the controlling question is whether any statute of limitation bars her right to maintain the suit. The proof shows that during his lifetime the husband acted as her agent and made investments' for her. ^.bout October 11, 1897, a written contract was made in her name for the purchase of three lots in the city of Humboldt. The wife was present when the contract was drawn, although the husband acted in the transaction as her agent. When the deed was afterward made she was not present, but gave her husband the purchase-price of the lots out of her own moneys, which he paid to the agent who sold the lots. He took the title in his own name, without her knowledge or consent. The deed was delivered November 16, 1897, and placed on record December 6, 1897. It was kept among his papers at home, but she never saw it, and supposed the title was in her name until shortly after his death. The suit was begun August 4, 1905.
It is claimed by defendants that, as the recording of the deed gave plaintiff constructive notice of the fraud, after a lapse of two years from that date her cause of action was barred. There are no findings by the court except that the allegations of the petition are true. The evidence, however, shows that from the time of the purchase of the property until his death the husband and wife occupied the premises as a home, and that the most, if not all, of the improvements were paid for by the wife out of her separate property, which she owned before the marriage. There remains the single question whether under the facts the constructive notice of the fraud was sufficient to start the statute.
The doctrine is well settled that notice imparted by the record will constitute constructive discovery of fraud, save in exceptional cases where for special reasons the aggrieved person ought not to be bound. Where an express trust exists no statute of limitation will bar its enforcement until the statutory period has elapsed after a denial or repudiation of the trust. In the present case a resulting trust is shown, and from the facts which disclose the trust it appears that the fiduciary relations which existed between the husband and wife furnish as cogent reasons for holding constructive notice insufficient as in the case of an express trust. The husband was the agent of the wife, and it was his duty to disclose the true state of facts, and no duty was imposed upon the wife to search the records or to anticipate that her agent had been unfaithful to the confidence reposed in him.
It was alleged in the petition that during his lifetime the husband represented to his wife and to others in her presence that the real estate was her sole property and that he had no interest therein. There was no evidence offered to support this allegation, however, nor was there any evidence that the husband ever claimed to be the owner or asserted a claim hostile to that of the wife, who was all the time living with him on the premises.
The facts in the case of Fawcett v. Fawcett and others, 85 Wis. 332, 55 N. W. 405, 39 Am. St. Rep. 844, cited with approval by this court in Black v. Black, 64 Kan. 689, 697, 68 Pac. 662, were very similar to the facts in this case. In that case the wife knew for more than twenty years prior to the husband’s death that he had, contrary to her direction, taken the title in his own name, but they were occupying the premises together as a home during all the time, and it is stated in the opinion that, so far as it appears, he recognized and admitted her right to the land and asserted no hostile claim to her absolute ownership. In answer to the contention that the wife was barred by her laches, aside from any statute of limitation, the Wisconsin court said:
“Under these circumstances it should not be held that she ought to have endangered the peace and comfort of the family — perhaps the very existence of their home — by engaging in a lawsuit with her husband over the title to the land in question, and that her right thereto is defeated because she did not do so. Courts of equity do not impute laches by any iron rule, but allow circumstances to govern their decision in every case.” (Page 336.)
In Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, it was held that the statute commenced to run from the recording of the fraudulent deed. But the aggrieved person there was a creditor, and diligence required him to keep himself informed with respect to conveyances made by his debtor. The general rule was also stated and applied in Black v. Black, 64 Kan. 689, 68 Pac. 662. On the other hand, in Duffitt v. Tuhan, 28 Kan. 292, which was a case where a tenant in actual possession of real estate fraudulently acquired the title by taking a tax deed in his own name, the recording of the deed was held not to be constructive notice of the fraud, citing McMahon v. McGraw, and another, 26 Wis. 614. And in Perry v. Wade, 31 Kan. 428, 2 Pac. 787, it was held that the recording of the deed was not constructive notice of the fraud which would start the statute of limitations, because there was not only concealment but fraud and breach of trust and confidence. The distinction is pointed out in Vigus v. O’Bannon, 118 Ill. 334, 8 N. E. 778, as follows:
“The failure to use ordinary diligence to discover the fraud may be excused where there exists some relation of trust and confidence, as principal and agent, client and attorney, cestui que trust and trustee, between the party committing the fraud and the party who is affected by it, rendering it the duty of the former to disclose to the latter the true state of the transaction, and when it appears that it was through confidence in the party who committed the fraud that the other was prevented from discovering it.” (Syllabus.)
The equities in the case are all in favor of the widow and against the claims of the heirs. The husband in his lifetime could not have pleaded the statute in bar of an action by his wife under the circumstances of this case, and the heirs cannot be permitted tq do so now.
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The opinion of the court was delivered by
Mason, J.:
A life-interest in real estate in England vested in Margaret Jenson by the terms of a will, which also provided that upon her death the property should go to her husband, Thomas Jenson, for his life (he to educate and maintain her children out of it), and that upon his death the executors should sell it and divide the proceeds among her children or their heirs. She died in 1882, the only beneficiaries under the will surviving her being her husband and their son, Tom, who was born in 1875. In 1899, by what was understood to be their joint consent, the property was sold, the executors and the father- and son uniting' in the deed. The consideration was £3000, which was paid to the father, who came to this country, accompanied by his son, and invested it" largely in the purchase and improvement of lands for a cattle ranch, taking the title in his own name.
In 1903 the son began a suit against his father, alleging in substance that he had never known until a short time before that the will referred to gave him any interest in the English property; that his father had fraudulently concealed the fact from him and had induced him to sign the conveyance by leading him to believe that it was purely a formal matter, and had procured the cooperation of the executors by representing to them that the purpose of the sale was to procure funds to be invested in land in America for the benefit of Tom, and by promising that such plan should be carried out. The plaintiff therefore asked to be declared the absolute owner of all property into which such proceeds could be traced. The defendant ansAvered denying the allegations of fraudulent concealment and misrepresentation, and taking the position that he held a life-interest in such property, his son being the remainder-man.
The case was tried before a referee', who made detailed findings of fact and conclusions of law in effect sustaining the defendant’s contention as ‘ to the principal matter in controversy. The court, however, took a different view of the evidence, and, setting aside so much of the referee’s report as was inconsistent therewith, gave judgment for the plaintiff. The defendant prosecutes error.
The evidence was partly oral and partly in the form of depositions. Circumstances were narrated from which different inferences might be drawn, and there was some direct conflict of testimony. The brief of the defendant in error contains a suggestion that in the course of other litigation the trial court had acquired information material to the resolution of these contradictions not available to the referee or to this court, and that its conclusions regarding them should therefore control. This is not a consideration that can be given weight here. Inasmuch as the referee’s report set out the evidence in full, “the testimony is presented to this court in the same form as it was to the district court, and hence we have the same opportunity which that court had to determine its force and effect.” (Fountain v. Kenney, 66 Kan. 797, 72 Pac. 392.)
In behalf of Tom Jenson a theory is presented which was outlined in his petition: that he is entitled to recover because of representations made by his father to the executors to induce them to execute the deed to the English property. We cannot perceive that properly there is such an issue in the case. The executors had no power of alienation except as they derived it from the joint consent of the father and son. Their act was merely formal. Practically, Tom Jenson, being entitled to the proceeds of a sale of the property at his father’s death, was the owner, subject to his father’s life-interest. Any disposition of the property or its proceeds to which he and his father might agree was a matter of no concern to any one else. He was of full age, and not under guardianship. The sale was effective only because of his participation in it. The real questions in dispute are: (1) Was his consent to the transaction fairly given with a full understanding of his rights, or was it obtained by a fraudulent concealment of the terms of the will, by which he was deceived into a belief that he had no substantial interest in the matter? And (2) if no fraud was employed, what was the agreement between himself and his father as to the disposition of the proceeds of the sale —was it that the new property purchased was to be absolutely his own, or that the American real- estate should be held as that in England had been — the life-estate in the father, the remainder in the son?
Upon the question of fraud there was a direct conflict of oral testimony between the parties. That of Thomas Jenson was explicitly corroborated by the deposition of the lawyer who arranged the details of the sale, to the effect that he fully explained to the plaintiff his rights at the time of its completion. The other evidence affecting the matter was largely negative or circumstantial. The referee by necessary implication, although not in express language, found against the plaintiff on this issue, and we see no sufficient reason for disturbing the finding.
To establish his claim to the absolute ownership of the American property the plaintiff relied upon evidence that his father at various times had stated that his purpose was to use the proceeds of the- English property to buy a cattle ranch for Tom — to start Tom in business; that he himself should remain in this country but a short time; that he had other means sufficient for his support. These expressions, however, and others of the same general import shown by the record, are consistent with the idea that while the lands were to be bought with especial reference to Tom’s interests — were to afford him a present occupation and ultimately to become his — his father was to enjoy a life-estate in them. No witness professed to have heard the defendant declare unequivocally that he was to renounce such interest on his part. ■ Tom’s own version of his father’s promise was thus expressed: “He said he would come to America, and we would invest the money in a ranch, and I should share it with him.” Upon the issue so presented the referee made the following finding, the portion thereof enclosed in parenthesis being afterward stricken out by the court as not supported by the evidence:
“At the time of the sale of said property known as the Hare and Hounds it was the intention of both plaintiff and defendant that the proceeds derived from said sale should be brought to the United States and invested in a cattle ranch for the purpose of establishing the plaintiff in business, (but it was not the intention at that time of either the plaintiff or the defendant that the defendant should part with or forfeit his life-interest in the proceeds derived from the sale of said Hare and Hounds property.)”
It is unquestionably true that there was much in the relations and conduct of the. parties to afford- just ground for doubting the good faith of the father, and that a plausible argument can be made in favor of the son’s contentions. But the case is peculiarly one in which the appearance and bearing of the parties upon, the witness-stand may have been of great value in deciding between them — may have been a determining factor. We deem it unnecessary to review the evidence more in detail or to recite the' considerations which might be thought to support one view or the other.' The finding quoted is substantially to the effect that the father and son agreed that the interest of each in the property sold should attach to the proceeds and follow them into whatever form they might assume. We cannot say that such finding was without support in, nor that it was against the weight of, the evidence.
An incidental finding upon which the court differed with the referee had relation to a lease of the ranch from the father, to the son, signed by both parties. The plaintiff claims that this lease was a sham; that it was executed to deceive a third person. The referee found otherwise. The matter seems a fair one for his determination. ' But in any event the matter is not very material. The lease is important chiefly as an acknowledgment by the son of his father’s title. If his story is true, such acknowledgment .was made in ignorance of his rights and did not bind him; if it is untrue, the acknowledgment was superfluous. Moreover, the lease was pleaded in the answer,- and the reply tendered no issue regarding it except by alleging that the plaintiff entered into it not knowing that he was the owner of the land.
The referee also made findings, which are not challenged, settling various minor disputes, and establishing that the defendant still has on hand a part of the proceeds of the sale of the English property, amounting to $679.32. His conclusions were that the plaintiff was the owner of this and of the lands referred to, subject to a life-interest of the defendant, and that the costs of the action should be divided. It results from what already has been-said that the judgment must be reversed and the cause remanded, with directions to enter a decree in accordance with the facts as found by the referee. The matter of costs, however, rests in the discretion of the district court, and there are obviously good grounds for permitting their recovery by the plaintiff. The defendant asserted in his answer that he was ready, and had been at all times, to assure to the plaintiff, by any proper instrument, his interest in the lands in controversy — that is to say, the title to them subject to his father’s life-estate. The evidence showed that a few weeks before the suit was begun. Tom was advised by a letter from his father that his rights as remainder-man were recognized, but it does not appear that any offer was ever made, excepting that contained in the answer, to give legal effect to such recognition or to make it a matter of record. The plaintiff therefore was entitled to relief in this respect, as well as to an accounting. So far as the real estate is concerned, he can be protected by a judgment declaring his interest. As to the money, in the absence of an agreement between the parties an order will have to be framed to meet the occasion. | [
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The opinion of the court was delivered by
Porter, J.:
May a county attorney who has been employed by the board of county commissioners to represent the county in litigation in the federal courts in which the county is a party recover fees for his services performed under such contract where the federal court was held in his county? This is the sole question for determination.
Galen Nichols, while county attorney of Shawnee county, was employed by the board of county commissioners to represent the board in the circuit court of the United States, in a suit brought against the county by William H. Keepers to recover $9346 on account of extra material and labor alleged to have been furnished in the construction of the Melan bridge over the Kansas river. The action was pending in the federal court for eight months, and after Mr. Nichols had appeared therein a number of times, and performed services as attorney for the county, the board compromised the case and refused to allow him any compensation for his services. Hence this action.
It appears from the petition that part of the services were performed while the federal court was sitting in Leavenworth county and part while it was sitting in Shawnee county. The trial court sustained a demurrer to that part of the petition in which it is sought to recover for services performed while the federal court was in session in Shawnee county, and plaintiff, electing to stand upon the averments of his petition in' that respect, claims that the ruling was erroneous.
The question presented has been settle^ in favor of the plaintiff’s contention and the county held liable in a case where the county attorney was obliged to attend the sessions of the federal court in another county. David J. Brewer, while county attorney of Leavenworth county, was directed by the county commissioners to perform certain services for his county in the federal court. He performed the services and the county then refused to pay him for them. He brought suit and this court held that he was entitled to recover. (Comm’rs of Leavenworth v. Brewer, 9 Kan. 307.) In that case the services were performed outside of the county, the federal court sitting at the time in Shawnee county.
In Gillett v. Comm’rs of Lyon Co., 18 Kan. 410, the county was held liable for services by the county attorney rendered outside .his county in two suits, one pending in the supreme court and one in Harvey county. (To the same effect see Huffman v. Comm’rs of Greenwood Co., 25 Kan. 64.)
The Brewer case was decided in 1872, and defendant •contends that while it was good law then it is no longer the law, for the reason that the legislature of 1897 repealed the act fixing the salaries of county attorneys and enacted a new provision by which the salaries allowed should be in full compensation for all services performed. Section 139 of the act of 1868 reads:
“The county attorneys of the several counties of this state shall be allowed by the board of county commis sioners, as compensation for their services, a salary as follows(Gen. Stat. 1868, ch. 25, § 139.)
The language of section 7 of the act of 1897 is:
“The county attorneys of the several counties of the state shall be allowed, by the board of county commissioners of their respective counties, the following salaries per annum, as full compensation for all services performed.” (Laws 1897, ch. 131, § 7.)
From the employment of the words “full compensation for all services performed” it is seriously argued that the legislature had in mind the foregoing decisions, and intended thereby to establish a different rule, so that thereafter a county attorney should not be permitted to recover for services performed outside his county. If such was the legislative intent it was certainly not expressed in apt and appropriate language. Two years later the legislature, in reenacting the same law, dropped the word “full” before “compensation” (Laws 1899, ch. 141, § 7; Gen. Stat. 1901, § 3029) and might have omitted the word “all” before “services” without the slightest change in sense or meaning. We cannot believe that the language used in the act of 1868 meant anything less than full. compensation for all services performed, or that the use of the explicit terms “full” and “all” in the act of 1897 added anything of substance to the old law or changed its sense or meaning.
This case is ruled by the David J. Brewer case, unless the fact that the federal court happened to sit in the county where Galen Nichols was county attorney, thus rendering it unnecessary for him to go outside his county while representing the board in the federal court, is a circumstance which calls for a different rule.
Section 136 of the act of 1868, which prescribes the duties of county attorneys, is still the law, and reads as it read when the Brewer case was decided; it still, in general terms defines the duties of county attorneys,, as follows:
“It shall be the duty of the county attorney to ap pear in the several courts of their respective counties, and prosecute or defend, .on behalf of the people, all suits, applications or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested.” (Gen. Stat. 1868, ch. 25, § 136; Gen. Stat. 1901, § 1777.)
The “courts. of their respective counties” was held in the Brewer case not to have reference to the courts of the United States. And we are of the opinion that, without extending the doctrine of that case beyond its logical conclusions, a county attorney who is directed by the county board to defend or represent his county in litigation pending in the United States court may recover for such services notwithstanding at the time the services are performed such court may be held in the same county. No matter where a court of the United States may sit, it is in no sense one of the courts of the county in which it sits. The services performed by the county attorney in the courts of the United States are not those which his duties or the law require him to perform. If the board employ or direct him to act for the county in such courts, the county is liable to him for the services he performs under such employment or direction, except the giving to the board of advice in respect to the litigation.
The sittings of the courts of the United States for the district of Kansas are frequently changed from one county to another as the centers of population and business change. The construction which defendant contends for would not give the statutes fixing the duties and compensation of county attorneys uniform operation. The county of Wyandotte, for instance, where the courts of the United States are frequently held, might become involved in a vast amount of litigation in those courts, and the county attorney might, In the opinion of the board, be better qualified than any one else to represent the county’s interests therein. He would have onerous duties imposed upon him for which he could recover no compensation, while the same officer of an adjoining county could recover for similar services performed for his county in the same-court. The supreme court sits only in Shawnee county. The county attorney of that county, without direction or employment of the board, would be required to attend this court in all case's where the county might be interested, for which he would receive no pay beyond his regular salary, while the county attorney of any other county in the state, whose duties are fixed by the same statute, could recover compensation for similar services in the supreme court, if directed or employed by his county. The law prescribing the duties and fixing the compensation of county attorneys was never-intended to produce such absurd consequences.
The decisions which settle the liability of a county in cases of this character were not placed solely on the ground that the services performed obliged the attorney to go beyond the county, although in all the cases heretofore decided such was the fact, and it was given most prominence. The reasoning of the cases rests, after all, upon the proposition that the services performed are not within the duties imposed by law upon the county attorney. The county attorney, in theory at least, goes beyond the realm of his official duties when he steps into one of the courts of the United States, although it may be sitting in a building across the street from where his office is located. Nor do we-feel disposed in a case of this character to split hairs-over the fact that necessarily the county attorney, while-preparing the pleadings and fitting himself to represent his client properly, may have performed some of his labors while in the county. He is entitled to recover a reasonable attorney’s fee for his services in court, which includes compensation for the labor of preparation, and this without reference to where it is performed. The United States court might appoint a referee to take testimony who would hold the hearing-in the office of the county clerk, or, for that matter, in the office of the county attorney; and still we think the county attorney could recover for his services in appearing before the referee. For any advice given to the board of county commissioners in reference to such litigation he cannot recover, for the reason that to give the board advice on all legal matters is one of the duties of his office. (Huffman v. Comm’rs of Greenwood Co., 25 Kan. 64.)
We conclude that the demurrer should have been overruled, and the cause is therefore reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Porter, J.:
The only question here is whether an attorney employed by the mother to assist in the prosecution of bastardy proceedings is entitled to a lien for his fees upon the money judgment recovered in the proceeding against the father.
Emanuel B. Stewart was convicted in the district court of Franklin county of being the father of a bastard child bom to Anna B. Stewart. Defendant was required to pay the sum of $1200 for the support and maintenance of the child. On the order of the court, W. B. Kiler was appointed trustee of the fund, which defendant at once paid into court. W. J. Costigan was employed by the prosecuting witness to assist the county attorney in the prosecution, and appeared in the proceedings before the justice and in the district court. She agreed to pay him as an attorney’s fee one-third of the amount recovered. It appears that an offer of $500, made by defendant while the case was pending, would have been accepted by the prosecuting witness in full settlement of the matter except for the advice of Mr. Costigan, and there is no question that he performed the services for which he was retained. When the order was made appointing a trustee for the fund Mr. Costigan informed the court of his contract and asked to have his fee paid out of the fund. The court stated that the fund was still in the hands of the court and required Mr. Costigan to make a formal application, with proof. This was done, and a hearing was had upon affidavits, the trustee resisting any allowance of fees, while the mother of the child filed her affidavit stating that she had employed Mr. Costigan with the understanding that he was to receive one-third of the amount recovered and that she desired the fee paid to him. The court refused to make the allowance and held that the attorney was not entitled to any lien upon the fund for his fees. Mr. Costigan has brought the case to this court on error.
Courts have never doubted their authority to allow, nor hesitated to give, to an attorney a lien for his fees upon a fund which his labors have created or assisted to bring into existence, unless some consideration of public policy or other special reason stood in the way of such an equitable allowance.
There is nothing analogous in the doctrine of the cases which refuse an attorney a lien, upon money paid as alimony, for his fees for procuring the allowance. We have no quarrel with the principles announced in the case of Jordan v. Westerman, 62 Mich. 170, 28 N. W. 826, 4 Am. St. Rep. 836, or Lynde v. Lynde, 64 N. J. Eq. 736, 52 Atl. 694, 58 L. R. A. 471, 97 Am. St. Rep. 692, which are cited by defendant in error Kiler. There are valid reasons which control cases of that character but have no application to the present case. In the former case Westerman, the. attorney, collected $4500 alimony, allowed to the wife by the court, and retained one-half. In the Lynde case the amount was $41,000 and the attorney claimed and retained one-half: In each case the court compelled the attorney to relinquish his claim upon the fund and pay the whole sum to his client, because public policy will not uphold a contract which tends toward the separation of husband and wife and which seeks to prevent the adjustment of marital difficulties. Besides, the court always has power to award fees to the attorney for the wife, and, in each of the above cases, it was held that a fraud had been practiced in withholding from the court the object and purpose for which the allowance was to be used.
While the proceedings are carried on in the name of the state, and the statute provides for the arrest and imprisonment under certain circumstances of the person charged with being the father of an illegitimate child, the rules of evidence and the procedure are governed by the law regulating civil actions. The proceeding is therefore more in the nature of a civil action. The right to prosecute has been held optional with the mother. (The State, ex rel., v. Young, 32 Kan. 292, 4 Pac. 309.) Not only this, but she controls the prosecution and may without let or hindrance accept satisfaction and dismiss the proceedings. (Moore v. The State, ex rel., 47 Kan. 772, 28 Pac. 1072, 17 L. R. A. 714; Poole v. French, 71 Kan. 391, 80 Pac. 997.) In the opinion in the latter case it Was said:
“The prosecution is under the direction of- the relatrix; she may accept satisfaction and dismiss the action. (Gleason, Sheriff, v. Comm’rs of McPherson Co., 30 Kan. 492, 2 Pac. 644; The State v. Baker, 65 Kan. 117, 69 Pac. 170.) The money judgment is collectable by her, and her only, if she be alive. Whether it be called ah action'or a special proceeding matters little. It is being prosecuted by a party who has a right under the statute so to prosecute against another party, who is called a defendant, for the enforcement of a right given to her by the statute.” (Page 394.)
Defendant in error Kiler also cites the note to the case of Crafts v. Carr, 24 R. I. 397, in 96 Am. St. Rep. 721, 731, as to the liability of an infant for attorney’s fees as necessaries furnished in actions brought in his behalf. None of the cases in the note is in point, for the. reason that the service for which the allowance in this case is asked was not performed for or on behalf of the infant but on behalf of the mother, who entered into the contract of employment. It is beside the whole question to contend that, because the judgment is in theory to be used for the support and maintenance of the child, the mother cannot out of the amount recovered pay to an attorney his.fee for prosecuting the ac•tion. The statute makes no provision with respect to the manner in which the mother shall expend the money. When it is paid to her she may, so far as the statute is concerned, use it for any purpose of her own ■ — -may buy jewelry with it — notwithstanding the fact that her statutory right to maintain the action is based upon the theory that she is entitled to receive assistance from the father for the support and maintenance of the child. She has the statutory right to prosecute the action and recover although she may have .independent means of her own, or even though the child has already been amply provided for. The fund recovered is hers for any and all purposes, and the child has no legal claim upon it or direct interest in it.
It is argued, however, that the mother has no pecuniary interest in the judgment, and it is said her .only interest in the proceeding is to establish the parentage of the child. Such is not the law under our statute as declared by this court. In numerous former decisions the pecuniary interest of the mother .in the fund has been recognized. In The State, ex rel., v. Reed, 46 Kan. 501, 26 Pac. 956, the trial court gave an instruction that the mother was a mere witness and in effect not pecuniarily interested. This court said:
“This instruction is faulty in several respects. It states that the mother has no pecuniary interest in the support of her child. This statement could only have been made by the trial court upon the assumption that the mother of a bastard child is in no way responsible, under the law, for the support of such child. This is not the law. Under the law, the mother of an illegitimate child is all the while known, and is at all times, at least during its infancy, liable for its support, while the father of such child is unknown until ascertained by judicial proceedings, unless he acknowledge its paternity; and, therefore, he is liable only when the paternity of the child is acknowledged by him, or it is established by judicial inquiry. And when the paternity of the child is established by the judgment of the court, the law does not relieve the mother from liability for the support of her child; but compels the father, thus ascertained, to contribute his share to the support of such child. The mother must still do her part toward caring for and supporting her child. And again, so far as the judicial inquiry, is concerned, the mother, who under the law must alone support her illegitimate child, unless its paternity is ascertained by such inquiry, has an interest in the result of the proceeding, to the full extent of the contribution the court requires the accused, if found to be the father of her child, to make toward its support; and that is the measure also of the pecuniary interest the accused has in the inquiry.” (Page 502.)
In Moore v. The State, ex rel., 47 Kan. 772, 28 Pac. 1072, 17 L. R. A. 714, it was held that the mother might maintain the action although she as well as the child was a resident of Illinois. In the opinion it was said:
“The enforcement of the statute by the mother both protects the municipality from the burden and makes the putative father contribute material aid to the mother in the maintenance and education of their illicit offspring. Our legislation has partaken very largely of this tendency. It seems that such proceedings can be instituted alone on the complaint of the mother. The money is to be paid to her, unless it appears that she is an improper person. She can at any time dismiss the suit, if she enters of record an admission that provision has been made for the maintenance of the child to her satisfaction. Such an entry is a bar to all other prosecutions for the same cause and purpose. Sections 19 and 21 of the act seem to be conclusive against the view that the sole purpose of the proceeding is to protect the public, for it provides that ‘in case of the death of the putative father of such child, the right of action shall survive against his personal representatives, and the death of the bastard child shall not cause the abatement of the proceedings.’ If the sole or principal object of the statute is to protect the public from the maintenance of the child, the proceedings would abate with the death, for with the death the necessity for the statute would cease to exist.” (Page 783.)
In Kolbe v. The People, 85 Ill. 336, it was held that the mother is chiefly interested. The Illinois statute is substantially the same as ours.
In Minnesota, notwithstanding the mother is not given the sole right to institute the proceedings, hers is recognized as the chief interest and as pecuniary. (State v. Zeitler, 35 Minn. 238, 28 N. W. 501.) Again, the same court in another case, after referring to the duties and obligations of the mother to rear and maintain the child, and the statutory duty of the putative father to aid her in this respect, said:
“Now, with these rights, duties and obligations pertaining to the mother and father of a bastard child, how can it be reasonably said that the complaining mother has no pecuniary interest in the result of the suit. One of' the objects of the statute is to compel him to pay to her such sum of money or other property as she may agree to receive in full satisfaction. Such is the language of the statute.” (State v. Nestaval, 72 Minn. 415, 417, 75 N. W. 725.)
The pecuniary interest of the mother and her right to begin, direct, control, settle or- dismiss the proceed ings are not shared by her with any other person; and it would seem to follow necessarily that she may contract for the employment of an attorney to assist the county attorney in prosecuting the action and provide for his payment out of the fund. No valid reason can, we think, be suggested against her right to do this. It is incidental to the right to institute and control the action.
The argument advanced so strenuously that no person can bind the estate of an unborn child,, and therefore the mother is powerless by contract to create a lien upon the fund, falls when it is seén that the judgment is not a part of the child’s estate. The mother is not the trustee of the fund for the child, and has not only the optional right to institute the suit and control it after it is instituted, but she receives the sum awarded in the judgment with the sole right of disposition. ,The argument would apply with equal force to the claim that the mother could not compromise or accept satisfaction and dismiss the proceedings. If the child has the vested interest, and the mother is only the trustee acting for it, she could not, by accepting a grossly inadequate sum, prejudice the child’s interest. But, as we have seen, her right to institute, control or compromise the prosecution is without reference to any supposed right of the child in the fund. »
It was said in argument that if the child should die defendant would have a right to an order of the court refunding to him any unexpended balance that the court might deem proper in consequence of such death, and it was argued that therefore the mother never got title to the fund. Section 3337 of the General Statutes of 1901 provides for such a case where the judgment is to be paid in instalments and the child dies before the last payment. It is sufficient to suggest that after the attorney’s fee is paid it has been expended, and, of course, would, not be part of an unexpended balance-.
It is our opinion that it was error to refuse the allowance of the fees of the attorney, and that they were properly a charge upon the fund. The cause is therefore reversed and remanded, with directions to order payment of the fee to plaintiff in error. | [
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The opinion of the court was delivered by
Mason, J.:
A. B. Hinsdell sued the Atchison, Topeka & Santa Fe Railway Company for false imprisonment. The court instructed the jury that the evidence conclusively established the commission of the tort, and that the only question left for their determination was the amount of damages. They returned a verdict for $500, upon which judgment was rendered, from which the defendant prosecutes error.
The evidence tended to show these facts, among others: Hinsdell delivered to the railway company at Ralston, Okla., for transportation to St. Joseph, Mo., what was called an “emigrant’s outfit,” including some household goods, two horses, harness, and a wagon. The property was shipped accordingly, and. arrived in Atchison on the afternoon of the next day, which was Saturday. Here the plaintiff removed it from the car without having permission from any agent of the company, and started to drive with it across the bridge over the Missouri river, intending to avoid the payment of the freight charges. Discovering the situation, the station-agent telephoned to police headquarters, and upon his statement so made a policeman arrested Hinsdell without process. He was held in custody until some time Sunday morning, when he was discharged without further proceedings. On Saturday evening after his arrest he offered the company’s agent a draft in payment of the freight bill, but this was refused. On his release he went to St. Joseph, where he cashed the draft. He then returned to Atchison, paid the freight bill, and received his property, which had been returned to the company.
We think the trial court erred in holding that the liability of the defendant was conclusively established. There was sufficient evidence to support a finding, not only of the existence of probable cause to believe the plaintiff guilty of grand larceny, but of his actual guilt. In either case the absence of a warrant was unimportant. (Garnier v. Squires, 62 Kan. 321, 62 Pac. 1005; 3 Cyc. 878; 19 Cyc. 351.) If the arrest was lawful the motive for it was immaterial. (12 A. & E. Encycl. of L. 726, note 2; 19 Cyc. 319, 320, note 9; Mullen v. Brown, 138 Mass. 114; Bierwith v. Pieronnet, 65 Mo. App. 431.) The question whether the detention, if originally rightful, became subsequently unlawful depends upon the circumstances — chiefly upon whether it was prolonged for an unreasonable time without a warrant’s being obtained or the prisoner’s-being taken before a judicial officer. (12 A. & E. Encycl. of L. 745, 746.) And it cannot be said as a matter of law that there was an unreasonable delay in this respect in the present instance, in view of the time the arrest was made. These propositions, we think, are abundantly supported by reason and authority.
It is familiar law that larceny may be committed by the wrongful taking of property, by its general owner from the possession of one who has a lien upon it. (18 A. & E. Encycl. of L. 499.) This principle is not disputed, but it is claimed that the railway company in this' case had no lien upon the goods because they were’ accepted under a written contract which made no reference to the matter and included this provision:
“It is distinctly understood and agreed -that all prior understandings or agreements concerning the furnishing of cars or facilities for said shipment or concerning the transportation of said stock, goods and articles, or said shipment, are hereby completely merged and contained in this written agreement, and this written agreement contaihs all the terms, conditions and provisions relating in any manner to the shipment or transportation of said stock, goods or articles.”
It is of course competent for the parties to make an agreement waiving the carrier’s lien, “but a waiver of the lien is not to be readily presumed, and the party insisting upon the waiver must show clearly that the provisions of the special contract are so inconsistent with the existence of the lien as to indicate clearly a waiver of the latter.” (5 A. & E. Encycl. of L. 416.) “No special agreement as to the carriage and delivery, which does not expressly or by clear implication amount to a waiver of the lien, will have that effect.” (2 Hutch. Carr., 3d ed., § 875.) We discover nothing in the provision quoted or in any other part of the contract that is inconsistent with the existence of a lien or that shows a purpose to do away with it.
A rule which if followed here would result in affirming the judgment is thus stated in volume 12 of the American and English Encyclopædia of Law, at page 747:
“As it is the duty of an'officer arresting to present the person for trial without delay, so if the prisoner is released without presentment before a magistrate the officer will be held a trespasser ab initio.”
This rule originated in Massachusetts, by treating the abandonment of a criminal prosecution between the arrest of the defendant and his presentation before a magistrate as analogous to the failure of an officer who has seized property in a civil proceeding to make due return of his writ and applying the doctrine that acts otherwise unlawful cannot be justified by legal process the requirements of which have not been fully complied with. (Tubbs v. Tukey & another, 57 Mass. 438, 50 Am. Dec. 744; Brock v. Stimson, 108 Mass. 520, 11 Am. Rep. 390.) It has been followed in Stewart v. Feeley, 118 Iowa, 524, 92 N. W. 670, and in Pastor v. Regan, 30 N. Y. Supp. 657. In other cases growing out of similar facts, however, the question involved is stated to be whether there was an unreasonable delay in bringing the prisoner before a court, the discharge without such presentation being apparently not regarded as determinative. (See, for example, Leger et al. v. Warren, 62 Ohio St. 500, 57 N. E. 506, 51 L. R. A. 193, 78 Am. St. Rep. 738; Harness v. Steele, 159 Ind. 286, 64 N. E. 875; Cochran v. Toher et al., 15 Minn. 385.) In Mulberry, Appellant, v. Fuellhart, 203 Pa. St. 573, 53 Atl. 504, the rule referred to was invoked, but the court refused to follow it, saying:
“Undoubtedly there are cases where an act in the first instance lawful becomes afterward a trespass ab initio. For instance, where a lawful levy is made but goods are sold without the notice required by the statute. Or where goods are distrained upon for rent and sold without having been appraised and advertised in accordance with the act of assembly. But in such cases, as we understand the line of distinction, when the action taken is lawful, it cannot be made illegal ab initio, unless by some positive act incompatible with the exercise of the legal right to do the first act. The propriety of the arrest in this case is not questioned. Neither was the detention malicious nor wilful; it resulted rather from the clemency of the officer. If the sheriff instead of relenting had proceeded to prosecute the plaintiff . . . there would have been no reasonable ground for complaint. . . . His mistake or his fault, then, lay, not in the arrest, nor in the detention for what under the circumstances was not an unreasonable time. It consisted merely in his failure to prosecute. This was at most an omission or a neglect to do what the plaintiff, after the arrest was once made, had perhaps a right to demand of him. But it has been well said that ‘not doing a thing cannot make a party a trespasser ab initio, because not doing is no trespass.’ . . . The failure, therefore, of the sheriff to proceed with the prosecution was not a direct and positive act, such as is required to convert a legal into an unlawful action, and thus make him a trespasser ab initio.” (Page 578.)
Of the same question, considerad in the light of the practical effect upon the substantial rights of the person arrested of a discharge without a formal hearing, it was said in Mayer v. Vaughan, Q. R. 11 K. B. 340:
“Upon the question of a release without a formal complaint there is more scope for argument. Plaintiff complains that by this course he was deprived of his right to a formal acquittal — a certifícate of which would have been a valid answer to any future reflection against him, based on the fact that he had been under arrest upon a charge of stealing a post-letter. It is plain from the text-books upon the duties of constables that it is their duty to take all arrested persons with the least possible delay before a magistrate. But this must be intended to apply to cases in which the charge against the prisoner is persisted in, and clearly should not apply to cases in which the charge for any reason is dropped. Suppose the case of a constable having made a mistake in his instructions and arrested the wrong man: it seems absurd to suppose that the charge may not be dropped and the person released. ' Such would be the procedure, it appears to me, if the evidence expected to be secured proves to be wanting, as in the case of the supposed pickpocket or counterfeiter, or of the accused letter-carrier. Of course, if the person thus arrested will not accept his release, and demands to be taken before a magistrate, his wish should be respected, but in the absence of any such demand the simple act of a constable in thus releasing a person against whom he finds no evidence of guilt would not of itself suffice, in my opinion, as the basis of a claim for damages.”
We cannot regard the failure to follow dp an arrest with further steps for the prosecution of the person arrested as having any retroactive effect. We see no reason why the matter should be. absolutely controlled by the analogy to civil process. In practical operation.' the rule stated might give anomalous results. For instance, a person suspected of crime may be taken intó custody by an officer without a warrant, the arrest being entirely justifiable because of the existence of probable cause to believe him guilty. Before he can be taken before a magistrate it may happen that circumstances develop showing his innocence. There can be no doubt that on all accounts he ought to be at once discharged. As was said in Harness v. Steele, 159 Ind. 286, 64 N. E. 875, “an officer who has made an arrest without a warrant may and should, on becoming satisfied thereafter that the accused is not guilty of the offense, release him.” (Page 294.) A rule that such discharge would render the officer a trespasser from the beginning would have a harsh and unfortunate operation upon both parties to the transaction. We see no occasion for holding that the mere act of discharge, in and of itself, changes the essential character of the restraint previously exercised. An arrest lawfully made without a warrant justifies holding the. prisoner long enough to procure a warrant or to present him before a magistrate, and no longer. When without just excuse his detention is prolonged beyond the time reasonably necessary for that purpose it then ceases to be lawful and becomes unlawful, not from the beginning, but from that moment. And if before that change has taken place he is released he has suffered no wrong. His restraint at any instant is either legal or illegal. If it is legal, and those responsible for it, whether through clemency or indifference, see fit to set him at liberty, he is not thereby aggrieved. If it is illegal, he has a right of action irrespective of his release. The circumstances of his discharge, however, may be of great importance as a matter of evidence, in so far as they throw light upon whether the detention was at any time legal — whether the arrest was made in good faith.
The claim is made that the evidence bears no other interpretation than that the arrest of the plaintiff was not intended as a step in a criminal prosecution but was only a device to enable the defendant to collect a debt from him. It is true that there was uncontradicted testimony that the railroad agent, in procuring the arrest of Hinsdell, described the offense charged against him as running away without paying his bill, and the same agent as a witness for the defendant said that all the company wanted out of him was the amount of the freight charges. But it was not important, if a crime had been committed, that those causing the arrest of the offender should describe it with technical accuracy. While the station-agent said upon the stand that he would have released Hinsdell upon the payment of the money due the company, he also said that he would have been governed as to any further prosecution by the advice he might receive from an attorney. The situation presented by the fraudulent taking of goods by their general owner from the possession of one having a special interest in them is unusual, and ignorance of the rights of individuals of the public with reference thereto is not to be taken as evidence of bad faith. The entire testimony, so far as it is binding upon the defendant, is consistent with the idea that the plaintiff unlawfully took his property from the car where the company had a right to retain it until the freight charge was paid — an act which the law calls larceny — in this case a felony; that bn the discovery of the fraud he was rightfully arrested, at the request of the company’s agent; that before he had been detained for an unreasonable time, the stolen goods having been returned, the prosecution was abandoned and he was discharged. These facts would not of themselves give him a right of recovery.
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.:
In November, 1899, O. W. Sparks was elected sheriff of Cherokee county for the regular term, which under the law as it then stood was fixed at two years, beginning with the ensuing January. As required by the statute (Gen. Stat. 1901, §§ 1740, 1741) he gave a bond, signed by himself and several sureties, for the faithful discharge of his duties. In 1901 the legislature did away with elections in the odd-numbered years. (Laws 1901, ch. 176; Gen. Stat. 1901, §§ 2751-2755.) The result of this action was to extend Sparks’s term until January, 1903 (Pruitt v. Squires, 64 Kan. 855, 68 Pac. 643), and he continued to hold the office until that time. During the year 1902 he collected and retained various fees which it may for present pur poses be assumed he should have paid over to .the county. An action was brought by the county commissioners upon the sheriff’s bond to recover the amount so withheld. The matter was sent to a referee, who reported that neither the sheriff nor his sureties were liable in the action. The court approved the report as to the sureties, but held that the county was entitled to recover against the principal. This proceeding is brought to review such rulings — the commissioners claiming that their demand against the sureties should have been sustained, the sheriff that he also should have been exonerated. The only questions involved are whether the bond is to be so construed as to make the sureties answerable for any misconduct of the sheriff occurring during the year which the legislature added to his term after his service had begun, and whether a recovery can be had against the officer himself for such misconduct in an action upon the bond.
It is true that the constitution provides (formerly by section 3 of article 9, now by section 2 of article 4) that “all county . . . officers shall hold their offices for the term of two years, and until their successors shall be qualified.” (Laws 1901, ch. 424, § 1.) And it was decided in Pruitt v. Squires, 64 Kan. 855, 68 Pac. 643, that in such a case as the present the sheriff continued to hold office from January, 1902, to January, 1903, in virtue of that provision — -that his service for that period was under his original election —that the effect of the statute was to extend the old term, not to create a new one. The bond in question, following the language of the statute, purported to guarantee the good behavior of the sheriff “during his continuance in office, by virtue of said election.” Literally construed, therefore, the terms of the bond were broad enough to cover the misfeasance here complained of. But it is urged with much force that the sureties, being favorites of the law, are entitled to any reasonable construction that .will relieve them from liability. There is a sharp conflict of authority upon the question whether, notwithstanding a statutory provision that an officer’s term shall continue until his successor has qualified, a bondsman’s liability does not cease as soon as a reasonable time has elapsed to permit such qualification, even although it does not take place. The authorities on the subject are collected in volume 27 of the American and English Encyclopedia of Law, at page 535, notes 5 and 6, and in a note in 103 Am. St. Rep. 932. This court, in Riddel v. School District, 15 Kan. 168, definitely took a position in line with the cases which favor the surety by limiting his liability closely to matters arising in the regular term for which his principal was chosen. So in Life Association v. Lemke, 40 Kan. 661, 20 Pac. 512, it was said:
“It will be conceded that if the bond is an official and an annual one, the obligors are only bound for the defaults that occurred during the year for which the bond was given. The contract of a surety is favorably regarded by the law, and even in cases where the officer is authorized to hold over his term and until his successor is elected and qualified the liability on the official bond is not extended beyond the duration of the term. When an officer is chosen for a term of limited duration and a bond for the faithful performance of duties is given, the presumption is that the obligors or sureties only contract for the faithfulness of the officer during that time, and the obligation of the sureties is not extended by the mere fact that such officer is reelected or for any reason holds over the term.” (Page. 662.)
The present case is peculiarly one which calls for the application of the principle by which a liberality of interpretation is allowed for the benefit of a surety. When Sparks’s bond was given those who signed with him might perhaps have been expected to take into account that through some accidental circumstances— such as the delay of his successor to qualify — his term of office might be extended for some inconsiderable period beyond the normal two years. But they could not have anticipated that the legislature would add a whole year to his time of service. No such change could possibly have been contemplated, and if the contention of the county were correct the practical effect of the statute would be to impose upon them an obligation which they might never have been willing voluntarily to assume.
In King County v. Ferry, 5 Wash. 536, 32 Pac. 538, 19 L. R. A. 500, 34 Am. St. Rep. 880, the precise question here presented arose. Upon the authority of that case it is said in volume 27 of the American and English Encyclopædia of Law, at page 535:
' “Where the term of office is extended by statute after the execution of the bond, the sureties thereon are not liable for the faults occurring during the extended term, though the statutes provide that the officer shall continue in office until his successor is elected and qualified.”
The grounds of the decision are shown by this excerpt from the opinion:
“No consideration of the interests of the public will justify a court in extending by construction the obligation of a citizen under his contract beyond the scope of its natural import. The contract which embodies this obligation, like any other contract, must be construed to give effect to the intention of the parties, and that intention is to be gathered from the language employed and the circumstances surrounding the execution of the instrument. Now, what were the circumstances surrounding the execution of this bond, and what length of time would these bondsmen naturally think they were contracting with reference to? The correct answer to the last question determines their liability. There need be no artificial rules of law applied. It is a simple question of intention gathered from the language of the contract, read in the light of the surrounding circumstances.
“At the time this bond was given the term of office of the treasurer as provided by law was two years. It is argued that the bondsmen entered into their obligation in view of the possible modification of their liability by the legislative assembly, and with notice that the legislature would have a right to continue the incumbent in office beyond the term for which he was elected. So far as the first proposition is concerned, the legislature would not have any right to pass a law that would change the terms of the contract or in any way impair its obligation; and so far as the second proposition is concerned, while the sureties might be held to take notice that the legislature could extend the term, they would not be required to take notice that the legislature in such an event would make no provision for the giving of a bond by the treasurer for the extended term. The sureties had a right to take notice of the law as it existed, and to contract with reference to the law as it existed. That is, the law which would naturally be in their minds when they entered into the contract. And the idea that they would at such a time enter into a speculative calculation of what the law might be in the future, and shape their contract with reference to such possible change, is a strained one.
“The law at that time made the office one of a definite term; that term was two years; and the sureties had’ a right to, and no doubt did, take that law into consideration, and that was the law that was imported into their contract. There is no doubt that the central idea was that the term was for two years. This was the law; this was the ordinary state of affairs, and the ordinary time for which bonds for county officers were given. A man might willingly go on a bond for two years who would hesitate or absolutely refuse to go on for a longer period.” (Page 550.)
We think the view taken by both the referee and the trial court as to the non-liability of the sureties is in accordance with sound reason as well as with the weight of authority. The question as to the sheriff himself, however, must be decided upon other considerations. While the petition necessarily states facts sufficient to constitute a cause of action against him for the violation of his official duty, if he is to be held in this proceeding it must be upon the bond itself, since it is only by reason of declaring upon that that the plaintiff was able to proceed against him and the bondsmen in the same action. He stands upon a very different footing from that of the sureties. He can invoke no liberality of construction or leniency of treatment. Moreover, while the bond was in a sense a contract even as to him, he executed it in compliance with the statute, as a prerequisite to his induction into office. It was on his part a mere acknowledgment of obligations which the law devolved upon him. The extension of his term was a benefit conferred rather than a burden imposed upon him. Unlike the sureties, he had it in his power to end his responsibility at any time by resignation. He could not have taken the office without having executed .the bond, and his continuing to act as sheriff was a constantly renewed assertion of its vitality. Notwithstanding the exemption of the sureties, the principal cannot be heard to say that his own liability upon the bond had ceased while he was in effect asserting a right under it.
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The opinion of the court was delivered by
Mason, J.:
Thomas Patton chopped down a telephone pole which stood in a street in the city of Luray, in front of a lot owned by him. He was prosecuted under a statute making the malicious destruction of the property of another a misdemeanor (Gen. Stat. 1901, § 2391), and, having been convicted, appeals.
The trial court instructed the jury that no one has the right to destroy the property of another under the claim that it constitutes a nuisance, unless it has been declared to be such by some competent authority or by a judicial determination. This, of course, was incorrect as a general statement, inasmuch as it is familiar law that any one may, without invoking the decision or aid of a court or other public tribunal, abate a private nuisance or a public nuisance from which he sustains a special injury, so that he acts only so far as is necessary for his own protection and does not disturb the public peace. It is hardly necessary to cite authorities in support of this proposition, since its substance is to be found wherever the matter is discussed. The cases bearing on the matter are collected and classified in volume 1 of the American and English Encyclopæedia of Law, at pages 79 to 86.
The conviction must therefore be set aside unless it can be said that no prejudice resulted to the defendant from the erroneous instruction. And this depends upon whether there was any evidence that the pole referred to was, as to the defendant, a nuisance. If not, it was proper to instruct the jury that he had no right to cut it down, and that was the effect of the instruction complained of.
The evidence developed that the pole was a part of a telephone system owned by Daniel Walters, which had been constructed before the incorporation of the city; that the city had never granted him the right to maintain the poles in the streets, although the public authorities apparently acquiesced in their remaining there, and no order was ever made for their removal. The defendant contends that although the statute (Gen. Stat. 1901, § 1342) authorizes corporations to place telegraph poles in public roads and streets, no such privilege is granted to individuals, and therefore that the original setting out of the pole in question by Walters was wrongful; and that at all events its maintenance after the organization of the city could not he lawful until such time as the council should grant him a franchise. Possibly, however, the statute relating to corporations might by a liberal construction be held to apply also to individuals; or it may be that, apart from this statute, as suggested in the specially concurring opinion of Mr. Justice Burch in McCann v. Telephone Co., 69 Kan. 210, 228, 76 Pac. 870, 66 L. R. A. 171, the public highways should be deemed open for reasonable use by telephone and telegraph companies in maintaining their systems of communication, upon the theory that such use is within the general purpose for which roads are created. And if Walters constructed his telephone line along the street at a time when he had a legal right to do so there is room for a plausible argument that he did not become a trespasser by the mere fact of the territory being taken into a city. The attorney-general confesses error and does not resist a reversal. Therefore we have not the advantage of any argument upon these questions excepting that presented in behalf of the defendant. They are of enough importance and difficulty to render it inadvisable to decide them except upon a full presentation. We shall on that account assume for the purposes of the case that Walters had the same rights as though he had been granted a franchise to maintain poles and wires in the streets of Luray.
The defendant attempted to justify his conduct upon the theory that he was privileged to remove the pole merely because it stood in front of his property, inasmuch as Walters had no right to maintain the pole anywhere in the street. The assumption just stated bars a justification upon this ground. But there was testimony from which it might be inferred that he also claimed, and with just cause, that the pole cut off convenient access to his lot from the street by reason of the particular place in which it was planted, and that this inconvenience to him could have been remedied by moving it a few feet to a position where it would serve the purpose of its owner equally well. This raised an issue for the consideration of the jury. If the pole was, without necessity or reason, so placed as to hamper the defendant in the use of his property, it became as to him a nuisance which he had a right to abate. He was entitled to submit to the jury the question whether that condition existed. The instruction referred to prevented this, and compels a reversal of the judgment. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On June 14, 1904, Clark Smith became a member of the Ancient Order of United. Workmen, in the Courtland lodge, and there was then issued to him a benefit certificate, in which his mother was named as beneficiary. At that time Smith paid $1.10 to the financier of the lodge, fifty cents of which was paid as a fee for the benefit certificate, and the-remaining sixty cents was designated as a sum equal to one assessment; and whether this should be treated as a payment of an assessment is a matter of dispute between the parties. After receiving the beneficiary certificate Smith paid all the assessments, as they were-made, until the April, 1905, assessment of sixty cents, which was due and payable on April 28, but no payment was then made. The quarterly dues, which were-one dollar, payable in advance, had been paid as they fell due, except for the quarter beginning in April, 1905. On or about May 12, 1905, the financier of' Courtland lodge sent Smith the following written letter ■ and notice:
“Courtland, Kan.
“Mr. Clark Smith, Formoso, Kan.:
“Dear Sir and Brother — I hereby notify you that’ you are suspended from the A. O. U. W. for nonpayment of April assessment #4 and dues. We have-one assessment for May. So in order for you to be reinstated again you will have to pay assessments Nos. 4 and 5 and $1 dues for April. The total amount is. $2.20. Please send $2.20 to me at once and be reinstated. Yours truly,
C. E. Halberg, Fin.”
In response to this notice, and on May 15, 1905, Smith sent the amount demanded and paid the same, to the financier, who accepted it as payment of the delinquent assessment and dues, and this money was still in the hands of the order when l^ie action was brought. —December 15, 1906. Smith died on May 17, 1905. The order refused to pay the insurance, and hence this, action was brought by the beneficiary to recover it.
The refusal to pay was based on the failure of the' insured to pay dues and assessments at the appointed times, which, it is claimed, operated to forfeit all rights. which the insured or his beneficiary held or could claim under the certificate. It is not denied that all Smith owed under the insurance contract had been paid before his death, but the claim is that the last assessment and the last quarterly dues were not paid in time. In behalf of the beneficiary it is claimed that there was in fact no default as to the April assessment, and that while the quarterly dues which should have been paid on April 28 were not paid until two weeks later the by-laws provide that a member qr his beneficiary shall not be barred from the benefits and privileges for non-payment of dues until there has .been a suspension for a period of six months. It is further contended that if there had been default, as is claimed by the order, it had waived a forfeiture by asking for the delinquent payments and receiving them upon the declaration that if payment was made Smith would be ■ reinstated and afterward holding the money thus paid from May 14, 1905, until after the action was brought' —December 15, 1906.
First, as to the non-payment of the assessments: It is conceded that the April assessment was not paid, before April 28, unless the sixty cents (the amount of .' one assessment) which was collected from Smith when he joined the order may be treated as the payment of an assessment. The dispute grows out of confusion and conflict in the language of the by-laws of the .order relating to the subject. In one section it is provided:
“The beneficiary fund shall be composed: First, of a sum equal to the amount of one assessment, to be paid by each and every member as a part of the admission fees; and, second, from the proceeds of the assessments made from time to time upon the members as hereinafter provided.”
In another section specifically providing what assessments shall be due and payable from members it is provided, among other things, that the member shall pay “the amount of one assessment according to. his •class and rate as herein, specified as and for a regular assessment on each calendar month, commencing with the first calendar month after the member receives the workman degree.”
It is therefore contended and the trial court held that the first assessment of sixty cents, which was paid on June 14, 1904, should have been credited to July instead of June, under the provision that assessments should commence with the first calendar month after the insured became a member of the order. There is an inconsistency in these by-laws. According to the one last mentioned Smith made an excess payment. Now should these by-laws be interpreted in a proceeding where a forfeiture is insisted upon? It is well decided that forfeitures are odious and will not be enforced in doubtful cases or where they are not definitely provided for in the contract, and that where there is inconsistency in the by-laws and an interpretation is permissible the court will so construe them as to give the insured the benefit of the provisions favorable to him. (Pyramids v. Drake, 66 Kan. 538, 72 Pac. 239; Insurance Co. v. Milling Co., 69 Kan. 114, 76 Pac. 423; United Workmen v. Haddock, 72 Kan. 35, 82 Pac. 583.)
So construed, there was an excess payment of one assessment, and when this, is credited to the insured, as it should have been, there was no default in assessments, and the one which the order demanded and received for April, 1905, was not due from Smith. The trial court correctly held that this excess payment should be credited on the subsequently accruing assessments, and if this be done there was no default or ground for forfeiture on that account. (Fraternal Aid Association v. Powers, 67 Kan. 420, 73 Pac. 65; Benefit Association v. Wood, 73 Kan. 124, 84 Pac. 565.)
In respect to dues the by-laws are not free from doubt. There is a provision that the failure to pay dues when due shall disqualify the member from voting or holding office in the lodge, and shall operate to suspend the benefit certificate of such member, and, besides, it provides for a method of reinstatement. This is followed by a provision that “whenever the beneficiary certificate of a member has been suspended for non-payment of dues and shall remain so suspended for a period of six months such member shall stand suspended from benefits and privileges of the order, and his beneficiaries thereby lose all right to any portion of the beneficiary fund.” Now, it will be observed that the beneficiary certificate was not suspended for six months, but, as we have seen, the suspension, if there was one, was only for a period of about two weeks. There are other by-laws somewhat inconsistent with those mentioned, but these provisions are fairly open to the interpretation that the beneficiary shall not be deprived of benefits or lose his rights to the beneficiary fund except where there has been a six months’ suspension. Especially should this be so where the insured paid the delinquent dues upon request and did everything which devolved upon him to do.
Aside from these considerations, and assuming that there was an actual default both as to assessments and dues, and that there was no reinstatement as the by-laws require, the order should be held to have waived its right to insist upon a forfeiture. Its acts and conduct in respect to this certificate after April 28 preclude it from making the defense of forfeiture. The financier, who represented the order, in effect said to the insured: “You áre delinquent and have been suspended. Now, send $2.20 to me at once and be reinstated.” The proposition, as will be observed, is not that the insured should pay this money, and then, if the lodge were willing, be reinstated, but the natural import of the language used is that the payment of the amount would accomplish reinstatement and put him again in good standing in the order. The money was received by the representative of the order, was kept for seven months, and was still retained when this action was brought.
The receipt of an assessment and its retention is ordinarily regarded as a waiver of a ground of forfeiture. In Insurance Co. v. Eggleston, 96 U. S. 572, 24 L. Ed. 841, it was said:
“Courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of action,' on the part of the insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not. be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.” (Page 577.)
(See, also, Bailey et al. v. The Mutual Benefit Association, 71 Iowa, 689, 27 N. W. 770; Warnebold v. Grand Lodge, 83 Iowa, 23, 48 N. W. 1069; Dennis v. M. B. Association, 120 N. Y. 496, 24 N. E. 843, 9 L. R. A. 189, 17 Am. St. Rep. 660; Lord v. National Protective Society, 129 Mich. 335, 88 N. W. 876; Titus v. Glens Falls Insurance Company, 81 N. Y. 410; Grand Lodge A. O. U. W. v. Lachmann, 199 Ill. 140, 64 N. E. 1022; Supreme Tribe of Ben Hur v. Hall, 24 Ind. App. 316, 56 N. E. 780, 79 Am. St. Rep. 262.)
Although the by-laws of the order provided for a vote of the lodge before reinstatement of a party, the payment of the money was all that was required of the insured. He had done his part and had in effect been told that no more was- necessary. No objection could have been made to reinstatement, -as he -was conceded to be a young man of good character and to measure up to the requirements of the order. Besides, the financier testified that it was the practice in such cases to reinstate at the regular meeting following the report of payment. In this case the next lodge meeting after payment occurred two hours after his death, and hence reinstatement became, an impossibility. However, to show how the lodge regarded the insured and its obligation to him as a member, it met and voted to contributé toward the funeral expenses, and this evidence was admissible to show the attitude of the order toward him. Again, assuming that the assessment for April was in default, it is conceded that he was not delinquent on the May assessment, and could not have been until the 28th day of that month. The representative of the order solicited and accepted the’ payment of the May assessment with the April one, claimed to be overdue. In that way he was treated as a member of the order, and in effect was told that notwithstanding the previous delinquencies he was still liable to the obligations of membership. The collection of the May assessment (on which he was not in default) as if he were in good standing is strong evidence tending to show a waiver of any past delinquencies of which the order had knowledge. (Modern Woodmen v. Jameson, 48 Kan. 718, 30 Pac. 460; Tobin v. The Western Mutual Aid Society, 72 Iowa, 261, 33 N. W. 663; Rice v. New England Mutual Aid Society, 146 Mass. 248, 15 N. E. 624; Metropolitan Accident Ass. v. Windover, 137 Ill. 417, 432, 27 N. E. 538; Elmer v. Mutual Benefit Life Ass’n, 19 N. Y. Supp. 289; Painter v. The Industrial Life Association, 131 Ind. 68, 30 N. E. 876; 2 Bacon, Ben. Soc. & Life Ins., 2d ed., § 431.)
No error was committed in overruling the demurrer to the petition, nor do we find any prejudicial error in the rulings on the evidence. That which has been already said answers a number of the points presented by the plaintiff in error.
Finding no material error, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
At the outset of this case the defendant in error denies the right of the plaintiff in error to be heard and moves the dismissal of the action in this uourt.
The case presented here for review, from the standpoint of the plaintiff in error, is, in substance, this: In his action against the railway company issues of fact had been framed and a jury had been impaneled to try them; certain material and competent evidence had been introduced which, if true, established some liability against the defendant; certain other material and competent evidence was offered by the plaintiff further to establish his claim, but it was erroneously excluded by the court; thereupon the plaintiff rested his case, and, on the motion of the defendant, the court instructed the jury to return a verdict in its favor. Thus a trial of issues of fact was, at least, begun, and the facts were erroneously determined adversely to the plaintiff, but not by the jury, to whose verdict thereon he was entitled.- He asked for a reexamination of these facts in the same court by filing a motion for a new trial.
The defendant, on the other hand, says that the order of the court directing a verdict for it was equivalent to‘a demurrer to the plaintiff’s evidence, and involved only a question of law, to wit: Conceding the evidence to be true, and allowing all inferences favorable to plaintiff reasonably to be drawn therefrom, does it establish a cause of action in favor of the plaintiff? This contention seems to be supported by Sullivan v. Phenix Ins. Co., 34 Kan. 170, 8 Pac. 112, to the extent, at least, of holding the direction of a verdict equivalent to a demurrer to the evidence. From this position the defendant advances another step and says a motion to direct a verdict is equivalent to a motion for judgment upon the pleadings and opening statement of counsel, and, as was held in Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299, this raises a question of law only and no motion for a new trial is necessary to enable the aggrieved party to bring the decision to this court for review. Wherefore, the defendant says, in this case the motion for a new trial was unnecessary, and the fact that such a motion was filed did not extend the pendency of the action or the time of making and serving a case-made; and, as the' order purporting to extend the time was made more than ten days after the verdict was rendered, the court had lost jurisdiction to make it, and therefore the action here should be dismissed.
The argument is ingenious but is unsound. As defined by section 265 of the code (Gen. Stat. 1901, § 4712), a trial is a judicial examination of the issues, whether of law or fact, in an action; and a new trial (Code, § 306; Gen. Stat. 1901, § 4754) is a reexamination in the same court of an issue of fact, after a verdict by a jury, report of a referee or a decision of a court. The same section provides that the former verdict, report or decision shall be vacated and a new trial granted on the application of the party aggrieved (which section 309 [Gen. Stat. 1901, § 4757] provides. must be by motion on written grounds) for certain causes specified affecting materially the substantial rights of such party. Some of the causes specified are: Any order of the court by which the party is. prevented from having a fáir trial; that the decision is not sustained by sufficient evidence, or is contrary to law; or error of law occurring at the trial and excepted to at the time. (Code, § 306; Gen. Stat. 1901, § 4754.)
Strictly construed, then, as defined by the code a' trial involves the judicial examination of all the issues of law and fact in an action, while a new trial involves only the reexamination of an issue of fact. That this strict construction is not applicable to new trials of" ordinary actions, in which the law applicable varies to the varying facts pleaded or proved, is apparent when we consider the grounds for which new trials “shall be-granted” as prescribed, some of which involve only a question of law. These must be reexamined, both on the hearing of the motion for the new trial and on the new trial, if granted.
Issues of law are not ordinarily framed in an action by the petition and answer, or by the answer and' reply, in the sense that a proposition of law is asserted' in one pleading and denied in another; but such issues may arise in many ways at almost every stage of the action, and are sometimes determinative of the action and sometimes not; sometimes they arise in the course of the trial and sometimes before the trial is commenced.
It goes without saying that there can be no new trial until there has been a trial; and, by a fair construction of the code, it must be such a trial as results or should result in a verdict, a report of a referee or a decision by the court which involves and determines the facts in issue. Otherwise there could be no new trial “of-an issue of fact.” It follows, therefore, that whenever' a trial has been had upon issues of fact, which trial results in a verdict, report of a referee or a decision which determines such facts, either party who feels himself aggrieved may file his motion for a new trial on the grounds and within the time prescribed, and, until such motion is disposed of, the action is still pending and the statutory time for preparing a case-made for an appeal does not begin to run.
This view involves no conflict with, or modification of, Wagner v. Railway Co., 78 Kan. 283, 85 Pac. 299. In that case judgment was rendered upon the pleadings and admitted facts. There had been.no trial of any issue of fact, and hence there could be no new trial. It is also in accord with Sullivan v. Phenix Ins. Co., 34 Kan. 170, 8 Pac. 112. In that case the court directed a verdict for the defendant upon its conclusion that the plaintiff had produced no evidence tending to establish his cause of action. This court viewed the evidence differently and granted a new trial.
It is not suggested by the defendant how the verdict in this case could have been disposed of other than by a motion to set it aside and to grant a new trial. It is said, however, that in passing upon the request for an instructed verdict the court will be presumed to have accepted all of the plaintiff’s evidence as true, and to have accorded him every favorable inference reasonably to be drawn therefrom, and then it decided that the evidence so considered did not tend to prove a cause of action in his favor. We think, however, that the plaintiff was entitled to a verdict of the jury, under proper instructions, upon his right to recover of the defendant any damages, and, if so, the amount thereof, under his evidence tending to show that he ordered cars of the defendant’s agent for the purpose of shipping cattle at a reasonable time before the timé of shipment and that he had his cattle at the station at the proposed time and the defendant failed to provide the cars as ordered; especially as this failure was entirely unexplained.
One contention of the plaintiff is that he offered competent evidence to prove material facts on the trial and that the court by its order excluded the same. Whether this be really true or not, and of'it we shall speak later, he had a right to re-present the question, as he did, in a motion for a new trial; and when the court again decided adversely to him thereon he had the right to appeal and to have the decision of this court thereon.
It appears by the record that no judgment was in fact rendered on the verdict but the action remained pending upon the motion until that was decided. The court had jurisdiction at any time within ten days thereafter to make and serve a case-made for appeal. The motion to dismiss is denied.
Proceeding to the consideration of the errors assigned, we are of the opinion that when a train-dispatcher’s office is supplied by a telephone connected with a system of telephone wires and offices, and a party goes to another telephone office so connected and calls for the train-dispatcher, and the call is responded to, the party should be allowed to testify who the person responding said he was, even though the witness has no acquaintance with the dispatcher and does not recognize the voice. Also, if the person responding said he was the train-dispatcher the witness may testify to the conversation as if had face to face. The rule seems to be the same as if the witness, unacquainted with the officer, had gone into the dispatcher’s office and inquired for him and a man had responded: “I am the dispatcher; what can I do for you?” The witness would be allowed to testify to the conversation had, so far as relevant to the issues being tried. We are, however, unable to say from the record that this error was prejudicial, in view of facts subsequently developed in the evidence. On the general proposition of telephonic communications see Oskamp v. Gadsden, 35 Neb. 7, 52 N. W. 718, 17 L. R. A. 440, 37 Am. St. Rep. 428, and note; 27 A. & E. Encycl. of L. 1091.
It is urged, and we think correctly, that the court erred in excluding portions of the depositions of witnesses Norton , and Eeed. The evidence excluded was in verification of exhibits from the books of the Kansas City Stock-yards Company which received the cattle and of exhibits from the books of the commission company which sold them. The witnesses respectively had charge of the office in which the books were kept concerning which he was interrogated, but in neither case did he hold the pen that made the entries and in neither case could he testify of his own knowledge that the entries were correct. But their evidence did show that the entries were made in the usual course of business, and that the clerks who made the entries .derived their knowledge of the facts entered from memorandum slips and oral reports made by the weighers and yardmen; also, that the books and the witnesses who made the memoranda and reports were out of the state and beyond the jurisdiction of the court.
It is a matter of common knowledge, and, hence, one of which the courts should take judicial notice, that in the great and multifarious business of a stockyards company the clerk or bookkeeper who makes the entries of the transactions in the books at the offices knows personally nothing of the correctness of the entries, but records only what he learns from others by memorandum slips or oral reports from others, who, in turn, may have derived their information from still others; also, that it is difficult and often impossible to secure the evidence of all these persons. It is also apparent that there can be no motive for falsifying such entries, and the entire business transacted by and through this great agency, running into millions annually, is based upon the fairness and accuracy of just such entries in the books of the stock-yards company and the books of the numerous commission companies. The courts should regard, as some evidence of the facts they purport to record, such entries, made from day to day in the regular course of business, without inquiring of the clerk in- whose handwriting they appear what he knows of the correctness thereof, when it is evident he knows nothing; and without inquiring of the yardman who reported to the clerk or the weigher who reported to the yardman what he remembers of the transaction, when it would evidently be an impeachment of his veracity if he testified he had any particular remembrance of one transaction among the hundreds. Old rules of evidence — still, generally, good rules — must so far yield to new conditions as not greatly to impede the purpose for which they were formulated, viz., the ascertainment of the truth in relation to disputed facts in courts of justice. It is well said in volume 2 of Wigmore on Evidence, section 1530:
"The conclusion is, then, that tuhere an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the present exception, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so. Why should not this conclusion be accepted by the courts? Such entries are dealt with in that way in the most important undertakings of mercantile and industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise; nor does the practical impossibility of obtaining constantly and permanently the verification of every employee affect the trust that is given to such books. It would seem that expedients which the entire commercial world recognize as safe could be sanctioned, and not discredited, by courts of justice. When it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the court room. The merchant and the manufacturer must not be turned away remediless because methods in which the entire community places a just confidence are a little difficult to reconcile with technical judicial scruples on the part of the same persons who as attorneys have already employed and relied upon the same methods. In short, courts must here cease to be pedantic and endeavor to be practical.”
(See, also, Wright v. Railroad, 118 Mo. App. 392, 94 S. W. 555; Atchison, T. & S. F. Ry. Co. v. Williams [Tex. Civ. App.], 86 S. W. 38.)
It is urged by the defendant that the errors, if any, in the introduction of evidence were not prejudicial and should be disregarded for the reason that it alleged in its answer that the plaintiff and defendant “entered into” a written contract of shipment, which, it says, is equivalent to alleging that the written contract was executed by the parties, and that the plaintiff did not in his reply deny the execution thereof under oath; that the contract contained the provision “that as a condition precedent to his [the plaintiff’s] right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company . . . before such stock shall have been removed from the place of destination above mentioned” etc; that it was not alleged by plaintiff that such notice was given, nor was any excuse given for the failure to give it; that therefore the plaintiff was not entitled to recover in any event, and no error in the trial could be prejudicial to him.
Assuming, but not deciding, that the contention of the defendant in regard to its pleading the written contract and the failure of the plaintiff to verify his denial of the execution thereof is correct, we do not think the conclusion follows. Of the claims for damages, one is for shrinkage in the weight of the cattle in consequence of the failure of the defendant to furnish cars at the time they were ordered, which necessitated the holding of the cattle at the place of shipment. Another claim is for damage to the cattle after the arrival at the destination, on account of the carrier’s negligent delay, resulting in loss of market and shrinkage. On the authority of Railway Co. v. Frogley, 75 Kan. 440, 89 Pac. 903, and Railway Co. v. Fry, 74 Kan. 546, 87 Pac. 745, it must be said that the contract, if it is to be considered, did not preclude a recovery of such damages without the notice. The defendant had full knowledge of the holding of the cattle before they were loaded, and had full opportunity to inspect them, which is the object of the notice. As to the loss of market, and other damages claimed after arrival at the destination, it was impossible to give the notice as required by the contract; hence this claim is not covered by the stipulation.
It appears therefore that the instruction to return a verdict for the defendant was erroneous, and the verdict is set aside and a new trial awarded.
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The opinion of the court was delivered by
Johnston, C. J.:
F. Becker was convicted of transacting business in the city of Emporia when a license tax authorizing the conduct of such business had not been paid. An ordinance of that city imposed a license tax of $100 for each six months, or part thereof, on the business of selling fire-sale, auction-sale, damaged or bankrupt stocks of goods, and prescribed that any one violating its provisions should upon conviction pay a fine not exceeding $100. D. Endelman, the proprietor of the store, was convicted under the same ordinance and upon appeal the conviction was affirmed. (Emporia v. Endelman, 75 Kan. 428, 89 Pac. 685.) In that appeal the validity of the ordinance was upheld. Becker was an employee of Endelman, and he contends that an employee of another is not subject to prosecution and conviction under the ordinance. Section 11 of the ordinance provides:
“Every person, partnership or corporation refusing to pay the license tax, and to take out a license, as hereinbefore provided, or any person, partnership or corporation failing, neglecting or refusing to comply with any of the provisions of this ordinance, or any agent, officer or employee of any such person, partnership or corporation, who shall transact any business for any such person, partnership or corporation when he, it or they have not paid an occupation tax and procured a license, as herein provided and required, shall be deemed guilty of a misdemeanor, and on conviction thereof be fined in any sum not exceeding one hundred dollars for each and every such offense, and shall stand committed until such fine and the costs of such action be paid.”
While the license tax is imposed upon the business, it will be observed that the penalties for the violation of the ordinance are imposed not only upon merchants but also upon all agents and employees of such merchants who transact the unlicensed business. It would be easy to escape the tax and thwart the officers in en forcing the ordinance if the agents and employees of merchants who failed to pay the tax could transact the business without liability. It was to avoid such shifts and devices that they were brought within the penalties of the ordinance. The agent or employee is not required to pay a separate tax, but he cannot escape liability for unlawfully assisting in carrying on a business when the tax has not been paid merely because he has no pecuniary interest in it. He is not permitted to assist in the transaction of business of the merchant against whom the tax is assessed unless the tax has been paid and the license secured, nor can he safely overlook the obligation to see that these requirements have been observed. (In re Chipcase, Petitioner, 56 Kan. 357, 43 Pac. 264; Witherspoon v. The State, 39 Tex. Crim. Rep. 65, 44 S. W. 164, 1096; Abel v. The State, 90 Ala. 631, 8 South. 760; Dentler v. The State, 112 Ala. 70, 20 South. 592; Nashville, Chattanooga and St. Louis Railway v. City of Attalla, 118 Ala. 362, 24 South. 450; Hays v. Commonwealth, 107 Ky. 655, 55 S. W. 425.)
The contention that the ordinance making an employee liable is not warranted by statute cannot be upheld. Express authority is given to cities of the second class to impose a license tax on merchants and to enact ordinances for the regulation and enforcement of such tax. This, by necessary implication, carries with it the power to impose penalties upon every one engaged in merchandising, where the tax has not been paid, and the city may provide that an employee or other person who assists in carrying on the unlicensed business may be punished as well as the employer or proprietor.
It is also argued that Becker cannot be punished because it was not shown that he had knowledge of the failure of his employer to pay the license tax. The ordinances of a city are binding upon every one who comes within the corporate limits, and the appellant must be held to have had knowledge of the requirements of the ordinances, although he was without actual knowledge of them. This devolved on him the responsibility to inform himself as to whether the tax had been paid and the business licensed. The breach of the ordinance is made a misdemeanor, and a specific intent or guilty mind is not an essential element. Ordinances and statutes similar to the one in question may impose penalties irrespective of any intent to violate them. It is immaterial that.the appellant may not have intended to break the ordinance, as he became a lawbreaker and subject to punishment when he did the things prohibited by the ordinance. He is charged with notice of its provisions and was bound to know the facts and obey the law.
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The opinion of the court was delivered by
MASON, J.:
Martin Hibbard was prosecuted upon an information in one count charging him with the offense of “statutory” rape — that is, with carnally knowing a female under the age of eighteen years. At a first trial the jury disagreed and were discharged. A second trial resulted in a verdict of guilty, which, however, was set aside. A change of venue was then ordered and the case was sent to another county. There a conviction was had, from which the defendant appeals.
In each of the three trials the complaining witness testified that the defendant had had sexual intercourse with her upon several occasions, at intervals of a few months, and each time upon the conclusion of the state’s evidence in chief the defendant moved that it be required to elect upon which of these acts it would rely for a conviction. In each instance the motion was granted. At the first trial the prosecutor elected to rely upon a transaction described as having occurred in August, 1903, but at the second and also at the final trial he designated one said to have taken place a week after Easter in the same year. Upon these facts the defendant bases the claims of error upon which he most strongly insists. He contends that the state should not have been permitted to introduce evidence of several acts of sexual intercourse with the purpose of determining later upon which to rely as constituting the very offense charged, and that at all events when such an election was once made it held good throughout all subsequent proceedings in the case and could not be changed at a later trial.
In The State v. Stevens, 56 Kan. 720, 44 Pac. 992, it was said that it is only in misdemeanors that the state may prove several different offenses under a single charge and then elect upon which it will ask a verdict. The practice with respect to electing between several offenses shown by the evidence varies in different jurisdictions, and sometimes is made to depend upon whether a felony or misdemeanor is charged, but the precise distinction referred to in the Stevens case seems not to be recognized elsewhere. In Illinois, in prosecutions for a misdemeanor, it is within the discretion of the court to refuse to require an election, while where a felony is charged the defendant has an absolute right to require it. (Goodhue v. The People, 94 Ill. 37.) In Missouri the practice is confined to felony prosecutions, and does not exist where only a misdemeanor is charged. (The State v. Heinze, 45 Mo. App. 403, 408-411.) Cases where the principle has been applied in both classes of offenses are collected in volume 22 of the Cyclopedia of Law and Procedure, at page 407, a number of them being prosecutions for rape. A more recent case.of that kind is Jamison v. State, 117 Tenn. 58, 94 S. W. 675.
It is true that it has been held that, regardless of the character of the offense, whenever the prosecution has indicated a particular act as that described in the information or indictment, either by a formal election or otherwise, the situation becomes the same as though the pleading had been amended so as to apply to this act alone, and thereafter no conviction can be had thereon, even at a subsequent trial, based upon any other transaction. (John Elam v. The State, 26 Ala. 48; The People v. Jenness, 5 Mich. 305.) But in this state the election in the case of misdemeanors is regarded as only a step in the trial, and its effect ceases upon the taking of an appeal (The State v. Coulter, 40 Kan. 87, 19 Pac. 368) or the granting of a new trial (The State v. Peak, 9 Kan. App. 436, 58 Pac. 1034). Logically^there seems no ground for applying a different rule in'prosecutions for a felony.
But however that may be, in any view the defendant, Hibbard, has no just ground of complaint. The state under the circumstances of this case had a right to show the various instances of sexual intercourse had by him with the complainant, if not as constituting independent offenses upon any one of which a verdict of guilty might be based, at least as affecting the probability of his guilt of the particular act relied upon for a conviction. (The State v. Stone, 74 Kan. 189, 85 Pac. 808.) The order in which the various items of evidence should be offered was within the discretionary control of the’ court. The state appears to have disclosed what transaction it would regard as constituting the offense charged as soon as it was called upon to do so. This disclosure was made at the time and in the manner asked by the defendant in his motion to require an election, and he is in no position to complain of the method pursued, for he himself suggested it. If in the second and in the final trial he had consistently maintained that the first election still controlled, and that he could be convicted of no other act than that thereby designated, he would now be entitled to insist upon a ruling upon that proposition. But when at the conclusion of the plaintiff’s evidence in each of the subsequent trials he filed a motion asking that the state be then required to elect which of the several acts shown by the evidence it would rely upon for a conviction he abandoned that, position. His motion was entirely inconsistent with the idea that an effective election had already been made. His demand for a new election necessarily implied that the former election had spent its force. He invited the procedure adopted and cannot now assail it. (Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118.)
We are asked to reexamine the doctrine of The State v. Stone, supra, so far as it permits evidence to be given in a case of this character of acts of sexual intercourse occurring after that upon which a conviction is sought. After a careful consideration of the arguments and authorities to the contrary, however, our confidence in the soundness of that decision remains unshaken. In The State v. Oswalt, 72 Kan. 84, 82 Pac. 586, it was said that the larger number of decisions were to the contrary, that .being the conclusion reached in the elaborate note there cited. (62 L. R. A. 335-338.) We now incline to the belief, however, that the doctrine of the Stone case is supported not only by the better reason but by the greater weight of authority. This view is well presented in People v. Koller, 142 Cal. 621, 76 Pac. 500. Other recent cases of the same tendency are Sykes v. State, 112 Tenn. 572, 82 S. W. 185, State v. Eggleston, 45 Ore. 346, 77 Pac. 738, and State of Iowa v. More, 115 Iowa, 178, 88 N. W. 322.
A further objection is based upon the fact that the clerk of the court where the action was begun failed to transmit to the court to which it was sent for trial a properly authenticated transcript of the record. It is argued that by reason of this defect the latter court acquired no jurisdiction, the defendant relying upon the numerous list of cases in which appeals and proceedings in error have been dismissed on account of the omission of the moving party to cause a duly certified transcript of the record to be filed in this court. The filing of the transcript, however, has a very different function in appellate procedure from that which it performs where a change of venue is granted. This court acquires jurisdiction on review only when a transcript is filed here, where that method is pursued, but jurisdiction in the court to which a case is sent for trial from another county vests in virtue of the action of the court ordering the change. The appellant’s contention is fully disposed of in The State v. Foulk (Kan., 1898), 52 Pac. 864, not officially reported, where it was said under circumstances substantially similar to those here presented:
.“The clerk of the district court of Kingman county, instead of making out a full transcript and attaching a single certificate thereto, made conies of each of a large number of papers, and attached thereto separate certificates. Among these papers are copies of the information, of the application for a change of venue, and of the order granting the change. This is sufficient to show a transfer of jurisdiction from Kingman county to Harper county. If anything were lacking which the defendant desired to make use of, either on a plea in abatement or bar of the action, or at the trial, on a suggestion of a diminution of the record it would have been the duty of the court to require a transmittal of a full transcript. No such suggestion was made.. The attack was at all times on the jurisdiction of the court. This did not depend on the action of. the clerk of the Kingman county court. It was not in his power to sei; aside the order transferring the case to Harper county. It was his duty to make a proper transcript, and this duty he might have been compelled to perform, and it would probably have been error for the court to refuse to require him to do so. But the papers transmitted were sufficient to show that the district court of Harper county had acquired jurisdiction of the case, and apparently all the papers in the case necessary to a trial of it on its merits were before the court, authenticated by the clerk’s certificate. A full transcript, for the purposes of a trial, was not a necessity, as it is where a superior court is called on to review and reverse the action of an inferior one.”
Other claims of error are presented and have been considered but are not thought to require separate mention. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff in this case brought an action of ejectment to recover the possession of thirteen twenty-eighths of a quarter-section of land. His right to possession depended upon ownership. The defense was that the plaintiff never had title, but if such were not the case whatever rights he once possessed were extinguished by a judgment quieting title against him and by a sheriff’s deed executed and delivered in consummation of an execution sale based upon a judgment against him. -
For the purposes of this decision it may be conceded that, prior to October, 1893, the plaintiff was the owner of the interest which he asserts in the land in controversy, and attention may be directed entirely to the sufficiency of the defenses urged.
In October, 1888, the Hutchinson Investment Company, claiming to be the owner in fee simple of the land, and actually being the owner of a fifteen twenty-eighths interest in it, platted it into lots, blocks, streets and alleys, and filed a copy of the plat with the register of deeds of the county as the Hutchinson Investment Company’s Ninth Addition to the city of Hutchinson. The certificate to the plat specifically stated that it embraced the northeast quarter of section 12, township 23 south,, range .6 west of the sixth principal meridian. Thereafter the land was shown upon the tax-rolls by lot and block descriptions. It was assessed by the city assessor, taxes were levied against it in that form, and in October, 1893, a tax deed for substantially all the. lots in the addition was issued to E. L. Meyer and duly recorded.
At different times proceedings were instituted to bring the land covered by the plat within the limits of' the city of Hutchinson. In the year 1890 the plaintiff was in Hutchinson, having business which called him there, and saw that the land had been laid out in streets. Deeds of portions of it by lot and block numbers were made and recorded and possession was taken under them.
In January, 1894, the grantee in the tax deed brought a suit to quiet his title against the plaintiff. In the petition it was alleged that Meyer was the owner of the legal and equitable title to the land and in the actual and peaceable possession of it; that the plaintiff claimed an interest in it, the true source of which was stated; but it was alleged such claim was a cloud upon Meyer’s paramount rights, and he prayed that he be declared to be the owner and holder of the legal and equitable title, that the claim of the plaintiff be declared void, and that his title be quieted against the plaintiff. Service was made by publication. The affidavit was in due form, and the notice was regular in every respect, except that the land was described as lots in blocks of the Hutchinson Investment Company’s Ninth Addition to the city of Hutchinson, according to the recorded plat thereof. The plaintiff defaulted, and the relief prayed for in the petition and described in' the notice was granted in full. No proceeding in error was instituted to reverse, vacate or modify the decree, and no attempt was made within the three-year statute of limitations to open it because based on publication service. The question is, therefore, if the Meyer title is open to question in the plaintiff’s ejectment suit.
Attack by means of ejectment is collateral (O’Keefe v. Behrens, 73 Kan. 469, 473, 85 Pac. 555), and the judgment declaring the plaintiff to be without title and declaring Meyer to have the legal and equitable title to the land is conclusive, unless some fact altogether destructive of jurisdiction was wanting in the proceedings. The only claimed defect is that regarding the description of the land in the notice.
The statute provides that when service is made by publication the notice shall state the nature of the judgment to be taken. To make the notice perfect real estate to be affected by the judgment should be described. But it need not describe the real estate at all, to be good against a collateral attack, if it shows even inferentially or imperfectly that real estate will be affected. The decision in Garrett v. Struble, 57 Kan. 508, 46 Pac. 943, is conclusive upon this question. In that case the notice read as follows:
“Said petition will be taken as true, and judgment rendered in said action against said defendant, William J. Struble, for the sum ■ of eight hundred and twenty-eight and 6tioo dollars, with interest thereon at the rate of 7 per cent, per annum from the 23d day of July, 1887, and for the sale of certain real property attached in this action.” (Page 508.)
In the opinion is was said:
“The only question which we deem necessary to consider is whether said notice was void or not. It was complete in all respects, except those pointed out by the trial court. In these it was irregular, defective, and at least voidable. ' It could not have withstood a direct attack, because it did not sufficiently state the nature of the judgment which would be rendered upon default of answer. It indicated the amount of the .judgment that would be taken and that certain real property attached in the action would be sold, but it did not describe the land.
“As against a direct attack the notice was insuffi cient under the authority of Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385, and Cackley v. Smith, 38 Kan. 450, 17 Pac. 156. . . . In Harris v. Claflin, 36 Kan. 543, 13 Pac. 830, it was held that if there is a total want of evidence upon a vital point in the affidavit for publication the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable. The same principle as nearly as may be should be applied as the test of the sufficiency of a publication notice. If there is a total failure -to state in the notice any material matter required by section 74 of the civil code the service is void; but if there is not an entire omission of such material matter, and it is inferentially or insufficiently set forth, the notice is merely voidable and not void. Following this rule, we hold that the notice in the case of Garrett against Struble was 'irregular, defective, and voidable, but that it was mot void, and therefore must be held sufficient as against a collateral attack.” (Page 510.)
It is not necessary that land be described in a notice by publication by the government description or by lot or block number. All that is required is that any person of common understanding may be able to locate and identify it by following up the notice.
In this case the notice gave a true description. The land had been platted as the Hutchinson Investment Company’s Ninth Addition to the city of Hutchinson. The plat was valid on its face, its dedication had been accepted by the public, and it had been adopted as the basis of official conduct without protest on the part of the plaintiff.- Even if the plaintiff might have impeached it, it had not been vacated, and it was a de facto plat, which served to -identify the ■ property so that no man giving heed to it could be misgqided. Besides this, the notice described the land as it was in fact publicly known and as the plaintiff should have known it from the suggestive fact noted above which had obtruded itself upon him. “Notice” by publication is sufficient, under the statute, to give the court jurisdiction. For complete and accurate information defendants must follow up the suggestions contained in the notice by due investigation and inquiry. Just as the defendant in Garrett v. Struble, supra, was bound to take notice what land belonging to him was indicated by the words “certain real property attached in this action,” so the plaintiff here was bound to take notice what land belonging to him was indicated by the description given. It is not necessary to encumber the reports with lists of authorities upon these fundamental principles of the law. The notice probably was not voidable. The court had authority to proceed with the case, and the plaintiff is bound by the judgment.
In 1892 the plaintiff made a conveyance of the land by way of security to Paul J. Ullrich, who was not made a party to the suit to quiet title, and a successor in interest of the grantee, cross-petitioner herein, claims the judgment did not bind him. But the conveyance was not filed for record until after the time fixed by the notice for answer had expired." Under the recording act the instrument was invalid, except between the parties and those having actual notice of it, until it was placed on record. There is no claim that Meyer had any notice of it when he commenced his suit. Therefore Ullrich was a purchaser pendente lite, whose rights dated from the time his deed reached the record, and those rights fell with the title of the plaintiff, from whom they were derived. If this were not true a party might be forever prevented from quieting his title by the withholding from record of one secret conveyance after another. (Smith v. Worster, 59 Kan. 640, 54 Pac. 676, 68 Am. St. Rep. 385.)
The plaintiff makes a multitude of objections to the validity of the Meyer tax deed. It is not necessary to enumerate them, because they cannot be considered. The petition in the suit to quiet title presented every issue the plaintiff now raises. The court had jurisdiction to hear and determine them. It has rendered a final judgment deciding all of them against the plaintiff, and he cannot now relitigate them. It does not affect the case that the court may have erred at every step of the proceeding. (Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001; Ehrsam v. Smith, 61 Kan. 699, 60 Pac. 740.) The plaintiff’s remedy lay in a direct attack in some one of the many ways provided by law. He cannot avoid the binding force of a judgment rendered by a court having jurisdiction by the indirect and collateral action of ejectment. In the case of Priest v. Robinson, 64 Kan. 416, 67 Pac. 850, the second paragraph of the syllabus reads:
“When the defendant in an action of ejectment claims title based on a tax deed, and, also, upon a decree quieting the title in his antecedent grantor in possession under such tax deed, in an action to which plaintiff was a party, the validity or invalidity of the tax deed is not material, unless the decree quieting the title is absolutely null and void and subject to collateral attack.”
The court would rest its decision here, if it were clear from the record that the judgment quieting the Meyer title embraced all the land now claimed by the plaintiff. If it does not, the plaintiff is met by another insuperable obstacle.
In the year 1890 the plaintiff was sued by his former attorneys, Brown & Kline, and his interest in the land in controversy was attached under the description: the northeast quarter of section 12, township 28 south, range 6 west, in Reno county, Kansas. The cause went to judgment and the land was ordered sold. Kline assigned his interest in the judgment to Brown. The costs were very heavy. Many efforts were made to sell the land, but bidders could not be found who would meet the requirements of the appraisement. New appraisements were ordered from time to time, but in June, 1898, the land was still unsold. The plaintiff had given a bond superseding the judgment pending proceedings in error in this court, and it was Brown’s purpose to exhaust the attached real estate before proceeding upon the bond. He was represented locally by Mr. F. L. Martin, of Hutchinson. Brown came to Hutchinson and proposed to Martin that he interest parties in the purchase of the land. This was done, and an arrangement made with Mr. L. A. Bigger to advance money to take up the costs and to buy the land was communicated to Brown, and in response he wrote the following letter:
“Chicago, May 17, 1898.
“Hon. F. L. Martin, Hutchinson, Kan.:
“My Dear Sir — Yours of the 7th at hand. In reply will say that I hereby authorize you, in case a bid is made at an amount equal to two-thirds of the appraisement of the Caldwell land, to receive from the sheriff or the bidder the surplus above the costs, and you may give receipt in full therefor. Out of this I care for nothing. You may keep the balance over the costs as your fee, but collect enough to pay Prigg & Williams a small fee which they may have a bill for, as they did some work for me on this matter. Also, have the sheriff pay you $20 of the cost money, for I put up $15 to start the suit and paid the sheriff $5 on publication fees. This was paid to Patent, therefore I am to have $20 out of cost money, but you may receipt' to the sheriff or purchaser for the balance over the costs on the bid, whatever it may be, and if the bid does not exceed two-thirds of the appraisement you' may retain the difference between the amount bid and the costs as your fee, and this, of course, you may cut down as you see fit with the purchaser.
“This complies with the suggestion of your letter, and I trust, of course, is satisfactory to all parties concerned. I suppose the land will be purchased on the 8th. ■ Please write me by return mail if this is perfectly satisfactory. Yours very truly,
W. E. Brown.”
At that time an order of sale had been issued and a sale set for June 8. Shortly before the time fixed for the sale Brown entered into negotiations looking to an assignment of the judgment to Paul J. Ullrich, the surety on the supersedeas bond. He desired the order of sale returned to gain time in which to consummate the assignment, and desired Martin to make the necessary request. Martin explained to him that the party who had become interested in the land’had already purchased the accumulated costs in the case relying upon the letter of May 17, and stated that he did not desire to prejudice those rights by directing a return of the order of sale. Brown replied that he only wanted thirty days’ time to give Ullrich an opportunity to decide. Therefore, he directed the sheriff to return the order, but at the same time authorized Martin to cause another to issue at once. This was done, the precipe being signed by Martin as attorney for Brown and as owner of the costs. That the entire conduct of Martin in the matter was fully approved by Brown, who was himself a lawyer, is shown by the following excerpts from Brown’s testimony:
“Ques. Did you ever give him authority to sign the precipe for order of sale as owner of costs? Ans. I gave him authority to act for me as my attorney in issuing and attending to orders of sale, and I understood and was informed that he also represented the people who were entitled to costs in endeavoring to get them their costs, and I did consent and gave authority to him also in connection with my claim to endeavor to collect costs.”
“Q. You told Judge Martin that he could go ahead and issue another order of sale after the one which was then outstanding had been returned? A. Yes, sir; gave him instructions to do so.
“Q. Didn’t you know that Judge Martin’s interest as owner of the costs were adverse to your interests, and consequently adverse to Paul J. Ullrich as purchaser? A. No. I did not understand there was any adverse interests at all between Judge Martin and me.
“Q. If he signed the precipe for sale you knew as a' lawyer that his interest was adverse to your interests? A. Not at all, because they were right in line with my interests. It was to my interest to see that the costs were collected as well as the judgment.”
The property was advertised for sale on July 20. Before the sale occurred Brown assigned the judgment to Ullrich, but did not advise him of his agreement with Martin. At the sale Martin purchased the property for two-thirds of the appraised value. The sale was confirmed and a sheriff’s deed was duly issued to him. Afterward he conveyed to Bigger, who has since conveyed to others. After purchasing the judgment Ullrich wrote the sheriff to return the order of sale, but the letter was not received until after the sale had been made. No attempt was made to oppose confirmation or to review the proceedings, and the question now presented is if the sheriff’s deed is absolutely void.
The matter may be disposed of very briefly. The relations between Martin and his client, Brown, were unimpeachable, both in law and in morals. They were established in a diligent effort to promote Brown’s interests, were fair and just and beneficial to Brown, were fully understood, approved and appreciated by him, and met all the requirements of the high standard of duty imposed upon an attorney toward his client recognized by this court in Yeamans v. James, 27 Kan. 195, 207, Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364, and Cunningham v. Jones, 37 Kan. 477, 15 Pac. 572, 1 Am. St. Rep. 257. (See, also, 4 Cyc. 960 and authorities there collated.) Not to have carried out the arrangement and protected Martin and Bigger, had Brown remained the owner of the judgment, would have constituted a breach of moral and legal duty on his part.
When the judgment was assigned to Ullrich, Brown’s connection with the proceeding ceased and Martin’s authority to appear as an attorney for Brown ceased. He was not thereafter retained by Ullrich, did nothing on Ullrich’s behalf, and Ullrich neither recognized him as an attorney nor relied upon him for anything. Ullrich did not even utilize him in the attempt to procure a return of the order of sale. The relation of attorney and client must be created by contract, express or implied. (McAlexander v. Wright, 3 T. B. Mon. [Ky.] *190, 16 Am. Dec. 93; Cartwell v. Menifee, 2 Ark. 356; 4 Cyc. 926.) It is too confidential to be assigned with the subject-matter of the employment. Therefore, when Martin’s client severed his connection with the case- Martin himself was entirely free to protect and carry out the arrangements which Brown had authorized, and which his assignment to Ullrich could not prejudice. Being under no legal.or professional obligation to Ullrich, or to Caldwell, the owner of the land, Martin was a lawful bidder at the sale, and the sheriff’s deed to him is not even voidable, much less void.
If, however, Martin were a disqualified bidder, the sale to him would be voidable merely. His conduct could be ratified by Ullrich, the only party with whom he was obliged to keep faith, and third persons like Caldwell could not complain. To charge him as a trustee of the land for Ullrich would be in effect to affirm the validity of the sale, and until steps were taken by which to impeach the sale in some direct proceeding brought for the purpose it would stand against any kind of a collateral attack, either by Ullrich or by Caldwell. (Freeman, Void Jud. Sales, 3d ed., § 33; 24 Cyc. 29.)
The sheriff’s sale is not void and subject to collateral attack merely because Ullrich wrote the sheriff to return the order of sale, the letter not having been received until after the sale was made. If the fact afforded ground for relief it should have been presented in opposition to confirmation.
From the record as a whole it appears that the plaintiff has slept upon his rights and .has mistaken his remedy.
The plaintiff having delayed his request for special findings until the argument of the cause in the district court was nearly closed, having then failed to comply with the request of the court that he submit special questions, and having led the court to believe that the request for special findings had been abandoned, he is scarcely in a position to complain that none were made. Besides this, he admits that the facts are really undisputed, and the only embarrassment he claims to have suffered is that he has been obliged to argue the case more extensively than might have been necessary had special findings of fact and conclusions of law been stated. This circumstance hardly indicates prejudice to his substantial rights sufficiently grievous to work a reversal, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Clarence McElroy, a boy about eleven years of age, was struck by a passing engine on the railroad track of the plaintiff in error at the station of Aurora, in Cloud county, and was injured so that his left foot had to be amputated. He commenced this action in the district court of Clay'county May 3, 1905, and recovered a judgment of $3000. The railway company brings the case here for review.
At the station of Aurora the north-bound passenger-train and the one going south pass each other. The north-bound train, as a rule, arrives first, and stops on a side-track, leaving the main track between it and the depot platform. Passengers leaving the train and those getting on are compelled to cross over the main track. If the train going south arrives before the north-bound train leaves, which it does ordinarily, no stop is made until reaching the depot platform. The plaintiff, on the occasion in question, was sent by his father, who was engaged in business at that place, to deliver a small package of merchandise to a passenger on the north-bound train. The boy delivered the package to the passenger while the train was standing on the side-track, and before he got across the main track on his return he was struck by the engine of the train going south, as it was approaching the platform. No warning by whistle, bell or otherwise was given to indicate the coming of the train from the north. The plaintiff did not look or listen for the incoming train or take any care to avoid danger therefrom.
Much has been said in argument concerning the degree of care due from the company to the plaintiff, and upon the question of plaintiff’s contributory negligence. Many special questions wére submitted to, and answered by, the jury fpr the purpose of developing these propositions. In our view of the case, however, it will be unnecessary to consider all of the questions presented. Where a railroad company finds it necessary or convenient in the transaction of its business to have a passenger-train stop on a side-track, leaving one or more tracks between such train and the depot platform, that method may be adopted; but if it is, then, as between the company .and other people, the entire space between the depot and the train must be regarded the same as if it all together constituted the platform.
One of the special questions presented to the jury in this case, and their answer thereto, reads:
“(29) Ques. If you find that the defendant, the Atchison, Topeka & Santa Fe Railway Company, was negligent, then state fully, first, in what respect it was negligent, and, second, what agent or employee was guilty of such negligence. Ans. First, because it allowed the main track next to the station to be used as a platform to transfer passengers, baggage, mail and express _ from the north-bound passenger-train, known as No. 307, to and from the station; that said company had no proper signals, alarms' and safeguards at Aurora. Second, that the train crew of the-south-bound train, No.-306, failed either to ring the bell or blow the whistle on approaching the station.”
Under this finding of fact it will be unnecessary to consider the strict legal relation existing between the plaintiff and the company, or to define the exact degree of diligence due from the company to the plain tiff. It is conceded that the plaintiff was rightfully where he received the injury, and that the company owed him at least reasonable and ordinary care. Under this conceded rule we think the case may be decided.
What constitutes ordinary care must always be determined from the circumstances of the situation being considered. In volume 1 of Thompson’s Commentaries on the Law of Negligence, section 25, it is said:
“The care, caution and diligence required by the law is always measured by the circumstances of the particular case, and the rule of admeasurement is the greater the hazard the greater the care required.”
The situation presented in this case shows that the railway company, when it ran the train going south ’into the station, was chargeable with notice that its patrons and other people were scattered over the space between the depot and the other train, engaged as people are on such occasions — removing baggage, hurrying on and off the train, giving and receiving parting and welcoming salutations — and were generally in a state of confusion, which would make them less liable to notice the approach of danger and less prepared to avoid it than under ordinary circumstances. It knew that the people so situated had a right to feel secure and safe from any danger on account of the negligent operation of trains in their midst, and would feel entirely free from any necessity for the exercise of care or caution. These and other conditions always present upon such occasions constitute the situation by which must be measured the degree of care with which a person of ordinary caution and prudence would run a passenger-train among people thus engaged.
The conduct of the company in running its train at a high rate of speed, without warning of any kind, was culpable negligence. The plaintiff and others rightfully there were under no duty or obligation to anticipate and guard against negligence on the part of the railway company. They had the right to feel secure from injury on account of passing trains. They might rest upon this feeling of security until warned or notified of danger. The ordinary rule of “look- and listen” has no application to such a situation. When a railroad operates a train under such circumstances it assumes the peril. These conclusions result from the application of the most obvious and familiar rules of human conduct. (2 Shear. & Red. Law of Neg., 5th ed., § 525; 1 Thomp. Com. Law of Neg. §§ 25-31, 968 et seq.; 3 Thomp. Com. Law of Neg. § 2705; Tubbs v. Michigan Central R. Co., 107 Mich. 108, 64 N. W. 1061, 61 Am. St. Rep. 320; Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241; Denver, etc., R. R. Co. v Hodgson, 18 Colo. 117, 31 Pac. 954.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action was commenced by Joseph Hoff against.the St. Louis & San Francisco Railroad Company, before a justice of the peace, to recover the value of a mule alleged to have been injured through the negligence of the defendant’s servants and employees in the operation of its engine and cars. There was no allegation in the bill of particulars that the right of way was not fenced, nor any statement from which an inference to that effect could be drawn. There was, however, a claim for an attorney’s fee, and an averment that a written demand had been made for payment. On appeal to the district court the case was tried without a jury, and a judgment was rendered for the value of the mule and for an attorney’s fee.
The defendant objected to any evidence under the bill of particulars, upon the ground that it did not state facts sufficient to constitute a cause of action, which objection was overruled.
Evidence was offered showing that there was a gate through the right-of-way fence -between plaintiff’s pasture and the railroad track, opening to a private crossing; that a wreck occurred near this gate, and in transferring passengers, soon afterward, from one train to another around this wreck this gate was removed and placed over a ditch on the plaintiff’s land, where the passengers walked in effecting the transfer. It appears that openings were also made in this right-of-way fence into plaintiff’s pasture for passengers where they left the right of way, and where they returned to it beyond the wreck. The plaintiff’s mule was in this pasture at the time of the wreck, and the next day was found standing near the track with its leg broken, and a pool of blood was seen near by. The evidence does not disclose how, or by whom, the gate was removed and the other openings made, unless it is shown by inference. The fence was in good condition and the gate in place the day before the wreck. The evidence showing these facts, except that the mule was injured, was all.objected to as being immaterial and not within the issues, and proper exceptions were taken. The defendant also demurred to the evidence, and offered none in defense. The errors complained of relate to the overruling of the preliminary objection to any evidence, and to the admission of the evidence - showing the wreck, the transfer of passengers, the-opening of the fence and removal of the gate, etc.; also, to the allowance of an attorney’s fee.
It is manifest that the case was tried upon the theory that the liability was based on the failure of the company to have its road enclosed as provided by the statute. (Gen. Stat. 1901, §§ 5859, 5863.) The-proof of a written demand, tlie claim and allowance of an attorney’s fee, and the careful inquiry into the condition of the fence before the accident, sufficiently indicate this. Certainly no attorney’s fee could be allowed if the suit were based upon negligence in. operating the train. (A. T. & Santa Fe Rld. Co. v. Edwards, 20 Kan. 531.) In order to recover damages for a failure to fence, there must be an allegation of such omission in the pleadings. (Hadley v. C. B. U. P. Rld. Co., 22 Kan. 359; St. L. & S. F. Rly. Co. v. McReynolds, 24 Kan. 368; Barrackman v. Girard, 26 Kan. 284.) It is true that a very informal statement is held to be sufficient in a bill of particulars before a justice of the peace; but where there is an absolute-omission to state a fact essential to the cause of action, and such fact is not deducible nor inferable from those which are stated, the defect is fatal, where a proper objection is taken and there is no waiver. (K. P. Rly. Co. v. Taylor, 17 Kan. 566.) In this case proof of the removal of the fence does not cure the defect, because such proof was duly objected to, and no request was. made for leave to amend. The plaintiff now argues that such testimony was. competent to show a situation requiring greater care in the operation of the trains, and hence that the injury was the result of negligence in such operation. It seems more reasonable to conclude from the conduct' of the trial and the evidence offered that the negligence relied upon was the failure to maintain the fence. (A. T. & Santa Fe Rld. Co. v. Jones, 20 Kan. 527.)
In Barrackman v. Girard, supra, a similar question was presented under the general fence law, and the plaintiff there recovered upon the theory and proof that his fields had been enclosed with a lawful fence, through which the defendant’s cattle had broken. As he had not alleged such enclosure the judgment was reversed. There, it was essential to allege that the plaintiff’s lands were enclosed; here, it was essential to allege that the defendant’s right of way was not •enclosed. Much that was said in the opinion in that case is applicable to this. The trial seems to have proceeded upon the mistaken theory that the existence of a fence was in issue.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
About the year 1889 the plaintiff in error, W. H. Seaverns, entered upon a tract of state school-land, and in the years following occupied and improved it. In the year 1902 he leased the land from the state under a lease expiring in January, 1906. Before the expiration of his lease he assisted in circulating a petition to the county superintendent of public instruction to expose the land to sale, in consequence of which appraisers were appointed who, on January 22, 1906, returned the land as unimproved and of the value of $1.25 per acre. At that time he estimated the value of his improvements at $2000. Following the return of the appraisement Seaverns in stituted proceedings to acquire the land as a resident settler, alleging settlement thereon as of March 1,1905. After a hearing in the probate court his petition was denied, and on February 23, 1906, he duly perfected an appeal to the district court.
Before the hearing in the probate court occurred the county treasurer made the first publication of a notice that he would, on February 26, 1906, sell this land and other tracts to the highest bidder. After taking his appeal Seaverns objected to a sale of the land, told the county treasurer not to sell it, and stated to the treasurer that he intended to carry his case through. The treasurer, however, held a public sale as advertised, at which Seaverns caused the land to be bid in by an agent at the price of $6.17J per acre. The treasurer gave a receipt for the first instalment of the purchase-price, which reads as follows:
“No. 44. March 7, 1906. By whom paid. — W. H. Seaverns. Description of land, S. W. % of 36-15-39. First annual instalment, $98.80. Paid under protest.”
Subsequently, when the "appeal was reached in the district court, it was dismissed, on the ground that after it had been perfected Seaverns had voluntarily purchased the subject-matter of the litigation from the state of Kansas at public auction and thereby had waived the right to urge that error had been committed in the proceedings of the probate court. Because of the order dismissing his appeal Seaverns prosecutes this proceeding in error.
Quite early in the history of this court the position was taken that a party who complains of a judgment must be consistent in his conduct with reference to it, and if he recognizes its validity or acts contrary to the assumption that it is erroneous he will not be heard to say on appeal that it is erroneous. (Babbitt v. Corby, Adm’x, 13 Kan. 612.) In applying this rule less liberality of conduct has been permitted to appellants than many other courts of last resort are disposed to allow when dealing with the same subject, but manifestly the case must be determined according to those principles which have long been adopted and followed here. Appellant cites no decision of this court favoring his estimate of his rights, although the general question has been considered many times.
In the following cases, which present the question of estoppel in various ways, it was decided that the parties appealing from adverse judgments had assumed inconsistent attitudes respecting them: Bradley v. Rogers, 33 Kan. 120, 5 Pac. 374; Price v. Allen, 39 Kan. 476, 18 Pac. 609; State Journal Co. v. Commonwealth Co., 43 Kan. 93, 22 Pac. 982; Railroad Co. v. Murray, 57 Kan. 697, 47 Pac. 835; Samuel v. Samuel, 59 Kan. 335, 52 Pac. 889; Sheldon v. Motter, 59 Kan. 776, 53 Pac. 127.
In the following cases the inconsistent conduct lay chiefly in the acceptance of some benefit from the judgment: Babbitt v. Corby, Adm’x, 13 Kan. 612; Hoffmire v. Holcomb, 17 Kan. 378; Wolf v. McMahon, 26 Kan. 141; Savings Bank v. Butler, 56 Kan. 267, 43 Pac. 229; Perkins v. Bunn, 56 Kan. 271, 43 Pac. 230.
In the following cases the inconsistency arose from a compliance with the judgment, either in whole or in part: Fenlon v. Goodwin, 35 Kan. 123, 10 Pac. 553; The State v. Conkling, 54 Kan. 108, 37 Pac. 992, 45 Am. St. Rep. 270; York v. Barnes, 58 Kan. 478, 49 Pac. 596; Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104; Waters v. Garvin, 67 Kan. 855, 73 Pac. 902.
In the cases of Rasure v. McGrath, 23 Kan. 597, and Ziegler v. Hyle, 45 Kan. 226, 25 Pac. 568, the controversies were settled, and the court refused to hear the appealing parties further.
Under the peculiar facts of Newman v. Lake, 70 Kan. 848, 79 Pac. 675, it was held that a partial compliance with an. order of court did not defeat a proceeding in error challenging the validity of the order, and in the following cases it was decided that the conduct of the appealing party was not inconsistent with a claim of error in the proceeding sought to be reviewed: Headrick, Adm’r, v. Yount, 22 Kan. 344; Seckler v. Delfs, 25 Kan. 159; Mack v. Price, 35 Kan. 134, 10 Pac. 521; Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, 3 L. R. A., n. s., 259.
In the probate court the position of Seaverns was that, having complied with certain provisions of the law, he possessed an exclusive right to purchase the land as a settler, and that the state was under an obligation to him not to dispose of the land to any other person or in any other way. By undertaking to sell the land at public auction the state impliedly asserted that the judgment of the probate court denying Seaverns’s right to purchase as a settler was valid, conclusive and just. By attending the public sale, engaging in competitive bidding with others, and buying the land, Seaverns necessarily abandoned his special claim as a settler and acknowledged the right of the state to sell to any one who would bid the highest price. The purpose of the appeal was to reopen the controversy adjudicated in the probate court. After the land had been purchased by Seaverns at public sale all controversy regarding his right to purchase as a settler was at an end, and he had no standing to assert the contrary.
The situation of Seaverns is very like that of the plaintiff in error in the case of Sheldon v. Motter, 59 Kan. 776, 53 Pac. 127. The opinion in that case is not printed in the Kansas Reports, but it appears in 53 Pac. 127, and reads as follows:
“This proceeding is brought in this court to review an order confirming a sale of real estate at which the defendant, Motter, was the purchaser. Since the petition in error was filed the plaintiff in error and her husband have accepted a lease from Motter for the land sold, and have attorned and paid rent to him for the same. This is a recognition of his title inconsistent with the prosecution of this proceeding. The petition in error will therefore be dismissed.”
The confirmation of the sale cut off Sheldon’s rights and gave title to Motter. So here, the judgment of the probate court cut. off Seaverns’s rights as a settler and left the state at liberty to sell at public sale. The act of taking a lease from Motter necessarily involved a recognition of his title'. The act of purchasing from the state at public sale necessarily involved a recognition of the state’s right to dispose of the land in that manner. After leasing from Motter Sheldon could not on appeal reopen the question of title. After buying at public sale Seaverns could not on appeal reopen the question regarding his right to purchase as a settler.
In the case of State Journal Co. v. Commonwealth Co., 43 Kan. 93, 22 Pac. 982, a part of the relief prayed for was the foreclosure of certain chattel mortgages given by the defendant, and upon the application of the plaintiff a receiver for the mortgaged property was appointed. A motion was made to set aside the appointment of the receiver, which was. denied, but the court ordered that upon the filing of a bond to satisfy any judgment the plaintiff might recover the receiver should be discharged and the property restored to the defendant. The defendant voluntarily gave the bond and was given possession of the property. In a proceeding in error in this court it was held the defendant could not claim the order appointing the receiver was erroneous. The propriety of a sequestration of the property having been recognized by giving a bond which took the place of the property, consistency forbade that the original order should afterward be assailed.
In the case of Samuel v. Samuel, 59 Kan. 335, 52 Pac. 889, a husband brought a suit against his wife for a divorce. The wife also asked for a divorce and a division of the property. No divorce was granted, but the property was divided and the plaintiff appealed. Afterward he commenced another suit for a divorce against his wife in Oklahoma, which went to judgment in his favor, and his wife was barred of all interest in his property. The proceeding to reverse the first judgment was dismissed by this court because the plaintiff had renounced his right to relief' and had undertaken to remedy the state of his affairs in another way.
Other decisions of this court cited above are equally conclusive against the plaintiff in error in the pending proceeding. It is true that in buying the land at public sale Seaverns obeyed no express command of the probate court, and he took- no'benefits under the judgment of that court, for it gave him none; but neither of these facts is essential to an estoppel. It is sufficient that he yielded to the state’s contention and to the judgment adverse to him and undertook to obtain the land in a manner incompatible with the maintenance of his former attitude. He had the option to abide by his appeal or to renounce the right which it conserved and adopt a different course to further his interests. Having elected, he must endure the consequences.
It is urged that the conduct of the treasurer in bringing on a public sale of the land coerced Seaverns to purchase in order to protect himself from loss. The sale, however, was not a forced judicial sale, which would pass title to a purchaser whatever became of the appeal. If the appeal were -well founded the appellant could not lose the land.
The objection and protest of Seaverns against that to which he nevertheless voluntarily determined to submit was of course nugatory. (Price v. Allen, 39 Kan. 476, 18 Pac. 809; The State v. Conkling, 54 Kan. 108, 37 Pac. 992, 45 Am. St. Rep. 270.).
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an order of distribution made by the probate court of Brown county in connection with the final settlement of an estate. Emily F. Lewis died leaving four children, namely, E. B. Lewis, George W. Lewis, Addie R. Wells, and Susan E. Woodrum, and E. B. Lewis was appointed administrator of his mother’s estate. An inventory and appraisement disclosed that the estate consisted of money in the bank, amounting to $33.15, and a iportgage against M. E. Wells and Addie R. Wells securing an indebtedness of $3000. In due time a notice was published by the administrator informing the creditors and others that he intended to make a final settlement and distribution of the estate; and on the appointed day a hearing was had in the probate court, which found that due notice had been given and that the estate had been fully administered and was ripe for final settlement. In the settlement it was found that the administrator was chargeable with $3995.65, and for claims allowed and paid he was entitled to credit for $447.51, leaving a balance in his hands of $3548.14. Among other things the court found:
“That this is a case where the appointment of an administrator was not necessary, the fund which was taken possession of by said administrator and reported to this court having been made up by said E. B. Lewis, George W. Lewis and Addie R. Wells in the lifetime of said Emily F. Lewis, and a mortgage taken to provide a security fund for the support and maintenance of the said Emily F. Lewis during her life, she having sold all of her interest in the land of her deceased husband, and her care, support and maintenance being a part of the consideration therefor, and the said sum being in fact no part of the estate of the said Emily F. Lewis, but belonging under said arrangement to said three mentioned children.”
The court thereupon ordered and adjudged that the balance of $3548.14 be distributed in three equal parts, one-third to E. B. Lewis, one-third to George W. Lewis and one-third to Addie R. Wells, and specifically ordered that no part of the sum should be distributed to Susan E. Woodrum. In the order the administrator was discharged and his bondsmen relieved from further liability. This order was made on February 9, 1904, and it was then found that Susan E. Woodrum had actuál notice of the hearing which resulted in the order, but no appeal from the decision was taken. On March 19, 1907, Susan E. Woodrum filed a motion in the probate court alleging that she was a daughter and heir of the decedent and entitled to her share of the estate; that she had no notice that the court would make a distribution; and she asked that the order be set aside and that she be given her. distributive share of the estate. The motion was heard and denied on May 4, 1907, and from that ruling Susan Woodrum took an appeal to the district court. At a hearing in that court it was decided, without testimony, upon the papers brought up on appeal, that Susan Woodrum was one of four heirs of the decedent; that there was an estate of $3548.14 for distribution; and that Susan Woodrum was entitled to a one-fourth share of the amount, unless testimony was offered to show that it should be otherwise distributed. The court ruled that the burden of proof to make that showing was upon the administrator, although the judgment of the probate court was in his favor. On the record of the appeal alone a judgment awarding Susan Woodrum a one7fourth share of the estate w.as given, and of this complaint is made.
The ruling cannot be uph.eld. The probate court had power to hear and determine the question submitted for its decision. Susan Woodrum had both constructive and actual notice of the hearing and must be deemed to have had her day in court. That court found from the evidence that she was not entitled to a share in the residue of the estate, and, as already decided, it has power in such a hearing to determine who is entitled to the funds in the hands of the administrator and all questions necessary and proper to the distribution of the estate.
“The final settlement and .closing up of an estate is a judicial determination to which all interested are summoned, and by which all having a day in court are concluded. (Musick v. Beebe, Adm’r, 17 Kan. 47.) It is in the nature of a final judgment that the estate is fully administered, intended as a protection for the administrator and his sureties, and is ordinarily conclusive and final, unless vacated by appeal, impeached for fraud, or set aside by direct proceedings brought for that purpose.” (Proctor v. Dicklow, 57 Kan. 119, 125, 45 Pac. 86.)
Although the judgment was binding upon her, she allowed the time for appeal to pass without taking any steps, and has not attacked the judgment on the ground of fraud. After the judgment had become final she asked that court to open up its judgment, retry the question of her right to a share of the estate, and determine that she was entitled to a one-fourth interest. The application was based on the last clause of the third ground of section 568 of the civil code (Gen. Stat. 1901, § 5054), authorizing the district court or courts of record to modify and correct their own judgments. The specific ground is “irregularity in obtaining a judgment or order.” The application was denied, and Woodrum sought by an appeal from a denial of the motion to have a retrial not only of that motion but also of the questions settled by the final judgment, from which no appeal had been taken, and this after the time for an appeal had expired. In that way she would extend the time for taking an appeal and practically destroy the limitation imposed by statute upon appeals.
Assuming, however, that th'e probate court could then have modified its judgment, the relief sought could not have been granted on the application which was made. That of which she complained was not an irregularity in obtaining the judgment, but it was an error of law in rendering the judgment. No irregularities were charged against the parties, the court or its officers, but according to her theory a wrong decision upon the facts presented was made by the court. After the term of court expired and its judgment had become final it could not be opened or modified except for the causes and in the manner prescribed by statute. The relief she asked did not come within the statutory ground assigned in her motion and was rightfully refused by the probate court. While she was probably entitled to take an appeal from the decision of the probate court denying the motion, it was error for the district court to set aside the decision for any of the causes assigned.
It is strongly urged that a great wrong to Susan Woodrum, the acknowledged daughter of the decedent, was effected by the order of distribution, but if that is so it is doubtless open to correction in some authorized and appropriate proceeding.
The judgment of the district court is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
The principal contentions of the appellants have been decided adversely to them in this court: The proceeding to punish for a violation of the order of injunction is a part of the injunction suit and not another independent action; the accusation need not possess the formalities of an indictment or information; the court will take judicial notice of the order of injunction. (The State v. Thomas, 74 Kan. 360, 86 Pac. 499; The State v. Forner, 75 Kan. 836, 89 Pac. 674.)
It is hardly necessary to say that in the exercise of a jurisdiction conferred upon him by statute a judge at chambers will take judicial notice of all the facts which the same judge in exercising the same jurisdiction, sitting as a'court, would take. A judge at chambers, then, will take judicial notice of his former orders made when he sat as a court. The judge has not the general jurisdiction of the court, but in the exercise of powers expressly conferred by.the constitution or statutes of the state his jurisdiction is as ample in everything necessarily, incident to the exercise thereof as is the jurisdiction of the court in the exercise of like powers. It was therefore unnecessary formally to plead or to prove the issuance of the order of injunction. (The State v. Thomas, 74 Kan. 360, 86 Pac. 499.)
It is contended that, as the appellants were not parties to the injunction suit, they could not be convicted of a violation of the order therein unless they were proved to have had notice or actual knowledge thereof.
The appellants were charged, jointly with John Hebrank, who was the owner of the building and who was a party to the injunction suit, with a violation of the order therein. And, although it appears Hebrank was not arrested or tried for the contempt, there is probably sufficient circumstantial evidence to justify a finding that appellants had knowledge of the order and conspired with Hebrank to evade and violate it. Upon what evidence or presumption the judge based his decision we are not advised by the record. No evidence that they had actual knowledge of the order was necessary. They admit they had possession of the building in which, but a few months before, the owner, his codefendants “and all other persons whomsoever” were enjoined from maintaining just such a nuisance as appellants were maintaining. In wilfully embarking upon an unlawful business they might well be presumed to have scanned every possible source of danger and to have not overlooked so public a proceeding as the injunction suit. It is more probable that they thought they had cunningly evaded it. It matters not: The proceedings of the courts for the maintenance of order and the enforcement of law are not thus to be trifled with. The decree of injunction was against the defendants in that suit, and in a sense was ad rem — against the property, or rather against a certain illegal use of the property. It cut off perpetually the use of the property for any of the purposes which the prohibitory liquor law of this state denounces as a nuisance. Thereafter not only the parties to that suit but all persons using the property for any of such unlawful purposes did so at their peril. The judgment is a limitation upon the use of the property of which all subsequent owners or occupants must take notice. It was well said in Silvers v. Traverse, 82 Iowa, 52, 47 N. W. 888, 11 L. R. A. 804:
“The decree was against plaintiff’s lessor, who was the defendant in the suit. It affected his right and interest in the property; that is, it limited and cut off his power to use the property for the unlawful keeping and sale of intoxicating liquors. The decree was a restriction upon the use of the property which followed it as a burden, and, as it were, an encumbrance. . Surely the plaintiff, in taking the property, took it subject to this restriction" and burden. In our opinion, these conclusions are based upon familiar doctrines applicable to all actions and proceedings in the courts. If the rule we announce be not recognized, the attempt to enforce injunctions to abate nuisances of all kinds would be vain. The defendant perpetrating the nuisance could wholly defeat the law by leasing or transferring the property to one who had no notice thereof. He could begin anew the perpetration, and could only be enjoined by a new action, and when so enjoined he could in a like manner transfer the property, and so on indefinitely defeating the law, to the scandal of public [justice and the oppression of the people.” (Page 56.)
The only other question it is deemed necessary especially to notice is the allowance of $100 as attorney’s fees for the county attorney without evidence being introduced as to the value of the services rendered by him. Where attorney’s fees are allowed to be taxed as costs, as in the statute under which this suit was brought, it would seem the better practice for the state to offer evidence of the extent and value of the services performed, that the defendant might cross-examine the witnesses and offer rebuttal evidence. In this case, however, it is apparent that the judge was fully conversant with the extent of the services, and he will be presumed to have known the value thereof. (Noftzger v. Moffett, 63 Kan. 354, 65 Pac. 670; Bentley v. Brown, 37 Kan. 14, 14 Pac. 434.) Evidence, however, was offered of the judgment of injunction rendered by the court, and all the papers prepared by the county attorney in the subsequent proceedings for contempt were brought to the attention of the judge at chambers by the application for the attachment of appellants, the motion to quash the accusation, etc. The examination of the witnesses and all the details of the trial also transpired before the judge. . The papers prepared by the county attorney were the affidavit and application for the attachment and the accusation upon which the trial was had. The sufficiency of each of these documents was challenged by appellants’ counsel and was defended by the county attorney. The attention of the judge was thereby challenged to these matters, as it must also have been to the response of the county attorney to various other motions and objections made by appellants. It also appears from the record that the county attorney actively represented the state in the introduction of all the evidence and the examination of all the witnesses produced on the trial. The record justifies the statement that all the services rendered by the county attorney were before the judge and could not have escaped his attention, and, as we before remarked, he is presumed to have known the value thereof. (Noftzger v. Moffett, supra.) No evidence is requisite of facts which transpire in the presence of the court.
In many lawsuits the more burdensome part of the lawyer’s duties are discharged out of court and beyond the observation of the judge, and in such cases evidence would be required thereof in court. In this case it is evident that his own senses and observation were the best witnesses possible to the judge, and this court is able to say from the record that under the circumstances the sum allowed as fees was not unreasonable for the services rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff in error specifies several rulings of the district court which he assigns as error. We find nothing in the record, however, upon which it is necessary to comment except the rulings of the court directing a verdict for the defendant in error, and in refusing to set aside the verdict and grant a new trial.
The mortgage was not executed until fifteen days after the fifty head of cattle were delivered to Rudolph. It is true that this was a renewal of an earlier mortgage, but there is no evidence that the first mortgage was ever filed, or that Rudolph had notice of it in any way. The cattle described in the mortgage, according to the recitals therein, were, when it was executed, on Thomas’s farm, four miles north of Odessa, in Butler county; but the cattle in question were not then in Butler county, but were in Cowley county, on Rudolph’s farm. There were sixty of the former and fifty of the latter. Otherwise the description in the mortgage applies to the cattle in the pasture as well as to those in the mortgage. Upon these facts, so shown by the evidence, we cannot say as a matter of law that Rudolph was chargeable with constructive notice of the mortgage, and there is no evidence that he had actual notice. He certainly had no notice of this mortgage when he took the cattle, for it had not then been made. The question remains, however, whether he had, or was chargeable with, notice of the mortgage after it was made and before he participated in the disposition of the property. In order to impart notice to Rudolph the mortgage should “contain either some hint which would have directed the attention of those reading it to some source of information beyond the words of the parties to it, or something which will enable third persons to identify the property, aided by inquiries which the mortgage indicates and directs, or a description which distinguishes the property from other similar articles.” (Golden and others v. Cockril, 1 Kan. 259 [syllabus], 1 Am. Dec. 510.)
“Generally, ... a description in a chattel mortgage which will enable a third person, aided by inquiries which the instrument itself suggests,, to identify the mortgaged property, is sufficient.” (Mills v. Kansas Lumber Co., 26 Kan. 574, syllabus.)
To the same effect see Tootle, Hanna & Co. v. Lyster, 26 Kan. 589. In King v. Aultman & Co., 24 Kan. 246, the description in the mortgage was as. follows: “ ‘One bay mare, one hind foot white, and white spot in face, branded “G,” 17 hands high, five years old,’ . . . in the possession of said mortgagors, in Clay county, Kansas.” (Page 247.) This description was correct except that the brand was “J,” and the mare was not 17 hands high, but was 15% hands high. The mare-was replevied by the mortgagees from a purchaser from the mortgagor, and the question was whether the purchaser was bound by the record of the mortgage. The trial judge in that case instructed the jury as follows :
“Mr. King was bound to take notice of the chattel mortgage and contents; that is, he is presumed to have-known at the time he purchased the mare just what the chattel mortgage contained. Under these circumstances, and the other circumstances of the case, if you believe that the defendant, by examining the mortgage, would háve known that the intention was to describe the mare in question, you must find for the plaintiffs; or if there was sufficient in the mortgage to cause the defendant King to make inquiries by which he might reasonably have discovered, that the intention was to mortgage the mare in question, then you must find for the plaintiffs. It is not necessary that there should be a perfect description of the mare, but it must be such as would cause a person of ordinary prudence to make inquiries which would lead to a discovery of the fact that the mare was intended to be mortgaged.” (Page 248.)
In Waggoner v. Oursler, 54 Kan. 141, 37 Pac. 973, the description in the mortgage was as follows: “45 head of three-year-old steers, 59 head of two-year-old steers, now being pastured on the Pottawatomie reserve by said party of the first part.” (Page 141.) Fifty head of the steers were afterward sold by the mortgagor ■ to a purchaser, who, having transferred them to another, was sued by the mortgagee for conversion. The question was whether the purchaser was chargeable with notice of the mortgage from its filing. Mr. Justice Johnston, speaking for the court, said:
‘‘The trial court correctly stated the rule that á description which will enable third parties, aided by inquiries which the instrument itself suggests, to identify the property is sufficient, and that a slight variance in the description would not invalidate the mortgage if from the entire description third persons, aided by inquiries which the instrument itself suggests, could identify the property.” (Page 143.)
In Dendy v. Bank, ante, p. 301, Mr. Justice Mason said:
“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.” (Page 303.)
The filing of the mortgage imparted notice of its contents. It contained a particular description, and a-recital that the cattle were all that Thomas owned of that description, and also a recital that the cattle were all on his farm in Butler. county. This presented a question of fact for the jury: whether the cattle in question, in Rudolph’s pasture, • could, with the de scription given in the mortgage, aided by such reasonable inquiries as.that instrument itself suggested, be fairly identified as part of the mortgaged property. If a person of ordinary prudence, reading such mortgage and making such inquiries, would so identify them, it Is sufficient; otherwise not.
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The opinion of the court was delivered by
Graves, J.:
It is claimed by the plaintiffs in error that under the statutes relating to. executors and administrators an administrator can be appointed only when the intestate leaves property which is liable for the payment of existing and enforceable debts due from the estate; otherwise stated, that the law provides administrators solely for the purpose of enabling creditors to collect their claims against the estates of in-testates who' leave property which may be legally taken for that purpose. When all the debts due from the estate are barred by the statute of limitations, or the property left is exempt, then, according to this contention, no jurisdiction exists in the probate court to appoint an administrator.
At the time the administrator in this case was appointed more than six years had elapsed since the death of his intestate, and more than five years had elapsed after the creditors, if any, might have obtained the appointment of an administrator; and, therefore, it is urged, all claims against the estate were necessarily barred by the statute of limitations, which made the appointment void.
In support of their position the plaintiffs in error cite several sections'of the statutes relating to executors and administrators and descents and distributions, which it is urged, when construed together, make a scheme for the care of estates which excludes administrators for any purpose other than as stated. There is nothing in these sections which directly supports this claim. The contention depends entirely upon an inference drawn from the language of a few sections of chapter 37 of the General Statutes of 1901, enough of which to make the position clear is here given:
“Every executor or administrator shall, within sixty days after his appointment, or sooner if so ordered by the probate judge, make and' return upon oath into court a true inventory of all the goods, chattels, moneys, rights and credits of the deceased which are by law to be administered, and which shall have come into his possession or knowledge, and also of all the real estate of the deceased.” (Gen. Stat. 1901, § 2844.)
“Upon proper proof being made by an executor or administrator to the probate court, that any claim, debt or demand whatsoever belonging'to the estate in his hands to be administered and accruing in the lifetime of the deceased, represented by such executor or administrator, cannot be collected,” etc. (Gen. Stat. 1901, § 2868.)
“The executor or administrator shall, within three 'months after the date of his bond, sell the whole of the personal property belonging to the estate, which is liable to the payment of debts, and is assets in Ms hands to be administered, except the following: First, such as may be set apart to the widow and children, as exempt from the payment of debts. Second, such property as is specifically bequeathed shall not be sold until the residue of the personal estate has been sold, and is found by the executor or administrator to be insufficient for the payment of the debts of the estate. Third, the executor or administrator may defer the sale of the emblements or annual crops raised by labor, which were not severed from the land of deceased at the time of his death, beyond the three months herein prescribed for the sale of the assets, and the same may be sold before or after they are severed from the land, by the executor or administrator, with the approval of the probate court, and in the' mode prescribed for the sale of other goods and chattels.” (Gen. Stat. 1901, § 2874.)
“Every executor or administrator shall be chargeable with the amount of the sale bill; and also with all goods, chattels, rights and credits of the deceased which shall come to his hands and which are by lato to be administered, although they should not be included in the inventory or sale bill.” (Gen. Stat. 1901, § 2959.)
It is assumed that the words “to be administered,” “which are by law to be administered,” and “assets in his hands to be administered,” as used in-these sections, indicate that in contemplation of this law some estates ,are. excluded from its provisions. In support of this theory other sections of this chapter are referred to, which relate to the collection and preserva-, tion of the property of the estate and to the allowance and payments of debts. It is impractical to give copies of these numerous sections, and they are referred to as sections 5, 6, 42, 51, 55, 61, 62, 63, 173, 81, 108, 165 of chapter 37, and'section 31 of chapter 33, of the General Statutes of 1901. The substance of these sections, considered together, is that the administrator shall file a statement of the indebtedness due from the estate, so far as can be ascertained; the lien of the debts on the real estate shall not be released on account of the administrator’s bond; an inventory of all personal property shall be filed within sixty days, which, except that set apart to the widow and children as exempt, shall be appraised; all assets shall be collected by the administrator within one year after his bond is given; if it appear that the assets amount to no more than that which is exempt to the widow and children, and no debts are due from the estate, the court may in its discretion close the administration without further expense; all claims, whether due or not, must be presented within three years or become barred; during the three years there can be no distribution which will relieve the property from liability for the debts of the estate; and the residue of personal property, after administration is closed, descends the same as real estate.
We see nothing in these sections or elsewhere in the law of this state to uphold the position advanced by the plaintiffs in error. On the contrary, the first section of chapter 37 states when an administrator shall be appointed for the estate of a deceased citizen of this state. It reads:
“That upon the decease of any inhabitant of this state, letters testamentary or letters of administration on his estate shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death.” (Gen. Stat. 1901, § 2806.)
There are no conditions, limitations or restrictions in the language of this section. When any inhabitant of this state dies intestate the probate court of the county of which the deceased was an inhabitant or resident shall appoint an administrator of the estate. The other provisions of the law merely provide the procedure for carrying out the administration.
The contention of the plaintiffs in error does not involve a question of propriety merely in appointing an administrator when there are no creditors whose rights should be protected, but it asserts a want of power to make an appointment under such circumstances. Section 173 of chapter 37 seems to be an answer to this theory. It reads:
“If upon the return of the inventory and appraisement it appears to the court that the whole amount of the estate is not more than that to which the widow and children are by law entitled, without being subject to the payment of debts, and that there are no debts due the estate, or so small that they would not defray the expenses of collection and of administration, the probate court may in its discretion make an order that such estate be delivered to the widow, and that all further advertisements, settlements and other proceedings under said administration be dispensed with, unless further estate be discovered, or the court order the administration to be proceeded with.” (Gen. Stat. 1901, § 2979.)
There is no suggestion here that if it be discovered that there are no assets “to be administered” and no creditors to be satisfied the proceeding shall be dismissed as void from the beginning for want of jurisdiction; on the contrary, power is reserved for the court subsequently to proceed with the administration if it be deemed advisable so to do.
In our view, the provisions of the statute contemplate that an administrator shall be appointed by the probate court whenever the facts required by section 1 of chapter 37 of the General Statutes of 1901 are shown to exist, and whether or not administration shall be continued will depend upon circumstances. If it appears, as claimed in this case, that there are no assets and no creditors, there would be no good reason for its continuance, and it might well be closed. If these facts appear when application for the appointment of an administrator is made, the application might well be refused. If, as in the cases of Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kan. 420, and the Estate of Mallory v. B. & M. R. Rld. Co., 53 Kan. 557, 36 Pac. 1059, the deceased was not a resident of the state of Kansas at the time of his death, and left no estate, then the application should be denied.
The ordinary procedure of administration furnishes a plain and practical method whereby it can be authoritatively ascertained whether there are creditors or not, and whether or not there are assets liable for the debts of the intestate. If the jurisdiction of the court depends upon the existence of assets and creditors, it would be necessary to determine these questions in each case before the court could entertain an application to make an appointment, which would be cumbersome, impractical and unsatisfactory. Judge Ellison, in the case of Becraft v. Lewis, 41 Mo. App. 546, when discussing this question, said: “If we can dispense with administration simply by offering proof that no debts are known to exist (which is all that testimony could show) we would make much confusion and overturn well-recognized modes of procedure.” (Page 554.)
In the case of Estate of Strong, 119 Cal. 663, 51 Pac. 1078, when discussing a similar case, the court said:
“The whole subject-matter of dealing with the estates of deceased persons is one of statutory regulation, and the policy and intent of our statute very clearly contemplates that property of decedents left undisposed of at death (except in the instance of the homestead, acquired under certain circumstances as provided for in section 1474 of the code of civil procedure) shall, .for the purposes of ascertaining and protecting the rights of creditors and heirs, and properly transmitting the title of record, be subjected to the process of administration in the probate court. Indeed, there is no other method provided by the statute whereby the existence of creditors or heirs of decedents may be conclusively established.” (Page 665.)
In the case of Succession of Story, 3 La. Ann. 502, it was said:
“Even in case there are no debts we do not undertake to say that an administrator cannot be appointed. There may be cases in which such an appointment' would be advantageous — nay, necessary — to the interests of a succession; and the propriety of subjecting-the succession to such a charge must rest with the discretion of the judge, on the facts before him.”' (Syllabus.)
In Ferguson v. Templeton (Tex. Civ. App.), 32 S. W. 148, a part of the opinion reads:
“The trial court concluded that the application showed that there were no debts due from the decedent, and held, as a matter of law, that, there being no-debts, the probate court was without power to grant the administration. We know of no law, or decision by our supreme court, which restricts the grant of' administration to cases in which there are debts due-from the decedent. There are doubtless dicta which tend to support this assumption, but these dicta will be found- in cases where the application for letters of' administration was made so long a time after the death of the decedent that it was conclusively presumed that his estate had vested absolutely in his heirs, and was not, therefore, subject to administration for any purpose.”
There seems to be a necessity for some responsible-person to collect and care for the personal property belonging to an estate until it can be legally disposed of, either in payment of debts or by distribution. Estates may consist of large amounts of personal, property, widely scattered, of a perishable nature, and the circumstances be such that it would be impractical for the heirs to collect and make satisfactory distribu tion thereof. Many considerations might be suggested which would make the appointment of an administrator useful and desirable, if not indispensable, even in cases where the claims of creditors do not exist. We are unable to concur in the proposition that the law relating to administrators was created solely for the • benefit of creditors. It contains no provision which expressly so declares, and in our view a fair construction of it will not justify such a conclusion.
In addition to the argument based upon the language of the statute plaintiffs in error have cited in support of their position several authorities from different states, which we have examined but do not regard as controlling here. It is impossible to ascertain from any of these cases whether the statute being considered therein was the same as that of this state or not, and therefore the decisions are not helpful as authority.
We have not overlooked the fact that in the case at bar the difficulties hereinbefore suggested do not arise. Here, if any debts existed against the estate represented by the defendant in error, they were barred by the statute of limitations, and no necessity existed for administration on that account. The only asset belonging to the estate was the note sued upon, and the administrator, being the sole heir of the intestate, might have maintained an action thereon in his own name. Under these circumstances the court might have properly refused to make the appointment.
But an important rule of legal procedure, having general application, should not be determined solely upon the peculiar facts of an isolated case. To sustain this demurrer would practically decide that every probate court, before appointing an administrator, must determine whether any valid claims against the estate -will be allowed within three years or not, and, if there should be, whether or not there will be assets for the payment thereof, and a mistake in this determination, whenever thereafter discovered, might b.e fatal to all proceedings had in relation to the estate administered.
We do not think the law justifies such a decision. We conclude that the probate court of Atchison county-had jurisdiction to appoint the defendant in error administrator, and he, as such administrator, had the right to recover upon the note in suit, unless prevented by the statute of limitations. Upon the latter proposition it is argued that the note by its terms is payable in the state of California; that when it became due the statute of limitations of that state began to run against it; and that, more than five years having elapsed, there can be no recovery. The period of five years is applied under the rule that in the absence of any evidence as to the statute of limitations of that state it will be presumed to be the same as here. We do not think the statute of limitations of another state applies to a suit in this state upon an ordinary promissory note which was made and delivered in this state to a citizen thereof. The general rule that the statute of limitations in force where an action is pending will control that case has no exceptions other than may be found in the law of such place. (Hoggett v. Emerson, 8 Kan. 262.) The only exception to this general rule in this state that can apply here is section 22 of the code, which reads:
“Where the cause of action has arisen in another state or country, between non-residents of this state, and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action [can be] maintained thereon in this state.” (Gen. Stat. 1901, § 4450.)
The bill of particulars shows that this note was made, executed and delivered in Atchison, Kan., and that the holder thereof resided there continuously thereafter until her death. It does not appear from the facts stated in the bill of particulars that the cause of action arose in another state between non-residents of this state, and therefore this statute does not apply. It is alleged that the defendants have been absent from the state of Kansas all the time since the execution of the note, except for a period of about two weeks, and therefore the cause of action is not barred.
The demurrer was properly overruled, and the ruling is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The International Text-book Company brought this action in the court of Topeka on a written contract, dated October 12, 1905, which was set forth in substance in its bill of particulars, as follows:
“Said defendant subscribes for a scholarship in the commercial law course in the International Correspondence Schools, an educational establishment conducted by the plaintiff at Scranton, Pa.; instruction papers and questions to be furnished by plaintiff as studies proceed; scholarship, when paid for, to be non-forfeitable and transferable on payment of stipulated transfer fees; defendant to pay for said scholarship the sum of $84.60, payable $5 at‘the signing of the contract, and $5 a month thereafter till fully paid, but in case of default in the payment of any instalment all to become due at the option of this plaintiff; and with a further option to said defendant to pay out in full within sixty days at an aggregate of $72.”
The defendant answered, in abatement, that plaintiff was a foreign corporation, for profit; that it was transacting the business in this state out of which the contract arose; and that it had not complied with the corporation laws of Kansas and was not entitled to maintain the action.
The reply denied that the plaintiff was doing business in the state of Kansas and admitted all other facts alleged in the defendant’s bill of particulars.
At the trial the case was submitted upon the following agreed statement, without other evidence, to wit:
“The parties hereto submit this action to the court for decision upon an agreed statement of facts, as follows:
“(1) The plaintiff is a corporation organized and existing under the laws of the state of Pennsylvania, and is the proprietor of the International Correspondence Schools, located at Scranton, Pa.
“(2) That on October 10, 1905; the defendant executed in Topeka, Kan., an agreement in writing, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof; that on or about the 16th day of October, 1905, said agreement was received by the plaintiff in Scranton, Pa., and was by it there approved and accepted; that the plaintiff thereupon delivered to the defendant the scholarship in the International Correspondence Schools referred to in said agreement, and has duly performed all conditions thus far to be performed under the terms of said agreement and scholarship. A blank form of the certificate of scholarship is hereto attached, marked ‘Exhibit B.’
“(3) That unless the plaintiff is debarred from maintaining this action by reason of its failure to comply with the statutes of Kansas, as hereafter appears from this statement of facts, the plaintiff is entitled to judgment as prayed for in the bill of particulars.
“ (4) The plaintiff is a corporation having a capital stock, and the profits, if any, frorn the operation of the corporation belong to the corporation, to be distributed in dividends or otherwise applied as it may elect.
“(5) All the executive officers óf the plaintiff corporation reside, and exercise their functions as such executive officers, at Scranton, Pa., and not in Kansas.
“ (.6) The business of the plaintiff is preparing and publishing instruction papers; text-books, and illustrative apparatus for the same, for courses of study suited for teaching by correspondence through the mail, and forwarding such publications and apparatus to students and instructing them through the mail, from Scranton, Pa., in the manner set forth in ‘Exhibit A.’
“ (7) All the teachers and instructors of the plaintiff corporation reside and perform their duties at Scranton, Pa., and none of them resides in the state of Kansas.
“(8) The plaintiff, in carrying out these operations, employs local or traveling agents, whose title is solicitor-collector, and whose duties are to procure and forward to the plaintiff at Scranton, Pa., from persons in a specified territory, on blanks furnished by the plaintiff, similar in substance to the printed portion of ‘Exhibit A,’ hereto attached, applications for scholarships in the International Correspondence Schools, and to collect and forward deferred payments on scholarships issued by the plaintiff; that the solicitor-collector is kept informed by the plaintiff of the various fees to be collected for the various scholarships offered and the contract charges to be made for cash or de-. ferred payments, and the terms of payment acceptable to the plaintiff, in order that applicants may, so far as practicable, adapt their applications to their needs.
“The scholarship, instruction papers, text-books, and illustrative apparatus called for under each application accepted are sent by the plaintiff from Scranton, Pa., directly to the applicant; and instruction is imparted by means of correspondence by mail between the applicant, from his residence, and the plaintiff, at Scranton, Pa.
“Moneys paid by the applicants on account of scholarships are received in the first instance by the solicitor-collector of the district where the applicant resides, and by him forwarded to the plaintiff; that the receipt given for such money, with stub, and voucher to be sent the plaintiff, is on a form furnished by the plaintiff, a copy of which is hereto attached, marked ‘Exhibit C,’ and made a part hereof.
“(9) One J. B. Hughes is solicitor-collector for plaintiff for a territory including Topeka, Kan., and is soliciting students to take correspondence courses in plaintiff’s schools. He has his office in room 1, Real Estate building, on Jackson street, in the city of Topeka, and has in the window of said office a sign, supplied by plaintiff, which reads: “Local Agency International Correspondence Schools, Scranton, Pa.” In his office are bound volumes, samples of some of the volumes that are sent out by plaintiff as pertaining to particular courses. Said office is paid for by said Hughes, and is maintained by him for the purpose of furthering the procuring of applications for scholarships for plaintiff and the collection of fees therefor, as above set forth; and the plaintiff has no office in the state of Kansas for the purpose of doing any business other than that herein stated.
“That said Hughes is paid a fixed salary by the plaintiff and also a commission on the number of applications obtained and the volume of collections made.
“Numerous persons in the city of Topeka are now, and were at the time this suit was filed, and at the time the contract herein sued on was accepted, taking from plaintiff courses of instruction by correspondence. Contracts for said courses were procured, and payments thereof were and are being collected and remitted by plaintiff’s solicitor-collector, in the manner above set forth.
“Said Hughes makes to the plaintiff a ‘daily report’ for his territory on blanks furnished by the' plaintiff; and such reports show for the month of March, 1906, aggregate collections on scholarships and deferred payments on scholarships approaching $500.
“(10) The plaintiff has never filed with the secretary of state of the state of Kansas its consent to be sued by the service of summons upon said secretary; or any application for authority to do business in the state of Kansas; or any annual reports; and it has no certificate from the secretary of the charter board or from the secretary of state, as to such matters.”
Thereupon the court of Topeka rendered judgment in favor of the defendant for costs, and the plaintiff appealed therefrom to the district court of Shawnee county. In the latter court the case was submitted upon the. same pleadings and the same evidence, and judgment was therein rendered in favor of the defendant. The plaintiff brings the case here.
As disclosed by the agreed statement of facts, a principal part of the business of the plaintiff was selling scholarships in many branches of learning and collecting the pay therefor. For this purpose it maintained an agency in Kansas, and had, before the commencement of this action, done quite an extensive business with numerous customers, and was evidently seeking and intending to pursue and extend this business. The scholarships entitled the owner thereof to certain books and instruction, and when paid for were transferable. It is true that the books and instruction papers were prepared and forwarded to .the owner of the scholarship from another state, but the securing of the order therefor and a part payment in advance were done through an agent in this state. This agent was doing business in Kansas, not his own business, as principal, but the company’s business, as its agent. Hence the company was doing business in Kansas.
We are unable to distinguish this case in principle from Deere v. Wyland, 69 Kan. 255, 76 Pac. 863, and on the authority of that case and the authorities there cited the judgment is affirmed.
Johnston, C. J., Greene, Burch, Mason, Graves, JJ., concurring. | [
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The opinion of the court was delivered by
Mason, J.:
David Sibrell executed a will in which was incorporated the following provision:
“I desire and design to, and I do by this paper writing (both a will and a deed), create, convey to, and vest in, my beloved daughter, Harriet Campbell, a present interest and estate in and to all the estate of which I am now or shall be at the time of my death seized, or to which I am now or shall be then entitled, to the extent of one-half thereof, always, however, subject to the payment of the said debts, expenses and legacies heretofore mentioned, and also to a life-estate in me for and during .the period of my natural life, and this present interest and estate I make upon a good, valuable and sufficient consideration from said Harriet Campbell, in addition to the consideration of natural love and affection I bear toward her.”
A similar clause purported to convey to Harriet Campbell, as trustee for the benefit of Martha Powers', her sister, the other half interest in the real estate, subject to the same limitations. Sibrell died, and a subsequent will was duly probated. The personal property was insufficient to pay the .indebtedness of the estate. At the time of his death Sibrell had no real estate other than an eighty-acre tract which he had owned when he made the first will. The executor applied for an order to sell this to pay debts. Martha Powers and Harriet Campbell appeared and resisted the application, on the ground that the land was theirs in virtue of the writing already described as incorporated in the earlier will. The order was made, however, and the land was sold for $725 to Albert D. Scharling, "who received a deed and took possession. So much of this sum as was necessary was used in paying the claims allowed against the estate, including one of Martha Powers’s for $49 and one of Harriet Campbell’s for $32.
Thereafter Martha Powers and Harriet Campbell brought an action against Scharling to recover the land, claiming that the instrument executed by Sibrell had at once vested a title in them and that the executor’s deed was void. A demurrer to their petition was submitted, under an express stipulation that it. should be sustained only in case such instrument was held to be wholly testamentary. The trial court sustained the demurrer, but upon proceedings in error the decision was reversed, this court holding that so far as the instrument related to real estate owned by Sibrell at the time of its execution it was contractual and irrevocable. (Powers v. Scharling, 64 Kan. 339, 67 Pac. 820.) A trial resulted in a judgment for the' defendant, which was reversed upon the ground that competent evidence had been rejected. (Powers v. Scharling, 71 Kan. 716, 81 Pac. 479.) At a second trial it was agreed that all disputed facts should be' submitted to the jury by special questions and that all other matter should be submitted to the court. Pursuant to this arrangement the jury made a number of' findings of fact, but returned no general verdict. The-court adopted these findings (with one exception, to be noted later), made some additional ones based upon the admissions of the parties and the undisputed evidence, and announced various conclusions of law fatal to a recovery by the plaintiffs. A judgment for the-defendant followed, from which error is prosecuted.
The position of the plaintiffs is that the instrument signed by Sibrell vested in them upon its delivery, which was found by the jury to have taken place immediately upon its execution, a title to the land, subject only to Sibrell’s life-interest and to what was in effect a lien for the payment of the charges against his. estate; that no title was left in the testator to be sold by his executor, and that the only method available for' the enforcement of the lien was by an equitable action in the district court. To this the defendant responds, that whatever right the two daughters acquired was in subjection to a title remaining in their father as security for the payment of his debts, and that the exec utor’s sale was properly made; or, if not, that the probate court had jurisdiction of the subject-matter and even if the order to sell was erroneous it was not yoid, and not having been appealed from is conclusive, not being open to collateral attack; and that at all events the plaintiffs, having accepted a part of the proceeds of the sale in satisfaction of their demands against the estate with a full knowledge of all the facts, are estopped to question the validity of the deed. The trial court' sustained all of the defendant’s contentions.
The argument against the right of the executor to sell the land is at least plausible. And if the title had in fact passed to Sibrell’s daughters there’ is difficulty in giving the decision of the probate court to the contrary the effect of an adjudication. The usual rule is'that probate courts cannot determine questions of title so as to conclude persons claiming adversely to the estate — that the power to decide what shall be done with property owned by a decedent does not include the power to decide what property the decedent owned. (11 Cyc. 796; 18 Cyc. 745; 11 A. & E. Encycl. of L. 1094; Stewart v. Lohr, 1 Wash. 341, 25 Pac. 457, 22 Am. St. Rep. 150; Matter of Will of Walker, 136 N. Y. 20, 32 N. E. 633.) A different view, however, is suggested in section 173 of Van Fleet’s Collateral Attack, but the only case cited in its support turned upon the phraseology of the statute involved.
In Amos, Adm’r, v. Livingston, 26 Kan. 106, a question of adverse title was litigated in proceedings begun by an administrator for the sale of real estate, but the question of jurisdiction was not raised. In Rogers v. Clemmans, 26 Kan. 522, an administrator’s sale of real estate was held to be absolutely void because the heirs derived title directly from the federal government and not through the intestate, and because of a want of notice. In Coulson v. Wing, 42 Kan. 507, 22 Pac. 570, 16 Am. St. Rep. 503, the first of these reasons was held to have been sufficient. The cases in volving the homestead right (Fudge v. Fudge, 23 Kan. 416) and the exemption of land from sale for a debt created while the title was in the government (Watkins v. Mullen, 62 Kan. 1, 61 Pac. 385, 84 Am. St. Rep. 372) turn upon a different question, adverse title not being Involved. Even such provisions as that giving an administrator authority to sell lands conveyed by the deceased in fraud of creditors (Gen. Stat. 1901, § 2921) are commonly enforced by proceedings brought in a court having equitable jurisdiction. (18 Cyc. 692, note 60; Barker v. Battey, 62 Kan. 584, 64 Pac. 75.)
It will not, however, be necessary to decide the effect of the contractual matter inserted in the will or the extent of the jurisdiction of the probate court, for the judgment of the district court can be affirmed upon the proposition that the plaintiffs are not in a position to deny the defendant’s title. It is a familiar and well-settled principle that one who with full knowledge of the facts accepts the benefits of a void judicial sale is thereby precluded from questioning its validity. (Freeman, Void Jud. Sales, 3d ed., § 50; Meddis v. Kenney, 176 Mo. 200, 75 S. W. 633, 98 Am. St. Rep. 496, and note citing other cases in that series.) Whether the principle is described as equitable estoppel, quasi-estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very Important. It is really but an application of the homely proverb that one may not eat his cake and have It too. Decisions in which it has been applied to sales made by executors and administrators are collected in volume 11 of the American and English Encyclopædia of Law, at page 1124, and volume 18 of the Cyclopedia of Law and Procedure, at page 798. In the latter work the doctrine is thus expressed:
“One who has knowingly accepted and retained the purchase-money or a part thereof is thereby estopped from afterward attacking the sale or asserting title to the land, but it is necessary in order to work the estoppel that the person receiving the money should have known at the time of the facts rendering the sale invalid, and that what was received was proceeds, of the sale.” (Page 798.)
The Kansas case most nearly in point is Crane v. Lowe, 59 Kan. 606, 54 Pac. 666, where it was held that the acceptance of the payment of a legacy out of the proceeds of a void executor’s sale of real estate prevented an heir from claiming the land. A creditor who accepts the payment of his debt .out of the proceeds of his own property stands upon the same footing as a legatee or an heir who receives a legacy or distributive share of the estate from a like source. He may not enjoy the benefit of the sale and escape its-burden. Instances in which the rule has been invoked against a creditor do not seem to be common, but one is found in Beard v. Cash et al., 32 La. Ann. 121, the first paragraph of the syllabus reading:
“A creditor of a succession who has received his-share of the proceeds of the sale of certain land belonging to the succession cannot be heard to claim the annulment of the sale, and to assert his title to the-land.”
The jury found that the plaintiffs at the time they presented their accounts against the estate did not-know that the personal property left by Sibrell .was. insufficient to provide • payment for the claims which had already been allowed. The court, while not in so-many words setting this finding aside, did so in effect by pronouncing it to be wholly unsupported by the-testimony and contrary to the evidence. This action implied a -finding by the court that the plaintiffs had such knowledge at the time referred to, and as the-evidence has not been preserved such must be taken to be the fact. The court’s statement also shows by express recitals that at the time these claims were-filed two annual settlements had already been made by the administrator disclosing that the personalty of the estate had already been exhausted in the payment of prior demands, and inferentially that the plaintiffs. knew this to be true. In support of the judgment it may also be inferred that the plaintiffs knew there were no other assets of any character from which they might expect payment. It therefore appears that they demanded payment of their charges against the estate knowing that no fund could be available for the purpose except that produced by the sale of the real estate which they now claim, and that they accepted in satisfaction thereof money which they knew could only have come and in fact did come from that source. This consideration would seem to preclude their attacking the validity of the sale under any circumstances.
There is nothing, however, in the facts presented to entitle them to any peculiar leniency of treatment or to shield them from the full rigor of the rule stated, if such a rule may ever be regarded as rigorous. It is beyond dispute that the interest of the plaintiffs in the land was subject to the payment of the debts of the estate, and that it was the province of the probate court to see that such charge was enforced. If a mistake was made in the method pursued it was through a misconception of a doubtful matter of law. No claim is made that the sale was unfairly conducted or that the price paid was inadequate. The plaintiffs are standing upon a technical right, and no substantial injustice or hardship can result from holding them to the ordinary standard of consistent conduct. It is true that the amount received and retained by each was small in comparison with the value of the property. Yet it was enough to be substantial — it was not merely nominal. The rule that he who claims the benefit of a transaction must take also its burden does not proceed upon a theory of compensation, and its application does not involve a weighing of the advantage .gained against that lost.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The error assigned by Ware is that the judgment of the trial court was against the law and the evidence and contrary to the findings made by the court itself. It is insisted that the evidence, written or oral, shows Ware to have been acting in a fiduciary capacity; that the money was paid to him to induce a violation of a trust; and that even if the $2500 was given to Ware as Spinney’s agent to pay the expenses of the consolidation of the fraternal organizations it was still part of a contract wherein $10,000 was agreed to be paid to Ware and his associates on personal account. It is also said that there was an unexpressed purpose that the money should be corruptly used to bring about the consolidation of the companies. On the other hand, counsel for Spinney calls attention to testimony that the $2500 was turned over to Ware to be used, as far as necessary, to pay the expenses of calling and holding a meeting of the directors of the National Aid Association with a view of authorizing the consolidation, and also to the receipt given when the money was paid, in which it was recited that it was to be used to pay the necessary expenses of combining the organizations. He also refers to the formal contract, in which it was expressly stated that the $2500 was placed with Ware to defray the necessary expenses of the consummation of the consolidation, as the same should be needed. There is sufficient testimony to sustain the findings of the court as to the purpose for which the money was paid. It was placed with Ware to be paid to others in the accomplishment of that purpose, and not for his own use or benefit. This provision was independent of the one in which provision was made to turn over to Ware and others $10,000 in notes in payment of their personal claims, which notes, were the subject of litigation in Scott v. Bankers’ Union, 73 Kan. 575, 80 Pac. 604. It is contended here that the transaction was not contrary to good morals, and attention is called to the fact that Scott v. Bankers’ Union, supra, proceeded on the theory that it was not illegal. It was there held that while the contract under which the notes were given to Ware and others was not binding on the Bankers’ Union, it was enforceable against Spinney, who had individually signed the notes. In speaking of the transfer of the membership of the National Aid Association, which was insolvent, to the Bankers’ Union, which was a going concern, Mr. Justice Graves remarked :
“The transaction in which they [the notes] were given was not unlawful, or contrary to public policy. The consolidation of such corporations might be desirable and useful to both associations, and proper and legitimate in every way. The officers of the National Aid Association did not attempt to sell out their company, nor to betray their trust; they only undertook to advise with and urge the subordinate lodges and members to consent to the proposed merger. This was proper. The National Aid Association could not exist alone very long, and any change which promised protection to its certificate holders was desirable. We think this effort on the part of the officers was not vicious, but commendable.” (Page 589.)
Assuming, however, that the purpose was unlawful, as some of the testimony tends to show, Spinney was not barred from a recovery of so much of the money as was unexpended. The general rule is that the law will not aid either party to an illegal agreement, but an exception is made where the illegal agreement or purpose has not'been carried out. This was not an action to enforce the agreement between Spinney and his agent, Ware, nor is the judgment rendered by the court in any sense an affirmance of the agreement. Granting that the purpose of the parties was unlawful, the action is rather a repudiation of that purpose and a disaffirmance of the agreement.
“The broad rule has been laid down that when money or property is delivered by a principal to his agent for an- illegal purpose or for the purpose of carrying into execution an illegal contract the agent cannot set up such illegal object to prevent a recovery by the principal from the agent of such money or property, so long as it remains in his hands.” (15 A. & E. Encycl. of L. 1009.)
In the note accompanying this text may be found a large number of sustaining authorities. The agent cannot retain the money merely because the transaction- in contemplation was illegal. The illegality that defeats a recovery of the money is not in the intent alone. It has been well said:
“Persons may not be punished either in civil or criminal courts for unlawful intentions. It is the consummation of these unlawful intentions that places a party without the law. If the unlawful intention or transaction is not carried out, if nothing is done under it, my servant has my property, and I am entitled to its return. As in the present case, he is acting under a special agency which I have a right to revoke at any time before performance, and, when so revoked, I am entitled to my own. It cannot be better public policy to deny me a recovery of the stock than to encourage my agent to commit a criminal offense.” (Wassermann v. Sloss, 117 Cal. 425, 431, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St. Rep. 209.)
Until the contemplated action is .executed — the money converted to the illegal use — the parties are given an opportunity to repent and rescind, and the doctrine of locus pomitentias, as it is called, is applied.
“Seeing the error of his ways, the law says a party may withdraw from the transaction; and it extends to him a helping hand by offering the inducement of giving back to him anything of value with which he has parted.” (Wassermann v. Sloss, supra, p. 428.)
The same view was well expressed by the supreme court of Maine when it said:
“The law encourages a repudiation of the illegal contract, even by a guilty participator, as long as it remains an executory contract or the illegal purpose has not been put in operation. . . . 'It best comports with public policy to arrest the illegal transaction before it is consummated.’ ” (Tyler v. Carlisle, 79 Me. 210, 212, 213, 9 Atl. 356, 1 Am. St. Rep. 301.)
In Morgan v. Groff, 4 Barb. (N. Y.) 524, it was said:
“As long as money deposited with an agent for an illegal purpose remains unemployed, or if the. purpose be countermanded 'by the principal before its application, it is a debt which may be recovered from the agent by the principal, either at law or in equity.” (Page 529.)
The principle of these cases has been adopted and applied in this state. In the case of Hardy v. Jones, 63 Kan. 8, 64 Pac. 969, 88 Am. St. Rep. 223, an action was brought by a principal to require his agents to account to him for money placed in their hands to purchase property at a judicial sale, under an agreement which had for its purpose the suppression of competition at the sale. After the sale there remained in the hands of the agents a portion of the fund placed in their hands, and they refused to account for this, on the ground, that their agreement was void as against public policy. The court refused to listen to this reason or excuse, saying:
“As long as an illegal contract remains unexecuted neither party can be held to its terms. At any time before Hardy and Turbush had acted in behalf of Jones the latter might have revoked their authority, or they upon their part might have refused to execute their agency, but even in such case the agents could have been compelled to account to their principal for his money. So, likewise, will they be compelled to account for any unexpended balance remaining over from the execution of the illegal agreement. The surplus money now held by them is not held in pursuance of an illegal agreement . . . to suppress competition at a judicial sale. The sale has been had, and the unexpended purchase-money is now held by plaintiffs in error the same as they-would hold any other money of the defendant in error.” (Page 10.)
(See, also, Pollock v. Agner, 54 Kan. 618, 38 Pac. 781; Peters et al. v. Grim, 149 Pa. St. 164, 24 Atl. 192, 34 Am. St. Rep. 599; Adams Express Co. v. Reno, Reno, interpleader, 48 Mo. 264; Bank v. Wallace, 61 N. H. 24; Norton v. Blinn, 39 Ohio St. 145; Kiewert v. Rindskopf, 46 Wis. 481, 1 N. W. 163, 32 Am. Rep. 731; Clarke, Harris & Company v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98; Springs Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; Wood’s L. of Mas. & Ser., 2d ed., § 202; Dunlap’s Paley on Agency, *66; 9 Cyc. 554-557.)
The fact that Ware was an officer of, and owed duties to, the National Aid Association does not affect the application of .the rule requiring him to account for the money received and not yet disbursed. It is assumed that he was acting unlawfully, but he was acting as the representative of Spinney and held Spin- - ney’s money to be used for the purpose stated. Under the rule of the authorities it is his duty to account to Spinney for the unexpended portion of the money, and this duty does not arise out of the illegal agreement and purpose but out of the receipt and retention of the money of another which has not been converted to the proposed illegal use.
There appears to be nothing substantial in the claim that there was a departure from the pleadings, nor do we find any ground for a reversal.
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The opinion of the court was delivered by
Graves, J.:
On July 20, 1906, an information was filed in the district court of Allen county charging the appellant, Jim Corn, with keeping, maintaining and assisting in maintaining a public nuisance in violation of the prohibitory liquor law. He was subsequently tried, convicted and sentenced for such offense. From that judgment he has appealed to this court, and asks that it.be reversed on the grounds that the district court erred in admitting improper testimony and that the evidence was insufficient to establish his guilt.
The only witnesses for the state were the sheriff, assistant attorney-general for that .county, and a dealer in ice. The appellant rested upon the testimony of the state. In substance it was shown that the place alleged to be a nuisance was a two-story brick business building in the city of Iola. It was twenty-five feet wide at the sidewalk, and extended back one hundred feet. The first floor was divided into three rooms by thin board partitions. The front room contained a counter,' shelving, and other fixtures usually found in a small restaurant and cigar store. In the other rooms were ice-chests, containing bottled beer packed in crushed ice, meat, milk, vegetables, and other eatables; a gas'cooking-stove, tables and chairs; about thirteen full cases of beer; and furniture and fixtures.
On July 14, 1906, the assistant attorney-general for Allen county, with the sheriff, went to this building for the purpose of arresting the keeper thereof, and to seize whatever liquors and other property might be there. The warrant under which they acted was issued against John Doe. At that time the building was locked, but, hearing considerable noise inside, apparently occasioned by the moving of furniture, they entered the building through a window. Inside they found the appellant, with a colored man and a boy fifteen or sixteen years old. The colored man was carrying cases of beer into the cellar. The appellant did nothing while the officers were there, and denied being the owner of the property taken, but in view of the whole situation the sheriff regarded him as the keeper of the place. When the ice-chests were being removed the appellant requested that one of them be left “to keep his cooking material and meats and such stuff in there”; that otherwise he would have no way to preserve those articles.
On one of the shelves behind the counter in the front room some bills and a book of accounts were found and taken, whereupon the appellant said: “You are not going to take all the papers, too, are you?” The bills were made in the name of “Titus & Corn, Dr.,” and indicated the purchase by them of liquors by the case, in pint and quart bottles, of “Pabst,” “Budweiser,” “Schlitz,” and “Blatz,” to the amount of $49.07 during the months of June and .July, 1906, and to the amount of $73.36 in June and July, the year not being stated. The admission of these bills and accounts in evidence is assigned as error. Nothing was shown to connect the defendant therewith except as above stated. We think this evidence was admissible, at least for the púrpose of showing the kind and character of the business conducted at that place. Bottles, kegs, liquors, or anything found in the building which tends to give character thereto is admissible in evidence for the purpose of showing whether' the place is a public nuisance or not. We find no error, therefore, in the ruling of the court permitting this evidence to go to the jury.
We also think the testimony sufficient to justify the verdict. The appellant was locked in the building and was apparently in charge and possession of the property and business. That this place was a common joint, run behind the ordinary mask of a pretended lunch-counter and cigar stand, can hardly be doubted. Appellant kept his provisions and cooking materials in an ice-chest where more than a full' case of bottled beer was packed in crushed ice. Evidently he was either the proprietor or a person who was actively aiding and assisting another in maintaining a nuisance. In either case he was guilty of the offense charged. No other reasonable conclusion can be drawn from the facts and circumstances shown. He was properly convicted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the First National Bank of Horton against B. F. Abmeyer to recover on a promissory note for $400 made by Abmeyer to C. A. Wright, who, it was alleged, transferred it to Alex Dunn, jr., who in turn sold and delivered it to the bank before it became due. Abmeyer answered and offered testimony tending to show that the note was given to Wright in, partial payment for certain personal property purchased from Wright,-a part of which consisted of, corn in the field, which was 'sold on the basis that it amounted to 1300 bushels but which turned out to be only 431 bushels. There was also an averment and some evidence to show that Abmeyer was an inexperienced man, unable to estimate the quantity of corn in the field, while Wright was a farmer who had raised corn and could estimate the quantity of corn standing in a field with reasonable accuracy; that, for the purpose of deceiving Abmeyer, Wright falsely represented that there were upward of 1300 bushels, worth 38 cents a bushel; and that Abmeyer, believing and relying upon his statement, purchased the corn upon that basis. After testimony was presented for the purpose of showing fraud in the inception of the note there was other testimony offered in an qffort to show that Dunn and the bank, of which he was vice-president, were not innocent purchasers of the note. In behalf of the bank Dunn testified that the purchase was made in good faith, and without notice of fraud by Wright in procuring the note, or of any claim of fraud in connection with its execution. At the end of the testimony the trial court directed a verdict in favor of the bank, saying:
“I instruct you that under the evidence in this case, there being no evidence that Alex Dunn, jr., or the plaintiff had any knowledge or notice of. any fraud or claim of fraud in the inception of the note, you should find for the plaintiff in the sum of $432.75.”
The court was not justified in taking the case from the jury. There was some testimony tending to show that there was fraud in the inception of the note — at least enough to warrant the submission of the question to the jury,.and, that being shown, it then devolved on the bank to prove that it was an innocent purchaser. Whether the prima facie case arising from proof of fraud in obtaining the note was overcome by the evidence of innocence offered by the bank was also a question for the jury to determine, but in directing a verdict the court assumed the function of passing upon the credibility of the witnesses and measuring the weight of the testimony on the question.
It is contended that the representations of Wright, if false, were mere matters of opinion, which cannot be regarded as fraudulent. Ordinarily the expression of an opinion or belief by a vendor as to quantity or value, although false, is not a basis of action or ground of relief. Where, however, the parties do not stand upon a basis of equality — where the vendor assumes to have knowledge and asserts an opinion upon a matter of which the vendor is ignorant, and the misrepresentations are made with intent to deceive, the vendee who relies upon and is injured by them is not without remedy.
Here the disparity in the knowledge of the vendor and vendee was marked. Wright was a farmer, accustomed to growing and measuring corn. He assumed to know and stated that there were 1300 bushels, of corn in the field, and there was testimony that he sold it upon that basis at the rate of 38 cents per bushel. Abmeyer, on the other hand, was a merchant tailor, wholly without knowledge or experience in measuring corn in the field, whose ignorance and inexperience in the matter were well known to Wright. Wright stated that he was absolutely sure that there were 1300 bushels of the corn, and Abmeyer testified, without dispute, that he bought the corn relying upon the representations of Wright and on his statement that he was selling him the quantity named. Besides the testimony to the effect that the sale was made on the basis of 1300 bushels, there is the supporting circumstance that the parties bargained about the price per bushel to be paid for the corn. Not agreeing as to the price, Wright interviewed a dealer to learn the ruling price of corn in the market, and on the informa tion gained the price was finally fixed at 38 cents a bushel. Taking this ^testimony to be true, the misrepresentations were more than opinions or dealer’s talk. Whether the representations were made, whether they were false and made with the intention to deceive, whether Wright took advantage of the ignorance of Abmeyer and made representations and gave assurances such as Abmeyer had a right to rely on, and whether Abmeyer did rely upon them to his injury, were matters which should have gone to the jury under appropriate instructions of the court.
It is said that Abmeyer visited the corn-field in company with a farmer and had an opportunity to learn whether the representations of Wright were true or false, but one who cheats another by a falsehood, intended to deceive, is hardly in a position to say that his victim ought not to have believed him. In Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496, where a party selling land made false representations as to the number of acres of bottom land in the farm, the number of acres of corn growing on the farm, as well as the rentals of the pasture land, it was contended that the buyer, to whom the representations were made, went upon the farm, and might by inspection and inquiry have discovered the falsity of the representations and therefore had no right-to rely upon them. This contention was ■denied, the court remarking:
“The trend of the decisions of the courts of this and •other states is toward the just doctrine that where a contract is induced by false representations as to materia,! existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the deceit that the party to whom the- representations were made might, with due diligence, have discovered their falsity, and that he made no searching inquiry into facts. Tt matters not,’ it has well been declared, ‘that a person misled may be said in some loose sense to have been negligent. . . . For it is not just that a man who has deceived another should he permitted to say to him, “You ought not to have be lieved or trusted me,” or “You were yourself guilty of negligence.” ’ ” (Page 440.)
Since there was evidence tending to show fraud in the inception of the note, the burden was upon the bank to show that it acquired the note bona fide for value in the usual course of business, and under circumstances which created no presumption that facts impeaching its validity were brought to the notice of the bank or its managers. (Kennedy v. Gibson, 68 Kan. 612, 75 Pac. 1044.) This rule of law placing the burden upon the holder of paper fraudulently obtained appears to have been overlooked, as the court directed a verdict upon the theory that there was an absence of proof that Dunn or the bank had notice of fraud in the inception of the note. To meet the prima facie case arising from proof of fraud testimony was offered of the good faith of the bank and that it had no notice of any fraud on the part of Wright, but whether the prima facie case was overcome was a question for the jury, and hence the ruling directing a verdict was error.
The judgment is reversed and the cause remanded for further proceedings.
Burch, Mason, Porter, Graves, Benson; JJ., concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The defendants were sued in the court of Coffeyville and served, with a summons which required them to answer on July 3, 1901. On that day they made default. They did, however, go to the city court and remain there a considerable portion of the day, when they ascertained that the judge was absent and went home. They gave no further attention to the case, and on January 10, 1902, without further notice to them, judgment was rendered in favor of the plaintiff by default. - The judge of the city court was not present in court at any time on July 3, 1901, and the clerk made no adjournment of the cause.
In an action in the district court between the same parties,..based upon the city court judgment, the plaintiff recovered, and the defendants assign error: The principal question relates to the authority of the city court to proceed, under the circumstances, after July 3, 1901.
Chapter 126 of the Laws of 1899 creates the court of Coffeyville, defines “its jurisdiction, and regulates its procedure. In civil actions the code of civil procedure and the practice in district courts govern, except in certain specified matters not material here.
Following that procedure and practice, the city court acquires jurisdiction of a defendant by the service of summons. The answer day stated in the summons is the day for the defendant to file a written pleading or become in default. He is not required or expected to be personally present in court on that day, and if he does go to the place for holding the court and wait out the day he accomplishes nothing in fortification of his. rights. Such conduct is not recognized as a legal step in a civil proceeding.
.The court is not expected or obliged to do anything in the case on answer day. The defendant has all of it in which to plead. If he fails to plead there is nothing before the court to continue, and nothing upon which it could act before the next day.
In the district court, when once a defendant is in default, the cause may be disposed of, irrespective of the timé for the beginning of terms and without notice to the defendant, at any time it may be reached in, the orderly course of the court’s business or may be brought to the attention of the court by the plaintiff. The absence from the statute of a provision for terms of the court of Coffeyville is therefore of no importance in this controversy. In theory the court is in continuous session. Only those hearings the time of which has been in some manner lawfully fixed need be continued by the clerk, in the absence of the judge, to preserve jurisdiction over the parties; and defaults may be disposed of at pleasure.
The defendants admitted the commencement of the action in the court of Coffeyville against them, the service of summons upon them, and the pendency of proceedings there. All that remained for the plaintiff to prove was the rendition of judgment, and this was properly done by a transcript of the judgment alone. A transcript of the entire record would have been superfluous. No objection to the authentication of the transcript was made in the district court and none will be considered now.
The defendants complain because the court withdrew the cause from the jury, but they point out nothing but an issue of law which was finally in controversy in the district court, and which is in controversy now.
Other errors assigned are without merit, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The suit in the district court was commenced to restrain the defendants from issuing, selling and delivering bonds of the city in the sum of $25,000, which had been voted at a special election for the purpose of constructing works to supply the inhabitants of the city with electric light. The election was held under the provisions of chapter 101 of the Laws of 1905. Section 2 of the act reads as follows:
“Whenever the city council of any such city shall desire to procure authority for the issuance of bonds under the terms of this act, they shall pass an ordinance directing the calling of an election for the submission of the question to the electors thereof. Notice for such election shall state the amount of bonds proposed to be issued, the purpose of the issue, and state the polling-place or places at which the election will be held. Said notice shall be signed by the mayor and city clerk, and shall be published in at least one newspaper for three consecutive, weeks. The first publication of said notice to be at least twenty days prior to the day fixed for such election.”
The ordinance directing the calling of the election and the notice of the election were published in the same issue of the official newspaper. It is claimed that the ordinance became effective only after publication, that no authority existed to call the election until after the ordinance was in force, and hence that the first publication of the notice cannot be counted. The objection is technical in the extreme, and involves a refinement in respect to time which the court is not inclined to regard. The moment the ordinance took effect authority to call the election and publish notice of it existed. That moment the authority was exercised and the notice appeared, and the circumstance that the two facts occurred simultaneously cannot impair the notice. If authority in support of the principle be necessary it may be found in the cases of Clark v. City of Janesville, 10 Wis. 136, and Warsop v. City of Hastings, 22 Minn. 437.
On the trial evidence was offered and rejected to the effect that the city officials entertained and had expressed an intention to expend the money to be derived from the sale of the bonds when issued in equipping the proposed electric-light plant to supply electric power to inhabitants of the city. The people of Clay Center voted these bonds to raise money to be expended for a specified purpose, and are entitled to have them issued and sold in execution of that purpose. If after that has been done an attempt should be made to misappropriate the funds obtained there will be time enough to determine what is a misappropriation, and to interfere if riecessary.
The judgment of the district court denying an injunction is affirmed. | [
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The opinion of the .court was delivered by
Graves, J.:
The position of the plaintiff is that by the death of John W. Swisher a cause of action arose under the laws of New Mexico in favor of the surviving parents of the deceased; that this cause of action was complete in itself, and depended solely upon the fact that John W. Swisher lost his life by the negligent act of the defendant. It is further claimed that this cause of action should be regarded as a right which may be enforced in New Mexico or elsewhere, the same as the collection of a valid unpaid promissory note which the deceased might have held at the time of his death would be enforced. The statutory provisions relating to the service of notices and other preliminary steps to be taken before bringing suit to enforce the right are regarded by the plaintiff as mere matters of procedure, which inhere in the remedy but do not affect the right of action; that all such matters, being of the remedy, are governed by the lex fori and are independent of the lex loci. He insists that New Mexico cannot create a complete cause of action and then defeat its enforcement in Kansas by mere matters of procedure, which can have no extra-territorial force. He claims to be fully sustained in this contention by section 1 of chapter 325 of the Laws of 1905, which reads:
“Whenever a cause of action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be sued upon in any of the courts of this state, by the person or persons who are authorized to bring and maintain an action thereon in the state or territory where the same arose, provided-one or more of the parties entitled to 'the proceeds of said action are at the time of beginning said action residents of the state of Kansas.”
On the other hand, the defendant insists that the provisions of the amendatory act of 1903 must be construed as a part of the former statute, and that the two statutes taken together constitute the law which gives the cause of action; that no such right existed at common law, and none exists in New Mexico except as created by this statute, and it must therefore be taken with all the conditions and limitations attached thereto. It further insists that the notice required by section 1 of the act of 1903 is not a matter of procedure, but an essential part of the right given, and is expressly made a condition precedent to its enjoyment. This is said to be plainly indicated by the last clause of the section, which reads:
“It being hereby expressly provided and understood .that such right of action is given only on the understanding that the foregoing conditions precedent are made a part of the law under which [a] right to recover can exist for such injuries, except as herein otherwise provided.”
The contention of the defendant seems to be clearly expressed in the statute, and abundantly sustained by authority. In the case of Dennis v. Railroad Company, 70 S. C. 254, 49 S. E. 869, 106 Am. St. Rep. 746, the deceased was killed in the state of North Carolina, where the statute giving the right of action required suit to be commenced by the next of kin within one year after the death of the decedent. Action was brought in the state of South Carolina, where the limitation for such action was two years. The action was commenced within two years, but more than one year after the deceased died. It was there contended that the time fixed within which the action should be commenced was a mere statute of limitation, which, being purely of the remedy, was controlled by the lex fori, which was two years, and therefore the action was brought in time. The court held, however, that the one year named in the statute giving the right of action was a part thereof and must control wherever the right might be enforced. In the case of Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N. W. 620, 104 Am. St. Rep. 674, it was said:
“It is well settled that where by statute a right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right, and will control, no matter in what forum the action is brought.” (Page 185.)
The cases upon this subject are collected and cited in Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642, 59 L. R. A. 704. In Poff v. Telephone Co., 72 N. H. 164, 55 Atl. 891, the court said:
“The plaintiff’s right to maintain this suit is not greater than the legislature intended it should be. The language of the special provisions applicable leave no room to doubt that the right and the correlative liability thereby established were made conditional upon the bringing of the suit ‘at any time within two years after the death of the deceased party, and not afterward.’ The cause of action is conditional. If the condition is not observed, the parties stand with respect to the wrongful act as though the statute had not been enacted. ‘It must be evident that, as this action is brought under a special law and is maintainable solely by its authority, the limitation of time is so incorporated with the remedy given as to make it an integral part of it and the condition precedent to the maintenance of the action at all.’ ” (Page 165.)
It does not seem reasonable that a cause of action created by the law of one state should be materially enlarged when the beneficiary moves across the state line and appeals to the courts of another state to enforce his imported right. The rule of state comity does not contemplate such a result.
We think that an action in this state for a wrongful death occasioned in another state or térritory is encumbered with all the limitations and burdens which may have been imposed by the statutes of the state where the right of action was created. In this case the notice provided by section 1 of the act of 1903 is an essential part of the cause of action, and until such notice is given no cause or right of action exists, either in New Mexico or elsewhere. The ruling of the district court on the demurrer was therefore correct, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Reeves & Co. to recover possession of a traction-engine and sawmill used in connection with it for the sawing of lumber. Bascue purchased a part of a thrashing outfit from plaintiff, and to secure'payment of a portion of the purchase-price executed a chattel mortgage on the machinery in controversy. He failed to make one of the payments when it became due, and the plaintiff thereupon secured possession of the property under a writ of replevin.
The principal defense made by Bascue was that the chattel mortgage, under which the plaintiff claimed the right of possession, was. void. The basis of this claim was that he was a married man, the head of a family; that the property was exempt; and that as his wife did not join him in.the execution of the chattel mortgage it was void.
The trial resulted in a judgment in favor of the defendant for- the possession of the property, or its value, placed at $650, and also for $357.50 as damages for the wrongful detention of the property.
The plaintiff complains, and contends that the engine ánd other appliances for sawing lumber constitute a manufacturing plant and cannot be classed as the necessary tools and implements of the defendant’s business. His principal business, it appears, is sawing timber into lumber of various dimensions and forms. He did use the traction-engine in thrashing for a brief time during the thrashing season, but the sawing of lumber appears to have been his principal occupation. Aside from the traction-engine, which is portable, the saws, carrier, belts, etc., are said to be such as can be moved in a farmer’s wagon. Were they exempt? The statute provides that there shall be exempt to a resident of the state who is the head of a family “the necessary tools and implements of any mechanic, miner, or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.” (Gen. Stat. 1901, § 3018, subdiv. 8.)
It will be observed that the fact that the tools and implements are large and heavy does not take them out of the operation of the statute. Nor is there any limit placed on the number, character or value of the tools and implements protected by the exemption. It is enough that they belong to the mechanic, miner or other person, that they are necessary, and are personally used for the purpose of carrying on his trade or business. If he uses the tools and implements in person and performs a considerable portion of the work himself, it would seem to be immaterial whether he is called a manufacturer or a mechanic. A liberal interpretation is given to statutes of exemption, and following the one already placed upon this provision in Jackman v. Lambertson, 71 Kan. 138, 80 Pac. 55, the appliances in controversy must be held to be exempt. In that case a traction-engine and a separator, belts and other parts of a thrashing outfit were held to be implements within the meaning of the exemption statute, and it was further held that a chattel mortgage given by the owner of an exempt outfit in which his wife did not join was invalid.
In another case it was held that a printing plant used by the head of a family for printing a newspaper, a business to which he devoted the greater part of his time, some of the work being done by himself but the larger part by his employees, constituted tools and implements within the meaning of the statute and was exempt. (Bliss v. Vedder, 34 Kan. 57, 7 Pac. 559, 55 Am. Rep. 237.)
The engine and sawmill’ being exempt, the mortgage given thereon, without the consent or signature of Bascue’s wife, is without validity and gave Reeves & Co. no right of possession. (Gen. Stat. 1901, § 4255; Skinner v. Bank, 63 Kan. 842, 66 Pac. 997; Alexander v. Logan, 65 Kan. 505, 70 Pac. 339; Jackman v. Lambertson, 71 Kan. 138, 80 Pac. 55.)
The objection to striking out a portion of the plaintiff’s reply is without merit, and we find nothing substantial in the objections made to the rulings on the admission of testimony. The defendant asked for damages resulting from the wrongful taking and detention of the property, and was entitled to show and recover the usable value of the property from the time of the taking to the date of judgment. (Yandle v. Kingsbury, 17 Kan. 195, 22 Am. Rep. 282; Werner v. Graley, 54 Kan. 383, 38 Pac. 482; Bank v. Showers, 65 Kan. 431, 70 Pac. 332.) He was also entitled to recover for the injury to the property while it was unlawfully detained.
There was sufficient proof to sustain the findings of the court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
W. N. Roberts and Hattie Roberts were husband and wife and residents of Shawnee county. In 1901 they separated; he went to Oklahoma, and she remained in Shawnee county. On May 1, 1902, she commenced a suit in the district court for a divorce. The defendant was constructively summoned by publication notice. The affidavit made for that purpose reads:
“Hattie Roberts, of lawful age, being first duly sworn, on her oath says: That she is the plaintiff in the above-entitled action; that on the 30th day of April, 1902, said plaintiff filed a petition in the district court of the above-named county and state, against said defendant, W. N. Roberts; that said action is an action to obtain a divorce; that said defendant is a non-resident of the state of Kansas, and that personal service of summons cannot be had upon said defendant within the state of Kansas; and that plaintiff wishes to obtain service upon said defendant by publication.”
Notice was duly published, which reads:
“To the above-named defendant: You will take notice that you have been sued in the. above-entitled court by said Hattie Roberts, and that you must answer the petition filed by said plaintiff on or before the 14th day of June, 1902, or the said petition will be taken as true and judgment rendered according to the prayer thereof, divorcing said plaintiff from you, the said defendant.” ’
The plaintiff sent a copy of her petition and of the publication notice to the defendant at his last-known place of residence. Receipt of these copies was acknowledg-ed by the defendant May 18, 1902. A decree of divorce, including an order barring the defendant from all right to the property of the plaintiff, was taken June 16, 1902. In November, 1904, the plaintiff in the divorce suit died intestate, and Lillie A. Fagan was appointed administratrix of her estate. Mrs. Roberts left no issue or other known relatives. Roberts made demand upon the administratrix for possession of the property of Hattie Roberts, deceased, claiming the same as her sole heir at law. Upon a refusal he brought this action in the district court of Shawnee county, January 4, 1905.
His right to recover is based upon the claim that the affidavit for publication service in the divorce suit was insufficient and the decree void. The particular defect in the affidavit, as he contends, is that it did not show in the description of the suit that the case was one wherein service by publication is authorized, and that it failed to state that the plaintiff in that suit resided in Shawnee county. It is insisted that the words “an action to obtain a divorce” merely state a conclusion and do not show any facts from which the kind of action in which constructive service is desired can be definitely ascertained. The section of the statute which provides for this affidavit reads:
“Before service can be made by publication, an affidavit must be filed stating that . . . service of summons cannot be had upon said defendant or defendants within the state of Kansas, . . . and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication.” (Gen. Stat. 1901, § 4507.)
The preceding section, to which reference is made, reads:
“Service may be made by publication in either of the following cases:
“In actions brought under the 46th and 47th sections of this code, where any or all of the defendants reside out of the state, or where the plaintiff with due diligence is unable to make service of summons upon such defendant or defendants within the state;
“In actions brought to establish or set aside a will, where any or all of the defendants reside out of the state;
“In actions to obtain a divorce, where the defendant resides out of the state;
“In actions brought against a non-resident of the state, or a foreign corporation, having in this state property or debts owing them, sought to be taken by any of the provisional remedies, or to be appropriated in any way;
“In actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest actual or contingent therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the state, or a foreign corporation; and
“In all actions where the defendant, being a resident of this state, has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of a summons, or keep himself concealed therein with the like intent.” (Gen. Stat. 1901, § 4506.)
It will be seen that several kinds of actions are stated in this section, some of which are susceptible of being described with reasonable clearness in a few words, while others would require a somewhat extended statement. No special formula is required by the statute, and a description of the action will be sufficient if it indicates in an intelligible manner that the action described is one of those mentioned in the preceding section.
In some states this preliminary affidavit must, be presented to the court or judge where the action is pending and adjudged to be sufficient before notice can be published. In this state the court decides this question afterward, but before judgment. (Code, § 75; Gen. Stat. 1901, § 4509.) It seems, therefore, that the purpose of this statute is to require such a description of the cause of action as will enable the court to determine upon inspection whether the action mentioned in-the affidavit, and that pending, are the same, and whether it is one in which service by publication may be given; and that the word “show,” as used in the statute, means no more than this. Such determination could not be made if the action were described merely as “one'of those mentioned in section 72,” as in some of the cases cited, nor if mentioned as “an action to quiet title to real estate, as provided by section 72 of the code of civil procedure”; but the words “this is an action to obtain a divorce” state in the language of the statute one of the enumerated actions, and describe it in a way that cannot be.misunderstood. Additional words would be useless and confusing.
We think the affidavit sufficient. The service made invested the court with full jurisdiction to grant a divorce. A valid divorce having been granted, the parties were no longer husband and wife, and thereafter their property rights were the same as before their marriage. The divorce extinguished whatever rights either might have had in the property of the other on account of the marriage relation. (Code, § 647; Gen. Stat. 1901, § 5140; Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003.)
The statute does not require the affidavit to state the residence of the plaintiff.
This disposes of all the questions presented. No error appearing, the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
John Balin died intestate owning a farm, the title to which passed to his widow, Margretha Balin, their sons, Hynek and Joseph Balin, and their ■daughters, Christina Osoba and Johanna Ullman. In 1888 a conveyance was made to Margretha Balin by .all the other heirs excepting Mrs. Osoba. In 1901 Margretha Balin made a warranty deed to Hynek Balin, which was duly filed for record, he at the same time ■executing an instrument which was never recorded by which he gave her a lease-to the property for her life and agreed at her death to pay $100 to each of his sisters. Thereafter he and his mother lived upon the place, he managing it and giving her as rent one-third of the crops.
In 1903 Hynek Balin entered into negotiations with Christina Osoba and her husband, who were then living in Pennsylvania, for the conveyance of the land to them, in consideration of their assuming an existing mortgage and paying $100 to Johanna Ullman upon the death of Margretha Balin. Afterward a dispute arose, Hynek asserting that it had been understood that the conveyance was to be subject to the mother’s life lease, and Christina and her husband denying this and disavowing any knowledge of such lease or of any claim on the part of Margretha to an interest in the property. Whatever the fact may have been in this respect, on November 28,1903, Hynek signed, acknowledged and placed on record a warranty deed to Christina .and her husband, purporting to transfer a complete title except for the mortgage, which it recited wás to be paid by the grantees. According to the claim of Christina and Joseph Osoba, which has some support in the evidence, Hynek then moved to another farm, which he had bought with the proceeds of the mortgage, and their son assumed possession and control of the place in their behalf, and thereafter they paid the interest on the mortgage and the taxes on the land as they accrued. In July, 1905, they came west and be-' gan living upon the farm themselves, with the others. A few weeks later they expelled Margretha from the-property, and she and Hynek then began an action against them to recover possession and declare the deed a nullity. The court gave judgment for the defendants, and the plaintiffs prosecute error.
Although the negotiations for the sale of the land were carried on entirely by correspondence, most of' the letters had been lost and each party relied upon oral testimony to establish their contents. This testimony being conflicting, the judgment must be interpreted as establishing that the defendants contracted for immediate possession, and had no actual notice of the life-interest of Margretha Balin in the land. They had no constructive notice of it, for the instrument creating it was not recorded, and the possession of Margretha Balin gave no warning of a claim on her part, for persons dealing with her grantee were justified in regarding her execution of a warranty deed as a. renunciation of any such claim.
“Possession of real estate by the grantor in a warranty deed does not impart notice to a purchaser from the grantee of secret equities existing in favor of the-person occupying the land. The possession in such case by one who has conveyed the iand indicates that he is holding the premises for a temporary purpose-only, as a tenant at sufferance of his grantee.” (Hockman v. Thuma, 68 Kan. 519, 75 Pac. 486.)
These considerations limit the present inquiry to one-question : Was the. court warranted in finding that there was a valid delivery of the deed executed by Hynek Balin to Christina and Joseph Osoba. It was-admitted there was no actual, physical delivery of the-document itself to either of the grantees. After it had been recorded it was returned to the grantor, who-has ever since retained it. Nevertheless, if the filing-of the deed for record was intended by the grantor and'. accepted by the grantees as a constructive delivery, the law will give it that effect. It is well settled that delivery is largely a matter of intention; that a manual delivery is not necessary; that although registration may not itself constitute delivery it is a circumstance from which delivery may be inferred, and will-be inferred in the absence of some sufficient reason to the contrary. These propositions are elementary, and are supported by the texts and citations to be found in volume 13 of the Cyclopedia of Law and Procedure, at pages 561, 562, 567 and 569, and in volume 9 of the American and English Encyclopedia of Law, at pages 153, 154 and 159.
In the present case it must be borne in mind that the grantees had done everything required of them by the contract as they stated it. No cash payment was to be made and no note was to be given. The deed upon its face showed their assumption of the mortgage debt, they had paid the instalments of interest, and the remainder of the purchase-price was not due until the death of Margretha Balin. Their going into possession and paying taxes and interest sufficiently established their acceptance of the deed, with its obligations as well as its benefits. The silence of Hynek Balin for a considerable period — perhaps about two years, not being otherwise explained by any testimony which the court was bound to believe, warranted the inference that he regarded the transaction as completed. True, he afterward demanded that Christina and Joseph Osoba should execute an acknowledgment of Margretha’s life-interest as a condition for the final delivery to them of the deed, but in view of all the evidence this may have been an afterthought. As was said of a similar situation in Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607:
“The fact that the plaintiff executed the deed and at the same time recorded it is entitled to consideration, and while the recording of the deed is not conclusive, and may be rebutted by circumstances or proof of a contrary purpose, still there were acts and words of the parties showing an intention to treat the instrument as a conveyance, and both parties, according to the proof offered in behalf of the defendants, acted as if the property had actually passed by the transfer. There was sufficient proof of the conveyance, constructive delivery, and an acceptance by the grantee; and, although there was contradictory evidence given in behalf of plaintiff, the general finding of the court settles all such disputes in favor of the defendants.” (Page 779.)
The judgment rendered not only denied the plaintiffs’ petition, but also quieted the defendants’ title against them. Complaint is made that the latter part of the judgment was outside of the issues made by the pleadings, inasmuch as no affirmative relief was asked in the answer. A decision for the defendants on the merits, however, necessarily had the effect to bar any future claim of either of the plaintiffs to the property, and no prejudice could result from this fact’s being given positive expression.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Charles A. Windsor, as administrator of an estate and also as surviving partner, as well as for himself, brought an action of replevin against J. J. Snider and Ella Snider, setting up a special ownership, under a chattel mortgage, in certain cattle, horses and hogs and growing crops, of the alleged value of $2500. A writ of replevin was issued, under which much of the mortgaged property was seized, and as no redelivery bond was given the property was delivered to the plaintiff.
In their answer the Sniders, among other things, averred that the plaintiff held no lien and was not entitled to the possession of the property, and further that before the suit was brought they had tendered to plaintiff $1500 as full payment of the mortgage debt, and this tender they renewed in their answer. In reply plaintiff denied that payment had been tendered by defendants, and alleged that there was a mortgage debt of $2500 remaining unpaid. The defendants insisted on the tender at the trial, and the court then ordered and required them to pay into its custody the amount tendered, which was done. The jury found in favor of the plaintiff, however, and fixed the value of the special ownership at $1900.81.
The judgment rendered upon the verdict was the ordinary one for the possession of the property or the value of the special ownership in case a delivery could not be had. The defendants then applied to the court for the return of their unaccepted tender of $1500, which had been placed in the custody of the court, and this motion was allowed and an order made for the return of the money tendered, except the sum of $194.40, which was applied in satisfaction of the costs of the action. The ruling permitting the return of the money is the only one of which complaint is made in this proceeding.
There was no error in allowing the withdrawal of the money. The defendants made a qualified tender. It was offered as full payment of the mortgage debt. If it had been accepted the lien would have been extinguished and the plaintiff’s right to the possession of the property ended. Plaintiff had the option to accept or reject the tender. If he accepted he would have become the owner of the money tendered. He chose to refuse the tender and took the risk of establishing a larger indebtedness. Defendants, who by the tender sought to extinguish the lien and defeat the action as well as escape the payment of costs, took the risk of losing on each proposition in case the amount tendered was insufficient. Plaintiff could only claim ownership of the monéy by accepting it as tendered, and when the tender was refused the ownership remained in the defendants, who were at liberty to withdraw or appropriate it as they pleased. (Stowell v. Read, 16 N. H. 20, 41 Am. Dec. 714; Dunn v. Hunt, 76 Minn. 196, 78 N. W. 1110; Thompson v. Kellogg, 23 Mo. 281; Cummins v. Rapley et al., 17 Ark. 381; Hunt, Tender, § 362; 28 A. & E. Encycl. of L. 14.)
The fact that the court ordered the money brought into its custody did not change the attitude of the parties or the ownership of the money tendered. The money was probably placed in the custody of the court on the theory of keeping the tender good so that the defendants could insist that plaintiff had no right to the possession of the property. The taking of the money down after the refusal of the tender and before the verdict might have affected the lien and the right to the possession of the property, but the option to do so with its risks belonged to the defendants. With their discretion the plaintiff had no right to interfere after rejecting the tender. The contention that the tender should in any event be regarded as a pro tanto payment of the mortgage debt is not sound for the reason, among others, that this is not an action to recover a debt. It was brought to recover the possession of property based on a special ownership, and the plaintiff was entitled to recover if any part of the mortgage debt remained unpaid. It is unnecessary, therefore, to determine the consequences of making a tender which is rejected in an action to recover a debt. The plaintiff did recover the property, or a great part of it, and yet is also claiming the ownership of the money tendered, a tender which he refused to accept. The ownership of the money was in the defendants and its return to them was rightly ordered.
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The opinion of the court was delivered by
Johnston, C. J.:
S. C. Pearce executed a promissory note for $300, payable to C. A. Rathbun one year after date, and at the same time gave a mortgage on real estate to secure the payment of the note. Rathbun transferred the note and mortgage to the First National Bank of Hutchinson, but no record of the assignment or transfer was made.
Pearce, having no knowledge of the assignment, paid the indebtedness to Rathbun, except $20 of the interest. When the bank insisted on the payment of the note Pearce answered that he had previously paid the mortgage debt to the apparent owner, except $20 of the interest, which he then tenderedand he also contended that as no assignment of the mortgage had been recorded or brought to his notice, as the statute requires, the debt was discharged.
A verdict and judgment for the $20, conceded to be due, resulted from a trial, and the plaintiff complains.
The justification for the payment to Rathbun is based on “An act in relation to assignments of real-estate mortgages and to repeal chapter 160 of the Session Laws of 1897.” (Laws 1899, ch. 168, § 3.) Among other things it provides for the recording of assignments of mortgages, and if an assignment has been made and not recorded a payment by the mortgagor to the mortgagee will operate to extinguish the mortgage indebtedness. That this will be the effect of the act, if it is deemed to be valid, is not denied, but it is contended that it violates a limitation of . the constitution and is therefore without force.
The first contention is that section 3 of the act when passed was amendatory of the general statute then in force relating to bonds, notes and bills (Gen. Stat. 1901, ch. 14), and as the new act does not contain the sections amended it violates the second clause of section 16 of article 2 of the constitution. (Gen. Stat. 1901, § 134.)
An examination of the two acts discloses that there is no close relationship between them. The earlier one prescribes rules governing bonds, notes and bills of exchange, while the later one is complete in itself and provides for the recording of assignments of real-estate mortgages and the payment of mortgage indebtedness. Incidentally the act touches promissory notes, as well as other kinds of mortgage indebtedness, but it does not affect negotiable instruments not secured by real-estate mortgages. It is plain that the purpose and scope of the later enactment are quite distinct from and independent of those of the earlier one. It is true that the statute in question, like most legislative acts, does remotely affect existing legislation, but it only amends the earlier act by implication, and the objection that counsel makes does not reach amendments of that character. It was expressly held in the recent case of Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, that “statutes which effect the amendment of existing laws by implication are not within the purview of the constitutional provision that ‘no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.’ ” (Syllabus.)
The second contention is that the subject of the act is not clearly expressed in its title. The title of the act, as will be noted, is general and inclusive in character, and within the interpretation given to the first clause of section 16 of article 2 of the constitution (Gen. Stat. 1901, § 134) the title fairly covers the provisions embraced in the act.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Carrie Berry owned a stock-ranch lying in Morris and Chase counties. H. S. Boice, of Kansas City, Mo., was her general agent. As a result of negotiations with Boice, W. O. Craig, a real-estate agent of Kansas City, Mo., undertook to find a purchaser for the ranch. He employed T. Morris, of Alma, to assist, agreeing to divide the commission with him. Morris enlisted the aid of Fred Miller and Henderson Brothers, also of Alma. Miller brought the land to the attention of P. H. Dunn and Hercule Pessemier, of St. Marys. Miller and Dunn visited the land with the expectation of purchasing an interest in it with Pessemier, but they abandoned their purpose to buy and Pessemier finally purchased direct from Boice. Craig sued Berry for his commission and recovered. Numerous errors are assigned, but they may all be disposed of briefly.
The petition contained two counts. In the first it was alleged that the plaintiff was employed to find a purchaser, that he did so, and that his services were reasonably worth a stated sum. The second count alleged that the deféndant’s agent promised to pay the sum named as a commission for the services rendered. At the beginning of the trial the defendant moved the court to require the plaintiff to elect between the two counts, but the motion was 'denied, evidence was introduced in support of each, and the claim in each was submitted to the jury, who found an express contract. The ruling was correct. The two counts were entirely consistent. Neither contradicted the other. The facts stated in the first might be true and the facts stated in the second also might be true. If an express contract existed, recovery could not be had upon an implied contract ; but to meet possible exigencies, of the proof the plaintiff had the right to go to the jury upon both sets of allegations. Take the case of a note given by a debtor’s agent in settlement of an account. It would be manifestly unjust to oblige the creditor to stake his entire case upon his ability to prove authority to sign the note, and he ought to be allowed to join a count on the note with a count on the account. So here, Boice might deny an express promise, Craig be unable to sustain the burden of proving it, and thus lose, although clearly entitled to recover the value of, his services. This form of pleading, has been recognized by this court (Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520, 1 L. R. A., n. s., 1050; see, also, Campbell v. Fuller, 25 Kan. 723, 728), and conforms to the usual practice under the codes. (9 Cyc. 749; 5 Encyc. Pl. & Pr. 321, et seq.; Bliss, Code Pleading, 3d ed., § 120.)
The advertisement of the property by Craig was accompanied by evidence tending to show that Boice knew of it and asked what returns were obtained from it. Therefore it was relevant to prove authority. For the same reason evidence relating to efforts to make a sale to Woods, of Strong City, was properly admitted.
Objections to evidence relating to the value of the plaintiff’s services need not be canvassed, since the jury found an express contract.
Without discussing separately the various assignments of error raising the question, it is sufficient to say that Boice employed Craig and that Craig was clearly the procuring cause of the sale. The fact that Miller and Dunn, who were not known to Craig, were at one time prospective purchasers does not affect Craig’s right to a commission. The special findings are not inconsistent with, but support, the general verdict, and-the defendant is not entitled to judgment upon them. The motion for a new trial was properly denied, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
It is agreed in the briefs of the parties that the only question for our determination is whether the horses burned were covered by the policy of insurance in the location where they were burned or whether the contract limited the liability of the association for loss by fire on this property while the horses were contained in the barn described in the policy and were not elsewhere. The only evidence set forth in the record is the following stipulation:
“It is stipulated and agreed in this case that the following are the facts in the case:
“It is agreed by the parties hereto that the horses that were burned were of the value of four hundred fifty dollars ($450) ; that at the- time the horses were burned they were in a barn on the opposite side of the street, or road, and not on either one of the lots described in the policy, but on the premises belonging to the plaintiff; that the right of way of the Missouri Pacific railroad is between the lots described in the policy and the place where the barn was located when the horses were burned-; but that the property where the horses were burned was the property of the plaintiff.
“It is further agreed that when the barn upon the premises described in the policy was burned, the plaintiff will testify, the adjuster appeared upon the ground and adjusted the loss of the barn and other property contained in the barn, and that at the time he so adjusted the loss of this property he inquired where the horses were that were included in the policy, and was told that they were across the road and right of way of the railroad company, in the barn bn the other side, and that he took a receipt from the plaintiff for the money paid for the loss on the barn destroyed, and the property therein contained, and did not offer or tender to the plaintiff the premium or any portion of it.”
The stipulation should be, and, of course, was, regarded as if the plaintiff had been placed upon the witness-stand and had testified to the facts therein recited, and, there being no contradictory evidence, the recitals were accepted as true.
There is also an implication from the language used that the stipulation embraced all the controverted facts. If so the plaintiff’s ownership of the horses burned should be accepted, as alleged. The reply brief of the association seems to acquiesce in the statement in the answer brief that nothing is in issue but the construction of the contract, and we will so regard it, as the trial court evidently did. Otherwise this material allegation as to ownership, being entirely unsupported by evidence, the judgment would have to be reversed. Surely neither the learned court nor the counsel could have considered this allegation in issue. The very object of the stipulation seems mutually to have been to strip the case of all other' controversies except this: Were the horses which were burned covered by the insurance policy in question at the time and place they were destroyed?
In the absence of fraud and duress parties competent to contract may make any contract for a lawful purpose which they may agree upon, and if the terms used are unambiguous there is nothing for the courts to do in the enforcement thereof but to give effect to the plain recital. Neither party will be heard, in such a case, to say that his understanding of the contract or his meaning thereby was other than the language used indicates. Where, however, the language used is'susceptible of two or more meanings, it devolves upon the court to ascertain, by considering the situation of the parties, the purpose to be accomplished by the contract, and all the surrounding circumstances, what the actual intent of the parties was, and to give effect to it. If the parties acted upon a contract ambiguous in any way, and such action indicates their mutual understanding as to its ambiguous provisions, the courts will usually adopt such interpretation as most likely to accord with the original intent.
The contention of the association is that the horses were insured only while they remained in the barn located as described in the insurance policy. On the other hand, plaintiff contends that the horses were insured wherever they might be, or, at least, w.ere insured while in the barn where they were when destroyed.
It cannot be said that the policy is unambiguous. In the statement of facts the printed slip for the items insured which was attached to the original policy is reproduced as near as may be. The first item insured is the dwelling-house. The second item is furniture, etc., “while contained therein.” The third item in full is “$ Nothing on-.” The fourth item is the barn, describing the material of the same and the location thereof. The fifth item is $450 on horses, without specifying where they are kept or to be kept. The sixth item is $75 o'n vehicles, etc., without location. The seventh item is, in full, “$ Nothing on hay, grain and feed; all only while contained in above-described barn.” Each item constitutes a full sentence, and is punctuated as indicated.
The question is whether the last clause of the seventh item clearly modifies the two preceding items. That the association so intended is probably true. Is it so clear that he who runs may read or that the insured, reading the item “$450 on horses,” must be held to drop down two items below to an item which insures nothing, and on its face has no reference to horses, to find a qualification upon the insurance on his horses? The form for the seventh item was prepared for a risk to be assumed on hay, grain and feed, and the qualifying clause may limit the place where these products are to be kept, or, as contended,.it may include the two. preceding items. It is, then, ambiguous.
The general rule seems to be that a policy of insurance, being an instrument prepared by the insurer, should in case of doubt be construed strictly against the insurer, who prepares it, and liberally in favor of the insured, even though the intent of the company may be otherwise. The object of the contract being to afford indemnity, it will be so construed, in case of doubt, as to support, rather than defeat, the indemnity provided for. If there is any doubt or uncertainty under the terms of the policy as to the intent of the parties, it is to be resolved in favor of the insured, or, if a policy is susceptible of two constructions, that construction is to be adopted which is favorable to the insured. (See 19 Cyc. 656, and authorities there cited; also, Chandler v. St. Paul Fire & Marine Insurance Co., 21 Minn. 85, 18 Am. Rep. 385.)
Much has also been said in regard to the nature of the property insured — whether animate or inanimate— and as to the contemplated use thereof in determining whether the parties to the insurance contract intended that the property should only be insured while it remained in the place referred to in the policy; but the qualifying clause in this policy, if it applies to the insurance upon the horses at all, restricts the insurance upon them to the time “only while contained in above-described barn.”
Rather than upon any general rule of construction, we prefer to arrive at the intent of the parties by their own interpretation of the policy, as shown by their actions. The policy was issued in April, 1903. In August, 1904, a fire occurred which entirely destroyed the barn, and only while the horses were within it were they insured, according to the claim of the association. Nineteen days after this fire, and fourteen days after the five days’ extension of insurance in case of necessary removal occasioned by fire, the association paid the indemnity for the loss of the barn and for a partial loss on the fifth item, and took a receipt from the insured which expressly recognized the fifth item, as reduced by the payment, as still in force, and by necessary implication recognized all the other items, including the one on the horses, as in full force. The barn where the horses were afterward burned was then pointed out as the place where they were being kept, and the association did not then offer to return any unearned premium nor did Taylor demand the san$e. They each treated the policy as in force on the dwelling and the contents therein insured, and on the horses and the vehicles, etc., as reduced by the payment of the partial loss. It cannot be assumed that at the time of this adjustment Taylor intended to donate the unearned premium for nearly twenty months on $450 insurance; nor that the association intended to keep the unearned premium without any consideration therefor. It is more in accord with business dealings to presume that both parties intended to maintain the insurance on the horses as well as on the vehicles, which was specified in the receipt, although the barn was not in existence and hence could contain none of these items. This was evidently the conclusion of the court below.
But it is said no authority is shown in the person, called the adjuster, to represent the association.. After a loss by fire has occurred to insured property, and the insurer has been notified thereof, and soon thereafter a man appears upon the scene of the fire and adjusts the loss and pays the indemnity and takes a receipt therefor in the name of the insurer, it will be presumed that he acts as the agent of the insurer in transacting such business; and it will fúrther be presumed that the principal is informed and knows of all such facts as the agent is informed of and knows affecting such business.
This is not regarded as a waiver of any condition of the policy or as the making of any new contract, but as a mutual interpretation by the parties thereto of the meaning of the original, ambiguous and uncertain contract, which meaning the court below properly adopted.
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The opinion of the court was delivered by
Mason, J.:
The city council of Kansas City undertook to open a street through a block and to charge a portion of the cost to the property within a benefit district. The owners of several tracts affected obtained a permanent injunction against the enforcement of the resulting assessments, and the city prosecutes error.
The plaintiffs concede that to sustain the judgment it is necessary for them to show that the proceedings which culminated in the tax complained of were absolutely void. The first defect specified is that the report of the appraisers appointed' to assess the damages occasioned by the taking of the land required for the street made their estimates upon the basis that the owner should retain all buildings located thereon and remove them at his own expense. It is true that the rule is said to be that where land is taken for a public purpose the title to permanent improvements thereon passes to the public and the owner must be paid for them. (Mills, Em. Dom., 2d ed., § 223; The City of Kansas v. Morse, 105 Mo. 510, 16 S. W. 893; Finn v. Providence Gas and Water Co., 99 Pa. St. 631. See, also, 10 A. & E. Encycl. of L. 1158; 15 Cyc. 762.) There is nothing, however, inherently vicious about the method pursued. Indeed it seems better calculated to yield just results than the one usually adopted.. If it was satisfactory to the parties directly concerned — the owners and the city — it is not apparent how the plaintiffs were injured by it. But at most it merely resulted in an erroneous award of damages, which could have been corrected on appeal as provided by the statute (Laws 1903, ch. 122, § 162), and which, not having been challenged in that manner, became final. It is not unusual for condemnation commissioners to attach conditions to their assessment, as by allowing some privilege to the owner in reduction of the amount of his damages. Of this practice it is said, in volume 2 of the second edition of Lewis on Eminent Domain, section 505:
“Awards of this character are not, however, void unless repugnant to the legal effect of the condemnation, as where the statute vests a fee in the party condemning, and the award reserves an easement to the owner, or is contrary to a provision of positive law.”
The notice given by the appraisers of the time and place of their meeting recited that they had been appointed “to appraise and assess the actual value of the land proposed to be taken, . . . and the actual damages done to all other property •. . . and for the payment of such value and damages assess against said city . . . the amount of benefit to the public generally, and the remainder of such damages caused by the opening of said street against the property in the benefit district.” It is insisted that this could only mean that the appraisers were to assess against the city both the value of the land taken and the damages to other property, but against the property specially benefited only the damages to other property than that appropriated. The language considered by itself might be susceptible of such a construction, but it is in substance borrowed from the statute, where the word “damages” in the phrase “the remainder of such damages” obviously refers to all the damages occasioned by the improvement, including the amount allowed as compensation for the land taken. Complaint is also made 'that .by referring to the assessment of the damages done to “all other property” the notice and the ordinance on which it was based implied that damages would be allowed with respect to lands not a part of the tract through which the street was to be opened. As the expression thus complained of is also found in the statute no serious objection can be based upon its repetition in the notice and ordinance.
The report is further criticised because, although the various tracts referred to therein were otherwise sufficiently described, the names of the city and county were not stated in that connection. There was no occasion for stating them. The various subdivisions named must be understood to be those of the municipality which had instituted and was carrying on the proceeding.
Another objection to the report is that it does not disclose by what rule or method the amount required to be raised by special assessments was apportioned among the property of the benefit district. The legislature might doubtless have provided for an apportionment according to the area, or to the frontage, or to the value. (25 A. & E. Encycl. of L. 1200, 1201.) What it intended in this regard must be found in these words of the statute:
“For the payment of such value and damages, the appraisers shall assess against the city the amount of benefit to the public generally, and the remainder of such damages against the property within the benefit district which shall, in the opinion of said appraisers, be especially benefited by the proposed improvement.” (Laws 1903, ch. 122, § 160.)
This can only be interpreted to mean that the amount to be charged against the tracts especially benefited shall be distributed in proportion to the actual benefit respectively received by each in the opinion of the ap praisers. The report, so far as material, was thus worded:
“We, the undersigned appraisers appointed to ascertain the actual value of the land proposed to be condemned and taken, and to assess the benefits and damages sustained by all property owners by reason of the [improvement in question], beg leave to report that . . . we assessed against the city the amount of benefits to the public generally by reason of the opening, widening or extending of said highway, and the remainder of such damages, including the value of the land to be taken and the damages to all other property, we assessed as benefits against the specific property embraced in the benefit district fixed by said ordinance which will be especially benefited by the proposed improvement, as shown by the schedule hereto attached and made a part hereof, and we now report the same as a full and complete assessment.”
The appraisers’ oath, which was referred to in and made a part of the report, contained an engagement that they would “make a true, correct and equitable appraisement of the actual value of the land proposed to be condemned and taken, and of the benefits and damages to all other lots and pieces of land.” In view of the terms of the statute the report sufficiently showed that the plan adopted was that of apportioning the damages according to the actual benefits received. It is.now claimed that the £otal benefits estimated exceed the total damages by a few dollars, that one tract was assessed twice, and that in several instances the assessment levied does not correspond with the estimate of the appraisers. These matters, however, need not be considered, for they were not referred to in the petition, which undertook to set out the plaintiffs’ grievances in full detail.
The ordinances providing for the improvement and for collecting the assessments are attacked upon grounds similar to those already discussed, and upon 'others which have been examined and are held to be-insufficient, but which are thought not to require separate statement.
The final claim upon which a reversal is asked is that only property fronting upon a street to be opened can be charged with the cost thereof. It is true that in denying the right of the owner of property which does not abut upon a street to maintain a suit to enjoin its vacation or obstruction courts often say that such a person has no special or peculiar interest therein, but this is explained to mean that to gain a standing for that purpose he must show that he suffers an inconvenience different in kind from that caused to the public generally. (Billard v. Erhart, 35 Kan. 611, 12 Pac. 39.) And that situation can only arise when his direct access to his property is affected. But it is obvious that by the opening of a street tracts not abutting upon it may be actually benefited and become more valuable. The advantage thus afforded to owners may be said to be of the same kind as that derived by the public generally, or, at all events, of the same kind as that derived by many other individuals. But it obviously will vary in degree, depending upon distance, position and other local conditions, and in that sense is' special and peculiar as to each tract. Under the statute the location of the property is immaterial if it is in fact benefited (25 A. & E. Encycl. of L. 1189), and the question of fact is to be determined by the council and the appraisers. In Matter of Common Council of Amsterdam, 126 N. Y. 158, 27 N. E. 272, affirming on this point 62 N. Y. Supr. Ct. 270, 8 N. Y. Supp. 234, it was expressly held that the authority given to commissioners to assess the costs of the opening of a street to the property benefited thereby was not limited to an assessment upon lands bordering on the street. (See, also, In re Westlake Avenue, 40 Wash. 144, 82 Pac. 279.)
No jurisdictional defect in the proceedings having been pointed out, no ground for enjoining the enforcement of the assessment has been established, and the' judgment must therefore be reversed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an original proceeding in quo warranto, relating to the office of police judge of the city of- Chanute. The plaintiff in his petition says:
“That he was duly elected police judge of the city of Chanute, Neosho county, Kansas, at the election held in said city in April, 1905, for a period of two years; that he entered upon the duties of his office after duly qualifying therefor, and continued until on or about the first day of March, 1907, when the said C. S. Nation, defendant, usurped the duties of said office, unlawfully intruded into the same, unlawfully took possession of all the papers thereof, and since said first day of March, 1907, has been unlawfully exercising the duties of said office and enjoying the rights, privileges and franchises of said office, to the damage arid prejudice of said city of Chanute and said plaintiff, and against the peace of the state.
“Wherefore said plaintiff prays judgment that the said defendant be declared not entitled to said office, and that he be ousted therefrom, that said plaintiff be declared entitled to said office and reinstalled therein, that he have such other relief as he may be entitled to, and costs of this suit.”
The answer contains a general denial, and also a specific denial that the defendant has usurped the duties of police judge, or intruded into the same, or unlawfully taken the papers, or unlawfully exercised the duties, privileges and franchises thereof. The answer also pleads chapter 179 of the Laws of 1907, creating the city court of Chanute, and alleges that the defendant was appointed, and was, and is, acting as city judge under its provisions.
The case was submitted upon an agreed statement of facts, as follows:
“(1) That the city of Chanute is a municipal corporation, a city of the second class, situated in Neosho county, has a population of 8746, which does, not include several additions adjacent to said city, containing several hundred people’; that at the time of the passage of the law referred to in the defendant’s answer the said city had two justices of the peace, and still has, and one police judge, and still has, as provided by law.
“(2) That said Neosho county is a part of the seventh judicial district of the state of Kansas, which is composed of Neosho and Wilson counties; that there are three terms of the district court held in each county, annually, as provided b“y law, at Fredonia in Wilson county, .and at Erie in Neosho county, sixteen miles distant from Chanute; that the population of Neosho county is 23,414, that of Wilson county 19,261, making a total population of said judicial district of 42,675.
“ (3) That the said' plaintiff has been a resident and citizen of said city of Chanute for the past five years, and at the election held in said city in April, 1905, was duly elected police judge of said city for the period of two years, and until his successor should be elected and qualified; that he duly qualified for said office, and immediately thereafter entered upon the duties thereof.
“ (4) That- the special act of the legislature creating the city court of Chanute was passed and published as set forth in the defendant’s answer; that the defendant has been a resident and citizen of the said city of Chanute for and during the past five years, and was duly appointed judge thereof, and duly qualified therefor, as provided by said act and as in said answer alleged.
“(5) That soon after said defendant had qualified as judge of said city court, and on or about March 1, 1907, he assumed all the duties required of said court as provided by said act, since which time he has continued to discharge the duties imposed upon him by said act as judge of said court, and that in the discharge of his said duties the defendant has heard and determined all cases arising under the ordinances of said city.
“(6) That the defendant in the discharge of his said duties has occupied the city hall in the city of Chanute, pursuant to said act; that said city hall is a public building in which the mayor and council hold their meetings in said city, and in which several city officers have their offices, including, in one division or part thereof, the office of the police judge of said city; that the defendant has never occupied the division or part thereof occupied by the police judge, but has held court at all times in the main part of said .city hall, known as the council chamber, which is in the same room as said office of said police judge, but is a different division or part of said city hall.”
The question principally argued was the constitutionality of the act referred to in the answer. The plaintiff contends that the act is in violation of section 17 "of article 2 of the constitution, as amended in 1906, forbidding the enactment of a special law where a general law can be made applicable; that it violates section 1 of article 12, prohibiting the legislature from passing special acts conferring corporate powers, and providing that corporations shall be created under general laws; and that it is in violation of section 5 of the same article, requiring provisions by general law for the organization of cities.
The questions so presented are interesting and important, especially in view of the duty devolved upon the courts by the amendment of 1906 to section 17 of article 2 of the constitution (Laws 1905, ch. 543) to construe and determine whether a law is repugnant to its provisions. A preliminary question, however, is presented and must be first determined, viz., whether the plaintiff can maintain this action. In the statement of facts it is agreed that the city has one police judge, as provided by law. The plaintiff was, and still is, such police judge. At the date of the alleged usurpation he was, and still is, in the possession of the office, in a room in the city hall duly provided .for that purpose. There is no proof that his books or papers have been seized or interfered with; nor is it claimed or shown that he has been disturbed in his office, except that the defendant, as city judge, under the act referred to, has, ever since March 1, 1905, “heard and determined all cases arising under the ordinances of said city.”
The prayer of the petition is that the defendant be ousted from the office of police judge and the plaintiff reinstalled therein. It appears, however, that the defendant has never taken possession of, or intruded into, that office, and that the plaintiff still remains installed therein. The real object of this action, therefore, is to oust the defendant from the office of'judge of the city court, or from trying cases arising under the city ordinances as such judge; and the only inter est the plaintiff has in that office, or in the questions concerning its rightful existence, besides- his common interest as a citizen and taxpayer, is the resulting loss he suffers from the fact that prosecutions for violations of the city ordinances are brought in the new court instead of being brought before him.
The remedy here sought is to be allowed where any person usurps, intrudes into, or unlawfully holds, any public office. (Code, § 653; Gen. Stat. 1901, § 5149.) The plaintiff in an action must be the real party in interest. He must have an interest in the subject of the action and the relief sought. (Code, §§ 26, 35; Gen, Stat. 1901, §§ 4454, 4463.) In a proceeding of this nature the proper party plaintiff must be determined by reference also to the following .statute:
“When' the .action is brought by the attorney-general or the county attorney of any county of his own motion, or when directed to do so by competent authority, it shall be prosecuted in the name of the state, but -where the action is brought by a person claiming an interest in the office, franchise, or corporation, or claiming any interest adverse to the franchise, gilt or grant which is the subject of the action, it shall be prosecuted ip the name and under the direction and at the expense of such persons. Whenever the action is brought against a person for usurping an office, by the attorney-general or the county attorney, he shall set forth in the petition the name of the person rightfully entitled to. the office, and his right or title thereto. When the action in such case is brought by the person claiming title, he may claim and recover any damage he may have sustained.” (Code, § 654; Gen. Stat. 1901, § 5150.)
In Bartlett v. The State, 13 Kan. 99, it was held that whenever any person usurps an office and attempts to hold it wrongfully, not only the state, but also any individual “who may be entitled to hold the office,” may maintain the action. Again in the same opinion it was said: “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 an action in the nature of quo warranto to oust any intruder therefrom.” (Page 102.) The distinction indicated in that decision between actions for the benefit of the public and for the benefit of an individual has been adhered to in many cases. (Turner v. Comm’rs of Jefferson County, 10 Kan. 16; Bobbett v. The State, ex rel. Dresher, 10 Kan. 9; Miller v. Town of Palermo, 12 Kan. 14; Graham v. Cowgill, 13 Kan. 114; The State, ex rel., v. Stock, 38 Kan. 184, 16 Pac. 799; State of Missouri ex rel. Kempf v. Boal, 46 Mo. 528; Commonwealth v. McCarter, 98 Pa. St. 607; The State v. Stein, 13 Neb. 529, 14 N. W. 481; Demarest et al. v. Wickham, 63 N. Y. 320; State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994.)
The only interest, apart from that of a citizen and taxpayer, that the plaintiff has in the office of judge of the city court, or in the relief sought, is the incidental loss or diminution of fees resulting from the fact that prosecutions for violations of the city ordinances are brought in that court instead of before him. This is insufficient.
It cannot be claimed that the plaintiff can maintain the action to oust the defendant from the office of judge of the city court on the ground that he is entitled to that office, for he claims that no one is entitled thereto; and he cannot maintain the action to oust the defendant from the office of police judge, for he is already in possession of that office.
Upon the pleadings and agreed statement the plaintiff cannot maintain this action, and it is therefore dismissed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In January, 1904, Elizabeth B. Mangum leased her farm to M. C. Cooney for $150 per year, taking his note for that amount, due the following-December. Cooney raised a.crop of corn on the farm and sold a portion of it to Henry Stadel for $117.50. He paid $35 on his note, leaving $115 of the rent unpaid, which under the statute was a lien on the corn grown on the premises, including that sold to Stadel.. This action was brought against Stadel to recover the value of the corn purchased to the extent of the rent due and unpaid. Testimony was introduced by plaintiff in an effort to show that Stadel had such notice of the lien as made him liable for the unpaid rent, but upon a demurrer to the evidence the court held that plaintiff’s testimony did not tend to show notice of the lien, and the case was taken from the jury.
The question arises, Was there testimony tending to show that Stadel had notice of the lien? The statute gives the landlord a lien on the crops of his tenant for the payment of the rent. The lien may be enforced against the crop after it has passed into the hands of a purchaser with notice of the lien, wherever it can be identified, by a proceeding against such purchaser to recover the value of the crop purchased to the extent of the unpaid rent and damages. To charge a purchaser with notice of a lien actual notice is not necessary. A person cannot be a bona fide purchaser who has brought to his attention facts which should have put him upon inquiry — an inquiry which if pursued with due diligence would have led to a knowledge of the lien. (Scully v. Porter, 57 Kan. 322, 46 Pac. 313; Stadel v. Aikins, 65 Kan. 82, 68 Pac. 1088.) Without doubt the plaintiff had a lien upon the corn sold Stadel, but it was one which was not enforceable against a bona fide purchaser. This follows from the fact that the statute gives a remedy against a purchaser with notice, implying that there is no remedy against one who purchases in good faith and without notice. The plaintiff’s action is practically based upon a charge of bad faith in the purchaser; that is, of the purchase of the corn with notice of the plaintiff’s lien. While the statute gives a lien, bad faith in the purchaser cannot be presumed. Stadel was not required to show his good faith, and the burden of showing that the purchase was made with notice of the lien was upon the plaintiff.
Did plaintiff offer testimony tending to show notice of the lien or notice of facts which would naturally arouse suspicion and 'excite inquiry reasonably leading to a knowledge of the lien ? Such a notice is equivalent to actual knowledge. While plaintiff’s testimony tending to prove notice was meager, it was sufficient to take the question to the jury. The testimony showed that the plaintiff and defendant had known each other well from childhood and had lived and owned land within three miles of each other for a great many years. The, plaintiff’s land was situated on the road leading from Stadel’s land to Hoyt, the nearest market. Stadel had been on the plaintiff’s farm, had purchased cattle there and assisted, in driving them away. Livings in the neighborhood a great many years, as he had, and transacting business with his neighbors, as he did, he was necessarily familiar with his surroundings. When called as a witness he stated that he had never seen Cooney until he came to sell him the corn, and did not know or inquire where he lived nor where the corn. was grown. One of the witnesses, however, testified that when inquiry was made of Stadel about the purchase of the corn he answered that until Cooney came-to his place to sell the corn he did not know, him; that “that was the first time he ever had seen Mr. Cooney to know his name or where he lived.” This testimony fairly implies that he then knew that Cooney lived on plaintiff’s land, and this knowledge should have provoked inquiry as to whether the relation of landlord and tenant existed between plaintiff and Cooney and whether the rent had been paid.
“When a person purchases grain from a tenant, either on or some distance from the leased premises,, with knowledge of the relation of landlord and tenant, or of the facts which should have prompted inquiry as. to the existence of a lien in favor of the landlord on crops grown on the leased land, he cannot escape liability to the landlord.” (Stadel v. Aikins, 65 Kan. 82, 85, 68 Pac. 1088.)
Enough was brought out in the testimony to give- rise to the inference that the duty of inquiry was placed upon Stadel, and testimony sufficient to reqúire inquiry is sufficient testimony of notice. Where the testimony is sufficient to warrant the drawing of an inference upon the question of notice it belongs to the jury alone to draw that inference and to determine whether the purchaser is chargeable with notice.
The ruling of the court sustaining the demurrer to plaintiff’s evidence is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
Lyman Ford was arrested upon the charge of being the keeper of a place where intoxicating liquors were sold in violation of law. It was shown at the trial, in addition to other evidence tending to connect him with the management of the place, that at the time of his arrest there were found in a cash-register in use there several bills, or statements, purporting to show the sale to him of liquors, ice and other goods. No effort was made by the state to prove by whom these documents were made or any fact in regard to them, except as has already been stated, and the defendant, upon an appeal from a conviction, contends that they were not competent as evidence against him and that their admission was erroneous.
The fact that bills found in Ford’s presence upon the premises and apparently relating to the business there carried on were made out in his name certainly had some tendency to establish, not perhaps that any specific items therein named had actually been sold to him, but that he was the proprietor of the place. Such evidence is admissible upon much the same principle by which upon an issue of ownership it is permissible to show that the accused assumed to be in control of the place in question (The State v. Skinner, 34 Kan. 256, 8 Pac. 420), or that his name appeared upon the sign (Commonwealth v. Intoxicating Liquors, 122 Mass. 36), or that his initials were marked upon casks containing liquor which were delivered there (Commonwealth v. Jennings, 107 Mass. 488). In the case last cited it was’ said:
“Couch further testified, without objection, that he made a seizure at the tenement in October, 1870, when the defendant was not present; and that some kegs stood near the door, with bright and fresh express tags attached to them. The district attorney asked how the kegs came there, and the witness said he did not know, except what the tags said. The district attorney asked what was on the tags, and the defendant objected. The judge overruled the objection, and admitted the evidence to show that the tenement was kept and used by the defendant at the time alleged in the indictment ; and the witness answered that the tags were marked ‘J. J.,’ and also with the name of the express from Ware. No further evidence was given as to these tags; and all the testimony in relation to them was excepted to by the defendant. . . . The testimony as to the tags was admissible. It constituted a part of the description of the kegs found at the tenement in question, and in connection with the evidence of the defendant’s continued presence there, and acts of control, had some tendency to show that he was still keeping’ the tenement.' It was for the jury to say whether the kegs were thus marked with his knowledge.” (Pages 489, 491.)
More closely in point upon the facts is the case of Commonwealth v. Jacobs, 152 Mass. 276, 25 N. E. 463. The scope of the decision is indicated by the last paragraph of the syllabus, which reads:
“Upon an indictment for maintaining a place used by a club for illegally selling, distributing, and dispensing intoxicating liquors, books and papers relating to the business of the club, and found lying about the premises, of which the defendant had charge, as well as of such business, are admissible in evidence against him.”
The character of the documents there referred to and the theory upon which they were admitted in evidence are shown by these extracts from the statement and opinion:
“A paper found in an unlocked locker, on one of the occasions above referred to, which was a printed form of receipt for ‘initiation fee’ and ‘monthly dues’ to the Warren Club, and a book also found on the top of a locker, in plain sight, projecting over and beyond the top, containing memoranda of purchases of ice, sugar and lemons, and of express charges on liquors paid by the Warren Club, averaging over ten dollars per day, were admitted in evidence, against the defendant’s objection; and the defendant -excepted. . . . The paper and the book, to the admission of which in evidence exception was taken, were on the premises of which the defendant had the care, and where he might have seen them. They pertained to the business of which he had charge, and were rightly admitted.” (Pages 280, 283.)
A recent case to the same effect is Reynolds v. State of Florida, 52 Fla. 409, 42 South. 373, the first paragraph of the syllabus reading:
“Under the rule that indirect, collateral or circumstantial evidence is admissible when it tends to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth, it is proper in a prosecution for illegally selling liquor, to admit in evidence jugs which smelled as if they had had whisky in them, found at defendant’s place of business when he was arrested under the charge. Upon the same principle, papers acknowledging the receipt of orders for whisky, and a letter offering commissions on sales of liquor, found at his place of business a few days after his arrest, are admissible in evidence, their probative force and effect to be determined by the jury in connection with other evidence.”
The judgment is affirmed. | [
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