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Lewis, J.:
This is a domestic action which is complicated procedurally and contains issues appealed by both parties.
Ruben Sierra and Jill Skillett resided together and were the natural parents of B.S. Skillett had two other daughters from a previous marriage, J.S. and L.S.
In September 2000, Skillett filed a petition under the Protection From Abuse (PFA) Act, K.S.A. 60-3101 ét seq., against Sierra. The basis of this action was Skillett’s allegation that Sierra had engaged in sexual conduct with her daughters from a previous marriage who were under the age of 16 and neither of whom was his spouse. After a hearing before the district magistrate judge, which resulted in a judgment in favor of Skillett, Sierra appealed to the district court.
In December 2000, Skillett filed a petition for a determination of parentage. That action alleged that Sierra was the father of B.S., and it sought that determination along with orders for custody and child support. We turn first to the facts of the PFA action.
It appears the parties lived together for several years but never married. They often fought, separated, and reunited. However, from the period of July 1998 until August 1999, Sierra was at Sldllett’s house on a daily basis, and he watched the children in the evenings because Skillett often worked or had appointments during those hours.
In the PFA action, Sldllett testified as to a number of sexual advances that Sierra had made to her daughters. On one occasion in 1995, according to Skillett, Sierra held J.S. by her legs and had her head in the bathtub under water, telling her to hold her breath. He also told her to do a handstand against the wall and that she would be in trouble if she got down. Sldllett was upset when she found out this was happening. Sierra told Skillett he was just playing.
In 1998, Sierra was apparently intoxicated and demanded oral sex from Sldllett. When Skillett refused to accommodate him, he threatened to go to J.S. “because she’ll do anything I ask her to do.” Skillett indicated that in order to protect J.S., she agreed to Sierra’s demands. The next morning, Sierra told her he did not mean what he said. In May 1999, however, Skillett came home late. She went by J.S.’s bedroom and saw J.S. in bed, lying on her back with her knees propped up. She was not clothed from the waist down. Sierra was crouched over J.S. with his face between her legs holding a washcloth. Skillett confronted Sierra over his conduct, and he stated that he was only cleaning up J.S. because she smelled bad and had poor hygiene.
On another occasion, Skillett told Sierra that she had gone into the bathroom and opened the shower door and that J.S. became very embarrassed. A few minutes later, Sierra left and when he came back, he told Skillett that he went into the bathroom and opened the shower door and J.S. was not embarrassed.
In August 2000, J.S. told Skillett that she did not care if she lived. Skillett asked J.S.’s stepmother to talk with her. J.S. told her stepmother that Sierra had been sexually abusing her for a long time and that the abuse began when she was 8 or 9 years old. According to Skillett, Sierra would bring a washcloth and tell J.S. she needed to be cleaned. He then kissed J.S. “down there.” Ac cording to J.S., she did not tell her mother because she was afraid her mother would hate her and also because she was afraid of Sierra. This was the end of the relationship between Skillett and Sierra, and the PFA action was filed soon thereafter.
At the hearing, J.S. testified, consistent with Sldllett’s testimony and the stepmother’s testimony, that Sierra washed her with a washcloth and then licked her vaginal area.
L.S. also testified that on one occasion, Sierra took both J.S. and L.S. into the bedroom by themselves and closed the door. After they had bathed, Sierra took both of them into the bedrooms to check their private areas. She also testified that on one occasion, B.S. told her that Sierra licked her bottom.
At the trial, there was also testimony by a counselor who had interviewed the girls. The counselor testified that in her opinion, J.S. had been sexually abused by Sierra but she was unable to reach an opinion as to whether Sierra had sexually assaulted L.S.
Sierra testified at tire hearing and admitted he did supervise the girls’ bathing procedures but insisted that all he was doing was trying to be certain they were clean and their hygiene was attended to.
Based upon all the evidence, the trial court found that Sierra was guilty of a lewd touching of both J.S. and L.S. It believed the evidence to be insufficient as to whether Sierra had abused B.S. In any event, the trial court restrained Sierra from contacting Skillett, J.S., L.S., or B.S. It granted Skillett sole custody of B.S. and denied Sierra visitation with B.S. until he had submitted a plan for counseling, which would be approved by the trial court. This PFA order expired, by its own terms, on October 4, 2001.
After the PFA order had been filed, the parties filed a joint motion to consolidate the PFA action and the paternity case. The trial court granted the motion and, after the consolidation, Sierra appealed the PFA order. His appeal was dismissed as interlocutory as a result of the consolidation order.
After Sierra’s appeal on the PFA case had been dismissed, the trial court proceeded to a hearing on the paternity, child support, and child custody issues. Sierra admitted he was B.S.’s father. The parties and the trial court all agreed that the child support and custody issues had been bifurcated.
Both of these parties had high incomes. Sierra had income in 2000 of $156,402 as a result of his employment by a grain company. This company closed in early 2001, and at the time of closing, Sierra had earned $93,520. He then moved to Florida and was employed at a salary of $5,000 per month.
Skillett was unemployed at the time of trial. However, she had earned $137,458 per year in 1998 and 1999; $123,661 in 2000; and $179,066 from January through September 2001.
Both parties submitted child support worksheets. Skillett based her calculations on wages of $120,000 for herself and $150,000 for Sierra and asked for $964 per month in child support. Sierra’s worksheet supported amounts from $289 to $442 a month. He submitted three worksheets. The trial court, in the paternity action, determined that Sierra was B.S.’s father, that Skillett was unemployed with no income, and that Sierra was earning $5,000 per month. The net child support obligation was $408, but the trial court deducted $121 for income tax consideration. The trial court then proceeded to add $313 for “overall financial conditions” and set Sierra’s child support at $600 per month. The trial court indicated the $313 adjustment was made to increase Sierra’s child support payments because Skillett “cannot immediately reduce her expenses from the level she had been able to maintain while she was working.”
The trial court also awarded judgment to Skillett and against Sierra in the amount of $25,000 as reimbursement for the expenses of support and education of the child from the date of birth to the date of the order.
The custody and parenting plan orders from the PFA case were incorporated into the paternity case. This appeal is from the trial court’s decisions in both cases.
JURISDICTION
Our first question is whether we have jurisdiction to hear this appeal. Neither party raises the issue of jurisdiction, but we have the duty to raise it on our own initiative when it appears to be an issue. Hughs v. Valley State Bank, 26 Kan. App. 2d 631, 633-34, 994 P.2d 1079 (1999), rev. denied 269 Kan. 932 (2000).
We have no question that the trial court’s orders regarding child support and restitution are final orders. However, the custody and visitation hearing was bifurcated, and we have no record of a custody and visitation hearing. The question then is whether the court’s orders of custody and visitation were final or interlocutory in nature.
At oral argument, the parties both urged us to conclude these were final orders and that this court has jurisdiction. We have examined the record in this case and reach that conclusion. Although there are factors which indicate the appeal is interlocutory, we are reminded that no visitation order is ever final, that the trial court always retains jurisdiction to modify those orders, and that the order in this case can be considered as final; thus, we do have jurisdiction.
PROTECTION FROM ABUSE ACTION
In the PFA action, the trial court entered an order which prohibited Sierra from having any contact with B.S. On appeal, Sierra argues the trial court had no authority to do this because it did not find he sexually abused B.S. Skillett counters by arguing the issue is moot because the PFA order expired on October 4, 2001. We agree with Skillett’s argument and conclude the PFA order is moot, and the appeal from it should be dismissed as moot.
The general rule in regard to the mootness doctrine is as follows:
“The general rule is that this court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.” Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
There are, however, exceptions to the general rule, and those exceptions involve vital rights to the parties. Mootness is not an issue of jurisdiction, and we have said that “the court will proceed to judgment whenever dismissal of an appeal adversely affects rights vital to the parties, even where its judgment will not be enforceable because of lapse of time or other changed circumstances. [Citations omitted.]” Gonzales v. State, 11 Kan. App. 2d 70, 71, 713 P.2d 489 (1986).
Sierra argues this exception applies to him because the PFA order in this case will continue to affect his right to possess a firearm under Kansas and federal laws. He cites 18 U.S.C. § 922 (2000) and K.S.A. 2001 Supp. 60-3112.
K.S.A. 2001 Supp. 60-3112(a) provides that “orders . . . shall be entered into the national criminal information center protection order file.” Orders which were entered into the national criminal information center (NCIC) file are cleared as an active record from the computer system when the order expires or has been dismissed by the court or has been invalidated by a court. K.S.A. 2001 Supp. 60-3112(b). The fact is, this statute no longer affects Sierra’s rights because his name would have been removed from the active NCIC file on October 4, 2001, when the PFA order expired.
Federal statute 18 U.S.C. § 922 is also cited by Sierra although he does not state which of the numerous provisions applied to him. We assume he is concerned with 18 U.S.C. § 922(g)(8), which makes it unlawful for any person to have a firearm “who is subject to a court order” that restrains “such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.” We believe Sierra should have no concern about this statute because insofar as the PFA order is concerned, he is no longer “subject to a court order.”
We further note that procedurally a decision on the PFA order would not alter Sierra’s rights under those statutes. We note that Sierra challenges only those orders regarding B.S. He has not appealed the findings or orders regarding Skülett, J.S., or L.S., and these orders are in and of themselves sufficient to apply 18 U.S.C. § 922 and K.S.A. 2001 Supp. 60-3112 against Sierra. However, as we said above, we do not believe the expired orders will implicate those statutes.
There is one more exception to the mootness doctrine and that is if the issue is “one capable of repetition and one of public importance.” Board of Johnson County Commrs v. Duffy, 259 Kan. at 504. We do not believe that exception applies. Skillett and Sierra are no longer in any relationship, Sierra has moved to Florida, and any issues involving B.S. can be resolved in the paternity case. We have no explanation from Sierra as to why we should consider these facts to be of public interest.
“ ‘The phrase “public interest” as used in this connection means something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.’ ” State ex rel. Stephan v. Johnson, 248 Kan. 286, 290, 807 P.2d 664 (1991) (quoting Annot., 132 A.L.R. 1185,1188-89).
We have considered the issue carefully and hold that any issues involving the PFA order are moot and will not be reached by this court. The appeal from the PFA action is dismissed as moot.
Our decision concerning the mootness of the order renders moot the issues raised by Sierra in his contention the trial court erred in prohibiting him from haring contact with B.S.
CUSTODY AND VISITATION
The trial court granted sole custody of B.S. to Skillett and denied Sierra any visitation with the child. He appeals that order, contending the trial court erred in this action.
We find no reason to reverse the trial court’s order concerning custody. We admit it is a rare case in which we believe the trial court should deny visitation altogether with one of the contesting parents. However, we note that in this case, Sierra has been determined to have sexually molested Skillett’s two other young daughters with whom he resided. There was some evidence that he sexually abused B.S., although the trial court failed to make such a finding. The counselor for the girls stated that in her opinion, it was not in B.S.’s best interests to allow Sierra supervised visitation until he began sex offender treatment. We agree. Although Sierra claims to want custody and visitation, he failed to submit any parenting plan or begin treatment, and we note he has not appealed the finding that he sexually abused J.S. and L.S. To deny visitation rights to an individual who has sexually abused his daughter s half-sisters is not an abuse of discretion. We point out that should Sierra obtain sex offender treatment and submit a parenting plan, the trial court should consider those matters and reconsider the issue of custody and visitation at that time.
PAST CHILD CARE EXPENSES
As stated earlier, the trial court awarded Skillett a judgment of $25,000 to reimburse her for what it believed Sierra’s fair share of the child support would have been as computed from the date of the child’s birth. Sierra argues the award was erroneous.
We disagree. There is statutory authority to support the trial court’s action. K.S.A. 2001 Supp. 38-1121 provides:
“(c) Upon adjudging that a party is the parent of a minor child, the court shall make provision for support and education of the child including the necessary medical expenses incident to the birth of the child. The court may order the support tod education expenses to be paid by either or both parents for the minor child. . . .
“(e) In entering an original order for support of a child under this section, the court may award an additional judgment to reimburse the expenses of support and education of the child from the date of birth to the date the order is entered.”
Sierra concedes the existence of the statutory authority but cites to us K.S.A. 2001 Supp. 60-1610(a) which allows such expenses only in exceptional circumstances. He argues the Chapter 60 statute should apply and not the section set forth from Chapter 38. In State ex rel. Wingard v. Sill, 223 Kan. 661, 663-64, 576 P.2d 620 (1978), the Supreme Court considered an argument similar to that made by Sierra in this case. In Wingard, the order was made under K.S.A. 38-1106 (Ensley 1981), and defendant in that case claimed that statute was unconstitutional because K.S.A. 60-1610(a) does not require fathers to pay medical expenses. The court rejected that argument by saying:
“The purpose of the paternity statute is to attempt to place the illegitimate child and its mother on par with the legitimate child and its mother. This court well knows that oftentimes the father of an illegitimate child disappears long before die child is bom and makes no attempt to aid the mother until die judicial system intervenes. Although the putative father may have a moral obligation to support the child, legal responsibility does not arise until paternity is adjudicated. On the other hand, the married father is usually not only present at the time of birth to aid the mother, but is also legally known to be the person responsible for the support and welfare of the child and at least jointly responsible for the mother’s medical expenses. For this reason we find K.S.A. 38-1106 to be constitutional.” 223 Kan. at 663-64.
Since that decision, K.S.A. 2001 Supp. 38-1121(e) now allows an unwed custodial parent to recover past expenses for the child’s support and education from the noncustodial parent, not just birth expenses.
Sierra next argues the Kansas Child Support Guidelines (KCSG) are not applicable in a paternity action and the court can only award past expenses for actual expenditures that can be itemized and proven. Again, we disagree. K.S.A. 20-165 authorizes the Supreme Court to establish guidelines in any action under Chapter 38 or Chapter 60. The statutes in question deal with the determination of child support and make no distinction between paternity cases under Chapter 38 or child support cases under Chapter 60. Accordingly, we hold the KCSG apply to paternity cases as well as to cases arising under Chapter 60.
The KCSG determine the day-to-day expenses for the support of minor children:
“The purpose of child support is to provide for the needs of the child. The needs of the child are not limited to direct needs for food, clothing, school, and entertainment. Child support is also to be used to provide for housing, utilities, transportation, and other indirect expenses related to idle day-to-day care and well-being of the child.” Administrative Order No. 128, § II, A. (2001 Kan. Ct. R. Annot. 97-98).
We conclude the judgment entered by the district court is supported by substantial competent evidence, it was not unreasonable, and it is affirmed.
CHILD SUPPORT PAYMENT
Finally, Sierra argues the trial court erred in increasing the child support from $313 to $600 per month.
In this case, the rebuttable presumption of reasonable child support under the KCSG was $408. Under section E, this amount was decreased by $121 for income tax consideration, but it was then increased by $313 for the overall financial conditions of the parties. These increases and decreases made Sierra’s child support $600 per month.
The question is whether the trial court had the authority to increase tíre child support by $313 because Skillett could not immediately reduce her expenses from the level she had maintained while employed.
We conclude this issue is controlled by In re Marriage of Aubuchon, 22 Kan. App. 2d 181, 183, 913 P.2d 221 (1996). In Aubuchon, the trial court increased the presumed child support amount by $100 per month because the mother had taken bankruptcy and had little debt while the father remained personally hable for some of the discharged debts. This court reversed the award of the trial court because it did not make any findings justifying the increased support as being in the best interests of the children. 22 Kan. App. 2d at 183. It appeared to us that the trial court was only devising a method to force the mother to reimburse the father for debts he will probably have to pay as a result of the mother’s bankruptcy.
In this case, there is no finding and, under the KCSG, no justification for the $313 increase. It appears to us the trial court was attempting to force the father to reimburse the mother for her cost of living expenses which were not related to those of the child. We hold that under our decision in Aubuchon, this was error, and the child.support order must be reversed and the matter remanded for redetermination of proper child support in accordance with the KCSG and this opinion.
In summary, we hold as follows:
(1) All issues regarding the PFA order are dismissed as moot.
(2) The order regarding an increase in the KCSG presumed child support amount is reversed and the matter remanded for a re determination of the proper child support.
(3) In all other aspects, the decision of the trial court is affirmed.
Appeal dismissed in part, affirmed in part, reversed in part, and remanded. | [
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Lewis, J.:
Defendant Michael A. Purcell appeals his sentence as being unconstitutional. Defendant entered his plea of guilty to one count of aggravated indecent liberties with a child and one count of contributing to a child’s misconduct. He was sentenced to a presumptive term of 56 months and ordered to complete the Labette Correctional Conservation Camp (LCCC) program. The trial court departed, however, from the presumptive postrelease super vision period of 36 months and imposed a postrelease supervision period of 60 months. Defendant was sent to LCCC, failed to complete that program, and was ordered to serve the underlying prison sentence. He appeals from the court’s increase of his postrelease supervision period from 36 months to 60 months.
Defendant’s plea and sentence was based on a plea agreement between defendant and the State. A portion of that agreement required the State to recommend placement at LCCC. The agreement also provided that both parties agreed to an upward departure on postrelease supervision from 36 to 60 months.
The question is whether the trial court erred in departing from the presumptive postrelease supervision period of 36 months and imposing one of 60 months.
K.S.A. 2001 Supp. 22-3717(d)(l)(A) provides for a presumptive postrelease supervision period of 36 months. Under K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i), a postrelease supervision departure may be imposed if the court finds substantial and compelling reasons to impose a departure based upon a finding that die crime of conviction was sexually violent or sexually motivated. In the case of a sexually violent or sexually motivated crime, the trial court is permitted to depart and increase the postrelease supervision period to 60 months.
The authority of the trial- court to impose an upward departure sentence has been severely restricted by the decision in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In that case, our Supreme Court held that “[a]n upward departure sentence imposed on a defendant by a judge under K.S.A. 2000 Supp. 21-4716 is a violation of the defendant’s Sixth Amendment rights and Fourteenth Amendment Due Process rights and, thus, is unconstitutional.” 271 Kan. 394, Syl. ¶ 3. The court further noted that the notice and jury trial guarantees of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require that a factual determination resulting in an increase in the prison sentence beyond the sentence established in the appropriate grid box be made by a jury beyond a reasonable doubt.
First, there is no question that increasing defendant’s postrelease supervision period beyond that prescribed by law is an upward durational departure and implicates Gould. The Supreme Court’s recent decision in State v. Anthony, 273 Kan. 726, 45 P.3d 852 (2002), establishes that an extended postrelease supervision period does increase a defendant’s sentence beyond the prescribed statutory maximum and, thus, is controlled by Gould.
We next examine whether the fact that defendant pled guilty and agreed to this illegal sentence has any impact on our decision. We hold it does not.
In State v. Cody, 272 Kan.564, 565, 35 P.3d 800 (2001), our Supreme Court held as follows:
“This case presents the issue of whether the district court’s imposition of an upward departure sentence was unconstitutional when Cody pled guilty to criminal charges and the court based its sentence upon Cody’s admissions, not upon facts found beyond a reasonable doubt by a jury. The State argues that ‘the primary facts upon which the departure was based were proven beyond a reasonable doubt by the defendant’s admissions and pleas of guilty to various charges.’ Cody contends, however, that under Apprendi, a plea of guilty to the elements of a criminal offense does not constitute either an admission or a waiver of his due process rights. Cody asserts that ‘the fact that he admitted each of the elements of the offenses is in no way an admission that the sentencing factors used to increase his sentence were proved beyond a reasonable doubt.’ We agree. See Apprendi, 530 U.S. at 476-77, 490; State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001), this day decided.”
In State v. Kneil, 272 Kan. 567, 571, 35 P.3d 797 (2001), which is cited in Cody, the court held:
“By entering a plea of guilty to felony theft, Kneil did not admit she was not amenable to probation, nor did she admit any other fact which might support an upward departure sentence. [Citation omitted.] The State simply fails to present a valid reason for retreating from our holding in Gould.”
We conclude from the cases cited above that the fact that defendant in this case pled guilty does not establish any facts under which the trial court may have imposed an upward departure.
In State v. McElroy, 29 Kan. App. 2d 990, 995, 35 P.3d 283, rev. denied 273 Kan. 1038 (2002), this court held that
“no error occurs under Apprendi [citation omitted] and Gould [citation omitted] where a factual determination is used to increase the period of postrelease supervision beyond the prescribed statutory maximum under K.S.A. 1998 Supp. 22-3717(d)(1)(A), provided that the fact used to exceed the prescribed statutory max imum has been submitted to a jury and proved beyond a reasonable doubt.” (Emphasis added.)
In State v. Anthony, the defendant argued that his postrelease supervision period was increased from 36 to 60 months and that this increase was unconstitutional. The distinguishing feature in Anthony is that Anthony was convicted by a jury. The Supreme Court held that the upward departure in Anthony was not unconstitutional because he had been tried to a jury, the jury had found him guilty of a sexually violent crime, and under K.S.A. 2001 Supp. 22-3717(d)(2)(C), the facts on which the upward departure was based had been determined by a jury beyond a reasonable doubt. The court went on to say:
“The question becomes whether the increased postrelease period runs afoul of the protections outlined in Apprendi and Gould. We conclude that it does not. Here, the district court simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a sexually violent crime, to impose an extended postrelease supervision period under K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i). In doing so, the court was not required to make an additional finding of fact beyond that made by the jury. Because the fact relied upon to extend the period of postrelease supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease period imposed does not violate Apprendi or Gould.” 273 Kan. at 729.
In Anthony, the court went on to emphasize that a factual determination being used to increase the period of postrelease supervision beyond the prescribed statutory maximum was constitutional, “provided that the facts used to exceed the prescribed statutory maximum has been submitted to a jury and proved beyond a reasonable doubt.” 273 Kan. 726, Syl. ¶ 1.
The Supreme Court has made it clear that a plea of guilty does not provide the necessary facts to impose an upward durational departure nor does the fact that a defendant entered into a plea agreement agreeing to an illegal sentence make that sentence legal.
In the instant matter, it is true that defendant pled guilty to a sexually violent crime. However, his plea of guilty did not authorize the court to durationally upward depart on the postrelease supervision period. A factual determination that the crime was one of sexual violence was never submitted to the jury and was never proven beyond a reasonable doubt. Accordingly, we hold that under the decisions of our Supreme Court cited in this opinion, the trial court could not increase the term of postrelease supervision without submitting the elements on which it based that increase to a jury. Anthony is not controlling inasmuch as in that case it was the jury which determined the crime was one of sexual violence and, as a result, the upward departure was constitutional.
We hold the postrelease supervision of defendant’s sentence is unconstitutional. We vacate that sentence and remand the matter for resentencing in accordance with the decisions in Apprendi and Gould and the comments made in this opinion.
Sentence vacated and case remanded for resentencing. | [
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Beier, J.:
Gerry A. Burden appeals following his jury trial convictions of aggravated kidnapping, rape, aggravated criminal sodomy, and criminal threat. He raises four issues: (1) whether the district court erred in failing to remove potential jurors for cause; (2) whether the evidence supporting his aggravated kidnapping conviction was sufficient; (3) whether the instruction on criminal threat was misleading and denied him a unanimous verdict; and (4) whether prosecutorial misconduct requires reversal and a new trial.
Analysis and resolution of Burden’s claims necessitate a brief review of the underlying facts and procedural histoiy.
The victim, C.G., relayed the following story on the night of the crimes: Her boyfriend, Burden, accused her of infidelity. While she was going to the bathroom, he began hitting her in the face and head with a closed fist. Burden then stripped her and flushed her panties down the toilet. When C.G. ran from the bathroom, Burden caught her as she was reaching the back door. He grabbed her by the hair, put his arm around her neck, and dragged her back through the house to the bedroom, where he threw her onto the bed, choked her, hit her several more times, and threatened to kill her. Specifically, he said: “I wasn’t through with you,” and “I’m going to kill you.” He also stated that he knew he “was going to jail for this,” but he did not care. Burden eventually demanded that C.G. get up and get dressed. He then held onto the back of her shirt, directing her out the back door. Once outside, she was able to break away and run to a neighbor’s house for help.
That night, investigating officers went to the house and found Burden lying on the bed, smoldng a cigarette. Before they asked him for anything other than his identification, Burden said, “She was like that when I got here; I didn’t touch her.”
Three days after the crimes, a police detective interviewed C.G. again, this time on a videotape eventually played for the jury at trial. For the first time, she added an allegation that Burden had penetrated her vagina and anus with his fingers while she and Burden were in the bathroom. She also said he had wiped his fingers on a sweatshirt he had taken off of her.
C.G. underwent a sexual assault exam immediately after the videotaped interview. The nurse who performed the exam ultimately testified that C.G. had bruises on her body and a bleeding lip. She also had a red mark on the cervix approximately 5 inches from the vaginal opening and corresponding redness on her labia and outer vaginal area. Although the speculum used in the exam could have caused the red mark on the cervix, the nurse said, a finger inserted in the vagina also could normally touch the cervix. The nurse concluded C.G.’s injuries were consistent with her version of events.
The sweatshirt C.G. had described to the detective was obtained from the house. Stains on the sweatshirt tested positive for feces.
At trial, C.G. attempted to retract her previous statements, saying she had made up most of what she told the police the night of the crimes and 3 days later. She said Burden did not threaten to kill her, chase her through the house, or digitally penetrate her. She explained that she had made these accusations only to get him into trouble.
Burden also testified at trial. He admitted to slapping C.G., but he denied that anything else happened. The prosecutor asked Burden if he had been convicted of domestic violence battery in 1998, and Burden acknowledged he had. During Burden’s testimony, defense counsel measured Burden’s middle finger and put into evidence that it was 3 inches long.
During voir dire, one prospective juror named Ms. W. told defense counsel that she thought she would have difficulty with the case because her father used to beat her mother. When asked if she could be fair, she replied: “[I]t would be a very emotional time to be sitting through it.”
Defense counsel passed the panel for cause with the exception of four jurors, including Ms. W., and the following exchange took place between the district court and Ms. W. after a bench conference:
“THE COURT: Ladies and gentlemen of the panel, we’ve had a discussion up here at the bench and there is some concern whether there’s some legal cause to challenge one or more of you. A couple of people have asked to discuss it privately; the other two have not.
“Ms. [W.], I want to address you. You’ve indicated that this would be an emotional issue. You don’t think you could be fair and impartial. Could you explain that a little more.
“MS. [W.]: It just brings up things from my past that’s so hard as I was sitting here. It’s hard to talk about, but I just don’t know how I feel about sitting through what she has commented about, what we — we’re going to be hearing, you know.
“THE COURT: I understand. Ma’am, the real question is — and I appreciate it could be a difficult process for you to sit as a juror in this case. But the real question is, are you going to blank out what’s said on the witness stand? Are you going to think about your experience or are you going to be able to listen to the evidence even though it may be difficult for you to be able to listen to evidence and make your decision based upon the evidence in this case in this courtroom and not on your past experiences?
“MS. [W.]: Yes.
“THE COURT: Okay. I’m going to deny challenge against Ms. [W.].”
The prosecutor also asked the court to permit further examination of potential jurors Mr. P. and Ms. C.; however, the district court and both attorneys specifically noted that no motion had been made to excuse either of them for cause. Further examination revealed that both had undergone personal experiences dealing with a rape and had potential biases, but the district court found there was no reason to dismiss for cause.
Burden used 3 of his 12 peremptory challenges to strike Ms. W., Mr. P., and Ms. C.
The district court gave the following criminal threat jury instruction:
“The defendant, Gerry A. Burden, is charged in Count Four with criminal threat. The defendant, Gerry A. Burden, pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant, Gerry A. Burden, threatened to commit violence;
“2. That such threat was communicated with the intent to terrorize C.A.G.; and
“3. That this act occurred on or about the 15th day of January, 2000, in Sedgwick County, Kansas.
“Under this instruction, a statement that defendant, Gerry A. Burden, has already committed violence is the same as a threat to commit violence.
“As used in these instructions, the term ’terrorize’ means to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind.” (Emphasis added.)
Defense counsel objected to the use of the emphasized sentence, arguing the facts of the case did not support the instruction and it would cause juror confusion, because of the evidence presented on previous domestic violence between the victim and Burden. The district judge overruled the objection, stating:
“Well, I’ve heard in this courtroom the 1998 case and her statement to the detective on tape drat' this beating occurred on a regular basis. That while he drank throughout the week, on the weekends — almost every weekend was violent; an argument ensued or drere was some slapping. I think the facts do support whether or not the victim was terrorized, that the past conduct or the fact that he committed violence in the past would go to that as opposed to, oh, gee, he — yeah, he said he drreatened to kill me; I really didn’t take him seriously; he had been drinking and we were arguing; it was a heated argument, and those were just words he blurted out he really didn’t mean, and I really didn’t take him seriously.
“I mean, that’s what that additional statement is intended to address, if there’s a history of conduct of the parties. There’s been violence committed in the past, and she’s on the receiving end of dns battering, and she can remember the past conduct. Then he couples it with the threat, I’m going to kill you and I don’t care if I go to jail. That gives her a basis to believe that he really means it.”
During closing argument, the prosecutor, Ms. Ladner, made the following remarks concerning Burdens claim that his finger was too short to have caused the red mark seen on C.G.’s cervix:
“Defense No. 5, his fingers are too dainty and petite, at three inches, to have injured her cervix like that. Ladies and gentlemen, particularly ladies, anybody who has had a pelvic examination, do you think that every time that has to be done they have to say, Paging Dr. Longfingers; we got to check somebody’s cervix to see how far they’re dilated. His fingers are too petite to cause these injuries. Remember what her body language was like on the video. He kept doing the finger thing; he kept doing the finger firing. Maybe self-consciously or not, she kept moving her arm up in a jabbing motion with her fingers.
“(MS. LADNER:) The inference is that Ms. Flowers and Linda Hollis injured her cervix when they inserted the speculum. That redness is not from infection. It is from blunt force trauma. The location of that —
“MR. WEISER [defense counsel]: Your Honor, I object. Assuming facts not in evidence.
“THE COURT: The jury is instructed if any of these statements are not supported by the evidence, they are not to consider it. That’s for them to determine.
“MS. LADNER: That redness on the cervix is from blunt force trauma. The same redness is in the labia minora and the fossa navicularis. The locations of the redness in each area are consistent, all at 5:00, and consistent with what they described. If a person can’t reach a cervix with a finger three inches long, then every healthcare provider, every labor and delivery room in this nation are going to have fingers that are four to six inches long. You can’t be an obstetrician if your fingers are too short. Figure it out. Use your common knowledge and experience in assessing this case.”
The prosecutor made the following statements about whether Burden was interested in the truth, the burden of proof necessary in this case, and domestic violence victims:
“And finally, you know, the defense told you in opening statement that they were really only interested in you finding the truth and the truth coming out about this case. When Detective Reynolds went to the house on the 18th and wanted to ask [Gerry] Burden what happened here, he refused to answer any questions. He turned his back and walked away. The defendant himself, is he interested in the truth? I didn’t touch her; she was like that when I got here. Do you think he was interested in the truth? The defense is more interested in snowing you into an acquittal so that he cannot be held responsible for the violent acts that he did.
“The burden of proof, you must presume he is not guilty until you find from the evidence that he is guilty. At what point in this trial could you have made that finding? Beyond a reasonable doubt, not beyond any and all doubt but beyond a reasonable doubt. I suggest it was after the last ten minutes or so of the video statement, coupled with the feces report, coupled with the testimony of Twila Flowers, regarding the burden of proof in her testimony. Well, she’s lying; she lied then; she’s not lying now. What of her do you accept or reject? Use your common sense.
“Why is it the policy of the police department to record domestic violence victims? Because you have seen for yourselves firsthand why it is difficult for victims of domestic violence regarding a perpetrator who is somebody that they have an ongoing relationship with to later come forward and testify against them. Do you fault the police department or the district attorney’s office for proceeding in a case like this where a victim recants? Do you think that just because a victim recants that the case should automatically be dropped, dismissed and forgotten? Using common sense, the community proceeds to prosecute tírese kinds of violence even when a victim recants when — like in a case like this when there is so much other corroborating physical evidence.
“Another example to the defense. Are you in an intimate relationship with [C.G.]? Yes, we are. He answered in present tense. Why do you think it is that she has testified as she has in court today? It’s because of where she has come from and what relationship she is in with this family. She is a classic example of a domestic violence victim who recants and returns — or tries to protect her abuser for whatever reason. She is still needing protection from herself.
“. . . You have had a glimpse into the dynamics of what a woman as a victim of domestic violence, one with a past history of violence — that her life has gone through. The focus is on [C.G.] and how untrustworthy she is. Put the focus back on the defendant . . . .”
The prosecutor concluded the first portion of the closing argument by saying:
“You know, the most overwhelming thing that the defense cannot overcome in this case is tire physical evidence that corroborates her initial statements. He’s not responsible for these crimes; a mouse is responsible and not a man for this case, or a dog, I suppose. You know, his first statement after all is, I didn’t touch her; she was like that when I got there; it’s the mouse; it’s the dog; it’s our regular sex acts; whatever it was, it was not me. Take the focus away from [C.G.] in this case and put the focus back on the defendant for his actions and what he did here.”
Removals of Potential Jurors for Cause
Burden argues the district court abused its discretion by failing to remove potential jurors Ms. W., Mr. P., and Ms. C. for cause after they expressed reservations about their ability to be fair and impartial. He contends he was denied due process by having to use his peremptory strikes to remove them from the jury.
Because the district court is in a better position to view the demeanor of prospective jurors during voir dire, a district court’s ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion. State v. Kleypas, 272 Kan. 894, 991, 40 P.3d 139 (2001).
K.S.A. 22-3410 provides in relevant part:
“(1) Each party may challenge any prospective juror for cause. Challenges for cause shall be tried by the court.
“(2) A juror may be challenged for cause on any of the following grounds:
(i) His state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.
“(3) All challenges for cause must be made before the jury is sworn to try the case.”
Taking Mr. P. and Ms. C. first, although the parties and the district judge engaged in further questioning of them, the district judge specifically noted that neither party had challenged either for cause. Because Burden did not challenge these potential jurors for cause at trial, this claim is not properly before this court. See State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999) (issue not raised below will not be considered for first time on appeal). He has cited no authority to support a holding that a district judge must take the initiative to strike venire members for cause in the absence of a motion by one of the parties.
As to Ms. W., who was challenged for cause below, she ultimately said she could make her decisions in this case based on the evidence and not on her past experiences. The district court did not abuse its discretion in refusing to remove her from the panel for cause.
Because Burden was not forced to use peremptory challenges to remove venire members who should have been struck for cause, we do not reach his argument that his statutory right to a number of peremptories equal to that given the State was violated. Nor do we address the remedy for any such violation. Those questions are left to another panel deciding another case on another day.
Sufficiency of Evidence in Support of Aggravated Kidnapping
Burden next argues insufficient evidence was presented to support the taking or confinement element of aggravated kidnapping under K.S.A. 21-3421 and K.S.A. 21-3420(c).
K.S.A. 21-3421 provides in relevant part: “Aggravated kidnapping is kidnapping, as defined in K.S.A. 21-3420 and amendments thereto, when bodily harm is inflicted upon the person kidnapped.” K.S.A. 21-3420 provides in relevant part:
“Kidnapping is the talcing 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;
“(c) to inflict bodily injury or to terrorize the victim or another.”
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether all of the evidence, viewed in the light most favorable to the prosecution, could have convinced a rational factfinder to find the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Burden argues that, under State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the taking in this case from the back door into the bedroom was slight or inconsequential; thus it was inadequate to support the taking or confinement element of 21-3420. In Buggs, the Supreme Court held:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the land inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. at 216.
In Burden’s view, even if he dragged C.G. from the back door to the bedroom to continue hitting her, this movement was only incidental to the beating and had no significance independent of it.
The State argues that the Buggs analysis was developed in the context of a 21-3420(b) kidnapping, i.e., one to facilitate flight or commission of another crime, rather than a 21-3421(c) kidnapping, one to inflict bodily injury or terrorize the victim or another. It also cites to State v. Richmond, 250 Kan. 375, 377, 827 P.2d 743 (1992) (describing Buggs as “[t]he leading case on what is required to be proven to establish the facilitation of the commission of any crime provision of K.S.A. 21-3420[b]”), suggesting Richmond emphasizes that the Buggs analysis is applicable only in 21-3420(b) cases. See also State v. Fisher, 257 Kan. 65, 75, 891 P.2d 1065 (1995) (“Buggs is the leading Kansas case which discusses in depth the crime of kidnapping and the elements necessary to establish the offense where a taking or confinement occurs to facilitate the commission of another crime.”).
Although the State is correct that several of the other later cases cited by Burden also arose out of 21-3420(b) kidnappings rather than 21-3420(c) kidnappings like this one, see, e.g., Fisher, 256 Kan. at 74-78; State v. Hays, 256 Kan. 48, 61-63, 883 P.2d 1093 (1994), it fails to recognize that Buggs addressed an element of the kidnapping statute common to both facilitation and bodily injury cases. In all simple and aggravated kidnappings — whether effected to facilitate another crime or to inflict bodily injury or for one of the other reasons listed in the statute — the State must prove a taking or confinement. The interchangeable specific intent subsections of the statute on which the State wants us to focus define proof alternatives for a different element of the offense.
In the end, the State’s argument misses the point of Burden’s attack on the sufficiency of the evidence. Buggs did not merely set forth the minimum evidentiary threshold for demonstrating the presence of only one or the other type of specific intent required for a kidnapping. It also set forth the minimum evidentiary threshold for demonstrating the presence of the common, and constant, element of taking or confinement. See State v. Wiggett, 273 Kan. 438, 445, 44 P.3d 381 (2002) (Buggs court sought to define, distinguish “taking” requirement of kidnapping from incidental movement that often occurs during robbery or rape). It is this element on which Burden asserts the evidence against him comes up short.
State v. Mahlandt, 231 Kan. 665, 647 P.2d 1307 (1982), is demonstrative. In that 21-3420(c) case, there was evidence the clerk in a store that defendant had just robbed was forced from the store and into defendant’s car. The clerk was able to escape before the defendant drove out of the store’s parking lot. The defendant argued on appeal that this evidence supported only an attempted kidnapping rather than the completed crime. The Supreme Court rejected this argument, specifically discussing under the Buggs standard whether the evidence proved a completed taking from the store and a completed confinement in defendant’s car. 231 Kan. at 670-71.
In contrast, other subsection (c) bodily injury cases that have not discussed Buggs generally address a kidnapping element other than taking or confinement. See State v. Higgenbotham, 264 Kan. 593, 607, 957 P.2d 416 (1998) (although court mentions challenge to sufficiency of evidence on taking and confinement, it discusses only challenge to sufficiency of evidence on force, threat, or deception); State v. Dubish, 234 Kan. 708, 716-17, 675 P.2d 877 (1984) (challenge to sufficiency of evidence on specific intent to inflict bodily injury or terrorize); State v. Racey, 225 Kan. 404, 408, 590 P.2d 1064 (1979) (challenge to sufficiency of evidence on force, threat, or deception). These cases simply do not prevent us from doing exactly what we think the Supreme Court intended for us to do when the sufficiency of the evidence of a taking or confinement is challenged: We evaluate the facts of the case under the Buggs standard.
When we do so here, we see that Burden beat, sodomized, and raped C.G. in the bathroom, that she then ran from the bathroom to the vicinity of the back door, and that Burden caught up with her and dragged her back to the bedroom where he continued to batter her and choked her and threatened to kill her. Even viewing this evidence in the fight most favorable to the State, we agree with Burden that Buggs dictates a holding that the movement of C.G. from the back door to the bedroom was part and parcel of the beating rather than a crime apart from it. The evidence of a taking and confinement was not independent of the other crimes Burden perpetrated. His movement of C.G. only enabled him to continue what he had started and was incidental to it. Burden’s conviction for aggravated kidnapping must be reversed.
Instruction on Criminal Threat
Burden next challenges the instruction given on criminal threat, contending in his statement of the issues that it was misleading and denied him a unanimous verdict. He has failed to brief the unanimity argument, however, and that argument is deemed abandoned. See State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999).
We are governed by the following standard of review:
“When reviewing challenges to jury instructions, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law, as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do [not] constitute reversible error even if they are in some way erroneous.” State v. Scott, 271 Kan. 103, Syl. ¶ 10, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
The instruction at issue came from PIK Crim. 3d 56.23. Burden is correct that the accompanying Notes on Use provide that the questioned language — “[ujnder this instruction, a statement that defendant has already committed violence is the same as a threat to commit violence” — should be used only when “the defendant communicated a statement of past conduct rather than a threat of future conduct.” Because Burden communicated only a threat of future conduct, the State concedes that the challenged portion of the criminal threat instruction was given in error. We agree.
We must therefore consider whether the error demands reversal. We have found no cases that have dealt specifically with the erroneous inclusion of this portion of the criminal threat instruction. Burden argues the jury could have misinterpreted the erroneous portion of the instruction and found that the prosecutors statement about Burden’s previous domestic violence satisfied the requirement of a “statement,” because the instruction did not specify that the “statement” must be made by the defendant.
This argument lacks merit. The remainder of the instruction makes clear that a criminal threat conviction required Burden to have made the threatening statement. Although the prosecutor’s reference to the elements of the crime in closing argument may have compounded the instructional error in part, she also reminded the juiy to focus on the words Burden spoke to C.G. in the bedroom. This was plenty to keep jurors’ eyes on the correct ball. Viewing the instructions as a whole and in the context of the evidence and argument, the jury was not misled to a criminal threat conviction. Omission of the questioned language would not have changed the ultimate outcome.
Prosecutorial Misconduct
Burden’s last issue is prosecutorial misconduct. He contends the statements of the prosecutor quoted above in the factual and procedural background were irrelevant and inflammatory, repeatedly misstated the evidence, and attacked him personally and unfairly. At trial, his counsel objected to only one of the statements Burden now questions, but our Supreme Court has held that the contemporaneous objection rule does not bar our consideration of this issue when a defendant’s right to a fair trial is implicated. Kleypas, 272 Kan. 894, Syl. ¶ 19. Furthermore,
“[a]n appellate court’s analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing tire evidence. Second, the appellate court must determine whether the remarks constituted plain error; that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In order to find that the remarks were not so gross or flagrant, the appellate court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial.”
“Factors relevant in determining whether a new trial should be granted for prosecutorial misconduct include: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the part of the prosecutor, and (3) whether the evidence against the accused is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors.” 272 Kan. 894, Syl. ¶¶ 20 and 21.
Burden’s first allegation of prosecutorial misconduct centers on the prosecutor’s ridicule of his defenses, specifically her suggestion that if his defense regarding the length of fingers held sway, doctors would be required to have especially long fingers to do pelvic ex ams. “In closing argument, an attorney may indulge in impassioned bursts of oratoiy or may use picturesque language as long as he or she introduces no facts not disclosed by the evidence.” State v. Duke, 256 Kan. 703, 719-20, 887 P.2d 110 (1994). While it is true that the prosecutor appeared to be sarcastic in some of her statements, a review of the transcript reveals that she was, in fact, commenting on the evidence presented at trial. Regarding the “fingers” comments, the nurse who performed C.G.’s exam testified that it is normal for a person to be able to touch the cervix with a finger. Moreover, the prosecutor was entitled to urge the members of the jury to use their common knowledge and experience to determine whether someone would need long fingers to reach a woman’s cervix with his or her fingers. See State v. Mitchell, 269 Kan. 349, 360, 7 P.3d 1135 (2000).
Burden next argues the prosecutor shifted the burden of proof by concluding: “[T]he most overwhelming thing that the defense cannot overcome in this case is the physical evidence that corroborates her initial statements.” This comment was inartful, but the juiy was instructed on the proper placement of the burden of proof. “[Wjhere the juiy has been properly instructed the prosecution has the burden of proof, a prosecutor may argue inferences based on the balance or lack of evidence, provided that the remarks do not indirectly draw an adverse inference regarding the defendant’s failure to testify.” State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234 (2001); compare State v. Lumley, 266 Kan. 939, 964, 976 P.2d 486 (1999) (prosecutor’s statements, taken in context, not reversible error). In this case, the prosecutor was not attempting to shift the burden of proof to the defendant. Rather, she was within the considerable latitude granted to prosecutors to comment on the weakness of defenses in comparison to the consistency between C.G.’s early accounts and the physical evidence.
Burden’s third allegation of prosecutorial misconduct is more troubling. He notes that the prosecutor told the jury he was not “interested in the truth” and was more interested in “snowing” them so that he would not be held responsible for his actions. These statements were clearly improper under State v. Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000).
Burden’s last challenge to the prosecutor’s conduct focuses on her statement that victims of domestic violence often recant and her characterization of C.G. as a “classic example of a domestic violence victim who recants and returns” to her abuser. Evidence was presented at trial that Burden had been convicted of battering C.G. previously and that they were still living together at the time of the incident. The prosecutor’s statements were thus based on facts in evidence and not outside the considerable latitude granted to prosecutors during argument.
We do not believe the prosecutor’s isolated remarks in attacking Burden’s credibility were so gross and flagrant that they denied Burden a fair trial. Despite C.G.’s recantation, the case against Burden was a strong one. The victim’s original story, captured on videotape, was corroborated by the sweatshirt and her vaginal and other bodily injuries. Under these circumstances, these comments on Burden’s credibility, though improper, do not demonstrate ill will and do not require reversal.
Burden’s convictions for rape, aggravated criminal sodomy, and criminal threat are affirmed. His conviction for aggravated kidnapping is reversed.
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Beier, J.:
Appellants Brenda and Tony George appeal the summary judgment granted to defendant Dr. Timothy Pauly in this medical malpractice action. The Georges’ infant son, Zachary, died from complications arising out of a bowel disorder the Georges allege Pauly should have recognized and treated earlier. The district court granted judgment to Pauly because of a perceived lack of admissible evidence supporting causation. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
We address three issues: (1) whether the district court erred by granting defendant’s motion in limine prohibiting a designated expert who gave no opinions regarding causation during his discoveiy deposition from testifying at trial on causation; (2) whether the district court erred by granting defendant’s motion in limine prohibiting causation testimony from a treating physician who was not finally designated as an expert; and (3) whether, in the absence of the designated expert’s causation testimony, the plaintiffs lacked causation testimony sufficient to survive a summary judgment motion.
Zachary was bom on April 28,1994, and died on June 22,1994, following his diagnosis and surgery for Hirschsprung’s disease. Hirschsprung’s disease is a congenital dilation and hypertrophy of the colon due to the absence or reduction of ganglion cells.
Zachaiy had been dismissed from the hospital as a newborn on April 30, but he had not had an initial bowel movement. His parents were told to call Pauly if Zachary continued without a bowel movement, which they did. Pauly, a family practitioner, saw Zachaiy in his office on May 2, 1994, and ordered a barium enema on the same day. The radiology report stated: “The colon and rectum contain a moderately large amount of fecal material. The colon and rectum are normal in caliber. No mechanical obstructions are seen.”
Based on this report, Pauly noted that he must consider other possibilities “after ruling out Hirschsprung’s.” He recommended waiting another 24 hours to see if Zachaiy had a bowel movement; if not, he recommended that Zachary see a pediatrician.
Pauly saw Zachary again on May 6 and May 9. Although Zachary had lost more than 18 ounces of his birth weight of 8 pounds, Vz ounce by the May 6 visit, he was not vomiting and was having daily bowel movements. At the second visit, Zachary was likewise reported to have stopped vomiting. By May 16 when Zachaiy saw Pauly again, he had gained some weight and possibly had a cold. By June 2, when Pauly saw Zachaiy, he was concerned that the baby’s weight had leveled off, and he recommended the baby start on formula as well as nursing. By June 6, the baby had gained 10 ounces but remained below birth weight. Defendant directed the Georges to come in for. a return visit in 1 week.
Instead, the Georges brought Zachaiy to the emergency room in Ellsworth on June 10. They said he had vomited four times the day before, was grunting on and off, and appeared to be gray and dusky in color. Observing the symptoms of sepsis, a physician’s assistant called defendant, who called a pediatrician, and they recommended that the baby start on antibiotics.
The baby was taken by ambulance to Wesley Medical Center in Wichita, where he was cared for by Dr. Curtis Pickert, a pediatric critical care specialist. Pickert’s report indicates Zachary was in overwhelming shock, secondary to sepsis or toxicity related to a bowel obstruction. Although the Wesley personnel were able to stabilize him, his condition continued to deteriorate through June 12, when he was taken to surgery.
The surgical procedure led to a diagnosis of Hirschsprung’s disease, and Zachary underwent a colostomy and placement of a peritoneal dialysis catheter to treat renal failure on June 12,1994. Over the next week, Zachary continued to go downhill, and he was taken off of mechanical life support just before his death on June 22.
Pickert said Zachary died of multi-organ system failure secondary to bacterial sepsis, which was secondary to all of the intervention and the toxicity of the disease process. Zachary had developed toxic enterocolitis secondary to the Hirschsprung’s disease, and his renal failure subsequent to that had led to the necessity of major instrumentation to keep him alive.
The Georges alleged in this action that Pauly negligently diagnosed and treated their son, resulting in his wrongful death.
Dr. Phillip Cherven, a pediatrician retained by the defense, explained at his deposition that the initial symptoms of Hirschsprung’s are irregular or absent bowel movements, vomiting, or abdominal bloating. A barium enema is appropriate as the first diagnostic test when Hirschsprung’s is suspected. It is used to identify the area of the patient’s colon that is constricted or pinched, with a dilated portion above. If the patient has the disease, the constricted portion of the bowel lacks ganglion cells and does not allow fecal contents to enter from the normal colon above the constricted area. When a barium enema does not reveal a constriction of the bowel, it points against Hirschsprung’s but does not rule out the diagnosis completely.
The next diagnostic step is a biopsy. Dr. Keith Ashcraft, the surgeon-in-chief at Children’s Mercy Hospital and another defense expert, testified at his deposition that two types of biopsies can be done. In a suction biopsy, a small metal capsule is placed inside the rectum to suck and cut mucosa off of the wall of the bowel, and the mucosa is checked for ganglion cells. An open biopsy requires anesthesia and dilation of the rectum. It involves cutting out a block of tissue from the wall of the colon, which is called a “full thickness biopsy.” This biopsy is more accurate because there are two layers of tissue that can be checked for ganglion cells.
Once the disease is diagnosed, Ashcraft explained, the treatment is surgery to bypass the abnormal part of the colon. Mortality from the surgeiy depends on where the surgeiy is performed and the condition of the baby. Mortality from the disease is associated with the development of enterocolitis, which is an erosion of the lining of the colon that allows bacteria normally residing in the stool to reach the bloodstream. According to Ashcraft, Hirschsprung’s is usually diagnosed before the patient develops this veiy serious condition.
The plaintiffs designated Dr. Robert Pantell, a pediatrician, as their expert. Pantell gave his discoveiy deposition in 1996 and a trial deposition in 1999.
At his discoveiy deposition, Pantell testified Pauly deviated from the standard of care in two ways: (1) He failed to communicate adequate details of Zachary’s symptoms to the radiologist when he ordered the initial barium enema; and (2) he failed to take appropriate steps in response to Zachaiy’s low weight, including hospitalization and a referral to a pediatric gastroenterologist or surgeon.
Relating to causation, Pantell testified that he could not tell if the radiologist would have done anything differently if he had been given the additional information he suggested or its effect on direct causality. Likewise, Pantell testified that he would defer to a gastroenterologist or surgeon for success rates for the surgery to treat the disease. He was also critical of the fact that the baby did not receive intravenous fluids while being transferred from Ellsworth to Wichita; however, he could not say whether such fluids would have made any difference.
Defense experts also testified during their discovery depositions on causation: Cherven said Zachaiy “probably” would have survived if he had been diagnosed before June 10. Dr. Lariy Anderson, a family practice physician, testified that the baby would probably be alive today if everything had gone well with the diagnosis and surgery.
The day before Pantell was set to give his trial deposition, Pauly filed a motion in limine to prohibit Pantell from offering opinions different from those expressed at the earlier discovery deposition. Defendant sought to preclude Pantell from using medical literature to supplement his opinions, arguing that K.S.A. 2000 Supp. 60-226(e) required supplementation of expert opinions and interrogatory responses at least 30 days before trial.
In the trial deposition, Pantell opined that Zachary’s disease was treatable and that there was tremendous success in treatment if the disease was detected early. In addition, he read from a medical textbook: “Results of treatment of Hirschsprung disease are generally satisfactory with a great majority of patients achieving fecal continence.”
The district court granted Pauly’s motion to exclude Pantell’s causation testimony after the trial deposition had been taken.
Pickert, the treating pediatric critical care physician at Wesley, also gave deposition testimony on causation. He stated in his deposition that it was obvious a diagnosis prior to Zachary’s development of toxicity would have made a difference in the ultimate outcome. Pickert had been designated by the plaintiffs in an interrogatory response as a possible witness on causation, and he was listed as a witness in the pretrial order. However, Pauly successfully moved to exclude Pickert’s causation testimony at trial, because he had not been designated in the pretrial order as an expert.
After the defense motions in limine were successful, the district court granted Pauly’s motion for summary judgment, ruling that the Georges lacked evidence of causation and thus could not prevail as a matter of law.
Pantell’s Testimony
Plaintiffs contend the district court erred in granting defendant’s motion in limine prohibiting Pantell from giving causation testimony. Defendant’s motion stated that Pantell was not qualified to' give causation testimony because it was beyond his expertise. Plaintiffs argue that a physician who is not a surgeon may be competent to testify as to causation resulting from a delayed diagnosis of a condition requiring surgery.
“The qualification of an expert witness as well as the admissibility of expert testimony are matters within the broad discretion of the trial court. . . . Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of say ing that discretion is abused only where no reasonable person would take the view adopted by the trial court.” City of Wichita, Kansas v. Eisenring, 269 Kan. 767, 776, 7 P.3d 1248 (2000). However, if a district court’s decision to admit expert testimony is based upon an interpretation of K.S.A. 60-3412, we have de novo review. Endorf v. Bohlender, 26 Kan. App. 2d 855, 860, 995 P.2d 896, rev. denied 269 Kan. 932 (2000).
Plaintiffs cite Glassman v. Costello, 267 Kan. 509, 986 P.2d 1050 (1999), and Tompkins v. Bise, 259 Kan. 39, 910 P.2d 185 (1996), in support of their argument that Pantell did not need to be a surgeon to be competent to testify as to causation. Plaintiffs are correct that these cases support the argument that a physician need not always practice the same medical specialty as a defendant in a medical malpractice action to give expert opinions on standard of care. However, we believe the parties’ focus on Pantell’s expertise or lack thereof — to give standard of care opinions or causation opinions — fails to identify the controlling infirmity in Pantell’s discovery deposition testimony.
Simply stated, the problem with Pantell’s causation testimony was not his competence to give it but its complete absence. We have carefully reviewed the transcript of the discovery deposition. That record demonstrates that, for whatever reason, Pantell was unwilling or unprepared to express a causation opinion to a reasonable degree of medical certainty, as required by Nunez v. Wilson, 211 Kan. 443, Syl. ¶ 1,507 P.2d 329 (1973) (“Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible.”).
In Sharples v. Roberts, 249 Kan. 286, 816 P.2d 390 (1991), plaintiff brought a suit against a defendant doctor claiming a failure to perform necessary tests and make a urology referral prevented earlier discovery of a kidney stone that led to loss of plaintiff s kidney. The district court granted the defendant doctor’s summary judgment motion based upon its finding of a lack of expert medical testimony to support causation. The plaintiff s expert was unable to come to a firm conclusion as to whether earlier diagnosis would have made a difference, and he was only able to say that it was possible that defendant’s failure to perform the tests could have contributed to the ultimate loss of the kidney. The Kansas Supreme Court affirmed this judgment, finding the expert’s opinion insufficient to establish that the delay in testing caused or contributed to the plaintiff s deterioration, and stated that this type of testimony “falls far short of the degree of medical probability or certainty required to support the necessaiy element of causation.” 249 Kan. at 297.
Pantell’s testimony in his discovery deposition is qualitatively comparable to that of the physician expert in Sharpies. He gave clear and committed opinions on deviations from the standard of care, but, when it came time to opine on causation, he balked. He was unable to testify as to what the radiologist would have done with the additional information Pauly should have communicated; he declined to discuss the success rates of the necessaiy surgery; he backed away from stating that IV fluids during transfer would have made a difference in Zachary’s chances.
Although the district court erroneously granted the motion in limine prohibiting Pantell from testifying as to causation based on his qualifications, the district court was correct in prohibiting the testimony. Pantefl’s causation testimony fell far short of the degree of medical probability or certainty required to support causation. If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999). Pantefl’s causation testimony was properly excluded.
Pickert’s Testimony
The Georges next argue the district court erred in granting defendant’s motion in limine prohibiting Pickert, a treating physician, from testifying about causation because he was not designated as an expert witness. In fact, the motion in Amine had suggested two other reasons for prohibiting this testimony: Pickert’s deposition statement that he was not providing causation testimony and the argument that his causation opinions were not supported by a reasonable degree of medical certainty. We hold that none of these arguments supports the district court’s decision to exclude Pickert’s causation testimony.
First, we believe the issue surrounding the manner of Pickert’s designation is controlled by this court’s previous decision in West v. Martin, 11 Kan. App. 2d 55, 713 P.2d 957, rev. denied 239 Kan. 695 (1986). In West, plaintiff responded to an interrogatory by stating that she expected to call all treating physicians, and she attached a witness list that listed the treating physician in question. The district court later refused to allow the treating physician to testify as an expert witness because he was not identified on the plaintiffs witness list as an expert. On appeal, we found the district court abused its discretion in hmiting the treating physician’s testimony because defendant knew that plaintiff intended to call the witness and was obviously not deceived. 11 Kan. App. 2d at 58; see also Thompson v. KFB Ins. Co., 252 Kan. 1010, 1027-28, 850 P.2d 773 (1993) (relying upon West in upholding the district court’s admission of the testimony of treating physicians who had been deposed where defendant was not misled or surprised).
In this case, the Georges stated that Pickert would give causation testimony in their answer to one of Pauly’s interrogatories. Pickert drafted a written report, which was provided to defendant. Pauly and his counsel were thus fully aware during discovery of plaintiffs’ plans to use Pickert. A reference to the designation of Pickert as an expert was made at his deposition, and his opinions were fully explored. There was no surprise that would justify excluding any causation testimony he had already given at deposition.
Pauly’s second argument that Pickert himself admitted he was not planning on giving causation testimony is based on the following passage from Pickert’s deposition:
“Q. I want you to assume with me for purposes of this question that in a medical malpractice action in the state of Kansas, the burden is on the plaintiff to establish that the defendant doctor owed a duty of care to a particular patient, that that duty was breached, in other words, there was a deviation from the applicable standard of medical care, and in addition to that, as a result of that deviation, damages were caused or there was a causative connection between the breach or the deviation from the applicable standard of care and the result and that’s what we talk about in the way of causation. Do you understand that, Doctor?
“A. Yes.
“Q. Do you understand that’s what you were asked to determine, whether or not there was any causation in this case?
“A. No.
“Q. That’s not what I understood you to say earlier and so I think we’re tracking correctly.
“What I’m understanding you to be saying is that you understood that you were being asked to indicate whether or not a different — retrospectively, whether a different course of action could have changed the outcome in this case.
“A. That’s correct.”
The problem with this argument is that it bestows on Pickert the power to make a call he is not qualified by training and experience to make. He is a doctor, not a lawyer or a judge, and it is not for him to characterize the nature or proper use of his medical opinions in a court of law. Regardless of defense counsel’s success in leading him to make such a characterization, the remainder of Pickert’s deposition makes clear that he in fact held opinions on causation. He stated unequivocally that a diagnosis of Hirschsprung’s before the onset of toxicity would have made a difference for Zachary.
Finally, we are also satisfied that Pickert should not be prohibited from testifying because his causation opinions lacked a reasonable degree of medical certainty. “The expressions ’probably,’ ’more likely than not,’ and others of similar import are proper qualifications for a medical expert’s opinion testimony if, taken as a whole, the testimony reflects an honest expression of professional opinion as to reasonable medical probabilities.” Pope v. Ransdell, 251 Kan. 112, Syl. ¶ 4, 833 P.2d 965 (1992). In his deposition, Pickert described the causal relationship between the timing of the diagnosis and the outcome as obvious. This is hardly namby-pamby.
Moreover, Pickert backed up his causation opinions with a detailed description of Zachary’s condition when he arrived at Wesley and the ensuing heroic efforts to save him. He contrasted this course with the ordinaiy progression of events when a diagnosis has been made at an earlier stage of the disease:
“The typical course of Hirschsprung’s Disease is that of initial suspicion of the diagnosis which is then confirmed by x-ray and biopsy of the colon to demonstrate absence of ganglion cells. When the diagnosis is made, colostomy or ileostomy can be performed and diversion of fecal material accomplished, preventing the obstruction of the bowel which may otherwise ensue. In this case, the physician had appropriately considered this diagnosis and performed a barium enema which is a standard diagnostic tool in this situation. Unfortunately, the transition zone may not be evident in the first six weeks of life. [Citation omitted.] This may unfortunately lead the practitioner to believe that the diagnosis has been ruled out, when in fact the disease may still be present.”
When Pickert’s testimony is viewed as a whole, it “reflects an honest expression of professional opinion as to reasonable medical probabilities.” 251 Kan. 112, Syl. ¶ 4. Reduced to its essence, he says that a timely diagnosis and surgery were necessary to prevent Zachary’s bowel obstruction and resulting toxicity. The toxicity led to multiple organ system failure and death.
For all of the foregoing reasons, the district court should have permitted Pickert to testify as to causation.
Other Evidence of Causation
The Georges also argue that they had marshaled causation testimony in three other forms.
The first, they say, came in the person of another of their designated experts, Dr. Ted Ganiats, who stated in his written opinion that earlier diagnosis would have made Zachary’s death unlikely. We affirm the district court’s refusal to consider this evidence, because plaintiffs had already said that they did not plan to call Ganiats, whose qualifications to testify had been called into question under the 50 percent rule of K.S.A. 60-3412.
Second, plaintiffs argue the district court should have considered medical treatises that supported causation. We disagree. Under the circumstances of this case and its procedural posture, the district court’s refusal to do so did not constitute an abuse of discretion. See State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
The Georges were provided with multiple opportunities during discovery to apprise Pauly and counsel of their intention to rely on such evidence, either because experts would do so or because they planned to submit such materials for the jury’s consideration as substantive evidence under the Kansas hearsay exception for learned treatises. See Wilson v. Knight, 26 Kan. App. 2d 226, 229, 982 P.2d 400, rev. denied 268 Kan. 856 (1999). They never did so. The district court therefore did not abuse its discretion by refusing to consider previously unidentified articles when it weighed the legal sufficiency of the evidence that would be presented in plaintiffs’ case in chief. The plaintiffs may have left themselves wiggle room to introduce such evidence in rebuttal, but that was not the issue before the district court at the time. We leave its resolution for the appropriate moment on remand.
Finally, the Georges argue that the testimony of experts retained by the defendant supported causation. This argument has merit.
In the pretrial conference order, plaintiffs listed all defense experts on their witness list. Defendant does not argue that plaintiffs cannot use his expert witnesses in their case in chief; rather, he argues his witnesses answered questions only in a general manner that is insufficient to support causation.
In Wilson, plaintiff brought three claims against defendant, including his failure to diagnose and treat a postoperative infection. The defendant’s motion for a directed verdict on this claim for lack of causation evidence was denied. On appeal, this court found the following evidence was sufficient to submit the causation question to the jury: “Dr. Bronsther’s testimony that antibiotics help cure infection and would have helped in this case tends to prove Dr. Knight’s failure to treat Wilson with antibiotics after the surgery led to his infection.” 26 Kan. App. 2d at 232.
We believe the remarks of both Cherven and Anderson were sufficient under the standard for specificity set by Wilson.
The deposition of pediatrician Cherven contains the following passage:
“Q. If Dr. Pauly had been able to arrive at the sufficiently high clinical suspicion which would result in him transferring the patient to Wichita or some other facility back on May 2nd or any time during the month of May, we can say that the baby probably would have lived, then; would that be fair to say?
“A. I think there would have been — of course, there would have been a greater chance. Even if the diagnosis was made before the baby developed enterocolitis, and there’s always some risk to doing the surgery, there’s always some risk even then of developing enterocolitis and having not survived it, so yes, I think it would be a fair statement to say the baby probably would have done better, but that is by no means a certainty.
“Q. We can look at the different steps along the way in terms of attempting diagnosis and we can’t be sure that- — whether or not doing any of those would have resulted in more timely diagnosis, but if, in fact, we are to assume that the baby gets a referral to a pediatric surgeon for a biopsy which is done sometime in the month of May and the diagnosis of Hirschsprung’s is made in the month of May and the surgery is undertaken and completed in the month of May, then other than the risk factors associated with surgery, the baby would probably live; correct?
“A. Yeah, probably would have survived if the diagnosis could have been made prior to June the 10th.”
Likewise, the deposition testimony of Anderson, a family practice physician, included the following:
“Q. But certainly as it relates to this case, if there had been some reason to have done further studies and the diagnosis could have been made before the onset of the enterocolitis, then we would have saved this child’s life; is that correct?
“A. That would be the hope, that’s right.
"Q. Well, not only the hope, but probably the expectation, correct?
“A. As you start to do studies and, you know, Dr. Pauly had a list of studies that he would have done if the barium enema, the gastrograph and enema had not been, quote, normal, and if the baby had not grown then well, then Dr. Pauly would have arranged for other studies. Every time you do a study, there’s a risk of injury. There’s a risk of tire study coming back and giving you bad information.
“And what you’re saying is right that if we had had the diagnosis and the surgery had been done and the baby had survived surgery, which doesn’t always happen, then that baby could live to be 80 years old and have a good full life. But it takes everything working well at each of those steps, and I think those of us in this area are aware of the difficulty.
“The biopsy to diagnose Hirschsprung’s disease is a difficult biopsy to do and interpret, and so you would hate to do the biopsy, get incorrect information and then operate on a baby that didn’t need to have an operation. And that has happened on occasion. So yes, if everything had gone well, then this baby could be alive today.
“Q. Probably would be alive today?
“A. I would say even probably, I would agree with that.”
Grudging admissions are still admissions, and the evidence given with obvious reluctance by these two defense experts, in addition to the Pickert testimony discussed above, meant plaintiffs should have survived Pauly’s motion. They came forward with adequate admissible causation evidence, and the district court erred in refusing to consider it.
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Marquardt, J.:
The Kansas Energy Group (KEG) appeals the order of the Kansas Corporation Commission (KCC) to distribute refunds of unlawfully collected ad valorem taxes to qualified low-income residential customers. We affirm.
In January 1999, Kansas Gas Service Company (KGS) submitted a proposal for the distribution of the ad valorem tax refunds for the years 1983-1988 that were mandated by the Federal Energy Regulatory Commission (FERC). The primary proposal involved the allocation of 26.16% of the tax refunds to certain designated KGS customers. These customers were mainly large industrial users. The remaining 73.84% of the ad valorem tax refunds were to be distributed to residential, general sales, and transportation customers. Large commercial class members were not to receive any portion of the remaining 73.84% refund.
The staff of the KCC recommended that the KGS proposal be adopted. On December 17,1999, the KCC ordered that whenever possible, an attempt should be made to distribute the refunds to the customers who paid the taxes. The KCC order stated that any party could file a petition for reconsideration within 15 days of the date of the order. However, it does not appear that any party to this litigation submitted a petition for reconsideration.
As the local distribution companies (LDCs), including KGS, were finalizing their proposals for the distribution of the ad valorem tax refund, Kansas was hit with one of the coldest winters in recent history and natural gas prices rose to the highest levels in years. Especially hard hit were low-income persons and those with fixed incomes.
In response to this crisis, KGS filed a motion in December 2000, seeking to amend the distribution plan ordered by the KCC on December 17,1999, so that the refunds would be paid to low-income residential customers who suffered most because of the combination of cold weather and high gas prices. Its motion requested that no funds be distributed “until the litigation associated with the Ad Valorem Tax cases at the FERC and various appeals courts were completed.”
In Januaiy 2001, the Kansas House of Representatives passed H.R. No. 6006 and the Kansas Senate passed S.R. No. 3.808, which urged the KCC to order that all ad valorem tax refunds be distributed to households with an income below 300% of the poverty level. The KCC approved an amended distribution plan so that only households with an income below 300% of the poverty level would be eligible for a refund.
After this change in the KCC’s order, several companies, including KEG, petitioned the KCC for reconsideration of this mod ified distribution plan. KEG argued that distributing the ad valorem tax refunds to low-income residential customers constituted an unconstitutional taking of property and was otherwise illegal because KEG had paid the taxes.
On appeal, KEG claims that the KCC erred when it: (1) refused to give a refund to the customers who paid the charges; (2) engaged in retroactive ratemaking; (3) violated the fundamental rule of public utility law that one class of customers must not bear the burden of costs of another class; (4) engaged in unreasonable discrimination and undue preference; (5) applied the PGA and COGR tariff unreasonably, arbitrarily, capriciously, and unlawfully; and (6) reversed a prior final and nonappealable order. The first five of these issues are identical to those raised in Farmland Industries, Inc. v. Kansas Corporation Comm'n, 29 Kan. App. 2d 1031, 37 P.3d 640 (2001) (opinion written to include Kansas Industrial Consumers v. Kansas Corporation Comm’n, No. 87,500). Accordingly, we incorporate our November 21, 2001, order in those cases by reference and, in accordance with Rule 7.041 (2001 Kan. Ct. R. Annot. 48), affirm the KCC’s order authorizing distribution of ad valorem tax refunds to the designated low-income customers as to those issues.
KEG also argues that the KCC erred by reversing a final order that had been in existence for more than 1 year. Without citation to a statute or case law, KEG argues that the challenged order “reaches far beyond the realm of reasonableness” because it allowed the KCC to rescind its December 1999 order.
KEG cites Cal. Mfrs. Assn v. Public Utilities Com., 24 Cal.3d 836, 157 Cal. Rptr. 676, 598 P.2d 836 (1979), and Providence Gas Co. v. Burke, 119 R.I. 487, 380 A.2d 1334 (1977), as support for its position that the KCC is not allowed to alter a final order.
The California case is clearly distinguishable because California has a statute that details how the distribution of refunds is to be handled. Kansas has no statute that details a procedure for the distribution of refunds. The Rhode Island case is distinguishable because Rhode Island’s statute did not give its Public Utilities Commission the power to do what it did. There is no statute in Kansas that prohibits the KCC from ordering distribution of the ad valorem tax refund to low-income individuals.
According to K.S.A. 2000 Supp. 66-1181, all orders or decisions of the KCC become effective upon service of the order or decision, unless otherwise ordered, or unless a stay is granted. Such orders are considered conclusive as to the matters involved. A “final order” has been defined as one that terminates the litigation on the merits and leaves nothing to be done except to enforce the result. In an administrative setting, a final order needs to be more than a mere procedural ruling, and “finality” should be interpreted in a pragmatic way. Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 22 Kan. App. 2d 410, 418, 916 P.2d 76, rev. denied 260 Kan. 994 (1996).
In its plan for distribution of the ad valorem tax refunds filed on January 15,1999, KGS recognized that the payment of the refunds plus interest was still being litigated at the FERC and in the appellate courts.
The KCC order of December 17, 1999, stated that KGS’s Alternative 1 distribution plan was approved with clarification. The order stated that “the parties should retain these refunds in the Commission-approved accounts pending final disposition by issuance of a final order, no longer subject to any appeal or petition for review, in the Anadarko case as requested by KGS.” See Anadarko Petroleum Corp. v. F.E.R.C., 196 F.3d 1264 (D.C. Cir.1999), cert. denied 530 U.S. 1213 (2000).
On May 3, 2001, the KCC ordered that the refund be paid only to residential gas customers who have a family income below 300 percent of the federally defined poverty level. The refund would be credited to the customer s bill. In its findings of fact, the KCC recognized that the December 17, 1999, order held the distribution in abeyance until the Anadarko litigation determined what monies would be available for distribution.
An order which delays distribution of money pending the outcome of other litigation is not a final order. Because the December 17, 1999, order was not a final order, the KCC had the authority to modify its order.
Affirmed. | [
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PlERRON, J.:
Jose Hernandez appeals the decision of the Workers Compensation Board (Board) that he did not qualify for a work disability.
At the time of the regular hearing in this case, Hernandez had been employed by Monfort, Inc. (Monfort) for 5% years. In October 1996, as part of his job, Hernandez was on the kill floor pulling barrels weighing over 200 pounds and filled with hocks. He developed pain in his back that was unbearable. Hernandez went to his own physician, Dr. Oppliger, who diagnosed a lumbar strain. Restrictions were put on Hernandez’ work until November 1996.
In July 1997, Hernandez began having more pain during his job. This time, the' pain was isolated in his buttocks and legs. He was referred to Dr. Gilbert who ran an MRI, which indicated a herniated disc at the L-4-L-5 area of his back. Dr. Gilbert referred Hernandez to Dr. Abay who recommended surgery as a course of treatment. August was also the month Hernandez filed his application for a hearing with the Division of Workers Compensation.
Hernandez underwent surgery in February 1998 and was released to return to work in April 1998. Hernandez testified that when he returned to work, his work hours and, therefore, his pay had been reduced.
The Board found Hernandez had not proven a connection between his injury and the fact he now earns less than 90% of his pre-injury gross average weekly wage. The Board attributed this decrease in wage to be a result of Hernandez working less overtime hours. As a result, the Board held Hernandez was not entitled to a work disability.
The finding a claimant is not entitled to a work disability is a negative finding. Such findings are not to be disturbed “absent an arbitrary disregard of uncontroverted evidence or an extrinsic consideration such as bias, passion, or prejudice.” Parsons v. Seaboard Farms, Inc., 27 Kan. App. 2d 843, 848, 9 P.3d 591 (2000).
The crux of Hernandez’ contention is that the Board erred in ruling he was not entitled to a work disability even though it found he was now making less. Monfort asserts there is no entitlement to a work disability simply because an employee earns less than 90% of his or her pre-injury wage when the reason for the decrease is not related to an injury. Here, Monfort maintained tire reason Hernandez was making less was a decrease in work hours available due to the overall economic situation.
The Board stated:
“Intrinsic to the [Workers Compensation] Act is a requirement that there be some type of causal connection or nexus between the injury and the disability for which the benefits are being awarded. The injury must arise out of the employment. [Citation omitted.] In the case of work disability this requires, in our view, a nexus between the injury and both the task loss and the wage loss. K.S.A. 44-510e. . . . On its face, the language of the statute suggests the reason for the change in pay is irrelevant. Nevertheless, the Board believes the fundamental function and purpose of the Act requires that there be a nexus between die injury and the wage loss before that loss can be a factor used to calculate the amount of benefits.”
Kansas case law offers several examples of workers compensation claimants who earned less than 90% of their pre-injury wage but did not receive work disability. For instance, in Perez v. IBP, Inc., 16 Kan. App. 2d 277, 279, 826 P.2d 520 (1991), Perez was not awarded work disability because he returned to the same work fot the same wage after his injury. And in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev denied 257 Kan. 1091 (1995), this court rejected arguments by Foulk she should be awarded work disability even though she refused to accept a position she could handle at a wage similar to the one she earned before her accident.
The Board noted that Hernandez’ case was unusual in that he returned to work with restrictions but continued to earn an hourly rate of pay that was never less than 90 percent of the pre-injuiy hourly rate. “This unique factual situation warrants a finding that [Hernandez] has not sustained a wage loss because the wage reduction is based upon economic factors affecting all of [Monfort’s] employees and not just [Hernandez].”
Hernandez asserts four reasons why the Board’s decision was incorrect. The first reason cited was that the Board’s decision ignores the alleged plain language of K.S.A. 44-510e. Under K.S.A. 44-510e(a), a claimant
“shall not be entitled to receive permanent partial general disability compensation [work disability] in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury."
K.S.A. 44-510e(a) is not a guarantee of work disability. The statute only says that a claimant cannot receive work disability in excess of the functional impairment rating if she or he is earning 90% or more of what was earned before the injury. The statute does not state the claimant shall be awarded work disability when making less than 90% of what was earned before the injury, only that he or she cannot be awarded work disability under a certain circumstance. Hernandez’ argument fails.
The second reason asserted was that the Board’s decision was inconsistent with Kansas case law. As discussed above, the Board’s decision is in line with this court’s decisions in Perez and Foulk. Hernandez cites Lee v. Boeing Co., 21 Kan. App. 2d 365, 899 P.2d 516 (1995), as bolstering his claim. Lee worked for Boeing when he was injured. After the injury, Lee was laid off. However, at the time of the layoff, Lee’s earnings were comparable to what they were before the injury.
Lee presented testimony his wage decreased after the layoff and that his ability to earn a comparable wage was lost. This is where Lee and Hernandez part paths. Hernandez’ hourly rate of pay did not ultimately decrease after tire injury and there was never evidence presented he could not earn a comparable wage to the wage he earned before the injury. Lee can be distinguished, and Hernandez’ argument fails.
Next, Hernandez asserts the Board’s decision was in error because it is inconsistent with the bright line 90% rule adopted by the legislature. This argument puts the proverbial cart before the horse. Hernandez assumes the 90% mark approved by the legislature is a bright line from which anything below must receive work disability. As discussed above, however, this is not a bright line rule under the Kansas courts’ interpretation of the statute. There will be some instances when a less than 90% rating does not yield work disability. See Perez and Foulk.
Finally, Hernandez asserts the Board’s decision was incorrect because it was inconsistent with other provisions of 44-501 et seq. Hernandez’ argument here concerns pre-and post-injury wage calculation. This argument is unrelated to the question of Hernandez’ work disability and Monfort’s work decisions.
There is no evidence in the record on appeal that the Board had the required bias, passion, or prejudice that would be needed to disturb this negative finding. As discussed below, there was substantial competent evidence to support the Board’s finding that Hernandez’ wage loss was based on Monfort’s business decision to eliminate overtime. As such, the Board had evidence to support its finding that Hernandez was not entitled to work disability. Hernandez’ arguments to the contrary fail.
The next issue is whether there was substantial competent evidence to support the Board’s finding that Hernandez’ wage loss was based on Monfort’s decision to eliminate overtime.
“As to questions of fact, the appellate court reviews the record only to determine whether it contains substantial evidence to support the trial court’s finding, and in doing so all the evidence is reviewed in lie light most favorable to the prevailing party below. Only in the event the evidence is undisputed is the question one of law for appellate review. [Citation omitted.]” Lawrence v. Cobler, 22 Kan. App. 2d 291, 294-95, 915 P.2d 157, rev. denied 260 Kan. 994 (1996).
According to the Board,
“[Monfort] argues and the record supports the contention that the reduction of [Hernandez’] gross average weeldy wage was due to the reduction in the amount of [Hernandez’] overtime. The human resources director testified that, for financial reasons, there were efforts to reduce the amount of overtime and almost all unscheduled overtime at the plant had been reduced. It is significant to note this reduction in overtime was plant wide and not just limited to [Hernandez]. Moreover, the human resources director’s uncontradicted testimony was that because of changed job duties a [supervisor like Hernandez] no longer works more hours than the employees he supervises.
“Following his surgery, [Hernandez] returned to work on the slaughter side of [Monfort’s] plant. When [Hernandez] returned to work his hourly rate of pay fluctuated but was never less than 90 percent of the pre-injuiy hourly rate of pay. With pay raises [Hernandez] was earning a higher hourly rate at the time of the regular hearing than his hourly rate at the time of the accident. The uncontroverted testimony was that [Hernandez] was physically able and did work any available overtime. The evidence establishes that the current reduction in [Hernandez’] gross average weekly wage is not related to his restrictions imposed because of his work-related accident but is instead related to his employer’s economic business decisions.”
Hernandez argues that the testimony of Monforfs own witness demonstrates there was not a plant-wide elimination of overtime. Monfort did not address this issue in its brief.
William LaMarr, Human Resource Director for Con-Agra, was deposed on this issue. In his position, he compiled records of personnel at the Garden City plant, including payroll and hours worked. LaMarr testified Hernandez began working for Monfort in March 1992 and continued to work there at the time of the deposition. Prior to LaMarr’s arrival at the plant, overtime was not being managed correctly. Since LaMarr’s arrival, there was a “[vjery strong focus on the reduction of overtime, very strong.” When asked if the plant had been able to reduce overtime, LaMarr responded, ‘We have just almost completely eliminated all unscheduled overtime in this plant.” Unscheduled overtime, as opposed to scheduled overtime, occurs when a portion of the assembly line process breaks down and certain workers are needed to correct the problems. Although LaMarr testified he did not have any knowledge about Hernandez being denied overtime since returning to work after his surgery, LaMarr did say Monfort did not have a policy of keeping injured workers from working overtime.
At the time of the accident in October 1996, Hernandez was earning $10.40 per hour as the lead person on the kill floor. And, for example, from the time of the accident in October 1996 to 1 year later, Hernandez worked over 110 hours of overtime. At the time of the regular hearing in December 1999, Hernandez was actually earning more per hour — $10.50—because of pay raises. For approximately 10 months before the regular hearing, Hernandez worked only about 8 hours of overtime. As a result, Hernandez’ weeldy wage did decrease.
However, Hernandez was unable to present any information to refute Monfort’s assertion the decrease in his weeldy wage was because of a plant-wide decrease in overtime. There was substantial competent evidence, especially with the testimony of LaMarr, that the decrease was because Monfort was trying to reduce overtime and not because Hernandez had been injured.
Finally, we must determine if the Board erred in computing Hernandez’ weekly wage. Hernandez contends the Board erred in using a 48-hour work week as opposed to a 35-hour work week in computing his weekly wage. Monfort argues the Board had to use the 48 hours to compute the post-injury wage because it used 48 hours to compute the pre-injury wage.
This issue involves statutory interpretation, over which this court has unlimited review. While an appellate court gives deference to the Board’s interpretation of the law, if such interpretation is interpreted or applied erroneously, the court may grant relief. Burton v. Rockwell International, 266 Kan. 1, 5, 967 P.2d 290 (1998).
K.S.A. 44-511(b)(4)(B) addresses the computation of a full-time hourly employee’s average gross weekly wage. The statute states in relevant part:
“(i) A daily money rate shall first be found by multiplying the straight-time hourly rate applicable at the time of the accident, by the customary number of working hours constituting an ordinary day in the character of work involved; (ii) the straight-time weeldy rate shall be found by multiplying the daily money rate by the number of days and half days that the employee usually and regularly worked, or was expected to work, but 40 hours shall constitute the minimum hours for computing the wage of a full-time hourly employee, unless the employer’s regular and customary workweek is less than 40 hours, in which case, the number of hours in such employer’s regular and customary workweek shall govern; (iii) the average weekly overtime of the employee shall be the total amount earned by the employee in excess of the amount of straight-time money earned by the employee during the 26 calendar weeks immediately preceding the date of the accident, or during the actual number of such weeks the employee was employed if less than 26 weeks, divided by the number of such weeks; and (iv) the average gross weekly wage of a full-time hourly employee shall be the total of the straight-time weekly rate, the average weekly overtime and the weekly average of any additional compensation.”
The Board determined Hernandez’ gross average weekly preinjury wage to be $579.26 and his gross average weekly post-injury wage to be $504. The pre-injury wage was assigned by multiplying Hernandez’ hourly rate at the time of the accident ($10.40) by 48 weeks (8 hours a day, 6 days a week), arriving at a figure of $499.20. The Board then added up the overtime Hernandez worked during the 26 calendar weeks immediately before the accident. The answer of $2,081.67 was divided by 26, yielding $80.06. The $80.06 was then added to $499.20, giving a straight-time weekly wage plus overtime of $579.26.
The gross weekly post-injury wage was determined by multiplying $10.50 by 48, yielding $504.
Hernandez argues a 35-hour work week should have been used in computing his weekly wage instead of a 48-hour work week. At the regular hearing, Hernandez testified as follows:
“Q. And the workers you supervised were normally scheduled to work five days a week?
“A. Yes, six — five, sometimes six.
“Q. You yourself would normally be scheduled to work five days per week? “A. Also.
“Q. And sometimes you would work six?
“A. Yes, sometimes.”
The Board found:
“The uncontradicted testimony in this case is that [Monfort’s] employees are told when hired that they work Monday through Saturday and that they must keep Saturdays open and available for work. Further, it was [Hernandez’] uncontrad icted testimony that he did work on some Saturdays. [Monfort] did not proffer any exhibits detailing how frequently [Hernandez] was required to work a six-day week. It is therefore the Board’s determination that [Hernandez] has met his burden of proof to establish that he worked a 6-day work week and his average weekly wage should be computed on the basis of a 48-hour work week.”
Under K.S.A. 44-511(b)(4)(B), 40 hours is supposed to be the minimum hours for calculating the wage of a full-time hourly employee like Hernandez. The hours for the calculation can be less than 40 only if “the employer’s regular and customary workweek is less than 40 hours.” Since Hernandez is arguing for a 35-hour work week, he must demonstrate the employer’s regular and customary work week is less than 40 hours.
LaMarr testified about Monfort’s contract with the union, of which Hernandez, was a member. The contract contained agreements about pay and the number of hours guaranteed to a full-time employee.
“A. The standard [number of hours worked] is 34 hours a week. We are able to reduce that a certain number of times down to 32.
“Q. But you — your normal work week is 40 hours; is that correct?
“A. We — our goal is to work actually 48 hours a week, but we’re not able to achieve that at this time.”
LaMarr later stated any hours worked over 40 were counted as overtime.
It should be noted the contract between Monfort and the union mentions the 34 hours as a guarantee of at least what the employee will be working. The actual part of the contract dealing with hours of work lists the basic work week as 40 hours.
The Board erred in calculating Hernandez’ pre-and post-injury wage with 48 hours. According to the Board, it based its decision that Hernandez worked a 48-hour week based on his own testimony. However, Hernandez testified he normally worked 5-day weeks and sometimes worked 6-day weeks. In addition, the contract between Monfort and the union indicates the basic work week is 40 hours, not 48.
The case must be remanded to the Board with instructions to calculate Hernandez’ pre-and post-injury wage using a 40-hour work week instead of a 48-hour work week.
Affirmed in part, reversed in part, and remanded with directions. | [
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Beier, J.:
The Employment Security Board of Review (Board) and Mark Brown seek review of district court rulings that an appeal filed by Transam Trucking (Transam) was timely and that Transamos account would not be charged with unemployment benefits paid to Brown. We agree Transam’s appeal was timely but reverse and remand to the district court with directions that it remand to the Board to make further findings on the merits of the dispute.
Brown applied for benefits after being discharged from his employment as a truck driver with Transam. Transom let Brown go pursuant to a company policy requiring termination when an employee had been involved in more than two preventable accidents within 3 years.
Brown acknowledged having three accidents. The first was a rollover. Brown said this accident occurred when he hit something in the road and the load in the truck shifted, causing him to lose control. Brown was not ticketed for this accident. The second accident occurred when a vehicle passed Brown and then cut in front of him. Brown could not stop in time and rear-ended the vehicle. Brown was ticketed for this accident. The third accident occurred when Brown was backing up to park the truck, did not see another vehicle in his mirrors, and hit it. Brown was not ticketed for this accident. All three of the accidents occurred within 1 year.
The hearing examiner concluded Brown was not disqualified from receiving benefits because the evidence was insufficient to establish that his discharge was the result of a violation of a duty or obligation reasonably owed to the employer as a condition of employment. In the examiner’s view, misconduct had not been established under K.S.A. 2001 Supp. 44-706(b). Transam appealed the examiner’s decision.
The referee held Transam had not shown misconduct as defined in the statute and affirmed the decision of the hearing examiner. In so ruling, the referee found the evidence did not show an intentional act or conduct over which Brown had control sufficient to meet the definition of misconduct. The referee also found Brown’s apparent lack of ability to drive safely did not necessarily translate into intentional conduct.
The Board adopted the findings of fact and decision of the referee and affirmed. The opinion of the Board stated the mailing date for its decision was December 19, 2000. It further stated the Board’s decision would become final 16 days after the mailing date and, if the aggrieved party desired to appeal, its notice must be filed in the district court within 16 days.
Transam filed its notice of appeal and petition for judicial review of the Board’s decision on January 8, 2001, 20 days after the December 19, 2000, mailing date. The Board moved to dismiss the appeal for lack of jurisdiction. The district court found the appeal timely, holding that Transam was entitled to an additional 3 days beyond the 16 to file its appeal because it was served with the Board’s opinion by mail. Because the 19th day fell on a Sunday, filing on the 20th day was sufficient.
The district court tiren heard arguments on the merits. At the close of arguments, the district court observed the referee’s decision relied on K.S.A. 44-706(b)(4) for the proposition that “the individual shall not be disqualified if the individual made a good faith effort to do the work but was discharged due to isolated instances of ordinary negligence or inadvertence.” This was a correct statement of the law applicable to the case. However, the court then noted the referee applied an old version of K.S.A. 44-706(b)(1) when it stated the evidence did not show an intentional act or conduct over which Brown had control sufficient to constitute misconduct under the statute. The Board’s counsel conceded that an earlier requirement for intentional conduct had been removed from the statute.
Ultimately the district court proceeded on its own, finding evidence in the record made it apparent there was misconduct, i.e., a violation of a duty reasonably owed as a condition of employment under both common law and contract. It therefore reversed the decision of the Board. Transam’s account would not be charged for unemployment compensation paid to Brown.
Timeliness of Transam’s Appeal to District Court
Unless Transam’s notice of appeal was timely filed in district court, the court lacked jurisdiction. If the district court lacked jurisdiction, so do we. In re Habeas Corpus Application of Horst, 270 Kan. 510, 515, 14 P.3d 1162 (2000). We review jurisdictional questions de novo. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
K.S.A. 44-709(i) provides as follows:
“Court review. Any action of the board is subject to review in accordance with the act for judicial review and civil enforcement of agency actions .... In the absence of an action for such review, the action of the board shall become final 16 calendar days after the date of the mailing of the decision.”
We must decide how the statute’s reference to the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., interacts with its implied 16-day time limit for appeal. The issue is determinative in this case because KJRA allows 3 days’ additional time when a party is required to do some act within a prescribed period after service of an order by mail. K.S.A. 77-613(e). If an additional 3 days was permitted here, Transam’s appeal to tire district court was timely. If not, it was too little too late.
The parties have urged us to compare this case to Jones v. Continental Can Co., 260 Kan. 547, 920 P.2d 939 (1996), and Keithley v. Kansas Employment Security Bd. of Review, 23 Kan. App. 2d 732, 935 P.2d 1060 (1997).
In Jones, the Supreme Court considered the 3-day rule in the context of a workers compensation case. There, the Fund appealed a Board order issued on September 29 by filing a notice of appeal on November 1. The respondent and insurance carrier contended the Fund’s appeal was untimely because it was not filed within 30 days of the date of the Board’s final order. The Fund contended its appeal was saved by the 3-day mail rule. 260 Kan. at 550.
The court ultimately sided with the respondent and insurance carrier. The 3-day mail rule did not apply in workers compensation cases. 260 Kan. at 558-59. In so ruling, the court discussed the history of the changes to tire applicable workers compensation provision, K.S.A. 44-556. Specifically of concern was a 1993 change adding back into 44-556(a) an express, affirmatively stated 30-day time limit for filing a notice of appeal. The court concluded the passage in 44-556(a) was intended to substitute for the period provided for in KJRA and rendered it inapplicable. 260 Kan. at 556. This result, the court said, was consistent with the rule that a statute providing for a specific appeal controlled over broader statutes concerning the general right to appeal. 260 Kan. at 557.
In Keithley, an unemployment case, the panel examined the timeliness of an appeal of a referee’s decision to the Board. Appellant was 1 day beyond the 16-day period set forth in K.S.A. 44-709(c) and argued the K.S.A. 3-day mail rule applied. 23 Kan. App. 2d at 733. Because the appeal was to the Board rather than from the Board to the district court, a different subsection of 44-709 applied. It read in pertinent part:
“The decision shall be final, notwithstanding the provisions of any other statute, unless a further appeal to the board of review is filed within 16 calender days after the mailing of the decision to the parties’ last known addresses or, if notice is not by mail, within 16 calendar days after the delivery of the decision.” K.S.A. 44-709(c).
The Keithley panel found this subsection specifically provided the method for computing the applicable appeal time and affirmed the district court’s ruling that filing of a notice of appeal beyond the 16-day period was fatal. 23 Kan. App. 2d at 735.
This case is distinguishable from both Jones and Keithley. Jones dealt with workers compensation rather than unemployment. The statute under consideration in Jones is similar to that under consideration here because both make administrative board actions subject to review in accordance with the KJRA. However, the workers compensation statute in Jones contained an affirmatively stated 30-day deadline for appeal. The same is true of subsection (c) of 44-709 in Keithley; the statute affirmatively stated the time limit for appeal.
Furthermore, in Keithley, subsection (c) had no potentially contrary language referencing the KJRA. Indeed, it instead included the phrase “notwithstanding the provisions of any other statute,” reinforcing the interpretation that the law governing appeals began and ended there. In contrast, the statute applicable to the appeal before us here, K.S.A. 44-709(i), does not affirmatively state a time limit for appeal. It simply implies a 16-day limit. It also specifically makes appeals from the Board to the district court subject to the provisions of the KJRA.
Our review of pertinent historical legislative amendment of the statute also offers us limited guidance. Before 1986, this subsection of the statute did not reference the KJRA, and it affirmatively set a 16-day time limit for filing of notices of appeal. K.S.A. 1985 Supp. 44-709(i)(l), (2). In 1986, the legislature added the KJRA language and altered the tone and arrangement of the 16-day language to its current, less explicit form. See K.S.A. 44-709(i) (Ensley 1986).
After careful review of these authorities and the parties’ arguments, we conclude that K.S.A. 44-709(i) incorporates any provisions of KJRA not contrary to it. We are not comfortable reaching out to rule that the time limit for appeal is something longer than 16 days, as some would suggest the amendment from an affirmatively stated deadline to the implicit deadline of today demands. We are willing, however, to conclude that KJRA’s 3-day mail rule applies when calculating the notice of appeal deadline in the district court. If the reference to the KJRA means anything, it must mean that consistent passages in that Act are grafted onto K.S.A. 44-709(i). Litigants may thus rely upon them and must be protected when they conform their conduct to them. Transam’s filing of its notice of appeal from the Board’s decision was timely when filed on the 20th day after the mailing date for the Board’s decision, given that the 19th day was a Sunday.
Charging of Transam’s Account
We review the Board’s decision on the merits in the same manner as the district court. If the entire record reveals substantial evidence to support the agency’s findings of fact and the agency’s action is legally authorized, it is presumed valid unless it is so wide of the mark as to be arbitrary and capricious. See Farmers Co-op Elevator v. Kansas Employment Security Bd. of Review, 25 Kan. App. 2d 567, 571-72, 966 P.2d 699, rev. denied 266 Kan. 1108 (1998) (review of final Board order under Employment Security Act).
The Board, through its adoption of the referee’s findings, concluded Brown’s actions did not constitute “misconduct.” “Misconduct” disqualifying a claimant from receiving unemployment benefits is correctly defined as “a violation of a duty or obligation reasonably owed the employer as a condition of employment.” K.S.A. 2001 Supp. 44-706(b)(l). An individual cannot be disqualified for misconduct if the individual was making a good faith effort to do the assigned work but was discharged due to inefficiency; unsatisfactory performance due to inability, incapacity, or lack of training or experience; isolated instances of ordinary negligence or inadvertence; good faith errors in judgment or discretion; or unsatisfactory work or conduct due to circumstances beyond the individual’s control. K.S.A. 44-706(b)(4)(B).
Here, the problem arises because the specific findings of the referee, later adopted by the Board in its decision, relied on an outdated legal definition of “misconduct” from an earlier version of K.S.A. 44-706(b)(l). See K.S.A. 44-706(b)(l) (Furse 1993). The referee stated:
“The evidence does not show an intentional act and conduct over which the claimant had control sufficient to meet the requirements for the definition of misconduct. The fact that the claimant appeared to lack ability to drive safely does not necessarily translate into an intentional conduct over which the claimant had control for the purpose of meeting the definition of misconduct.”
The district court recognized this infirmity in the referee’s findings and the incorporation of this infirmity in the Board’s decision. Rather than remanding to the Board for appropriate additional findings pursuant to the authority granted the Board in K.S.A. 44-709(f)(6), however, the district court simply entered its own finding that the current definition of “misconduct” was met by evidence of “violation of a duty or obligation reasonably owed the employer as a condition of employment.” K.S.A. 44-706(b)(l).
The district court overstepped. A district court reviewing the Board’s decisions may grant relief only on the grounds set forth in K.S.A. 77-621(c). Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, 431, 885 P.2d 1233 (1994). These grounds include the agency’s erroneous interpretation or application of the law. K.S.A. 77-621(c)(4).
Here, the district court was within its authority to recognize the agency had erroneously applied K.S.A. 44-706(b)(l) (Furse 1993) and to grant relief, but it should have remanded for further Board findings under the proper standard. Neither the district court nor this court has de novo review of this matter. See Karns v. Kansas Bd. of Agriculture, 22 Kan. App. 2d 739, 748, 923 P.2d 78 (1996) (review of agency decisions by district court, appellate court based on substantial evidence). The district court was not free to substitute its own findings for those of the Board or referee.
Reversed and remanded to the district court with directions that it remand to the Board to make further findings on the merits of the dispute. | [
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Wahl, J.:
Defendants Michael Leon Gordon and James R. Scribner separately appeal the district court’s rulings extending their probation terms. Each argues that the district court violated his statutory procedural rights by improperly extending probation without holding a hearing and by extending probation beyond the statutory limit of 5 years. Each also contends that the district court violated his constitutional rights by failing to hold a hearing and by basing the extension of probation upon his failure to pay restitution. The two cases have been consolidated for appeal.
While the cases involve many of the same issues, different circumstances and events led to those issues. Hence, the salient facts of each case will be set out separately.
State v. Michael Leon Gordon, No. 86,624
On July 21, 1995, Gordon entered a plea of guilty to a count of attempted theft, a severity level 10 felony. Gordon had a criminal history of “C.” The district court sentenced Gordon to an underlying sentence of 9 to 11 months but granted a downward dispositional departure, suspending the prison sentence in favor of 24 months’ probation. The condition of probation included the payment of $13,286.69 in restitution payable at the rate of $100 per month beginning on November 1, 1995.
The State moved to revoke Gordon’s probation on March 21, 1996. After a hearing on May 2, 1996, the district court granted Gordon’s request and reinstated probation for an additional 24 months. Gordon was to make monthly restitution payments.
On May 28, 1998, the State filed a motion to revoke Gordon’s probation on the ground that he was delinquent in his restitution payments. On July 10, 1998, a hearing was held on the State’s motion. The district court found a violation of the conditions of probation, but again reinstated the probation for an additional 24 months.
By July 10, 2000, Gordon had not completed payments of his restitution and court costs, so the Johnson County Department of Corrections requested an extension of his probation until restitution payments were completed. The district court, without holding a hearing, ordered that Gordon’s probation would continue so long as his restitution was still unpaid.
State v. James R. Scribner, No. 86,625
On October 27,1994, James R. Scribner entered a plea of guilty to one count of attempted theft, a severity level 10 felony. Scribner had a criminal history of “C.” On February 2, 1995, the district court sentenced Scribner to an underlying sentence of 6 months but suspended the sentence in favor of 36 months’ probation. One of the conditions of probation was payment of $8,801 in restitution plus court costs, all to be paid in monthly payments of $100.
On May 17,1996, the court, after a hearing on the State’s motion to revoke Scribner’s probation, revoked probation, then reinstated probation for an additional 36 months. Again, the court ordered Scribner to malee restitution payments of $100 per month.
On June 25, 1996, a bench warrant was executed for Scribner’s arrest due to alleged violations of his probation. On October 24, 1997, after a hearing, the court again revoked and reinstated probation, extending it another 36 months. Scribner was ordered to make restitution payments of $100 per month.
On December 17, 1998, the State filed a motion to revoke probation. This motion was later withdrawn at the request of the State. An order to show cause why probation should not be revoked was issued on July 26, 1999, but it was later withdrawn.
On August 25, 2000, Scribner was ordered to appear on a State’s motion to extend his probation. On August 28, 2000, based upon a request from the Johnson County Department of Corrections, the district court entered an ex parte order extending Scribner’s probation until October 24, 2002, or until he paid the remaining balance of the restitution ordered.
On October 19, 2000, Scribner requested the district court for a discharge from his probation. Gordon followed with his motion for discharge from probation on October 27, 2000. After a joint hearing, the district court denied the motions of both defendants. The defendants appealed and their cases have been consolidated for this appeal.
Although neither the defendants nor the State raises the issue, a review of the record indicates a problem with this court’s jurisdiction to consider the appeal. If the record on appeal reveals a potential lack of jurisdiction for the appeal, the appellate court has a duty to question jurisdiction upon its own initiative. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). The existence of jurisdiction is a question of law over which an appellate court has unlimited review. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
After the State moved to revoke Gordon’s probation, the district court reinstated the probation for 24 months on May 2,1996. Gordon’s term of probation ended on May 2, 1998. The State did not file its next motion to revoke probation until May 28, 1998.
For a district court to retain jurisdiction to revoke probation, the revocation proceedings must be initiated within the probation period. In State v. Ferguson, 271 Kan. 613, 617, 23 P.3d 891 (2001) (citing State v. Williams, 20 Kan. App. 2d 142, 884 P.2d 743 [1994]), the Supreme Court stated: “[I]tis well established in Kansas that a trial court has jurisdiction to revoke probation as long as the proceedings are started before expiration of the probation term.” Such revocation proceedings are initiated by the filing of a warrant, petition, motion, or show cause order seeking the revocation of probation.
The motion to revoke Gordon’s probation was not filed within the probation period. The district court lost jurisdiction to revoke and reinstate Gordon’s probation as of May 2, 1998. Any subsequent order pertaining to Gordon’s probation is void ab initio. State v. Farmer, 16 Kan. App. 2d 419, 422, 824 P.2d 998 (1992).
The State argues that the case against Gordon was saved by K.S.A. 22-3716(d), which provides:
“The court shall have 30 days following the date probation, assignment to a community correctional service program, suspension of sentence or a nonprison sanction was to end to issue a warrant for the arrest or notice to appear for the defendant to answer a charge of a violation of the conditions of probation, assignment to a community correctional service program, suspension of sentence or a nonprison sanction.”
Upon a cursoiy reading, the Supreme Court holding in Ferguson appears to be in direct conflict with this statute, but they are wholly compatible. The pleading seeking the revocation of a defendant’s probation must be filed during the term of the probation. The court then has 30 days after the termination of the probationary period to cause the defendant to appear for a hearing. The State, however, may not wait to file for the revocation following the end of the term of probation.
Turning to Scribner’s appeal, although he divides his arguments that K.S.A. 2001 Supp. 21-4611(c) provides for a hearing and limits the duration of probation to a specified maximum term into two separate issues, both arguments involve the construction of the statute and will be addressed together. Interpretation of a statute is a question of law over which this court has unlimited review. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). Pertinent parts of K.S.A. 2001 Supp. 21-4611 read as follows:
“(c) For all crimes committed on or after July 1,1993, the duration of probation in felony cases sentenced for the following severity levels on the sentencing guidelines grid for nondrug crimes and sentencing guidelines grid for drug crimes is as follows:
(3) In felony cases sentenced at severity levels 9 and 10 on the sentencing guidelines grid for nondrug crimes and severity level 4 on the sentencing guidelines grid for drug crimes, if a nonprison sanction is imposed, the court shall order tire defendant to serve a period of probation, or assignment to a community correctional services program as provided under K.S.A. 75-5291 et seq., and amendments thereto, of up to 12 months in length.
(5) If the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided in subsections (c)(3) and (c)(4), the court may impose a longer period of probation. Such an increase shall not be considered a departure and shall not be subject to appeal.
(6) Except as provided in subsections (c)(7) and (c)(8), the total period in all cases shall not exceed 60 months, or the maximum period of the prison sentence that could be imposed whichever is longer. Nonprison sentences may be terminated by the court at any time.
(7) If the defendant is convicted of nonsupport of a child, the period may be continued as long as the responsibility for support continues. If the defendant is ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid.
(8) The court may modify or extend the offender’s period of supervision, pursuant to a modification hearing and a judicial finding of necessity. Such extensions may be made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term.
“(d) The provisions of subsection (c), as amended by this act, shall be applied retroactively. The sentencing court shall direct that a review of all persons serving a nonprison sanction for a crime in severity levels 8, 9 or 10 of the sentencing guidelines grid for nondrug crimes or a crime in severity levels 3 or 4 of the sentencing guidelines grid for drug crimes be conducted. On or before September 1, 2000, the duration of such person’s probation shall be modified in conformity with the provisions of subsection (c).”
K.S.A. 2001 Supp. 21-4611 establishes the framework upon which a district court imposes probation. Subsections (c)(1) and (c)(2) provide recommended probation terms for specified offenses. While a district court may impose a greater period of probation than the recommended term identified by these subsections, such a deviation from the recommended term is deemed a departure requiring the court to state, on the record, substantial and compelling reasons for the deviation from the recommended term. State v. Whitesell, 270 Kan. 259, 292-93, 13 P.3d 887 (2000).
Under the amendments to the statute implemented in May 2000, however, a district court may impose greater periods of probation for severity levels 8, 9, and 10 nondrug felony offenses and for severity levels 3 and 4 felony drug offenses upon a finding on the record “that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms.” K.S.A. 2001 Supp. 21-4611(c)(5).
Subsection (c)(7), dealing with the extension of probation to accommodate the payment of restitution, existed prior to the May 2000 amendments in former subsection (c)(4). The legislature could easily have amended the provision dealing with restitution to foreclose an appeal as it did with subsection (c)(5) but it chose to leave (c)(7) untouched.
A fundamental maxim of statutory construction is that where an amendment to a statute revises an existing provision, the courts construing the amendments should presume that the legislature intended to change the law. Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 471, 970 P.2d 60 (1998), cert. denied 528 U.S. 812 (1999). The corollary of that proposition is also true. Where the unambiguous language of the statute restricts an amendment to certain provisions within a statute and leaves other provisions unchanged, courts should presume that the legislature intended the effect of the unchanged provisions to be given the same effect they had been given prior to the effective date of the amendment.
This proposition is supported by the fundamental rule of statutory construction that the legislature is presumed to have expressed its intent through the language of the statutory scheme enacted. A court must give effect to the intent of the legislature expressed through the unambiguous language of the statute. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
Since (c)(7) remains unmodified by the 2000 amendment and since the legislature did not tie subsection (c)(7) to subsection (c)(5), it appears the legislature did not intend the jurisdictional limitations of subsection (c)(5) to apply when probation is extended to accommodate child support or restitution payments. The clear intent of the legislature was to provide the court with the authority to extend probation in all cases wherein restitution is ordered as a part of probation, not just those cases falling within the parameters of subsections (c)(3) and (c)(4).
Scribner argues that the statute provides for a hearing prior to the extension of probation for failure to complete restitution payments within the original probation term. We agree. Subsection (c)(8) specifically requires a “modification hearing and a judicial finding of necessity” for extensions of the probation. However, by the time the trial court entered the ex parte order extending Scribner’s probation until the restitution was paid, there was no real reason to bother. Scribner was first placed on probation on February 2,1995. His probation ended on February 2,2000. The order extending his probation for the payment of restitution was entered on August 28, 2000, — 6 months and 26 days too late and without a hearing.
When the district court originally sentenced the defendants in 1995, it could have properly set their probation at 5 years or it could have imposed an indefinite probation period pending the payment of restitution. At any time prior to the expiration of their probation terms and after proper notice and hearing, the probation periods could have been extended to accommodate the payment of the restitution ordered. In each case, the restitution extension was made too late and/or without a hearing.
The orders of the district court in both cases which purported to extend the probation of both defendants for payment of restitution were void because they were entered after the probation periods had terminated.
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MARQUARDT, J.:
Diane M. Alley (formerly Brotherton) appeals the trial court’s order holding her in indirect contempt of court. We affirm.
In December 1999, Diane filed a petition for dissolution of her marriage to Ricky L. Brotherton. The parties signed a property settlement agreement (PSA) that was incorporated into the journal entry and decree of divorce entered on July 26, 2000. The PS a divided the property of the parties and gave Diane the personal property that was currently in her possession. Photographs, photo albums, videotapes, and other family memorabilia were to be divided equally between the parties.
Among the items in Diane’s possession were: a grandfather clock made by Ricky’s father; a chest that belonged to Ricky’s grandmother; shovels that belonged to Ricky’s grandfather; rocks from the farm where Ricky was born; tools and a tool box; a nail box; and Navy memorabilia. Ricky claimed that these items were his pursuant to the terms of the PSA. Diane failed to give the items to Ricky.
On April 30, 2001, Ricky’s counsel sent a letter to Diane’s counsel demanding delivery of the identified items. Shortly thereafter, Ricky received some personal items, pictures, videotapes, and memorabilia. None of the items listed in the demand letter was given to Ricky.
On July 11, 2001, Ricky filed an affidavit in contempt, stating that Diane had failed to give him his share of the photographs, photo albums, videotapes, and other personal property, including family heirlooms, that were awarded to Ricky pursuant to the PSA. The trial court issued a citation in contempt and ordered Diane to appear and show cause why she should not be held in indirect contempt of court for failure to comply with court orders.
A contempt hearing was held on September 26, 2001. Diane testified that she had possession of the memorabilia specified in Ricky’s demand letter and had decided what she would give to him. Diane stated for the first time that Ricky could have the chest that belonged to his grandmother and the rocks fromthe farm. She said that the only reason she had not given him the items was because they were not specifically itemized in the PSA. Ricky testified that he had attempted to get some of the items listed in his demand letter and other photos and family memorabilia but was told by Diane that he could not have them because they belonged to her.
The trial court held Diane in contempt for failure to give Ricky his personal property. The trial court awarded Ricky everything listed in his demand letter and $500 in attorney fees.
Diane filed a motion to alter or amend the trial court’s judgment, stay the order requiring delivery of certain items of personal property, and establish the amount of a supersedeas bond for appeal. A hearing was held, and the trial court denied Diane’s motion to alter or amend and her request to stay the order of delivery and established a supersedeas bond of $5,000. The trial court required Diane to give Ricky certain items of property by October 27,2001.
The parties could not agree on a journal entry for the contempt proceeding, and a hearing was held. Ultimately, the journal entry stated that Diane was in indirect contempt of court for her failure to give Ricky his equal share of the photographs, photo albums, videotapes, and other family memorabilia in a timely fashion. Diane timely appeals.
Diane argues that the trial court did not have jurisdiction over the contempt proceeding because she was never personally served with the notice of hearing. See K.S.A. 2001 Supp. 20-1204a(b). The notice of the hearing was mailed to her counsel, who duly advised her of its receipt. Diane also maintains that she did not, at any time, authorize her counsel to waive the service requirement, nor did she knowingly do so by her participation in the hearing. This issue is being brought before this court for the first time on appeal.
There is nothing in the record on appeal to support Diane’s lack of service contention. An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 777, 27 P.3d 1 (2001). Diane attached two affidavits to her brief; however, these affidavits are not in the record on appeal and will not be considered by this court. An appendix to an appellant’s brief cannot be used as a substitute for the record on appeal. Supreme Court Rule 6.02(f) (2001 Kan. Ct. R. Annot. 35); see D.M. Ward Constr. Co. v. Electric Corp. of Kansas City, 15 Kan. App. 2d 114, 121, 803 P.2d 593 (1990), rev. denied 248 Kan. 994 (1991).
Jurisdiction may be raised for the first time on appeal. Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999). However, where facts are at issue, the matter should have been raised at the trial court level. There is no evidence in the record on appeal to support Diane’s lack of jurisdiction argument.
Alternatively, it could be said that Diane voluntarily submitted herself to the jurisdiction of the trial court by her appearance at three different hearings. She did not object to the trial court’s lack of personal jurisdiction at any of the hearings. Jurisdiction over a party can be acquired only by issuance and service of process in the method prescribed by statute or by voluntary appearance. Haley v. Hershberger, 207 Kan. 459, 463, 485 P.2d 1321 (1971). A party may not present a case in the hope that the trial court will resolve the claims in a favorable manner and then, when an unfavorable verdict has been rendered, claim that the trial court lacked personal jurisdiction. See Carrington v. Unseld, 22 Kan. App. 2d 815, 820, 923 P.2d 1052 (1996).
Next, Diane contends that the trial court erred in finding her in contempt for failure to comply with the division of property set forth in the PSA. Diane states that she is “incensed and humiliated” from being held in contempt, and the sole purpose of her appeal is to vindicate her position and clear her name.
There is a dual standard of review in an appeal from a finding of contempt. This court applies a de novo review to determine whether the alleged conduct is contemptuous. An abuse of discretion standard is applied in reviewing the sanctions imposed. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002).
In State v. Jenkins, 263 Kan. 351, 950 P.2d 1338 (1997), the Kansas Supreme Court set forth the definition of civil contempt. It is the failure to do something ordered by the trial court for the benefit or advantage of another party to the proceeding. Contempt is a remedial or corrective action meant to coerce a party into action. 263 Kan. at 358. Here, Diane was held in contempt for failure to properly comply with the PSA.
The crux of Diane’s argument on appeal is that the PSA was ambiguous because the parties had differing ideas about what was to be considered “family memorabilia” and what other property, if any, was to be given to Ricky.
Appellate review focuses on whether the facts of the case show conduct that constitutes contempt. State v. Williams, 20 Kan. App. 2d 185, 187, 884 P.2d 755 (1994). The facts of this case reveal that Diane gave nothing to Ricky ir'dl a demand letter was sent to her attorney 9 months after the divorce was final. Even after the demand letter was sent, Diane did not give Ricky the photographs and videotapes. Prior to the contempt action being filed, Ricky had received only the wedding pictures, union files, one videotape, and his navy lantern. Diane never gave Ricky the items listed in the demand letter, which, by her own testimony, were family memorabilia.
In his findings, the trial judge stated:
“The simple fact is that [Diane] was to deliver half of the memorabiliabeginning on the date of journal entry, on July 26th of last year. And even by her own testimony she didn’t complete that until after the contempt was filed, until approximately one year later. And I am — frankly, I think Mrs. Alley is lacking in candor in saying the only reason, it just was too hard to get it all done. If she truly wanted closure, she would have been working on it and attempting to get it done as soon as possible, as she could have. . . .
“So with regard to the personal property, specifically because she didn’t, even by her testimony, get this done until after the contempt was filed, I’m holding her in contempt of court for failure to deliver the personal property.”
Whether a particular act or omission is contemptuous depends upon the nature of the act or omission as well as all surrounding circumstances, including the intent and good faith of the party charged with contempt. Williams, 20 Kan. App. 2d at 187.
It is clear from Diane’s own testimony that she knew, at a minimum, she had not given the items to Ricky. Further, Diane did not even attempt to comply with the PSA until after the demand letter was sent. She had not substantially complied with the agreement until after the contempt citation was filed. The evidence shows that Diane was not acting in good faith and had no intention of complying with the PSA. The trial court did not err in finding Diane in contempt of court for failure to comply with the PSA.
As a result of being held in contempt, Diane was ordered to give Ricky the items listed in the demand letter and pay $500 in attorney fees to Ricky. Only the latter can be considered a sanction. The former was simply an order to comply with the PSA.
In Bond v. Albin, 29 Kan. App. 2d 262, 28 P.3d 394 (2000), the trial court assessed the costs and expenses of an unattended deposition and the related contempt proceeding to defendant. On appeal, this court found that the costs and expenses assessed to defendant were designed to compensate the plaintiff for her financial loss occasioned by the inappropriate behavior of defendant. Thus, this court held that the sanctions imposed were reasonable and authorized by law. 29 Kan. App. 2d at 267. Likewise, in the instant case, the award of attorney fees was designed to compensate Ricky for his financial loss occasioned by Diane’s inappropriate behavior. The amount imposed was reasonable and authorized by law. See K.S.A. 2001 Supp. 20-1204a(b). The trial court did not err in awarding Ricky $500 in attorney fees.
Ricky has filed a motion for attorney fees pursuant to Supreme Court Rule 7.07(b) (2001 Kan. Ct. R. Annot. 52), which provides that appellate courts may award attorney fees on appeal in any case in which the trial court had authority to award attorney fees. K.S.A. 2001 Supp. 20-1204a(b) grants the trial court such authority. See Bond, 29 Kan. App. 2d at 267. Supreme Court Rule 7.07(c) (2001 Kan. Ct. R. Annot. 52) provides, in part:
“If the appellate court finds that an appeal has been taken frivolously, or only for purposes of harassment or delay, it may assess against an appellant or appellant’s counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney fee for the appellee’s counsel.”
During the contempt proceeding, Diane clearly stated that she decided what Ricky would receive without any input from him. She made the decision not to give him his grandfather’s shovels, his grandmother’s chest, the grandfather clock his father had made, his Navy memorabilia, and other things that he listed in his demand letter to her. She claimed that these items belonged to her. It was clear that she was in contempt of a court order and had no basis for appealing the issue to this court. We find that her appeal is frivolous and award additional attorney fees to Ricky in the amount of $2,130.00 and costs of $125.11.
The trial court’s ruling is affirmed. Appellate attorney fees and costs are granted to Ricky. | [
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Pierron, J.:
Jason L. Tisdale appeals his conviction for one count of aggravated battery, a severity level 7 person felony, in violation of K.S.A. 21-3414(a)(1)(B). Tisdale argues his sentence violates State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), and that his conviction is not supported by sufficient evidence. We affirm.
At the time of the incidents in this case, Tisdale had been out of prison for approximately one week and was living with the victim, Karla Ray. Ray testified she and Tisdale got into an argument and he repeatedly hit her in the head and body. She blacked out twice as a result of being choked by Tisdale.
Tisdale was arrested and charged with one count of aggravated batteiy. Tisdale waived his right to a jury trial and was convicted by the trial court as charged. Tisdale fell within the presumption probation section on the sentencing guidelines grid, with a presumptive sentencing range of 25-27-29 months. Because Tisdale . was on parole at the time of the incident, the trial court sentenced him to 27 months’ incarceration.
First, Tisdale argues his dispositional departure sentence is unconstitutional based on Gould, 271 Kan. 394, and its application of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
K.S.A. 2001 Supp. 21-4603d(f) (formerly 21-4603d[ll]) specifically provides for the imposition of an incarceration sentence when the current crime is committed while the offender is on parole. In such a case, “imposition of a prison sentence for the new crime does not constitute a departure.” Consequently, Tisdale did not receive a departure sentence. Gould and Apprendi do not apply.
In light of this, it is unnecessaiy to address whether Tisdale’s waiver of a jury trial also waived his right to a trial on the aggravated sentencing factors.
Last, Tisdale argues there was insufficient evidence to support his conviction for aggravated battery. He contends the lack of physical evidence and the victim’s actions after the battery negate any possibility that she was choked in a manner that was likely to cause great bodily harm, disfigurement, or death.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
K.S.A. 21-3414(a)(1)(B) required that the State prove Tisdale unlawfully and intentionally caused bodily harm to Karla Ray by choking her in manner whereby great bodily harm, disfigurement, or death could be inflicted.
Tisdale acknowledges Ray’s testimony that she blacked out twice during the incident, but argues that evidence alone was insufficient to prove his actions could have resulted in death or great bodily harm. He also acknowledges the evidence was sufficient to prove he put his hand or hands on Ray’s throat, but he contends the evidence did not establish that he did so with the force necessary to cause death or great bodily harm. Tisdale argues the lack of physical evidence of the choking, Ray’s ability to drive shortly after the incident, and her refusal of medical attention defy a finding that his actions were likely to result in death or great bodily harm. We disagree.
Considering all the evidence in the light most favorable to the State, we are convinced that a rational factfinder could find Tisdale guilty beyond a reasonable doubt. Jasper, 269 Kan. at 655. Ray was strangled to the point where she blacked out twice. Ray also testified she had trouble swallowing for a couple days. Ray also received injuries to her arms, and Tisdale’s punches resulted in the left side of her face being swollen. Tisdale clearly acted in a manner whereby great bodily harm, disfigurement, or death could have been inflicted. As the State points out: “It was not necessary that Karla receive bruises to her neck, medical attention, a hospital visit or teeter on the brink of death in order to firmly establish the defendant’s guilt.” We will not reweigh the evidence or pass on the credibility of the witnesses. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997).
Affirmed. | [
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Paddock, J.:
W.H., a juvenile offender, pled guilty to the crimes of obstruction of legal process, possession of stolen property, criminal deprivation of property, domestic violence batteiy, and conspiracy to commit forgery.
All of the above crimes were committed by W.H. after July 1, 1999, with the exception of the crime of criminal deprivation of property, which W.H. committed on May 7, 1999.
At sentencing, the trial court classified W.H. as a chronic offender I as defined in K.S.A. 38-16,129(a)(3)(A), and W.H. was sentenced according to that classification. The trial court ordered that the sentences be served consecutively in a juvenile correctional facility, giving W.H. a controlling juvenile sentence of 40 months.
W.H. appeals the sentence imposed for the crime of criminal deprivation of property, claiming it was an illegal sentence under K.S.A. 38-16,129. W.H. also appeals the order that the sentences be served consecutively.
Whether a sentence is illegal is a question of law over which our review is unlimited. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).
An illegal sentence is a sentence imposed by a court without jurisdiction; a sentence which does not conform to a statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to tire time and manner in which it is to be served. Sisk, 266 Kan. at 43 (quoting Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 [1994]).
K.S.A. 38-16,129(a) states in part: “For the purpose of committing juvenile offenders to a juvenile correctional facility, the following placements shall be applied by the judge in felony or misdemeanor cases for offenses committed after July 1, 1999.”
“ ‘The controlling penalty provisions are those in effect at the time the offense was committed.’ [Citation omitted.]” State v. Patterson, 257 Kan. 824, 825, 896 P.2d 1056 (1995).
As even the State concedes, the sentence handed down to W.H. for the criminal deprivation of property charge was illegal. The sentence imposed was, in the framework of Sisk, not in conformity with the statutory provision. The statute plainly states it applies only to offenses committed after July 1, 1999. K.S.A. 38-16,129. The criminal deprivation of property offense was committed on May 7, 1999.
The sentence must be vacated and the case remanded for re-sentencing pursuant to the statute in effect on May 7, 1999.
Next, W.H. contends that the Kansas Juvenile Justice Code (KJJC), K.S.A. 38-1601 et seq., does not permit the trial court to order consecutive sentences.
This issue requires an interpretation of the KJJC. Interpretation of a statute is a question of law, and this court’s scope of review is unlimited. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
In the journal entiy, the trial court ordered:
“Because the cases upon which Respondent is presently being sentenced represent crimes that are separate and distinct, the sentences shall be served con secutively. However, in no case or cases shall the sentence or jurisdiction of the court in the juvenile aspects of the sentence [be] extended beyond the Respondent’s twenty-third (23rd) birthday.”
During sentencing, the trial judge explained:
“It is my decision in accordance with the standard rule that I adopted about eleven years ago that if these are separate and distinct offenses and you had the opportunity to discontinue your behavior at any time between these, then I would consider them to be separate and distinct sentences to be served. What that means my ruling is in this case that your sentences will be served consecutively meaning that the controlling term of placement with the Juvenile Justice Authority is a term of 40 months.”
The KJJC does not specifically provide for consecutive sentences. On the other hand, KJJC does not specifically prohibit consecutive sentences.
W.H. asserts the failure on the part of the legislature to provide for consecutive sentences was intentional. W.H. cites the legal maxim expressio unius est exclusio alterius. State v. Peal, 20 Kan. App. 2d 816, 821, 893 P.2d 258, rev. denied 257 Kan. 1095 (1995), translated the phrase to mean the mention or inclusion of one implies the exclusion of another. W.H. also makes comparisons between the KJJC and the Kansas Sentencing Guidelines Act (KSGA). He states the KJJC and the KSGA have similar provisions on presumptive sentences, including how to depart and appeals from departures. W.H. further contends that unlike the KJJC, the KSGA allows the trial court to issue consecutive sentences in multiple conviction cases. W.H. opines that since the legislature did not include such a provision in the KJJC, that omission must be crucial, given tire other similarities between the acts.
This case is one of first impression in Kansas. The New Jersey Supreme Court has, however, ruled on whether a juvenile can be sentenced to consecutive terms under the New Jersey Juvenile Code.
In State in Interest of J.L.A., 136 N.J. 370, 643 A.2d 538 (1994), the New Jersey Supreme Court examined whether that state’s juvenile code, which, like Kansas, is silent on consecutive sentences, authorized sentencing a juvenile who had committed two or more delinquent acts to consecutive sentences.
The court began its analysis by noting that imposing consecutive sentences is an inherent power of the judiciary and is derived from the common law. 136 N.J. at 374. The court continued, citing cases beginning in 1957 that stood for the proposition juveniles may receive consecutive sentences although the sentencing statutes neither permit nor prohibit such sentences. 136 N.J. at 375. In State v. Horton, 45 N.J. Super. 44, 48, 131 A.2d 425 (1957), the court held that if the legislature wanted to prohibit consecutive sentences for juveniles, it would have. Instead, the statute was silent. Another case the court reviewed held such sentences do not offend the notion juveniles can be rehabilitated. 136 N.J. at 375.
In upholding the consecutive sentences imposed, the New Jersey court focused its analysis on the extent to which such sentences were consistent with the objectives of the juvenile code. 136 N.J. at 376. The purposes of New Jersey s juvenile code were preserving the unity of the family, providing supervision to the juveniles, separating juveniles from their families only when necessary, securing guidance and control for juveniles, and protecting juveniles from abuse and neglect. 136 N.J. at 377.
The court summarized the purposes to be rehabilitative and penological and stated consecutive sentences for juvenile offenders can complement and reinforce such purposes. 136 N.J. at 381. As such, the court concluded its juvenile statutes should not be interpreted to forbid consecutive sentences. 136 N.J. at 382.
In the instant case, a similar approach will be used to analyze whether W.H.’s consecutive sentence was illegal. The question to be asked, then, is whether sentencing a juvenile to consecutive terms furthers the primary goals of the KJJC. According to K.S.A. 38-1601, “[t]he primary goal of the juvenile justice code is to promote public safety, hold juvenile offenders accountable for such juvenile’s behavior and improve the ability of juveniles to live more productively and responsibly in the community.”
Since 1996, the goals of the KJJC have been slightly altered. No longer is the juvenile’s rehabilitation the main concern of the trial court at sentencing. Instead, public safety and accountability come before the nebulous goal of helping juveniles live more productive and responsible lives in the community.
If juveniles are sentenced to a juvenile correctional facility for a longer period of time because their sentences run consecutively rather than concurrently, the promotion of public safety is furthered. Juveniles cannot commit crimes against the public while incarcerated.
Juveniles also will be held more accountable for their offending behavior if their sentences are served back to back rather than at the same time. As the trial court ruled in W.H.’s case, separate offenses mean the juvenile had time to reconsider his or her actions between tire offenses. If accountability is linked to time in a juvenile correctional facility, a juvenile whose sentence is to be served concurrently is held less accountable because his or her time in the juvenile correctional facility is reduced.
Finally, if the juvenile is provided appropriate counseling, anger management classes, educational opportunities, and other social service interventions, an extended time in a facility may improve the ability of tire juvenile to live more productively and responsibly in the community.
Overall, the goals of the KJJC are not in conflict with the issuance of consecutive sentences.
Furthermore, if the legislature wanted to prohibit consecutive sentences for juveniles, it could have done so.
Finally, we note Juvenile Justice Authority Policy Number 4-701. While not binding on this court, the policy is relevant to this issue. The focus of the policy is the good time program of a juvenile correctional facility. Paragraph 18 of the policy states:
“18. Multiple cases. When sentences in multiple cases are ordered by the court, the JCF [Juvenile Correctional Facility] shall calculate release dates based on whether the court orders sentences to run consecutively or concurrently. The facility shall determine the beginning date for each case. From that date, the JCF shall calculate the EPRD [earliest possible release date] for each sentence.”
Thus, under the goals of the Juvenile Justice Authority, consecutive sentences are not an illegal concept.
The district court did not issue an illegal sentence by ordering all of respondent’s sentences to be served consecutively. The policies of the KJJC can be furthered by allowing consecutive sentences. Respondent’s arguments to the contrary fail.
Sentences affirmed in part and vacated in part, and case remanded for resentencing. | [
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Pierron, J.:
Donald Pierce and Larry Ross are painters. They worked for Mid-West Painting, Inc., (Mid-West) until June 10, 1996. The terms and conditions of their employment had been governed by the provisions of a collective bargaining agreement with a union which expired on May 31, 1996. On March 26, 1996, the union gave notice to Mid-West they wanted to make changes in the agreement. Midwest rejected the union’s proposal. The contract expired on May 31, 1996, and the union asked its members to remain working while they attempted to get Mid-West to negotiate.
After the union filed a petition for certification of representation and an unfair labor practice charge with the National Labor Relations Board (NLRB), Mid-West informed the union no further meetings about an agreement were necessary. After the NLRB refused to issue a complaint because of insufficient evidence, the union instructed its members to stop working at Mid-West beginning June 11, 1996.
From June 1 to June 10, Ross and Pierce were paid the same hourly wages and worked the same hours as before. After June 10, 1996, Ross and Pierce did not return to work at Mid-West and did not give notice to Mid-West. Mid-West advised them if they did not return to work, it would assume they had quit. Both Ross and Pierce knew Mid-West still had work available for them, but without the union contract. They did not return.
Ross and Pierce filed a claim for unemployment benefits. Their reasons for leaving Mid-West were that the union advised them to leave and that Mid-West was no longer a signatory contractor. The examiner denied their claim, finding they had quit voluntarily without good cause attributable to the employer. Ross and Pierce appealed to the referee on the basis of K.S.A. 1998 Supp. 44-706(a)(10).
Ross testified at his hearing that his reason for quitting was to seek other union employment. The referee asked Ross what Mid-West had modified during his course of employment. He responded the pension payment was the only thing. At Pierce’s hearing, the union representative testified Mid-West paid $1.35 per hour into a union pension fund. Mid-West quit making the pension payments at the expiration of the union agreement. It was allegedly unlawful to make such payments unless a signatory contract with the union was in effect.
Pierce testified Mid-West quit paying the pension benefit after May 31. Pierce testified he quit because the benefit was not being paid and to seek another union job. The referee asked Pierce whether he would have continued working if Mid-West had continued making the pension payment but was not a union shop. Pierce responded, “[I]t would had to have still been a union shop.” Immediately after this response, Pierce reiterated three more times he would have stayed at Mid-West only if it had continued the pension payments and remained a union contractor.
The referee found Ross quit his job because Mid-West would not bargain with the union. The referee found Ross was ineligible for unemployment benefits because he elected to quit without good cause attributable to the employer. No reference was made to the pension payment. Ross appealed to the Employment Se curity Board of Review (Board), citing no statutory authority for his position.
While the referee found Pierce had raised the pension payment as an issue, the main reason he quit was that Mid-West was no longer a union contractor. The referee’s decision referred to Pierce’s testimony that he would have stayed at Mid-West only if it made the pension contribution and was a union shop. Union membership was not relevant to the issue of refusing available employment. The referee affirmed the examiner’s decision. Pierce appealed to the Board, citing no statutory basis for his claim.
In deciding Pierce’s case, the Board noted Mid-West discontinued making contributions into the pension fund on behalf of Pierce and found Pierce’s benefits were substantially reduced. In deciding Ross’ case, the Board noted Ross terminated his employment after the union representative told him that he should do so “if he elected to continue to be covered under the Union’s agreement and benefits.” The Board determined Ross and Pierce terminated their employment with Midwest with good cause attributable to the employer under K.S.A. 1998 Supp. 44-706(a)(10). The Board concluded Ross and Pierce were entitled to unemployment compensation and reversed the referee’s decisions. Mid-West appealed both cases to the district court.
The district court concluded the referee’s decisions were correct and the “Board’s decisions were contrary to the law of the State of Kansas and not supported by the evidence contained in the record of both cases.” The court reversed the Board’s decision and reinstated the referee’s decision in both cases.
A court reviewing the board’s decision is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. K.S.A. 1998 Supp. 44-709(i). The scope of judicial review is limited to the reasons set out in K.S.A. 77-621(c). Here, the court reversed the Board for the stated reason it erroneously interpreted the law, and its decisions were not based on substantial facts supported in the record. Granting relief for these reasons is allowed under K.S.A. 77-621(c)(4) and (7). When a court reviews an agency’s interpretation of a question of law, it may substitute its judgment for that of the agency. Palmer News, Inc. v. Kansas Employment Security Bd. of Review, 24 Kan. App. 2d 655, 656, 951 P.2d 546 (1997).
Ross and Pierce argue the district court erred by not considering K.S.A. 1998 Supp. 44-706(c), which provides that an individual becomes disqualified for benefits if he or she refuses suitable work. They argue that employment at Mid-West without the pension payment was not suitable work when considering the factor of prior earnings.
Two major problems exist regarding this first issue. First, our standard of review limits our jurisdiction to considering K.S.A. 1998 Supp. 44-706(a)(10), which the Board interpreted and applied. This statute was the basis of the appeal to the referee. While Mid-West did not artfully articulate or specifically object to Ross and Pierce relying upon 44-706(c) for the first time in this appeal, it did claim this issue was not raised in earlier proceedings. The transcript and notice of appeal do not show “all statutory issues” were preserved, and issues not raised before the administrative hearing officer may not be raised on appeal. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 827-28, 888 P.2d 832 (1995).
Second, K.S.A. 1998 Supp. 44-706(c) is applicable only if a claimant is eligible for benefits and then becomes disqualified by not accepting suitable work. Even if Ross and Pierce had properly raised the statute, the case which Ross and Pierce rely upon, Boeing Company v. Kansas Employment Security Board of Review, 209 Kan. 430, 496 P.2d 1376 (1972), shows they were ineligible. In Boeing, claimant’s last position was as a skilled worker. Boeing reduced its work for claimant’s job classification, and he was laid off. Prior to termination, Boeing offered claimant work as a semiskilled worker which reduced his pay and had repercussions to his rate retention, seniority, and vacation and sick leave benefits. Claimant rejected the new position. The examiner, referee, district court, and Supreme Court all held the claimant was eligible for benefits because claimant was laid off by Boeing due to lack of work.
After determining claimant was eligible, an ancillary issue was whether he became disqualified by refusing Boeing’s offer of other work. “[A]s a general rule a claimant may be eligible for unem ployment compensation benefits for a reasonable length of time while he seeks employment commensurate with his skills, training, ability and previous earning capacity.” Also, after an increased period of time, a claimant might have to lower his or her expectations for wages and job requirements. 209 Kan. at 434. Thus, before 44-706(c) is applicable, a claimant must first be eligible for benefits. Here, Ross and Pierce were not laid off by Mid-West due to a lack of work. Rather, they resigned because Mid-West was no longer a union contractor.
Even though Ross and Pierce have raised the wrong statute, their appeal is about eligibility. The standard of review stated above applies.
Under K.S.A. 1998 Supp. 44-706(a)(10), it must be shown the employer violated an agreement. The alleged contract violation is the nonpayment of the pension fund after the May 31 expiration. Ross and Pierce cannot demand that Mid-West continue making the payment into the union’s fund because to do so would be illegal. A contract for prohibited conduct is unenforceable, and the courts will not aid either party in the prohibited conduct. See Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 880, 811 P.2d 860 (1991).
Ross and Pierce claim Mid-West should have compensated them by increasing their pay commensurate with the lost pension payments. They cite no authority requiring Mid-West to do so. When a point is incidentally raised but not argued, it is deemed abandoned. McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994). After May 31, if any contract was in existence, it had to be a contract implied in fact.
Because Ross and Pierce continued to do the same work in June, it is arguable their total compensation for pay and benefits should remain the same. However, Ross and Pierce knew on June 1 that Mid-West would cease the pension payments, yet they continued to work. The facts and circumstances do not show a mutual intent to contract for such compensation. An implied contract requires mutual assent or a meeting of the minds. The unilateral expectations of an employee do not create an implied contract for contin uing employment. Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 173-74, 872 P.2d 252 (1994).
Mid-West did not violate any terms of a written or implied contract; therefore, Ross and Pierce are not eligible for benefits.
Ross and Pierce also claim the court reversed the Board’s decision because they voluntarily stopped working for Midwest due to a labor dispute when the record has no evidence of a work stoppage. Under K.S.A. 1998 Supp. 44-706(d), a person is disqualified from receiving benefits if his or her unemployment is due to a work stoppage which exists because of a labor dispute. Ross and Pierce are correct the evidence is insufficient to support a finding of a work stoppage due to a labor dispute. However, when the decision is read in its entirety, it appears this argument is a mischaracterization of the court’s decision.
The court specifically stated the reason for its reversal.
“7. The court hereby reverses the action of the Board and reinstates the original decision of the referee. The court’s action is taken pursuant to K.S.A. § 77-621(c)(4), on the basis that the Board erroneously interpreted or applied the law in these cases. . . . The grounds for the [referee’s] decision in both cases is that they left work voluntarily without good cause attributable to the work or the employer. The court hereby concludes that the referee was correct and that the Board’s decisions were contrary to the law of the State of Kansas and not supported by the evidence contained in the record of both cases.
8. The court finds that both claimants stopped work voluntarily because of [a] labor dispute. Since the claimants left work without good cause attributable to the work or the employer.”
The reasons stated in paragraph 7 are not about a labor dispute or work stoppage. An interpretation of the term “labor dispute” which is reasonable and consistent with the court’s conclusion and the facts in both cases is that the parties could not agree to a new labor agreement. Regardless of the interpretation, the first sentence in paragraph 8 is surplusage because it is not a necessary finding to support its conclusion. “[A] trial court’s reason for its decision is immaterial if the ruling is correct for any reason. [Citation omitted.]” KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997).
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The opinion of the court was delivered by
Greene, J.:
This was a suit to quiet title. The petition states that plaintiff is the owner in fee simple and is in the actual possession of the property, describing it, and that “the defendant claims an estate or interest in said real estáte adverse to the plaintiff, the exact nature of which is unknown to plaintiff and for that reason cannot be set forth herein, but plaintiff alleges that any such claim, estate or interest of the defendant is invalid as against plaintiff.” The petition then asks that defendant be required to set up her claim to the premises, and for a judgment determining such interest to be inferior to that of plaintiff, decreeing plaintiff to be the owner in fee simple, and canceling the defendant’s claim. To this petition the defendant demurred. The demurrer was overruled, and, the defendant choosing to plead no further, the cause was tried by the court and judgment rendered for plaintiff in accordance,with the prayer of the petition.
The defendant now complains that the court erred in overruling her demurrer, (1) because the petition does not state with sufficient certainty plaintiff’s title to the land in controversy, and (2) because it does not state with sufficient certainty the exact nature and extent of the defendant’s pretended title or claim of title. The argument is that if this were done the court would be enabled to determine from the petition whether the defendant’s claim did in law cast such a cloud upon plaintiff’s title as-would justify the interference of a court of equity.
The petition states that the plaintiff is in actual possession and is the owner in “fee simple.” “Fee simple” and “fee simple absolute” are equivalent terms, and well-defined legal expressions. An estate in “fee simple” is the greatest that one can possess. When the pleader says that the plaintiff is the owner in “fee simple” it implies an unlimited estate of inheritance. If the plaintiff claimed an estate less than a fee simple it might not be improper in some cases to require him to plead his limited estate, but certainly he should not be required to plead the evidence of his title where he claims the entire estate. From the petition the court knew just what the plaintiff claimed for himself.
The second contention is that the petition does not set out with sufficient certainty the claim which the defendant makes to the lands in controversy, so that the court might be advised whether such a claim casts a cloud on the plaintiff’s title: The pleader relieved himself of this duty by showing that he did not know the exact nature or extent of the defendant’s claim; therefore, the duty was put upon the defendant to state her claim, whatever it might be. It was held by this court, in Bowdish v. Metzger, 71 Kan. 753, 81 Pac. 484:
“Equity permits a suit for discovery and relief; therefore, where the petition in a suit in equity to remove a cloud and quiet title to real estate is sufficient, except that it does not plead the title under which defendants claim, but states that the nature, character or extent of it is unknown, and prays that defendants be required to disclose such title in their answer, the petition states a good cause of action for discovery and relief.” (Syllabus.) .
Upon the authority of that case the petition in this case is sufficient, so far as. the last contention is concerned. Some other errors are argued, but as they were not assigned as errors in the motion for a new trial nor in the petition in error we cannot consider them. The judgment is affirmed.
All-the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
By the agreed statement of facts in this case it appears that in 1886 J. D. Vawter, with his wife, executed and delivered to his son, James E. Vawter, as a gift, a deed to certain land. It is said in the brief of the plaintiffs in error:
“If that deed conveys a life-estate to James E. Vawter, with remainder to his children,' then it will be conT ceded that the judgment of the trial court should be affirmed, but if the deed conveys title in fee simple to James E. Vawter, or conveys a life-estate to James E. Vawter with remainder to his heirs, then the judgment of the trial court must be reversed.”
In the brief of the defendant in error it is said that “this deed conveys either a life-estate or a fee-simple estate to James E. Vawter.”
The following is a copy of the deed, so far as is necessary for the construction thereof:
“This indenture, made this 25th day of February, A. D. 1884, between J. D. Vawter, of Shawnee county, in the state of Kansas, of the first part, and James E. Vawter, during his natural life and after his death to his children, of Osage county, in the state of Kansas, of the second part, witnesseth:
“That said party of the first part, in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto said party of the second part, his heirs and, all the following described real estate [describing the land] ; to have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever; and said J. D. Vawter, for himself, his heirs, executors or administrators, does hereby covenant, ■ promise and agree to and with said party of the second part, that at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible estate of inheritance in fee simple of and in all and singular the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and encumbrances of what nature or kind soever; and that he will warrant and forever defend the same unto said party of the second part, his heirs, against said party of the first part, his heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
Much controversy and contrariety of opinion have been exhibited in the books as to which should govern when one of the formal parts of a deed indicates one purpose of the grantor and another seemingly indicates a different purpose. This court has taken little or no part in the controversy. The rule here followed is well stated in the opinion in Palmer v. Blodgett, 60 Kan. 712, 57 Pac. 947, as follows:
“Modern theories, however, put deeds of real estate, for purposes of construction of their terms, in the list with all other kinds of written contracts, and they endeavor to ascertain the intent of the parties executing them more from the language of the whole instrument than from the relative positions of the different parts or clauses.” (Page 714.)
A gift by deed, like a will; should be construed not only with reference to the language used in all its parts, but also especially with reference to the purpose of the . donor. The grantee or grantees in this case gave no consideration for the conveyance, and hence his or their intent is of little or no consequence. The donor had a right to do what he pleased with his own. {Williams v. McKinney, 34 Kan. 514, 9 Pac. 265.)
Looking at the deed in this view we have no doubt that the donor intended to convey a life-estate in the land in question to his son, James E. Vawter, with remainder to the children of James E. Vawter. ■
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The only error alleged which need be considered is the sustaining of the demurrer to the plaintiffs’ evidence and rendering of judgment for the defendant. The demurrer was upon three grounds: (1) That there was no evidence tending to prove the execution of the written order; (2) that the evidence did not tend to prove any consideration for the contract; and (3) that the evidence did not tend to show that any sum was due.
A part of the evidence introduced was the following from the deposition of J. W. Barnes:
“Ques. In your former answer you mention an order blank and the terms of the same. Please state if this is the original order signed by Susan B. Parish, to be hereto attached and marked ‘Exhibit A.’ Ans. Yes.”
“Exhibit A” was then introduced in evidence, and, omitting the long list-of articles attached, which footed up $196, it reads as follows:
“No claims for deficiencies will be allowed unless made immediately after receipt of goods.
“Agreements made with salesmen are not^ binding on us unless specified on original order returned to us.
“St. Louis Jewelry Company,
Wholesale Jewelers.
“No goods taken back for credit.
“All goods f. o. b. St. Louis.
“Broadway and Chestnut St., St. Louis, Mo.
“Sold to............................
“Terms: Cash disc., 6% 10 days, 3% 20 days, net 30 days.
“Special time payments:
Vi due in 4 months.
Vi due in 6 months.
Vi due in 8 months.
Vi due in 10 months.
“Special time payments must be closed by note within 10 days.
“List of goods: . . .
“Our Warranty: Any jewelry purchased of us that may prove defective or does not give reasonable satisfaction, may be returned to us any time within five years from date, and we will forward a new duplicate article in place of it.
“Any jewelry purchased of us which does not sell readily may be exchanged within one year for new styles and pattern of any jewelry in our stock. Purchaser must prepay all express charges on repairs or exchange. ... St. Louis Jewelry Company.
“St. Louis Jewelry Company:
“Ship us above goods on special time payment terms.
Susan B. Parish, Customer.
“Salesman, J. W. Barnes.
“Post-office, Como; state, Kansas; express office, Miltonvale, Kan.”
The defendant was also sworn on behalf of plaintiffs and identified' the following letter, which was introduced in evidence:
'‘St. Louis Jewelry Co.: “Como, Kan., 9/12, 1904.
“Sir — Yours at hand. You must take your julery back or leave it as your agent ask for you sent an over-stock of of goods. 37 is what the' agent said would be the amount and you have sent $196 worth. It is out of reason for a place like this. This gangling is hurting my trade. Yours,
Mrs. S. B. Parish.”
C. W. Van De Mark, attorney for plaintiffs, also testified, in substance, that in the early part of November he went to Como and talked to the defendant about this bill,, which he had for collection, and presented notes which he had prepared for the purchase-price of the goods, and she réfused to sign them.
The evidence tends to show the execution of the order. Proof of the acceptance of the order and the shipping of the goods in accordance therewith shows a completed contract and a consideration therefor. The conditions of the order were that the bill would become due in thirty days unless time payments were secured by notes due in four, six, eight and ten months, each for one-fourth of the amount of the bill. We think the evidence, while meager, was sufficient to entitle the plaintiffs to recover, and that the court erred in sustaining the demurrer and rendering judgment for the defendant.
The judgment is reversed, and the case is remanded' with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to foreclose a mortgage. On December 1, 1887, C. J. McCray and wife gave a promissory note for $800 to Samuel G. Miller, due five years after date, and to secure its payment executed a mortgage on a quarter-section of land in Clark county. On June 30, 1902, C. W. Carson purchased the-note and mortgage for his sister, J. C. Ford, as a gift, taking a written assignment of each directly to her. The mortgage was delivered with the assignment, but there was no manual delivery of the note, as it appears to have been lost. Carson placed the mortgage and assignments in the hands of Ford’s attorney for foreclosure, but she was not aware that she had become the owner of the instruments until after the suit was brought, and upon learning of the gift and action she prosecuted the proceeding to a conclusion. The petition was in the ordinary form for foreclosure, alleging the execution of the note, the sale and indorsement of the same from Miller to Ford before maturity, and a copy of it, with the assignment, was set forth. Default was made by the McCrays on the note, but J. O. Bare and wife, who had also been named as defendants, answered with a general denial, and, further, that the plaintiff was not the real party in interest; that the cause of action was barred by the statute of limitations ; and that they had acquired the land by a tax deed executed by the county of Clark. Ford replied, denying generally the allegations of the answer, and also stating that the tax deed to Bare was void because of several defects in the tax proceedings. On the issues so formed the jury found in favor of the plaintiff, and the mortgage was adjudged to be a valid lien on the land, the defendants’ tax deed was held to be illegal and set aside, but the tax paid by the Bares, with the accumulated interest, was declared to be a lien upon the land.
The Bares complain, and insist that the evidence was insufficient to establish a cause of action against them, and that the demurrer to the evidence should have been sustained.
The claim of insufficiency is based mainly on the fact that the plaintiff pleaded that she was the owner and holder of a promissory note and only proved the assignment of a note previously lost. It is argued that an averment of the execution and existence of a note is not sustained by proof of a lost note. The execution of the note, which was set forth in the petition, was admitted by the defendants. The mortgage was assigned and delivered to the assignee, and it contained a copy of the note which corresponded with the copy set out in the petition; and the statute provides that “the assignment of any mortgage as herein provided shall carry with it the debt thereby secured.” (Gen. Stat. 1901, § 4238.) There was abundant testimony that Ford was the owner of the note, but the question remains whether there could be a recovery in the absence of an averment that the note had been lost. The loss of the note is no part of the cause of action, and a statement of the loss is therefore not an essential allegation. The reason that loss or destruction of a note or other instrument is alleged in certain cases is to excuse the failure to give a copy of it in the pleadings or the failure to make profert of the instrument where it is required.
In Sargent v. Railroad, 32 Ohio St., 449, the supreme court of Ohio held that “an action may be sustained on a destroyed promissory note, and where a copy of the note is given with or made part of the petition the destruction of the note need not be averred in the petition.” The same view was taken by the supreme court of Indiana, in Cunningham v. Hoff et al., 118 Ind. 263, 20 N. E. 756, in which it was held that, “where a copy of a note sued on is filed with the com plaint as an exhibit, no allegations in regard to the loss or destruction of the note are necessary to make the complaint good.” (Syllabus.) The case of Houy v. Gamel, 26 Tex. Civ. App. 123, 62 S. W. 76, was an action to recover on notes which had been lost, and it was contended that proof of the loss and secondary evidence of execution and contents could not be received because allegations of loss were not contained in the petition. It was held that “it was not necessary in this character of suit to allege the notes as having been lost. If it were1 an equitable suit to establish the existence of lost notes merely, such averments would probably have been essential. But this was to recover judgment upon the notes, and a rule of evidence only was involved; and upon proof of the loss, secondary evidence concerning their execution and contents was admissible.” (Page 124.) The same question was before the supreme court of Vermont, in the case of Viles & Atkins v. Moulton, 11 Vt. 470, where it was said:
“This was an action on note. The note was not produced in evidence, but the plaintiff endeavored to prove its loss and contents. The first objection which was raised on the part of the defendant was that there was no count in the declaration upon a lost note. We think that there is no necessity for such a count in any case. Whenever it becomes necessary to make a profert of an instrument, if it is lost, there must be an averment of the loss. But, in a declaration on a note, no profert is made. It is not usual, and not required in the courts of the United States, to declare specially on a lost note as lost.” (Page 474. See, also, Renner v. Bank of Columbia, 22 U. S. 581, 6 L. Ed. 166; Dormady v. State Bank of Illinois, 3 Ill. 236; Adams v. Baker, 16 R. I. 1, 11 Atl. 168, 27 Am. St. Rep. 721; Adams v. McCauley and Husband, 4 Rob. [La.], 184; 13 Encyc. Pl. & Pr. 364.)
To the claim that it was unfair for the plaintiff to set out a copy of the note as if she had possession of the original, and then at the trial present the. copy of it with secondary evidence of its contents, it may be said that the execution of the instrument as it was copied in the mortgage was admitted. Then, again, the defendants could not have been misled or prejudiced on that account, as long prior to the trial depositions had been taken by both plaintiff and defendants with respect to the loss of the note, and the question was tried out substantially as if it had been pleaded.
Nor did the defendants suffer prejudice by the averment that the note had been indorsed and sold before maturity, where the only proof was of a sale after maturity and without indorsement. The plaintiff was not claiming the rights of an innocent holder, nor seeking to cut off the equities of the maker. Upon a like question, in Bank v. Schlegel, 66 Kan. 509, 72 Pac. 210, Mr. Justice Mason remarked:
“As plaintiff did not assert any rights as an innocent purchaser and did not claim to have purchased the note before maturity, the allegation of its indorsement was immaterial and it was not necessary for plaintiff to prove it in order to establish its right to recover.” (Page 511.)
When the plaintiff first rested her case the defendants demurred, and indicated that they would stand on their demurrer. The court remarked to the jury that it would be his duty to instruct them to find for the plaintiff. He suggested the appointment of a foreman, and requested the clerk to give him a blank verdict, when plaintiff’s attorney asked and obtained leave to offer evidence of defects in defendants’ tax deed, the execution of which had been admitted. There is a complaint that this was in effect an instruction to the jury to find against the defendants, and that it was never withdrawn from their consideration. The court indicated that as the case stood it would be his duty to instruct them to find for the plaintiff, and some steps were taken preparatory to the giving of such instruction. Before it was given, however, the case was reopened, testimony was introduced on the part of both plaintiff and defendants, and the case was submitted at length to the jury under full instructions by the court. The jury could not have misunderstood the status of the case, nor been misled by the remark of the judge.
Testimony offered for the purpose of showing that the mortgage debt was satisfied and the mortgage discharged by the execution of a deed from the mortgagor was excluded by the court. No error was committed in its exclusion. Payment, satisfaction or settlement were not pleaded, and could not be proved under a.general denial. (Stevens v. Thompson, 5 Kan. 305; St. L., Ft. S. & W. Rld. Co. v. Grove, 39 Kan. 731, 18 Pac: 958; National Bank v. Quinton, 57 Kan. 750, 48 Pac. 20.)
Nor was there any abuse of discretion in the ruling refusing the application of defendants to amend the answer and introduce the new issue of payment or satisfaction near the end of the trial.
The statute of limitation invoked by the defendants was not available to them, as they claimed under a tax deed and not under any title derived from the mortgagor. (Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862; Trust Co. v. Parker, 65 Kan. 819, 70 Pac. 892.)
There was sufficient testimony to show that the tax deed of the defendants was defective and void, and while some other objections have been made to the proceedings and judgment we find nothing substantial in them, and no ground for reversal. The judgment is affirmed.
All the Justices concurring; | [
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The opinion of the court was delivered by
Smith, J.:
The only negligence alleged against the railroad company was the failure to sound the whistle upon approaching the crossing. The defense was contributory negligence on the part of the deceased. The failure of the engineer to sound the whistle was proved and is uncontroverted, and the only question of law that remains to be decided is whether the evidence of the plaintiff affirmatively shows that the déceased was guilty. of contributory negligence in crossing or attempting to cross the railroad-track. If so, the ruling of the court sustaining the demurrer to plaintiff’s evidence was right; otherwise the ruling was wrong.
The well-recognized rule is that it is the duty of a person about to cross a railroad-track where. trains may be passing to look and listen, for his own protection, and that a failure to do so is negligence. Also, that in case of the death of a person in crossing a railroad-track, from contact with a train, if there be no •eye-witness and no evidence to the contrary, it will be presumed that the person looked and listened for an approaching train before venturing on the crossing. (C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993; Texas & Pacific Railway Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469, 64 L. R. A. 344.) The plaintiff in error contends that this rule should be applied to this case, inasmuch as the only eye-witness testified that while he himself looked down the track when he and the deceased were about 155 feet from the crossing he did not know whether or not the deceased looked at any time before they were on the crossing. The defendant, however, contends, and the court, below in sustaining the demurrer must have held, that the positive and uncontradicted proof in this case rebuts this presumption. The evidence of Doctor Hammond, who was the only eye-witness, shows that from a point 155 feet from the crossing, and every step of the way from that point to the crossing, there was nothing to prevent the deceased from seeing the approaching train if he had looked down the track in a westerly direction. The evidence also shows that Bressler was a man about forty-two years of age, and in the possession of all his faculties; yet he rode in a juggy behind a team which walked from that point' to and upon the railroad-crossing and discovered the approach of the train only when the horses were upon the track. As was said in Tomlinson v. Chicago, M. & St. P. Ry. Co., 134 Fed. 233, 67 C. C. A. 218:
“The evidence was so clear as to warrant no other conclusion than that the deceased, by the use of his senses, could have learned of the approach of the train before he reached the crossing; and the necessary inference is that he either did not look, or, having looked, he endeavored to cross in front of it. He was, therefore, as matter of law, guilty of contributory negligence.” (Page 234.)
Indeed, the evidence and the circumstances in this jase seem necessarily to exclude the idea that the dejeased had seen and was endeavoring to cross the track m front of the; train. The team moved upon the crossing in a walk, and the conduct of the deceased in ex-daiming, “Doc, jump,” and by jumping from the buggy, limself when otherwise he would have been carried safely over, would certainly place such inference at variance with the actual facts, and it cannot be inlulged.
If, however, the. presumption of due diligence on the >art of the deceased should' obtain, as claimed by the daintiff, it must, under the facts in this case, also be jresumed that he saw what must have 'been apparent o any person in his position, viz., that a train was apiroaching and that it was extremely hazardous to go ipon the crossing at the rate of speed he and his comtanion were traveling. And this, in law, would be conributory negligence. While the failure of the engineer to sound the whistle was negligence, it was, at most, only one of the proximate causes of the injury. The whistle, if sounded, could have apprised the deceased of nothing which the exercise of due care on his part would not have apprised him, viz., the approach of the train and the danger of attempting to cross in front of it. (Rollins v. Chicago, M. & St. P. Ry. Co. [C. C. A.], 189 Fed. 639.) The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Greene, J.:
This was an action to recover a stipulated amount of damages for the non-compliance with a written contract for the exchange of real estate. The contract contained the following provisions:
“Both parties to give warranty deeds and abstracts showing titles. It is agreed that $1500 shall be liquidated damages in case either party fails or refuses to carry his part of this contract.”
The plaintiff executed and tendered a deed of general warranty in form, and also an abstract of title of the lands he had agreed to convey to the defendant, and demanded that defendant execute to him a warranty deed and abstract showing title in defendant for the land the latter had agreed to convey to the plaintiff. The defendant refused to accept the deed-and abstract tendered him and refused to convey the lands to the plaintiff as he had agreed, and the plaintiff brought this action. The court sustained a demurrer to plaintiff’s evidence and rendered judgment for costs for the defendant.
It appears from the evidence that before the time fixed in the agreement for consummating this transaction by an exchange of deeds the plaintiff’s title to the lands he had agreed to convey to the defendant had been questioned. Thereupon he took his abstract to his lawyers to examine his title and was informed by them that it was defective, and that it would require a suit to quiet the title in him. His attorneys instituted such proceeding, making some fifty named persons and others, unknown heirs, defendants. The lands were situated in Iowa. Personal service was not obtained upon any of the defendants.
In a suit to quiet title under the Iowa statute service may be made by publication upon all defendants upon whom, personal service cannot be made within the state. Before such service is authorized the Iowa statute requires the plaintiff to make and file an affidavit stating that personal service cannot be made upon the defendants within the state. The plaintiff in his suit to quiet his title undertook to get service upon the defendants by publication, for which purpose he filed an affidavit of which the following is a copy:
“I, J. F. Denser, being duly sworn, depose and on oath say that some of the defendants hereto are nonresidents and personal service cannot be made on them in this state; that I have sought diligently to learn their residence and have been unable to find them.”
This affidavit does not comply with the requirements of the statute. It states that “some of the defendants hereto are non-residents and personal service cannot be made on them in this state.” The plain inference from this language is that others were residents. The affiant did not swear that they were all non-residents, and that personal service-could not be made upon any of them in the state. Those who were residents and upon whom personal service could be made should have been so served. As to those who were residents of the state and upon whom personal service could have been made the judgment quieting title was void. The trial court very properly held that a publication notice based upon this affidavit did not give the Iowa court jurisdiction of all of the defendants named in the petition, and that a judgment rendered upon such service did not bar the defendants who were not properly served from setting up their title at any future time.
Before the plaintiff can require the defendant to accept his deed and before he can recover upon the agreement he must show that he has fully complied with all the conditions on his part. He'must have presented such an abstract of title as upon its face showed the title to the land which he was offering to convey to be in himself. The record which is epitomized in the abstract must show a good title in the vendor. The contract called for a title good in fact and good of record, and this the abstract does not show. Before the plaintiff can recover he must tender an abstract showing an unclouded title. (Kimball v. Bell, 47 Kan. 757, 28. Pac. 1015; O’Neill v. Douthitt, 40 Kan. 689, 20 Pac. 493.) It should show that the title is valid in every respect, and not one that may be in the least clouded. (Carter v. Improvement Association, Limited, 108 La. 143, 32 South. 473.) When a defect in the abstract will cause a reasonable doubt in the mind of a prudent and intelligent person, acting upon competent legal advice, the deed may be refused.
Whether the abstract introduced in evidence by the plaintiff showed that he had a good title was a question of law to be determined by the court, and not one of fact to be submitted to the jury. The court held that as a matter of law the plaintiff’s title was defective; that he had not complied with the terms of the contract, and was not entitled to recover. With this we agree. In this view of the case the other errors complained of become immaterial The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the-court was delivered by
Burch, J.:
Appellant was convicted of a misdemeanor, in that he refused to obey a subpoena to give testimony concerning violations of the law prohibiting the manufacture and sale of intoxicating liquors. The case was tried upon an agreed statement of facts, in which the validity of the act prescribing punishment for such conduct was challenged, the point "being that the legislature attempted to amend a part of a section without embodying the entire section as amended in the new act and without repealing a portion of the old section.
Section 8 of chapter 149, Laws of 1885, provides for investigations by the county attorney of violations of the liquor laws. It contemplates the subpoenaing of witnesses whom the county attorney may have reason to believe have knowledge or information of such violations, the taking of the testimony of such witnesses under oath, the reducing of such testimony to writing, the signing by the witnesses of their testimony when written down, the punishment of witnesses- for contempt in case of their disobedience of any of the requirements laid upon them, the filing of the written testimony procured in the manner described in connection with criminal complaints or informations, and proceedings against offending persons and offending property based upon such written evidence.
In July, 1894, it was decided that this section is unconstitutional in so far as it attempts to confer on county attorneys power to commit witnesses for contempt. (In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St. Rep. 261.) The decision referred to affected no part of the act except the clause “and shall have power to punish any witness for con tempt for or on account of any disobedience of a subpoena, a refusal to be sworn or answer as a witness, or to sign his testimony.” (Laws 1885, ch. 149,' § 8.)
By chapter 136 of the Laws of 1897 the legislature accepted the bid of Mr. W. C. Webb to furnish the state an annotated compilation of its general statutes, and provided that such compilation should be made according to the rules prescribed by paragraph 7292" of the General Statutes of 1889, which reads as follows:
“In preparing the general statutes for publication, the commissioners may omit the words ‘an act concerning,’ or other equivalent words in the title to .the several acts, substituting, in lieu thereof, the word ‘of’; and also may omit the sections providing that such acts shall take effect from and after their publication in the statute-book, and, also, such repealing sections and clauses as they may deem proper; and may arrange the several subjects in such order as may be most convenient and easy of reference.”
The act of 1897 required the Webb compilation' to be examined and approved by the justices of the supreme court and by the attorney-general in the following manner :
“Before any copies of said statutes shall be received by the secretary of state and paid for by the.state they shall be examined by the justices of the supreme court and the attorney-general, who shall, if they find such compilation contains all the laws of a general nature then in force, including all acts of such nature passed at the present session of the legislature, and that such compilation is properly and conveniently arranged and annotated, printed and bound in the manner stated in said proposal, and that each of said volumes is fully and properly indexed, certify such facts to the secretary of state.” (§2.)
Section 4 of the same act reads:
“A copy of the certificates of the justices of the supreme court and attorney-general approving said compilation, together with a copy of this and the preceding sections of this act, shall be printed in each volume thereof, and the general statutes so compiled and approved shall thereafter be deemed and held to be the general statutes of Kansas and shall be prima facie evidence in all courts in this state of the due passage and publication of any provision, section or chapter therein contained.”
When the compilation was completed the justices of this court made a certificate as follows:
“Having made such examination of the General Statutes of 1897 as has been practicable in the limited time we have been able to devote to it without neglecting our judicial duties, (although we deem this a task which the legislature cannot lawfully impose on us,) we certify that so far as we are able to determine from such examination the accompanying compilation complies with the requirements of chapter 136 of the Laws of 1897, and that the work of the compiler appears to • have been well and faithfully done. Witness our hands at Topeka this 30th day of October, 1897.”
The attorney-general’s certificate reads:
“I hereby certify that I have made examination of the General Statutes of 1897, and that so far as I am able to determine from such examination the accompanying compilation complies with the requirements / of chapter 13,6 of the Laws of 1897, and that the work of the compiler appears to have been well'and faithfully done. Witness my hand at Topeka this 30th day of October, 1897.”
In the Webb compilation section 8 of chapter 149 of the Laws of 1885 was árbitrarily divided into two substantially equal parts, the first relating to the securing of written and signed statements from witnesses duly sworn, and the second to prosecutions based upon such statements. The first part was designated as section 49 of the compiler’s chapter 101. The second part was labeled section 50 of the same chapter.
In 1901 the legislature passed the act under consideration, which reads as follows:
“An act to amend section 49 of chapter 101 of the General Statutes of Kansas of 1897, relating to investigations of violations of the prohibitory law.
“Be it enacted by the Legislature of the State of Kansas :
“Section 1. That section 49 of chápter 101 of the General Statutes of Kansas of 1897 is hereby amended so as to read as follows: Sec. 49. If the county attorney of any county shall be notified by an officer or other person of any violation of any of the provisions of this act, it shall be his duty forthwith diligently to inquire into the facts of such violation, and for such purpose he is hereby authorized and required to issue his subpoena for such person or persons as he may have reason to believe have any information or knowledge of such violation to appear before him, at a time and place designated in such subpoena, then and there to testify concerning any violations of this act; said subpoena shall be directed to the sheriff or any constable of the county, and shall be served and returned to such county attorney in the same manner as subpoenas are served and returned in criminal cases. Each witness shall be sworn by the county attorney to testify the truth, the whole truth, and nothing but the truth, and true answer make to all questions which may be propounded to him by such county attorney touching any violations of the provisions of this act or the act to which this is amendatory. The testimony of every such witness shall be reduced to writing and signed by such witness. For all purposes of this section, the county attorney is hereby authorized and empowered to administer oaths or affirmations to all witnesses. No person shall disclose any evidence so taken as hereinbefore authorized, or disclose the name of any person so subpoenaed or examined, except when lawfully required to testify as a witness in relation thereto, until the parties against whom complaint or information shall be filed by reason of such evidence have been arrested. Any disobedience of the subpoena hereinbefore authorized, or any refusal to be sworn as a witness, or any refusal to answer any pertinent and material question propounded by the county attorney pursuant to the provisions of this act, or any refusal of a witness to sign his testimony taken under the provisions of this act, or any violation of the requirement of secrecy imposed by this act, shall be a misdemeanor, and punishable as such.
“Sec. 2. This act shall take effect and be in force upon its publication in the official state paper.” (Laws 1901, ch. 233.)
The constitution contains the following provision:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and 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.” (Art. 2, § 16; Gen. Stat. 1901, § 134.)
Until found by the justices of the supreme court and the attorney-general to contain all the laws of a general nature at the time in force, including all acts of such nature passed at the session of 1897, until found by those officers to be properly and conveniently arranged, ahnotated and bound in the manner stated in the. proposal, and to be fully and properly indexed, and until the facts so found were duly certified to the secretary of state, the matter contained in the compilation in question could not be deemed to be the general statutes of Kansas or be prima facie evidence of the due passage and publication of the provisions, sections and chapters it contained. No such findings are disclosed by the certificate of the justices quoted above, and their certificate does not pretend to cover the required facts. The justices, being under no obligation in respect to the matter, merely made such an examination as was practicable in the limited time they were able to devote to it without neglecting judicial duties. So far as they were able to determine from such examination the compilation appeared to meet the legislative requirement. Whether it did so in fact they prudently refrained from certifying. The certificate of the attorney-general likewise discreetly forbears to express the certainty which the legislature demanded. Since they lack official authentication the so-called “General Statutes of 1897” -never’ became more than a private compilation, and are not even prima facie evidence of the statute law of the state.
The reference in the act of 1901 to section 49 of chapter 101 of the Webb compilation did no more than identify a subject of legislative cognizance. It did not change the character of the work, or legitimate the partition of section 8 of chapter 149 of the Laws of 1885.
The act of 1897 conferred no authority upon Mr. Webb to make a revision of the laws of the state. He was granted no power to restate the statutes in any supposedly improved or corrected form, or to supplant them with anything not previously formulated. His work was merely that of a compiler, with some discretion concerning the printing of the purely formal parts of the statute and over the arrangement of subjects. He could promulgate nothing to take the place of existing law. He possessed no legislative' power, and the legislature could not adopt his compilation as a work of revision and make it a new declaration of the law except according to the forms and methods prescribed by the constitution. When the act of 1901 was passed the form of section 8 of chapter 149, Laws of 1885, had not been legally changed from that which the enrolled bill deposited in the office of the secretary of state still bears.
In the parliamentary practice of England, the United States, ‘and all other countries where the science of legislation has been cultivated and developed, it is customary to divide legislative enactment^ into sec-, tions. (Town of Martinsville v. Frieze, 33 Ind. 507, 509.) By.the constitution of this state the section is made the indivisible unit of the legislative fabric. To insure the diligent attention of the legislative mind, the reading of a bill by sections at the time of final passage in no case can be dispensed with. (Const., art. 2, § 15.) To prevent members of the legislature from practicing deception by the enactment of blind and confusing amendments, to prevent them from misleading themselves and the public as to changes in the law, and to remove the difficulties and uncertainties accompanying extended examinations and comparisons of various acts to ascertain the true state of the statute law upon any subject (The People v. Mahaney, 13 Mich. 481), the constitutional provision quoted above was adopted by the people, making it necessary to embody in every amendatory act the entire section or sections amended and providing that the section or sections amended shall be repealed. This constitutional requirement is mandatory and invalidates all acts in contravention of its terms. (The State v. Guiney, 55 Kan. 532, 40 Pac. 926; In re Ashby, 60 Kan. 101, 55 Pac. 336; 26 A. & E. Encycl. of L. 709.)
The chopping up of section 8 of chapter 149, Laws of 1885, in the Webb compilation wrought the very mischief which the constitution sought to guard against. The legislature was misled. Believing section 49 of that work to be a complete section the legislature dealt with it as such, disregarding the matter contained in section 50, with which it had been inseparably united. The full extent of the amendatory purpose is indicated with exactness and precision. There was no intention of altering or rescinding the part of section 8 which Webb’s section 50 covers. The first part of section 8 plants the seed; the second part reaps the harvest. The one secures evidence; the other declares the use to be made of it. Without the second part it would be idle to pursue the course outlined in the first. The legislature might as well have said: “The first 27-£- lines of section 8 of chapter 149, Laws of 1885, are stricken out and in lieu thereof the following is inserted,” etc. If the act of 1901 were valid there would be left a truncated section 8 of chapter 149 of the Laws of 1885, and there would be created an actual section 49 of chapter 101 of a book which does not evidence the law. The mandate of the constitution having been disregarded in the enactment of chapter 233 of the Laws of 1901, it is void.
It is not necessary, in view of the conclusion which the court has reached, to discuss other questions presented by the record. The judgment of the district court is reversed, with direction to quash the information.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This action was commenced by C. A. Fronk, as administrator of the estate of Elmer Tindall, deceased, to recover damages for the death of Tindall, alleged to have been occasioned by the negligence of the servants and employees of the defendant, the Atchison, Topeka & Santa Fe Railway Company.
It was alleged in the petition that at the time Elmer Tindall received the injuries from which he died he was in the service of the defendant as a student brakeman on a freight-train; and that through the negligence of the agents, servants and employees of the defendant company there was a collision between another freight-train and the one upon which Elmer Tindall was riding, causing his death.
In avoidance of its liability the defendant pleaded the following contract between it and Elmer Tindall, entered into before it admitted him upon its trains as a student brakeman, and alleged that it was under the terms and conditions of this contract that Tindall was upon its train when he was killed:
“Application to Learn Work op Freight Brakeman or Fireman, and Release.
“Whereas, I, the undersigned, Elmer Tindall, residing at Hoisington, in the state of Kansas, and being twenty-five years of age, desiring to learn the work necessary to fit myself for the occupation of a brakeman on freight-trains, have applied to the Atchison, Topeka & Santa Fe Railway Company for an opportunity of learning said work, and to that end have requested the privilege of working on and about the locomotives, trains and cars of said railway company without expectation or promise of receiving wages or any pay whatever for work so done during such time, and without being considered as an employee of said company during said time; and
“Whereas, the railway company is willing to grant me the privilege above applied for on the representation and statement above made, but on account of the dangers to which I may be exposed also requires that the railway company, its officers and agents, shall be relieved from all liability for damage, injury or death sustained by me while so working, or while riding, walking or standing on or about such locomotives, trains or cars, or while on or about the property or premises of the railway company;
“Now, therefore, in consideration of said company •» granting me the privileges hereinbefore mentioned, I do hereby agree to and do hereby assume all dangers of such work and risks of injuries which may be sustained by me in or about such work, whether the same may be caused by or arise from the negligence of the railway company or of the officers, agents or servants thereof, or otherwise, or which I may receive from any' cause whatever during the term of my connection with said company in learning the work aforesaid; and I hereby release and forever discharge said Atchison, Topeka & Santa Fe company, and the officers and agents thereof, from any and all claims, demands, •suits or liabilities of any kind for death or for any injury that I may sustain, whether the same may be caused by or arise from the negligence of the said railway company, or of the officers, agents or employees thereof, or otherwise, during the term of my connection with said company in learning the work aforesaid, while upon or about such locomotives, trains or cars, or while walking or standing on or about the same, or while on or about any such property or . the premises of said railway company; and I further agree that I will not claim any wages or compensation for any work that I may do during such time, nor claim to be in the employ of said company nor an employee thereof during such time.
“Witness my hand and seal, at Dodge City, state of Kansas, this 4th day of August, 1904.
[seal.] Elmer Tindall.
“Signed in presence of H. C. Duncan, witness.”
To this defense the plaintiff demurred, the demurrer was sustained, and the defendant brings the cause here for review.
The relation of the parties at the time Elmer Tindall was killed is one of the controlling questions in this controversy. The plaintiff in error contends that by the contract under which Tindall was permitted to go and remain on its trains he was a mere licensee for his own personal benefit, and by the contract had expressly waived any claim for damages resulting to him in consequence of the negligence of the company’s agents, servants or employees. In determining the relation of parties courts are not bound by the agreements of the parties as to what such relations, shall be or as to the legal effect of the terms of the contract. Notwithstanding such agreements, whenever the question is properly presented courts will analyze the elemental facts of the agreement and determine there- ' from the actual relations of the parties.
In Railway v. Ivy, 71 Tex. 409, 9 S. W. 346, 1 L. R. A. 500, 10 Am. St. Rep. 758, which was an action for damages for a personal injury sustained by one who was shipping cattle under an agreement, indorsed on the back of the shipping contract, that the shipper was an employee of the railway company, it was said:
“By the agreement indorsed on the back of the contract he agrees that he is the employee of the company, but that is evidently a fiction to provide for the release of the company from damages for personal injuries occasioned by the negligence of its servants. It is a pretense, a subterfuge, upon which to predicate the discharge of the company for damages in a plausible form. The true relations of the parties cannot be changed by such an agreement. It states a fact which is untrue; the agreement that it is true does not make it so. It amounts to this: Knowing that a contract would be of doubtful validity that absolved the . company or limited its liability as a common carrier of passengers, the contract was devised in which the passenger acknowledges himself to be an employee of the company, so as to contract for its limited liability upon such relation, and give it the semblance of legality. If the liability of a common carrier cannot be limited in express terms, and by a direct agreement, it cannot be done upon false or counterfeited relations.” (Page 413.)
Persons capable of contracting are at liberty, inter partes, to make any contract that may to them seem advantageous, provided, however, such contracts do not attempt to transgress the law or contravene public policy. But in the exercise of their right to contract persons are powerless, by contract or otherwise, to conclude one another by agreeing to place upon the terms of their agreements a legal construction different from that which the law places upon them, or a construction prohibited by public policy! Going beyond the mere conclusions stated in the contract and analyzing the facts as they appear from the contract itself, for the purpose of determining the actual relations of the parties at the time Tindall was killed, the conclusion is irresistible that he was in the service of the railway company, and, as between him and the company, while in the discharge of duties assigned to him, was entitled to protection from the negligence of the company’s servants.
The contract is adroitly drawn. Its apparent purpose is to relieve the company from liability to Tindall for injuries sustained while working for the company in consequence of the negligence of the company’s agents, servants or employees. In expressing the duties to be performed by Tindall the language is permissive only, but the services which the agreement contemplates that Tindall should perform for the company are sufficient to justify the conclusion that while performing such services he was an employee of the company. The railway company was not conducting a free, school for the education of freight brakemen, nor was Tindall riding gratuitously on the defendant’s train at the time he was killed, but was working for the company, assisting in the operation of the train. Notwithstanding the agreement to the contrary, the elemental facts created the relation of master and servant. The compensation of the company for the privileges granted to Tindall, was. the work to be performed by him as freight brakeman.
In California a railroad company is not liable for injuries to an employee in consequence of the negli gence of a coemployee, and in Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, 83 Pac. 439, the relation of a railroad company to A student brakeman who was working for the purpose of qualifying himself for a brakeman, and for no other consideration, was considered. It was urged by the railroad company that the brakeman was an employee. The court said that it was unnecessary in disposing of the appeal to determine the relation of the parties, but it “has been discussed by counsel; and its determination may be necessary for the purposes of a new trial” (page 429), and proceeded to pass upon the question, using the following language:
“As such ‘student brakema-n’ he was entirely subject to the orders of defendant, and was required to perform such ordinary duties of brakeman as were allotted to him, just as fully as if he had been assigned regular employment for a pecuniary compensation by defendant. It is difficult to conceive of any reason why one situated as these circumstances show plaintiff to have been should be held to be other than an employee of the defendant, subject to all the obligations imposed by that relation. He was certainly in the service of defendant, regularly engaged in the doing of the defendant's business. The simple fact that he was not to be paid any money for his services cannot affect the question. It was perfectly competent for him to agree to serve an apprenticeship without pecuniary consideration. The important thing is that he voluntarily entered and was engaged in the service of the defendant upon such terms as he had seen fit to agree to. While so engaged in such service there was no distinction material to the question under discussion between his situation and that of the other employees on the train.” (Page 430.)
A similar question was before the federal court in Huntzicker v. Illinois Cent. R. Co., 129 Fed. 548, 64 C. C. A. 78, where a young man wishing employment as flagman, upon applying to the railroad company for such position, was informed that he had not had sufficient experience. He then applied for, and was granted, permission to go upon the trains of the com pany and by observation and experience learn what the duties of a flagman were. While so engaged, and upon his own application, he was ordered to appear at the trainmaster’s office to be reexamined as to his proficiency. While riding upon a train to the train-master’s office for such purpose a collision occurred and he was killed. In determining the relation of the parties the court said:
“As there was no controversy over the facts, the question became one of law, and the court performed a duty of its own in deciding it. The agreement between the parties, reduced to its elements, was that the defendant was to furnish the plaintiff the facilities for qualifying himself for the duties of a flagman; that is to say, it was to give him instruction and transportation over its road; not such transportation as is due to a passenger, but such as is ordinarily incident to the operation of freight-trains by men in that service. In consideration of this, Fereday was to perform such elementary and simple service as he was capable of under the direction of the conductors of trains. . . .
Applying the controlling principles which we have indicated to the present case, it seems clear that Fereday at the time of his death was a servant of the defendant. He was enjoying the privilege for which he served. He was under the control of the defendant, and the company would undoubtedly have been- responsible for the manner in which he performed his service; and, what is more important, under the test above stated he had no interest whatever, other than that which any servant has in the result of his service, in the consequences of the discharge of his duties. We are therefore of opinion that the court did not err in its direction to the jury.” (Pages 549, 551.)
In the cases cited there was no contract attempting to determine the relation of the parties. The law, however, determines that question, and it must be held in this case that the relation was that of master and, servant.
It is also contended that the waiver by the deceased of any claim for damages for injuries in consequence of the negligence of the company, its employees, agents, or servants, is a complete defense in this action. With this we do not agree. Our statute provides:
“Every railroad company organized or doing business in this state shall be liable for all damages done to any employee'of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage.” (Gen. Stat. 1901, § 5858.)
The state has an interest in the lives, health and safety of its citizens, and whenever a business, although lawful in itself, is dangerous to the lives or injurious to the health of the employees engaged in conducting such business it becomes a question of public concern and the state may intervene in the interest of the public welfare. We have many such statutes enacted in the interest and for the protection of different classes of citizens. The owner or lessee of coalmines worked by means of shafts is required to maintain escapement and ventilating shafts in accordance with certain prescribed rules, and no person is permitted to take more than five pounds of powder in any such mine at one time. The protection thus provided by the state for the safety of its citizens is a matter of public concern and cannot be contracted away by the individual. In many other states we find instances where the state has intervened for the protection of its citizens who are engaged in business hazardous to health. In Utah a statute was enacted prohibiting a certain class of miners from laboring more than eight hours in each twenty-four. 'A contract was made between an employer and one of his employees that the employee should work twelve hours in each twenty-four. An action was brought by the employee to recover for the time 'so worked over the eight hours. In passing on the question, in Short v. Mining Co., 20 Utah, 20, 57 Pac. 720, 45 L. R. A. 603, the court said:
“We are further of the opinion that the right to waive this legislative protection is without the power of the employee. This law is in the nature of a state police regulation. Its object is the good of the public as well as of the individual. The state in this matter has intervened in its own behalf. This protection to the state cannot at will be waived by any individual, an integral part thereof. The fact that the individual is willing to waive his protection cannot avail, the public good is entitled to protection and consideration, and if in order to effectuate that object there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good.” (Page 25.)
A similar question arose in Rhode Island, in Opinion to the Governor, 24 R. I. 603, 54 Atl. 602, 61 L. R. A. 612, relating to the ten-hour law for street-railway corporations. The question arose under a law limiting the hours of the labor of an employee on a street-car. Two questions were submitted by the governor to the judges of the supreme court: (1) Is the law constitutional? (2) If constitutional, can it be waived by contract? The first was answered in the affirmative, and on the second question it was held that the purpose of the law was to limit the continuous service of such employees in the interest of public safety, and that public safety cannot be made to depend on private contract. In considering a similar question in Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, the court said:
“But the fact that both parties are of full age and competent to contract does not necessarily deprive the state of the powe!r to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. ‘The state still retains an interest in his welfare, however reckless he may. be. The whole is no greater than the sum of all the parts, and when the individual health, safety and welfare are sacrificed or neglected, the state must suffer.’ ” (Page 397.)
For the reasons suggested, a contract by one entering the service of a railroad company waiving his right of action for damages which he may receive in consequence of the negligence of its agents, servants or employees is void.
The judgment of the trial court is affirmed, and the cause is remanded with instructions to proceed in accordance with the views herein expressed.
Johnston, C. J., Mason, Smith, Porter, Graves, JJ., concurring. | [
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Per Curiam:
This is an original proceeding in mandamus, brought by the state of Kansas upon the relation of C. C. Coleman, as attorney-general, asking for an order commanding C. E. Woodbury, clerk of the district court of Crawford county, to file papers in an injunction suit:
The application for the writ states that George H. Stuessi, as assistant attorney-general of Crawford county, on February 17,1906, presented to C. E. Wood-bury, clerk of the district court of Crawford county, his verified petition praying for a permanent injunction against. Peter Esch and Herbert Mousney, restraining them from maintaining a place where intoxicating liquors were sold contrary to law, and also a precipe for summons, and his application in proper form for a temporary injunction on behalf of the state of Kansas against Peter Esch and Herbert Mousney, enjoining them from maintaining a place where intoxicating liquors were sold in violation of law during the pendency of the suit for a permanent injunction; that Stuessi requested C. E. Woodbury, as clerk of the district court of Crawford county, to receive and file the papers and issue a summons to the defendants therein; and that C. E. Woodbury, in violation of his duty as clerk, refused to file the papers and refused to permit the assistant attorney-general for Crawford county to commence such suit and to institute such proceedings.
An alternative writ was allowed, and C. E. Wood-bury was commanded to file the papers so presented and issue the summons as prayed for or show cause why he should not comply with such order on or before a day named in the writ. Instead of complying with the order, C. E. Woodbury made a return upon the writ stating the following reasons why he had not so complied: That a similar case had been instituted in the district court of Crawford county by Stuessi, as assistant attorney-general for Crawford county, and upon application made to the district court it had been held that Stuessi, as such assistant attorney-general; had no authority to institute such proceedings, and the cause was dismissed; and that this judgment was not appealed from or reversed. This he concludes is a justification for his refusal. This defense or reason for his non-compliance with the order of this court appears to have been abandoned in this court by his counsel, whose only .contention is that this court had no, jurisdiction to issue the writ of mandamus.
The contention is that such application must be presented to the district court. This is generally correct, and unless some reason is given why the application has not been made to the district court this court will not act. The return of the defendant to the writ, however, furnished ample reasons why it would have been futile to apply to the judge of the district court. If the facts stated in the return are true, it would have been a useless waste of time and energy to apply to the district court. This is never required. That court had passed upon the right or authority of the assistant attorney-general to institute such proceedings, and had held that no such authority was vested in him. Under a showing of such facts, this court may act in the first instance. This being the only question presented the peremptory writ is allowed.
It is therefore ordered that C. E. Woodbury, as such clerk, upon presentation, receive and file the petition and precipe for summons, and issue the summons thereunder. | [
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Per Curiam:
This was an action of ejectment by-Harry Abrams against his son, Alfred Abrams. The case was tried by the court, and judgment was for defendant. Plaintiff complains.
The court made findings of fact. The transaction was one between father and son. The formalities characterizing dealings between business men were not employed, but out of all that was said and done legal rights were created which the law will protect. Either the plaintiff bought the land or the defendant bought it. The deed to the plaintiff was either as owner or by way of security for an advancement to the defendant. Possession was taken by the defendant either as owner or as tenant. The defendant did make lasting and valuable improvements upon the land. Although they were unpretentious they made a Kansas home.
The testimony relating to these matters was conflicting. The plaintiff told one story, while the defendant and his witnesses told another. Different inferences might be drawn from the testimony given. The demeanor of the witnesses while testifying might have been such as to indicate who’ affiliated more closely with the truth. The refusal of the plaintiff to accept a sum of money offered him by way of payment, and his insistence that it was only rent, was merely a circumstance to be considered with all the other evidence in the case. The facts having been settled by the district court upon sufficient evidence this court will not interfere.
The findings of the court are that the defendant himself purchased the land and immediately moved upon it, placed a dwelling-house thereon, made other lasting and valuable improvements, and has ever since continued to occupy the premises with his family. This being true, the defendant owns the land, whether he has paid the man who furnished the money to buy it or not, and cannot be ejected for failure to pay his debt. The court further found that the deed to the plaintiff was a mortgage to secure the price of the land. A verbal agreement to that effect is sufficient to convert an instrument in form a deed into a mortgage. The plaintiff, being a mortgagee, can do nothing but foreclose his lien. These propositions are all elementary in the law.
The defendant did not buy of the plaintiff and the question of the statute of frauds does not properly arise between them. So far as this case is concerned the legal effect of the transaction is the same as if the defendant had first taken a deed and then had mortgaged to the plaintiff. But in any event this court long ago held that taking possession of land and making lasting and valuable improvements upon it under a parol agreement of sale takes the case out of the statute. (Newkirk v. Marshall, 35 Kan. 77, 10 Pac. 571.) Likewise under the findings of fact no question of trust is presented.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff in this case claims to have suffered injuries on account of the negligent conduct of the defendant in the operation of one of its streetcars, which she attempted to board. The petition alleges that an open car, with a running-board at its side, stopped for the plaintiff at a place where passengers were usually received; while the car was standing still she stepped upon the running-board with her right foot, and placed her left foot upon the floor of the car; before she had an opportunity to lift her right foot from the running-board and place it upon the floor of the car the employees in charge negligently, carelessly and without any warning caused the car to start forward suddenly, swiftly, and with a jerk, and to run around a curve in the track with great speed, thereby throwing plaintiff from the car to the pavement.
On the trial evidence was given in support of the allegations of the petition. The plaintiff herself described the occurrence and stated, among other things, that when she boarded the car she took hold of and held to a stanchion running up from one of the seats, that there was nothing to impede her entrance into the car, and that the car was obliged to move a considerable distance before it came to the curve in the track. The defendant produced no witnesses with knowledge of the accident.
Disregarding many of the allegations of the petition, and much of the evidence, the court directed the jury to find a verdict for the plaintiff under the following circumstances:
“If you believe from the preponderance of all the evidence that on or about the 9th day of June, 1890, the Metropolitan Street-railway Company usually stopped its cars for the purpose of receiving and discharging passengers near the intersection of Third street and Minnesota avenue in Kansas City, Kan., and that the plaintiff went to said place for the purpose of boarding one of the trains of cars of said' company, and that one of the trains of cars of said company stopped at said place for the purpose of receiving passengers thereon, and that the plaintiff attempted to board one of the cars of said company at said place •while the same was standing still, and that just as she was in the act of getting up into said car, and while she had one foot on the running-board of said car and one foot on the floor thereof said car was started forward without any warning to the plaintiff, and that she was carried some distance on said car, and as the car was rounding a curve she was thrown from said car, whereby she was injured and by reason of said injuries sustained physical pain or financial loss as the direct and proximate result thereof, then you should render a verdict for the plaintiff; unless you further believe from the preponderance of all the evidence that the plaintiff could have avoided the injuries which she received at the time and place in question, by the exercise of reasonable care and prudence on her part, and failed to exercise such reasonable care and prudence for her own safety and thereby directly contributed to the cause which produced her injuries, if any she received at the time and place in question, when, under such circumstances, you should render a verdict for the defendant.”
The plaintiff argues in favor of the correctness of this instruction as if it were designed to express the rule of law relating to the presumption of negligence on the part of a carrier arising from proof of an accident to a passenger. That rule and its limitations, are stated in the case of Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439. It relates to burden of proof, and should not be confused with the question of what constitutes negligence per se. According to that rule, when proof of an accident to a passenger is made a prima facie case of negligence on the part of the carrier is presented, and no more. The defendant is then called upon to explain, but it has- the right to make its explanation from the plaintiff’s own evidence if it can; and if upon that evidence different minds might reach different conclusions respecting the character of the defendant’s conduct the juryt should be allowed to say if a recovery is warranted. The rule is the same in this respect as it is in reference to contributory negligence — a pure matter of defense which may be derived from the plaintiff’s own testimony. The case of Gleeson v. Virginia Mildand R’d Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458, quoted in Railroad Co. v. Burrows, supra, is clearly to this effect. In the Glee-son case it was said:
“When he [the plaintiff] proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” (Page 444.)
So here, if the circumstances enumerated in the instruction were found by the jury they still had the right to consider other facts appearing in the proof and to determine from all the evidence whether the defendant exercised the caution the law requires.
' If it be said the evidence, relating to the accident was substantially all one way, the reply- is obvious that the defendant had the right to the opinion of the jury upon the credibility of the plaintiff’s witnesses and the quantity of truth their statements contained. Those witnesses were the plaintiff herself, her sister, and a discharged employee of the defendant. None of them was likely to be biased in favor of the defendant. Their testimony was given fifteen ’ years — lacking a month — after the accident occurred, and upon the first trial of the case. The fact that the plaintiff had a grasp upon a secure support and that there was nothing to hinder or delay her progress was important in estimating the defendant’s care for her safety when starting the car. Remembered through the years, the violence of the jerk, if there was one, and the speed of the car may have loomed large, .while a simple failure of the plaintiff’s strength, causing her to fall off, may have been overlooked. These matters were all eliminated from the case by the instruction quoted, and the jury were deprived of the opportunity Of interpreting •the evidence as a whole in measuring the defendant’s liability.
The instruction referred to advises the jury that if certain enumerated facts are established by the evidence the verdict should be for the plaintiff. One of those facts is the failure to give warning before starting the car. This court knows of no general rule of law im posing upon street-car companies the duty of warning passengers who have mounted a standing car -that it is about to proceed. Whether or not a warning was necessary under the circumstances for the protection of the plaintiff in this case was clearly a question for the jury. In other respects this court is unwilling to say that the facts recited in the instruction make a case of negligence per se. In the light of the knowledge common to all men the jury might have concluded the company exercised due care, and had they done so this court could not have vacated the verdict.
(89 Pac. 656.)
SYLLABUS BY THE COURT.
Railroads — Injury to Passenger — Negligence a Question of Fact. On the trial of a controversy of the character of the one disclosed by the record in this case it should be left to the jury to say not only what the facts are but whether under all the circumstances the conduct of the defendant was negligent.
Want of care on the part of the plaintiff could not be considered in determining whether the defendant fulfilled its duty toward her; hence the latter part of the instruction does not aid that which precedes it.
The court adheres to the views expressed in the case of Williams v. Railway Co., 68 Kan. 17, 74 Pac. 600, 64 L. R. A. 794, 104 Am. St. Rep. 377. Other questions argued in the briefs and at the bar need not be considered. The judgment of the court of common pleas is reversed, and the cause is remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was tried, convicted and sentenced for murder in the second degree for the killing of Charles Wetzel in Graham county, and appeals to this court. In attacking the proceedings of the trial court numerous errors are assigned, but the questions raised may all be considered under the following heads: (1) The sufficiency of the information as embracing the charge of murder in the second degree; (2) the sufficiency of the evidence, and variance therein; (3) the instructions given and refused; and (4) the rulings, on the motions in arrest of judgment and for a new trial. The charging part of the information in this case reads as follows:
“That on or about the 15th day . of November, A. D. 1905, in said county of Graham and state of Kansas, one Charles Keleher did then and there unlawfully, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, kill and murder one Charles Wetzel, then and there being, by striking him, the said Charles Wetzel, on the head with a deadly weapon, the same being a singletree, or other blunt instrument; a better description of said deadly weapon the plaintiff is unable to give. The said deadly weapon, he, the said Charles Keleher, then and there in his hands had and held. And so the state of Kansas, plaintiff, says that at the time aforesaid and by the means aforesaid and in the manner aforesaid he, the said Charles Keleher, did unlawfully, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, kill and murder Charles Wetzel, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”
The statute defining murder in the first degree reads as follows:
“Every murder which shall be committed by means of poison or by lying in wait, or by any kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration [of?] or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree.” (Comp. Laws 1862, ch.. 33, §1; Gen. Stat. 1901, § 1991.)
The section defining murder in the second degree reads:
“Every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree.” (Gen. Stat. 1901, § 1992.)
It is contended by appellant that under the statutory definition of murder in the first degree there are four different kinds of murder provided for. The brief reads:
“In other words, murder in the first degree may be committed in four different ways: First, by means of poison; second, by lying in wait; third, by any other kind of wilful, deliberate and premeditated killing; fourth, when the killing is committed in the perpetration or attempt to perpetrate some other felony. We take it from the reading of this statute that in the first three ways in which murder may be committed as defined by this statute the wilful intent to kill is one of the essential ingredients, and in order to convict a defendant of murder in any one of these three ways the wilful, deliberate and premeditated intent to kill must be alleged and proven.
“Under the fourth provision of this statute it may not be necessary to prove any intent to kill, and an information might be good and might be'sustained by proof which was entirely wanting in either allegation or proof upon any intent of the defendant to kill the deceased. . . . Under this statute [referring to the statute defining murder in the second degree] the intent or purpose with which the act is done by which the life of the deceased may be destroyed is made an essential ingredient of the offense charged, and in order to convict of murder in the second degree the purpose or intention with which the act that results in the death of the deceased is done must be alleged and proven, and such is the law as declared by this court. [Citing The State v. Young, 55 Kan. 349, 40 Pac. 659.] ”
The argument is quite ingenious and interesting, but is not consistent with the authorities nor- with itself. By implication it makes murder in the second degree a greater crime than the “fourth” kind of murder in the first degree, in that it is said that under this “fourth” kind an information might be sustained that was wanting in allegation or proof of any intent of the defendant to kill the deceased. So far as the language of the statute is concerned this might with equal reason be said of murders committed by means of poison or by lying in wait. The language employed in the statute to define murder in the first degree is generations old and had a well-settled meaning long before it was adopted in this state. It was adopted in the state of Pennsylvania in 1794. The settled meaning is uniformly held to be that to constitute the first degree of the crime the homicide must be committed wilfully, dedeliberately and premeditatedly, but it is not necessary to constitute the crime that death should be the wilful, deliberate and premeditated purpose and object of the act which constitutes the crime. It was said as early as 1813, by Mr. Chief Justice Tilghman, in White v. Commonwealth, 6 Binn. (Pa.) 179, 6 Am. Dec. 443:
“In an indictment for murder, it is not necessary so to describe the offense as to shew whether it be murder of the first or. second degree. ... It has not been the practice, since the passing of this law [which in defining murder in the first degree is identical with our • statute, except that the words “or other felonies” are omitted], to alter the form of indictments for murder in any respect. ... It seems to be taken for granted that it would not always appear on the face of the indictment of what degree the murder was, because the jury are to ascertain the degree, by their verdict.” (Pages 179, 183. See, also, Commonwealth v. Flanagan, 7 W. & S. [Pa.] 415, decided in 1844.)
At the common law it was not essential to allege or prove the specific intention to kill, if the act from which death ensued was malum in se or done with a design to commit a felony. (1 Whart. Crim. Law, 10th ed., § 120; 2 Bish. Crim. Law, 7th ed., § 694.) Our statute defining murder in the first degree is identical with the Missouri statute, from which it was probably taken, and the same doctrine is there maintained as in Pennsylvania. (The State v. Meyers, 99 Mo. 113, 12 S. W. 516; State v. Foster, 136 Mo. 653, 38 S. W. 721.) Proof that a homicide was committed in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree.
The only essential difference between murder in the first degree and murder in the second degree is that the former is committed after deliberation and premeditation, which elements do not inhere in the lower grade of the crime; but all the elements of murder in the second degree are included in the statutory definition of murder in the first degree. It is inconceivable that a person could premeditate the killing of another and deliberately proceed to consummate the act without purposely and maliciously committing the murder. While the intent to kill or to do the wrongful act which results in the death is an essential element in the second degree of murder, it is not necessary specifically to allege or prove such element. It is included in the charge of murder in the first degree. As to the proof, the intent may be inferred from the accomplished fact’ of the killing and the manner in which it was done. It is said in volume 1 of Bouvier’s Law Dictionary (subject, “Intention”) :
“When by the common law, or by the provision of a statute, a particular intention is essential to an offense, or a criminal act is attémpted but not accomplished, and the evil intent only can be punished, it is necessary to allege the intent with distinctness and precision, and to support the allegations with proof. On the other hand, if the offense does not rest merely in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful or criminal act, the evil intention will be presumed, and need not be alleged, or, if alleged, it is a mere formal averment, which need not-be proved. Bigelow, C. J., 2 Allen, 180; 1 Chitty, Crim. Law, 233; 6 East, 474; 5 Cush. 306, 52 Am. Dec. 711; 153 U. S. 608, 14 Sup. Ct. 939, 38 L. Ed. 839; 93 N. C. 516.”
Every case in this court (and there have been many) in which a conviction of murder in the second degree has been sustained although’ the crime charged was murder in the first degree and the information did not specifically charge that the murder was “committed purposely and maliciously” is, in effect, an affirmation of the doctrine announced in Bouvier, supra. The language used in The State v. Young, 55 Kan. 349, 40 Pac. 659, seems to support the contention of the appellant, but a reading of the case shows that the question here involved was not in that case. The information did not formally charge murder in either degree, but charged that the act that caused the death was done with a specific intent to consummate a wrongful act which was not denounced as a felony, nor as any crime, by any valid statute of the state. The information in this case sufficiently charges the crime of murder in the second degree as well as in the first degree. (The State v. Kirby, 62 Kan. 436, 63 Pac. 752; The State v. Terreso, 56 Kan. 126, 128, 42 Pac. 354; Craft v. The State of Kansas, 3 Kan. 450; The State v. Smith, 38 Kan. 194, 16 Pac. 254.)
The foregoing remarks apply also, in a measure, to the instructions to which objection is made and to the alleged variance between the allegations of the information and the proof. It is contended that the court erred in its instruction No. 22, relating to conspiracy to commit crime. There was evidence tending to show a conspiracy between the defendant, Keleher, and Roberts, who did the killing, to steal Wetzel’s money from a barn where it was supposed to be hidden. There was also evidence of a conspiracy to get Wetzel to take a .trip with them on the cars and rob him of the money. After instructing correctly as to the conspiracy to rob, the court said:
“If, however, you do not so find, but do find by the evidence, beyond a reasonable doubt, that they conspired to steal Wetzel’s money but not to take it from his person by violence, and that in furtherance of such common design and in carrying out such common purpose Roberts killed Wetzel, the defendant if absent would be guilty only in case such killing was the natural and probable outcome of the execution of such common design.”
This portion of the instruction is .a complete proposition in itself, and is not modified by any other portion of this instruction or by any other instruction, and it is erroneous. The killing of a man at a place far removed from where his money was supposed to be hidden, by one of two conspirators who planned to steal his money in his absence from a barn where it was supposed to be hidden, cannot be the natural and probable outcome of the conspiracy to steal. It is true that, when one has the consent of his own mind to obtain money by stealing it, it is but a step further to obtain it by robbery, and but another step to obtain it by murder; but the law does not impose upon a conspirator who joins only in the plan to steal any responsibility for these descending steps of his associate. The conspirator is responsible only for such acts of his associate as are the natural and probable outcome of their agreement, as the court elsewhere well told the jury. It was error for the court to instruct that they might determine whether the killing was the natural and probable outcome of the conspiracy to steal when there was no evidence to justify such conclusion but on the other hand all of the evidence and circumstances connected with the killing showed a complete abandonment of their plan, which involved not even an assault, much less a murder, arid the adoption of another and independent plan to obtain the money. (The State v. Furney, 41 Kan. 115, 21 Pac. 213, 13 Am. St. Rep. 262.) We have examined all the instructions and find that otherwise they 'fairly presented the law applicable to the case.
While from their evidence, as it appears in the record, we might conclude differently than did the court as to the qualifications of some of the jurors, we are not in an equal position to determine this question and cannot say that the record shows error in overruling the challenges for cause or in not considering as sufficient grounds for a new trial the remarks attributed to certain of the jurors out of court.
The only remaining question which we consider it necessary to discuss is the denial of the appellant’s amended motion for a new trial. On the trial of the appellant, who had been arrested and charged with the murder on the strength of a confession made by Leland Roberts, who at all times admitted that he alone dealt the blows which caused the death of Wetzel, Roberts was the only witness who testified to any conspiracy between himself and Keleher to obtain Wetzel’s money in any manner, and the only witness to testify to the presence of Keleher at the time of the killing or in anyway to connect- Keleher therewith. There were other witnesses who testified to the association of Keleher with Roberts and Wetzel shortly • before the killing, and there were witnesses whose evidence tended to establish an alibi for Keleher at the time of the killing of Wetzel. At the trial Roberts testified to an agreement between himself and Keleher to get Wetzel to go with them and steal a ride in box cars to Kansas City and on the way to get.Wetzel drunk or to catch him asleep and take his money from his person; that in pursuance of the plan they had obtained Wetzel’s consent to go with them, and the three had started down the railroad-track from .the depot in Hill City, intending to board a freight-train which was about due to arrive from the west; that as they were walking along the railroad-track Roberts picked up a singletree of a wagon, and, Wetzel having sat down for some purpose, Roberts struck him repeated blows on the head with the singletree and killed him; that Keleher took no part in the killing, but was present and immediately' thereafter helped dispose of the body and received part of the money taken from the clothing upon it.
On this evidence, after the instructions had been given and arguments of counsel had been made, the case was submitted to the jury and a verdict of guilty of murder in the second degree was returned. Thereafter, in due time,- motions in arrest of judgment and for a new trial were filed by the defendant, and, pending the hearing of the decision of the motion for a new trial, Leland Roberts was arraigned on the information for the murder of Wetzel, which had been filed against him, and pleaded guilty to murder in the second degree, which plea was accepted by the court on the consent of the county attorney. Thereupon Roberts was asked by the court if he had any legal excuse to offer why judgment should not be pronounced against him. In reply he said h¿ wished to make a statement, and, hav ing the permission of the court so to do, he proceeded to detail the circumstances of the murder and declared in substance that Keleher had nothing to do with it; that Keleher was not present at the time of the killing, did not aid in disposing of the body, did not receive any of the money, and did not conspire with him (Roberts) to rob Wetzel or to steal his money.
Thereafter the attorneys for appellant filed a supplemental motion for a new trial on the ground of newly discovered evidence, the court granted a hearing thereon, and a number of witnesses were orally examined in court. Several witnesses testified • that Roberts had stated to them, in substance, that Keleher had nothing to do with the murder, and Leland Roberts repeated under oath substantially the statements he had made to the court on his arraignment. The record of the action of the court after the evidence on the motion was concluded is as follows:
“And thereupon after due consideration the said motion for a new trial is by the court overruled, the court holding that the evidence is insufficient to prove that the defendant was present at. the time and place of the killing of the deceased and participated in the act of killing, but holding that it is sufficient to prove him guilty as accessory before the fact, and as a conspirator under the law.
“To the ruling of the court in sustaining the verdict. and in overruling the motion for a new trial the defendant at the time duly excepted.”
The instructions permitted the jury to find Keleher guilty, first, if they found he was present at the killing and aided or abetted Roberts therein; second, if they found that Keleher and Roberts conspired to rob Wetzel before the killing; and, third, if they found that Keleher and Roberts, before the killing, conspired to steal Wetzel’s money from the barn and that the murder of Wetzel was the natural and probable result of this conspiracy. We have found as a proposition of law that the murder could not have been the natural or probable result of the conspiracy to steal the money from the barn. In the absence of any connecting link the murder could not have resulted from such an agreement. It involved a new and independent plan for getting the money.
There remain, then, only two facts upon the finding of which against the appellant he should have been held responsible and found guilty of the murder: (1) The conspiracy to rob; (2) the presence of the appellant, aiding and abetting in the murder. The court, after hearing the evidence on the motion for a new trial, found that the evidence did not sufficiently establish the fact that appellant was present, aiding and abetting, at the time of the murder, but was sufficient to prove him guilty as a conspirator. It cannot be said which or how .many of the three facts- that the court submitted to the jury as severally the basis of a conviction they found against the appellant, and it cannot be said which of the two conspiracies the court, after hearing the evidence on the motion for a new trial, found to be sufficiently proven by the evidence. Nor can it be said that the jury would have agreed with the court if they had heard the evidence of Roberts on the motion. The jury, it may be presumed, were justified in finding the appellant guilty of murder upon two of the three basic questions of fact which the court properly submitted to them, although upon the uncorroborated testimony of a confessed murderer, but they might have hesitated before saying that guilt was established beyond a reasonable doubt when the self-confessed murderer became a self-confessed perjurer and swore that the evidence upon which the jury had relied and had found appellant guilty was false in toto.
Except when an accused pleads guilty of the crime charged, it is the theory of the law that he can be punished only upon the unanimous verdict of twelve qualified jurors and the approval of the verdict by the trial court. Can it be said that this verdict was approved by the court?
We have found that the court misdirected the jury in a material matter of law, viz., the conspiracy to steal, and this is a statutory ground for granting a new trial. We shall not, however, rest our decision on this alone. “Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial,” is not among the grounds for a new trial authorized by the statute relating to criminal procedure (Gen. Stat. 1901, §5713), although it is a provision of the civil code (Gen. Stat. 1901, § 4754). Section 5652, however, seems to extend this provision to criminal procedure. (The State v. Bogue, 52 Kan. 79, 34 Pac. 410.) From the evidence adduced on the hearing of the motion and all that had occurred in the presence 5f the court it seems to have been conclusively established: (1) That the evidence was newly discovered; (2) that it was very material to the party applying; and (3) that no amount of diligence would have led to its discovery or enabled him to produce it at the trial. Indeed almost the whole of this long trial was devoted to the discovery of. what this one witness knew — the facts about the murder of Charles Wetzel. He is perhaps the only person in the whole world who knows the truth. After he had been examined and cross-examined at great length — after the court had instructed the jury with great care and general accuracy, and eminent counsel with nice acumen had argued to the jury what the circumstances had disclosed and what they should believe to be the truth — after the jury had reexamined all that had passed before them and had pronounced their verdict of guilty — after the trial was all finished — this witness, with his great burden of guilty knowledge, voluntarily, as he said, came back and in the presence of the court where he had reiterated his story swore that.it was all a fabrication and was false, that the ver diet was false, and that an innocent young man had been wrongfully convicted of the horrible crime of murdering a young associate for money. Two motives are assigned by the witness for giving the testimony which he finally says is false, and they are such as might actuate one so depraved. When he faced his own conviction he claims to have had an awakening of his dormant sense of justice and to have become possessed of a desire to undo the great wrong he swears he had committed to an innocent man. If Roberts’s later statement be true, the appellant should be acquitted; if the former be true, he should be condemned.
To determine the credibility' of witnesses and all the facts, including the final conclusion of guilt or innocence, are the especial provinces of a jury and not of a court. The court evidently believed a part of the testimony given by Roberts on the motion for a new trial, which was in direct contradiction of his evidence on the trial. If the jury had heard this additional testimony they might have determined its credibilty the same as did the court, or they might have believed the entire statement made by Roberts at the last and entirely discarded his story told on the trial. A jury should have the opportunity to hear all of this testimony and to determine what should be believed. Where the probable effect of the newly discovered evidence is doubtful or impossible to determine, a new trial should be granted. (Dennis v. The State, 103 Ind. 142, 2 N. E. 349; 14 Encyc. Pl. & Pr. 842; Lindley v. The State, 11 Tex. App. 283.) The newly discovered evidence in this case is not cumulative, and is not simply for impeachment. If believed, it entirely obliterates the evidence of the witness upon which the conviction evidently was. based.
The judgment is reversed, and a new trial is granted.
All the Justices concurring. | [
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Per Curiam:
Appellant was found guilty of contempt of court in keeping a place where intoxicating liquors were sold in violation of an injunction granted by the district court. From a sentence of sixty days in jail and a fine of $300 he appeals.
The judgment in the injunction case was rendered May 27, 1905. Complaint is made that the court should have dismissed the contempt proceedings because no summons was issued in • the original suit. Appellant, however, appeared by counsel, who was present when the judgment enjoining him from maintaining the nuisance was entered, and the record shows a valid judgment, which was not appealed from.
The principal contention is that there was a fatal variance between the charge upon which the proceedings in contempt were begun and the proof upon which the court found the appellant guilty of contempt. On October 14, 1905, an affidavit of George B. Boyd was filed in the district court, setting forth that on October 11 he purchased a bottle of beer at the Senate cigar-store, on the premises described in the injunction. No person was named in the affidavit as having sold the liquor.
On October 17 the district court issued an attachment for McCarley, charging him with violating the order of injunction. He was brought before the court on the same day and an accusation was immediately filed, verified by the county attorney, setting forth the injunction of May 27, and alleging that afterward one S. C. Meador purchased from appellant intoxicating liquor on the premises described in the injunction. Another affidavit by R. H. Bennett charged a sale to S. C. Meador on August 17. The record fails to show when this affidavit was filed, but it was verified before the clerk September 22, and it appears from the judgment that it was filed on or before the 17th day of October.
The contempt proceedings were continued several times. Appellant filed his answer November 29, attacking the validity of the injunction because it had been granted without evidence, and also claiming that the affidavit upon which the attachment issued failed to charge that he had any connection with the sale to Boyd. On December 5 the hearing was had, and S. C. Meador testified that he purchased intoxicating liquor from appellant on the premises after the date of the injunction and prior to October 17. Several witnesses were examined, a number of whom testified that they had purchased from appellant intoxicating liquors on the premises in question at various times subsequent to the injunction. George B. Boyd was not a witness.
The chief objection presented is that the court, having issued an attachment against appellant upon an affidavit charging a violation of an injunction by a sale of liquor at a certain time to a certain person, could,not, in the same proceedings, inquire into other and further violations of the injunction. The objection is technical. The accusation charged a different offense from the one mentioned in the first affidavit, but the hearing was continued for several weeks, so that appellant was informed of the nature of the charge. If he had been compelled to go to trial at once upon the offense charged in the accusation he might, with some reason, complain that it was not the same violation which the prosecutor had in mind when the warrant issued, and against which he was expected to defend. Appellant was entitled to know the nature of the charge against him and to. have an opportunity to make his defense. His rights were fully protected in these, respects. He was given a fair trial. The evidence clearly established that he was guilty of repeated violations of the injunction.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was convicted of the crime of statutory rape in the district court of Comanche county, and appeals to this court. The evidence was of the most extraordinary character, and, aside from the circumstance that the defendant departed from the state and was arrested elsewhere, which fact seems to have been given great prominence, consisted almost entirely of the statements of the injured party. While there is evidence sufficient to sustain the finding of the jury, the statements of the injured party, long persisted in out of court, were contradictory of her sworn testimony; and this, together with the extraordinary character of the crime as related by her, suggests that at another trial new facts may be developed and another jury may come to a different conclusion.
The principal error assigned upon the trial relates to the qualification of juror O. E. Fish. Referring to the departure of the defendant fr<3m the state, the following is a portion of the evidence given by this juror upon his voir dire:
“Ques. You mean by that that you heard no contradiction of it and you did believe it? Ans.. I believed that he had gone; yes.”
“By the court.: How is that ? A. I believed that he went away; yes.”
“Q. And you believed that he went away contrary to law? A. Yes, sir.
“Q. And was brought back by the sheriff ? A. Yes, sir; that is the way I heard it.
“Q. And you feel that you are called to believe that at this time? A. Yes, sir.”
“Q. Well, now, it would 'take some evidence at this time submitted by the defendant in his behalf to remove the various partial opinions that you have formed ? A. I rather think it would.
“Q. And they relate to the question of his guilt or innocence? A. Yes, sir.
“Q. And on that you have partially made up your mind ? A. Why, I assumed that he would be guilty or he would not have went away. I would have no opinion only he went away.”
“Q. Has anything occurred to change that belief in your mind? A: I don’t think there has.”
“Q. Well, if this case was ■ submitted to you, if this case was submitted to you now you would require some evidence on the part of the defendant to remove the impression just testified to that you previously formed, would you not? A. Yes, sir.”
“Q. What is that impression based on ? A. On the ground that he was arrested on that charge.
“Q. And brought back here from New Mexico? A. Yes, sir.
“Q. And it is also based on what you have heard about the case? . A. "No, sir; I never heard anything in particular about the case, only just that they had made the arrest.
“Q. Then if testimony should be offered to that feature of this case then it would have some influence on your verdict? A. It probably would.
“Q. Regardless of anything the defendant might testify to on that issue? A. I do not know what he would testify to, but of course I would go according to the evidence as near as I could.
“Q. At this time you would require the defendant’to testify to something to remove that opinion from your mind? A. Yes, sir.”
While the juror modified these statements somewhat under suggestive questions by the court and testified that he thought he could set aside the opinion he had formed and determine the case according to the evidence, yet it is apparent that he started into the trial (the defendant’s challenge to his competency having been overruled) with an opinion that the defendant had fled from the state; that by reason of that fact he believed the defendant guilty; and that to remove such opinion the defendant himself would have to testify, and would have to satisfy the juror from such testimony, that he went for some other reason and not for the reason that he was accused of the crime. The fact that the defendant had left the state and was rearrested in New Mexico and brought back was conceded by all on the trial. Hence this juror was in the position of having formed an opinion before the trial that the defendant was guilty, upon a fact which was not in controversy at the trial. He should have been excused upon the defendant’s challenge.
The tendency is to relax the old rules disqualifying jurors to sit on a criminal trial by reason of opinions or impressions formed prior to the hearing of the evidence. In view, however, of the extraordinary evi dence in this case, and the prominence that was given on the introduction of the evidence and in the instructions of the court to the circumstance of the defendant’s having left the state, we feel that the defendant may have been prejudiced by the opinion of this juror formed prior to the hearing of the evidence.
Complaint is also made of instruction No. 15 given by the court, which, so far as its correctness is questioned, reads:
“If you are convinced by the evidence that any witness has wilfully and corruptly testified falsely as to any matter or thing material to the issue in this case, you are at liberty to disregard all of the testimony of such witness; but whether or not you will do so is a matter resting entirely with you. You are not compelled to reject all the testimony of such witness, but may and should consider such portions of it as you find to be worthy of credit and give it such weight as you believe- it entitled to, considering all the facts and circumstances of the case.”
The language used in the first sentence of this instruction has been inferentially approved by decisions of this court. The writer of this, however, is inclined to believe that the word “corruptly” should be omitted therefrom, or that it should be preceded by the word “or” instead of the word “and.” As used in this instruction the impression seems to be conveyed that it is not sufficient to justify a jury in disregarding the testimony of a witness that they may be convinced by the evidence that such witness has wilfully testified falsely, but they must also believe that he has corruptly testified falsely. And “corruptly,” so far as it carries any meaning in addition to wilfully, suggests the idea of having been suborned to testify falsely. If this criticism is well taken the better language wodld be “wilfully or corruptly,” or still better, as the writer thinks, “wilfully, knowingly or corruptly.” As a substitute for the last clause of the first sentence the writer suggests: “but whether or not you should do so is a matter resting entirely in your judgment.” The writer also suggests the insertion of the words “if any” after the clause in the second sentence: “but may and should consider such portions of it.” The reversal of this case, however, is not based upon this instruction.
(89 Pac. 21.)
SYLLABUS BY THE COURT.
1. Jury and Jurors — Challenge for Cause — Question of Fact.— The trial provided for by statute (Gen. Stat. 1901, §§ 5647, 5648) of a challenge to a juror for cause is a summary hearing upon a question of fact, and the decision thereof is analogous to a finding of fact upon the decision of a motion.
2. .- Finding Supported by Evidence — Supreme Court Not Bound Thereby. In such a case the ordinary rule of this court applicable to the determination of facts by a jury or court in the trial of the contested issues of an action — that it will not disturb such finding if supported by some evidence— does not obtain.
8. - Opinion — Disqualification. In such summary hearing of a challenge to a juror on the ground of predetermined opinion, formed or expressed, the real question is whether the juror knows facts or has received information of facts which he believes to be true and from such facts has a settled conviction or opinion as to the issue or as to any material fact to be tried by the jury.
4. - Review of Finding by Trial Court on a Challenge for Cause. On an appeal this court will review the evidence on such summary hearing, giving such weight to the finding of the trial court thereon as it appears entitled to, but will not disturb such finding unless satisfied that prejudicial error has occurred therein.
Numerous other errors are assigned which need not be discussed nor determined, as the same questions are not likely to recur. The judgment of the district court is reversed, and a new trial is awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Three assignments of error are urged: (1) Overruling the demurrer to plaintiff’s evidence; (2) error in instructions; (3) denying the motion for a new trial. The first error, the overruling of the de-. murrer to the evidence, is based wholly upon the contention that the written contracts, which were made parts of the petition, contained certain provisions which under the admitted facts and evidence prevented a recovery by plaintiff. The contracts are what are known as “special live-stock contracts,” and contain the following provision:
“The shipper further expressly agrees that as a condition precedent to his right to recover any damages for any loss or injury to said cattle resulting from carrier’s negligence as aforesaid, including delays, he will give notice in writing to the conductor in charge of the train or the nearest station- or freight-agent of the carrier on whose line the injuries occur before said cars leave that carrier’s line or before the cattle are mingled with other cattle or removed from pens at destination. In his notice he shall state place and nature of the injuries, to the end that they may be fully and fairly investigated, and said shipper shall, within thirty days after the happening of the injuries complained of, 'file with some freight- or station-agent of the carrier on whose line the injuries occurred his claim therefor, giving the amount. Shipper’s failure to comply with the requirements of this section shall absolutely defeat and bar any cause of action for any injuries resulting to said cattle as aforesaid.” .
Another provision is as follows:
“No agent of this company has any authority to waive, modify or amend any of the provisions of this contract, or to agree to ship said cars by any particular train, or to reach any particular market ... on any particular day, which the carrier hereby expressly declines to do.”
The second provision quoted may be disposed of in a few words. There was evidence that the delay in transporting the cattle was caused by the negligence of defendant. That the railway company could not by the terms of this provision limit its liability for damages caused by its own negligence is so obvious as not to need the citation of authorities.
It was admitted that no written notice of loss was given under the first provision quoted, and defendant contends that the giving of this notice was a condition precedent to the right to maintain the action. Indeed, this is the main contention here. Aside from a claim of error in certain instructions, which will be consid-. ered hereafter, it is upon this that a reversal is sought. This question has been settled adversely to the contention of defendant, and is no longer an open one. (Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465; Cornelius v. Railway Co., post.)
The only apparent material difference in the contract in those cases and the one here is that this contains the words “including delays,” so that it reads “for any loss or injury to said cattle resulting from carrier’s negligence as aforesaid, including delays, he will give notice,” etc., and the further difference that in the two cases supra the stipulation for a notice of a claim for damages was for any loss or injury to said stock “during the transportation thereof,” while the one under consideration, instead of the words in italics, reads, “any loss or injury to said cattle resulting from, carrier’s negligence as aforesaid.” It is, however, so apparent from the whole contract that when loss or injury is mentioned reference is had to the physical condition of the cattle as affected by something which might occur during transportation that the absence of the phrase is of no consequence. It is not clear just what is meant by the. words “including delays,” unless they are used in reference to the physical condition of the stock as affected by delays. The purpose cannot be said with reason to be to provide for notice of a’ loss re- suiting from a decline in the market, for it would be manifestly unreasonable to require the shipper to give notice of something which might or might not happen, depending upon a variety of circumstances and conditions which he could npt judge of until after his interests might require the removal of the stock from the pens at destination. He might see fit, before the market of the next day, to ship his stock back home or to - some other market and yet not lose his right to maintain an action for any damage resulting from a decline in the market and caused by the company’s negligent delay.
The contract provides that the notice shall state the place and nature of the injuries, “to the end that they, may be fully and fairly investigated.” The reasons for such notice are obvious when applied to injuries received by cattle in transportation, as was held in Sprague v. Mo. Pac. Rly. Co., 34 Kan. 347, 8 Pac. 465, and Goggin v. K. P. Rly. Co., 12 Kan. 416, but are absolutely wanting when applied to a- loss resulting from a decline in the market price. It was said in the Poole case, supra, that “such contracts and the notices required by them must be reasonable. Agreements of this character are viewed with some strictness by the law, and unless the exemption from liability is cleárly expressed it should not be allowed.” (Page 468.)
No possible inconvenience could be suffered by the railway company through failure to receive such notice. It already knew as well as the shipper that the transportation and delivery had been delayed, the exact time of the delay, and that the market for that day was over. Whether thé market the next day would show a rise or decline — a benefit or loss to the shipper —was a matter of pure speculation, upon which the railway company was perhaps as competent to make a guess as the shipper. Suppose the market in fact should decline and the shipper suffer a loss: the railway company could not reasonably claim that the removal of the cattle from the pens at destination be fore notice of such loss deprived the company of. any advantage or protection, or of full opportunity to investigate the facts. In principle, therefore, nothing in this contract distinguishes it from the one in the Poole case or that of the Cornelius case. The demurrer to the evidence was properly overruled.
Most of the alleged errors in the instructions are disposed of by what has been said with respect to the terms of this contract. The instructions generally seem to have been prepared, carefully and to state the law applicable to the facts with admirable clearness. We find, however, that, possibly owing to the wrong theory upon which plaintiff tried his case, two of the •instructions were erroneous. One authorized the jury to allow as an item of damages the additional freight paid on the shipment of the forty-four head of cattle to Chicago. Plaintiff admitted that no demand had been made that defendant company should forward these cattle to Chicago, under contract or otherwise. When the railway company delivered all the cattle to the commission company at Kansas City its contract was certainly ended so far as concerned the three car-loads consigned to Kansas City, and equally so with reference to the two car-loads consigned to Chicago, unless notified , within a reasonable time of plaintiff’s election' to have them carried by it to Chicago. It was still liable for any damage resulting from its negligent delay, but its contract for delivery was ended, subject to this liability. Plaintiff, after the cattle had been delivered, and without any notice to the company or demand that it should forward the cattle, saw fit to reship all of them to Chicago over another road. This gave him no right whatever to recover the additional freight paid on the forty-four head of cattle. This error itself would not call for a reversal, because the amount allowed for this item of damages was stipulated between, the parties and only the question whether plaintiff actually paid it was submitted to the jury. The slight excess of $12.32 in the judgment could be easily remedied, if that were all.
Another and a more serious error occurred in the instructions. The jury were instructed that the measure of plaintiff’s damages was the loss suffered by the-decline in the Chicago market. Plaintiff admitted that he did not know whether or not he lost more by shipping to Chicago than he would have lost by staying in Kansas City for the next day’s market. He testified as follows:
“Ques. Then, from what we have learned concerning the market in Kansas City the day before [the 28th]-, you could have done better in Kansas City? Ans. Well, that is something I don’t know. I shipped to Chicago to better my condition, on the advice of my commission men.
“Q. You took your chances on getting a better market? A. Certainly; I have took my chances every time I shipped.
“Q. You don’t want the railroad company to take your chances on your getting a better market in Chicago? A. No, of course; but I simply shipped through because I was delayed and was too late for the market in Kansas City and the prospect was it would be still worse the next day, and my commission men advised me to ship on to Chicago that I might strike a better market Friday, the day I would naturally be on the market.”
He might, if his commission company had so advised, have shipped these cattle to Liverpool and with equal propriety have claimed that the measure of his damages was the loss occasioned by a later decline there. The measure of his damages was clearly the loss occasioned by the decline in the market at Kansas City resulting from the negligent delay in arriving there. It is impossible to ascertain from the verdict or the special findings which market price was considered in determining that the loss by the decline amounted to twenty-five cents per hundred. But plaintiff introduced in evidence the returns of the sale at Chicago, and, while evidence was given of a decline at both mar kets, the basis necessarily involved in determining the loss was the amount the cattle sold for at the wrong market on the wrong day. The court instructed the jury that if they found plaintiff entitled to recover “he would be entitled to recover the difference between the market value of the. steers at the usual time they were to be delivered in Chicago, 111., and Kansas City, Mo., and the market value of the steers on the day they were actually, sold.” This was error, for which the cause is reversed and remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
On the authority of Cowley County v. Hooker, 70 Kan. 372, 78 Pac. 847, the plaintiff in error would have been entitled to recover all the damages he could prove to all of his land taken or affected by the laying out of. the public road had he not filed the petition in the district court. The county commissioners, having proceeded to lay out and open the road along the entire length thereof as if no road previously existed over any portion of the line, could not be heard to say, on a trial to determine the amount of damages, that the road or some portion thereof existed prior to their proceeding. The plaintiff in error, however, having filed the petition and having therein asserted facts which the commissioners would not have been heard to allege, must stand or fall by his petition.
In determining whether the petition stated a cause of action we have to determine, ‘first, whether the grant of the three sections of land to the Union Pacific Railway Company under the act of congress of 1862 be-, came effective and conveyed rights in the land prior to the time of the grant of a right of way for public roads along sections of lands of the United States not reserved for public use, under the act of 1866 (Rev. Stat. U. S. 1901, § 2477)., or whether the converse is true; second, whether the grant of the right of way became effective along the west side of section 4 prior to the . acquiring of any rights in the land by the homestead settler who conveyed the same to the plaintiff, or whether the converse is true.
The act of 1862 (12 U. S. Stat. at L. p. 489) for wise and beneficent purposes granted to the Union Pacific Railway Company the odd sections of land along either side of the proposed railroad "bed within a certain distance, subject only to the performance by thé railway company of certain conditions specified in the act. The petition alleges that all of these conditions were long ago performed by the railway company; that a map of the general route of the railroad along these lands was filed in the land-office July 11, 1866, and on the same day the lands in question were withdrawn from settlement; and that a map of definite location of the route of the railroad was filed with, and accepted by, the secretary of the interior on September 21, 1867. These allegations are taken as true upon the demurrer, and under the law the rights of the railway company attached upon the filing of the map of definite location and related back and became effective as of the date of the grant in 1862. On the other hand, the act of con gress in 1866 which granted a right of way for highways over the public lands of the United States not reserved for public uses (Rev. Stat. U. S. 1901, § 2477), and which was accepted by the act of the legislature of Kansas in 1873 (Laws 1873, ch. 122), became effective upon the passage of the act by the legislature and related back to the date of the grant in 1866. It will be observed, therefore, that at the time of the grant for public-road purposes in 1866 the lands in question belonged to the Union Pacific Railway Company, or at least the railway company had an interest therein, and they were not public lands of the United States within the meaning of the act of 1866. Indeed, it had passed beyond the power of congress to derogate from _ the rights of the railway company to the lands in question, which had been conveyed to the company under the grant of 1862. (Kneeland v. Korter, 40 Wash. 359, 82 Pac. 608; Mo., etc., Ry. Co. v. Kan. Pac. Ry. Co., 97 U. S. 491, 24 L. Ed. 1095; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 7 Sup. Ct. 100, 30 L. Ed. 330; Railroad Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578.)
As to the strip taken for the road off of section 4, it will be observed from the foregoing that the grant of a right of way for public roads became effective and related back to the passage of the act in 1866, and there is no allegation in the petition that the government did not have the full right to dispose of the land at that time. So far as the petition shows, this section was United States government land and was not reserved' for public purposes. Nor is there any allegation that the plaintiff or his homestead grantor had acquired any right to the land at that time. On the other hand it affirmatively appears that all their claim of rights thereto attached many years later. (Tholl v. Koles, 65 Kan. 802, 70 Pac. 881.)
There is no allegation in the petition of facts indicating that the roadway along section 4 was not open from the time of the passage of the act of the legisla ture in 1873 (Laws 1873, ch. 122) until the commencement of this proceeding. Hence it cannot be said that the road created by that act along section 4 had been vacated by non-user or that it was “unopened” within the meaning of section 6058 of the General Statutes of 1901. (Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973; City of Topeka v. Russam, 30 Kan. 550, 2 Pac. 669; Peck and another v. Clark et al., 19 Ohio, 367.)
It follows that the petition states a cause of action for damages to the railroad lands, and fails to state a cause of action as to the homestead lands.
The ruling and judgment of the district court is reversed, and the case is remanded with instructions to proceed in accordance with the views herein expressed.
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The opinion of the court was delivered by
Mason, J.:
The Portsmouth Savings Bank seeks by mandamus to require the mayor and council of the city of Geuda Springs, a city of the third class, to levy a tax to pay a judgment it holds against that municipality. An alternative writ has been issued and an answer filed. The case is submitted upon these pleadings and an agreed statement of facts.
The parties practically agree that a tax levy should be ordered, but differ as to its amount and as to the territory to which it should be made applicable. The plaintiff asks that the levy be extended against the property within various additions which it asserts are a part of the city, but which the defendants refuse to recognize as such.
Several of the tracts in controversy appear to have been taken into the corporation by ordinances seemingly regular and valid, but the objection is made that there is no affirmative showing that the conditions existed which gave the council jurisdiction to take such action — for instance, that the tracts adjoined the city and had been subdivided into town lots. No such showing was necessary under the pleadings. The writ alleged that the land in question was within the corporate limits. The answer did not deny this. So far as the facts agreed to related to the matter at all they tended to support the allegation. If they failed to establish it conclusively the omission was not important. They did not entirely supersede the pleadings, but merely took the place of evidence. The plaintiff was entitled to the benefit of any allegation in his writ that was not denied by the answer and was not inconsistent with any portion of the agreed statement.
The city of Geuda Springs as originally incorporated lay wholly within Sumner county. In 1887 an ordinance was passed undertaking to extend its limits so as to include adjacent land in Cowley county. The validity of this ordinance is attacked upon the ground that a city situated in one county has no authority to annex territory located in another. The statute (Gen. Stat. 1901, § 1172) gives the council power to enlarge the corporate limits, and its operation is not by its terms restricted by county lines. The extension of a city across a county boundary is so unusual, and is attended with such manifest practical inconveniences growing out of the relation of the municipal and county governments, that an intention to authorize such an act should not be lightly inferred from the use of general language, but should be evidenced by express terms or by the clearest implication. (T. & N. R’y Co. v. Dyson, 86 Iowa, 310, 53 N. W. 245.)
Up to 1884 there seems to have been no express provision for the existence of a city lying partly in each of two or more counties. Chapter 7 of the laws of the special session of that year (Gen. Stat. 1901, §§ 1179-1183) provided for the creation of such cities by original incorporation, but contained no direct reference to the addition of territory in one county to a city already in being in another. This act specified how the machinery of the taxation and gmsi-criminal laws should be adapted to the situation so established. It can hardly be thought that the legislature intended to authorize the creation of a municipality lying partly in each of two adjoining counties and to forbid the extension into one of such counties of a city already existing in' the other, or to establish a method of collecting taxes and trying appeals from police court convictions in the case of any city situated in more than one county which should not be applicable to all cities of the same class so situated. Construing together the statutes relating to the organization and to the enlargement of cities of the third class, we think they must be deemed not to restrict the growth of such a city to one county, but to authorize the taking in of adjacent territory even although located in another county, and to provide for the adaptation of the general laws to the resulting situation. We conclude that the ordinance attempting to annex the, territory lying in Cowley county was valid.
Several additions to the city, each containing more than five acres, have been vacated by special act. The defendants claim that by virtue of section 636 of the General Statutes of 1901 such vacation had the effect to place these tracts outside of the corporate boundaries. This section has heretofore been held to be unconstitutional, and the contention therefore fails. (Davenport v. Ham, 72 Kan. 179, 83 Pac. 398.)
It is difficult to arrive at a just estimate of the size of the levy which should be ordered. One large enough to provide for the payment of the judgment within a few years would be so burdensome as to be impracticable, and would perhaps defeat its own purpose. As an approximation to a fair provision, in view of all the circumstances presented, a levy of fifteen mills will be ordered for the year 1906, a similar levy to be made in each year until the judgment is paid, unless a different order shall hereafter be made, such levies to be extended over all the territory described in the alternative writ.
The defendants having refused to make any levy, the costs of this proceeding will be taxed against them.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action of ejectment. The plaintiff in error owns the original, or patent, title to the land in controversy, and to recover possession thereof he commenced this action in the district court of Finney county, on October 9, 190B.
The defendants were in possession of the land, claiming to be the owners thereof by virtue of two tax deeds. The first of these tax deeds, in point of time, was executed to D. W. Herman and J. W. Herman, jointly, on August 3, 1897, and was recorded August 5, 1897. The plaintiff contends that this deed is void on its face for the reason that it appears therefrom that two separate tracts of land were sold together. The land conveyed by this deed is described therein as follows:
“N. 2 of N. E. 4 of section fifteen (15), township twenty-two (22), range twenty-eight (28), and the S. 2 of S. E. 4 of section ten (10), township twenty-two (22), range twenty-eight (28), situated in the county of Finney, state of Kansas.” •
From the recitals in this tax deed it appears that at the tax sale in 1893 this land, for want of bidders, was sold to the county as one tract, and as above described, for the aggregate sum of $47.04, that being the whole amount of taxes, interest and costs then due thereon. The sale together of more than one separate and dis- , tinct tract, as two or more town lots in different blocks, or . two or more tracts of land not contiguous, is void. (Hall’s Heirs v. Dodge, 18 Kan. 277; Mathews v. Buckingham, 22 Kan. 166; Wyer v. LaRocque, 51 Kan. 710, 33 Pac. 547; Manker v. Peck, 71 Kan. 865, 81 Pac. 171.) But the sale of two or more tracts together, which are adjoining and susceptible of being used as one tract, may be void. (McQuesten v. Swope, 12 Kan. 32; Cartwright v. McFadden, 24 Kan. 662; Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951; Mack v. Price, 35 Kan. 134, 144, 10 Pac. 521.) In the case of Cartwright v. McFadden, supra, Mr. Justice Valentine said:
“The court below held that the tax deed is void upon its face; and this holding was based upon the ground that the deed itself shows upon its face that the property which it purported to convey is composed of several separate and distinct tracts of land, and that they were all sold together in bulk and not separately for the taxes severally due upon each of them. Now it is true that the tax deed does show upon its face that all the lots which it purports to convey were sold together and in bulk, and if it also shows that these lots are separate and distinct tracts of land, not contiguous to each other, then of course the tax deed is void upon it’s face, (Hall’s Heirs v. Dodge, 18 Kan. 277.) But does the tax deed show this? We think not. We think that it furnishes some evidence to this effect, but still that the evidence is not complete or sufficient. The property being divided into lots, and these lots not being numbered consecutively by units, we think furnishes some evidence that the lots are not contiguous; but this evidence we think is not conclusive, or even satisfactory, of the fact. The lots might very well all be in one body notwithstanding this evidence. This kind of evidence might sometimes, along with other circumstances, furnish the foundation for a finding that the lots are not contiguous; but alone, and against the statutory presumptions in favor of the regularity and validity of the tax deed, and of all the prior proceedings, it cannot sufficiently prove any such fact.” (Page 669.)
The lands described in the deed under consideration ' lie in a compact form and together constitute, in form and size, an ordinary quarter-section. The deed has been of record more than five years, and therefore its’ language will be liberally construéd in favor of its validity. (Sanger v. Rice, 48 Kan. 580, 23 Pac. 633; Neenan v. White, 50 Kan. 639, 32 Pac, 381; Penrose v. Cooper, 71 Kan. 725, 84 Pac. 115.) Under this rule we are unable to say that the description given in the tax deed embraces two tracts so separated as to make the deed void. No other objection having been made to the validity of the deed, we conclude that it is sufficient to convey the land in controversy.
This disposes of the case, and it is unnecessary to consider the objections urged against the other tax deed under which the defendants claim title. The district court decided that the plaintiff could not recover and dismissed the action at his cost. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Is the stream in question a natural watercourse? If it is, the embankment which obstructs its flow is a nuisance which was properly enjoined; but, on the other hand, if it is a vagrant outburst, which temporarily overflows the surface of the land, it is to be treated as surface-water — a common enemy against which Rait was entitled to fence. A watercourse consists of a channel, with banks, and bed, and running water. There must be a source of supply, a defined channel, and permanence of flow. In Gibbs v. Williams, 25 Kan. 214, 87 Am. Rep. 241, a general definition was given:
“Again, for a watercourse there must be a channel, a bed to the stream, and not merely lowland or a depression in the prairie over which water flows. It matters not what the width or depth may be, a watercourse implies a distinct channel, a way cut and kept open by running water, a passage whose appearance, different from that of the adjacent land, discloses to every eye on a mere, casual glance the bed of a constant or frequent stream.” (Page 220. See, also, Palmer v. Waddell, 22 Kan. 352; U. P. Rly. Co. v. Dyche, 31 Kan. 120, 1 Pac. 243; K. C. & E. Rld. Co. v. Riley, 33 Kan. 374, 6 Pac. 581; C. K. & W. Rld. Co. v. Morrow, 42 Kan. 339, 22 Pac. 413; C. K. & N. Rly. Co. v. Steck, 51 Kan. 737, 33 Pac. 601; Railway Co. v. Scott, 71 Kan. 874, 81 Pac. 1131.)
East creek, the stream in question, has a well-defined channel, with bed and banks, in which there has been a steady flow of water since the early part of 1903. Prior to that time the upper part of that stream, which drained the hill country, had a well-defined course, with banks, until it reached the bottom-land, from which place it passed down a depression in Furrow’s land and extending to the land of Rait. In this depression the water followed no distinct course, and there was no well-defined channel. From the facts found it cannot be said that the flow of water through Furrow’s land prior to 1903 constituted a stream with the attributes of a watercourse. Water did issue from some springs, but only in wet weather, and the water which passed down the depression near the springs left no impress of permanent running water. Since the flood of 1903, however, there has been a regular channel, with banks and bed, and the flow of water has been so steady and persistent as to show -that the stream has a well-defined and substantial existence.
It is argued that the supply of water is not so permanent in character as to make it a watercourse. The court did find that ordinarily the water in the stream does not come from the hills; that it either comes from invisible springs in the bottom of the channel or from seepage, but from which of the two sources the evidence did not disclose. It is argued that seepage is • no - more than surface-water, and that, as the court could not say that springs existed, its finding was the equivalent of a holding that there was no permanent supply.
To constitute a watercourse it is necessary that there be a permanent source of supply. (Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Sally M. Jeffers et al., Appellants, v. Robert N. Jeffers, Respondent, 107 N. Y. 650, 14 N. E. 316; Gregory v. Bush, 64 Mich. 37, 31 N. W. 90, 8 Am. St. Rep. 797.) The source may be springs (Pyle v. Richards, 17 Neb. 180, 22 N. W. 370; Mitchell v. Bain et al., 142 Ind. 604, 42 N. E. 230; Wolf v. Brothers, 21 Pa. Co. Ct. 627), or it may be surface-water (Arthur v. Grand Trunk R. W. Co., 22 Ont. App. 89, 95; Beer v. Stroud, 19 Ont. 10; McKinley v. Chosen Freeholders of Union Co., 29 N. J. Eq. 164; Kelly v. Dunning, 39 N. J. Eq. 482; Eulrich v. Richter, 41 Wis. 320; Barnes v. Sabron, 10 Nev. 217; 2 Farnham, Waters & Water Rights, § 457; Gould, Waters, 3d ed., §263), or a pond formed by surface-water (Neal v. Ohio River R. Co., 47 W. Va. 316, 34 S. E. 914).
If, as the court found, the flow of water is continuous and has the element of permanence, it is imma terial 'whether it reaches the channel by seepage or from springs. It is enough that there is a living source — a steady supply which is regularly discharged through a well-defined channel made by the force of the waters. Whether the water comes from a spring, subterranean vein, or surface-water, it becomes a watercourse from the point where it comes to or collects on the surface and flows in a well-defined channel or bed, with such banks as will ordinarily confine the water and cause it to run in a definite and certain direction. The supreme court of Ohio, in defining surface-water and its transition into a watercourse, said:
“Surface-water is that which is diffused over the' . surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does, flow with other waters, whether derived from the surface or springs; and it then becomes the running water of a stream, and ceases to be surface-water.” (Crawford v. Rambo, 44 Ohio St. 279, 282, 7 N. E. 431.)
In Mitchell v. Bain et al., 142 Ind. 604, 42 N. E. 230, it was remarked:,
“Even surface-water becomes a natural watercourse at the point where it begins to form a reasonably well-defined channel, with bed and banks, or sides and current, although the stream itself may be very small, and the water may not flow continuously. Gould, Waters, § 263; Churchill v. Lauer, 84 Cal. 233, 24 Pac. 107.” (Page 616.)
The question is not to be determined alone from the origin of the water, for streams may be composed wholly of surface-water or that which falls in the shape of rain or snow. In Arthur v. Grand Trunk R. W. Co., 22 Ont. App. 89, it was said:
- “If a stream is traced up toward its source a point will always be reached where it ceases to be definable by a bed and banks; but until that point is reached it must be a watercourse, whether its origin be a spring, or several springs, or the rain or snowfall of a district collected naturally, and flowing away for the first time in a visible course or channel. All our lakes, rivers and streams have their source in the clouds of the sky, precipitated in the form of rain or snow, and the sole question in every case is, whether the water thus precipitated has formed for itself a visible course or channel, and is of sufficient magnitude or volume to be serviceable to the persons through or along whose land it flows. It is immaterial that it may be intermittent in its flow, or that at certain seasons of the year there may be little or even no flow of water.” (Page 94.)
So it has been held that when surface-waters collect into a pond which is of a permanent character they cease to be surface-waters. (Neale v. Ohio River R. Co., 47 W. Va. 81.6, 34 S. E. 914; Schaefer v. Marthaler, 34 Minn. 487, 26 N. W. 726, 57 Am. Rep. 73; Alcorn v. Sadler, 66 Miss. 221, 5 South. 694.)
It is plausibly contended that the water has not flowed in the stream for such a length of time as to indicate permanence; that as it has not flowed from time immemorial it cannot be regarded as an ancient watercourse. It is not essential that a watercourse shall have all the characteristics and attributes of every other watercourse. (2 Farnham, Waters & Water Rights, § 455.) It is not uncommon for a stream to leave its channel and make for itself a new course. The test is not the age of the stream, nor the length of time its waters have followed a particular channel, but it is whether it has the characteristics of permanence. The waters of the Missouri river frequently leave portions of its accustomed bed and cut a new channel far away from the former one, and occasionally they shift back again and pass through the old channel. In such cases the new channel does not require great age to give it the character of a watercourse, and there can be no distinction between that river and a running stream of less magnitude. East creek has been a regular flowing stream in all seasons, wet and- dry, since the spring of 1903. While the volume of water is not large, it is large enough to be serviceable, as it flows at the rate of half a barrel a minute, and to throw it back upon the land of the plaintiff would necessarily work great injury. If it had only flowed during freshets, or in wet seasons, there would be more reason to treat it as a temporary stream; but the matter of permanence was a question of fact for the trial court, and, although its existence originated in a flood, and only a. year or two ago, the facts stated appear to be sufficient to support the finding of the court.
The fact that East creek does not continue in a definite channel across Rait’s land and until it reaches the river is pressed upon the attention of the court. It is not shown to flow through a well-defined, natural channel much beyond Furrow’s land, nor that it discharges into another watercourse. But is it important or necessary that a watercourse should extend to and find its outlet in another watercourse, and thence' to the sea? Ordinarily a stream of water, flowing in a definite channel, discharges itself into a river or some other watercourse, but the fact that a stream may spread out over the land, percolate into the soil, or lose itself in some subterranean channel, does not deprive the part which flows regularly through a channel' of its character as a watercourse. In a Vermont case it appeared that water from springs ran down a hillside, formed a small pond, and thence by a distinct course ran down a ravine to a point where it was discharged upon a meadow. Ordinarily the stream was only two or three inches deep and about six inches wide, and, while the volume of water was small, its distance very short, and its outlet the unbroken surface of a meadow, it was held to be a watercourse. (Wm. P. Hawley & N. P. Hawley v. Henry W. Sheldon, 64 Vt. 491, 24 Atl. 717, 83 Am. St. Rep. 941.)
Subterranean currents of water emerge from the ground and flow through surface channels, and, again, running streams sometimes sink away and are no longer traceable on the surface. The outlet of a stream may be unknown, but if its course on the surface — so far as it runs — is well defined, and has the element of permanence, it must be regarded as a watercourse, and its surface flow at least cannot be interrupted nor diverted from its natural channel. In Mansford v. Ross, 4 N. Z. L. R. 290, it was held that where a stream which empties itself into a swamp, all definite channel being lost, and there is a channel emerging from the other side, the stream running into the swamp is a watercourse, and the owner of the land through which that stream runs cannot divert the water and defeat the riparian rights of those on the lower stream on the other side of the swamp. In Mitchell v. Bain et al., 142 Ind. 604, 42 N. E. 230, it was said:
“A stream does not cease to be a- watercourse and become mere surface-water because at a certain point it spreads over low ground several rods in width and flows for a distance without a defined channel or banks before flowing again in a definite channel.” (Page 614. See, also, Ferris v. Wellborn, 64 Miss. 29, 8 South. 165; Hebron Gravel Road Company v. Harvey, 90 Ind. 192, 46 Am. Rep. 199; Wash. Water Co. v. Garver, 91 Md. 398, 46 Atl. 979; Case v. Hoffman and others, 84 Wis. 438, 54 N. W. 793, 20 L. R. A. 40, 36 Am. St. Rep. 937.)
But whatever may be the rule as to subterranean currents or waters passing through the ground by percolation, there can be no question but that surface-currents of living water, running in defined channels, and having the element of permanence, are to be regarded as watercourses, whether the outlets are through defined. channels over the surface or by subterranean channels, or even by percolation through the earth. In Strait v. Brown, 16 Nev. 317, 40 Am. Rep. 497, it was decided that a creek having its source in springs, which ran a short distance through a natural surface-channel and then discharged into a large slough which had no natural surface-outlet, was a watercourse, and that the waters running in the surface-channel could not be diverted to the injury of the lower owners. The character of the outlet beyond the land of Furrow cannot materially affect the character of the stream flowing through Furrow’s land, and that stream, under the findings of the trial court, must be regarded as a natural watercourse.
The judgment of the district court is therefore affirmed.
All the Justices concurring. | [
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Per Curiam:
This is a liquor-nuisance case. The court instructed the jury in the usual manner relating to proof on the part of the state that the defendant had no permit to sell intoxicating liquors. The instruction was framed under section 2470 of the General Statutes of 1901. It is claimed this section was repealed by chapter 232 of the Laws of 1901. (Gen Stat. 1901, § 2493 et seq.) The repealing effect of that chapter is confined expressly to acts inconsistent with it. There is nothing in the new act inconsistent with section 2470 of the 1901 compilation. The evidence section of the new act does not cover the feature of the old law under which the instruction was drawn. Repeals by implication are not favored.
The fact that section 2470 of the 1901 compilation refers to prosecutions “under this act,” while the act of 1901 relates to nuisances maintained “in violation of law,” does not affect the case. This phraseology was of slight importance in the case of The State v. Estep, 66 Kan. 416, 71 Pac. 857, as indicating the purpose of the legislature to substitute a new nuisance law for the old, but the act of 1901 was designed to take its place as a part of the entire scheme of liquor legislation of the state, and all laws upon the subject are to be construed together and harmonized as far as possible. When section 2470 of the 1901 compilation was adopted it was a part of the only liquor act on the statute-book. Now that there is another the general purpose of both controls the interpretation of special provisions of each.
On the motion for a new trial a juror testified to statements relating to matters outside the evidence which he claimed were made by the foreman of the jury. The foreman denied the statements, explained his conduct fully, and was corroborated by another juror. The trial court saw and heard the witnesses, and determined the question of.fact adversely to appellant. This court cannot interfere.
The judgment is affirmed. | [
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The opinion of the court was delivered by .
Johnston, C. J.:
This is an action of forcible detainer, begun in the city court of Wichita, Kan., by Fred B. Pierce against John Peddicord and Melissa Peddicord, his wife. Pierce was the owner of the southeast quarter of the southeast quarter of section 4, lots 1, 2 and 3 and the northeast quarter of the northeast quarter of section 9, in township 28, range 1 east, in Sedgwick county, Kansas, and the Peddicords had been tenants of his for ten or eleven years, and were in the possession of the land at the time this action was brought. Pierce was a non-resident, and Kos Harris, of Wichita, had been his agent for the leasing of this property during all that time. The lease executed in 1900, under which the Peddicords held, did not correctly describe the premises. In it the land was described as the “southeast quarter of the southeast quarter of section four (4), and lots one (1), two (2) and three (3) in section nine (9), and the southeast; southeast of. section nine (9),” etc. Pierce was not the owner, and neither of the Peddicords was in possession, of the southeast quarter of the southeast quarter of section 9. This action was brought on the theory that the Peddicords’ tenancy had terminated under the terms of the lease.
In the notice of suit the premises were described as the “southeast quarter of the southeast quarter of section four (4), and lots one (1) , two (2) and three (3) in section nine. (9) and the southeast quarter of the southeast quarter of section nine (9),” etc. In the complaint Pierce prayed for the possession of that part of the premises which was correctly described in the lease, as follows: “The southeast quarter of the southeast quarter of section four (4) and lots one (1), two (2) and three (3) in section nine (9), all in township twenty-eight (28), range one (1) east,” etc. In describing the premises the summons followed the notice of suit.
On a trial in the city court of Wichita, with tlie consent of the court, Pierce dismissed from the action “the southeast quarter of the southeast quarter of section 9,” etc. Judgment was given for Pierce, and the Peddicords appealed to the district court of Sedgwick county. Afterward, on motion of James B. Berk, and a hearing thereon, in which the Peddicords participated, it was shoivn that Berk had purchased the land in controversy and succeeded to all the rights of Pierce in respect thereto, and it was ordered by the court that “said James B. Berk is hereby substituted in the-stead of plaintiff Pierce, with leave to prosecute this action as such substituted plaintiff.” Upon a trial to the court and a jury the Peddicords filed a demurrer to Berk’s evidence, which was overruled. The jury returned a verdict in favor of Berk for the premises described in the complaint, and judgment was rendered accordingly. The Peddicords bring error.
It is contended that the plaintiff could not maintain the action because the Peddicords had leased and were occupying land not described in the notice to leave possession and not included in the complaint and summons. It should be noted that the land correctly described in the lease was properly included in the notice, complaint and other proceedings, and no other land was .included in the judgment of restitution. There is no rule of entirety requiring, a person to contest for the possession of all the tracts owned by him and of which the ■ defendant holds unlawful possession. Of course he could not. recover tracts wrongly described in the notice and complaint, but no reason is seen why he cannot recover possession of those correctly described and shown to be unlawfully detained from him. Ordinarily the complaint of a litigant is that the opposing party is asking for more than he is entitled to, but the objection here is in effect that he is not asking for enough, or that because he did not demand a restitution of all the tracts even that which he asks should be denied to him. In Beach v. Heck, 54 Mo. App. 599, it was held in a forcible-detainer action that a demand for several pieces of land, some of which were erroneously described, did not bar a recovery of those correctly described in the demand and complaint. In Seeley v. Adamson, 1 Okla. 78, 26 Pac. 1069, it was ruled that “where the petition in forcible entry and detainer asks the recovery of the possession of a whole quarter-section, and the proof shows the plaintiff to be in possession of a very small part of it, the variance is immaterial.” (See, also, Dimmett v. Appleton, 20 Neb. 208, 29 N. W. 474; Weatherford v. Union P. R. Co., 5 Neb. [Unofficial] 464, 98 N. W. 1089.)
It was said that the preliminary notice was not duly served. The return of the officer was to the effect.that he could not find the Peddicords, who were the tenants, but. that he left copies of the notice “with E. S. Peddicord, a person over twelve years of age, on the within-described premises.” This was a substantial compliance with the statute. (Gen. Stat. 1901, § 5397.) E. S. Peddicord was a daughter, and it appears that the family resided on one of the tracts of the land which was correctly described in the notice. It is said that it was not shown that the daughter with whom the notice was left was over twelve years of age. The sufficiency of the service, however, was only raised by a demurrer to the evidence, and as there was some testimony showing a service it must be inferred that it was a legal service. (City of Syracuse v. Reed, 46 Kan. 520, 26 Pac. 1043; Samuels v. Greenspan, 9 Kan. App. 140, 58 Pac. 482.)
The court refused to receive testimony of the making of improvements by the Peddicords, in the absence of' a showing that they had been authorized by or known to the owner. It does-not appear that any authority was given by the owner to the Peddicords, nor even that he had knowledge of such improvements. The land was leased to them by Kos Harris, and defendants’ contention is that he had authorized the improvements and if they were credited with the value of the improvements they would not be in arrears for the rent. It does not appear that Harris was a general agent, nor that he had been given any other authority than to rent the premises. This, in its nature, is a special and. limited authority, which would not warrant the agent in contracting for repairs or improvements. In Scully v. Dodge, 40 Kan. 395, 19 Pac. 807, it was held that authority to receive rents was a special agency which did not warrant the agent in taking the notes of another in discharge of a’liability for rent. The supreme court of Arkansas decided that “authority to an agent to rent a house does not authorize him to covenant to repair or rebuild.” (Halbut et al. v. Forest City, 34 Ark. 246, syllabus.) The ruling was right. There was no error in the admission of testimony, nor in the instructions given to the jury.
Complaint was made at the oral argument of the substitution of Berk for the original plaintiff, Pierce. ' It appears to have been done on due notice and in accordance with the provisions of the code; but, however that may be, the question was not raised in the printed briefs, and hence is not fairly open to consideration.
Finding no error in the record, the judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff in error ran its train over and killed a horse belonging to the defendant in error, who recovered therefor in the district court of Harper county. The railway company brings the case here for review, and claims that the verdict is contrary to the evidence, and that the evidence does not tend to establish the negligence alleged in the petition.
The record shows, in substance, that the railroad runs through the farm of the defendant in error, from the northeast to the southwest. His residence is located north of the track and on a public highway running north and south and across the railroad. On the day of the injury the defendant in error was plowing south of the railroad, near the highway. At noon he unhitched his team to go home for dinner. While doing so one of the horses got away and started up the highway toward the railroad-track. The defendant in error mounted the other horse and tried to overtake and catch the loose horse, but did not succeed, and as the loose horse was crossing the railroad-track on the highway it was struck by a train coming from the northeast and killed.
North of the crossing about ten feet was a mail-crane, where the mail for the post-office of Ruby was taken and received. The postmistress, Miss Minnie Belding, was at the mail-crane at the time the train passed. The ground in the vicinity of the crossing is level, and nothing intervened to prevent the engineer or fireman from seeing the horse as it approached the crossing, except the mail-pouch hanging on the crane. Miss Belding saw the situation and stepped out on the track and waved her sunbonnet to attract the attention of the trainmen. She began this movement when the train was.about 1300 feet from the crossing and the horse about sixty feet therefrom, and continued it until the train was within twenty-five feet of her. The engineer sounded the whistle when about eighty rods from the crossing for the purpose of warning the postmistress, but no further or other whistling was done. ' The train was two hours behind time and was running at a rate estimated to be fifty miles an hour. No effort was made to check the speed of the train or to avoid striking the horse. Thé engineer had his face turned south and apparently was not looking in the direction of the crossing. The fireman was shoveling coal into the fire-box.
The negligence charged in the petition was the failure to keep a proper lookout, the failure to cheek the speed of the train, and the failure to sound the whistle at the crossing or to give other warning. The train was running upon a slight up grade; such that the train might have been stopped within 100 feet. There was other evidence in the case amply sufficient to have exonerated the railway' company from liability, if the jury had accepted it as the truth. The jury are the exclusive judges of the evidence, and when, as in this case, it is conflicting this court cannot disturb the verdict.
There is evidence in the case which supports several of the averments of negligence in the petition and is sufficient to justify the verdict. The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The administrator of the estate of A. Baumgartner recovered damages in the sum of $3000 for the death of his intestate, who was killed by a train of the plaintiff in error at a highway crossing. The railway^company brings error.
The petition alleged, as negligence of defendant, in substance: (1) That defendant negligently constructed the highway crossing in such a manner as to make it unsafe and dangerous; (2) that in view of the dangerous nature of the crossing defendant was running its train at an excessive and dangerous rate of speed; (3) that defendant failed to sound the engine whistle for such crossing; (4) that when deceased was ap proaehing the crossing his team became frightened and unmanageable because of the sudden approach of the train from their rear, without the whistle of the engine being sounded, and were beyond his control, running along the highway and approaching the crossing: that the engineer and fireman upon the engine of the train discovered and saw the danger and imminent peril of the deceased caused by their failure to sound the whistle and the sudden and uncontrollable fright of his team in ample time so that, by the exercise of reasonable care, the control of the engine could have been had and its speed slackened so as to have protected and saved the life of the deceased, but that the engineer and fireman negligently failed to perform such duty.
The answer of the defendant was a general denial, and an averment that the deceased was guilty of failure to exercise proper care by driving his team upon the track immediately in front of an approaching train.
Mr. Baumgartner, the deceased, lived on a farm in Harvey county. In December, 1903, he was traveling from Hutchinson with a wagon-load of salt, drawn by a team of horses, and reached the crossing where he was killed at about eleven o’clock in the forenoon. He was sixty-eight years of age and in the possession of all his faculties. It was a clear day, somewhat chilly, with a wind from the north. He was driving east along the section-line road, about fourteen miles from the neighborhood where he lived, and the train which struck him was going in an easterly direction. The railway runs a little south of east, almost parallel with the highway, for a mile and intersects the highway at an acute angle. About fifteen rods west of the crossing the beaten track of the public road bears off to the south side of the road and then curves back to the north in order to cross the railway-track at right angles.
No one who testified saw the deceased when he was struck or immediately before he went upon the crossing. One witness, Mr. Howell, going west with a team, passed him about 300 yards west of the crossing and said that he was sitting on the spring seat, driving along in the usual way, with his horses in a walk. This witness soon after passing the deceased looked ahead and saw and heard the train coining from the west, nearly a mile away. He testified that afterward he turned and looked once at Baumgartner and thought the latter was then about entering the curve in the road to the south, which was about 250 feet from the crossing; that he could not tell exactly what the team was doing, but the last he saw of them they were either running or going out of a walk. This witness was then more than a quarter of a mile from the deceased and the train was somewhere near the whistling-post. Two other witnesses who drove past Mr. Baumgartner west of the crossing testified that they had barely time to make’ the crossing themselves ahead of the train, and did not look back, and therefore knew nothing of what deceased was doing at the time he came to the crossing; and that when they passed him he had control of his team and the team was going in a quick walk. Here the direct evidence as to what occurred ends.
The jury in answer to special questions found that the train was running forty-five miles per hour; that deceased looked or listened for the approach of a train before going on the crossing; and also found that by looking he could have seen an approaching train for the distance of a mile. Although there was a conflict in the evidence as to whether the train whistled at the post 1340 feet west of 'the crossing, the general finding was against the railway company, and there was evidence to support the finding. There was no evidence that deceased looked or listened for an approaching train before he went upon the crossing, but, in the absence of any evidence on this point, the law presumes from the natural instinct of self-preservation that he both looked and listened. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101; C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993; Railroad Co. v. Hill, 57 Kan. 139, 45 Pac. 581; Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469, 64 L. R. A. 344.)
It was claimed on the trial that the noise of the train suddenly approaching from the rear, and the sound of the whistle just before the train reached the crossing, frightened the team; that the deceased lost control of them; and that this accounted for his presence on the track. Counsel for defendant in error argue here, as they doubtless urged upon the jury, that there is no reasonable explanation of the conduct of the deceased except to assume that he' lost control of his team. Otherwise, it is said, he would not have been upon the crossing, for he looked and listened and could see and appreciate the obvious danger of attempting to cross.
Upon the presumption of the law that, in the absence of all evidence of what deceased did, he is held to have exercised proper care and caution, counsel seek to base another presumption, and to argue that under the circumstances of this case it must be presumed that deceased lost control of his team. But if this was the fact it must be established by proof. The law will not presume, in the absence of all proof, that any particular thing caused the deceased to go upon the crossing. When facts are proved or admitted it is proper to draw from them all reasonable inferences in order to sustain a verdict, but the law requires that the facts from which presumptions are to arise must be established by direct evidence. (Starkie, Ev., 10th Am. ed., 57.) The jury were properly instructed that they might presume, in the absence of any evidence as to the conduct of deceased when he went upon the crossing, that he both looked and listened for an approaching train; but this presumption is not a • circumstance in. proof nor does it furnish legitimate foundation for a second presumption. (Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58; Phila. City Pass. Railway Co. v. Henrice, 92 Pa. St. 431, 37 Am. Rep. 699; Morris v. I. & St. L. R. R. Co., 10 Ill. App. 389; Lawson, Presump. Ev., 2d ed., rule 118, p. 652; 22 A. & E. Encycl. of L. 1236.)
The ease must therefore be reversed, and a new trial granted for failure of proof. There • was no proof whatever in reference to this matter, and yet it is apparent that the jury in the general verdict adopted the theory of defendant in error. In their oral argument counsel practically concede that there is no evidence in the record which supports such a finding, but it is argued that in the opening statement of counsel for defendant below certain things were said which amounted to an admission that deceased just before going upon the crossing lost control of his team. It becomes necessary, therefore, to examine this statement. Counsel for the railway company stated, in substance, that the engineer and fireman, after the engine passed the whistling-post, both saw Mr. Baumgartner away down near the crossing; that the team was walking and the engineer gave the alarm whistle; that the man did not turn, the team started from a walk, and the engineer applied the brakes; that when the team started he could not tell whether the man was trying to drive across in front of him or whether the team merely heard the whistle and started; that the evidence would show that the road first turns south and then makes a turn and comes north, and as the team turned to the south the engineer felt relieved; that the team then whirled and went upon the crossing and the engine struck the team and wagon and killed the man.
Neither the engineer nor the fireman testified.. There is no admission in this statement that the team became unmanageable or that deceased lost control of them. It is plain that the use of the words “turned” and “whirled” in connection with the turn in the wagon road meant no more than that the engineer saw that they suddenly turned, which the sharp turn in the road would have required if they had merely followed the wagon road, going in a trot or out of a walk. The team might have turned and whirled first to the south as the road turned, and then to the north, and the deceased have had perfect control of them. It is probable that the jury gave to this statement an effect not warranted by the language used, and upon it based a finding that the team became unmanageable. To support such a finding there must be proof or an admission of the fact. In the absence of all proof, as observed, the law makes no presumption of what the facts were.
The cause is reversed and remanded for another trial.
All the Justices concurring. | [
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Per Curiam:
This action was brought in the district court of Sedgwick county by the defendant in error to recover damages for the breach of a contract of marriage alleged to have been made with her by the defendant. She obtained a verdict and judgment for $1000. The defendant is not satisfied and brings the case here for review.
He insists that the verdict is contrary to the evidence. The evidence produced on the trial consists of the oral testimony of each party, and the correspondence between them, both before and after the contract is claimed to have been entered into. The plaintiff testified fully to the contract of marriage, and gave a history of the tender and endearing circumstances which attended the exchange of nuptial vows. Her story is consistent, natural, and bears the impress of truth. .
On the other hand, the defendant denied the contract of marriage, but on cross-examination admitted the ex istence of a relation between himself and the plaintiff which suggests marriage as an appropriate and highly proper supplement thereto. His story indicates that he must have known that she was deeply infatuated with him and believed their marriage a certainty.
His statement as a witness is open to the construction that he did not intend at any time to marry the plaintiff and never promised to do so, but indulged and encouraged her in the belief that he intended to make her his wife; that she sat upon his lap for hours and yielded herself to his caresses in full expectation of a speedy marriage, while he held her in his arms and fondled her with intentions wholly foreign to matrimony. Both parties agree that their amatory demonstrations did not at any time reach the point where they could be called improper.
These two views were presented to the jury by the statements of the parties on the witness-stand. The letters introduced in evidence, when considered apart from the intimate relations of the parties as shown by their oral testimony, do not disclose anything that would suggest a marriage contract, but, on the con-, trary, convey the impression that none existed. When read in the light of these amatory relations they appear to be consistent with, even though not very strongly supporting, the view that a contract of marriage was entered into. We do not think the letters affect the case very much either way.
Under the evidence a verdict for the defendant would not have been open to serious criticism. The question to be decided was one eminently ¿ppropriate for the consideration of a jury. Each juror had an opportunity to- see the parties while on the witness-stand, to note the manner in which their testimony was given, and generally to compare the two witnesses and determine which was the more credible. There is nothing in the record which indicates passion or prejudice on the part of the jury, and as there is evidence in the case which supports the verdict we cannot disturb it. '
It is further claimed that the district court did not approve the verdict, but made use of language, at the time the motion for a new trial .was denied, which amounts to a disapproval thereof. The language referred'to reads:
“Gentlemen, this is one of the cases where it is just possible that if the case had been -tried by the court a different conclusion might have been reached, so far as determining the question of a contract. If tried by the court he might have found a great deal of difficulty in reaching the same conclusion that the jury did. But I believe this is also true: that if new trials in this case were granted that each successive jury would reach the same conclusion that this jury did and find a verdict for the plaintiff.”
We do not regard, this as equivalent to a disapproval. The verdict was approved by refusing to grant the new trial, and the most that can be said of the court’s remarks is that in its judgment all juries would reach the same conclusion, while the court might possibly have found differently. This falls short of a statement that the verdict was wrong or that the court would have reached a different conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The city of Altoona was surveyed and platted in the year 1870. Original corners were marked by walnut pins driven in the ground. The city hall and other improvements upon the townsite were afterward located in conformity with the ground marks of the original survey, and other original corners are definitely known and provable. After 1870 a public highway known as the Reed road was laid out along the north side of the townsite. Block 3 is in the north tier of blocks. A survey was made to establish the line between lots'2 and 3 in this block, which upon appeal was set aside, and an order for a new survey was made in the following terms:
“It is ordered, adjudged and decreed that this matter be referred back to the county surveyor to make a new survey and report the same to this court on or before the next regular term thereof.
“In making said survey, the surveyor will locate the north line of block 3, city of Altoona, as originally laid out and platted, regardless of the Reed road. Should there be a shortage or excess in the area of said block, as compared with the original measurement thereof on the town plat, he will distribute the same proportionately among the different lots of said block.”
When the new survey was undertaken the center line of Walnut street, lying in the neighborhood of a half mile south of the northern limit of the city, was accepted by the parties as a base-line. The surveyor added the figures shown on the original plat of the townsite indicating the length of blocks and width of the streets and .chained north the distance so computed for the north line of block 3. By measuring from the center line of the street south of block 3 a deficiency was discovered, which, being apportioned, required the establishment of the line in question south of a gas-well claimed by the appellant as being on his lot. Exceptions to the surveyor’s report were duly made, and after a hearing, the survey was confirmed.
Practically all the evidence offered at the trial indicates that the survey was wrong; that the townsite as actually laid out on the ground is larger than the figures on the plat indicate; that an excess exists in the portion lying north of Walnut street; and that the line between lots 2 and 3 in block 3 should lie north of where the surveyor fixed it. But, aside from the matter of the weight of the evidence concerning the correctness of the survey, not only the evidence but the report of the survey itself shows the surveyor ignored the cardinal rules for his work in not regarding original monuments and known corners and making his survey conform to them instead of the figures on paper. The primary rules for locating city plats upon the ground or lots of a platted city are the same as those for locating deeds upon the ground. They are, in order of precedence in application, as follow: (1) Find the lines actually run and the corners and monuments actually established by the original survey. (2) Run lines from known, established or acknowledged corners and monuments of the original survey. (3) Run lines according to courses and distances marked on the plat. (Avery’s Lessee v. Baum’s Heirs, Wright [Ohio], 576; Tyler’s Law of Boundaries, Fences and Window Lights, 282; 1 Greenl. Ev., 15th ed., § 301, note 9.)
In this case the surveyor accepted testimony establishing the original northwest corner of block 45, but instead of taking measures from that point he accepted the statement of a' witness that it is a certain distance from the center of Walnut street. Had he used his instruments he might have found an excess in the first block on his way north, as he did in a careful survey made for the city two years before to establish street intersections. The surveyor took testimony relating to the distance between the section-line north of Altoona and the north line of the townsite which he rejected as indefinite, but this very testimony disclosed the existence of known monuments and corners which he did not utilize. The north line of block 3. having been fixed according to the methods indicated, the surveyor reported that it coincided so nearly with the remains of an old fence that “it might be reasonably inferred that said fence was set on the north line of said block 3 at a time when the corners of said block were yet in place:” He did not, however, draw the inference, probably because it would have contradicted his own previous survey. Evidence introduced at the trial tends to show this fence was set south of the line. But whether or not this be.the fact, original monuments and known corners cannot be ignored in making a survey and data of this character then be brought forward as proof of its accuracy.
The survey of 1902, being ex parte, does not bind the appellee.
Evidence was introduced tending to show that appellant had no standing in the district court because he had disposed of the lot which he claimed, and it is' argued the judgment should be upheld on the theory the court found in favor of such contention. The judgment rendered, however, purports to bind the appellant, and in' other respects is inconsistent with such a view. The amount in controversy is shown by affidavits to be within the jurisdiction of this court.
The judgment of the district court is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant demurred to the evidence and the demurrer was overruled. It also asked for a peremptory instruction, which was denied. Error is assigned upon these rulings of the court, and it is con- . tended that the plaintiff failed to make a prima facie case because there was a failure of proof of the allegation in the petition that the company' wilfully and without any legal reason or excuse withheld the shipment from the consignee at Independence. It is urged that plaintiff’s evidence shows that the shipment was not delivered because of refusal to pay the additional freight charges demanded; that as a matter of law it devolved upon plaintiff to prove that the charges were extortionate, illegal, unreasonable or in excess of the regular tariff rate charged other persons for like shipments. ■
The railway company sought at the trial to excuse its demand for the additional freight charges on the ground that, as the stem of the drill was too long to go in a box car with side doors, it was shipped on a flat car, and thereby became subject to a minimum charge equal to the charge for 5000 pounds at first-class rate under the Western classification, which made the charges amount to $23, and that the difference between this and the $4.20 prepaid was the $18.80 demanded by the agent at Independence. The defendant insists that it is the law that the shipper must tender the freight charges before he is entitled to possession; that if he believes the charges extortionate or unreasonable he may pay under protest and sue to recover the excess, or, it is said, he may bring his action in replevin to recover the possession. And because the plaintiff pursued neither of these remedies it is argued that he cannot maintain an action for damages for withholding the possession. ■ If, before he is entitled to possession, he must tender the freight charges, his action in replevin would fail because tender had not been made. Again, if it be true that he can maintain an action in replevin, he could in the same action recover damages for the unlawful withholding; and it is argued by plaintiff that, having obtained possession without replevin, he should be allowed to maintain an action for damages alone.
It is assumed in the argument of the plaintiff in error as well as in its entire brief that, as a matter of fact, the drill was withheld by the agent at Independence for refusal to pay $18.80 freight charges. The evidence of the defendant in error was that the agent’s clerk notified Bovaird & Co. that the drill would not be delivered until $88.20 was paid, including not only the extra freight which the company claimed as due under the Western classification but an old account of $19.40 which the agent said was due from the consignor for shipping the same drill several months previously.
The jury in their answers to special questions found this to be the fact. It will not be necessary in our view of the case to consider the questions suggested by the plaintiff in error as to the relative rights of the parties, and the remedies of a consignor of freight in a case ' where the refusal to deliver was for the failure to pay freight charges, nor to inquire what effect the prepayment of the freight charges demanded at the point of shipment had upon the rights of the consignor to immediate delivery. Under any theory which might be takep of those questions the fact remains that the agent of the railway company at Independence included in his demand, and insisted upon payment of, a claim which did not arise out of the contract for shipment and which had no possible connection with it. With as much propriety he might have withheld delivery until a claim of the passenger department which he conceived to be due the company, or a board bill of his own against the consignor, was paid.
In view of the arbitrary conduct and unreasonable delay of the railway company every presumption should be indulged in favor of the judgment in this case. It is attacked as an allowance of speculative damages, as not supported by any evidence showing actual loss of the use of the drill for seven days, and because it is said the wages of the men employed by the plaintiff were considered by the jury in determining the value of the use. There was some evidence that the use of the drill to plaintiff was worth $20 per day, and that the delay in the delivery of it occasioned the loss of at least seven days’ use — under the circumstances, sufficient, we think, to support the verdict.
It is immaterial, therefore, that the jury disregarded the evidence in their special finding in reference to the usual and ordinary freight charges for similar shipments and in answer to the question whether the railway company used in its business a book known as the Western classification. The action of the company in withholding delivery for refusal to pay a claim wholly disconnected with the contract of carriage precludes an inquiry into the merits of its other demand.
We have examined the other errors suggested but find nothing requiring a reversal. The judgment therefore is affirmed.
All the Justices concurring. | [
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Per Curiam:
Damages were awarded to Gallup for the negligence of the railway company in failing promptly to deliver cattle shipped from Chetopa to Kansas City. The award was based on the loss of market on the day the cattle should have been delivered and other losses resulting from the delay. The railway company contends that the shipper did not comply with the conditions of the contract under which th'e shipment was made. The contract in this case is substantially the same as' that involved in Railway Co. v. Fry, ante, p. 546. Under the authority of that case Gallup was entitled to recover notwithstanding he had failed to give the notice mentioned in the contract.
Since the written- contract does not apply to the damages awarded, the instruction upon that contract of which complaint is made is immaterial.
The judgment is affirmed. | [
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Per Curiam:
The owner of a tract of land occupied ás a homestead was adjudged to be insane and his wife was appointed his guardian, but failed to publish notice of her appointment. No other assets being available for the purpose, she instituted proceedings in the probate court, as guardian, to sell the land to satisfy mortgage liens upon it. The statute was strictly followed, and pursuant to an order of court directing a sale the land was sold, the 'sale confirmed, and a guardian’s deed duly executed, approved, delivered and recorded. The wife, as such, joined in the conveyance. After a lapse of many more than five years a guardian who had been appointed instead- of the wife brought suit in the district court for possession of the land and the nullification of the guardian’s deed and the proceedings upon which it was based. The five-year statute of- limitations was pleaded in defense, and the court after a trial found' generally in favor of the defendant in the suit, who was a purchaser from the grantee in the guardian’s deed.
In the recent case of O’Keefe v. Behrens, 73 Kan. 469, 85 Pac. 555, the purpose and effect of the statute referred to was fully considered. In that case the probate sale had been made by an administrator. The statute places administrators and guardians in the same class, and makes no distinction between guardians-of minors and guardians of insane persons; hence no defect in the qualification, after appointment, of the guardian who made the sale, and no defect in the jurisdiction of the probate court to order the sale, could be urged to defeat the defendant’s title. Whether or not the probate court was without jurisdiction is not decided. .
The fact, found by the court, that the defendant purchased with knowledge of the character of the probate proceedings did not enlarge the statutory period within which the plaintiff might assail the title derived through them.
.The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Thé record in this case recites the proceedings whereby a mán was convicted and sentenced to the penitentiary for twenty-five years for killing his wife in a conflict occasioned by the passion of each for the possession of their adopted child.
Domestic infelicity caused the husband and wife to separate. She went to live at her mother’s home and there kept and cherished the innocent cause of her death. On the morning of the fateful day the husband made an effort to obtain possession of the child, but failed, whereupon he procured from a justice of the peace a warrant for his wife’s arrest. He then sought to borrow a pistol from an acquaintance, but was refused. Another person to whom he applied lent him a weapon. He said that anything he did would be in self-defense. He then went to. his wife’s home, and was soon followed by' two armed constables, who sought to raise a posse of the neighbors, but failed. The three men deployed themselves about the premises, but one of the constables soon went away in the belief that the woman had decamped. The defendant, having been directed by the remaining constable to do so, went to the east side of the house, while the constable himself proceeded to a door on the south side of the building near its southwest corner. Finding'the object of the quest to be within, the officer promised her immunity from harm if she would open the door, which she did. He commenced reading the warrant to her, when the defendant left his post, came upon the porch where the constable stood, and with the blade of his knife opened the screen door separating him and the officer from his victim. The woman was armed, and pistol shots were rapidly exchanged between husband and wife. She fell, mortally wounded. .He strode into the house, gathered up the child, and went away. The constable took his hat in his hand and ran. On the trial the defendant’s plea was self-defense, and that theory of the case is maintained in the brief filed for the defendant in this appeal.
It is not necessary to review the evidence for the purpose of elucidating its incriminating force. The testimony is conflicting upon the most important features of the encounter. The jurors have chosen whom of the witnesses they preferred to believe. There appears to have been nothing arbitrary in their choosing, and this court cannot say they were wrong. The verdict of guilty is amply sustained.
Cross-examination of the state’s witnesses was not unduly restricted. It is not intimated that the sheriff was engaged in the suppression of evidence, and if he were not his reason for omitting to bring into court the screen-door, which he described fully and which was readily obtainable, was not important. The witness Heeny’s knowledge of the Hinchmans and their difficulties was sufficiently probed. The attempts to infiltrate the record with insinuations against the virtue of the murdered woman were all improper. Mrs. Stamm testified that after Mrs. Hinchman’s return from Pennsylvania Hinchman came to see her, bringing McCoy with him; that afterward Mrs. Hinchman went to see her husband, and that she carried no pistol. Other questions propounded to this witness are not credited with any importance in the brief and none is apparent. It made no difference in the case what unexpressed ideas were. in the mind of Miss Cochran while Mrs. Hinchman sat, revolver in hand, behind locked doors and the defendant and the constables executed their maneuvers on the outside.
No evidence of importance offered on behalf of the defendant was excluded. Leaman Coy did testify once to the threats of the deceased, and that was sufficient. The defendant claims to have based his conduct upon a certain state of facts presenting itself to him at the time of the killing. This state of facts, he says, included an attempt on the part of his wife to shoot him before he fired at all. Having acted upon much later information, communicated in a much more impressive manner, it was of little consequence that Mrs. Hinchman had a pistol once some months before. The record shows the defendant detailed in full the facts relating to his opportunity to retreat, and that ultimately he gave his opinion upon them. Hence; assuming his conclusion to be admissible, the refusal to allow him to express it in the first instance was not prejudicial.
The court committed no error in refusing instructions asked by the defendant. The legal principles suggested by those numbered 4 and 11 were correctly stated by the court in instructions given. As declared in his brief and in his testimony, the defendant claimed to be acting in self-defense and not in defense of his child, and he described no state of facts presenting even the phantom of a necessity for shooting his wife to save his child. Therefore the obtrusion of this subject into instruction No. 6 vitiated it. The only purpose of instruction No. 16 was to give legal sanction to the conduct of the defendant and the constables in their invasion of the Stamm premises. The court was probably of the opinion the proposed ■arrest of Mrs. Hinchman was understood to be a mere device to procure the custody of the child, and hence that the complaint and warrant conferred n'o lawful authority; therefore the jury were instructed that those documents could be considered only as tending to show good faith on the part of those who attempted to execute the process. But the court instructed the jury that even though the defendant went, without lawful authority, upon the premises where Mrs. Hinch-' man was, still if he believed he was legally there his right of self-defense would not be impaired; if assaulted he was not bound to retreat, but could stand his ground and resist with such force as reasonably appeared to be necessary, and do this even though his assailant were a woman and his wife. If the process were technically legal but the constables were not acting in good faith under it — were actually abusing it — they were trespassers. If they were acting in good faith their attitude was made the same as if the process were legal, even though invalid. Hence the in-, structions given were sufficient for the constables, who were not on trial. The defendant makes no claim that he did the shooting in any official capacity, or under the compulsion of any officer. If he did not go there in good faith, but went there to assist in the abuse of legal process, he was a trespasser. If he acted in good faith he was accorded the same rights as any person rightfully stationed and wrongfully assailed. The guilt or innocence of the defendant must finally depend upon what occurred in immediate connection with the firing of the fatal shot, and nothing but the clearest prejudice in giving or refusing instructions bearing, upon other matters can make the judgment subject to. reversal. '
The instructions given were not erroneous. The criticisms upon them are chiefly verbal. The context shows the meaning of the expression “in the wrong” to be clearly equivalent to making the first assault with a pistol. The word “affray” is shown by the same context to mean the shooting at each other by Mr. and Mrs. Hinchman. ^ The expression “force the belief upon the mind” was used to make the distinction between having some tendency to induce belief and actually generating belief. The latter part of the twenty-second instruction, being merely explanatory and illustrative of accurate and positive enunciations of the law elsewhere clearly and correctly made, was not misleading, and the same is true of the.twenty-fourth instruction. The twenty-third instruction is not open to the objection made to it. The effect of the thirty-sixth instruction has already been discussed.
The information is attacked because it does not conclude according to the formula deemed indispensable in indictments at common law: “and so the prosecuting attorney aforesaid upon his oath doth say,” etc. The statutes of this state prescribe what an information shall contain, and devest it of all technicalities of form. The allegations of fact made in the charging part distinguish the offense, and when verified by the prosecuting officer every statement in it is upon his oath. Therefore an omission of the italicized words will not vitiate it. The majority opinion in the case of State v. Coleman, 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381, is disapproved.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Larson, J.:
In this quiet title action, Harlin H. Powell, executor of the estate of Ansel W. Wright, and heirs of the estate appeal from the entry of summary judgment in favor of Joseph Edward Prosser, Sr., on the grounds two instruments are not ambiguous and convey mineral interests.
On June 9, 1942, Ansel W. and Elma E. Wright executed in favor of Adrian 4?. Wright two instruments titled “Oil and Gas Royalty Conveyance.” Powell and the heirs are the successors in interests of the grantors and Prosser is the successor in interest of the grantee.
After Adrian P. Wright’s death (and the discovery of oil production), grantors’ successors filed a quiet title action against the grantee’s successor contending the conveyances were ambiguous and conveyed royalty interests which violate the rule against perpetuities and are therefore void.
The trial court, ruling on cross-motions for summary judgment, found the instruments unambiguous and conveying valid mineral interests.
The two conveyances are substantially identical except one alludes to an oil and gas lease in place at the time of its execution and the other does not.
Because the central issue requires an examination of the entire instrument to determine whether a mineral interest or royalty interest has been granted, the instrument subject to an existing oil and gas lease is set forth in full:
“ANSEL W. WRIGHT ET UX TO ADRIAN P. WRIGHT
) ) ) )
OIL AND GAS ROYALTY CONVEYANCE
“KNOW ALL MEN BY THESE PRESENTS, That Ansel W. Wright and Elma E. Wright, his wife, of Sedgwick County, Kansas, grantors herein, for and in consideration of the sum of One Dollar and other valuable consideration paid by Adrian P. Wright, grantee herein, the receipt of which is hereby acknowledged, have granted, sold, conveyed and assigned and by these presents do grant, sell, convey and assign unto the said grantee an undivided one sixteenth (1/16) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described land situated in the County of Sedgwick and State of Kansas, to wit:
The Southwest Quarter (SW %) of Section Twelve (12), Township Twenty six (26), Range One (1) West of the Sixth P.M., containing one hundred sixty (160) acres more or less,
to have and to hold to him, his heirs and assigns forever excepting, however, from this conveyance and this instrument is made subject to the rights, reservations and privileges hereinafter set forth.
“It is understood that there is now an oil and gas lease covering the above described premises, dated August 4, 1941, between the grantors herein and the Prunty Production Company as lessee recorded in Miscellaneous Book 153 Page 405 records of the Register of Deeds office of Sedgwick County, Kansas, and this conveyance is made subject to the said oil and gas lease and covers and includes one half (14) of the oil royalty and gas rental or royalty that may become due and be paid or delivered under the terms of said lease.
“It is agreed and this conveyance is made subject to the provision that should said oil and gas lease be terminated for any reason, that the grantor, Ansel W. Wright, his heirs, devisees or assigns may at any time lease the above described premises for oil and gas and other mineral privileges without the permission or consent of the said grantee, his heirs, devisees, representatives and assigns and without the necessity of the said grantee, his heirs, devisees, representatives or assigns signing such lease or joining in the execution thereof or executing any written consent thereto; provided, however, that such lease shall provide that the said grantee, his heirs, devisees or assigns shall receive a one sixteenth (1/16) of the oil and gas that may be produced under such lease, delivered and paid as by the terms of such lease shall be provided.
“It is further agreed and this conveyance is made subject to the provision that the grantee, his heirs, representatives and assigns shall be entitled to one half (14) of all bonus or consideration paid for any oil and gas lease that may be made covering said premises and one half (14) of all rentals that may be paid thereunder to extend the time within which a well may be drilled for oil and gas; it being understood and agreed however that the right to such portion of such bonus and rentals does not make it necessary for the grantee, his heirs, devisees, representatives or assigns to consent to such lease but the grantor, Ansel W. Wright, his heirs, devisees, representatives or assigns shall have the full power to determine the bonus or consideration to be received for any such oil and gas or other mineral lease and the rentals to be paid thereunder without the consent, permission or approval of the grantee, his heirs, devisees, representatives or assigns.
“IN WITNESS WHEREOF, the said grantors have hereunto subscribed their names as of this_day of June, 1942,
/s/ Ansel W. Wright /s/ Elma E. Wright”
Both documents were properly acknowledged and recorded. The grantors’ successors ask us to find the documents to be ambiguous and to consider extrinsic evidence consisting of a letter dated June 5, 1943, of B.F. Alfred, an attorney who pre pared the documents, and copies of the inventories in the estates of Adrian and Jane Wright where the interests were not listed.
The record reflects, and appellants admit, that neither party at the trial level, upon moving for summary judgment, contended the documents were ambiguous.
Although we do not believe the documents are ambiguous so as to allow consideration of extrinsic evidence, and we would not, even if properly raised, consider the old attorney’s letter and the failure of a fiduciary to list an interest in an estate’s inventory, the issue is also subject to our court’s long stated rule that “[a] point not raised before or presented to the trial court cannot be raised for the first time on appeal.” Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987) (citing Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 6, 679 P.2d 181 [1984]).
The most comprehensive and recent summary of our numerous Kansas cases determining whether a mineral or a royalty interest has been granted is found in 1 Pierce, Kansas Oil and Gas Handbook §§ 6.14 to 6.29 (1986) where the following construction rules are summarized at § 6.15:
“Before considering the construction process used by Kansas courts, judicial rules commonly employed to interpret mineral and royalty conveyances should be noted. ‘The cardinal principle or test to be applied in the interpretation of such instruments ... is the intention of the parties.’ Lathrop v. Eyestone, 170 Kan. at 424, 227 P.2d at 141. This goal of ascertaining the parties’ intention is guided, initially, by the following interpretive rules:
“1. All language used anywhere in the instrument will be considered. Examine the entire instrument, within its ‘four corners,’ to ascertain the intent and purpose of the parties. Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 129, 368 P.2d 19, 23 (1962).
“2. The title given an instrument is not determinative. However, the contents of the instrument must make it clear it is something other than what its title indicates. Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, 573, 331 P.2d 577, 582 (1958). See also Richards v. Shearer, 145 Kan. 88, 64 P.2d 56 (1937) (instrument titled ‘Sale of Oil and Gas Royalty’ held to convey a mineral interest).
“3. Although all parts of the instrument will be considered, the terms of the granting clause carry particular weight in ascertaining the interest conveyed. Lathrop, 170 Kan. at 424, 227 P.2d at 141.”
The specific wording of the granting clause of the Wright conveyances reads as follows:
“[D]o grant, sell, convey and assign unto the said grantee and undivided one sixteenth (1/16) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described land.” (Emphasis added.)
If only the wording “in and under” is utilized, a mineral interest is intended. Shepard, Executrix v. John Hancock Mutual Life Ins. Co. 189 Kan. 125, 132, 368 P.2d 19 (1962). The grant of an interest in “production” is a major factor in holding the instrument to be a royalty conveyance. Lathrop v. Eyestone, 170 Kan. 419, 426, 227 P.2d 136 (1951).
Where both phrases are utilized, the issue is determining which phrase should prevail.
This problem is now well settled under the specific ruling of our Kansas Supreme Court in Drach v. Ely, 237 Kan. 654, 703 P.2d 746 (1985), where the court held:
“We conclude the phrase ‘in and under and that may be produced from’ refers to a mineral interest rather than a royalty interest and standing alone does not create any ambiguity.” 237 Kan. at 658.
The Supreme Court reversed the judgment of the Court of Appeals in Drach v. Ely, 10 Kan. App. 2d 149, 694 P.2d 1310 (1985), and quoted with approval the statement by Judge Rees in his dissenting opinion in that case:
“ ‘Oil, gas and other minerals “in and under,” standing alone, creates a mineral interest. 1 Williams and Meyers, Oil and Gas Law § 304.4, p. 473 (1983); Rutland Savings Bank v. Steele, 155 Kan. 667, 670, 671, 672, 127 P.2d 471 (1942). Cf. Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 132, 368 P.2d 19 (1962). The will language says that.
“ ‘Oil, gas and other minerals “in and underand that may be produced from,” standing alone, creates a mineral interest. 1 Williams and Meyers, Oil and Gas Law § 304.5, p. 477 (1983); Serena v. Rubin, 146 Kan. 603, 606, 608, 72 P.2d 995 (1937); Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 91-92, 69 P.2d 4 (1937). The language says that.
“ ‘Oil, gas and other minerals “that may be produced,” standing alone, creates a mineral interest under our law. 1 Williams and Meyers, Oil and Gas Law § 304.6, p. 481 (1983); Brooks v. Mull, 147 Kan. 740, 741, 78 P.2d 879 (1938); Palmer v. Brandenburg, 8 Kan. App. 2d at 159-61. The will language says that.’ 10 Kan. App. 2d at 159.” 237 Kan. at 658.
An additional factor used by the Kansas Supreme Court to determine whether a mineral or royalty interest is established is the right to grant oil and gas leases and to receive bonuses and delay rentals under a lease.
“It is well settled that the owner of minerals in place has an equal right to lease the property for the exploration of oil and gas and their development as does the owner of the surface who is also the owner of minerals in place, and to share proportionately in bonuses and delayed rentals which may be provided for in the lease. [Citations omitted.] The converse is true of the owner of a royalty interest. Such an interest does not carry the right to lease the property for oil and gas development or to join in the execution of such leases [citation omitted], or to participate in bonuses or delayed rentals.” 189 Kan. at 133.
The wording of the conveyances involved herein specifically provides:
“[G]rantor, Ansel W. Wright, his heirs, devisees, or assigns may at any time lease the above described premises for oil and gas and other mineral privileges without the permission or consent of the said grantee, his heirs, devisees, representatives and assigns and without the necessity of the said grantee, his heirs, devisees, representatives or assigns signing such lease or joining in the execution thereof or executing any written consent thereto.”
The above wording, taken by itself, would be indicative of the granting of a royalty interest. However, the conveyance further explains and justifies the court’s conclusions that a mineral interest is intended by including the following provision conveying to the grantee a share of the bonus and delay rentals:
“[T]he grantee, . . . shall be entitled to one half (%) of all bonus or consideration paid for any oil and gas lease that may be made covering said premises and one half of all rentals that may be paid thereunder.”
The provision for giving the grantee one-half of the bonus and delay rentals without the right to lease is totally consistent with the intention of granting a present interest in the minerals while leaving with the grantor the sole discretion as to the time and conditions under which a lease might be granted.
The Supreme Court in Drach v. Ely quotes with approval from 1 Kuntz, Law of Oil and Gas § 16.2, p. 377 (1962):
“ ‘If the granting clause or reservation uses language which normally creates a mineral interest [as opposed to a royalty interest], . . . the rights to receive bonuses and rentals are included as normal incidents of ownership. If additional language specifically describes the right of the owner of such an interest to receive bonuses and rentals, it is surplusage. If the additional language serves to exclude the right to receive bonuses and rentals, the instrument may reasonably be construed to create a mineral interest with the specific incidents removed.’ ” 237 Kan. at 659.
Ansel W. Wright reserved control of the executive or leasing rights, but the granting of one-half of the bonuses and rentals shows the conveyance was of a mineral interest.
A further factor to be considered is the term of the conveyance. A grant for a term of years and as long as oil and gas are being produced is a provision more consonant with a royalty interest, while one “forever,” as was provided in the Wright conveyance, is more in keeping with an intention of the grantor to convey a mineral interest in perpetuity. See Heyen v. Hartnett, 235 Kan. 117, 124, 679 P.2d 1152 (1984).
It is true there is no mention in the conveyance of the rights of “ingress and egress” which nevertheless is implied as a necessary incident of mineral ownership. See 1 Williams & Meyers, Oil and Gas Law § 301 (1986).
Neither should we be unduly concerned by the title placed on the conveyance by the scrivener. In Serena v. Rubin, 146 Kan. 603, 608, 72 P.2d 995 (1937), the instruments at issue were titled “Sale of Oil and Gas Royalty” but contained granting clauses identical to those within and were held to be mineral deeds. See also Froelich v. United Royalty Co., 178 Kan. 503, 506, 290 P.2d 93 (1955), in which the title of the instrument was “Royalty Conveyance” but the court stated it was not governed by the name or title affixed to a document.
Concluding as we do that the conveyances covered a one-half mineral interest, it is finally necessary to recognize and approve the trial court’s construction of the conveyances consistent with the previous holdings of Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125; Heyen v. Hartnett, 235 Kan. 117; and others.
This difficulty is occasioned where it is not understood that owners of mineral interests still own all of the minerals even if they are subject to a lease reserving to the mineral interest owners one-eighth or some other fractional royalty. As a consequence, the conveyancer wishing to convey a one-half mineral interest expresses it by conveying one-sixteenth of the minerals, erroneously believing, since the land is under lease, one-half of his interest is one-half of the one-eighth royalty or one-sixteenth. Such appears clearly to be the case here.
A recent example of this problem is shown in Heyen v. Hart-nett, where the court construed the following conveyance:
“ ‘[Masters] grant[s unto Hartnett and Evans] ... an undivided 1/16 interest in and to all of the oil, gas and minerals whatsoever in and under . . . the lands. . . .
“If such land is covered by valid oil and gas or other mineral lease . . . [Hartnett and Evans] shall have an undivided % interest in the Royalties, Rentals, and Proceeds therefrom.’ ” 235 Kan. at 118.
In holding the instrument conveyed a one-half mineral interest, the court was influenced by the “widespread confusion” associated with expressing conveyance of fractional mineral interests and referred to Shepard, 189 Kan. at 134-45, for an excellent discussion of this early-day misconception and misuse of the fraction “1/16” when “Vz” was really intended. 235 Kan. at 124.
The trial court properly ordered that the 1/16 interest granted in the conveyances should be changed and deemed to be a Vz mineral interest.
The findings of fact and conclusions of law of the trial court are approved and its judgment is affirmed. | [
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Parks, J.:
Defendant, Joseph Fulcher, appeals from a jury verdict finding him guilty of two counts of indecent liberties with a child. K.S.A. 1986 Supp. 21-3503.
Fulcher, a Wellington police officer, was charged with having sexual intercourse on two occasions with fourteen-year-old A.S. He became acquainted with A.S. in September 1985, while he was working as a patrol officer near the junior high school. A.S.’s mother and stepfather worked in Wichita and were gone between the hours of 9:00 p.m. and 7:45 a.m. A.S. was home alone at night and her parents, upon being introduced to Fulcher, accepted his offer to check on her during his evening patrol shift.
In early October 1985, Captain Dan Christiansen of the Wellington Police Department initiated an investigation of A.S.’s relationship with Fulcher. Captain Christiansen and other officers observed Fulcher’s patrol car parked outside of A.S.’s home on numerous occasions for long periods of time.
Two Wellington police officers, Captain Harold Thatcher and Captain Scott Funderburk, interviewed A.S. on October 13, 1985. A.S. was interviewed at the police station for over three hours and she denied having any sexual contact with Fulcher. After she was allowed to leave, A.S.’s mother called the police to say that A.S. had lied. The officers interviewed A.S. twice more and during those interviews A.S. said she had had sexual intercourse with Fulcher on two occasions. Fulcher was found guilty by a jury of two counts of indecent liberties with a child. He appeals.
Defendant’s first contention on appeal is that the trial court erred in failing to instruct on aggravated sexual battery as a lesser included offense of indecent liberties with a child.
Aggravated sexual battery, K.S.A. 1986 Supp. 21-3518(l)(b), a class D felony, requires that the State prove: (1) The child is under 16 years of age; (2) the child is not the spouse of the accused; (3) defendant intentionally touched the person of the child; (4) the child did not consent to the touching; and (5) the touching was done with the intent to arouse or satisfy the sexual desires of the defendant or another.
Defendant was charged with two counts of indecent liberties with a child based on sexual intercourse, a Class C felony. K.S.A. 1986 Supp. 21-3503(l)(a). This statute requires that the State prove: (1) The child is under 16 years of age; (2) the child is not the spouse of the accused; and (3) defendant had sexual intercourse with the child.
Under K.S.A. 1986 Supp. 21-3107(2)(d), an offense is considered a lesser included offense when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged. Put differently, if the lesser offense requires an element to be proven that is not required of the greater offense, it is not a lesser included offense. State v. Galloway, 238 Kan. 415, 417, 710 P.2d 1320 (1985).
The offense of aggravated sexual battery requires the State to establish that the child did not consent to the unlawful touching. By contrast, the legislature did not include the element of consent in the indecent liberties statute. Therefore, since the offense of aggravated sexual battery requires proof of the additional element of an absence of consent, we hold that aggravated sexual battery is not a lesser included offense of indecent liberties with a child. Accordingly, the trial court did not err in failing to give an aggravated sexual battery instruction.
Defendant also contends that the evidence at trial was insufficient to support his conviction.
The scope of appellate review is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Van Cleave, 239 Kan. 117, Syl. ¶ 3, 716 P.2d 580 (1986).
In this case, the State established by its evidence that (1) the victim was under 16 years of age and not the spouse of the defendant; (2) defendant had intercourse with the victim; and (3) the acts of sexual intercourse took place within a week of her fourteenth birthday and two days before the police interviewed her on October 13, 1985. Thus, the essential elements are sustained.
Defendant further contends that the evidence is insufficient to support his conviction because it was not corroborated.
Although corroboration is not required (State v. Lile, 237 Kan. 210, 699 P.2d 456 [1985]), there is corroboration in this case. Rodney Johnson and various police officers testified to the number of times and the lateness of the hour defendant’s car was seen parked near the victim’s house. Additionally, a friend of the victim testified that she observed behavior between defendant and victim which was inconsistent with the testimony of defendant. Accordingly, we find no merit in this claim.
Finally, defendant contends that the victim did not protest or resist and that she admitted no threats were made in connection with the incidents charged. The crime of indecent liberties with a child does not require proof of force or threat nor is the State required to prove the lack of consent on the part of the victim. We are convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt.
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Abbott, C.J.:
This is an appeal by Frank Novak, Jr., and Opal L. Novak from a judgment holding that a deed from their son Robert L. Novak and his wife Maleta J. Novak was void and of no effect, pursuant to K.S.A. 33-102, and allowing First Bank and Trust to foreclose its mortgage against the real estate described in the void deed, subject to the unpaid balance owing to Frank and Opal.
Frank and Opal contend that the contract of sale prohibition against assignment, coupled with a forfeiture provision, prevents First Bank from enforcing its partial assignment, mortgage, and deed. They also contend the deed from their son and daughter-in-law was not a fraudulent conveyance.
The case was submitted on these stipulated facts:
On January 23, 1975, Frank and Opal entered into a Contract for Sale of Real Estate with their son and daughter-in-law for an installment sale of the following described real estate:
“The Southeast Quarter (SE 14) of Section Eighteen (18), Township Six (6) South, Range Four (4) West of the Sixth (6th) Principal Meridian, in Cloud County, Kansas.”
The contract provided that Robert and Maleta would pay Frank and Opal $20,000 for the land. $10,000 was to be paid in ten annual installments of $1,000, plus'interest at six percent per annum on the unpaid balance, commencing November 1, 1975. The remaining $10,000 was to be paid in a lump sum on or before November 1,1985, plus interest thereon at the rate of six percent per annum. The contract contained the following clause:
“It is Hereby Agreed by These Parties that this agreement is to be binding on the heirs, executors, administrators, and assigns, of the respective parties, but that this contract may not be assigned without the written consent of the Sellers.” (Emphasis added).
Payments were recorded on the back of the contract. Eight annual payments, totaling $8,000 principal, plus interest, were paid through November 1, 1982. The unpaid balance on the contract is $12,000, plus interest at the contract rate.
On April 25, 1979, Robert and Maleta executed and delivered to First Bank a note in consideration of an SBA secured loan of $113,000. To secure the note, Robert and Maleta, on the same day, executed and delivered to First Bank a Conditional Assignment and Transfer of all of their interest in the land, a real estate mortgage, a quitclaim deed, and a security agreement covering “contract rights” and other personal property. However, First Bank did not obtain the consent of Frank and Opal to the assignment. Part of the loan proceeds was used to build a Quonset milk barn on the land. The land was occupied by Robert and Maleta as their homestead.
The mortgage and assignment were recorded in the Cloud County Register of Deeds’ office on May 8, 1979, and the mortgage registration fee was paid. The quitclaim deed is held by First Bank and has not been recorded. Financing statements and continuation statements were filed in Cloud County and with the Secretary of State, perfecting a security interest in contract rights and other described property.
On August 28, 1979, National Farmers Union Property and Casualty Company added the name of Fidelity State Bank, Concordia, Kansas (predecessor to First Bank) to Frank’s insurance policy on the land.
On June 9,1983, Robert and Maleta filed a petition for Chapter 11 relief in the United States Bankruptcy Court for the District of Kansas, and the land was listed as an asset in their schedules.
On January 25, 1984, Kansas Mutual Insurance Co. issued a change endorsement to its policy taken out by Robert and Maleta, adding First Bank and Frank as additional insureds.
On February 29,1984, Robert and Maleta filed their disclosure statement and debtors’ plan of reorganization in the bankruptcy court. The land was included as part of the reorganization plan, and Frank and First Bank were listed as creditors of Robert and Maleta. Copies of the disclosure statement and plan were served on Frank and Opal.
On October 14, 1984, Kansas Mutual Insurance Company issued a declarations sheet on Robert and Maleta’s farmowners’ policy, naming First Bank and Frank as mortgagees.
On February 19, 1985, the bankruptcy judge entered an order denying confirmation of Robert and Maleta’s Chapter 11 plan.
On March 6,1985, Frank and Opal filed for Chapter 11 relief in the United States Bankruptcy Court for the District of Kansas, listing the land as an asset in their bankruptcy schedules. Paragraph 16 of the statement of business affairs stated that no property had been returned to or repossessed by Frank and Opal during the year immediately preceding the filing of their petition.
On April 1, 1985, Robert and Maleta’s Chapter 11 proceedings were dismissed. Two days later, on April 3, 1985, Robert and Maleta executed a joint tenancy quitclaim deed to Frank and Opal on the land, which was recorded in the office of the Register of Deeds of Cloud County, Kansas, on April 4, 1985.
On May 20, 1985, Robert and Maleta filed for Chapter 7 bankruptcy relief in the United States Bankruptcy Court for the District of Kansas. Their statement of financial affairs referred to a contract cancellation on the land, and stated that a lease was to be negotiated between Frank and Opal and Robert and Maleta on the land.
The bankruptcy court granted relief from the stay to permit First Bank to file this action to determine the validity of the mortgage on the land. This action was filed on March 17, 1986. Robert and Maleta were served the same day and are in default. They are indebted to First Bank on the secured note in the amount of $82,403.41 principal and $4,623.32 accrued interest through August 26, 1985, plus $23.71 interest per day from August 27, 1985, until paid.
On June 18, 1986, the bankruptcy court dismissed Frank and Opal’s Chapter 11 proceedings.
The trial court ruled the assignment was valid, based on the decisions of Badger v. Parker, 85 Kan. 134, 116 Pac. 242 (1911), and Murray First Thrift and Loan Co. v. Stevenson, 534 P.2d 909 (Utah 1975).
Badger v. Parker, while not directly on point, does lend some insight into the present case. Highly summarized, the defendant in Badger entered into a contract with an investment company for the sale of a tract of land. He paid $1,500 down and agreed to make yearly payments of $500 until the purchase price was paid, and to pay interest, taxes, and insurance. He paid the first $500 installment and the first interest payment, but defaulted on the second interest payment. After the contract was entered into, but before default occurred, defendant made certain purchases from plaintiff (a lumber company) for improvements upon the land. When the plaintiff was unable to collect its bill from defendant, its agent induced the defendant and his wife to assign their interest in the real estate contract to plaintiff. This assignment was in writing and acknowledged, and was given after the defendant had defaulted on the second interest payment. The contract between the seller and defendant provided for forfeiture, upon default in any payments, of all payments theretofore made and all improvements made on the land. The contract also provided that defendant could not assign the contract without the written consent of the seller. The assignment to plaintiff was without the written consent of the seller.
The appellees in Badger (which did not include the defendant for reasons not relevant to the present appeal) argued that defendant’s interest in the land reverted ipso facto to the seller upon default of the second interest payment and, therefore, defendant had nothing to assign. In the alternative, the appellees argued that even if defendant had a remaining interest in the land, the assignment was void because it was entered into without the written consent of the seller. The Supreme Court disagreed, stating: “While the stipulation would protect the investment company from forced acceptance of an undesirable assignee as purchaser, it did not preclude Parker [defendant] from using this interest and investment as property, which it was, for the purpose of securing his debt.” 85 Kan. at 138.
The trial court in the present case held that the purchasers’ assignment was not an attempt to force an undesirable assignee on the defendants; the purchasers were simply using the interest in the property to secure a debt. The purchasers had a substantial interest in the land. They had paid 40% of the purchase price, and they had used the loan to make improvements on the land.
On appeal, the defendants argue the rationale of Badger should not apply to this case because the contract was between a father and his son; the prohibition against assignment and the forfeiture clause was intended to guarantee the sellers’ son would have the property at a price he could afford, not merely to protect defendants from an undesirable assignee as purchaser. While it is true that Badger may be factually distinguished from the present case, that case recognizes the proposition that a purchaser under a real estate contract has a property interest which is assignable as security for a debt, even in the presence of a contract provision prohibiting the assignment of the contract without the written consent of the seller.
The trial court found: “The restriction in the contract was solely against assignment of the contract. There is no restriction against using the contract and the purchasers’ equity as security for a loan.” The trial court cites 77 Am. Jur. 2d, Vendor and Purchaser §§ 399, 400, in support:
“However, where a provision against the assignability of a contract for the sale of land is not followed by any provision for the forfeiture of the contract, the assignment thereof does not operate to forfeit the contract or confer an excuse for the vendor’s refusal to carry it out, if the obligations of the vendee under the contract are due and have been fully performed or duly tendered by him or the assignee. The assignment is enforceable in equity notwithstanding the restriction against assignment, where it appears that the restriction was in the nature of a mere security for the performance of the principal covenants, and where such enforcement appears equitable under the circumstances of the case.”
“In the interpretation of a clause in a contract for the sale of real estate, restricting the assignment of the contract by the purchaser, the tendency of the courts is to limit the scope of the restriction. Thus, a restriction against the assignment of a land contract has been held not to preclude an assignment as collateral security, at least where the purchaser has made valuable improvements on the property or has paid a large part of the purchase money . . . .”
The trial court also relied on Murray First Thrift and Loan Co. v. Stevenson, 534 P.2d 909, to support its decision. In Murray, the purchasers under a uniform real estate contract assigned their interest in the contract to First Thrift as security for a loan. The real estate contract prohibited the assignment of the contract without the written permission of the sellers. The assignment to First Thrift was without the written permission of the sellers. The purchasers went into bankruptcy after the assignment was made and First Thrift tendered the full amount due and owing under the contract and demanded a deed to the realty. The sellers refused to tender the deed on the ground the assignment was void and of no effect, since their written permission had not been obtained. First Thrift brought an action for declaratory judgment to protect its security interest in the real estate. The trial court granted summary judgment, the sellers appealed, and the Supreme Court of Utah affirmed, noting:
“Since there was no provision for forfeiture for assigning the contract, the assignment is merely a breach which might render the purchaser liable for damages, if any, which might be occasioned the sellers. It would not cause a forfeiture of the contract. The plaintiff tendered to the sellers the balance due and owing, and so there can be no damages sustained by reason of the assignment.
“There is another reason why the sellers cannot refuse to convey title to the property, to wit: The assignment in the instant matter was not an assignment as contemplated in the contract whereby the purchasers undertake to get somebody else to take over the obligation of making the payments. It was an assignment of their equity in the contract as security only for the loan which they were getting from the plaintiff herein. There is ample authority to sustain the foregoing proposition.”
The trial court in the present case, after citing Murray, stated that there was no forfeiture provision in the contract before it. As defendants point out, this is an incorrect statement of fact; the contract did have a forfeiture provision. However, this incorrect or incomplete statement by the trial judge is not fatal to this case because the forfeiture provision of the contract relates to forfeiture upon failure to make payments, and does not mention forfeiture upon the purchasers’ assignment of their interest in the contract as security for a loan. The trial court should have said, or more clearly stated, that there was no forfeiture provision in the contract for assigning the contract.
Defendants argue that the case of Fakes v. Osborne, 165 Kan. 176, 193 P.2d 218 (1948), is directly on point and supports their position that the assignment in this case was invalid.
Fakes is not directly on point. In that case, the purchasers assigned all their rights under a real éstate contract to the appellant. The assignment was not made as security for a debt. The appellant in Fakes actually took possession of the real estate under the contract and complied with the terms of the contract. The sellers forcibly ejected him from possession of the real estate and appellant sued for an accounting and for possession. The contract between the sellers and the purchasers of the land provided that the contract was not assignable by the purchasers without the written consent of the sellers until $10,000 of the payments were paid. There was no indication that the sellers consented to the assignment. The sellers filed a motion to compel the appellant to state whether there had been a written consent to the assignment or a payment of $10,000, and if so to give times, amounts, and manner of payments. The motion was granted, and the appellant amended his petition. The amended petition was still inadequate, and sellers demurred on the ground that appellant had not stated facts sufficient to constitute a cause of action. The trial court sustained the demurrer and appellant appealed. Our Supreme Court held that the appellant’s amended petition failed to allege facts showing the right of the purchasers to assign their interest in the contract and affirmed the judgment of the trial court.
A restriction against assignment is a restraint on alienation, and as such it is strictly construed against the party urging the restriction. Wood v. Hatcher, 199 Kan. 238, 243, 428 P.2d 799 (1967). The contract before us does not provide for forfeiture upon assignment of the contract, only upon default. First Bank also mentions Article 9 of the Uniform Commercial Code as a possible basis for rejecting the nonassignability clause in the contract. Article 9 is inapplicable to the facts of this case. See Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 1.8(10)[a] n.235 (1980).
Defendants argue that, contrary to the finding of the trial court, since a forfeiture clause did follow the nonassignability clause, the contract should be interpreted to mean that any assignment gives the seller a right to immediate possession of the property as well as damages for breach. First, the forfeiture provisions precede the nonassignability clause and, second, the forfeiture provisions do not speak to forfeiture upon assignment of the contract. Defendants were not entitled to possession just because an assignment was made. They argued to the trial court that they had a right of possession upon default, but did not argue that they had a right of possession upon assignment. “A point not raised before the trial court may not be raised for the first time on appeal.” Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 6, 679 P.2d 181 (1984).
The defendants argue the trial court erred in applying equitable estoppel. Based on the record before us, the doctrine of equitable estoppel.is not applicable to this case. This trial error is of little consequence because the trial court otherwise correctly held the assignment to be valid.
The trial court held that the deed signed by Robert and Maleta on April 3, 1985, whereby they attempted to convey the land to the defendants, was void under the provisions of K.S.A. 33-102, which provides:
“Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”
The trial court cited Koch Engineering Co. v. Faulconer, 239 Kan. 101, 105, 716 P.2d 180 (1986), as the most recent case outlining the nature of a fraudulent conveyance and the six badges or indicia of fraud. However, it did not rule on which of the six badges of fraud were present in this case. Defendants argue the court’s finding on this point is insupportable because there is no evidence that the purchasers had the intent to hinder, delay, or defraud their creditors, namely First Bank. They argue the purchasers were required to convey the land to defendants, under the circumstances of the case, because purchasers had failed to make payments as required under the contract. The purchasers could not have conveyed the land any earlier because of the automatic stay in bankruptcy.
“Badges of fraud are circumstances frequently attending conveyances and transfers intending to hinder, delay, or defraud creditors. They are red flags, and when they are unexplained in the evidence, they may warrant an inference of fraud. Some are weak; others are strong. One weak badge of fraud, standing alone, would have little evidentiary value in establishing a fraudulent conveyance. For example, the mere fact that grantor and grantee are related, standing alone, would not support a finding that the conveyance was fraudulent. On the other hand, the concurrence of several badges of fraud are said to make out a strong case.” 239 Kan. at 107.
The elements of a fraudulent conveyance and the six enumerated badges or indicia of fraud are set out in Koch:
“ ‘In general, the elements which comprise a fraudulent conveyance are first, an intent on the part of the grantor to hinder, delay or defraud his creditors and second, the participation of the grantee in such fraudulent scheme or such knowledge on the latter’s part of facts and circumstances as would import knowledge of the fraud to him. This court has recognized six badges or indicia of fraud. The badges or indicia of fraud are: (1) a relationship between the grantor and grantee; (2) the grantee’s knowledge of litigation against the grantor; (3) insolvency of the grantor; (4) a belief on the grantee’s part that the contract was the grantor’s last asset subject to a Kansas execution; (5) inadequacy of consideration; and (6) consummation of the transaction contrary to normal business procedures.’ ” 239 Kan. at 105.
Here, the grantors are the son and daughter-in-law of the grantees. The grantees knew the grantors had filed for bankruptcy by late February 1984 at the latest, when copies of the grantors’ bankruptcy disclosure statement and reorganization plan were served on the grantees. The disclosure statement noted First Bank’s interest in the real estate by virtue of the assignment. The reorganization plan provided that First Bank would be paid the value of the grantor’s equity in the real estate. The grantees, therefore, knew of First Bank’s interest in the real estate prior to the conveyance.
The grantors had filed for bankruptcy under Chapter 11 before the conveyance was made. The bankruptcy court denied confirmation of the grantors’ reorganization plan on February 19, 1985, and ordered that grantors be given ten days to convert the case to a Chapter 7 case. If the case was not converted to a Chapter 7 within 10 days, the case was to be dismissed on March 4, 1985. The parties stipulated that the grantors’ Chapter 11 proceedings were dismissed on April 1, 1985. The conveyance was made two days later. A month and a half later grantors filed for Chapter 7 bankruptcy relief. The deed was conveyed for one dollar and other valuable consideration.
The land was deeded by Robert and Maleta to Frank and Opal without any foreclosure proceeding; no rights of redemption were given either to Robert and Maleta or First Rank, even though Frank and Opal were aware of First Rank’s mortgage. There is substantial evidence of a clear and convincing nature in the record to support a finding that the conveyance was fraudulent.
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Davis, J.:
Sanctuary, Inc., d/b/a Sanctuary (Sanctuary), a private club in Lawrence, Kansas, admitted and served Ronald M. Smith, a minor, an alcoholic beverage. A Lawrence police officer discovered Smith was underage and arrested him. The director of Alcoholic Beverage Control (ABC), pursuant to K.S.A. 41-2633a, fined Sanctuary $500 for violating K.S.A. 41-2615.
Sanctuary brought an action in small claims court against Smith to recover the $500 fine imposed by the director of ABC, alleging that Smith fraudulently used another person’s driver’s license to gain entry into the club. The small claims court entered judgment for Sanctuary, but on appeal the district court granted summary judgment to Smith, holding that “[s]ince the purpose of the law is to regulate by placing strict liabilities on the club, fraud, as a matter of law does not lie as a cause of action in this particular matter.” Sanctuary timely appeals. We affirm.
In State v. Sleeth, 8 Kan. App. 2d 652, 655-56, 664 P.2d 883 (1983), we had occasion to interpret K.S.A. 41-2615. We held that the first sentence of the statute was regulatory:
“No club licensed hereunder shall knowingly or unknowingly permit the consumption of alcoholic liquor or cereal malt beverage on its premises by a minor . . . .” K.S.A. 41-2615 (emphasis added).
We noted in Sleeth that “[t]his proscription is directed towards ‘clubs/ not towards the owner, manager or employees thereof’ and that “[k]nowledge of the infraction is not a prerequisite to holding a ‘club’ liable for a transgression of this provision (i.e., good-faith mistake is not a defense).” 8 Kan. App. 2d at 656.
K.S.A. 41-2615 imposes upon a private club an absolute duty not to permit the consumption of alcoholic liquor or cereal malt beverage by a minor on its premises. By serving Smith, Sanctuary violated this duty. The $500 fine was imposed because of the club’s violation of 41-2615, not because of Smith’s fraud.
We hold that the strict regulatory policy expressed in the first sentence of K.S.A. 41-2615 bars any fraud action by a private club against a minor to recover penalties imposed against the club for serving the minor in violation of K.S.A. 41-2615. The regulatory provisions of K.S.A. 41-2615 would be rendered less than strict if private clubs could pass on the costs of “unknowing” violations to minors in suits for fraud. See Faces, Inc. v. Kennedy, 185 N.J. Super. 113, 121, 447 A.2d 592 (1981), aff'd 185 N.J. Super. 77, 447 A.2d 572 (1982) (public policy bars suit in fraud by club against minor to recover damages for loss of profits due to license suspension); Ray’s Liquors, Inc. v. Newland, 52 Ill. App. 3d 680, 367 N.E.2d 982 (1977) (public policy bars suit in fraud by club against minor to recover damages to reputation and costs of litigating license suspension).
The decision about how best to curtail alcohol consumption by minors rests with the legislature, not with the courts. See Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985). Our legislature has adopted a strict regulatory policy by imposing upon private clubs an absolute duty not to permit minors to consume alcoholic beverages on their premises. K.S.A. 41-2615. Allowing private clubs to recoup penalties imposed for violation of this absolute duty would undermine that policy. Finally, we note that the legislature has adopted laws imposing substantial penalties against minors for consuming alcohol at private clubs and for misusing driver’s licenses. See K.S.A. 41-727(b)(l); K.S.A. 41-2721(b)(1); K.S.A. 1986 Supp. 8-260.
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Rohleder, J.:
This is an appeal by defendant Daryl S. Good-now from a jury verdict finding him guilty of five counts of involuntary manslaughter. K.S.A. 1986 Supp. 21-3404.
The facts surrounding this case are centered around a two-vehicle accident which ended in tragedy.
On February 26, 1986, a pickup truck driven by Goodnow was involved in a collision with a Ford Bronco. Goodnow was driving north on Highway 75 in Jackson County when his truck collided with the Bronco. Dale and Nancy Edwards and their three children were killed; Goodnow suffered injuries and was hospitalized for four days.
Several witnesses testified they had seen Goodnow driving erratically before the accident occurred. Approximately one hour after the accident, a blood sample was drawn and Goodnow’s blood alcohol concentration was .07 percent.
Goodnow was charged with five counts of involuntary manslaughter. A jury found him guilty of all five counts, and he was sentenced to two to ten years of incarceration on each count, sentences to run consecutively. Goodnow appeals.
Goodnow raises a number of issues on appeal, the first and most involved being whether the trial court erred in submitting the case to the jury on the theory of involuntary manslaughter. Defendant claims that 2143404 has been repealed by implication in cases of this nature by the passage of K.S.A. 1986 Supp. 21-3405a, aggravated vehicular homicide.
In 1984 the Kansas legislature passed and added to the criminal code aggravated vehicular homicide, 21-3405a. This statute became effective July 1, 1984. A search of the legislative history does not reveal the legislative intent for its passage. The criminal code now includes three statutes under which the State may prosecute the unintentional killing of a person: (1) involuntary manslaughter, 21-3404; (2) vehicular homicide, 21-3405; and (3) aggravated vehicular homicide, 21-3405a.
The involuntary manslaughter and vehicular homicide statutes were discussed most recently in State v. Burrell, 237 Kan. 303, 699 P.2d 499 (1985). The court, after discussing the term “wantonness,” stated:
“Makin held that when the defendant is' responsible for an unintentional killing in an automobile accident, he may be guilty of involuntary manslaughter if his conduct is shown to be grossly negligent or wanton. We specifically found that the vehicular homicide statute was not intended to supersede the involuntary manslaughter statute for killings resulting from automobile accidents.
“Accordingly, we find ‘cases of this nature’ can be appropriately charged as involuntary manslaughter provided there is at least some evidence that the defendant acted wantonly.” 237 Kan. at .307.
In Burrell, the court concluded that the “existence of wantonness is a question of fact for the jury” and that the record in that case contained “ample evidence from which a jury could conclude the defendant’s acts were wanton.” 237 Kan. at 308.
The Burrell court did not discuss the aggravated vehicular homicide statute and whether it supersedes the involuntary manslaughter statute in automobile cases. The court, however, found that the specific statute (vehicular homicide) is concurrent with and controls the general statute (involuntary manslaughter), except where the acts constitute wanton conduct. The vehicular homicide statute does not include the element of wantonness. With the enactment of the aggravated: vehicular homicide statute, however, the legislature has included the element of wantonness in the specific statute when reckless driving is the unlawful act alleged. It appears that the exception established by the Makin court is no longer relevant; therefore, the specific aggravated vehicular homicide statute would be concurrent with and control the general involuntary manslaughter statute.
Goodnow was charged with the unintentional killing of five people while in the commission of two unlawful acts: (1) reckless driving a C misdemeanor, and (2) driving left of center, a traffic infraction. Reckless driving, included as an alternative violation, is the violation relevant to this case. Reckless driving is classified as a serious traffic offense, and is driving “in a willful or wanton disregard for the safety of persons or property” (K.S.A. 1986 Supp. 8-1566). Unlike the vehicular homicide statute, the aggravated vehicular homicide statute specifically addresses* the unintentional killing of a person that results from driving in a wanton manner.
The legislature, however, has not made known whether it intended the specific aggravated vehicular homicide, statute to be the sole statute under which the State may charge, when the killing of a person results from driving a car in a wanton manner.
Established rules of statutory construction were recently set forth in State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985), including the rule that “old statutes must be read in the light of later legislative enactments; an older statute must be harmonized with a newer one.” In this case, the aggravated vehicular homicide statute is the newer and more specific statute. We hold, therefore, that the aggravated vehicular homicide statute duplicates the involuntary manslaughter statute in cases such as is presently before the court. The convictions are affirmed under the aggravated vehicular homicide statute and this matter is remanded to the trial court for resentencing.
The defendant next contends the trial court erred in allowing the State to amend the information after the trial had commenced.
On the second day of the trial, the court, upon motion by the State, permitted amendment of the information as follows: “operating a vehicle in willful or wanton disregard for the safety of persons or property contrary to K.S.A. 8-1566, and/or driving a vehicle on the left side of the roadway contrary to K.S.A. 8-1514, in violation of K.S.A. 21-3404.” (Emphasis added.)
Amendment of an information is permitted “at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” K.S.A. 1986 Supp. 22-3201(4).
We find the amended information was clear and unambiguous, and that defendant’s rights were not prejudiced.
Defendant next contends the court erred in permitting the State to introduce evidence of defendant’s blood alcohol level in the absence of evidence that it was relevant to the charges against him.
Over defendant’s objection, the State offered evidence regarding defendant’s blood alcohol level. The court permitted the testimony of the officer responsible for securing the blood sample and the chemist responsible for testing the sample. During the jury instruction conference, defendant’s counsel objected to any instruction that would advise the jury to disregard that evidence. In response to that argument, the court stated:
“Upon reflection that evidence should have never been offered, should not have been admitted and that is the reason for that instruction so that instruction will stay.”
Defendant asserts on appeal that the admission of the evidence and the jury instruction that the evidence should not be considered constitute reversible error.
The admissibility of evidence is generally within the discretion of the trial court and is determined on the basis of its relevance and connection with the accused and the crime charged. State v. Jakeway, 221 Kan. 142, Syl. ¶ 9, 558 P.2d 113 (1976).
An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). “Evidence that does not constitute a portion of the crimes charged is admissible if there are some natural, necessary, or logical connections between the evidence and the inference or result which it is designed to establish.” State v. Gray, 235 Kan. 632, 635, 681 P.2d 669 (1984). The results of the blood alcohol test are logically connected to defendant’s general physical and mental condition at the time of the accident. Had the trial court admitted the evidence and not admonished the jury, defendant’s rights would not have been prejudiced. Therefore, the trial court did not err in admitting the evidence and subsequently admonishing the jury to disregard it.
Next, the defendant claims the trial court erred in refusing to grant a mistrial after an unauthorized visit to the scene of the accident by jurors.
On the last day of the trial, defendant’s counsel informed the court that at least two members of the jury had visited the scene of the accident; he then moved for a mistrial. The trial court, overruled the motion, finding misconduct had occurred, but that the misconduct did not affect a material fact or issue in the case. The court initially denied counsel’s request that the court conduct juror interviews but, upon reconsideration, the judge" did question two jurors. Following the interviews, the court again stated that juror misconduct had occurred, but that defendant was not prejudiced.
The trial court may grant a mistrial if it finds that “[prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” K.S.A. 22-3423(c). Whether juror conduct, falling within the statutory grounds set forth above, requires declaration of a mistrial is a matter within the sound discretion of the trial court. State v. Jakeway, 221 Kan. at 148.
“In both civil and criminal cases, juror misconduct is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The burden of proof is on the party claiming the prejudice.” State v. Wheaton, 240 Kan. 345, 353-54, 729 P.2d 1183 (1986).
Defendant asserts the juror misconduct violates his Sixth Amendment right to confrontation. The Kansas Supreme Court addressed this contention in State v. Arney, 218 Kan. 369, 544 P.2d 334 (1975). In the Arney case, a juror drove to the scene of the crime, investigated the area, timed the drive from the scene of the crime to the defendant’s home and from there to defendant’s work place, conveyed this information to the other jurors, and discussion ensued. The court found that “[t]he matter investigated by the juror and discussed with other members of the jury did not relate to a material issue in dispute.” 218 Kan. at 372.
In the case at bar, a juror drove to the scene of the accident, turned around and stopped, and then left. He stated that he did not discuss his visit to the scene of the accident with anyone. Another juror, when questioned by the judge, stated he passed the scene of the accident on his way to Topeka to visit his mother who was in the hospital. He did not discuss going to the scene of the accident with anyone.
Following the interviews, the court stated:
“The Court finds based on what jurors had indicated to me this morning that this would not constitute a material matter that could prejudice the Defendant in this case. I’m not saying it is not jury misconduct, it is clearly jury misconduct but the question is as to whether it goes to a material matter and I believe that it doesn’t.”
Defendant has not sustained his burden of showing substantial prejudice. The jurors’ conduct, though improper, was harmless beyond a reasonable doubt. The trial court’s refusal to declare a mistrial was not an abuse of discretion.
The defendant next contends that the trial court erred in refusing to disqualify the Jackson County Attorney’s office from prosecuting this case because of the financial interest of the assistant county attorney.
This case was prosecuted by the county attorney. The assistant county attorney, Dennis White, is also a partner with his father in White Law Offices. White made no appearance in the case at bar; however, the accident reconstruction expert who testified on the State’s behalf during rebuttal was hired by his father to investigate the accident on behalf of the victims in anticipation of a civil action.
Defendant moved to disqualify the county attorney from prosecuting the case. The court denied the motion. Defendant contended in the trial court, and now contends on appeal, that the entire county attorney’s office should have been precluded from prosecuting the case.
No Kansas cases are found which discuss the facts presented in this case. The determination of whether there is a conflict of interest or appearance of impropriety, however, lies within the discretion of the trial court. State v. McKibben, 239 Kan. 574, 581-82, 722 P.2d 518 (1986). The Kansas Supreme Court has exclusive jurisdiction to discipline lawyers for violations of the Code of Professional Responsibility. Rule 201, 235 Kan. cxxiv; In re Estate of Richard, 4 Kan. App. 2d 26, 31, 602 P.2d 122 (1979), rev. denied 227 Kan 927 (1980).
The county attorney informed the court that his assistant, Dennis White, had no involvement in the prosecution of the case, and White made no appearance on behalf of the State. It was also noted on the record that the county attorney had “no financial interest in or connection with prosecution of the civil matters that are being pursued by the office and firm of White and White.”
Although the appearance of impropriety may exist, defendant has not demonstrated that his right to a fair trial was prejudiced. See In re Estate of Richard, 4 Kan. App. 2d at 31. There appears to have been no abuse of discretion by the trial court in its refusal to disqualify the entire Jackson County Attorney’s Office.
Finally, the defendant contends that the trial court abused its discretion in sentencing the defendant to five consecutive prison terms.
With the finding made on the first issue, this issue is moot. Suffice it to say:
“[A] sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, or corrupt motive.” State v. Jennings, 240 Kan. 377,380, 729 P.2d 454 (1986).
Defendant’s convictions are affirmed, but the case is remanded for resentencing under the aggravated vehicular homicide statute, K.S.A. 1986 Supp. 21-3405a. | [
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Larson J.:
The natural father of BJ.H., Jr., appeals from the trial court’s decision granting the adoption of his son without his consent by the boy’s stepfather. In compliance with Supreme Court Rule 7.043 (1987 Kan. Ct. R. Annot. 34), the parties will be referred to as Father, Stepfather, and Mother.
B.J.H. was born on May 16, 1980. Mother and Father were divorced November 6, 1981. Mother and Stepfather were married on December 1, 1985. B.J.H. and his sister have resided with their mother and stepfather since the marriage.
On November 25,1986, Stepfather filed a petition in Shawnee County District Court to adopt B.J.H. and his sister. Mother consented to the adoptions. B.J.H.’s sister was adopted by Stepfather without contest.
Father contested the petition to adopt B.J.H. Hearings on the petition were held February 12 and 19, 1987. In a memorandum decision and later by a decree of adoption filed on June 26, 1987, the district court granted the adoption of B.J.H. by Stepfather.
The court found that Father had “failed or refused to assume the duties of the parent for two consecutive years” because his visitations, contacts, communications, or contributions were “incidental” under K.S.A. 1987 Supp. 59-2102(b). Father appeals.
The case was well tried and testimony from the following witnesses was either uncontroverted, or if controverted, found by the trial court to be as follows:
Court Trustee
Support payments by Father for the applicable two-year period were $580.00. Court-ordered support payments were $50.00 per month. $477.00, representing money withheld from Father’s income tax refund, was paid to SRS during the two-year period, but was not credited on the court trustee’s records until after the two-year period. Mother’s address would not be divulged to members of the public or Father unless an appropriate court order was obtained.
Stepfather
Stepfather knew of no contact by Father with the possible exception of one package delivered to B.J.H. in December of 1985. This package contained boots, a toy gun, and a credit card number in the name of Father’s stepfather. Since his marriage to Mother, Stepfather has provided financial support for B.J.H., who refers to him as “Daddy.” His phone number where B.J.H. lived has been unlisted since December 1985. He has never taken the position that Mother was not to communicate with Father.
Mother
The only contacts between B.J.H. and Father during the two-year period in question were a telephone call on the child’s birthday on May 16, 1985, and a four-hour visit in April 1985. Mother’s attitude at first was for Father to be able to visit their son, but she later had a bad experience which gave her concern about the welfare of the child. On one visit where Father took B.J.H. to his grandmother’s home, he was under orders not to give B.J.H. sugar or food coloring. When B.J.H. returned, Mother discovered the grandmother had given him jelly beans. Mother was very concerned about B.J.H. being with Father without strict supervision because of the environment in which Father would place the child and because of his threats to kidnap the child.
Mother claims the telephone calls from Father were actually made for the purposes of reconciliation with her and not because of interests in the child. She testified he wanted to talk to her about “getting back together.”
In May of 1985, Mother hired an attorney to file a motion to cancel the outstanding order granting Father’s right to take the child to Colorado for two months. The motion was abandoned since Father was not around and did not attempt to exercise the visitation right.
Mother contended the package delivered in 1985 was not from Father but from Father’s stepfather. She denied secreting herself and said Father could have gotten in touch with her if he had made proper efforts to do so. She showed exhibits substantiating that her phone number as originally exhibited continued until December 1985. When moving, she filled out forms with the post office and did not attempt to conceal her whereabouts. She testified her present husband provides financial and emotional support for both children and loves them both and shows genuine interest in them. She denied asking mutual friends not to tell Father of her whereabouts.
Father
Father now resides in Farmington, New Mexico. He left employment with Domino’s Pizza in Farmington to return to Kansas for the hearing. After the divorce in 1981, he lived in Topeka and exercised visitation rights. He moved from Topeka to Colorado in 1984 and when he returned to Topeka near the end of 1984, he did not know how to contact Mother. In May of 1984, through the services of an attorney, he obtained a court order directing specific visitation which was never exercised because the day he obtained the order, a chance meeting with Mother occurred and the two talked to a counselor. As Mother was upset about his proposal to take B.J.H. to Colorado, he relinquished his demand for visitation. He moved again to Colorado in early 1985, and lived there for eight months. While in Colorado, he made telephone calls on May 16, June 11, July 4, and September 4, 1985, in an attempt to contact his child.
Father returned to Topeka in November and December of 1985. During this time, he made numerous efforts to see Mother and B.J.H. He discovered Mother’s phone had been disconnected and there was no new public listing. He went to Mother’s former address and called the court trustee’s office to try to get information. He also made contact with mutual friends. He then decided to “give it some time” and left Topeka. Later he sent a package to B.J.H., which was postmarked May 13, 1986; the package was returned to him with “Moved — Return to Sender” written on it.
Father admitted his failure to make additional support payments was not right, but that he had stopped making payments to punish Mother for not letting him see his son. He claimed Mother did not advise him of her whereabouts. He did not know about her remarriage until the adoption papers were served upon him. He claims he did his best under the circumstances and wishes to continue his relationship with his son, whom he loves.
Father’s Aunt
Father lived with his aunt in Colorado. She was aware Father had made four or five attempts to make telephone contact with Mother and that he was very upset at the results of his attempts.
Friends of Father
Father came back from Colorado in December of 1984, seeking the whereabouts of his former wife. Friends testified Mother had asked them not to tell Father of her whereabouts. They were uncertain of the year Father left Christmas presents with them for delivery to B.J.H.
Mother
Mother testified on rebuttal the Christmas present referred to by the friends was delivered in December of 1983, which the court found fell outside of the two-year period. She again denied she ever told the friends not to tell Father of her whereabouts.
Father raises eight issues on appeal which need not be separately addressed as the central issue is whether, as a matter of law, the actions of Father were “incidental” under K.S.A. 59-2102(b).
“Ordinarily the question whether or not an individual has failed or refused to assume the duties of a parent for the required period of time is a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing. [Citations omitted.] When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances the reviewing court must review the evidence in the light most favorable to the party prevailing below. Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977) and cases cited therein.” Aslin v. Seamon, 225 Kan. 77, 78, 587 P.2d 875 (1978).
The best interests of the child, which is the paramount consideration in custody matters, is not controlling in determining the statutory issue of whether a natural parent has failed to assume parental duties. In re Adoption of F.A.R., 242 Kan. 231, 235, 747 P.2d 145 (1987). Nor is the fitness of the father as a parent a controlling factor under K.S.A. 1987 Supp. 59-2102(a)(3) as it would be in a proceeding to sever parental rights pursuant to K.S.A. 38-1581 et seq. In re Adoption of Wilson, 227 Kan. 803, 806, 610 P.2d 598 (1980).
In order to grant a decree of adoption in opposition to the wishes and against the consent of the natural parent, the conditions presented by statute which make consent unnecessary must be clearly proved and the statute construed in support of the right of the natural parent. The law is solicitous toward maintaining integrity of the natural relation of parent and child, and where the absolute severance of the relation is sought without the consent and against the protest of the parent, the inclination of the court is in favor of maintaining the natural relation. In re Waters, 195 Kan. 614, 617, 408 P.2d 590 (1965) (Schroeder, J., dissenting).
Strict construction is necessary to protect the rights of the nonconsenting parent, because a decree of adoption terminates the parental right of the nonconsenting natural parent. K.S.A. 59-2103. Emphasis on protection of natural parents’ rights is also bolstered by the United States Supreme Court’s decisions which have scrutinized due process rights of natural fathers of illegitimate children. See Quilloin v. Walcott, 434 U.S. 246, 54 L. Ed 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1978).
The Kansas Supreme Court has also held that a parent’s reason, if any, for inaction may be properly considered by the court in answer to an adoption petition. In re Sharp, 197 Kan. 502, 508, 419 P.2d 812 (1966). In considering whether a nonconsenting parent has failed to assume parental duties for two consecutive years, all surrounding circumstances must be considered. In re Adoption of F.A.R., 242 Kan. at 236.
While the critical statutory period is limited to two years immediately preceding the filing of the petition for adoption (In re Sharp, 197 Kan. 502, Syl. ¶ 3), the Supreme Court in In re Adoption of F.A.R., held it was not error to admit evidence of events occurring prior to that period to the extent relevant to explain or prove conduct or lack thereof during the two-year period. 242 Kan. at 238.
The trial court, in its opinion, distinguished between visitation, contacts, communications, or contributions and “attempts” at accomplishing the same, and held that, although Father initiated a number of good faith attempts to exercise visitation, they were never followed through in a manner of real meaning or benefit to the child.
The trial court then stated the following:
“It is of the essence in applying such a statute, the Court consider the effect upon the child in ruling on such crucial matters as the termination of parental rights and the creation of new ones.” (Emphasis added.)
The trial court further stated:
“When viewed from the standpoint of the child, we see a youngster who went for an entire two (2) year period with one nine (9) minute telephone conversation with his father, with one four (4) hour visitation, with absolutely no written messages of any kind and the Court believes without any gifts.” (Emphasis added.)
The wording of the opinion places undue consideration on the “effect upon the child” and improperly weighs and tests the evidence “from the standpoint of the child.” As we interpret K.S.A. 1987 Supp. 59-2102, there is no basis for our courts to adopt a “best interests of the child” test and it remains our obligation to consider whether the actions of the father are “incidental” by giving the adoption statutes a strict construction in favor of maintaining the rights of a natural parent. In re Adoption of F.A.R., 242 Kan. at 235.
In re Adoption of Crider, 236 Kan. 712, 696 P.2d 356 (1985), was cited by the trial court. In Crider, it was held that one attempt to visit a child within the two-year period prior to the filing of the petition for adoption was not substantial evidence of assumption of the duties of the parent and the adoption was allowed. We believe the support furnished and the contacts attempted and completed in this case greatly exceed those of Crider,
Recent adoption cases, being fact driven as they must necessarily be, have all considered the central issue of whether contact or action by the natural mother or father is “incidental.” In re Adoption of McMullen, 236 Kan. 348, 351, 691 P.2d 17 (1984), held the term “incidental” as used in the statute means “casual; of minor importance; insignificant; of little consequence.” The appellant in McMullen urged “incidental” to mean something occurring by chance or without any intention, which the court held was too narrow and not in furtherance of the legislative intent. The trial court in McMullen found that, during the critical two-year period, the mother sent the children a total of $25, two small gifts, and a few greeting cards, which was “incidental” contact allowing the adoption without her consent.
In In re Adoption of Steckman, 228 Kan. 669, 620 P.2d 319 (1980), the father of two children, although able to pay, paid none of the $150 per month child support due over the two-year period. The father remembered one child’s birthday each year, once by a present and once by a phone call and sent each child Christmas presents both years. Those contacts were held to be enough to maintain the father’s rights as a matter of law, and the trial court’s finding that the father had abandoned parental duties was reversed.
The Supreme Court in Steckman reviewed at length previous cases dealing with 59-2102 and the evidence required to show that a parent has so abandoned the child as to lose the right to object to the child’s adoption. The court found a strict construction of the statute in favor of parental rights was in order and concluded, “In reassessing our holdings in earlier Kansas adoption cases, we interpret K.S.A. 59-2102(3) [Weeks] to refer to those parents who, by their actions, clearly show little or no interest in the welfare of their children.” 228 Kan. at 674.
In In re Adoption of Harrington, 228 Kan. 636, 620 P.2d 315 (1980), the objecting father had fully paid his child support — albeit the bulk of it was paid a month before the adoption petition was filed. The father had not, however, visited his child during the critical two-year period and had sent only one birthday and one Christmas card. As in Steckman, the trial court found the father’s actions inadequate to amount to assumption of parental duties but the Supreme Court again reversed, placing its emphasis not only on the payment of child support, but on the conduct of the mother in discouraging visitation, in attempting to cut the father out of the child’s life, and in requesting the father’s consent to adoption.
The Court of Appeals, in In re Adoption of Mullett, 9 Kan. App. 2d 396, 680 P.2d 307, rev. denied 235 Kan. 1041 (1984), had before it a situation where the natural father paid at least $1400 of the $2400 he owed in child support for the two years preceding the filing of the petition for adoption. The father conceded he did not visit his son during the two-year period, nor did he send remembrances other than one card, but the mother admitted she denied the natural father any opportunity to visit the child and stated she wished to cut the father out of his child’s life. The Court of Appeals held the non-visitation was explained by the hostility demonstrated by the mother and her new husband. There was substantial evidence to support the trial court’s finding that the father had not failed to assume the duties of a parent during those two years, and his consent to an adoption was required. In our decision in Mullett, we relied on Steckman and Harrington as controlling.
The most recent decision in this troubled and difficult area is In re Adoption of F.A.R., 242 Kan. 231. There, the adoption was denied although the natural father was incarcerated in the Kansas Industrial Reformatory serving a prison term of forty-five years to life, since he had made valid attempts to seek specific visitation rights which were thwarted by the mother’s reluctance to force the children to visit their father in prison. The mother had returned a small support payment sent by the father, which supported the trial court’s finding that the mother interfered with the father’s right to keep in contact with his children. The Supreme Court affirmed the district court decision denying the adoption, holding that in making a determination in an adoption proceeding of whether a nonconsenting parent had failed to assume his or her parental duties for two consecutive years all the surrounding circumstances must be considered. The fact that a nonconsenting party was incarcerated and unable to fulfill the customary parental duties required the court to determine whether such parent had pursued opportunities and options which may be available to carry out such duties to the best of his or her ability.
There are compelling reasons which require a reversal of this case. The first is the wording of the trial court’s opinion, which indicates the “best interests” of the child was given undue consideration. There is no question but that the trial court’s decision is socially desirable, but unless the legislature estab lishes different tests in adoption cases we must continue the presently mandated strict construction in favor of maintaining the rights of a natural parent.
An additional reason we must reverse becomes clear when we examine the common thread running through F.A.R., Crider, Mullett, Harrington, Steckman, McMullen, and earlier adoption cases. So long as a natural father or mother makes support payments and a real and continuing effort to assume parental duties, a child may not be adopted without the consent and against the protest of one of the natural parents, unless the facts warranting an exception can be “clearly proven.” In re Adoption of Harrington, 228 Kan. at 638; In re Sharp, 197 Kan. at 505.
During the two-year period in this case, support payments were made by Father and additional funds were extracted from his tax refund. Mother had talked Father out of exercising his earlier visitation order. Contact with the child was attempted on at least four occasions, one gift was sent but returned, and there was a four-hour visit in April 1985. Father may have lacked sophistication in locating Mother and B.J.H., but his actions are more than “incidental.”
Under our strict interpretation of K.S.A. 1987 Supp. 59-2102(a)(3), we hold upon the whole record presented, as a matter of law, that Father has not “failed or refused to assume the duties of a parent for two consecutive years” prior to the filing of the adoption petition by Stepfather.
Reversed. | [
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Meyer, J.:
Plaintiffs appeal the district court’s decision denying their request for rescission of an automobile sales contract.
On May 13, 1985, plaintiffs Joseph and Vickie Perry bought a 1981 Pontiac T-1000 from the defendant, Goff Motors, Inc. Plaintiffs paid for the Pontiac by trading in a 1975 Ford van and agreeing to pay the car dealership $1,759.30. The plaintiffs financed this sum through defendant General Motors Acceptance Corporation, to whom Goff Motors assigned its interest under the contract with the plaintiffs.
Goff Motors did not deliver the Pontiac’s certificate of title to the plaintiffs at the time of the sale; rather, the dealer agreed to “deliver the certificate of title . . . to purchaser personally or by registered or certified mail within fifteen (15) days from the date of this agreement.” Goff s agent claimed that on May 18,1985, he mailed the Pontiac’s certificate of title to the plaintiffs by regular mail; however, Mr. Perry testified that he never received the title in the mail.
On June 12, 1985, Mr. Perry contacted John Wentling, the business and leasing manager of Goff Motors, and told him that he had not received the title to the Pontiac and that he was concerned that his thirty-day temporary permit was about to expire. Goff Motors applied for a duplicate title, which it received in early July 1985. On July 7, Mr. Wentling called Mr. Perry and had him come to the dealership so he could personally deliver the title to him. However, Mr. Perry would not accept the title to the Pontiac and told Mr. Wentling that he wanted Goff to take the car back.
On the same day, Goff Motors sent the duplicate title to plaintiffs by certified mail. However, plaintiffs did not pick up the title from the post office and it was returned to Goff Motors two weeks later. Thereafter, Mr. Wentling left the title at Mr. Perry’s place of employment.
During this period of time, Mr. Perry continued to drive the Pontiac even though the temporary permit had expired, putting a total of 3,517 miles on the vehicle. Additionally, on July 2, 1985, plaintiff made one payment to G.M.A.C. in the amount of $77.53.
The plaintiffs sued the defendants for rescission of the contract. Defendant G.M.A.C. counterclaimed for the foreclosure of its security interest. The district magistrate judge hearing the case ruled that, although Goff did not deliver a title to the plaintiffs within the fifteen-day period mentioned in the parties’ contract, that was not a sufficient reason justifying its rescission. The plaintiffs appealed the magistrate’s decision to the district court, which affirmed the decision, concluding that plaintiffs had failed to establish fraud justifying the rescission of the contract.
Plaintiffs contend the district court erred in concluding that the sale of the Pontiac T-1000 was not fraudulent and void under the provisions of K.S.A. 1986 Supp. 8-135(c)(7).
K.S.A. 1986 Supp. 8-135(c)(7) provides, in pertinent part:
“It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered, unless, at the time of delivery thereof or at a time agreed upon by the parties, not to exceed 30 days, inclusive of weekends and holidays, after the time of delivery, there shall pass between the parties a certificate of title with an assignment thereof. The sale of a vehicle required to be registered under the laws of this state, without assignment of the certificate of title, is fraudulent and void, unless the parties shall agree that the certificate of title with assignment thereof shall pass between them at a time other than the time of delivery, but within 30 days thereof. The requirements of this paragraph concerning delivery of an assigned title shall be satisfied if (i) the seller mails to the purchaser by restricted mail the assigned certifícate of title within 30 days . . . .”
Kansas cases have consistently held that these provisions of the Motor Vehicle Registration Act “mean exactly what they say; that they are to be literally interpreted and strictly enforced; and that failure to comply therewith renders the sale of a vehicle required to be registered under the Act fraudulent and void.” Green v. Devoe Sales, Inc., 206 Kan. 238, 243, 477 P.2d 944 (1970); see Melton v. Prickett, 203 Kan. 501, 508, 456 P.2d 34 (1969); Wilcox Trailer Sales, Inc. v. Miller, 200 Kan. 315, 321, 436 P.2d 860 (1968), and cases cited therein. As is customarily the case with statutes involving public policy, the courts have literally interpreted and strictly enforced these statutory provisions to promote the purposes of the Act, which are:
“to provide a ready means for ascertaining the owner of a motor vehicle, compel payment of sales tax by the purchaser of an automobile, prevent fraud and theft of automobiles, prevent trafficking in stolen automobiles, and to lend stability to the business climate surrounding the sale of automobiles.” In re Littlejohn, 519 F.2d 356, 358 (10th Cir. 1975) (applying Kansas law).
We pause to note that the above quote from Littlejohn makes it apparent that the statute, in fact, has broad public policy ramifications.
The simple issue raised by this appeal is whether K.S.A. 1986 Supp. 8-135(c)(7) requires the seller of an automobile to deliver, in fact, the certificate of title to the purchaser within thirty days after the sale, or whether a mere agreement to do so satisfies the statute. We hold that the seller of an automobile must deliver the certificate of title to the purchaser either at the time of the sale, or, if the parties so agree, at a time within thirty days after the sale. If the seller fails to so deliver the title, the sale is fraudulent and void.
In Heshion Motors, Inc. v. Trinity Universal Ins. Co., 229 Kan. 412, 625 P.2d 437 (1981), the court interpreted a prior version of K.S.A. 1986 Supp. 8-135(c)(7) which allotted only a fifteen-day as opposed to a thirty-day period within which time the parties could agree to transfer the certificate of title. The case involved a declaratory judgment action to determine whether the plaintiff car dealership had insurance coverage for a loss it suffered when one of its cars was stolen from its lot and stripped. The specific issue was whether the plaintiff had “full and valid title” at the time the car was stolen. Under the facts of the case, the plaintiff had possession of the automobile, but had not yet received its certificate of title. The supreme court, in part, held that “[i]n the cases where the parties agree to a later date for delivery of the certificate of title, not later than fifteen (15) days, and delivery is made pursuant to the agreement, a full and valid title relates back to the date of delivery of the vehicle.” Heshion Motors, Inc., 229 Kan. at 415. (Emphasis added.) Thus, the Heshion Motors case is authority for our conclusion that K.S.A. 1986 Supp. 8-135(c)(7) requires not only an agreement to deliver the title within the thirty-day period, but also requires that delivery of the certificate of title in fact occur within the agreed-upon time. See also Ellsworth v. Worthey, 612 S.W.2d 396, 400 (Mo. App. 1981) (applying Kansas law).
Further, if the statutory fraud could be avoided by a mere agreement to deliver the certificate of title within 30 days after the delivery of the vehicle, such a rule would not promote the various purposes of the statute. For example, the existence of a mere agreement to deliver title within 30 days would not provide a ready means for ascertaining the owner of a motor vehicle, nor would it prevent fraud. However, our holding herein, which requires actual delivery of the title within the time agreed to by the parties, promotes the purposes of K.S.A. 1986 Supp. 8-135(c)(7).
While Goff Motors may have made an ostensibly good faith attempt to deliver the title to the plaintiffs after the agreed-upon time had expired, the fact is that a title did not pass between the parties within those fifteen days. Again, the provisions of K.S.A. 1986 Supp. 8-135(c)(7) have been strictly enforced to promote the purposes of the Motor Vehicle Registration Act; there is no provision in the statute or in the case law interpreting it for “substantial compliance.” Goff Motors is a car dealership and should be well aware of the Kansas laws concerning the transfer of certificates of title. Consequently, despite the efforts of Goff Motors to deliver the certificate of title to the plaintiffs after the fifteen days had elapsed, we conclude that these efforts did not validate the already “void” sale.
Because the sale of the Pontiac was “fraudulent and void,” the next issue is whether the Perrys should be able to rescind the sale. As analyzed below, we conclude that they should.
In passing, we note that the sale of the Pontiac constituted a “transaction in goods,” thus activating the provisions of the Uniform Commercial Code. K.S.A. 84-2-102. “Rescission” is a common-law equitable remedy, and the UCC substitutes the concept of “revocation of acceptance” for the remedy of rescission. Cases are divided on the issue of whether the UCC’s remedy of revocation of acceptance affects a party’s right to pursue the “non-code” remedy of rescission. See Calloway v. Manion, 572 F.2d 1033, 1039 (5th Cir. 1978); Palmer v. Idaho Peterbilt, Inc., 102 Idaho 800, 802, 641 P.2d 346 (1982); Sudol v. Rudy Papa Motors, 175 N.J. Super. 238, 241-42, 417 A.2d 1133 (1980); Russo v. Guardsman Lease Plan, Inc., 82 App. Div. 2d 801, 439 N.Y.S.2d 214 (1981); DeCoria v. Red’s Trailer Mart, 5 Wash. App. 892, 894, 491 P.2d 241 (1971). We hold that, although the UCC substitutes the common-law remedy of rescission with the concepts of rejection and revocation of acceptance, the existence of the statutory remedies does not affect a party’s right to pursue an action for rescission.
We reach this conclusion through two provisions of the UCC. Under K.S.A. 84-1-103, the “principles of law and equity, including the law . . . relative to . . . fraud ... or other validating or invalidating cause shall supplement its provisions.” K.S.A. 84-1-103 recognizes that the UCC does not cover everything, and that other non-code provisions must supplement the cpde in the appropriate case. The sale of the Pontiac was “invalidated” by operation of K.S.A. 1986 Supp. 8-135(c)(7) and the equitable remedy of rescission should be available to set aside the sale. In addition, K.S.A. 84-2-721 provides that “[n]either rescission or a claim for rescission of the contract for sale nor rejection or return of the goods shall bar or be deemed inconsistent with a claim for damages or other remedy.” This provision of the UCC specifically contemplates an action for rescission. We conclude that a party’s right to seek the equitable remedy of rescission has not been affected by any provision of the UCC.
Goff Motors’ failure to comply with the provisions of K.S.A. 1986 Supp. 8-135(c)(7) rendered the sale of the Pontiac fraudulent and void. Because the sale was void, title to the Pontiac remained in Goff Motors. Heshion Motors, Inc. v. Trinity Universal Ins. Co., 5 Kan. App. 2d 432, 434, 618 P.2d 327 (1980), modified 229 Kan. 412, 625 P.2d 437 (1981); Gicinto v. Credithrift of America, 219 Kan. 766, 549 P.2d 870 (1976); Melton v. Prickett, 203 Kan. 501; Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P.2d 931 (1967). Because title to the Pontiac remained in Goff Motors, the Perrys in effect received nothing as a result of the sale.
“ ‘Rescission is an equitable remedy designed to afford relief from a contract entered into through mistake, fraud or duress.’ ” Nordstrom v. Miller, 227 Kan. 59, 68, 605 P.2d 545 (1980) (quoting Cleaves v. Thompson, 122 Kan. 43, 46, 251 Pac. 429 [1926]). The sale of an automobile in violation of K.S.A. 1986 Supp. 8-135(c)(7) gives rise to an action to set aside, or rescind, the sale. Tilson v. Newell, 179 Kan. 73, 77-78, 293 P.2d 227 (1956).
The sale of the automobile violated K.S.A. 1986 Supp. 8-135(c)(7) and was fraudulent and void. Because the sale was void by operation of law, the trial court should have rescinded the contract.
Are the Perrys estopped from asserting the invalidity of the sale? The magistrate judge apparently believed as much, and references were made to the doctrine at trial and on appeal. It is notable, however, that neither the magistrate judge nor the district judge used the term “estoppel” in their memorandum opinions; neither judge made specific conclusions that he was holding that estoppel applied. Among other things, the district judge failed to make specific findings relative to the ingredients necessary to establish estoppel. For example, no finding is made relative to any detrimental reliance. Further, only defendant G.M.A.C. pleaded this affirmative defense. Because Goff Motors failed to affirmatively plead estoppel as a defense, it has waived its right to assert it. Oehme v. Oehme, 10 Kan. App. 2d 73, 77, 691 P.2d 1325 (1984), rev. denied 236 Kan. 876 (1985).
However, had Goff Motors properly pleaded the defense of estoppel, we conclude that neither it, nor G.M.A.C., may use that defense in this context. It is the general rule that validity cannot be given to a void contract through any principle of estoppel. Moving Picture Machine Op. Local No. 236 v. Cayson, 281 Ala. 468, 480, 205 So. 2d 222 (1967); Sumner Development Corporation v. Shivers, 517 P.2d 757, 762 (Alaska 1974); Corti v. Fleisher, 93 Ill. App. 3d 517, 532, 417 N.E.2d 764 (1981); Vedder v. Spellman, 78 Wash. 2d 834, Syl. ¶ 3, 480 P.2d 207 (1971). To do so in the present case would run afoul of the express language of K.S.A. 1986 Supp. 8-135(c)(7) rendering a sale in violation of the statute “void.” If we were to estop the Perrys from asserting the illegality of the sale, we would in effect validate a sale that the legislature has not only deemed void, but has declared to be illegal as well. K.S.A. 1986 Supp. 8-135(c)(7); K.S.A. 8-149. Estoppel should never be used to defeat public policy.
Assuming, for the sake of argument, that estoppel would be available to prevent the Perrys from rescinding the sale, we believe that it would be inappropriate to apply it to the facts of this case. The defendants contend the Perrys should be estopped from setting aside the sale because the Perrys put over 3,500 miles on the car in the eight weeks they had it and also that they made one payment to G.M.A.C. on their loan.
The facts of the case indicate that Mr. Perry used the automobile to commute to and from work and that this mileage totalled 57 miles a day. In Johnson v. General Motors Corp., 233 Kan. 1044, 1048-1049, 668 P.2d 139 (1983), the court stated:
“A buyer’s continued use of the goods after revocation of acceptance can constitute an acceptance of ownership and invalidate a cancellation of sale. Here buyers were placed in a position where if they stored the truck or properly sold the truck, they would not have a vehicle for transportation until the trial of the issues or would be required to lease or purchase an additional vehicle. The buyers’ continued use of the vehicle under these circumstances was not an act of continued use which constituted an acceptance of ownership after revocation. With little or no low-cost public transportation available to the public, private transportation has changed from a luxury to a necessity.”
We do not believe that Mr. Perry’s continued use of the Pontiac in this case estops him from asserting the invalidity of the sale. The necessity of such use was not of his own making. Goff Motors had the van that he traded in, and it is obvious that he needed a car to get to work. Thus, while Perry’s use of the car was justified, the reasonable value of such use may be considered in restoring the status quo.
Similarly, we do not believe the fact that the Perrys made one payment to G.M.A.C. justifies an estoppel herein, especially in light of the fact that Mr. Perry testified he made the payment to “get them off our backs.” Thus, even if estoppel was available as a defense herein, we conclude that the facts are insufficient to estop the plaintiffs from enforcing their statutory rights.
Lastly, the plaintiffs contend the district court erred in granting judgment for G.M.A.C. on its counterclaim for foreclosure of its security interest in the Pontiac. We agree. G.M.A.C. is an assignee of the contract and as such is subject to all claims and defenses of the plaintiffs against Goff Motors arising out of the sale of the Pontiac. K.S.A. 16a-3-404. Thus, G.M.A.C. took the contract subject to plaintiffs’ claim that the sale was fraudulent and void, and the district court erred in granting judgment in favor of G.M.A.C. on its foreclosure action.
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Brazil, J.:
Koch Engineering, Inc., and its insurance carrier, Aetna Insurance Company, both of which will be referred to as Koch, appeal the workers’ compensation award made to an employee, Charles L. Carter.
Carter was working for Koch on August 16, 1983, operating a punch press when his right hand was crushed by the cutting dies on the machine. Carter had run such machines for Koch for six years prior to the accident and had never been disciplined for a safety violation. Material moving through the press would occasionally jam and the operator would need to free it to continue production.
Koch had certain procedures it taught machine operators to follow when a jam occurred:
(1) Turn off the power to the press;
(2) Slip a thin metal rod under the guard at the end of the press and try to free the material;
(3) Use pincer pliers to grab the material and try to free it;
(4) Remove the front of the guard that surrounds the dies in the compression area of the press and insert a set-up block to prevent the press from closing;
(5) Try again to move material with rod or pincer pliers;
(6) Contact foreman if set-up block, pliers, and rod are not available.
On August 16 Carter tried to clear a jam. He did not shut off the power. He tried to force the material through by hand, but had no luck. Carter opened the guard, exposing the cutting area, and tried to use a “little stick” he had found. He moved a counter that told the press when to cut the material so he would have some leeway before it cut again and then freed the material with his hand. Unfortunately, the freed material moved on through the press so quickly the dies compressed before Carter could remove his hand and it was crushed. Carter had looked for a set-up block but none was located near the press at the time.
Carter filed a workers’ compensation claim on October 25, 1984. Koch alleged Carter was not entitled to compensation because he willfully failed to follow safety procedures. The administrative law judge (ALJ) found that Carter’s failure to turn off the press and to find and use a set-up block was willful and, under K.S.A. 44-501(d), barred him from compensation. On ap peal, the Workers’ Compensation Director reversed, finding Carter had not acted willfully as that term is used in K.S.A. 44-501(d), and that he was entitled to compensation based upon 65% loss of use of his right forearm. The director also granted Carter compensation for a fifteen-week healing period. Koch appealed to the district court; it found Carter had lost 80% of the use of his right forearm and Koch had not met its burden under K.S.A. 44-501(d) to prove Carter had willfully failed to use safety devices. The court also allowed the fifteen-week healing period.
Koch raises three issues on appeal. We will address its third issue as issues three and four.
1. DOES SUBSTANTIAL COMPETENT EVIDENCE IN THE RECORD SUPPORT THE DISTRICT COURT’S FINDING THAT CARTER HAD LOST 80% OF THE USE OF HIS FOREARM?
Koch makes two arguments under this issue. First, it notes that the only doctor to state an opinion about Carter’s disability said he suffered a sixty-five percent impairment of function of the forearm. Koch then asserts, “The eighty-percent figure chosen by the District Court is without support, or mention, in the evidentiary record.” This claim assumes that someone must mention the specific number chosen by the district court in order for its conclusion to be supported by the record. However, the doctor also described Carter’s injury and loss of use of the hand and Carter testified about the post-injury functioning of his hand. “The existence, nature and extent of the disability of an injured workman is a question of fact [citations omitted]. Medical testimony is not essential to the establishment of these facts [citation omitted]; hence it is not necessary that a workman’s disability be given a medical name or label.” Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 201, 547 P.2d 751 (1976). Thus, the district court, as factfinder, was free to consider all the evidence and decide for itself the percent of disability Carter suffered. The number the doctor chose to apply was not controlling.
Koch next points to the court’s use of the word “work” in the following paragraph of its opinion:
“[Carter] then can do 20% of the work he was doing with the injured arm and hand prior to his injury. He is therefore suffering from an 80% permanent partial disability to his right forearm.”
The word “work,” under Koch’s argument, shows the court confused the loss of use test properly applicable in this case with the work disability test used in general body disability cases. Immediately before reaching the quoted conclusion, however, the court reviewed the testimony of Carter relating to the functioning of Carter’s hand:
“The Claimant testified that he was right handed. He cannot button the left sleeve of a shirt. He cannot make a fist. He must use the little finger of his right hand as one would normally use a thumb in order to grasp small objects. He cannot close any finger with the thumb of his right hand — the pincher movement. His thumb of the right hand will not move at all. The skin on the right hand is ‘real sensitive.’
“The doctor testified that the Claimant will develop arthritis requiring additional surgery in the future.”
This is the evidence the court was considering when it found Carter could “do 20% of the work he was doing . . . prior to his injury.” By using the word “work,” the court did not mean those activities Carter had performed at his job but all useful activities Carter could perform with his hand. The court would have reviewed Carter’s job activities had it been applying the work disability test as Koch claims.
2. DID THE DISTRICT COURT HAVE AUTHORITY TO AWARD CARTER ADDITIONAL COMPENSATION FOR A HEALING PERIOD?
Carter was injured on August 16, 1983. He received temporary total compenstion for 51.71 weeks after which he returned to work for Koch.
The schedule for Carter’s injury provided for 200 weeks of compensation. Both the director and the district court computed the award by first adding a fifteen-week healing period to the scheduled 200 weeks and substracting 51.71 weeks of temporary total disabilty for a net balance of 163.29 weeks.
K.S.A. 44-510d(b) provides:
“Whenever the employee is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in K.S.A. 44-510 . . . and no additional compensation shall be allowable or payable for either temporary or permanent disability, except that the director may, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten percent (10%) of the total period allowed for the scheduled injury in question nor in any event for longer than fifteen (15) weeks. The return of the employee to his or her usual occupation shall terminate the healing period.”
Koch argues that the legislature meant for the healing period to apply only when a worker has received all compensation available for a scheduled injury but is still unemployed. However, Koch says, where an employee returns to work as soon as his injury has healed sufficiently for him to work again, allowing a healing period would provide double compensation for some of the weeks while the employee was temporarily totally disabled since the healing period ends when the employee returns to his or her usual occupation. Koch also argues the legislature did not intend to permit this double compensation because the Workmen’s Compensation Act is intended to compensate injured workers for their loss of earning capacity, not to provide them with a windfall.
It appears, though, that the statute may be interpreted just as easily to support the district court’s award. The statute does allow the director “in proper cases” to give the worker “additional compensation” for “the actual healing period.” K.S.A. 44-510d(b). Double compensation certainly falls within the meaning of “additional.” The direction that the healing period ends when the employee returns to his or her usual occupation would still apply in those cases where the employee returns to that work in less time than 10% of the scheduled injury period, up to fifteen weeks. This interpretation appears to give the director discretion to award healing period compensation for scheduled injuries any time the employee is unemployed while recovering from the injury. This construction is supported by the general rule that “the workmen’s compensation act is to be liberally construed in favor of the workman and compensation is to be awarded where it is reasonably possible to do so. [Citation omitted.]” Hensley v. Carl Graham Glass, 226 Kan. 256, 258, 597 P.2d 641 (1979). The legislature could have stated that a healing period should be allowed only if temporary total or permanent disability ran out during the actual healing period if that is what it intended, but it did not do so.
The provision for healing period compensation first appeared in our Workmen’s Compensation Act in 1927 (L. 1927, ch. 232, § 10[21]) and has remained virtually unchanged to the present. Compare K.S.A. 44-510d(b) with R. S. 1923, 44-510(3)(c)(21) (1930 Supp.). Before the 1927 amendment, the pertinent portion of R. S. 1923, 44-510(3)(c)(23) read simply: “The compensation for the foregoing specific injuries shall be in lieu of all other compensation, except the benefits provided in paragraph 1 of this section.” Under the amendment, this language was slightly altered and other language was added. The provision became R. S. 1923, 44-510(3)(c)(21) (1930 Supp.) and read:
“Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section and no additional compensation shall be allowable or payable for either temporary or permanent disability-' Provided, however, That the commission, arbitrator or committee may, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten (10) per cent of the total period allowed for the schedule injury in question, nor in any event for longer than fifteen (15) weeks: Provided further, That the return of the workman to his usual occupation shall terminate the healing period.”
The provision is now found at K.S.A. 44-510d(b) quoted herein. The changes in the provision since 1927 do not appear to be significant for our purposes.
At one time, the Kansas Workers’ Compensation Director had a regulation which dealt with the healing period. Effective January 1, 1966, this regulation provided in pertinent part: “A healing period is involved only in computations where there is a complete or partial ‘loss of’ [as opposed to ‘loss of use of’] a scheduled member or when there is enucleation of an eye.” K.A.R. 51-7-12 (Weeks 1965). In medicine, “enucleate” means “to remove without cutting into . . . shell out from a capsule.” Webster’s Third International Dictionary 759 (1971). This regulation was amended effective January 1, 1973, to read:
“Additional compensation for a healing period in case of amputation may be allowed by the director, such period to be not more than ten (10) percent of the total period allowed for the scheduled injury in question, nor in any event longer than fifteen (15) weeks. The return of the workman to his usual occupation shall terminate the healing period. [Emphasis in original.]” K.A.R. 51-7-12 (1973 Supp.).
The 1977 amendment merely removed the italics and changed “workman” to “worker.” K.A.R. 51-7-12 (1977 Supp.). The 1978 amendment inserted a new sentence between the two quoted above which read: “Additional compensation for healing period in cases of scheduled injury, not an amputation, may be allowed by the director in proper cases.” It also replaced “his” in the last sentence with “his or her.” K.A.R. 51-7-12 (1978). Finally, this regulation was revoked in 1983. K.A.R. 51-7-12 (1984). This may have been done because the new sentence rendered the regulation no more informative than the statute itself.
The amputation limitation in the regulation almost certainly was drawn from Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592 (1930). In that case, citing only the statute, the court declared, “The extra compensation for the healing period is allowed in cases of amputation only.” 130 Kan. at 74. However, as noted in Shank v. Mid-America Drilling Co., 5 Kan. App. 2d 618, 621, 621 P.2d 1019 (1981), the supreme court has not always followed the rule stated in Hering. Riggan v. Coleman Co., 166 Kan. 234, 237-38, 200 P.2d 271 (1948) (loss of use of arm), overruled on other grounds Bryant v. Excel Corp., 239 Kan. 688, 692, 722 P.2d 579 (1986); Schweiger v. Sheridan Coal Co., 132 Kan. 798, 800-02, 297 Pac. 688 (1931) (loss of use of eye). See also the following non-amputation cases: Rogers v. Board of Public Utilities, 158 Kan. 693, 702, 149 P.2d 632 (1944) (double hernia); Gallivan v. Swift & Co., 136 Kan. 234, 237, 14 P.2d 665 (1932) (loss of use of two fingers and surface injury to palm of hand). Thus “proper cases” (44-510d[b]) do not seem to be limited to amputation cases.
The Riggan case has suggested an explanation for the treatment by the legislature and the court of the healing period. In that case, the worker suffered an injury which ultimately cost him the use of his right arm; he was completely unable to work for about 120 weeks after the accident. 166 Kan. at 234-35. The district court awarded him 119 weeks of compensation for temporary total disability and added to that the full 210 weeks allowed under the schedule for permanent loss of use of his arm. 166 Kan. at 234-35. The supreme court admitted that cases before the 1927 amendment provided much support for the trial court’s decision. 166 Kan. at 236 (citing Lane v. Sonken-Galamba Corporation, 119 Kan. 256, 237 Pac. 875 [1925]). The court quoted the then-current version of K.S.A. 44-510d(b), noted that it was bound to follow the legislative intent despite its own sympathies, and said:
“Faced by an undisputed situation such as we have heretofore described and an express legislative fiat directing that no additional compensation shall be allowable for either temporary or permanent disability where a workman is entitled to compensation for a scheduled injury we believe there can be but one answer. That is that the trial court, having found the appellee had suffered the loss of the use of an arm, did not have power to allow appellee additional compensation for temporary incapacity in excess of the fifteen-weeks healing period authorized by the statute and to which we hold he was entitled under the uncontroverted evidence.” 166 Kan. at 237.
Thus, it appears that before the 1927 amendment, a worker who was temporarily totally disabled by a scheduled injury could receive compensation for that period and still receive the full scheduled compensation for the injury after healing as much as the injury would allow. With this in mind, then, the legislature set about eliminating the extra compensation for the period of temporary disability. For some reason, though, the legislature decided not to go quite all the way and created the extra healing period compensation for those workers who were unable to return immediately to work after their injuries. The reason may be as follows. Without the healing period under the new system, a worker who lost a hand, for example, would receive 150 weeks of compensation (K.S.A. 44-510[a][ll]) whether he or she returned to his or her usual occupation the next day, a month later, or a year later. The healing period, then, to a limited extent, allows additional compensation for a delay in returning to work. In a case such as ours, the temporary total disability award adds to the worker’s award only if his or her permanent scheduled disability is a partial loss of, or loss of use of, the scheduled member since the number of weeks of compensation is multiplied by the percent of partial disability only after the weeks of total disability are subtracted. This view of the healing period compensation appears to explain the cases where the supreme court has directed it to be awarded. Bergemann, 215 Kan. 685; Riggan, 166 Kan. 234; Gallivan, 136 Kan. 234. A “proper case” under 44-510d(b), then, would be one where the worker suffers only a scheduled injury but is unable to return to work immediately. On the other hand, where the worker is temporarily totally disabled by other injuries in addition to the scheduled one but suffers only the scheduled one permanently, the healing period would not be proper because this worker is entitled to receive the full scheduled amount in addition to the temporary total disability. See, e.g., Cramer v. Blankenship Painting & Decorating Co., 202 Kan. 531, 535-37, 449 P.2d 555 (1969); Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, Syl. ¶ 2, 96 P.2d 684 (1939); Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, Syl. ¶ 1, 297 Pac. 429 (1931).
A weakness in Koch’s argument about the healing period awarded in this case is that it assumes that the weeks used to measure the compensation due for temporary total disability, the healing period, and a scheduled injury all have the same significance. They are actually used simply to arrive at the amount of compensation due to a worker, but their relationship to reality is quite different. Weeks used to measure temporary total disability are those real weeks during which “the employee, on account of the injury, has been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment.” K.S.A. 44-510c(b)(2). Weeks used to measure the healing period are those real weeks, artificially limited to fifteen weeks, after the injury which pass before the worker returns to his or her usual occupation. K.S.A. 44-510d(b). Weeks used to measure a scheduled injury are completely artificial, bearing no relationship in fact to the real time it takes the worker to recover from the injury or learn to compensate for the injury to the scheduled member of his or her body. They simply represent, when multiplied by the weekly rate of compensation, the legislature’s declaration of the amount of money a worker should receive as compensation for the listed injuries. This combination of weeks which are completely dependent on, only to a relatively small limit dependent on, and completely independent of, the individual worker’s actual condition makes Koch’s argument that Carter has been doubly compensated sound more plausible than it actually is.
In Carter’s case, the healing period compensation may be properly awarded because he will then receive: (1) full compensation for those weeks on the schedule during which he lost all use of his right forearm; (2) compensation for 80% of those weeks remaining on the schedule because the legislature (and/or the court) has said he should receive those weeks when he has permanently lost 80% of the use of his right forearm; (3) and 80% of fifteen additional weeks of compensation simply because the legislature (and/or the court) said he is entitled to that where he has missed work, up to 10% of the number of weeks provided on the schedule for his injury, but not more than fifteen weeks.
Koch closes its argument under this issue by asserting the court improperly calculated Carter’s award under K.A.R. 51-7-8. The pertinent portion of that regulation reads:
“If a healing period ... is granted, it shall be added to the weeks on the schedule or partial schedule prior to the following computations being made.
“If a loss of use occurs to a scheduled member of the body, compensation shall be computed as follows: deduct the number of weeks of temporary total compensation from the schedule; multiply the difference by the percent of loss of use to the member; and multiply the result by the applicable weekly temporary total compensation rate.”
The district court determined Carter “would be eligible for 130.63 weeks compensation at the maximum rate for permanent partial disability to his forearm (K.S.A. 44-510d[a][12]).” The court obtained that result this way: “[(200 wks. schd. + 15 wks. healing) - 51.71 wks. temp, tot.] x .80 p.p.” The director, who held Carter lost 65% use of his forearm, made this calculation:
“[C]ompensation would be computed by beginning with the schedule of 200 weeks for the forearm and adding thereto the healing period of 15 weeks, making a starting point for the computation of 215 weeks. From this sum is subtracted the weeks of temporary total disability compensation of 51.71 weeks, leaving a net of 163.29 weeks which is multiplied by 65% and results in 106.14 weeks for permanent partial loss of use.”
Koch admits the director’s computation is correctly done. The court made the same calculation except it substituted its own finding of 80% permanent partial loss of use. We find no error.
3. DID CARTER’S FAILURE TO USE THE SAFETY DEVICES TAKE HIS ACTIVITIES BEYOND THE COURSE OF HIS EMPLOYMENT?
Koch raised this issue before the trial court and again on appeal by incorporating by reference the argument made in its submission letter directed to the ALJ. In Hoover v. Ehrsam Company, 218 Kan. 662, 544 P.2d 1366 (1976), the district court had held that an employee, who had been forbidden to do manual labor, acted outside the scope of his employment when he tried to release a machine that had jammed. 218 Kan. at 665. The supreme court noted this determination would not be dis turbed if supported by substantial evidence. 218 Kan. at 666. The court quoted the following rule from 1A Larson, Workmen’s Compensation Law § 31.00:
“ ‘When misconduct involves a prohibited overstepping of the boundaries defining the ultimate work to be done by the claimant, the prohibited act is outside the course of employment. But when misconduct involves a violation of regulations or prohibitions relating to [the] method of accomplishing that ultimate work, the act remains within the course of employment.’ (p. 6-7.)” (Emphasis in original.) 218 Kan. at 666.
The court affirmed the trial court’s decision. 218 Kan. at 667. Hoover shows that the district court’s decision here should not be overturned since Carter violated rules which related to the method of running the punch press while his ultimate work was to run the press, which he was doing.
4. DID THE DISTRICT COURT ARBITRARILY DISREGARD UNDISPUTED EVIDENCE WHEN IT CONCLUDED KOCH HAD NOT MET ITS BURDEN TO PROVE CARTER WILLFULLY FAILED TO USE THE SAFETY DEVICES?
K.S.A. 44-501 now provides in pertinent part:
“(d) If it is proved that the injury to the employee results . . . from the employee’s willful failure to use ... a reasonable and proper guard and protection voluntarily furnished the employee by the employer . . . any compensation in respect to that injury shall be disallowed.”
In 1916 the Workmen’s Compensation Act contained the following parallel provision:
“[I]f it is proved that the injury to the workman results . . . from his willful failure to use ... a reasonable and proper guard and protection voluntarily furnished him by said employer . . . any compensation in respect to that injury shall be disallowed.” L. 1911, ch. 218, § 1; Messick & McEntire, 97 Kan. 813, 815, 156 Pac. 740 (1916).
See also R. S. 1923, 44-501(b); G. S. 1949, 44-501(b) (Corrick). In Binger v. Read, 101 Kan. 303, 165 Pac. 821 (1917), the court held that the question of the adequacy of a guard had properly been sent to the jury. In Thorn v. Zinc Co., 106 Kan. 73, 186 Pac. 972 (1920), the employee had been awarded compensation despite his failure, in violation of the employer’s posted notice, to shut off a machine when it became jammed. 106 Kan. at 73-74. The court said, “To warrant a reversal the court must declare as a matter of law that the injury resulted from his willful failure to use a guard and protection furnished by his employer.” 106 Kan. at 75. The court affirmed the award with this explanation:
“The question whether the failure to stop the machinery brought the plaintiff within the statutory exception is more difficult. In a sense it may be said that the rule adopted requiring the machinery to be shut down in case the rollers became choked, a convenient means for the purpose being supplied, constituted a reasonable and proper guard and protection against the risk that would result from an attempt to remove the obstacle while the rollers were in motion. But if that construction were adopted, it would seem that a recovery would be prevented whenever a workman was injured in consequence of his neglecting to follow a rule adopted by his employer for his benefit, or of his pursuing a dangerous method of accomplishing an object where a safer one had been provided. Such a course would clearly constitute negligence, and might even be characterized as willful misconduct, but we conclude that it is not the kind of delinquency that was within the mind of the legislature when it denied a recovery to one who was injured through his willful failure to use a guard and protection furnished him by his employer.” 106 Kan. at 75-76.
Later that same year, the court considered the provision once again. In Bersch v. Morris & Co., 106 Kan. 800, 189 Pac. 934 (1920), the employee again recovered compensation despite his failure to use a guard that would have prevented the injury. 106 Kan. at 801. The court held:
“While he did this contrary to instruction, and so may be said to have been guilty of conscious, voluntary omission, he did not mean to oppose his will to the will of his employer, in any perverse or refractory sense. At least, the members of the jury, who saw the man, gauged his capacity, formed an opinion of his disposition, and weighed his testimony, were authorized to reach that conclusion.” 106 Kan. at 803.
The court went on to hold “that the meaning of the word ‘willful/ as used in the statute includes the element of intractableness, the headstrong disposition to act by the rule of contradiction. . . . ‘Governed by will without yielding to reason; obstinate; perverse; stubborn; as, a willful man or horse.’ (Webster’s New International Dictionary.)” 106 Kan. at 804.
Thorn, 106 Kan. 73, makes clear that violation of instructions from the employer alone is not enough to render the employee’s action, as a matter of law, “willful” under 44-501(d). Bersch, 106 Kan. 800, adds that the question of the willfulness of the employee’s acts is one for the factfinder to decide. The evidence here was such that the factfinder was authorized to conclude Carter had acted merely negligently or even with gross negli gence, but something short of intractably, without yielding to reason, obstinately or perversely. There may have been evidence to support a finding of willful action as well, but conflicts in the evidence are left to the factfinder, here the district court. K.S.A. 44-556(a) and K.S.A. 1986 Supp. 77-618 (continuing the prior de novo review of the facts by the district court). Koch relies solely on the passage of time in arguing these cases should no longer control, but their reasoning still appears sound.
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Woleslagel, J.:
Robert S. Hazelton brought a strict liability suit against Safeway Stores, Inc., claiming he swallowed a needle that was in bread baked and retailed by Safeway. He now claims three errors in the trial caused the jury to reach a verdict for the defendant. Timely objections were made in the trial court as to each ruling that Hazelton claims was erroneous.
Hazelton alleges (1) the trial court erred in instructing the jury that he had the burden of proving the needle was in the bread when “manufactured” instead of “at the time of sale” as speci fied in the pretrial order; (2) it was error for the trial court to permit the jurors to inspect several hundred pages of Hazelton’s old medical records, records he says were prejudicial to him but devoid of any probative value as to any factual issue; and (3) it was error for the trial court to allow the jury to watch Safeway’s videotape presentation, with running commentary, of what it claimed was its process of baking, slicing, wrapping, and testing for metal contamination. He claims the law prohibits such evidence in a strict liability action because the exercise of due care is no defense and thus not relevant. The claims of error will be addressed in the order listed.
First, however, a narrative of the evidence is necessary to understand the issues. Safeway mixes the components of what it sells as Mrs. Wright’s sandwich wheat bread at its Kansas City bakery. The testing for metal contamination is done after the bread is baked, sliced, and wrapped. The bread that Hazelton ate was taken from the bakery to a Safeway truck, transported to a Wichita Safeway store, carried into the store, and shelved.
On September 27, 1983, Hazelton’s wife had asked her father to do her grocery shopping. He drove to the Safeway store, took the loaf of bread from the shelf to the cashier counter, and purchased it. The bread was sacked and carried to his car. The father then transported it to Hazelton’s home.
Hazelton is a heavyweight boxer who eats a lot of food. He had an evening meal, but asked for something to eat again about three hours later. Hazelton’s wife prepared and served him a glass of iced tea and two sandwiches, each consisting of an egg, mayonnaise, and two slices of bread. Up to this time, no one handling the bread had seen any pin or needle in it nor noticed any hole in the wrapper or other irregularity. Upon eating the second sandwich — the seventh and eighth slices of the bread he had eaten since it was delivered — something sharp scratched his mouth and Hazelton extracted a common pin. He asked his wife to phone and report this to the police, which she did. The next afternoon he had stomach cramps and pain and did not eat an evening meal. He saw blood in the stool from an evening bowel movement, his first since eating the bread, and awakened sick the next morning vomiting blood. The following morning x-rays were taken revealing his duodenum contained a needle, which his doctor surgically removed.
The Jury Instructions
Turning now to the court’s instruction as to the step at which Hazelton needed to prove the needle was in the bread, it seems that neither the court nor counsel ever settled upon the correct step: “the time it left the defendant’s control.” Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348 (1983); PIK Civ. 2d 13.22. This would have been when the sacker delivered the bread to the car.
In his petition, Hazelton stated the bread “was manufactured in a defective condition in that it contained a needle and pin.” The pretrial order expands his allegation to be that the needle “was introduced into the loaf prior to sale.” An additional expansion is reflected in another place in the order where it recites he “alleges that the pin and needle were in defendant’s bread when the bread left defendant’s control.” If, from all of this, Safeway’s obligation is measured by “prior to sale” or “leaving defendant’s control” and the jury instructions as to .Safeway’s obligations are more limited than either, the instructions are in question because the pretrial order controls the trial unless later modified. See Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, 535 P.2d 928 (1975). The record shows no modification. To the contrary, the trial judge advised counsel that, in his introductory remarks, he would advise the jury that Hazelton claimed a sewing needle “was contained in a loaf of bread manufactured by defendant and which was introduced into the loaf of bread prior to sale.”
Excerpts from five jury instructions refer to either Hazelton’s claim or Safeway’s obligation: No. 7 — “Plaintiff claims that the needle was in the loaf of bread before it was wrapped”; No. 9 — “free from any unwholesome material as of the time of manufacture”; No. 10 — “If you find that the needle was in the bread as of the time of manufacture”; No. 11 — “at the time it leaves the manufacturer’s hands”; and No. 12 — “as of the completion of the manufacturing process.”
Only instruction No. 11 approaches a correct instruction in conformance with the pretrial order. Using the term “manufacturer’s hands” more closely suggests the baking process than the full range of Safeway’s obligation. Nonetheless, the total in structions show such ambiguity that they cannot meet the test of “impartial, accurate statements of the law” as mandated by Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 854, 494 P.2d 1113 (1972). Further, the instructions would seem to be instructions that more reasonably would mislead the jury than instructions that could not reasonably mislead them. See Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 600-01, 545 P.2d 334 (1976). Whether we are correct in this conclusion is not material because the instructions are required to state the law as applied to the facts. Allman v. Holleman, 233 Kan. 781, 785, 667 P.2d 296 (1983).
Safeway calls upon a purported stipulation and K.S.A. 1986 Supp. 60-216(a) to evade the otherwise binding effect of the pretrial order. The statute provides that, at pretrial, the court may make an order limiting trial issues to matters “not disposed of by admissions or agreements of counsel.” It further provides the order may recite the agreement. But no such order was made nor were any relevant agreements recited. While the trial court may well have been misled by statements made by Safeway’s counsel as to a supposed stipulation, we find no meritorious basis for a claim Safeway makes that Hazelton stipulated he must prove the needle was in the bread when baked.
The purported stipulation was made in connection with Hazelton’s intent to call an expert who in a deposition had opined the needle was in the bread when it was baked. Safeway’s counsel wanted assurance the opinion would not be changed at the time of trial. Hazelton’s counsel said that, if the expert changed his view because of something new being developed by Safeway, he would give adequate notice. During Hazelton’s deposition, there was this additional exchange between counsel as to the opinion of the expert, Ron Wells:
“[Safeway’s counsel]: [I]t’s my understanding from Ron Wells’ report that your contention is that the needle and pin were in the loaf of bread before it was wrapped, is that correct?
“[Hazelton’s counsel]: That’s his expert opinion. Mr. Wells’ expert opinion.
“[Safeway’s counsel]” Mr. Wells. Okay. Okay.
“[Hazelton’s counsel]: And I think his report reflects that.”
We see no more in all of this than comments upon what the expert would opine. While it might suggest that Hazelton would center upon the needle most likely entering the bread in the baking process, it constituted no stipulation that he would limit the possibilities to that in his other evidence. When the court’s instructions limited the extent of Safeway’s control that the jury could consider, it committed reversible error.
Medical Records
We consider Hazelton’s claim of error in submitting hundreds of pages of medical records as now moot. At oral argument before us, Safeway stipulated that, in case of retrial, it would only request submission of those records relating to the operation to excise the needle plus some portions of others which indicated a difference between the number of times Hazelton had been in hospitals as compared to the number of times he had so related in a deposition.
Evidence of Testing for Metal Contamination
With reversal for new trial required, we address this issue because of the novelty of the factual background as it-relates to evidence of testing, and because it may be helpful on retrial.
To support his claim of error in allowing Safeway’s evidence of metal contamination testing to go to the jury, Hazelton relies upon Cernes v. Pittsburg Coca Cola Bottling Co., 183 Kan. 758, 332 P.2d 258 (1958), and Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P.2d 633 (1957) (Cola Cases). While not the only soft drink cases that have come before our Supreme Court, they are the only ones which are somewhat relevant here. The Cola Cases were brought on the theory of implied warranty of fitness for use and, as noted by Hazelton, they held that evidence of due care in the preparation and bottling process was not admissible. See Cernes, 183 Kan. at 763; Simmons, 181 Kan. at 39.
While in Cernes the defendant questioned that the contaminant, particles of a kola nut, entered the bottle during its processing, there was direct evidence that the contaminant was in the bottle. Likewise, in Simmons, there was direct evidence that the contaminant, a match book, was in the bottle. Safeway maintains that the Cola Cases are materially distinguishable from this case because no one saw the needle in the bread. Therefore, it contends the evidence was properly admitted as tending to prove the needle was never in the bread.
We consider it to be of no consequence that this action proceeded on the theory of strict liability of one who prepares and sells a food product, a tort action, rather than the theory of implied warranty of fitness for consumption as in the Cola Cases. Strict liability was adopted by our Supreme Court in Brooks v. Dietz, 218 Kan. 698, 699-703, 545 P.2d 1104 (1976), after such adoption was forecast by Symons v. Mueller Company, 493 F.2d 972 (10th Cir. 1974) and PIK Civ. 13.21 (1975 Supp.). Brooks adopted the doctrine of Restatement (Second) of Torts § 402A, imposing liability on a seller of a product that is defective and dangerous to a user even though “the seller has exercised all possible care in the preparation and sale of his product.”
Hazelton contends the evidence of testing had to have the effect of suggesting an unstated and erroneous defense for Safeway, namely, the exercise of due care. Perhaps this suggestion could have been blunted by a simple, and we believe advisable, limiting instruction stating in substance: “This evidence is being allowed only as having a possible bearing upon whether the needle was in the loaf at the time of testing and not at any time thereafter. You should give no thought to the fact that the evidence might suggest care on the part of Safeway, as that is no defense. If you find the needle was in the loaf when it left Safeway’s control, it is liable no matter how much care it used.” The record reveals the trial court correctly considered a limiting instruction, but none was given.
Evidence of care in the manufacturing process was found proper for admission in Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 (1979), but in that case the plaintiff relied upon both strict liability and negligence. Evidence of care was held proper to rebut the negligence claim but not admissible to counter the theory of strict liability. Thus, that case cannot be relied upon to support Safeway’s position.
A bottling company’s introduction of evidence of care was approved in Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123, 124-25, 499 P.2d 539 (1972), but the case furnishes no support for Safeway’s position because the plaintiff in Butterfield, while lodging an objection to the witness’ qualifications, failed to object to the witness’ testimony concerning defendant’s proc essing. The cases from our Kansas Supreme Court appear to give direction, as in the Cola Cases, when there is direct evidence that harmful material was in food. When, as here, that evidence is circumstantial only, we can rely upon Mays v. Ciba-Geigy Corp., 233 Kan. at 54, for the principle that, if a plaintiff s circumstantial evidence sufficiently negates other possible causes so that his claim has “an inference of probability as distinguished from mere possibility,” the plaintiff has a prima facie case in a strict liability suit. The question of a defendant’s right to admit evidence of manufacturing, processing, or testing techniques, however, doés not appear to have been raised in our appellate courts when a plaintiff s evidence is circumstantial only.
A federal court case, ruling in a way the court believed our Kansas Supreme Court would rule, and an Arizona Court of Appeals case suggest an answer. In Ray v. J.C. Penney Company, 274 F.2d 519 (10th Cir. 1959), the introduction of manufacturing experience was approved where the plaintiff claimed injury from the components of gloves she bought from the defendant. The evidence was that, in the processing technique, many workers handled the gloves at the leather company without ill effect. The defendant claimed the plaintiff s hands were so unusually sensitive that injury was not foreseeable. We note this evidence was expressly limited as relating only to show how many workers handled the gloves without injurious results.
Brown v. General Foods Corp., 117 Ariz. 530, 573 P.2d 930 (1978), approved the introduction of the manufacturer’s quality control procedures in a suit where the plaintiff claimed he was penicillium fungi poisoned from a banana peel in a cereal box and utilized both theories — implied warranty and strict liability. One basis for approval of this evidence would seem to be a desire to apportion equality in the introduction of evidence:
“The courts have recognized that a plaintiff may have to rely on circumstantial evidence to prove the existence of a defect in product liability cases. [Citation omitted.] Likewise, circumstantial evidence is admissible on a defendant-manufacturer’s behalf if the admission of such evidence makes it appear more probable than it would otherwise appear without such evidence that the product in question did not contain the claimed defect when it left the defendant’s control. [Citations omitted.]” 117 Ariz. at 533.
While adoption of this fairness doctrine would not seem in judicious to us, and while it was expressly allowed as not relating to due care, the basic relevance was stated to be “the improbability of the defect as alleged by the plaintiff.” 117 Ariz. at 534. We would question our authority to approve the allowance of such evidence as evidence relating to plaintiff s credibility. We assume, in fact, that in our state the evidence might not be admissible because plaintiff testified he found the peel in the box. It follows that Cernes would proscribe such admittance. But the Arizona court rejects the ruling in Cernes as “arbitrary and illogical, and contrary to well-established principles of law governing the admissibility of evidence.” 117 Ariz. at 532-33.
We observe that the Arizona court needed to reject the holding in Cernes in order to hold the defendant’s processing evidence admissible because in each of those cases the plaintiffs testified they saw the contaminant in the product. We, however, are not called upon to express any view as to the reasonableness of the holding in Cernes because we find Cernes is not applicable. Our reasoning, assuming the needle was in the bread, is based on the following: (1) No one saw it in the bread; (2) while it might have entered during Safeway’s control, it also might have entered while on the car seat or in the home; thus, (3) Cernes is not in point as to facts.
Now we come to the final basis on which the Arizona court finds admissibility, the prevailing law of admissibility of evidence as soon thereafter codified in Rule 401 of the Arizona rules of evidence:
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ariz. Rev. Stat. Ann. (1986 Supp.).
Five years after Cernes was decided, our Kansas rules of evidence were codified (L. 1963, ch. 303, Sec. 60-401 et seq.). K.S.A. 60-401(b) defines “relevant evidence” as evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(c) defines “proof” as all evidence before the trier of fact relevant to a fact in issue which tends to prove the existence or nonexistence of such fact. K.S.A. 60-402 provides the rules are to apply “in every proceeding” unless “relaxed by other procedural rule or statute applicable to the specific situation.” We find no such procedural rule or statute and K.S.A. 60-407(f) states that “all relevant evidence is admissible.”
We detect no difference in meaning between our present rules and the Arizona rule and conclude that our rules now make the circumstantial evidence of a deferidant’s testing procedure admissible when the plaintiff s case is supported by circumstantial evidence only. This would appear to conform with the holding in Divine v. Groshong, 235 Kan. 127, 130, 679 P.2d 700 (1984):
“We start with the premise that the evidence, if relevant, is admissible. This is true unless some statute or constitutional provision mandates its exclusion.”
In conclusion, we note that the requirement of an instruction when evidence is allowed for a limited purpose is set forth in K.S.A. 60-406. Also, in the hope that this opinion will not be construed more broadly than we intend, we repeat an observation made by the Arizona court:
“We can hypothesize a fact situation in which, by reason of the intrinsic nature of the defect and the impossibility of its occurrence other than in the manufacturing process, evidence of the manufacturer’s quality control procedures would not be relevant and therefore would be inadmissible.” Brown v. General Foods Corp., 117 Ariz. at 534.
Reversed and remanded for a new trial. | [
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Brazil, J.:
The father of the youngest two of the four children involved in this case appeals the trial court’s decision to terminate his parental rights.
On May 2, 1984, four girls, ages 9, 5, 2, and 7 months, were found alone at a motel by Wichita police. At a July 3 hearing, the mother of the four and the father of the youngest two stipulated they had left the children alone, and the court found the girls to be children in need of care. The court ordered the father to submit to a psychological evaluation. At an October 11 hearing, after receiving one evaluation done by Dr. Bruce Nystrom, which is not in the record on appeal, the court ordered the father “to commence and continue to engage in an active individual psychotherapy program until said program is deemed no longer necessary by the therapist.”
The father began a therapy program with psychologist Steve Reynolds on January 24, 1985. He had nine sessions with Reynolds, the last occurring on May 2, 1985.
In July 1985, SRS moved to terminate both parents’ rights, alleging neither had complied with various reintegration plans, both had failed to maintain regular visitation with their children, and each had failed to progress in therapy — the father because he was so rigid and unwilling to change that the therapist, Reynolds, had discharged him from therapy. The court held hearings on this motion on July 31, August 1, September 26, and October 7, all in 1985.
At the hearing on July 31, Reynolds testified. The father objected to the following question and answer on the ground of psychologist-patient privilege:
“Q. . . . Why did [the father] come to the Clinie for treatment?
“A. [The father] had requested treatment as per direction of SRS and the Court is my understanding of it.”
The court overruled this objection. Reynolds then testified without objection that the father suffered from a paranoid personality disorder, with symptoms such as inability to trust people at times, suspiciousness, and “inappropriateness of affect,” and that the father particularly used intimidation to distance people from himself and showed hypersensitive suspiciousness. The father objected again a short time later. Reynolds was asked why he recommended the therapy with the father be discontinued, and the following occurred:
“A. Well, the original goals of therapy I had in my mind was [sic], of course, to assess whether or not [the father] wanted to change. And there were a couple of targets defined for the direction of therapy: One of them was getting the issue of intimidation out in the open with [him], which we had done and had some lengthy discussion about; and then make some kind of decision as to whether or not he wanted to change that kind of behavior with other people. That was discussed out in the open and he indicated to me that he didn’t see that he needed to change that.
“We also discussed how that kind of behavior may affect others, and again, as he indicated to me • — •
“MR. ASTLE: Your Honor, I object. Again, this is calling for confidential communications under the psychologist/client privileges. I’m asserting that privilege for my client.
“THE COURT: K.S.A. 38-1514, subsection (c), sub (1), provides there is, ‘No confidential relationship of physician and patient, psychologist and client or social worker and client shall arise from an examination or evaluation ordered by the court.’
It does not go on and deal directly with ongoing therapeutic programs; however, I do not find that the client’s communications as to whether or not he wishes to effect any change through therapy or not effect any change is a confidential communication. I will, therefore, overrule the objection.”
The father later testified that he was willing to engage in a psychotherapy program but not with Reynolds, because he did not trust Reynolds or was cautious about him.
By journal entry filed on January 31, 1986, the court made the following pertinent findings:
“4. the father of [the two youngest girls] suffers from a chronic paranoid personality disorder causing him to be very distrustful and to attempt to control others by intimidation, a disorder which would require long term psychotherapy he has declined to accept;
“7. the fathers of each of these children are unfit by reason of conduct or condition which renders that parent unable to care properly for his child and the conduct or condition is unlikely to change in the foreseeable future.”
The court then terminated the father’s parental rights.
The father raises two issues on appeal. We will consider his second issue first.
He argues that the trial court erred when it allowed the testimony of Steve Reynolds in violation of the psychologist-patient privilege. He has raised a possible conflict between two statutes without quoting either one.
K.S.A. 1986 Supp. 74-5323 provides in part: “The confidential relations and communications between a licensed psychologist and the psychologist’s client are placed on the same basis as provided by law for those between an attorney and the attorney’s client.” K.S.A. 38-1514 provides in pertinent part:
“(b) . . . (1) . . . During proceedings under this code, the court may order an examination, evaluation and report of the physical, mental or emotional status or needs of a parent . . . being considered as one to whom the court may grant custody. . . .
“(c). . . (1) . . . No confidential relationship of physician and patient, psychologist and client or social worker and client shall arise from an examination or evaluation ordered by the court.”
Thus, two preliminary questions arise from the father’s claim: (1) Was his relationship with Reynolds covered by the privilege granted by K.S.A. 1986 Supp. 74-5323? (2) If so, was his relationship with Reynolds within the exception to 74-5323 created by K.S.A. 38-1514(c)P
K.S.A. 60-426 sets out the lawyer-client privilege and provides some guidance on the first question. With substitutions to follow K.S.A. 1986 Supp. 74-5323, it states in part:
“(a) . . . communications found by the judge to have been between [psychologist] and his or her client in the course of that relationship and in professional confidence, are privileged [in certain situations]. . . .
“(c) ... As used in this section (1) ‘client’ means a person . . . that . . . consults a [psychologist] for the purpose of retaining the [psychologist] or securing [psychological] service or advice from the [psychologist] in his or her professional capacity . . . .” (Emphasis added.)
Since the father went to Reynolds by order of the court, there must be at least some doubt whether he might reasonably have felt that their communications were conducted “in professional confidence.” The court had found his children to be in need of care and was charged under K.S.A. 38-1583(a) with determihing whether the father was unfit and, if so, was unlikely to improve so as to be a fit parent in the foreseeable future. The father should have known the court would have to learn of his progress in therapy with Reynolds in order to make that determination. Without Reynolds’ testimony, it is difficult to see how the court could “give primary consideration to the physical, mental or emotional condition and needs of the children]” in making that decision. K.S.A. 38-1583(e). As a secondary consideration, it might also be asked whether the father’s purpose in consulting Reynolds was “securing [psychological] service or advice.” K.S.A. 60-426(c). This would, of course, be an underlying purpose, but his main purpose would presumably be to fulfill the court’s order in hopes of retaining his parental rights.
The father relies largely on the assertion that the ongoing psychotherapy program here was not “an examination or evaluation ordered by the court” under K.S.A. 38-l514(c). He is simply applying the usual understanding of the words “examination” and “evaluation,” however, and ignoring the context of their use in the Code for Care of Children, K.S.A. 38-1501 et seq. As indicated above, the court here was obligated to determine whether the father was “unfit by reason of . . . condition” and whether the “condition is unlikely to change in the foreseeable future.” K.S.A. 38-1583(a). While one purpose of the court’s order for therapy was to attempt to enable the father to resume his parental responsibilities, another was necessarily to help the court determine the likely future of the father’s condition. Thus, the ongoing therapy program was not only intended to treat, but also to “evaluate” the father’s condition. We conclude that any privilege the father might have otherwise been able to claim was rendered inapplicable in this situation by the exception stated in K.S.A. 38-1514(c).
We note that the question actually answered by the trial court was: Assuming the father could claim it, were these particular communications within the privilege? The father’s first claim of privilege was made when Reynolds testified the father came to him at the direction of SRS and the court. This information was not confidential since the court already knew it. He next objected when Reynolds attempted to explain why the father had discontinued therapy. The court did not conclude K.S.A. 38-1514(c) controlled but instead relied on the following reasoning: “I do not find that the client’s communications as to whether or not he wishes to effect any change through therapy or not effect any change is a confidential communication.” Although it is somewhat difficult to equate the attorney-client and psychologist-patient relationship, that is what K.S.A. 1986 Supp. 74-5323 requires. The father’s statement to Reynolds that he did not feel that he needed to change appears similar to a client’s statement to an attorney that his or her services are no longer required, i.e., that the attorney is fired. The fact that the attorney-client relationship was thus ended could not be kept confidential, or else people who were aware the relationship had existed might attempt to deal with the attorney as the representative of the client and the attorney would not be able to correct their misunderstanding. Similarly then, Reynolds must be allowed to inform the court that the father had ended their relationship. If so, the trial court was correct in deciding the communication was not confidential.
Finally, the father contends there was insufficient evidence of a clear and convincing nature to find that he was unfit and unlikely to change in the foreseeable future. We disagree.
K.S.A. 38-1583 provides in relevant part:
“(a) When the child has been adjudicated to be a child in need of care, the court may terminate parental rights when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.
“(b) In making a determination hereunder the court shall consider, but is not limited to, the following, if applicable:
“(1) Emotional illness, mental illness, mental deficiency or physical disability of the parent, of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental and emotional needs of the child;
“(8) lack of effort on the part of the parent to adjust the parent’s circumstances, conduct or conditions to meet the needs of the child.
“(e) The existence of any one of the above standing alone may, but does not necessarily, establish grounds for termination of parental rights. The determination shall be based on an evaluation of all factors which are applicable. In considering any of the above factors for terminating the rights of a parent, the court shall give primary consideration to the physical, mental or emotional condition and needs of the child.
“Unfit” has been defined, under the predecessor to this statute, as “unsuitable, incompetent or not adapted for a particular use or service.” In re Armentrout, 207 Kan. 366, Syl. ¶ 3, 485 P.2d 183 (1971).
“On appellate review, the findings of the lower court, that a child is ‘deprived’ and a parent ‘unfit,’ will not be disturbed if there is substantial competent evidence to support them. In re Hamlett, 2 Kan. App. 2d 642, 644, 586 P.2d 277 (1978). And, when reviewing the evidence, the appellate court considers it in the light most favorable to the party prevailing below. In re Hambelton, 2 Kan. App. 2d 68, 71, 574 P.2d 982, rev. denied 225 Kan. 844 (1978).” In re Reed, 8 Kan. App. 2d 602, 605, 663 P.2d 675 (1983).
“[A] person’s parental rights may only be severed upon two specific findings by a court of competent jurisdiction: namely, that the child is [a child in need of care] [citation omitted], and that the parent is ‘unfit’ [citations omitted]. It is equally true that proof of unfitness must be established by clear and convincing evidence.” In re Reed, 8 Kan. App. 2d at 604.
See K.S.A. 38-1583(a); In re Armentrout, 207 Kan. 366, Syl. ¶ 2; In re Atwood, 2 Kan. App. 2d 680, 587 P.2d 1 (1978).
The father’s argument here is completely misdirected. He complains that SRS failed to carry out its obligations to him under the reintegration plans to which they agreed. While his failure to comply with the plans is one factor the court may consider in deciding whether to terminate his parental rights (K.S.A. 38-1583[c][3]), the court made only one finding which could have formed the basis for its ultimate finding that he was an unfit parent, namely that he “suffered] from a chronic paranoid personality disorder causing him to be very distrustful and to attempt to control others by intimidation, a disorder which would require long term psychotherapy he has declined to accept.” This finding appears to fall within K.S.A. 38-1583(b)(l) and (8), quoted above, and forms a permissible basis for the court’s decision so long as this finding is properly supported by the evidence.
Reynolds testified the father suffered from such a mental problem and had refused to participate in therapy which would help him resolve the problem. This testimony, once accepted by the trial court as factfinder, is binding on our court. “An appellate court should not weigh the evidence or pass upon the credibility of the witnesses.” International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 464, 639 P.2d 29 (1982).
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The opinion of the court was delivered by
Dawson, J.:
This is an action by the state to collect a sum of money alleged to be due under the inheritance tax law of 1915 upon the transfer of certain shares of stock in the Santa Fe railway. The state’s claim to the tax is thus founded: Simon Lavanburg, a citizen of New York, died in 1904, bequeathing a life interest in this stock and other property to his widow, and bestowing upon her the power of appointment of beneficiaries to enjoy the remainder of his estate after her death. To these beneficiaries to be named by her he bequeathed this remainder, and provided for the disposition of that remainder if his widow failed to exercise the power of appointment. The will reads:
“Third: Upon the death of my said wife I direct my executors to pay over the principal of such trust fund, or as much thereof as may then remain in their hands, to such corporations or individuals, and in such amounts, as my said wife shall by her last will and testament direct, and I give, devise and bequeath the same accordingly.
“In the event of the failure of my said wife to dispose of the whole or a part of said principal of said trust fund, then and in that case I direct my executors to divide the same in manner hereinafter provided.”
Simon Lavanburg’s widow, also a resident of New York, died in May, 1915, and in her will she exercised the power of appointment conferred upon her by her husband’s will. Pursuant thereto the Santa Fe stock belonging to her husband’s estate has been transferred by the defendant trust company, and the question for review is whether the state is entitled to the tax under these circumstances. Pending the outcome of this action, the sum in controversy has been deposited in a Topeka bank by negotiations of counsel for the parties.
The first inheritance tax law of 1909 (Laws 1909, ch. 248, Gen. Stat. 1909, §§ 9265-9291), repealed by chapter 330 of the Laws of 1913, has no bearing on the case. The present inheritance tax law (Laws 1915, ch. 357, Gen. Stat. 1915, §§ 11203-11229), which took effect on April 10, 1915, governs, if the state’s claim falls within its terms.
The district court rendered judgment for the plaintiff on an agreed statement of facts, and the defendant appeals. Only the questions of law require our attention, and the chief and controlling one of these arises on the effect of section 23 of the act, which provides: “This act shall not apply to estates of persons deceased prior to the taking effect hereof.”
It seems clear that the legislature intended that this statute was to operate prospectively. That would ordinarily follow, not because a retroactive effect could not be given, but that such construction is never given unless the legislative intent to do so is clear and unequivocal. (Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028; City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768; Lightner v. Insurance Co., 97 Kan. 97, 102, 154 Pac. 227.) To whose estate did this Santa Fe stock belong? To that of Simon Lavanburg, who died long before the enactment of the inheritance tax law, or to that of his widow, who died after its enactment?
Undoubtedly the stock belonged to the estate of Simon. He disposed of it absolutely by his will — a life estate to his widow, and the remainder as set forth above.
It is true that it was after the enactment of the law of 1915 that Lávanburg’s widow exercised the power of appointment, but it is not possible, without ignoring or minimizing the fair intendment of section 23, to find language in the statute to warrant the imposition of the tax upon the exercise of that power or upon the taking of the stock by the beneficiaries under its exercise. What language in the statute will bear that interpretation? Counsel, for the state contend that section 1 of the act fixes the tax and section 2 fixes the liability of the executor to pay it. We do not thus read section 1. It merely provided that all property (of persons dying after the act takes effect) which passes by will or intestate succession, and gifts made in contemplation of death, with certain exceptions, are liable to the tax in the specified classes and percentages therein set forth. Section 2' concerns the payment of the taxes due under the act.
Section 3 touches the proposition. It reads:
“In every case where there shall be a bequest or grant of personal estate made or intended to take effect in possession or enjoyment after the death of the grantor, to take effect in possession or come into actual enjoyment after the expiration of one or more life estates or a term of years, whether conditional upon the happening of a contingency or dependent upon the exercise of a discretion or subject to a power of appointment or otherwise, the executor, administrator or grantor may deposit with the county treasurer a sum of money sufficient in the opinion of the tax commission to pay all taxes which may become due upon such bequest or grant,” etc.
Section 27 contains some definitions and rules of interpretation :
“The words ‘estate’ and ‘property,’ as used in this act, shall be taken to mean the real, personal and mixed property or interest therein of the testator, intestate, grantor, bargainor, vendor or donor which shall pass or be transferred to legatees, devisees, heirs, next of kin, grantees, donees, vendees, or successors, and shall include all personal property within or without the state. The word ‘transfer,’ as used in this act, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift or appointment in the manner herein prescribed. The word ‘decedent,’ as used in this act, shall include the testator, intestate, grantor, bargainor, vendor or donor.”
Another section (§ 13), somewhat pertinent, reads:
“If a foreign executor, administrator or trustee assigns or transfers any stock in any national bank located in this state or in any corporation organized under the laws of this state, owned by a deceased nonresident at the date of his death and liable to a tax under the provisions of this act, the tax shall be paid to the county treasurer of the proper county at the time of such assignment or transfer; and if it is not ■ paid when due, such executor, administrator or trustee shall be personally liable therefor until it is paid.”
Section 3 relates to the estates of persons who have died since the enactment of the statute, and the language, “whether conditional upon the happening of a contingency or dependent upon the exercise of a discretion or subject to a power of appointment or otherwise,” is a dependent and qualifying phrase which relates to the bequests and grants made by the grantor and which take effect after the grantor’s death. The shares of stock sought to be taxed are of that nature, except that they pertain to an estate of one who died prior to the enactment. The bequest of the remainder of them was to take effect according to the will of Simon “after the expiration of one or' more life estates or a term of years,” as the statute reads, and were “dependent upon the exercise of a discretion” and “sub ject to a power of appointment.” And section 27 declares that the word—
“ ‘Property’ . . . shall be taken to -mean the . . . interest . . . of the testator ... or donor. . . . The word ‘transfer’ . . . shall . . . include the passing of property [of the testator] or any interest therein . . . by . . . gift or appointment in the manner herein prescribed.”
Read this statute as we may, we are turned back on every view to the “estate of the testator,” “property” of the “testator” or “donor,” the “property” or “interest” of the “donor” upon which the legislature would impose a tax before it will consent to the passing of the testator’s or decedent’s property to the beneficiary, and the act avowedly does not care how it passes — whether by will, intestate succession or by appointment. Not only does the act expressly exempt from its terms the estates and property of persons deceased before its enactment, but it must be held that it exempts every interest therein. (§27.) Certainly a power of appointment —the right to designate a beneficiary of a bequest of property —is an interest in the property. In whose property is it an interest ? Surely it is an interest in the property of the testator — of the person who created the power of appointment.
We ar.e asked to hold that the tax is due because the property of one who died before the law was encated now passes to a person named in a power of appointment created before the adoption of the act but not exercised until after the act took effect. No fair interpretation of the act will warrant this. One can not read the earlier and later decisions in New York and Massachusetts, based upon earlier and later statutes of those states, cited and discussed in Ross on Inheritance Taxation, §§ 40, 78, 79, and in an instructive note in 33 L. R. A., n. s., 236, without feeling that our legislature intended to eliminate the probability of such controversies when it incorporated section 23 in the Kansas statute — a provision not found in other inheritance tax acts, and one logically conflicting with the inclusive language of the later New York and Massachusetts statutes (Laws of N. Y. 1897, ch. 284; Acts of Mass. 1909, ch. 527), which purposely reach out to tax the taking of property under the exercise of the power of the donee notwithstanding the property belongs to the estates of persons who died before the adoption of the inheritance tax laws of those states. The plain, unequivocal terms of section 23 intend that the act of 1915 should not affect, either directly or indirectly, the estates of persons who died before its enactment.
The judgment is reversed with instructions to enter judgment for the defendant on the agreed statement of facts. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff, the Park View Hospital Company, recovered judgment for $253.61, for the care and treatment of K. T. Brandenburg, a member of the defendant lodge. The defendant appeals.
There was evidence tending to prove the following facts: The plaintiff, a corporation, conducted a hospital at Manhattan. The defendant, a corporation, was a fraternal organization at Randolph. K. T. Brandenburg was a member of the defendant lodge. He became sick and the lodge, by formal action, ordered that someone be hired to take care of him. A nurse was employed for a few days. Brandenburg was then' noble grand of the lodge. He was taken to the hospital by C. L. Gebhardt, who, at some time previous, had been Vice Grand, and who afterward became noble grand of the lodge. Arrangements were first made over the telephone-, between Gebhardt, for the lodge; and Davis, for the hospital, to take Brandenburg from Randolph to the hospital at Manhattan. Gebhardt took Brandenburg to Manhattan, where they were met at the station by Davis, with an ambulance, in which Brandenburg was taken to the hospital. At the station Gebhardt told Davis that the lodge had voted to send Brandenburg to the hospital and would pay the expense, fifteen dollars per week. Brandenburg was to employ his own physician. The bills for the hospital service were to be sent to the lodge. The bills were so sent and were paid by the lodge, on its formal order, to the amount of $199.30, when the lodge refused to pay any further bills and notified the plaintiff that the lodge rejected all claims. At about the time the lodge refused to pay these bills a question arose in the lodge concerning the cause of Brandenburg’s sickness; and a committee, consisting of Gebhardt', Osbourn; and Hagenmaier, was appointed to get Brandenburg’s consent that the doctors might state the nature and history of his disease, and to look after matters with Park View Hospital and to straighten them out. This committee visited the hospital and the members of the committee told Brandenburg that his bills would be paid by the lodge, and told Davis that the lodge would take care of Brandenburg until they took him away. Neither the lodge nor anyone for it, at any time, removed, or offered to remove, Brandenburg from the hospital. He was received at the hospital September 8, 1914, and remained there until April 6,1915. The total charge for the hospital service rendered him was $445.75.
The jury made special findings, among which were the following :
“1. Did the defendant notify the plaintiff by letter dated December 12, 1914, that it would not pay bills for keeping the patient thereafter? Answer: No.
“3. When did the committee composed of Gebhardt, Osbourn and Hagenmaier go to Manhattan to see the patient, Brandenburg? Answer. On December 22nd, 1914.
“4. What was the committee named in question No. 3, instructed by the lodge to do? Answer. To inquire into and settle matters with Park View Hospital.
“7. When Gebhardt, DeLong, Osbourn and George Lilley made arrangements for taking and took Brandenburg to the hospital, had they been authorized by any action taken at a lodge meeting, to do so? Answer. Yes.
“8. If your answer to the last preceding question is ‘Yes,’ state when such action was taken and what it was. Answer. At the meeting of the lodge when DeLong was employed to care for Brandenburg. Subsequently ratifying action of said committee by allowing hospital bills.
“9. Did any person say to the manager of the hospital that the defendant lodge would pay all charges for keeping the patient Brandenburg until the patient.was taken away by the lodge? Answer. No.”
1. At the conclusion of the plaintiff’s evidence the defendant filed a demurrer thereto, which was overruled. The defendant then introduced its evidence. The jury returned a general verdict in favor of the plaintiff.' The verdict was supported by the evidence. If there was error in overruling the demurrer to the evidence that error was cured by the defendant, who introduced the additional evidence necessary to prove the plaintiff’s case. (Simpson v. Kimberlin, 12 Kan. 579; Railroad Company v. Doyle, 18 Kan. 58; Birks v. French, 21 Kan. 238, 244; Pine v. Bank, 63 Kan. 462, 65 Pac. 690; Woodmen Circle v. Stretton, 68 Kan. 403, 75 Pac. 472; Railway Co. v. Bentley, 78 Kan. 221, 224, 93 Pac. 150.)
2. Complaint is made concerning the admission of evidence. Gebhardt and the members of the committee to investigate the cause of Brandenburg’s sickness and to settle matters with the hospital, were permitted to testify concerning their conversation with Brandenburg and. with Davis. The defendant contends that this evidence was incompetent because it was hearsay, and because it was not shown that the lodge had authorized this committee, or any member of it, to bind the lodge in any way.
The defendant was a corporation. It could speak only by its officers and those appointed to act for it. Gebhardt, when on the committee, was noble grand of the lodge. The committee was appointed to look after matters with the hospital and to straighten them out. It was not reversible error to receive in evidence what Gebhardt said when he took Brandenburg to the hospital, or what the committee said on its visit to the hospital.
3. Complaint is made concerning the refusal of the court to give certain instructions requested by the defendant. Part of these instructions concerned the obligation of the lodge to pay for the services rendered to Brandenburg after the lodge had notified tíie plaintiff that it rejected all claims; and a part concerned the obligation of the defendant to remove Brandenburg from the hospital before the defendant could refuse to be liable for the services rendered to Brandenburg. These instructions were properly refused. •
Another of the instructions requested concerned the authority of the committee composed of Gebhardt, Osbourn and Hagenmaier to bind the lodge in respect to any matters beyond the scope of the specific purpose for which the committee was appointed. This instruction was given substantially as requested.
Another instruction concerned the power of the lodge, as a corporation, to act only through its officers. This instruction was given- as requested, except that the court properly added that the lodge might act through some duly authorized committee.
The court did not commit error in refusing to give any of the instructions requested. Those absolutely refused did not correctly state the law, and those that did correctly state the law were given in other instructions substantially as requested.
4. Complaint is made of instruction 4, given by the court. This instruction was lengthy; it involved all the conditions of the plaintiff’s right to recover; it set out those conditions in detail; and it was based partly on evidence that was uncontradicted. Complaint is made because of the length of the instruction, because it involved all the conditions of the plaintiff’s right to recover, because those conditions were set out in detail, and because it was based partly on evidence that, was uncontradicted. These several complaints are without merit. The court committed no error in giving this instruction.
5. The defendant complains of instructions 5 to 10, inclusive. These instructions submitted to the jury the question of ratification by. the lodge of the acts of Gebhardt when he took Brandenburg to the hospital, and of the acts of Gebhardt, Osbourn, and Hagenmaier, when they went to investigate the cause of Brandenburg’s sickness and to settle matters with the Park View Hospital. It was proper for the court to submit to the jury the question of whether the lodge had ratified the acts of these men. The lodge could ratify their acts, even if those acts were not authorized. These instructions properly submitted this question to the jury.
6. The defendant contends that the findings of the jury were contrary to the evidence and were.not sustained by it. Under this head, complaint is made of the answers to the first, seventh and eighth questions. The letter, mentioned in the first questiofi, in part reads :
“Randolph Lodge No 216 Learning That Bró'K. T. Brandenburg Has Contracted His Sickness By His Own Improper Conduct and Thir Foor Reject all Clames.”
The first question implied that the letter contained language which was not found therein. The question was properly answered. A different question should have been, and probably would have been, answered in a different way.
There wa§ evidence to support the answer to the seventh question. The lodge minutes showed an order, of the lodge for hiring someone to take care of Brandenburg during his sickness, and other evidence showed that a man was hired for a short time to perform that service. The authority given the persons to hire someone to take care of Brandenburg, and the action of the lodge in afterward paying the hospital bills, tend to show that it was the, understanding of the lodge that those charged with the duty of hiring the person to take care of Brandenburg were to exercise their judgment as to the manner in which the hiring should be done. The answer to the eighth question shows that this was the view taken by the jury.
The findings of fact were not contrary to the evidence. The application of the defendant to set aside the findings was properly overruled, and the court properly denied the defendant’s request for judgment on the findings.
The judgment of the court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment sustaining a demurrer to her evidence introduced on the trial of an action to recover damages for the death of James A. Pritchard, and for the destruction of his automobile.
The evidence tended to show the following facts: James A. Pritchard was killed while attempting'to cross the defendant’s railroad in an. automobile. The accident occurred where the railroad crossed a public highway about a mile north of Wichita. From a point a mile south of the crossing the public road ran on the west side of the railroad, parallel and adjacent to the right of way; thence the road turned east at right angles and crossed the railroad; and thence ran north on the east side of the right of way of the railroad. The railroad ran straight north from a point about a mile south of the crossing to a point variously located at from a quarter of a mile to a mile north of the crossing, where the railroad curved to go to Valley Center. This was a level stretch of railroad, and for this entire distance the railroad was graded up and ballasted with white rock and was from three to six feet above the level of the ground. At the crossing the railroad grade was six feet high. Along the fence near the crossing, on the west side of the railroad, weeds, brush, and some cottonwood trees were growing. At the time of the accident, any person traveling north on the road had for a mile south of the crossing a plain view of the railroad track to the curve north of the crossing; however, when he reached a point about five 'hundred feet south of the crossing his view of the railroad was obstructed by the weeds, brush, and trees, so that he could not see a train approaching from the north until after he turned east at the crossing and passed the weeds, brush and trees, where, from a place about thirty feet west of the railroad track to the top of the grade on which the track was laid, he had a clear, unobstructed view of the railroad north to the curve. James A. Pritchard, in an automobile, drove north on this public road, and while attempting to cross the railroad track was struck by the defendant’s passenger train and was instantly killed, and his automobile was destroyed. This crossing was within the defendant’s Wichita yard limits, and was on a much traveled public road — the main road out of Wichita north to Valley Center and Newton. The train was running at a rate of speed estimated at from fifty to sixty miles an hour. The engine bell was not ringing and the whistle was not sounded until the train was about a hundred yards north of the crossing.
The incontestable conclusions of fact to be drawn from the facts established by the evidence are that Pritchard, had he looked when he was thirty feet from the track or anywhere from that point until he reached the place where he was struck, could have seen the approaching train; that there was nothing to prevent his seeing the train; and that if he looked, he saw the train coming and attempted to cross the track in front of it. The facts show contributory negligence on the part of James A. Pritchard and prevent any recovery. (Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023; Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742.)
The demurrer to the evidence was properly sustained and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This, was an action to recover rent. Mrs. Stein-man leased her store room to somebody for a year with the privilege to the lessee of extending to five years. After a short time the room was vacant and the rent money unobtainable.
The plaintiff recovered and the defendant appeals, vigorously assailing numerous rulings by the trial court, all of which we have examined. Out of the entire record but two meritorious questions arise — the authority of a certain agent, and the matter of minimizing damages.
O. W. Holmes of Iola saw an advertisement signed John Hall Tailoring Company, calling for a clothes salesman, and thereby got in touch with one C. E. Paden. Paden told Holmes that he was an agent of the John Hall concern, that handled a line of clothing, made its own goods, having woolen mills in Connecticut or Massachusetts; that he was putting in stores for the company in other parts of the country. ■ Under his direction Holmes made application through Paden for a position at Iola. Paden found the Steinman building and went with Holmes to see Mrs. Steinman, told her they wanted to rent it for the John Hall Tailoring Company of Chicago, that he was its representative and the company would conduct the business and Holmes would be its local manager. That whenever the John Hall Tailoring Company went into a place they stayed there and that she was sure of her money. Following Holmes’ application for the position samples of suit ends were sent by the John Hall Tailoring Company by express to Iola, addressed to John Hall Tailoring Company. Paden remained several days. Holmes, received about a thousand circulars from the Hall concern advertising a special sale that Paden had arranged for at Iola. This was a dodger about twelve by eighteen inches, purporting to advertise a sale of new woolens “direct from the big John Hall Tailoring Co.” At the bottom were these words:
JOHN HALL Tailor
18 So. Washington St.,
Iola, Kansas.
This was the location of Mrs. Steinman’s store room. Later he received by mail from the defendant a letter on stationery containing an illustration shown by “Exhibit 7.” This gives the address of the general officers as 407-409-411-415-417 South Sangamon street, Chicago. It has an attractive cut of a nine-story building, from the flag staff of which flies a pennant with the device “John Hall.” At the foot of the flagstaff and at right angles are two sign boards each containing the name John Hall facing the two streets on which the building appears to corner. Printed over the cut of this building are the words
“JOHN HALL.
Tailor
(Incorporated)
Branch Stores in all Principal Cities Cable Address ‘Hall Mark’.”
In a short time Grant Billbe succeeded Holmes, who turned the business and supplies back to Paden and took a receipt from him filled out on a blank form with the printed signature “John Hall,” under which Paden signed “By C. E. Paden.” Paden and Billbe secured a written lease from the plaintiff which, by direction qí Paden, was signed “John Hall Tailoring Co., Grant Billbe, Manager.” Billbe gave up the business at the end of two months and was checked out by Paden, who receipted for certain display ends and equipment belonging to John Hall, Inc., Chicago, 111., and signed the receipt “C. E. Paden.” This was typewritten and not on a printed form..
Billbe’s successor was L. L. Black, who was told by Paden that the latter had leased the building. Black received a thousand circulars like the one already described, which were printed by Paden. Paden told Black that he was the company’s district manager, anything that he did “the company would go behind”; that the company would pay the rent arid advertising expenses except the little locals which were to be put into the paper at Iola for which Black was. to pay. Black signed a printed application and agreement reciting the appointment as the exclusive representative in Iola, Kan., of John Hall, Inc., of Chicago, 111., containing the agreement that “I will conduct this as an exclusive branch store,” and the further agreement to keep fully insured for the benefit of John Hall, Inc., any and all parts of the necessary outfit furnished him and to return the same in whole or in part as called for within two days after receipt of notice. Black conducted the business for about twenty-four days and, although checked in by Paden, does not appear to have been checked out by him. The deposition of Karl Jackson was taken by the defendant at its office in Chicago. Mr. Jackson testified that the defendant was an Illinois corporation with a president, treasurer, secretary and vic-e president, himself being the credit man and general manager; that his duties were ‘‘the employment of salesmen, the instructions of them and their duties, the overseeing of credits, and the general routine of office work.”-
He testified that John Hall had never operated stores in any cities whatever in the name of John Hall Tailoring Company. That the by-laws of the corporation provide that all written instruments shall be signed in the name of the company by the president and attested by the secretary, attaching the corporate seal; that Holmes operated a store in Iola under the name of John Hall Tailoring Company; that John Hall had no interest whatever in the profits derived from such store, that the relation between John Hall and C. E. Paden was that of employer and employee; that the witness employed Mr. Paden in the capacity of salesman, and that his duties consisted of soliciting orders; that he gave Paden specific instructions to have merchants handle John Hall’s line of merchandise, sending the orders to the factory to be made up as per the merchant’s instructions; that Mr. Paden had no authority to do anything besides soliciting orders from merchants ; that he had no authority to collect from the merchants or to execute instruments for John Hall or to make any special arrangements with customers. Although he gave the names of those he said were officers of the defendant corporation, neither the testimony of any of them nor that of Mr. Paden himself was offered.
Without going further into the matter, quoting from more of the voluminous evidence, it is enough to say that from the record we are satisfied with the trial court’s view of Paden’s agency and find no error in respect to the admission of evidence in relation thereto.
The defendant requested the court to instruct that in case of breach of contract by one party it becomes the duty of the other to use reasonable diligence to minimize the damages resulting from such breach; also that unless the jury should find that the plaintiff, when she learned of the breach of the lease, used ordinary diligence and efforts to rent the building they should not allow any damages resulting from such lack of ordinary diligence. These instructions were refused. The jury were charged that if they should find for the plaintiff upon her first cause of action she would be entitled to recover ' rent at the rate of $35 a month for one year from May 1, 1914, less amount paid to her upon the lease, and also less any amount of rent she may have received from the premises for the months of March and April, 1915. They found for the plaintiff in the sum of $245 and costs. The plaintiff testified that she received only two months’ rent from the defendant, and two months’ rent from Mr, Parrott, who moved in March 1, 1915.
Counsel are correct in their contention that it was the duty of the plaintiff to use ordinary diligence to minimize the damage caused by the defendant’s abandonment of the lease. (Brown v. Cairns, 63 Kan. 584, 66 Pac. 639, and cases cited; Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579; Maddux v. Telegraph Co., 92 Kan. 619, 141 Pac. 585.) The answer of John Hall made no mention of failure in this respect on the part of plaintiff, but denied indebtedness and denied any contractual relation whatever with her. While, according to many authorities, the defendant might have shown lack of ordinary care in this respect, under its denial no attempt so to do was made. In some jurisdictions such a defense must be specially pleaded. (13 Cyc. 182; 8 R. C. L. p. 618; 14 M. A. L. p. 73; 4 Sedgwick on Damages, 9th ed., § 1271a, and cases cited in note; Pomeroy’s Code Remedies, 3d ed., §§ 607, 608, 693 et seq.)
In view of the terms of the lease, the allegations of the second amended petition, the amount collected, the sum sued for and the amount recovered, the defendant ■ can not in the absence of any allegation or evidence touching the question justly complain of the court’s refusal to-give the requested instructions.
Various other matters are pressed, but are not of sufficient importance to merit any further extension of this opinion.
The conclusion reached by the triers of fact was approved by the court below and supported by the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff sold a stock of implements and hardware to one of the defendants. A few days thereafter, claiming that the sale had been procured by false and fraudulent representations of the defendants, he brought this action to replevin the stock. At the close of the opening statement of the plaintiff’s counsel, defendants moved for judgment on the pleadings and statement. The court sustained this motion. The stenographic notes of what occurred at the time show that the court stated, in substance, that under the well-settled rules applying to such cases the petition, supplemented by the statement, disclosed that there was no cause of action. The court then used this language: “and the motion for judgment upon the pleadings and upon your statement may be sustained, and judgment for costs rendered against the plaintiff and the jury discharged.”
The first contention raised by the appeal, which is that the court erred in its construction of the petition, and the statement can not be considered for the reason that the appeal was not perfected until more than six months from the rendition of the final judgment.
The judgment was rendered on the 25th day of' September, 1914. The journal entry of judgment, approved by the judge and by counsel for both parties, was filed the day following. It merely recites that the court sustained the motion of the defendants, and adjudged that “defendants have and recover of and from said plaintiff judgment for the costs of this action.”
At the next term of court the following motion was filed:
“Come now said defendants and move the court for an order modifying .and correcting the journal entry of judgment heretofore entered in this cause by inserting therein a judgment decreeing the said defendants to be entitled to the possession of the personal property described in said plaintiff’s petition, and adjudging that said defendants recover said property from said plaintiff, or that they have judgment for the value thereof.
“These defendants represent that, by inadvertence and oversight, the judgment rendered in said cause at the September term of this court omitted the above provisions, and that said journal entry should be modified and corrected as above indicated.”
At the January, 1915, term of the court this motion came on to be heard, and the journal entry of the proceedings had at that time recited that the motion was “To correct the journal entry of judgment heretofore entered herein on the 25th day of September, 1914, by providing therein that the defendants have judgment for the return of the property in controversy in said action or for the value thereof”; further, that after hearing the motion and the arguments thereon, the court finds: “that said motion should be allowed and the original journal entry of the judgment rendered by this court on the 25th day of September, 1914, should be and’ is hereby amended as asked for in said motion so as to show judgment rendered for the return of the property taken by writ of replevin and delivered to plaintiff, to the defendant, S. E, Keener.”
The order for the amendment of the journal entry was thereupon entered. The plaintiff appealed from the order, and makes the contention that the ruling was error because it was in effect an additional judgment in favor of the defendants and not a mere correction of the journal entry of what occurred at the original trial. It is stated in the brief that it was not claimed in the motion nor at the hearing that there had been any error, omission, or mistake of the clerk in entering the judgment, but that “by inadvertence and oversight the judgment rendered in said cause at the September term of this court omitted the above provisions.”
We construe the proceedings of January 21, 1915, differently. When the court found that the motion should be allowed and the original journal entry of judgment corrected and amended as asked for in the motion, “so as to show judgment rendered for the return of the property,” ■ we think the court intended thereby to determine that on the 25th day of September a judgment had been rendered for the return of the property, and that a recital thereof was inadvertently omitted from the journal entry.
The record fails to disclose what the attitude of the plaintiff was at the hearing of the motion, except that he objected to the order. He might have introduced evidence, by affidavit or otherwise, to call the attention of the court to the fact, if it were a fact, that no judgment of that kind had been entered or referred to; but apparently this was not done. Of course the court had no power at the subsequent term to amend the judgment actually rendered at the previous term. (Chapman v. Irrigation Co., 75 Kan. 765, 90 Pac. 284.) If the record disclosed that in fact no judgment in defendants’ favor for the return of the property was rendered at the previous term, plaintiff would be right in his contention and he would be entitled to a reversal of the ruling complained of. It has been repeatedly held that whenever the attention of the court is challenged to a mistake of the clerk or of parties who prepared the original entry of a judgment by which the judgment actually ren dered is erroneously entered, or where for any reason the entry of judgment fails to speak the truth and to show the judgment rendered, the court has the power, and it becomes its duty to order the journal entry corrected so that it does speak the truth; and the court’s power and duty in this respect extend beyond the term at which the original judgment was rendered. (Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530; rehearing denied, 404; 85 Pac. 594.) And the court “upon its own knowledge of the facts, and without notice to anyone, may at any time make its records speak the truth and show what had actually been done at some earlier date, even where no immediate entry was made regarding it.” (Calhoun v. Anderson, 78 Kan. 746, 747, 98 Pac. 274.)
Plaintiff, however, relies wholly upon the language used by the court at the time the motion for judgment was sustained (as shown by the stenographic notes). If these correctly state all that occurred at the trial they would seem to bear out his contention that defendants asked nothing further, and that the court granted nothing more than a judgment against the plaintiffs for costs. We must assume, however, that the court would not have ordered the journal entry amended and corrected if it spoke the truth as it read, and that the only purpose for ordering it corrected was that it failed to state the judgment which the court did render on the 25th day of September. Every presumption is in favor of the regularity of the proceedings of the trial court.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This action was commenced in the court of Topeka to recover $24 on a promissory note for $178, payable in monthly installments of $4 each. The action was appealed to the district court where judgment was given in plaintiff’s favor for $26.16. The defendant appeals.
1. There is a motion to dismiss the appeal on the ground that the amount in controversy is less than $100, exclusive of costs. (Civ. Code, § 566.) The defendant claims the case falls within the principle of Green v. Annuity Association, 90 Kan. 523, 135 Pac. 586, where the plaintiff sued for an installment on an insurance policy and the defendant set up a counter claim asking for a judgment canceling the policy. It was held in that case that defendant was entitled to a review of a judgment adverse to his counter claim. No answer or counter claim was filed in the present case, but contention is made that, as no pleadings are required in an action brought under the justices’ code, the defendant was entitled to prove any defense he might have without any pleading. The evidence was not preserved and there is nothing in the record to indicate that defendant asked or claimed any affirmative relief, nor is it contended that he did. It is urged, however, that, as the defense was fraud in the procurement of the note, the validity of the note for all purposes was in issue. The action nevertheless was to recover the amount due on the installments, and the only issue directly involved was whether defendant owed plaintiff that sum.
2. Defendant claims this court has jurisdiction for another reason, which is, that a judgment for either party as to the past-due installments would be res judicata in a subsequent. action to recover other installments. The collateral effect of the judgment can not be considered in determining the amount in controversy, arid the amount in controversy is not affected by the fact that other questions are incidentally involved. (3 C. J. 421, 422, and note.) The exact question has been decided by the United States supreme court in a number of cases. The fact that the judgment will be conclusive in a subsequent action can make no difference, since it is only the direct effect of the judgment that can be considered. (Washington &c. Railroad v. Dis’t of Columbia, 146 U. S. 227.) The amount in controversy here is less than $100 and we have no jurisdiction.
The appeal will be dismissed. | [
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The opinion of the court was delivered by
Mason, J.:
M. W. Cardwell sold to Charles A. Geiger, for $15,940, a number of grain elevators, some office furniture, and all the capital stock of the Topeka Grain & Elevator Company, a corporation. Geiger received the property, completed the payment of the purchase price, ánd. brought action against Cardwell on the ground that as a part of the transaction, and as an inducement thereto, Cardwell had represented to him that the outstanding contracts executed in the name of the corporation for the purchase of corn at stated prices covered only 2500 bushels, whereas in fact they covered 8854 bushels, as a result of which, in carrying out the contracts for the ad ditional amount, he lost $572.88. The plaintiff recovered a judgment for $343.11, and the defendant appeals.
The defendant contends that the evidence does not sustain the judgment. The case was tried without a jury, and no special findings were made. The decision must therefore be affirmed if it was warranted on any theory of the law permissible under the pleadings, and by any facts fairly to be deduced from any view of the evidence. It is suggested that there was no evidence that the defendant knew of the falsity of the representations complained of, even if he made them and they were not true. There was testimony that the statements related to business done by himself, personally or through agents, that he assumed knowledge on the subject by undertaking to give the facts, and he denied, under oath, the language attributed to him. His good faith in the matter was a fair question for the trial court.
1. The defendant insists that no recovery can be had as damages for the perpetration of a fraud, because the plaintiff, after learning all the facts regarding the corn contracts, chose to carry out the agreement with the defendant, and' thereby waived any fraud by Which he had been induced to enter it. Some courts hold that such a waiver results where the defrauded party completes a partly performed contract after learning of the deception-practiced upon him. (20 Cyc. 92, 93; 12 R. C. L. 414, with note 8.) Others take the view that the fraud is not waived by performance of the contract unless the discovery is made while it remains purely executory. (12 R. C. L. 413.), This court has disavowed the rule that a discovery of the fraud in an early stage of performance puts the injured party to an election between on the one hand stopping operations under the contract and seeking remedy for the fraud, and on the other going ahead under the agreement and condoning the wrong. (Van Natta v. Snyder, 98 Kan. 102, 157 Pac. 432, overruling on this point Thresher Co. v. Gruben, 6 Kan. App. 665, 50 Pac. 67.) In Elwood v. Tiemair, 91 Kan. 842, 139 Pac. 362, it was said that the payment of installments on a contract effects a waiver of any fraud in its inception which is discovered “before the contract is executed” (p. 849), but there the discovery was made before the first installment was paid, and while the contract was purely executory. Here the con tract between the plaintiff and the defendant was signed on November 9, 1912, at which time $1000 of the purchase price was paid. Three days later the plaintiff learned the actual amount of corn which the corporation, the stock of which he was about to acquire, had contracted to buy. His next payment was made on November 18. We regard the initial payment as such a part performance of the contract as to render it no longer wholly executory in such sense as to affect the right of the plaintiff to ask damages for the fraud without repudiating the entire agreement. The reasons for the rule that a party can not complain of any fraud discovered while the contract is purely executory, by which he was induced to enter into it, are said to be that “in such cases the fraud is really consummated ■ and the damages incurred by such performance, and that to' permit a recovery thereafter would virtually be to allow a recovery for self-inflicted injuries, and to permit the complaining party to speculate upon the other’s fraud.” (12 R. C. L. 413.) It can not fairly be said that the plaintiff, having an open choice in the matter, voluntarily elected to go ahead with the contract when he might have withdrawn from it — that he chose to become involved in a transaction which he might have kept out of. He was already involved when the discovery was made. He had a thousand dollars invested in the deal when he learned of the facts. This amount was small as compared with the total purchase price, but it was nearly twice as large as the damage he claimed, and nearly three times as large as his recovery. To have maintained an action for what he had paid he would have been,required to prove the fraud. We hold that the option lay with him to rescind the contract for the fraud or to abide by it and recoup the- loss he suffered by the deception.
2. The plaintiff presents another sufficient answer to the contention that he is estopped to rely upon the fraud. The evidence justifies a finding, which, if necessary to support the judgment, the trial court must be presumed to have made, that "after the discovery of the falsity of the representations and before the payment of any of the purchase price in excess-of the first thousand dollars, the parties made an agreement, which the defendant later refused to carry out, to arbitrate the controversy in regard to the fraud, and that this was one of the considerations that induced the plaintiff to abide by the contract. The defendant testified that he had agreed to an arbitration, but only in case the amount of the claim should be limited to $150, and that he refused to accept this method of settlement because that condition was not fulfilled. The court may have discredited his statement that the agreement was conditional. The plaintiff did not testify that the proposition to arbitrate was one of the considerations that led him to complete the purchase of the property, but there was room for the inference that it was one of the matters he took into consideration in that connection. In behalf of the defendant it is argued that the performance of the contract by the plaintiff estopped him to ask damages on account of the fraud, even if that conduct on his part were induced by an agreement to arbitrate the matter in dispute, and Muenzenmayer v. Hood, 97 Kan. 565, 155 Pac. 917, is cited as supporting this contention. There an engine was sold under a guaranty, the' buyer .giving his notes; two years later he turned in this engine toward the purchase of another, giving new notes secured by a mortgage on the new engine. In an action on the second series of notes it .was held that by acquiescence and estoppel he was precluded from recouping damages for breach of the warranty. Evidence was introduced that ,at the time of the giving of the new notes he was promised that he should be paid for the time lost by reason of the defects in the old engine. But this evidence was stricken out by the trial court because not within the pleadings, so that the case does not decide that a reliance on such a promise would not have excused the conduct which was held to ¿ave resulted in an estoppel. If the contract in the present case had been wholly executory at the time the .actual facts were discovered by the plaintiff, his election to carry out the trade would not have estopped him to claim damages- on account of the fraud, if it was induced by an agreement to arbitrate the defendant’s liability in that connection.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant was charged with giving false testimony at a preliminary examination. The was convicted of perjury and appeals.
1. The examining magistrate was a witness and testified that he was a justice of the peace of Sedan township in Chautauqua county, and had held the office continuously for fifteen years. It is urged that this was not the best evidence, and that the record should have been produced showing that he was duly elected and qualified. The contention is quite technical. Every day in our courts, state, county, city and township officers are permitted to testify to their official capacity without producing the record of their election or appointment. Ordinarily, when the official comes from a foreign jurisdiction he is required to produce some certificate showing his official capacity. (24 Cyc. 415.)
2. Besides, the justice was at least a de facto officer, and a de facto title has been held sufficient to authorize the administration of the oath upon which the perjury is assigned. (The State v. Williams, 61 Kan. 739, 60 Pac. 1050; 30 Cyc. 1416.)
3. Evidence of the examining magistrate as to his residence, his official character, and that the false testimony was given in a proceeding before ‘him, was sufficient proof of the venue. It was not necessary to prove that defendant held up his right hand when he took the oath. The justice testified to the form of the oath administered, which in substance follows the language of the statute. (Civ. Code, § 345.)
We are unable to discover anything substantial in the claims of error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This action was brought by plaintiff to recover from Allen county certain taxes paid by him, which he claims were erroneously assessed against his land upon the theory or supposition that his land was included within school district No. 10, whereas in fact his land was a part of school district No. 9. Of its own motion, the court ordered the board of education of the city of Iola, a city of the second class, which controls district No. 10, made a defendant, and also ordered school' district No. 9 brought in as a defendant. The plaintiff, however, filed no amendment to his petition, asked no judgment against the new defendants, and was satisfied to look to the county alone for reimbursement. After the court had overruled its demurrer to the petition the board of education of the city of Iola filed an answer denying liability.
The plaintiff purchased his land in 1910 and paid the school taxes assessed against it for that year and the following years to 1913, inclusive, supposing that the land comprised part of school district No. 10. From the evidence it appears that in 1907 the county school superintendent made an order detaching certain outlying territory including the land of plaintiff, from district No. 10 and attaching the same to district No. 9. The order was made upon a petition signed by resident taxpayers of the outlying territory. The superintendent testified that she duly notified the clerk of each district, that there was no appeal from her decision and that she furnished the county clerk a map prepared by the county surveyor showing the changes in the boundaries of the two districts. The school rate was higher in district No. 10 than it was in district No. 9. The trial court determined the proportion of taxes which should have been assessed an,d collected for school district No. 9 and awarded judgment in plaintiff’s favor against the county in the sum of $81.33, and awarded judgment in favor of school district No. 9 against the county for the sum of $48.75. The court then rendered judgment against the board of education of the city of Jola in favor of the board of county commissioners for the amount of both judgments and costs. This is the judgment appealed from by the board of education. No brief has been filed by any of the other parties.
Without considering or passing upon the validity of the order changing the boundaries of the two districts by the county superintendent, we think it is clear that the judgment against the board of education can not stand. The taxes were paid by the plaintiff without protest or suggestion of any claim that they were not legally assessed. They were voluntary payments. (City of Atchison v. State, ex rel., 34 Kan. 379, 392, 8 Pac. 367, and cases cited in the opinion. As to involuntary payment of taxes, see Ottawa University v. Stratton, 85 Kan. 246, 256, 116 Pac. 892.)
After the plaintiff has made voluntary payments of taxes levied against his land and the taxes have been paid to the board of education, and expended by it for school purposes, it is too late for the plaintiff to maintain his action, or to recover from the board. The payment was voluntary in each instance notwithstanding it was made in the belief that the lands comprised a part of the school district in which they were assessed. It is incumbent on the landowner to know what school district his lands are a part of. The fact, as plaintiff alleges in his petition, that he was a resident of another county until 1913 furnishes no excuse for his failure to know. A different rule can not be established for nonresidents from that which governs residents of the county.
For these reasons the judgment is reversed and the cause remanded with directions to render judgment in favor of the board of education and against plaintiff and the board of county commissioners for costs. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment in favor of the plaintiff, for damages caused by an explosion of gas. Casualty Co. v. Power Co., ante, p. 563, 162 Pac. 313, arose out of the same explosion.
The defendant was a public utility and was supplying the city of Cherryvale with natural gas. Service pipes extended from the mains of the gas company in the street‘to stop-boxes in the sidewalk in front of the Ellsworth and Ringle buildings, which stood side by side, in Cherryvale. From the stop-boxes gas pipes led into each of these buildings. The sidewalk had been raised and made wider in front of these buildings. The stop-box connected with the service pipes supplying the Ells-worth building had been covered by the brick in the sidewalk when the walk was raised. Old, unused, defective pipes leading into one of these buildings were connected with a stop-box that appeared above the sidewalk. A tenant in the Ells-worth building desired to have the gas turned into that building. To do this, the defendant attached a meter in the Ells-worth building. At the time the meter was attached the defendant’s workman, Mr. Julian, discovered that the gas was passing through the pipes connected with the meter. After attaching the meter, he turned on the gas at the stop-box showing above the sidewalk. This stop-box was connected with the old, defective pipes. Soon thereafter escaping gas was discovered about these buildings. The. day after the meter was attached Mr. Julian, with the owner of the Ringle building and William Hutton, went into the basement under the Ringle building to find the place where the gas was escaping. Mr. Julian lighted a match, discovered a small leak, tightened the pipes, and then lighted another match. An explosion then occurred under both buildings. This explosion blew the glass front of the Ellsworth building into the street. At that time the plaintiff was sitting in front of the Ellsworth building. He was blown into the street and injured.
1. The petition alleged:
“That in years gone by, some business buildings on West Main Street in the City of Cherryvale, were connected with the mains of said gas plant by means of service pipes as above described; that said business buildings were destroyed by fire about the year 1900, and that a new and larger building which is commonly called and known as the Ells-worth Building was erected covering the same lots; which had been occupied by said old buildings; that when the new, or Ellsworth Building, was erected, it was connected with said gas plant as before described, but by a different connection from what had been used for the old buildings; and that the old pipes and connecting valves which had connected the gas main with those old buildings were turned off, but that the old connecting pipes were left under the new, or near thereto; that they were broken off and rusted out so that they would not hold gas if same should be turned thereinto.”
There was no allegation that the gas company knew of these conditions. A demurrer to the petition was overruled. Of this the defendant complains. In Casualty Co. v. Power Co. ante, p. 563, 162 Pac: 313, this court said:
“It was the duty of the gas company to know what it was about when it turned on the gas. . ' . . It was shown that the right stop-box to turn the gas into this building was hidden beneath a brick in the sidewalk, and that the defendant, although the owner of the wrong stop-box by which the gas was turned on and which caused the damage, had given the matter so little attention that it did not know the right stop-box from the wrong one. If public service companies controlling such dangerous commodities. as natural gas can escape the consequences of such carelessness, • life and property will be subjected to hazard indeed. Clearly the facts adduced in support of plaintiff’s cause of action ■required their presentation to a jury.” (pp. 565, 566.)
The defendant is presumed to have known the location of its stop-boxes and to have known which one was connected with the defective pipes. It was not necessary to allege the defendant’s knowledge of the conditions described in the petition. Natural gas is a dangerous agency and those who handle it must exercise care commensurate with the danger. In Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468, this court said:
“Natural gas, as all know, is inflammable and explosive in a high degree — a, very dangerous agency — and those who transport it are held to the exercise of great care; they are required to lay and maintain pipes that are safe and secure for transporting gas, and carefully to overlook and inspect the pipes in order to keep them in a safe condition, and to detect and repair any leaks or defects in them.” (p. 331.)
See, also, Murphy v. Gas & Oil Co., 96 Kan. 321, 330, 150 Pac. 581; Notes, 32 L. R. A., n. s., 815; L. R. A. 1915 E, 1025; Ann. Cas. 1914 C, 348.)
There was no error in overruling the demurrer to the petition.
2. The petition alleged that—
“Julian carelessly, wantonly and negligently, 'while he was exploring for leaks as aforesaid, lighted a match under said building. . ‘ . . That defendant knew or ought and could have known, by the exercise of ordinary care, that the pipes into which it turned the gas were old, worn out, and open at the ends; that the gas after being turned therinto would accumulate in and under said building and become a nuisance and a menace and dangerous to persons near thereto. . ■. . That the acts of defendant as aforesaid in turning said gas into said old worn out pipes, and in striking fire under said Ringle Building in close proximity to said Ellsworth Building, and in searching for gas leaks in such a place with fire, was such as to amount to gross and culpable carelessness, wanton negligence, and reckless disregard of the safety of others.”
The jury answered special questions, among which were the following:
“Q. No. 1. Did or did not the defendant know that the pipes into which’it turned gas were defective? A. No. 1. Yes.
“Q. No. 6. If you find for the plaintiff, state the acts of negligence upon which you base your verdict. A. No. 6. Julian’s negligence in not following up course of gas after turning on stop-box, not knowing whether or not he turned on gas from proper stop-box.”
The defendaht contends that the acts of negligence found by the jury were not alleged in the petition. The answers of the jury did not closely correspond to the allegations of the petition; but the findings of the jury include the alleged negligence of the defendant in turning gas into the defective pipes, if the findings are given a fair and liberal interpretation. According to the findings of the jury, the defendant knew of the condition of the pipes. Mr. Julian turned the gas into those pipes after he discovered that the gas was escaping and then did not make any effort to find the defect. This sufficiently established the negligence alleged in the petition.
3. The defendant insists that there was error in the admission of evidence on behalf of the plaintiff. William Hutton, a witness for the plaintiff, testified as follows :
“Q. You had a suit against the company didn’t you, yourself? A. Yes, sir.
“Q. What became of it?
“Objected to by the defendant as incompetent, irrelevant and immaterial. Objection overruled.
“A. Compromised.”
If the compromise contained an admission of liability, evidence of the compromise was probably admissible. If the compromise was made to purchase peace and did not contain any admission of liability, evidence of the compromise was probably inadmissible. (Colburn v. Groton, 66 N. H. 151.) The abstract does not show how Hutton’s case was compromised. It does not show whether the defendant purchased peace or admitted liability. The presumption is in favor of the ruling of the trial court. If there was error in the admission of that evidence, it comes within section 581 of the code of civil procedure, directing the appellate court to disregard all merely technical errors and irregularities which do not affirmatively appear to have prejudicially • affected the substantial rights of the party complaining. If there was error in the admission of that evidence the error was not substantial and not sufficient to reverse the judgment.
4. The defendant complains of two instructions of the court. One of these instructions reads:
“Where the owner of a building or the tenant of such owner makes application to the gas company to turn on the gas and the gas company or its agent without any special direction as to what, if any, valve shall be turned, assuming to know the proper stop-box and proper valve, proceeds to turn a valve which allows the gas to escape into defective or abandoned service pipes and pipes which do not supply the building, then the act of the company and its agent in so turning the wrong or abandoned valve would be a negligent act, for which, if it resulted in injury, the gas company would be liable.”
'The other instruction complained of was immaterial under the evidence. Defendant says that the instruction quoted was inconsistent with other instructions given. It was somewhat inconsistent with other instructions, but those other instructions were too favorable to the defendant. The instruction complained of correctly stated the law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Louis L. Hinnen and Edwin L. Hinnen brought ejectment against Noah Artz for a strip of land containing about two acres, lying along the east side of the southwest quarter of the southwest quarter of section 18, in township 24, of range 4 east. The plaintiffs recovered and the defendant appeals.
I. The original petition, filed May 12, 1915, in describing the tract in controversy by metes and bounds, gave as the place of beginning the northeast corner of the southeast quarter of the southwest quarter of the section. On June 25, 1915, the plaintiffs were allowed to amend by substituting the northwest corner for the northeast, as the starting point. Objection is made to the allowance of the amendment on the ground that it substantially changed the cause of action, because the amended petition claimed an entirely different tract from that originally described. The change could not have prejudiced the defendant unless the bar of the statute of limitations had fallen after the action was begun and before the amendment was made. While the defendant claimed title by adverse possession no contention was made, nor could any have been justified under the evidence, that the fifteen-year period had expired between May 12 and June 25, 1915. Therefore no error could have been committed in allowing the amendment. (Blair v. Craddock, 87 Kan. 102, 123 Pac. 862.)
2. The whole of the section above described was owned by Wartman F. Joseph at the time of his death. By his will he left one tract to several grandchildren, under whom the defendant claims; another to other devisees; and the remainder of the section to relatives through whom the plaintiffs derive title. The defendant maintains that the devise to his grantors included the strip now in dispute; but if it did not, that he acquired title by a subsequent boundary agreement; and in any event that he can not be dispossessed because he and his grantors have held the land by adverse possession for more than fifteen years. The plaintiffs deny the boundary agreement and the adverse possession, and contend that their predecessors in interest took the property under the will. The two tracts which were separately disposed of in the will were described in the clause by which they were devised as the southwest quarter of the southwest quarter of section 18 and the northwest quarter of the northwest quarter of that section. In the succeeding clause the testator provided for the disposition of the whole section, “less the forty acres herein-before willed” to the devisees under whom the defendant claims, and “the 40 acres willed” to the other devisees. The southwest quarter of the southwest quarter, according to the government survey, contains but 86.72 acres. The defendant maintains that when read as a whole the portions of the will already referred to show a purpose to give his grantors not simply the tract designated by the survey as the southwest quarter of the southwest quarter, but forty acres of land. The exact language of the will so far as it throws light upon this, matter is as follows:
“To my grandchildren that are the children of my son, William I. Joseph, living at the time of my death, the southwest quarter of the southwest quarter of section 18, township 24, south of range 4, east, in .Butler county, Kansas, in fee simple, share and share alike, to be sold and the proceeds of said sale thus equally divided.
“To my grandchildren that are the children of my son Moses N. Joseph, living at the time of my death, and Ella Garrison their half sister, if she be living at the time of my death, the northwest quarter of the northwest quarter of section 18, township 24, south of range 4 east in Butler county, Kansas, to be sold and the proceeds of said sale to be divided equally between said grandchildren. To my son, James Joseph and his wife Nancy Joseph, my grandson W. W. Kemper and his wife Laura Kemper, all of section 18, in township 24, south, range 4 east in Butler county, Kansas, less the 40 acres hereinbefore willed to the children of William I. Joseph, and the 40 acres willed to the children of Moses N. Joseph and to Ella Garrison. Said part of section 18 in township 24 south of range 4 east in Butler county, Kansas, consisting of about 560 acres, to be divided into two parts equal in value and including the improvements, one of said parts I hereby bequeath to my son James Joseph and his wife, Nancy Joseph, and the other to W. W. Kemper and his wife, Laura Kemper.”
We think it clear that by the first and second clauses of the part of the will quoted the testator intended to dispose of the southwest quarter of the southwest quarter and the northwest quarter of the northwest quarter of the section as those tracts were laid out by the government surveyors, irrespective of their precise acreage. The subsequent reference to each of the two tracts already disposed of as “the 40 acres” does not suggest a purpose to qualify the description previously employed, but indicates that the testator chose the quoted words as a convenient and readily understood phrase by which to designate the legal subdivisions which had already been accurately described. A conveyance of land by the usual subdivisions of sections is presumed to refer to the public surveys of the United States. (Prentiss v. Brewer, 17 Wis. 635.) Here there is nothing to overcome the presumption. A supposition that when the testator wrote “the southwest quarter of the southwest quarter” of section 18 he had in mind a mathematical one-fourth of the quarter-section, if it were otherwise tenable, would not relieve any supposed inconsistency, for such a fraction would not contain forty acres. Therefore the grantors of the plaintiffs received under the will all the section excepting the two quarter quarters, and thereby acquired title to the tract in controversy. The description of the remainder of the section as containing “about” 560 acres’ does not militate against this construction. The testator doubtless had in mind that an. ordinary section of land, less two ordinary “forties” would contain approximately that acreage. The actual area of the section, less the two quarter quarters was 554.88 acres, according to the government survey. The omission to use the word “about” in referring to each of the tracts previously disposed of as “the 40 acres” is readily accounted for. The testator was not attempting to give a precise description. That had already been done. He was merely using a general phrase that indicated with abundant clearness the tracts he referred to.
3. The defendant complains of the admission in evidence of the record of proceedings in the probate court by which the executors sought a construction of the will. Assuming that the evidence was incompetent it was not prejudicial. It is said that the jury was given to understand that the probate court had decided that the will gave the strip in controversy to the grantors of the plaintiffs, whereas that court had no jurisdiction to make such a decision, had not in fact made it, and could not in any event have bound the defendant by it. As we hold that the construction of the will adopted by the plaintiffs is correct as. a matter of law, the admission of incompetent evidence in support of that view could not constitute material error. ■ •
4. The defendant also complains of the admission in evidence of the record of the deeds under which he derived title, and which described the land conveyed as the southwest quarter of the southwest quarter of section 18. He contends that the fact that the deeds described only this tract might have been regarded by the jury as an argument against his claim to have acquired title by a boundary agreement and by adverse possession, whereas it had no legitimate tendency in that direction, be cause one who has extended his boundaries by agreement or adverse possession customarily transfers his title to the land, including the accession thereto, by a deed describing only the tract to which he has a paper title. Granting the existence of such a custom, we think it was proper that the facts concerning the chain of title should all be shown. If the deeds had undertaken to convey the added strip it would have been a circumstance tending to support the theory of a continuous claim of title. The negative evidence afforded by the omission of the deeds to refer to the strip was not conclusive against the defendant, but was proper to be considered in connection with other circumstances in determining the issue, and the court so instructed the jury. (2 C. J. 177; 1 Ency. of Ev. 679; Ency of Ev. 1915 Supp. 13,1.)
5. A similar question is raised by an objection to evidence that the property claimed by the defendant was carried on the tax rolls as the southwest quarter of the southwest quarter of the section, containing thirty-seven acres, and that that claimed by the plaintiffs was carried as the ordinary legal subdivisions, containing 560 acres. It is argued that the owners of the land are not responsible for the descriptions appearing on the tax rolls. They, of course, are not concluded by them, but the circumstance that one who claims an accession by a boundary agreement and by adverse possession suffers- the taxes thereon to be charged to his neighbor is not wholly without bearing upon the extent of his claims. (See 2 C. J. 271, 273, 275.)
.6. Various objections are urged to portions of the testimony as giving conclusions of the witnesses. Some of the questions and answers were, perhaps, technically objectionable on that ground. But upon the whole inquiry the facts were developed with such fullness that no prejudice could have resulted. (Insurance Office v. Woolen-mill.Co., 72 Kan. 41, 82 Pac. 513.)
7. It is contended that a demurrer to .the plaintiffs’ evidence should have been sustained on the theory that it showed that a boundary line in accordance with the defendant’s claim had been established by agreement and acquiescence, and that adverse possession had been maintained for more than fifteen years. The'plaintiff’s witnesses testified that in 1895 or 1896 a fence had been built by one of the plaintiffs’ grantors along the line now claimed as the boundary by the defendant; that one of the defendant’s grantors afterwards paid half its cost; that the builder placed it on the line as near as he knew its location; that it remained in its original position until 1915; and that the true line was located by a survey in 1912. Their testimony did not conclusively prove, even if it had any tendency to show, that there was an agreement that the fence should constitute the boundary between the two tracts, or that either party regarded it as indicating the dividing line unless it actually coincided with that between the southwest quarter and the southeast quarter of the .quarter section. The demurrer to the evidence was therefore properly overruled. The contention is also made that a motion for a peremptory instruction for the-defendant should have'been sustained on the same grounds. Witnesses for the defendant testified to an agreement concerning the boundary, and to facts the existence of which would probably have constituted adverse possession. But the jury were not bound to find in accordance with this testimony. The defendant insists that in virtue of the reference in the will to the forty acres devised to his grantors, he and they from the first claimed to own beyond the east line of the southwest quarter of the southwest quarter, and occupied the land in dispute under that, claim. But the evidence does not conclusively establish this. Of course a possession held up to the fence in the belief that it followed the surveyor’s line would not be adverse (Winters v. Bloom, 96 Kan. 443, 151 Pac. 1109; 4 R. C. L. 128) nor would acquiescence in its maintenance on that supposition create an estoppel (4 R. C. L. 130).
8. Complaint is made of the refusal of an instruction to the effect that the defendant was entitled to a verdict if he and his grantors had been in possession of the tract in controversy for fifteen years prior to the beginning of the action, claiming the right to own it. The instruction was defective in failing to enumerate the other elements necessary to make the holding adverse, such as openness, notoriety and hostility. The court refused to give a requested instruction to the effect that one in the possession of real estate and using it as his own and keeping the rents and profits is presumed to claim it as his own unless it is shown that he is holding it as a tenant or under authority of someone else or in some other way than as owner. The instruction was not adapted to aid the jury in the solution of the questions submitted to them.
9. An instruction was given to the effect that if the fence referred to was built by one of the owners of the southeast quarter of the southwest quarter for his own personal use, not intending that it was to be a line fence, the possession of the tract in controversy by the owners of the southwest quarter would not be adverse without their having made known to the owners of the southeast quarter “their intention of holding said land to the boundary of said fence, and that their possession thereto was open, notorious, peaceable and adverse to said owners.” It' is argued that this is in conflict with the rule thus stated in Peterson v. Hollis, 90 Kan. 655, 136 Pac. 258:
“Where a landowner holds up to a fence, with the purpose of claiming it as his boundary irrespective of whether or not it corresponds with the true line, and does nothing inconsistent. with this intention, his occupancy is adverse, even although the adjoining owner supposes he intends to claim only what he originally owned.” (Syl. ¶ 2.)
We do not regard the instruction as furnishing ground for reversal. Its fair interpretation seems to be, not that the defendant in order to avail himself of the statute of limitations was required to show that actual knowledge was brought to the plaintiffs (or their grantors) of his claim (or that of his grantors) of ownership up to the fence, but that the occupancy of the disputed tract must have been of such character as to import notice of such claim. .This seems to follow from a prior instruction which was given in these words:
“In order to show that the defendant and those from whom he purchased the real estate have claimed to he the owner of the real estate and have claimed a right to it, it is not necessary to show that they in express words said to anyone that they claimed the real estate or that it was their’s, but if they were in possession of the real estate and farmed it and kept and retained the crops and rents from it and treated it as their own without paying rents to anyone else or without recognizing or admitting anyone else had any rights in and to said land, it is sufficient to show an intention on their part to claim the real estate as their own.”
Complaint is made of various instructions regarding the effect of the will. As we have concluded that as a matter of law the will gave the defendant’s grantors title to only the legal subdivision known as the southwest quarter of the southwest quarter it is unnecessary to discuss any rulings relating to that matter.
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The opinion of the court was delivered by
West, J.:
The plaintiff appeals from an order modifying a former decree concerning the custody of her minor child. On May 10, 1912, the plaintiff was by the district court of Wyandotte county, first division, granted' a decree of divorce from the defendant and was awarded the custody of their child, the right of visitation being reserved to the father. On January 27, 1916, the defendant filed his motion in the original suit for a modification of the order, one of the grounds- being that the plaintiff had not complied therewith and had removed the child from Wyandotte county and obstructed and prevented the defendant from seeing him or having an opportunity to visit with, him at reasonable times and places. On October 26, 1915, the plaintiff filed her petition in the third division of the district court, alleging in substance that the parties, after the divorce, had entered into a verbal agreement of marriage and had become and had lived together as husband and wife, that thereafter the defendant had deserted her after which he had gone through a ceremony of marriage with another woman, and asking for a division tif the defendant’s property and for support for herself and child. On March 10,1916, plaintiff filed her motion in the first division for an order transferring the defendant’s motion to the third division or, if such order should be denied, that the hearing be suspended until the termination of the suit there pending, which motion was overruled. While the motion was being heard in the first division it was stated that an order had been made transferring the plaintiff’s suit thereto from the third division — which order had been made April 5, 1916— upon which the trial judge stated that he had not been consulted about such an order and that he would not try the case. During the hearing of the motion the plaintiff requested an opportunity to show that the parties resumed marital relations after the divorce and that thereafter the defendant went away and married another woman, the theory being that one who would thus conduct himself was not a fit person to have the custody of the child. The exact offer as it appears in the record was—
“To show by this witness that these parties resumed marital relations and that thereafter and before he remarried this pther woman in every respect he resumed marital relations and that after that he went off and married this other woman as a reason showing- why he is not a competent person to have the custody of this child and our view is — -but we will present that later on the motion with respect to this matter, but that is our view and our offer and we ask to show that by this witness.” ,
An objection to this offer was sustained. The pleadings in the suit in the third division were offered in evidence, the answer containing an admission that the defendant had remarried and iVas living with his present wife. Any modification of the former order was objected to on the ground that the court was without jurisdiction by reason of the pendency of the other suit and because the parties “were really married.” The former order was modified giving the care, custody and control of the child six months alternately to the plaintiff and defendant with the right of visitation at all reasonable times and places, and providing “that this order respecting said child may be modified upon application to the court therefor by either party with or without notice to the other party.”
The errors specified are the overruling of plaintiff’s motion for a transfer of the motion to the third division • or postponement of the hearing, the exclusion of the evidence offered by the plaintiff, overruling her objection to the jurisdiction of the court over the subject matter and her motion for a new trial.
While the district .court of Wyandotte county has three divisions and three judges, it is one court. (Laws 1909, ch. 112, Gen. Stat. 1909, §§ 2445-2458.) Judge Fischer had granted the divorce and- made the order concerning the custody of the child and it was proper that he should act on the motion for a modification of such order, and he was under no compulsion or requirement to send the matter to another division.
It is quite clear that the court granting the original divorce had jurisdiction to modify the decree as to the custody of the child, for the statute so provides. (Civ. Code, § 672; Miles v. Miles, 65 Kan. 676, 70 Pac. 631; In re Petitt, 84 Kan. 637, 643, 114 Pac. 1071; Greenwood v. Greenwood, 85 Kan. 303, 116 Pac. 828; Purdy v. Ernst, 93 Kan. 157, 143 Pac. 429.)
While the suit referred to was pending when the motion was filed still at and before the bringing thereof'the court had jurisdiction of the matter of the child’s custody, so that the question of priority is negligible! The mere beginning of the suit did not and could not oust the court of jurisdiction to modify the former order, and the matters of transfer, postponement, consolidation and precedence were purely discretionary. The modified order could have been remodified had the plaintiff’s suit been brought to trial later — such remodification being not only within the unquestioned power of the court but within'the very terras of the modification itself.
It is insisted that the remarriage of the parties did away with the former decree respecting the custody of the child, and Cain v. Garner, (Ky. 1916) 185 S. W. 122, L. R. A. 1916 E, 682 (the only decision on the question cited or found), so holds. But whatever its effect such remarriage had not been shown» when the modification was made, the petition in the other suit which was offered in evidence being merely the plaintiff’s allegation and not proof. The averment in that petition was that “plaintiff and defendant entered into a verbal agreement of marriage whereby said parties naturally [mutually] covenanted and agreed to then become and from that date to be husband and wife and that immediately thereafter they lived and cohabited together as man and wife.” Assuming, without deciding, that this would amount to a bona fide consensual marriage, whether one of two parties who would thus assume to live in marital relations in violation of the law which requires proper solemnization of the marriage contract (Gen. Stat. 1909, § 4855), and the statute which punishes those who thus live together without such solemnization (§ 4866) should be heard to assert the fact on the hearing of such a motion is a question not necessary now to decide. (The State v. Walker, 36 Kan. 297, 13 Pac. 279.)
• The offer hereinbefore quoted literally did not amount to an offer to show a valid common-law marriage — but a mere resumption of marital relations. If such resumption reflected upon the defendant’s fitness to have the custody of the child it must have reflected also upon that of the plaintiff. His forsaking such relation and marriage to his present wife could hardly constitute a reason for denying him some control over his boy. At all events it can not be said that the alleged agreement and .relation and the offer to prove in any wise impaired the jurisdiction of the court to make the modification.
The chief remaining question goes to the alleged error in refusing the offer. It was competent evidence to affect the fitness of the defendant to have the care of his child, but had the offer been made good and had it been shown that for a time the parents did resume marital relations, this would not necessarily work a reversal of the order. Whatever the temptations or weaknesses of the parties or whatever ephemeral purpose to remarry may have possessed them the court which had divorced them, how after the flight of several years again saw and heard them and observed their spirit and demeanor; heard the wife tell of his visits, his reception and his treatment; heard the husband tell how the door had been shut in his face when he had gone to see the boy, and how the child had become cold toward the father for whom he formerly evinced the keenest affection. Which one to believe, and what disposition to make were matters which the trial court could determine better than we can. It was a problem calling for the sincere efforts of a judge who knew the parties to do what was best for the child, having due regard to parental rights, and we can find no good ground for overruling the result reached.
It is suggested that because the defendant refused to testify that the mother was an unfit person to have the boy, the court had no grounds on which to modify the order. But as already indicated, there was evidence to’support another ground of the motion — that the plaintiff had “obstructed and prevented the defendant from seeing said child, or from having an opportunity to visit with him at reasonable times and places.” Disobedience of the original decree naturally worked a modification thereof.
The order complained of, however, is no bar to any relief the plaintiff may be entitled to either by motion or by action and as the record shows no prejudicial error the ruling of the trial court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
William Jacks, a resident of Wyandotte county, died intestate on October 11, 1913, owning a farm of about 123 acres on which he had lived since 1868. He was ninety-oné years of age at the time of his death; his wife had died in 1908 at the age of seventy-six, and they had no children of their own. William Jacks left surviving him a number of brothers and sisters, and descendants of deceased brothers and sisters. This action was commenced as a friendly suit by two of his brothers for partition of the land among the collateral heirs. An amended petition joined as defendants Vietta Freeman and her husband. Vietta Freeman claimed to own the land in her own right, and in a cross-petition set out the facts which she claimed worked a transfer of the property to her. The case was submitted to a jury. A general verdict and special findings were returned in appellee’s favor, and judgment was rendered decreeing her to be the owner of all the property of which William Jacks died seized. The collateral heirs, somq of whom are plaintiffs and some defendants, are the appellants.
Vietta Large was born December 6, 1876. Her mother died when she was less than ten months old. At the time William Jacks and Mary Jacks were past the age when they could expect children of their own. They had for some time wanted to find a suitable child to take into the family and raise as their own. They had said they desired to get a child so young that it would never know that it was not their child. An acquaintance of theirs who knew their desires told them about Vietta Large. They took her to their home when she was ten months old. She lived with them until she was sixteen years old, when she was married to Otto Freeman at the home of William Jacks. The marriage license described her as Vietta Jacks, the name she was known by during her childhood. They treated her as their child, sent her to school, and she returned to them the service, obedience and affection of a child for parents. She assisted them in their sickness, worked about the house and occasionally in the fields. A colored woman who had formerly been a slave in the Jacks family testified that she lived with the family for fourteen years during the time Vietta was there and that the relations between Vietta and William Jacks and Mrs. Jacks were characterized by love and affection; that they always treated her as their own child. They usually called her “Hun” and she called them “Papa” and “Mamma.” After her marriage she and her husband lived for about a year and a half with Mr. and Mrs. Jacks. They then moved to a house on the same farm, which Mr. Jacks built for them, and remained there about three years. They then moved to a farm in the neighborhood where they remained for several years, when they returned to the Jacks farm to live. Mrs. Jacks- was an invalid for about a year before her death and required a good deal of personal attention and care. The appellant went back and forth to the Jacks home helping with the cooking and household duties and assisting in the care of Mrs. Jacks. After the death of Mrs. Jacks the Freemans leased the farm, Mr. Jacks requiring them to sign a written lease each year. They paid a yearly rent of $300 and in addition furnished him with board, and he lived with them, having a room of his own.
One of the principal contentions made by the appellants relates to the pleadings. In her cross-petition the appellee alleges in paragraph two that she became the holder of the legal and equitable title to the real estate in question “under and by virtue of a certain contract and agreement entered into with William Jacks, and M. A. Jacks, both deceased, and H. P. Large,” her father, under which her father delivered over to them full care, control and custody of her when she was a child of ten months, her father then and there relinquishing all right to control her as his child, in consideration of which, and her discharging her duty thereafter to them as though she was their own child, they then and there agreed to take full care, control and custody of her “as their own child and heir in every and all respects whatever to all intents and purposes,” and agreed that they would give her their property at the time of their death, “and to effectuate said intents and purposes repeatedly stated that they intended to adopt” her. The third and fourth paragraphs of the cross-petition read as follows:
“3. That on or about the 14th day of January, A. D. 1878, the said contract so entered into by said H. P. Large of the one part and said ■William Jacks and M. A. Jacks of the other part was evidenced by the following written instrument executed and delivered by said H. P. Large and said William Jacks and M. A. Jacks, a true copy of which is as follows, to-wit: ...
“4. ‘Baby Vietta Large was born near Monticello, Jackson County, Kansas, on December 6, 1876. Her mother departed life in Edwardsville, September 6, 1877, leaving .her father, H.. P. Large, a floating resident of Wyandotte County, Kansas, at which time the above mentioned (Vietta Large) was turned over to Wm. Jacks and M. A. Jacks, his wife, residents. of the last mentioned county and state, to have the full care, control and custody as their own child and ‘air’ in every and all respects whatever to all intents and pua-poses and her kinsmen residing in Kansas. Julia and Baker P. Near, Conner Station. Her aunt married to Robert Baker- Kinsman in Greenup County, Kentucky, are as follows: Janey Merrill married to John W. Merrill (her aunt and uncle) on her mother’s side. Mother’s maiden name was (Nancy Elizabeth True Back) on the father’s side in Michigan names as follows, (Joseph Large and family residents Berrian County) postoffice in Dowagiac, Cass Mich. One aunt in Franklin Co., Mo. ‘name’ Cerepta A. Pope.
Given under my hand this the 14th day of January, A. D. 1878.
H. P. Large.
Witness
his
Albert X Haynes, mark.’ ”
Paragraph six states “it being understood in said contract that” appellee “was to be treated by said William Jacks and wife as their child” and that appellee “would through life render to them the same love, affection, obedience and service as though she had been their own child.” In this paragraph it is further alleged that she fully complied in every particular with the contract on her part and remained in the custody and control of her foster parents until her marriage, which was with the full knowledge and consent of her foster parents, the marriage license having been issued under the name of Vietta Jacks.
In another part of the cross-petition it is alleged that the foster parents repeatedly reaffirmed and recognized the terms of the contract by which appellee had been taken into the family and again promised and agreed with her that if she would continue to remain with them, render to them the obedience, affection and service of a daughter, they would fully carry out the terms of the contract, and further allege that she rendered full obedience, service and affection and assisted them in all their sickness without receiving any compensation therefor.
The memorandum set out in paragraph four of the cross-petition was produced at the trial and the evidence showed that it was kept in the family from the time appellee was taken there, and that it was regarded as one of the family records. It was kept in what was known as the “black book.” Although it was not signed either by William Jacks or his wife, it was in the handwriting of William Jacks. It was signed by H. P. Large, the father of Vietta. William Jacks had served several terms as justice of the peace, and was in the habit of drawing conveyances and other instruments for neighbors. He had some acquaintance with legal terms, which doubtless accounts for some of the phraseology of the instrument. In their answer to the cross-petition appellants alleged that the words “and ‘air’ ” (heir) which were interlined in the instrument were forgeries, and at the trial offered evidence of expert witnesses tending to show that these words were in a different handwriting. The jury by their general verdict have found there was no alteration in the instrument. They also found that William Jacks required the father of the little girl to sign the memorandum. Witnesses who had often visited the Jacks family testified to conversations with William Jacks in which he showed them the “black book” and said “this is the contract I had to write up to get our baby”; “I will show you the contract I had to draw up to get ‘Hun.’ ” One witness testified that Mr. Jacks said he “had to make those provisions before Large would relinquish his right to her.”
The answer to the cross-petition, besides a general denial, alleged that if there ever was any agreement made by William Jacks to take the appellee into his family and treat her as his own child and heir and leave her his estate at his death in consideration of her living with him and rendering services to him and his wife as if she was their own child, she had failed to keep and perform the agreement on her part and had repudiated and abandoned it when she Was sixteen years old, and that she had sorely disappointed and grieved William Jacks by refusing to accept and follow his counsel and advice with regard to entering into marriage relations too early in life and with a man objectionable to him; that she'was not only an undutiful child but that at all times after her marriage was cold and indifferent towards him. There was a conflict of evidence on all these matters, but there was sufficient evidence to sustain the verdict and judgment, unless, as appellants claim, prejudicial error was committed in the trial of the case.
The principal contentions of the appellants are that the appellee was permitted to recover upon a theory neither alleged in her cross-petition nor proved. The appellants claim that confusion reigned at the trial because it was assumed by the court that the appellee claimed under a parol contract to adopt and to leave property, while they insist that in fact she expressly pleaded a written contract which said nothing whatever either about adoption or leaving property. It is urged that the court assumed, without warrant, that what is called paragraph two of the cross-petition stated an independent cause of action resting in parol, and therefore that the court erred in submitting to the jury the question whether the evidence showed a promise that appellee would be adopted as the child of William Jacks and made his heir.
In the statement of facts contained in the brief of the appellee, the theory upon which she recovered judgment is conceded to be as the appellants claim, that is, upon the theory of an oral contract between her father and William Jacks, by which she was to be taken into his family, and in consideration of her giving to him and his wife the affectionate obedience of a child, they would adopt her and give her their property at their death. The court gave an instruction as follows :
“9. Even if you find from the evidence that the writing contained in the black book marked Exhibit ‘3’ was written by William Jacks in the same words and with the same interlineations as now appear therein it would not of itself entitle said Vietta Freeman to recover a verdict herein but it may only be considered by you together with all the other evidence in the case in determining whether or not the verbal or parol agreement alleged by said Vietta Freeman was in fact agreed upon and entered into by her father and said William Jacks.”
Before considering the claim that there was no proof to support the theory of a contract to adopt and to leave property, we must consider and construe the cross-petition itself. The cross-petition first alleges a certain contract and agreement between appellee’s father and William Jacks and wife, by virtue of which her father turned over to them the full care, control and custody of her when she was a child, her father then and there releasing all right to consider her as his child, and delivering her to them in consideration of which and of her discharging her full duty to them as though she was their child, they agreed to take full care, control and custody of her as if she were their own child, and “agreed that they would give her their property at the time of their death,” and to effectuate said intents and purposes, repeatedly stated that they intended to adopt her. So far nothing is said as to whether the agreement was in writing or oral, except that it is alleged that they “stated” an intention to adopt. In paragraph three it is alleged:
“Said contract so entered into by said H. P: Large of the one part and said William Jacks and M. A. Jacks of the other part was evidenced by the following written instrument executed and delivered by said H. P. Large and said William Jacks and M. A. Jacks.”
In paragraph six it is said: “It being, understood in said contract that this defendant was to be treated by said William Jacks and wife as their child,” and “would through life render to them the same love, affection, obedience and service as though she had been their own child.” The cross-petition is very lengthy. In other portions of it there are allegations to the effect that the foster parents repeatedly reaffirmed and recognized “the terms of said contract” by which the appellee had been taken into the family. The appellants insist that “said contract” can only be intended to refer to the one “evidenced” by the memorandum.
If the written memorandum set out in the cross-petition had in fact been executed by both parties as alleged, the pleading would necessarily be construed as appellants contend, and all the statements as to what the contract embraced would necessarily go out of the pleading, and the pleader would be held bound by the writing. Obviously the court, when it came to examine the memorandum, and saw that it had not been executed and delivered by William Jacks and his wife, or either of them as alleged, but on the contrary had been executed and delivered solely by H. P. Large, gave a liberal construction to the language alleging that the “said contract was evidenced” by the written instrument, and came to the conclusion that it should be construed as though the appellee had attempted to plead her evidence and to refer to the memorandum as evidence of the terms of an oral agreement. Ordinarily the rule is that where the substance of an agreement is stated, it is presumed to be in writing, in the absence of any statement to the contrary. This rule, however, should not be applied arbitrarily to one part of the pleading. When we read all the cross-petition together as one paragraph (and we see no reason for attaching any importance to the numbering of them), there is ground for construing the pleading as relying upon an oral agreement, because the writing referred to shows on its face that it was not an agreement between the parties, although it might be evidence that an agreement of some kind existed. The pleading is inartistically drawn, and contains inconsistent statements which might have furnished grounds to support a motion to make more definite and certain, or to require an election between a contract in writing and one in parol. Construing the entire pleading together, we think there was no error in admitting proof of a parol agreement,
The other principal contention is that the court submitted the case to the jury on an erroneous theory, one not alleged in the cross-petition, and on which there was no proof. The court expressly charged the jury to return a verdict against the appellees unless they further found, from a preponderance of the evidence, that her father “entered into a verbal or parol contract with said William Jacks in his lifetime, on or about January 14, 1878, in substance that in consideration of the relinquishment to said William Jacks by said H. P. Large of all his rights in and to said Vietta Freeman as her father, he, the said William Jacks, would receive, keep and care for her as his own child to all intents and purposes, and adopt her and make her his heir at law, and that said H. P. Large observed and complied with the terms and conditions of said contract on his part, and that said Yietta Freeman fully performed all the requirements and conditions imposed upon her by said contract.”
This instruction, together with the one in which the court charged that the memorandum written in the black book “would not of itself entitle” appellee to recover, must be'considered the law of the case, as the appellants contend. The cross-petition does not allege an agreement to adopt. It alleges that they repeatedly “stated” an intention to adopt her, but this was obviously referring to the period after she was taken into the family. We think it is also true that' there is no evidence of an agreement to adopt, and it is conceded that there was no attempt to make a legal adoption. .
The question then is, Was it error for the court to submit the issue of a contract to adopt in the absence of any claim in the cross-petition that such was the contract, and with no evidence upon which the jury could find that such a contract was made? Conceding that this and other instructions in which the court likewise submitted the same issue to the jury should not have been given, because there was no proof in support of the issue, were the appellants prejudiced by the instructions? It will be observed that the court, in attempting to state the terms of the verbal contract relied upon, used the phrase, “adopt her and make her his heir at law.” If the evidence was sufficient to sustain a finding of a verbal contract by which William Jacks agreed to receive the appellee into his family, keep and care for her as his own child and make her his heir, and that such contract has been fully performed on her part, her right to recover would be just the same as though the contract had been as the court stated it. If they had formally and legally adopted her she would have sustained to them the relation, of an heir, so that it is difficult to see how the instruction could have prejudiced the appellants. If, as the jury found, they agreed to take and raise the appellee as their own child and heir, and she performed her part of the agreement, her rights would be just the same as if they had agreed to adopt as well as to make her their heir. In our view of the matter no possible prejudice could have re- ' suited from the language in the instruction, which coupled an agreement to adopt with an agreement to make appellee the heir of. her foster parents.
The instruction that the written memorandum itself was not sufficient to entitle appellee to recover, but might be considered together with all the other circumstances in evidence to determine whether a parol agreement had been made, was proper. It has been held that an unsigned memorandum of a proposed contract, made prior to an instrument finally executed, may be received in evidence for the purpose of showing the relation of the parties, where that will throw light on their understanding with regard to the subsequent transaction. (Clark v. Townsend, 96 Kan. 650, 153 Pac. 555.)
Finally it is urged-that no witness testified to the terms of any contract between William Jacks and the father of appellee.
If the memorandum had been in the handwriting of H. P. Large; if it had been a letter addressed to and received and retained by William Jacks stating, in the same language, the terms upon which Large proposed to relinquish his rights to the child, it would be at least some evidence of the terms of a proposed contract; and if reinforced by proof of the subsequent action of William Jacks in taking the child into his family, his treatment of her thereafter as his own child, and his statements that the writing expressed the conditions upon which he received her, there would be sufficient circumstantial evidence to sustain the finding of the jury.
“It (the contract) may be established from such facts and circumstances, as will raise an implication, that it was made and may have reinforcement from the evidence of the conduct -of the parties at the time and subsequently.” (Italics ours) (Edson v. Parsons, 155 N. Y. 555, 567, cited in Anderson v. Anderson, 75 Kan. 117, 127, 88 Pac. 743.)
Moreover, we have the fact that the memorandum was in the handwriting of William Jacks. It was written by him in a book, which the evidence shows was regarded as a family record; it was often referred to by William Jacks in the presence of friends and relatives of the appellee and other members of the family, as setting forth the the terms upon which the appellee had been surrendered when an infant by her father and had been taken into the family. Contracts of this nature may be established by circumstantial evidence. (Bichel v. Oliver, 77 Kan. 696, 95 Pac 396; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596, and cases cited in the opinion.)
We discover no reason for setting aside the decision of the trial court and, therefore, the judgment will be affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
Samuel F. Campbell, of Pottawatomie county, died on November 4j 1904, without a wife and with no children except an adopted daughter, Debbie G. Campbell. He left a will bequeathing a hundred dollars to each of his two sisters and to his only brother he left his rifle. It further provided:
“Fourth. I give and bequeath all of the remainder of my estate both real and personal of whatsoever nature to my Adopted Daughter Debbie G. Campbell during her natural life and then to her heirs if any survive her if no heirs survive her then to some Prodisan orfans Home.”
This adopted daughter died in October, 1912, at the age of sixteen years, without husband or children.
A tract of land which belonged to Samuel F. Campbell in his lifetime is the subject of this lawsuit. The plaintiff claims title and part ownership through a deed and a contract of purchase from the heirs of Samuel’s brother. The defendant claims title under a deed executed to him by the administrator of Debbie G. Campbell’s estate. The litigants agree that the contingent grant to some protestant orphans’ home is void for uncertainty of beneficiary. They likewise agree:
“Seventh. By the use of the word ‘heirs’ in the fourth numbered item or paragraph of the will of S. F. Campbell, the testator therein meant ‘issue.’ ... In addition to the foregoing facts it is further agreed that the proceedings in the probate court of Jackson County, Kansas, in the estate of Debbie Campbell, leading up to the administrator’s deed to the defendant, A. M. Fairbank, are regular, if in fact Debbie G. Campbell’s estate had any interest in the property which could be conveyed.”
The district court rendered judgment for plaintiff and defendant appeals.
Since it is agreed that the uncertain grant to some protestant orphans’ home is void and that the word “heirs” in the fourth clause of the will means “issue,” we have then a bequest of a life estate to Debbie G. Campbell, and, subject to the contin geriey of Debbie’s having issue, an intestacy as to the remainder' of S. F. Campbell’s estate. What happens if Debbie has no issue? It goes to his heirs. Who are his heirs? His only daughter, an adopted daughter, of course, but none the less his daughter. (Gray v. Holmes, 57 Kan. 217, 45 Pac. 596; Riley v. Day, 88 Kan. 503, 129 Pac. 524.) Under the will his daughter took a life estate.' Upon her failure of issue the conditional intestacy of Samuel became absolute, and the remainder of the estate passed to those who may claim under Debbie, the nearest, sole and direct heir at law of Samuel. While Debbie died without issue, Samuel did not. He left Debbie in his own direct line (Gen. Stat. 1909, § 5066) and his collateral kindred have no claim to his property as against the grantee of Debbie’s administrator. This necessitates a reversal of the judgment. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff appeals from an order denying its motion for judgment on the pleadings, and from an order sustaining a demurrer to its evidence. It is conceded that telegrams in code passed between the parties in the following order:
“June 29, 1915. Can you offer No. 3 hard wheat, think can pay $1.30, basis Minneapolis, five days shipment. Cargill Comm. Co.”
“Offer 30,000 No. 3 hard wheat, $1.32 Minneapolis, five days shipment, bringing $1.30 Kansas City. Answer. Hutchinson Grain Co.”
“Bought No. 3 hard wheat early at $1.31 think can work 30,000 same price. Market is lower, answer quick. Cargill Comm. Co.”
“Book the 30,000 to 35,000 bushels No. 3 hard wheat $1.31 Minneapolis, wire if booked.”
“We book 30,000 to 35,000 No. 3 hard wheat $1.31 basis Minneapolis, five days shipment.”
On the same day defendant wrote:
“We herewith confirm sale to you by exchange of wires of 3,000 to 3,500 bus. No. 3 or better wheat (hard) at $1.31 bu., basis del. Minn., Minn., shipments 5 days, weights dest, grades dest. No. 3 to apply at lc scale. Terms: Sight draft with bill of lading attached unless otherwise stated.”
Also the following:
“We enclose confirmation covering sale to you to-day of 3,000 to 3,500 bus. No. 3 or better wheat of Kansas hard-. We thank you very much for this trade, will be glad to hear from you again,” etc.
On the same day the plaintiif wrote:
“Through exchange of wires to-day, we take pleasure in confirming purchase from you of 30 to 35 M bus. No. 3 hard- wheat at $1.31, basis delivered Minneapolis, shipment 5 days, Minneapolis State weights and grades to govern in settement, and usual switching charge. Very glad to have this trade .with you, and trust we will have future trades with you, and that your grain will come forward without any delay. Our wheat market closed a trifle higher at .$1.21%, $1.02% for our September. On this basis good No. 3 hard would be worth $1.30 to 30%.” •
Enclosed in this letter was a stereotyped form of confirmation as follows:
“contract.
“Minneapolis, Minn., 6/29/1915.
“Hutchinson Grain Company, Hutchinson, Kansas.
“We confirm purchase from you June 29, 1915, by wire of-cars, thirty to thirty-five thousand bushels of 3 hd. or better, Minneapolis inspection and Minneapolis weights to be final @ $1.31 per bushel delivered free on board cars at Mpls. and switched, to be shipped at convenience of the seller, between June 29, 1915, and July 5, 1915, inclusive, from ■-by-R. R. via-and to be billed as follows: Mill in transit for Chicago either C. G. W. or R. I. (immaterial provisions). Wire us immediately if any error or omission in this contract. Failure to do so constitutes your acceptance of all the terms hereof. '
“Accepted-;-Seller.
“CARGILL COMMISSION CO.,
“Per A. F. Owen, Buyer.”
On July 1 the following telegram was sent:
“Your letter and confirmation of trades 29th received and wrong. We bought as per wires abstain to abstained. (Signed) Cargill.” (Code words for thirty thousand to thirty-five thousand.)
To which the following went in reply:
“Message received our confirmation of 29th covers all wheat sold you on this date. Error in our code word. Thirty hundredl to thirty-five hundred all wheat we had to offer. Error apparent as would be impossible to buy thirty thousand old wheat here for five days shipment. (Signed.) Hutchinson Grain Co.”
The following was also sent:
“Not our error. We sold abstain to abstained as message read. Look to you for the wheat or give us orders, we will buy what we can for your account.”
On July 1 the defendant wired the plaintiff:
“Don’t buy any wheat for our account. Our confirmation covers all wheat sold you.” '
And the plaintiff wrote defendant;
“We certainly was surprised this A. m. when we received your message which read: ‘Your letter and confirmation of trades twenty-ninth received and wrong. We bought as per wires abstain to abstained.’ We immediately wired you by day letter, ‘Message received. Our confirmation of twenty-ninth covers all wheat sold you on this date. Error in code word, thirty to thirty-five hundred all wheat we had to offer. Error apparent, as would be impossible to buy thirty thousand old wheat here for five days shipment.’ Later in the day, we received your confirmation confirming 30,000 to 35,000 bus. of wheat and we are returning same to you, as we did not sell this amount of wheat. This was a clerical error, and we are unable to furnish anything like this much wheat as stated in our day letter. We are very sorry that this has happened, and trust that we may be able to get this matter straightened out satisfactorily.”
On July 2, the following letter was sent:
“Cargill Commission Co.,
Minneapolis, Minn.
“Gentlemen — We are in receipt of your various messages, one last evening and one this morning. We wired you this P. M.: ‘Don’t buy any wheat for our account; our confirmation covers all wheat sold you.’ Now we will ship you from 3000 to 3500 bushels wheat on our contract of the 29th which is all we sold you, as per our letter of yesterday, which explains our stand in this matter. We enclose one invoice covering car of wheat No. 34,393 D. L. W., which is billed to notify you Minneapolis, Minn. Please apply this car on Cont. 822, date 6-29-T5.
“Yours truly, Hutchinson Grain Co.”
After setting up most of this correspondence the petition alleged a known custom and usage of the grain trade that when a contract is made for the purchase of a minimum to a maximum amount of grain the seller can fill his contract by shipping either at his option, but that upon the seller’s failure or refusal to ship the grain covered by his contract and upon notice thereof the purchaser may and must at once buy in the open market and may buy sufficient grain to cover either the minimum or maximum, charging to the seller the difference between the contract price and the price paid, together with costs and charges, and alleging that such purchases were made and claiming damages in the sum of $3020.96. The answer sets up a custom that when grain is bought by telegraph the purchaser immediately writes a confirmation , likewise the seller, and that it is generally understood and is the custom among grain dealers that no contract is complete without such letters of confirmation, they constituting a part of the contract -and being the contract between the parties; that the defendant made a mistake in the amount of grain he intended the plaintiff to book by use of the wrong code word and that the plaintiff knew the defendant could not have procured the •quantity of grain covered by the telegram and that the language used in the telegram was a mistake as to .the amount intended to be sold. This custom was denied by the reply and the alleged knowledge of the impossibility to procure the maximum •amount of wheat was also denied, and it was averred that the defendant shipped the wheat on the contract, after receipt of plaintiff’s confirmation and thereby accepted the terms of such confirmation and is bound thereby. A known custom that the telegrams and not the confirmations governed was also alleged in the reply.
. Mr. Owen testified that he was familiar with the general usages and customs of the grain business among grain men and that it is a general custom when the seller defaults in the contract to allow the purchaser to buy in either the maximum or the minimum as he may see fit; that if the seller refuses to fill his contract the purchaser must buy in immediately the same day or as soon as he can to cover the specified time of sale. Mr. Beyer testified that he was familiar with the customs of the grain business “and there is a usage and custom to the effect that at the very moment that the buyer finds out that there is a default, that there is a difference between them on the contract and the seller will not ship, he must immediately buy in for his account the amount that is short at the market price; must buy in at once upon knowledge of default.” Mr. Shepardson testified that the purpose of sending confimations is simply to confirm a sale previously consummated, to check errors if there should be any:
“Where one party makes an offer by telegraph to sell grain at a certain price and another party accepts by telegraph, the contract is completed before the receipt of written confirmation; the wires make the contract; the contract is made at once after the wire is received accepting the previous offer made. If a sale is made by exchange of wires and a confirmation is later sent which differs from the confirmation, the telegrams control absolutely, — the confirmation has nothing to do with the making of the contract. It is certainly not a trade custom that'a sale of grain is not finally closed until a confirmation is sent and received. If a buyer of grain by wire had to wait until he was notified by the seller that he had received a confirmation and that it was all right, all of which might take two or three or more days, he could not do business at all. In our business we have to know, not within a few days, .but within a few minutes, whether we have made a purchase or a sale, so that we can at once either buy or sell, as the occasion demands, before the market fluctuates.”
In the testimony of Mr. Hinchman on file it was testified that “in almost all instances, after a deal is made by an exchange of telegrams, the parties then mail to each other written confirmations, which are what the words imply, simply words to confirm or verify the previous wires.” It is said in the reply brief that this deposition contains a further statement by Mr. Hinchman to the effect that the contract is completed by the exchange of wires, the confirmation having nothing to do with the contract which is complete the minute the wire offer is accepted by wire.
The answer contained no denial except that of any indebtedness to the plaintiff.
If a known and recognized custom of the grain business authorized the purchase up to the maximum so that when the contract was made the par bies thereto must be presumed to have so intended, then evidence of such contract should have been received. As already seen, the petition as well as the. reply was supported by evidence, and hence the demurrer was-erroneously sustained. The plaintiff, however, relies largely on the assignment of error that the court erred in denying its-motion for judgment on the pleadings.
Assuming for the moment that the telegrams of June 29' evidenced a complete contract, then upon advice that the. defendant refused to recognize it save as to 3000 or 3500 bushels, the plaintiff having already sold 35,000 bushels on receipt of defendant’s telegram of acceptance was bound so to act as to mitigate the damages; and if the known custom of the trade also required it, then the plaintiff was doubly justified in buying in the open market at the best price possible what the defendant refused to ship in compliance with the contract.
Regardless of custom and usage, parties may and frequently do contract by telegraph, and such contracts may be as binding as if in the most solemn form of writing. Some point is sought to be made because the defendant referred to the contract of June 29, as if this amounted to a recognition that the contract was completed on that date, and also because certain minor provisions as to the time and manner of shipment did not appear until in the letters of confirmation, as if that were some evidence that the contract was not yet completed, and also that in the stereotyped form of letter referred to reference was made to correcting any error or omission in the contract, and it is urged that this shows an intention on the part of the plaintiff to deem that the confirmations and not the telegrams constitute the contract. The entire correspondence, however, both by wire and by letter, reveals plainly enough that when the defendant used the word “contract” he meant a contract for 3000 to 3500 bushels; that when the minor provisions as to time and manner of shipment were mentioned in the letters it was with no thought of changing or making a new contract. The stereotyped form of confirmation begins with the statement:
“We confirm purchase from you June 29, 1915, by wire of— -cars, thirty to thirty-five thousand bushels.”
Then after the provisions as to shipment and billing comes the suggestion to wire any error or omission. This letter form in connection with the other correspondence does not, in our opinion, indicate any intention on the part of the plaintiff to depart from the position that the contract was completed on June 29.
The telegrams themselves consist of a bid for thirty thousand to thirty-five thousand bushels, a direction to book that amount, and a reply that it had been booked. Had the correspondence ended here no question could arise as to its meaning or obligation. When the additional fact appears that pursuant thereto the plaintiff at once sold 35,000 bushels of wheat in reliance upon this contract the final and binding character of the deal is accentuated. When the news of the defendant’s position and intention reached the plaintiff the sale of the 35,000 bushels had already been made. Had the contract contained in the messages of June 29 been in the form of a written agreement signed by the parties, and the plaintiff, relying thereon, had acted as it did, the defendant could not then have been heard to say, at the expense of the plaintiff, that he had made a mistake in the number of bushels he wrote into the contract and therefore was not bound. Had the mistake been discovered and made known to the plaintiff before acting on the contract the error could have been corrected, but it was not the plaintiff’s mistake' nor was it the plaintiff’s fault that the defendant used the wrong word in the contract and did not make this known until the plaintiff had obligated itself to furnish the amount of wheat which the written contract or written evidence of the contract — the telegrams — between the parties called for. It is no answer to say that a known custom of the grain trade makes the letters of confirmation of the telegrams and not the telegrams themselves the contract, for this would be to exalt the manner of transacting business above the legal obligations thereof. In Strong v. Ringle, 96 Kan. 573, 152 Pac. 631, the confirmation of the purchase by telephone was received before the grain was shipped. Custom required objection, if any, to be made on its receipt. There was a dispute as to what was said over the telephone. It was held that the letter, of confirmation should have governed: While an expression in Robinson v. United States, 80 U. S. 363, was quoted (p. 575) to the effect that parties contracting on a special matter concerning which known usages prevail by implication incorporate them into the agreement if nothing is said to the contrary, it was stated, however, that—
“The custom of grain dealers is not invoked here to make a contract between the parties or to contradict any contract they did make. There was a contract, and the question is, What were its terms?
“The general function of usage and custom is definition, explanation, elucidation. Whenever the matter is clear there is no function to be performed.” (pp. 575, 576.)
The contráct evidenced by these telegrams is free from uncertainty or ambiguity and hence under the rule of McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121, and Strong v. Ringle, supra, there was no room for usage or custom to operate.
We find nothing in the' telegrams and letters taken together to destroy the contractual force and effect of the telegrams acted on as they were by the plaintiff. What we do find is a claim of mistake by one of the contracting parties in the choice of a word used by him, knowledge of which claim reached the other party by a letter written June 29, and by a telegram sent July 1.
The very fact that knowing the usages and exigencies of the grain business the parties made and accepted the offer by wire indicates an intention to act quickly and not a purpose to await the slow course of the mails to determine what, if anything, their telegraphic communications-had meant.
“As a written contract is the highest evidence of the terms of an agreement between the parties to it, it is the duty of every' contracting party to learn and know its contents before he signs and delivers it. He owes this duty to the other party to the contract, because the latter, may, and probably will, pay his money and shape his action in reliance upon the agreement, into which he has entered on the ground that he did not attend to its terms, that he did not read the document which he signed, that he supposed it was different in its terms, or that it was a mere form. ... A mistake of one of the parties only in the expression of his agreement or as to the subject matter, not known to the other, does not affect its binding force, and is no ground for its rescission even in equity, unless it is such a mistake as to show that there is a complete difference in substance between what is supposed to be and what is taken, so as to constitute a failure of consideration. . . .' Where a purchaser or seller of any property, real or personal, buys or sells upon a mistaken idea of its nature, quality, or value, this mistake of one, unless induced by the other, does not affect the binding force of the agreement.” (9-Cyc. 388, 394, 395.)
It was held in Griffin v. O’Neil, 48 Kan. 117, 29 Pac. 143, that an owner of cattle who contracts to sell them for a given price and gives a bill of sale and receives the consideration can not be heard to say that he made a mistake in calculating the price of the cattle. It was said':
“If he made a mistake in his figures, and Mr. Griffin had no knowledge of the mistake, but relied upon the price stated, Mr. O’Neil is responsible and must suffer.” (p. 119.)
“If an offer made by one telegram is accepted by another it can not afterward be withdrawn by a third telegram which was forwarded before the second was actually received, but which did not reach its addressee until after the second telegram had come to the hands of the person making and afterward seeking to withdraw the offer. ... It has been declared that if, in the expression of the intention of one of the parties to an alleged contract, there is error, and that error is unknown to and unsuspected by the other party, that which was so expressed by the one party and agreed to by the other is a valid and binding contract, which the party not in error may enforce. In other words, a party to a contract can not avoid it on the ground that he made a mis take where there has been no misrepresentation, and there is no ambiguity in the terms of the contract, and the other contractor has no notice of such mistake, and acts in perfect good faith.” (6 R. C. L. 615, 623.)
“A mistake of one party only, not known to the other, is generally no ground for avoiding the contract. The test is to determine whether or not the mistake is as to the substance of the whole consideration, and going to the very root of the matter, and not only to some point, although material, which does not affect the substance of the whole consideration. If the mistake is as to the former, then there is in reality a failure of consideration, which is a defense to the contract. If it is the latter, the contract is valid. Unless there is a mutual mistake, or the presence of undue influence or fraud, there is usually little or no ground for avoiding the contract for mistake.” (1 M. A. L. 401.)
It is argued that the acceptance of the 3000 to 3500 bushels after being advised of defendant’s intention was an acquiescence therein. On the contrary this acceptance was merely that of a part performance and obviated the necessity of buying in that amount of grain to meet the contract of sale which the plaintiff had made on receipt of the defendant’s telegram accepting its offer.
A contract to sell or deliver 30,000 to 35,000 bushels could certainly be fulfilled by the sale or delivery of any number of bushels from 30,000 to 35,000, so that if the defendant had furnished the minimum number of bushels the plaintiff could not have complained. We see nothing ambiguous or uncertain about such a contract so as to admit the alleged custom authorizing the purchaser to buy in on the seller’s account the maximum number of bushels, for such a contract clearly means 30,000 or such greater number of bushels up to 35,000 as the seller chooses to furnish. If the purchaser desires to bind the seller to a greater number than the minimum he may so frame the contract — and not having done SO' he must remain content with the requirements it contains.
Under the pleadings the plaintiff is entitled to recover up to the minimum amount purchased and it was error to refuse judgment thereon.
• The order sustaining the demurrer to the evidence of plaintiff is reversed and the cause is remanded with directions to render judgment for the plaintiff in accordance herewith.
OPINION ON MOTION TO MODIFY ORIGINAL OPINION..
Filed January 18, 1917.
The opinion of the court was delivered by
West, J.:
The defendant in support of his motion to modify the opinion and order herein calls attention to a matter not much noticed by him when the case was briefed and argued and asks that the cause be remanded for trial as to that. In his answer the defendant alleged that it would have been impossible to purchase and ship within five days 30,000 to 35,000 bushels of wheat of the kind required; that the plaintiff knew this and knew that the language used in. the telegram was a mistake as to the amount intended to be sold. Although .the answer contained no denial of the plaintiff’s allegations except a denial of indebtedness, in reply to this allegation as to the ability to purchase the amount of wheat called for by the telegram the plaintiff denied that it knew of such alleged impossibility, denied that it knew the language used was a mistake, and averred that the defendant could have procured such amount of wheat in the time specified.
We have been inclined to assume that in the Hutchinson wheat market in June, 1915, it would have been quite possible to purchase that amount of whea.t of the kind in the time specified. But we are now constrained to hold that these allegations formed an issue of fact — the essential one being the plaintiff’s knowledge of such alleged impossibility — and that the defendant is entitled to have a jfiry decide this issue.
The expression in the opinion that judgment on the pleadings should have been rendered and the order so to do are withdrawn, and the cause is remanded for a new trial in respect only to the question of such alleged impossibility and the plaintiff’s knowledge thereof, the result of such retrial to be given the proper effect in accordance with the opinion already rendered. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an application for a writ of mandamus to compel obedience .to an order of The Kaw Valley Drainage District requiring The Missouri Pacific Railway Company to remove one of its bridges across the Kansas river because its low elevation, many piers, its southern abutment, riprap and filling obstruct .the channel and free flow of flood waters to such an extent as to menace the lives and property of the people residing or doing business in the bottoms of Kansas City, Kan.
Before going into the details of this controversy, a general statement of the situation which gives rise to this lawsuit seems pertinent.
In the early summer of 1903 a great flood devastated the entire valley of the Kansas river from the interior of the state down to its confluence with the Missouri near the eastern state line. Many lives were lost, and twenty thousand people in and near Kansas City, Kan., were rendered homeless. Many millions of dollars’ worth of public and private property was destroyed, including some seventeen railroad and public bridges in Kansas City. Destructive floods in the Kaw valley have not been uncommon, although those carrying such enormous volumes of water as that of 1903 have only occurred previously within recorded annals in 1785 and 1844, at which times the only sufferers were the primitive Indians and the missionaries residing among them. (Vol; 8, Kansas Historical Collections, 1903-1904, p. 472 et seq.) In 1826, 1845, 1851, 1881, 1886, 1904, 1908 and 1915 the Kaw valley has been flooded, usually by the" “June rise”; and as settlement has developed and property and business have become more congested the recurring frequency of these floods has become a, matter of increasing and imperative concern to the commonwealth. With the usual negligence which is characteristic of free governments, the channel of the Kansas river had been permitted to be encroached upon by enterprising riparian owners, railroads and business men, until the stream bed had become far too narrow to furnish a waterway for floods of much less volume than that of 1903. On these encroachments in the natural channel properties of great value had been erected; and while it is technically true that doctrines of prescription and statutes of limitations do not run against the state (Nullum tempus occurrit reipublicas), yet it has only been after much litigation and expense that the state has recovered and brought under its practical control this important waterway. To bring that about, and to create a responsible public agency charged with the duty to clear the channel of the Kaw, and to maintain a clear channel therein, and to construct and maintain' dikes as a protection against floods, the legislature of 1905 (Laws 1905, ch. 215, Gen. Stat. 1909, § 3000 et seq.) created The Kaw Valley Drainage District, vesting it with all necessary powers for the effective exercise of its arduous and important responsibilities.
Prompted by similar motives the federal government has lent its aid. Army engineers detailed for that purpose'made elaborate reports showing careful study of the local conditions, the extent of the encroachments made by riparian owners, the obstructions to the flow of the river by the wilderness of bridge piers which had studded its channel, the debris of wrecked bridges which encumbered it, and suggested that the channel be cleared and widened to a minimum of 734 feet for the first 17,000 feet above the mouth of the river. The war department established harbor lines accordingly, and The Kaw Valley Drainage District adopted the recommendations of the federal engineers and the harbor lines of the war department as the basis of its program for flood protection. The cost of clearing and widening the channel sufficiently to carry the waters of such a flood as that of 1903 would be altogether prohibitive, unless, indeed, the enormously valuable properties erected in the natural channel should be treated altogether as illegal encroachments and condemned and confiscated as such. It was determined, however, as necessary, to protect.the people and their property in the lower levels of the city from damage by even the ordinary floods which so frequently afflict that locality, that the extreme minimum channel width should be 734 feet, and that the river should be diked on that basis. To give the state’s agent, The Kaw Valley Drainage District, full dominion and free access to the river to construct these dikes and to pursue this work of flood protection and river improvement, the governor, pursuant to legislative authority (Laws 1911, ch. 168) and after provision for reimbursement of all concerned was made, appropriated a strip of land forty feet wide parallel and adjacent to. the harbor lines. With funds raised by taxation dikes were erected on both sides of the river to a height of thirty feet above low-water mark, and most of this work has been completed from the river mouth, to a point some miles west of the city. The river channel has been cleared, the bridges' and remains of bridges destroyed by the flood of 1903 have been removed, encroachments within the dikes and harbor lines have mostly been abated, and the work has béen so far successful that the flood of 1915 was controlled within the dikes and rendered comparatively harmless.
To accomplish all this has not only taken much labor and expense, but litigation as well. The government engineers had advised that bridges having more than two piers in the river would increase the flood hazard and unduly obstruct the adopted minimum width-of the channel. As. practically all the bridges about Kansas City had been destroyed by the great flood of 1903, it was possible and practicable to prescribe that no new bridges having more than two piers in the channel should be erected, and that the elevation and clearance should harmonize with the height of the drainage district’s embankments. The one lone railroad bridge which survived the flood of 1903 was an exceptionally durable and expensive one built by the Missouri Pacific railway shortly prior thereto. Immediately after the flood, another and similar bridge was speedily erected by the Union Pacific railway close to the Missouri Pacific bridge. Both of these have three piers in the river, but the harbor lines and dikes were there widened to 742 feet to make allowance for the extra piers. These bridges were constructed without authority from the war department and before the state’s plans for the protection of the city from floods had been perfected. The federal department of justice filed suits in the federal court against these railroads on the ground that they were built without the sanction of the war department, but probably because of the great cost of these structures and the hardship which it would impose on the railroads to remove them and because the channel and harbor lines had been specially widened thereat to make allowance for the extra piers, the federal court, with the consent of the war department, entered a decree ordering these bridges raised and otherwise reconstructed but permitting their three pier supports to remain in the channel. All the other new public and railroad bridges, except the one which is the subject of this lawsuit, have been erected with only two piers and elevation conforming to the regulations of The Kaw Valley Drainage District. One of the railroads, the Kansas City Southern, was at first disposed to resist the orders of the drainage district in this respect, and it was directed by this court to reconstruct its bridge to conform to the suggestions of the drainage board. (Drainage District v. Railway Co., 87 Kan. 272, 123 Pac. 991.) The railway company appealed to the supreme court of the United States, where the judgment of this court was reversed, the court of last resort declaring that the destruction of a bridge on an interstate railroad could not be ordered merely' to “help the drainage of a district.” (Kansas Southern Ry. v. Kaw Valley Dist., 233 U. S. 75.) So obvious was it, however, that the public’s interest in the matter had not been sufficiently presented to the supreme court and that the court had been led to believe that the controversy was a mere balancing of rights and conveniences between improving “the drainage of a district” and the destruction of an interstate railroad bridge, that generously waiving its judicial victory, the Kansas City Southern acquiesced in the plans of the drainage district and is at this time reconstructing its bridge in full conformity to the drainage district’s general program for the protection of the city and district against floods.
The resolution and order of The Kaw Valley Drainage Dis trict, to compel obedience to which the original jurisdiction of this court is invoked, recites in part:
“The bridge of the Missouri Pacific Railway Company, across the Kansas River, it being the first bridge above the mouth of said river, in the city of Kansas City, Kansas, in The Kaw Valley Drainage District of Wyandotte County, Kansas, generally known as the ‘Chicago Great Western Railway Bridge,’ sometimes called The Kansas City, Northwestern Railroad Bridge, is now and hereby found and declared to be constructed and maintained within the harbor lines and channel of said river, so as to cause and contribute to cause the overflow of said river. Said bridge is found and declared to be constructed in an unsafe, dangerous, and improper manner in the following respects, and by .reason thereof to contribute directly to cause the overflow of the Kansas River at all times of floods and high, water therein.
“Said bridge is composed of three main spans of the aggregate length of 610 feet, and has a through girder span at each end eighty feet in length. The main spans are supported by four concrete piers. The landward ends of the girders rest upon tubular iron piers, the east one 115 feet distance from and within the east harbor line (measured parallel with bridge). The main spans of said bridge should be 734 feet between faces of abutments, measured at right angles to the harbor lines. There should be no girder spans, and the ends of the bridge should rest upon abutments constructed adjoining and outside of the harbor lines. The pier at the west end of the bridge is 78.7 feet from the west harbor line. ' The pier at the east end of the bridge is 239 feet from the east harbor line. Said bridge should have but two piers inside the harbor lines. It now has five wholly within the harbor lines. The piers of said bridge should be constructed with the longest dimension thereof parallel to the current. The present piers are constructed at an angle of 30 degrees and 18 minutes to the current [37 degrees]. The four concrete piers of said bridge as constructed and maintained in effect reduce the lineal width of the river at said bridge 112 feet. The lineal width of the river at said place should not be reduced by piers more than 20 feet.
“The superstructure of said bridge is 337.73 feet elevation St. Louis Directrix. The lowest point of the superstructure should not be at an elevation of less than 339.42 feet St. Louis Directrix. The superstructure of said bridge is now 1.69 feet- below the height and established elevation of the levees at said bridge. '
“All the piers of said bridge withih the harbor lines should go to bed rock. The present piers should be removed to a depth of 15 feet below low water, to elevation 294.42 feet. The piers of said bridge should be approximately 217 feet from the abutments, and the center span 300 feet in length, all measured at right angles to the harbor lines. The piers should go to bed rock, or at least 25 feet below low water.
“Said bridge by reason of its length, the number, location, manner of construction and maintenance of its piers, and the elevation of its superstructure, is now and hereby found and declared to unnecessarily, ma terially and wrongfully obstruct the flow of the water in the Kansas River during high water and floods in said river.
“It is further found and declared that said bridge as constructed and maintained, by reason of the matters aforesaid, does and will in the future materially and proximately contribute to cause and cause overflows of the Kansas River throughout the Kaw Valley Drainage District, and that said bridge as now constructed and maintained is a dangerous and wrongful obstruction and nuisance in said water-course.
“It is now and hereby found and declared necessary to the protection of the public health, life and property from the overflows of the Kansas River, that the said bridge, the superstructure, abutments and piers, thereof, the piling and riprap supporting and about the piers of said bridge and its abutments, (to a depth of 15 feet below low-water elevation to 294.42 feet) be removed from within the harbor lines and the channel of the Kansas River, and said bridge and all its said parts and each of them are now and hereby and for the reasons aforesaid condemned and ordered removed therefrom.”
The answer of the principal defendant, The Missouri Pacific Railway Company, in part, alleges:
“That said bridge was constructed many years ago, if not with the actual approval of the Secretary of War, under authority of the laws of the state of Kansas under which said Kansas City Northwestern Railroad Company and its predecessor were incorporated, and' without objection of the Secretary of War, or the authorities of the Government of the United States, has been maintained and operated in its present condition; that during all said years said Secretary of War and the United States Government have acquiesced therein, and taken no steps, directly or indirectly, to require this defendant to remove the same. . . .
“Seventh. This defendant further says that there is no necessity for said action on the part of said plaintiff, and the compliance with the commands of said alternative writ would be productive of no good or benefit to the public, or any person or persons or corporations under the jurisdiction or control of said plaintiff herein; that said proceeding to require the removal of said bridge is wholly arbitrary, unnecessary and without reason, and, if the commands of said alternative writ are complied with, it will interfere with and destroy the facilities operated and used by this defendant in the discharge of its duty to the public and in the transportation of United States mails and interstate commerce. . . .
“Ninth. This defendant further says that the order made by said plaintiff, in its corporate capacity as the Kaw Valley Drainage District, was made Without any authority of law, and was an ex parte order, and this defendant, under the law creating the said Kaw Valley Drainage District, was [not] entitled to and had no notice that said order was about to be made, and had no hearing relative to the reasonableness of the same, but it was made arbitrarily and without notice, and deprived this defendant of the equal protection of the law; that the enforcement of the said order would cause this answering defendant great, and irreparable damage, without due process of law.”
The answer recites the history of the federal government’s suits against The Missouri Pacific Railway Company and The Union Pacific Railroad Company in 1905 concerning their main-line bridges located about a mile upstream; and narrates the disposition, by consent, of certain litigation then pending between the defendant and other railroads and The Kaw Valley Drainage District; and continues:
“Twelfth. This answering defendant further says that the said The Missouri Pacific Railway Company and the Union Pacific Railroad Company were granted permission by said plaintiff herein,''to each, to construct a bridge across said Kansas River at a point located approximately one mile upstream from the bridge involved in this controversy, and that said bridges so authorized by said Kaw Valley Drainage District to be constructed were built at right angles to the harbor lines as established by the United States Government and the Kaw Valley Drainage District and as constructed under said authority, were capable of passing a certain quantity of water under the same.
- “That this answering defendant’s bridge, as now constructed across said Kansas River, is at an angle of approximately 36 to 37 degrees with the axis of the channel, but the superstructure of said bridge is one and %o (1.7) feet below the top of the dike as constructed on the right bank of said river; and this answering defendant further says that it'has at all times been ready and willing and is now ready and willing to re-construct said bridge which is sought to be removed by the alternative writ of mandamus herein, in accordance with plans submitted to the plaintiff herein on or about the 29th day of September, 1913, and that if said bridge is re-constructed as proposed by said plans, a copy of which is hereto attached and made a part hereof, that greater quantities of water than can possibly flow through the Union Pacific bridge, which consists of three piers, the Missouri Pacific bridge, which consists of three piers — both of which bridges are located approximately one mile above said bridge in controversy — the James Street Bridge and the Intercity Viaduct — both of which bridges consist of two piers each and located a thousand to fifteen hundred feet upstream from the present bridge — will readily pass under said answering defendant’s bridge as proposed to be re-constructed.
“That in the re-construction of said bridge, this answering defendant is now, and has at all times been ready and willing to re-eonstruct the same in accordance with ,the plans hereto attached and made a part of this amended and substituted answer. On said plans hereto attached is shown in green the portion of the present bridge that it is proposed be permitted to remain; in red, the portion of the present bridge that it is proposed to remove, and in yellow, the new portion to be constructed to provide enlarged waterway, the raising and reconstruction to consist of the following.
“1. The entire bridge to be raised 1.7 feet to make the lowest point of the steel work as high as the top of levee and the approaches to be raised to meet the new elevation of the bridge..
“2. That portion of the present east approach between the east concrete pier and the east harbor line on the right bank of the Kaw River, consisting of a through girder span, cylinder piers, trestle approach and some rip-rap surrounding east concrete pier to be removed and the footing of the pier to be protected if necessary by steel sheeting, and all the piers of the bridge to be thereafter kept in such condition that it will not be necessary to deposit any rip-rap around them.
“3. New concrete abutment to be constructed at the east end of the approach landward of the right harbor line of the Kansas River.
“4. New steel span approximately 250 feet in length to be constructed as a clear span from the east concrete pier to the new abutment that will be constructed on the right bank of the River landward of the harbor line.
“Answering defendant further says that the Board of Directors of the said plaintiff herein arbitrarily and unreasonably and unnecessarily refuses to permit this defendant to proceed with the re-construction of said bridge on such plans and specifications, but insist in lieu thereof that the said bridge as now existing shall be removed, and that a bridge be constructed in its place having but two piers, all of which is unreasonable and unnecessary and will compel this defendant to pay out a large and unreasonable sum of money, when the construction of a two pier bridge ■will not be of any benefit whatever to the people of said Kaw Valley Drainage District.”
This action was commenced on May 3, 1913, and the taking of evidence and the collection of evidenciary documents, charts, and more or less pertinent data, began sometime afterwards. The record is interminably long and embraces many matters of minor significance. There is an unusual amount of conflict in the testimony, especially as to the relative volume of water which can pass under this bridge compared with the Missouri Pacific and Union Pacific main-line bridges and other bridges upstream. Many formulas using hypothetical coefficients to estimate the roughness of the river bed, and to approximate the probable scouring of the channel by flood waters, etc., were mathematically worked out by civil engineers and submitted.
So voluminous is the record, and so many and varied are the matters of fact and of law which are urged upon our attention, that with due regard to the compass of our opinion and the limits of time to prepare it, we will be compelled, on many phases of the controversy, simply to state our conclusions.
After much of this exhaustive and expensive evidence had been gathered, on August 19, 1915, some two years andi three months after this action was commenced the Missouri. Pacific railway was subjected to a foreclosure proceeding ira the federal court in Missouri, and a receiver was appointed for all of the properties of the defendant in Missouri, Kansás, Nebraska and elsewhere, including, of course, the bridge involved in this case. On application of the plaintiff the receiver was made a party to this action; his plea in abatement was overruled; and, saving his exception, he answered, setting up the foreclosure proceedings in the federal court and his appointment thereunder, his possession and administration of the defendant’s property under the orders of the federal court, and alleging that the bridge was an integral part of the property and devoted to interstate commerce and valued at $300,-000, and—
“That said Federal Court so appointing Benjamin. F. Bush Receiver as aforesaid has and had full and complete jurisdiction, not only of the parties to such action in which said Receiver was appointed, but of the subject matter of the same, . . . and this Court has no power, jurisdiction or authority, by mandamus or otherwise, to require said Receiver, so acting under the direction and orders of said Federal Court, and as an officer of said Court, to remove said bridge, or any part thereof; . . .
“This answering defendant, Benjamin F. Bush, Receiver, here adopts the averments and allegations of the amended and substituted answer of the Missouri Pacific Railway Company to the alternative writ of mandamus issued against it, which amended and substituted answer is on file as a part of the record in this case, and here refers to the same and the same is made a part hereof, as fully as if incorporated herein.”
The order of the federal court appointing the receiver contains the following:
“(2) That said Receiver be and is hereby authorized and directed', immediately to take possession of all and singular said railroads . . . wherever, situated or found . . . and to run, manage, maintain and operate said railroads and property, . . . and to use, manage and conduct the business of the defendant Railway Company in such manner as in his judgment will produce the best results and to this end to exercise the authority and franchises of the defendant Railway Company, and to' discharge all public duties obligatory upon it and to preserve said railroads and property in proper condition and repair, and to manage and operate said railroads and property according to the requirements of the valid laws of the various States in which the same are situated, and in the same manner that the defendant Railway Company would be bound, to do if in possession thereof.....
“(3) That said receiver be and hereby is authorized and empowered to institute and prosecute within this state or elsewhere, and in his own name as receiver, or in the name of the defendant railway company as he may be advised by counsel, all such suits as in his judgment may be necessary for the recovery or proper protection of said property or any part thereof, and the discharge of his trust, and likewise to defend, compromise or settle any arid all actions which may he instituted against him ■as receiver, and to appear in and conduct the prosecution or defense of or compromise or settle any actions, proceedings or suits now pending •or which may hereafter be brought in any court or before any officer, department, commission or tribunal in which the defendant railway company is or shall be a party, which, in the judgment of said receiver, .affect or may affect the property of which he is hereby appointed receiver; but except upon further order or direction of this court no payment shall be made by said receiver in respect of any such suits, actions or proceedings ; and no action taken by the receiver in the defense or settlement •of any such actions or suits against the defendant railway company shall have the effect of establishing any claim upon or right in the property •or funds in the possession of the receiver so as to alter or change any •existing equities or legal rights of the parties.”
The bridge whose destruction is demanded by the plaintiff is located near the confluence of the Kansas and Missouri rivers. It is indifferently known in this record as the Kansas City-Northwestern and as the Chicago-Great Western bridge. It spans the river diagonally to the current, stretching nearly north and south. It has four concrete piers in the channel .•and at each end of the main bridge structure are tubular iron .and cement piers, one of the latter standing at the northerly •end of the bridge so close to the harbor line and dike embankment that it' is of little or no consequence as an obstruction.
The other tubular pier stands about 115 feet inside the harbor line, and supports a steel truss connecting the main "bridge structure with an embankment which projects into the. stream from the southern or southeastern shore. In this em-' "bankment also is some piling designed to strengthen the grade where the bridge and embankment meet. The four main piers -of the bridge do not stand parallel with the current, but about thirty-seven degrees athwart it, and at right angles to the •direction of the bridge. The superstructure is 1.67 feet below the top of the grade established by the drainage district. From the scores of photographs, diagrams and blue prints ■submitted, a simple composite diagram of the location and situation of this bridge may assist us in this discussion:
This bridge, like the Union Pacific bridge some distance up the stream, was erected shortly after the flood of 1903 to replace one destroyed thereby. This was before the organization of The Kaw Valley Drainage District and before the state began to concern itself methodically with the regulation of bridges which should be permitted to span the-river at Kansas City. The bridge was built by a local company for the use of the Kansas City-Northwestern railway, and later the Missouri Pacific railway became the owner of it. The only interest of the Chicago-Great Western railway in this lawsuit is that of a tenant of the Missouri Pacific, and it uses the bridge under its lease. Both the defendant owner and its tenant are interstate carriers, and both use the bridge in the discharge of their corporate duties as such. The Kansas river spanned by this bridge is a navigable stream in contemplation of federal law. (2 U. S. Stat. at Large, p. 666, ch. 36, § 12; p. 747, ch. 95, § 15.) Its status under state law needs some special discussion which will follow.
The bridge was constructed without the formal sanction and approval of the war department. The plans for its construction were submitted for approval, but the war department officials declined to act, apparently on the ground that the federal government was not then actively exercising control over the Kansas river as a navigable stream; and the applicants for approval of the brige plans were told in effect to go ahead and build their bridge so far as the federal government was concerned, but formal approval and sanction of the bridge was, withheld.
Under Kansas law and Kansas history the status of theKaw as a navigable stream may be briefly stated. In territorial days, before the civil war and the coming of railroads, the-river was navigable and navigated. (Wood v. Fowler, 26 Kan. 682, 688.) A considerable commerce was developed extending-from its mouth as far west as Fort Riley and Junction City, and occasionally further west. (Vol. 9, Kansas Historical Collections, 1905-1906, p. 317.) During the civil war this commerce-greatly declined, and for many years it continued to be inconsequential, although more recently it has somewhat increased. By 1864 it was seen that an era of railroad transportation was at hand. To foster it, the legislature enacted:
“Section 1. That the Kansas, Republican, Smoky Hill, Solomon and Big Blue rivers, within the limits of the state of Kansas, are hereby-declared not navigable streams or rivers.
“Sec. 2. Any railroad or bridge company, having a-charter under any general or special law of the State of Kansas, shall have the same right to bridge or dam said rivers as they would have had if they' never-had been declared navigable streams.” (Laws 1864, ch. 97.)
This act was repealed by chapter 259 of the Laws of 1913, which, however, provided:
“Sec. 6. For the purpose of this act the bed and channel of any river in this state or bordering on this state to the middle of the main . channel thereof and all islands and sand bars lying therein shall be .considered to be the property of the State of Kansas unless this state or the United States has granted or conveyed an adverse legal or equitable interest therein since January 29, 1861, A. D., or unless there still exists a legal adverse interest therein founded upon a valid grant prior thereto; provided, that nothing in this act shall affect or impair the rights of any riparian land owner or lawful settler upon any island which is state school land.”
The plaintiff contends that the act of 1864 was unconstitutional on the ground that it contained two distinct and separate subjects. We think not. These subjects, a declaration of nonnavigability and a grant of power to bridge the rivers, were correlated, the former serving chiefly as a “whereas” or “preamble” to explain the purpose of the latter and to pave the way for it. Furthermore, this act stood during all the forty-nine years of its existence as valid legislation; rights were acquired and frequently adjudicated under its terms, and it would never do at this late date to throw a doubt around its validity. Moreover, the act of 1913, which repealed it, virtually ratified all rights acquired under the act of 1864. Aside from this act, we have much general legislation which has authorized and encouraged the construction of railroads. To the right of eminent domain, expressly conferred by statute, a grant of corporate power to build a railroad carries with it the power to do all that may be necessary and proper to build it — to level the hills, to grade the valleys, and to bridge the streams along its proposed right of way. (Gen. Stat. 1868, ch. 23, § 47, Gen. Stat. 1909, § 1763.) All this must be done, of course, with due regard to public and private interests; and streams, whether navigable or nonnavigable, must be bridged so as to permit free egress for all flood waters which may reasonably be anticipated'. Bearing in mind that such was the Kansas law when this bridge was erected, and that the state’s special agent to regulate the bridging of the Kaw at Kansas City and thereabout, the Kaw Valley Drainage District, had not then been created, it can not be said that the bridge in controversy was without legal sanction by this state, unless indeed it was constructed without due regard to public rights and was and is inherently a serious obstruction to the flow of the river and tending materially to increase the flood hazard in Kansas City. Of that we will speak later.
But the plaintiff says that this bridge is illegal because it was unauthorized by the federal government, under the federal statute (Act of March 3, 1899, 30 U. S. Stat. at Large, p. 1151, ch. 425, §§ 9, 10), which, in effect, provides that the consent of both the state and national governments is required to bridge a navigable stream located in one state. Granted. But unless the bridge as it stands offends against state law, the fact that it was built without federal sanction need not concern the plaintiff. Under our dual system of government, the state and national governments frequently do, and probably always should, cooperate for the more efficient exercise of their respective functions, but each government has its own machinery for the enforcement of its own laws, and it is not the duty and probably not within the powers of either one to enforce the laws of the other unless at the special invocation of the executive.
The mere matter of the navigability of the. Kansas river is no concern of the plaintiff, whose duties only relate to such supervision and control of it as is necessary to secure adequate protection against floods; but if the navigable capacity of the, river had always been properly preserved, the flood hazard would be materially less than it is. To that extent the matters of preserving the navigability of the river and its preservation from obstructions which increase the peril of floods coincide harmoniously.
It is also contended by the plaintiff that the statute (Laws 1905, ch., 215) which clothes The Kaw Valley Drainage District with complete and exclusive jurisdiction over the river at Kansas City makes its findings as to the necessity for thé demolition of this bridge conclusive and forecloses judicial investigation into the reasonableness of its orders. That goes too far. The plaintiff board is an administrative agency. Within its powers it is supreme. But its orders must be reasonable. And it can not be the final judge of the reasonableness of its own orders. That would be tying administrative and judicial powers in one hand, and this our own constitution will not allow. That was the constitutional rock which wrecked the court of visitation act nearly twenty years ago. (The State v. Johnson, 61 Kan. 803, 60 Pac. 1068.) Other public boards with duties almost as onerous as those of this plaintiff, like the public utilities commission, for example, exercise their powers in harmony with this principle. So do the city governments.
Concerning the powers of the public utilities commission, it has been skid:
“It will be seen from the foregoing statutes that the legislature has promulgated a comprehensive program for the regulation and control of public service corporations. The public utilities commission . .. . has power to supervise the conduct of public service corporations in this commonwealth. It may order improvements in the public service where conditions so demand. (The State v. Railway Co., 76 Kan. 467, 92 Pac. 606; affirmed in Mo. Pac. Rly. Co. v. Kansas, 216 U. S. 262; The State v. Railway Co., 81 Kan. 430, 105 Pac. 704; Railway Co. v. Railway Commissioners, 85 Kan. 229, 116 Pac. 506; The State, ex rel., v. Railroad Companies, 85 Kan. 649, 118 Pac. 872.) Likewise an unreasonable order, such as one requiring the erection and maintenance of a railway station where there was no need for a station, will be corrected oh judicial review. (Railroad Commissioners v. Railway Co., 71 Kan. 193, 80 Pac. 53.)” (The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 303, 150 Pac. 544.)
Touching the powers of city governments, the same general doctrine is recognized.
“Reasonable changes and improvements in the affairs of public utilities may be ordered at the expense of the public utility company. Thus as a municipality increases its population and business becomes congested, telephone wires may be ordered removed and located elsewhere, railroads may be required to establish new and expensive crossings, larger terminals, additional connections, etc. (The State, ex rel., v. Railroad Companies, 85 Kan. 649, 118 Pac. 872; City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161.) Of course the exercise of such powers must be reasonable, otherwise the courts will withhold or enjoin their enforcement. (Paola v. Wentz, 79 Kan. 148, 98 Pac. 775; City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1095; Telephone Co. v. Utilities Commission, 97 Kan. 136, 154 Pac. 262.)” (Water Co. v. City of Wichita, 98 Kan. 256, 259, 158 Pac. 49.)
It may therefore be said generally that when the state creates an agency to serve its public needs and confers administrative powers upon it, whatever be the language of the statutes conferring such powers, a just and reasonable exercise of such powers is intended, and the power to make or exercise unreasonable, arbitrary and confiscatory orders is not intended. Such is the spirit of our own bill of rights and of the fourteenth amendment, which have been expounded times without number by this court and by the federal supreme court.
Before examining the reasonableness of the drainage district’s order, we will turn to some of the defendant’s principal contentions and endeavor to dispose of them.
It is contended that the plaintiff is not the real party in interest and has no right to maintain this action. We hold otherwise. Whatever the state may lawfully do it may provide a public agency to do for it. And this plaintiff has been granted power to make all necessary and reasonable provision for the protection of the people against destruction of life and property by floods in the Kaw valley in and about Kansas City. (Laws 1905, ch. 215, § 7, Gen. Stat. 1909, § 3006.) It is authorized to engage in litigation and to maintain and defend actions pertaining thereto.
It is contended by defendant that the decision of the United States supreme court in Kansas Southern Ry. v. Kaw Valley Drainage Dist., 233 U. S. 75, settles this controversy. If we could be persuaded that that contention is correct, with what relief and alacrity would we lay aside this enormous record, with its endless depositions, its two thousand pages of abstract, its plethora of charts, diagrams and exhibits, its hypothetical coefficients and stupendous show of mathematical calculations touching the volume of water which can pass through the bridge; not to mention the more familiar if not less ponderous field covered by the learned briefs of counsel arrayed in this case. But did the supreme court’s decision in the Kansas City Southern case settle this controversy? We do not think so. One paragraph of the syllabus tends strongly to show that that case was presented to the supreme court on the theory that the destruction of the Kansas City Southern railway bridge, which was an essential part of an interstate railway, was sought to be justified because it would “help the drainage of a district.” Significant of this is one paragraph of the syllabus, which reads:
“A direct interference by the State with interstate commerce can not be justified by the police power; and so held that the destruction of a bridge across which an interstate railroad line necessarily passes can not be justified by the fact that it helps the drainage of a district.” (Syl. ¶ 5.)
To the same significant effect is part of the opinion, thus:
“Furthermore in the present case it is not pretended that local welfare needs the removal of the defendant’s bridges at the expense of the dominant requirements of commerce with other States, but merely that it would be helped by raising them.” (p. 79.)
We can understand a doctrine which holds that as between the respective importance of “helping the drainage of a district” and the maintenance of a bridge which is essential to a highway of interstate commerce the latter must prevail; but here we have to consider,' both in substance and in law, the relative importance of a bridge which is an integral part of an interstate highway and the ever-impending menace of that bridge to the lives and property of twenty thousand people in the bottoms of Kansas City, Kan. Can there be any doubt about the relative importance of these propositions? Nothing in the Kansas City Southern case — nothing ever said by the ■supreme court — warrants the assumption that an interference with interstate commerce could not be tolerated even to avert destruction of human life and the destruction of the homes and business institutions of the people adjacent to an avenue of such commerce. Interstate commerce was made for man, and not man for interstate commerce. The lives and homes of men are of infinitely greater concern than their rights of traffic, .state or interstate. Moreover, while congress has jurisdiction over interstate commerce, and, with certain familiar exceptions, its control of such commerce is exclusive, yet congress has expressly extended to the state a part of its regulatory power over bridges like the one in controversy. The federal statute in part reads:
“Sec. 9. That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, road-stead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: Provided, That such structures may be built under authority of the legislature of a State across rivers and •other waterways the navigable portions of which lie wholly within the limits of a single state, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced. And provided further, That when plans for any bridge or other structure have been approved by the Chief of Engineers and by the Secretary of War, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War.
“Sec. 10. That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, wier, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven,, harbor, canal, navigable river or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief, of Engineers and authorized by the Secretary of War,” etc. (Act of March 3, 1899, 30 U.S. Stat. at Large, p. 1151, ch. 425, §§ 9, 10, 6 Fed. Stat. Ann. 805, 813.)
This statute is a specific recognition by congress itself that, notwithstanding its paramount jurisdiction of the means and instrumentalities of interstate commerce, the bridging of navigable waters is likewise one of vital interest to the states, and that they also have a governmental concern as to proper bridging of such waterways. In Austin v. Tennessee, 179 U. S. 343, before the enactment of the statute quoted above, it was declared:
“We have had repeated occasion to hold, where state legislation has been attacked as violative either of the power of Congress over interstate commerce, or of the 14th Amendment to the Constitution, that, if the action of the state legislature were a bona, fide exercise of its police power, and dictated by a genuine regard for' the preservation of the public health or safety, such legislation would be respected, though it might interfere indirectly, with interstate commerce. While, as was said in Holden v. Hardy, 169 U. S. 366, 392, 42 L. Ed. 780, 791, 18 Sup. Ct. Rep. 383, ‘the police power can not be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety, or morals, or the abatement of public nuisances, and a largue discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what means are necessary for the protection of such interests.’ Thus, while in Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, it was held that a statute of yiissouri, prohibiting the driving or bringing of any Texas, Mexican, or Indian cattle into the state, was in conflict with the interstate commerce clause of the Constitution it was subsequently held that the introduction of diseased cattle might be prohibited altogether, or subjected to such regulations as the legislature chose to impose. Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613, 42 L. Ed. 878, 18 Sup Ct. Rep. 488.” (p. 349.)
The Kansas-Missouri state line comes up from the' south a short distance east of the bridge to a point in the middle of the Missouri'river opposite the mouth of the Kaw, and thence runs northerly and northwesterly up the main channel of the Missouri, in the median line of the main current thereof, to the intersection of the Kansas-Nebraska state line. (Missouri v. Kansas, 213 U. S. 78.) The mouth of the Kaw and all the navigable portions of it lie west of that boundary line and exclusively in Kansas.
Does the foreclosure suit and the appointment of a receiver by the federal court necessitate an abatement of this action? We think not. This court had jurisdiction of the parties and of the subject matter, and the litigants had incurred great expense both in the prosecution and defense of this action) long before the foreclosure suit was instituted. While the action takes the nature of mandamus, yet by the approved procedure and practice of this state the scope of mandamus has been broadened far beyond the limits of the old common-law writ of that name. It has been invoked approvingly in an action to require the building of bridges and restoration of highways which had been obstructed by the ditches of an irrigation company (The State v. Irrigation Co., 63 Kan. 394, 398, 65 Pac. 681), and this notwithstanding an entire want of statutory imposition of such duties. In mandamus, in this state, also, the rights of private citizens to funds paid under protest to a public officer have been adjudicated. (The State, ex rel., v. Akers, 92 Kan. 169, 140 Pac. 637.) It extends to cases and persons as to whom no duty is required or sought, but who may be affected by the judgment. (The State v. Dolley, 82 Kan. 533, 108 Pac. 846.) In short, the judicial policy of this state has been to conform mandamus' to the mandate of the code, which provides:
“The distinction between actions at law and suits in eqnity, and the forms of all such actions and suits heretofore existing, are abolished, and in their place there shall be hereafter but one form of action, which shall be called a civil action.” (Civ. Code, § 10.)
While the inherent differences of actions, suits and special proceedings remain, yet practically all the ancient artificialities between actions in personam, or in rem are abolished, and our proceedings in mandamus may and frequently do partake of the nature of both. (Civ. Code, § 580.)
The institution of the federal foreclosure suit did not oust the jurisdiction of this court over the defendant corporation, nor does that suit necessitate an abatement of this action. (Union Trust Company v. Cuppy, 26 Kan. 754, syl. ¶ 6; Kansas City, M. & O. Ry. Co. of Texas v. State, [Tex. Civ. App. 1913] 155 S. W. 561; High on Receivers, 4th ed., § 318; 5 Thompson, Commentaries on the Law of Corporations, §§ 6894-6896.) It is not intimated that the federal receivership is intended to wind up and conclude the corporate existence of the Missouri Pacific Railway Company. Indeed the order of the federal court plainly shows that it is intended that the corporation Shall continue to discharge its functions just as if the president and board of directors were still in.charge. The federal receiver for the time being represents the corporation. Even if this action had not been already pending at the time of the receiver’s appointment, he might be subjected as a defendant to this action. (U. S. Jud. Code, § 66; Erb v. Popritz, 59 Kan. 264, 52 Pac. 871; Railroad Commission of Alabama v. Ala. Great Sou. R. R. Co., et al., 185 Ala. 354; Grant v. Buckner, 172 U. S. 232, 238; Nashville Ry. & Light Co. v. Bunn, 168 Fed. 862.) It is proper and good practice to bring him in as a defendant in a case already pending against the corporation before his appointment. (Black v. Power Co., 158 N. Car. 468.) The order of the federal court appointing him commands him to obey all valid state laws; and the lawful orders of the plaintiff board have the potency of law. (U. S. Jud. Code, § 65; Reinhart v. Sutton, 58 Kan. 726, 51 Pac. 221; Black v. Power Co., supra.)
In Erb v. Morasch, 177 U. S. 584, it was said in the syllabus:
“It is the duty of a receiver appointed by a Federal court to take charge of a railroad, to operate it according to the laws of the State in which it is situated, and he is liable to suit in a court other than that by which he was appointed, even in a state court, for a disregard of official duty which causes injury to the party suing.” (Syl. ¶ 2. Gableman v. Peoria &o. Ry. Co., 179 U. S. 335. See, also, a note on this point in. 37 . Ann. Cas. 1248.)
Another contention of defendant is that it did not receive due consideration from the plaintiff’s board before the order for the removal of the bridge was issued, and that the members of the board made the order pursuant to preelection promises that they would not tolerate any bridge across the river having more than two piérs. The circumstances were unusual. The people had suffered terribly by floods. The likelihood of their recurrence was obvious. Doubtless the public was wrought up about the matter, and the public knew that the army engineers had recommended the adoption of a two-pier plan for all bridges at Kansas City. But the members of the board testified that if they had been convinced that a bridge of more than two piers would not have increased the flood hazard they would have voted to sanction it, although they did not deny the preelection agitation and their sympathy with it. In any matter of such general interest as flood protection in Kansas City it would be asking entirely too much of mere laymen to keep their minds open and uncommitted on such matters likely to come before them later for official consideration. Lawyers and judges trained in the art of jurisprudence, which requires a suspension of the judgment until all sides of a, controversy have been fully considered, can do this; but if such high standards of mental neutrality are absolutely essential to qualify for membership in administrative boards, the whole system of administering governmental functions by boards and commissions of laymen will fail. The remedy for such prejudgments is not wanting, however. The redress of such grievances is usually taken care of when the courts are called on to test the reasonableness of the official orders of these boards. The defendant, by its counsel, officers and engineers, was given several hearings before the plaintiff board. We can not say that the defendant had no hearing before the order of removal was made. There were discussions, conferences and negotiations. for compromise and settlement. This was sufficient. In Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, affirmed in 195 U. S. 625, it was said:
“It is contended that the procedure before the board in the. admission and rejection of evidence was violative of the rights of Meffert, in that the evidence received and acted upon was made up largely of unsupported accusations, hearsay and street rumor, and was not sufficient to sustain the findings. The provisions of the act creating the hoard plainly indicate that such investigation was not intended to be carried on in observance of the technical rules adopted by courts of law. The act provides that the hoard shall be composed of seven physicians. These men are not learned in the science of law, and to require of a boa^rd thus composed that its investigations be conducted in conformity to the technical rules of a common-law court would at once disqualify it from making any investigation.” (p. 715.)
' Coming now to the paramount question, it will be noted that the bridge is illegal so far as congress itself can denounce it. It was built without official approval of the war department, and thus in violation of federal law. The power to construct a bridge of some character has been granted by the state, but no authority has been granted to build it in such manner as to obstruct unduly the flow of the river or to increase the flood hazard and to imperil the lives and property of thousands of people. By necessary implication every grant of power to build a bridge across a Kansas stream, navigable or nonnavigable, carries with it the mandate to build it with due regard to public rights and with the inhibition to build it in any improper manner. (Union Trust Company v. Cuppy, 26 Kan. 754, syl. ¶ 3.) A grant of power by the public is never to be interpreted as a privilege to injure the public. (Kansas Bill of Rights, § 2.)
Does this so-called Chicago-Great Western bridge as it now exists do this? Neither in the answer to the writ nor in the evidence is there any serious attempt to deny it. A flood like that of 1903 would make short work of this bridge. To such a flood it would be of trifling consequence. How it outlived the floods of 1904 and 1908 does not appear. But for the interposition of this court, that additional riprapping might be used temporarily to protect the southeastern embankment, and to preserve the existing status of the bridge while the litigation was pending, and over the plaintiff’s insistent and weighty objections, the flood of last year, 1915, would have undermined and destroyed it. Driftwood, ice floes and debris do lodge against its piers,- and in the future this is likely to increase since the other bridges up the river have been reconstructed with' a view to give all such' flotage free passage downstream.
The chief defense, aside from many interesting questions of law most exhaustively presented, is that the order requiring the entire demolition of the bridge is unreasonable; that it would entail needless expense; that the sort of bridge which the plaintiff would approve would pass no more flood waters than the present bridge if the defendant were permitted to raise the superstructure, to remove the south tubular pier, to remove the south embankment and riprap inside the harbor and dike lines, and to build a new span on the southerly end of the main structure reaching to the main shore, all of which defendant avows that it is ready and at all times has been ready to do. . Both plaintiff and defendant placed on the witness stand a number of the leading civil engineers of North America, also army engineers distinguished in talents and achievements, to énlighten the court concerning the flood-carrying capacity of this bridge, and of its relative capacity to that of the Missouri Pacific and Union Pacific bridges some distance up the stream. This evidence is highly technical and amazingly voluminous, and it is only because of unavoidable responsibility that we dare to weigh and decide the facts so dogmatically affirmed and so positively denied by these eminent experts. However, by invoking our own general notions of things, we incline to hold with plaintiff’s expert witnesses that a pier set at an angle of thirty-seven degrees to the current of a stream is a much greater obstruction than one set with its narrowest end facing and its longest side parallel to it, and that in just so much as the pier set angularly exceeds the area of the end of a parallel pier, the obstruction is so much the greater. We are inclined to hold that since this bridge sits diagonally across the stream and a cross-section of flood waters would strike but one of the piers at the same time, the obstructive force of this bridge’s four concrete piers can not be reckoned by computing four times the obstructive force of one pier. But we would hesitate to adopt the theory that it is like the obstructive force of four bridges of only one pier each.- The four piers do not fall directly below each other in the current, but more in stepladder fashion, each being a material obstruction and deterrent to the stream’s general course. The evidence touching the hydraulic head developed by the bridge piers and the hypothetical estimates touching the scour line, besides being too conflicting for the court’s enlightenment, is too subtle, we think, for the adjudication of practical rights in a controversy of this sort; although it can be readily understood that every pier does, develop some hydraulic head, and that-floods do tend to deepen the scour line to some extent. We do hold, upon all the evidence, that the bridge, as maintained, tends seriously to create and increase the flood hazard at Kansas City, and that it is a constant menace to life and property thereabout whenever the Kansas river begins to approach flood stage, and critically so when the river mouth is blocked by a concurrent flood in the neighboring Missouri river. We also hold that the bridge was constructed without regard to these consequences, and in these respects it was built and has been maintained without lawful sanction by this state, and since we have seen that it never did have federal sanction of any sort, it is unlawful and a public nuisance.
We must now-consider what Ought to be done in view of this conclusion. This bridge ought not to be demolished if such a drastic remedy can be avoided. It is an integral part of an interstate highway, and its destruction would interfere with and hinder interstate commerce, although there are other but more circuitous routes in Kansas City by (which the defendant’s traffic could- move across the river. The bridge cost $172,765, and since it has only been constructed a few years it has deteriorated but little. The price of bridge materials has greatly increased, and the expense of a new structure, built according to the plaintiff’s and the war department’s new regulations for bridging the river at Kansas City, would be much greater than the cost of this bridge. Defendant’s engineer estimates the cost of reproduction at $242,700. It was erected, like the Missouri Pacific and Union Pacific main-line bridges, before The Kaw Valley Drainage District was created and its rules for bridges promulgated. A modification of the drainage board’s bridge regulations was allowed -on the Missouri Pacific and Union Pacific main-line bridges partly on that account. If possible to do so without increasing the flood hazard, similar consideration should be given in the case of this bridge. The defendant has avowed its willingness to improve the flood-carrying capacity of the bridge at an estimated outlay of $80,000. We can not determine from the record whether this will be sufficient to answer the purpose or not, because both parties have been so positive in their contentions, ■ and so diverse in their views, that the probability of such a solution has not received the attention it deserves. It seems, therefore, that no final judgment should yet be entered. We believe we have disposed of those phases of this controversy most seriously in dispute; and, as has been shown, we can not altogether adopt the views of either party. Those features of the controversy which we have undertaken to settle should now be laid aside, and the litigants should confer together, with the aid of their expert engineering advisers, and should consider the feasibility of improving and reconstructing the bridge without destroying it, to the end that its capacity for mischief in times of flood shall no longer threaten the public welfare. One feature of the case which is also worthy of further consideration by the plaintiff board is the defendant’s contention that a slight and inexpensive increase in the height of the dike in the vicinity of the bridge would counteract the hydraulic head developed by the bridge piers. We believe that if these problems are now approached in good faith by both parties, a solution will be discovered. To await that and to make any further needful interlocutory order or final judgment, jurisdiction of the cause is retained. | [
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PADDOCK, J.:
This is an interlocutory appeal by the plaintiffs from the partial summaiy judgment granted to defendants on a choice-of-law question. The trial court found the substantive law of Mexico would govern the claims in this personal injury action where the injuries occurred in Mexico although all parties were Kansas residents. We affirm.
The facts are brief and uncontroverted. Kaley Raskin and Jenna Tumbaugh, both minors, received personal injuries resulting from a collision of the water craft they occupied and a water craft operated by Chad Leathers in the ocean waters off Cabo San Lucas, Mexico.
Kaley s and Jenna’s parents filed this action individually and as next friends to their minor daughters against Ken and Karen Allison individually and as guardians ad litem for their minor son and stepson, Chad Leathers. Plaintiffs’ claims were framed on the theories of negligence and negligent entrustment.
Following its choice-of-law finding, the trial court granted plaintiffs’ application for an interlocutory appeal under K.S.A. 60-2102(b).
The question of which jurisdiction’s laws apply in a given case is a legal question over which an appellate court has unlimited review. Resolution Trust Corp. v. Atchity, 259 Kan. 584,590, 913 P.2d 162 (1996). Likewise, when the facts before the trial court are undisputed, as in this case, the ruling on the summary judgment motion may be reviewed de novo on appeal. Limestone Farms, Inc. v. Deere & Company, 29 Kan. App. 2d 609, 610, 29 P.3d 457 (2001).
Kansas follows the rule that the law of the state where the tort occurred, lex loci delicti, should apply. Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985).
Here, plaintiffs do not dispute the injuries were sustained in Mexican waters and that under the rule of lex loci delicti, Mexican law would normally control. However, plaintiffs argue the rule should not apply in this case because (1) all the parties are residents of Kansas, (2) Kansas has never invoked the rule in a case where a foreign country’s law would apply, and (3) the rule of comity requires that Kansas protect its own residents and apply Kansas law.
Kansas residents
Plaintiffs argue that because all the parties are Kansas residents, Kansas has the greater interest in applying its substantive law; therefore, the case should be governed by Kansas law.
However, the Kansas Supreme Court has repeatedly applied the law of the place of the injury, even when all the parties were residents of Kansas. In each of those cases, the law of the place of injury was less favorable to the plaintiffs than Kansas law.
For example, in Kokenge v. Holthaus, 165 Kan. 300, 194 P.2d 482 (1948), Kansas residents were traveling together in Iowa when an automobile accident occurred. The Kansas passenger sued the Kansas driver in a Kansas court. The Supreme Court held that because the accident happened in Iowa and the injuries were sustained there, the Iowa guest statute applied. 165 Kan. at 307. Under that Iowa statute, the passenger was required to show reckless operation of the vehicle by the driver in order to recover. 165 Kan. at 307.
In McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965), all the parties were Kansas residents. The plaintiffs’ decedent was killed in an accident in Missouri while traveling with the defendant. The Supreme Court rejected the plaintiffs’ arguments that when all the parties are from Kansas, lex loci delicti should be rejected and Kansas law should control. 194 Kan. at 626.
Because the Kansas Supreme Court has consistently applied the rule of lex loci delicti in tort cases, even when all parties are Kansas residents, plaintiffs’ first argument fails.
Application to foreign countries
Plaintiffs also contend that because Kansas courts have never applied the lex loci delicti rule to apply the law of a foreign country, the rule should be rejected in this case. Plaintiffs are correct in asserting that neither of the Kansas appellate courts have applied the law of a foreign country in a tort case. This court, however, recently applied Canadian law in a contract case where the contract was made in Canada by applying the rule of lex loci contractus. See Layne Christiansen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 38 P.3d 757 (2002).
Plaintiffs have not cited compelling authority that the rule of lex loci delicti does not apply in cases involving foreign countries. Kansas follows traditional choice of law principles largely reflected in the original Restatement of Conflict of Laws (1934). See Aselco, Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 852, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001). We have no hesitation in finding that the lex loci delicti rule would apply in tort cases notwithstanding the injuries were incurred in a foreign country.
Comity v. Lex Loci Delicti
Finally, plaintiffs challenge the lex loci delicti rule by arguing principles of comity mitigate against applying Mexican law. Plaintiffs are wide of the mark by trying to distinguish comity principles from choice-of-law principles. Choice-of-law principles, essentially, are rules defining when a court will extend comity to the laws of another state. Both principles are inextricably joined.
Plaintiffs rely on Head v. Platte County, Mo., 242 Kan. 442, 749 P.2d 6 (1988), to support their comity argument. In Head, the plaintiff had been arrested by Kansas authorities on a Missouri warrant and confined in jail. After it was determined that Head was not the actual person wanted, Head sued Platte County for false arrest and negligence. Platte County claimed Missouri’s sovereign imminent law applied to shield it from liability. In refusing to apply Missouri law, our Supreme Court noted: “[I]t has long been the public policy of Kansas to compensate its citizens and those within its borders for injuries occurring in Kansas which result from negligent acts outside of this state.” (Emphasis added.) 242 Kan. at 447. The Head case provides no support for the plaintiffs’ arguments in this case. Clearly, under the lex loci delicti rule, Kansas law would apply since Head was arrested in Kansas.
Other cases cited in plaintiffs’ brief are less than compelling and are not relevant to the issue before the court.
While the court is not required to apply Mexico’s law under principles of comity, the lex loci delicti rule is well established under Kansas law and there is no indication that Kansas intends to abandon the rule. For example, the Supreme Court rejected the analytical approach which allows the forum court to apply the law of the jurisdiction most intimately concerned with the outcome of the particular htigation. Ling v. Jan’s Liquors, 237 Kan. at 634.
Public policy exception
Actually, the thread that weaves through all of the plaintiffs’ arguments is that damage limitations purportedly contained in Mexico’s law are contrary to Kansas public policy and should not be enforced by Kansas courts. Plaintiffs seem to argue that public policy is defined by Kansas legislative enactments and since the Kansas Legislature had not enacted statutes with damage limitations similar to those in Mexico, Mexican laws are therefore contrary to Kansas public policy. Plaintiffs cite no authority establishing what damage limitations exist in Mexico. However, a recent case cited by defendants appeared to support the conclusion that Mexico recognizes that contributory negligence is a complete defense in a tort claim. Spinozzi v. ITT Sheraton Corp. 174 F.3d 842, 844 (7th Cir. 1999). Also, Mexican law apparently limits recovery of damages in tort cases to the amount of the injured party’s medical and rehabilitative expense and lost wages at the minimum wage rate. See Hernandez v. Burger, 102 Cal. App. 3d 795, 799, 162 Cal. Rptr. 564 (1980) (citing Civ. Code of the State of Baja California [Norte], art. 1793; Ley Federal del Trabajo, arts. 487, 491, and 495). Plaintiffs assert these damage limitations in their brief.
Kansas cases consistently hold that a Kansas court will not apply the law of another state to a claim if that other state’s law is contrary to Kansas public policy. See Safeco Ins. Co. of America v. Allen, 262 Kan. 811, 822, 941 P.2d 1365 (1997) (using lex loci contractus rule); In re Estate of Troemper, 160 Kan. 464, 469, 163 P.2d 379 (1945) (choice of law issue in probate case involving effect of divorce in Nebraska).
In Brenner v. Oppenheimer & Co., Inc., 273 Kan. 525, 44 P.3d 364 (2002), the Supreme Court invalidated a contractual choice-of law provision finding that its reference to New York law was contrary to “strong public policy” in Kansas and would not be enforced. In its discussion, the Supreme Court held that a “strong public policy” is one “ ‘ “ 'so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.’ ” ’ [Citation omitted.]” 273 Kan. at 543. The Brenner court found a strong public policy in the fact that the incorporation of New York law into the contract between a Kansas resident and a securities broker evaded Kansas’ securities law prohibiting the sale of unregistered securities. 273 Kan. at 540-49.
The only other Kansas cases refusing to apply the law of other states as required by traditional choice-of-law rules are Dale v. Railroad Co., 57 Kan. 601, 47 Pac. 521 (1897) (refusing to apply New Mexico’s penal statute); Barbour v. Campbell, 101 Kan. 616, 168 Pac. 879 (1917) (dismissing case seeking to enforce Idaho contract which violated Kansas’ statute of frauds); Peters v. Peters, 177 Kan. 100, 106-07, 276 P.2d 302 (1954) (finding second wife was not a “legal widow” of decedent under Kansas law because remarriage occurred less than 6 months after Kansas divorce); and Westerman v. Westerman, 121 Kan. 501, 247 Pac. 863 (1926) (finding Missouri marriage contrary to Kansas public policy because marriage occurred less than 6 months after Kansas divorce).
None of these cases appear to set forth a public policy exception as broad as plaintiffs are arguing here. Kansas appears to be following the prevailing view that the public policy exception in conflict of law theory should be narrowly limited. See 16 Am. Jur. 2d, Conflict of Laws § 25; see also Pool v. Day, 141 Kan. 195, 200, 40 P.2d 396 (1935) (Oklahoma common-law liability rules not a violation of Kansas public policy despite Kansas’ guest statute requiring proof of gross and wanton conduct by the driver). As previously noted, the plaintiffs here appear to contend that if the law of another jurisdiction is different than Kansas law, it is contrary to Kansas public policy.
The Kansas Supreme Court has repeatedly upheld the application of the law of other states in tort cases even when those laws impose a higher burden of proof on plaintiffs before they can recover damages. See, e.g., Kokenge v. Holthaus, 165 Kan. at 307 (applying Iowa guest statute which required a showing of reckless operation of the vehicle by the driver in order to recover); Koster v. Matson, 139 Kan. 124, 126-27, 30 P.2d 107 (1934) (Nebraska guest statute requiring gross negligence or intoxication applied in case between Kansas residents). The Supreme Court has even upheld the application of another state’s wrongful death statute even though that statute excluded some types of damages allowed under Kansas law. See McDaniel v. Sinn, 194 Kan. at 625-26.
Thus, Kansas cases indicate the “public policy” exception in the choice-of-law context is limited and generally not triggered because of limitations on damages or higher burdens of proof.
Finally, plaintiffs cannot seriously contend that the application of Mexican law is unfair when they voluntarily vacationed there. As the Tenth Circuit once stated:
“It is a firmly established principle of American jurisprudence that the laws of one state have no extra-territorial effect in another state. The forum state will give effect to foreign law as long as the foreign law is not repugnant to the moral sense of the community. The mere fact that the law of the foreign state differs from the law of the state in which recognition is sought is not enough to malee the foreign law inapplicable. . . . Indeed, this Court is reminded of the oft-paraphrased advice of St. Ambrose, Catholic bishop of Milan in die fourth centuiy, to St. Augustine. ‘When you are at Rome, live in the Roman style; when you are elsewhere, live as they do elsewhere.’ ” Brennan v. University of Kansas, 451 F.2d 1287, 1289-90 (10th Cir. 1971).
The record before the court fails to establish a sound basis to refuse to apply Mexican law in this case based on the public policy exception. The limitations on damages allegedly contained in Mexican law do not appear to violate a “strong public policy” as defined by prior Kansas Supreme Court decisions.
The trial court correctly determined that the substantive law of Mexico would govern the claims in this personal injury action.
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Lewis, J.:
This is one of those most unfortunate cases involving visitation conflicts between the mother of a minor child and the grandmother of that child. The grandmother filed a motion for visitation rights, and that motion was granted. The natural mother of A.P., the minor child, appealed the trial court’s order.
Casey P., A.P.’s natural mother, was 15 years old when the child was bom. After A.P. was bom, die Kansas Department of Social and Rehabilitation Services (SRS) filed a petition on behalf of Casey for a declaration of paternity and an order of support for A.P. After the hearing, Johney Strotkamp was found to be the natural father of A.P. and was ordered to pay child support.
A.P. lived with Casey s mother, Donita, in Burns on and off since he was born. The only time he was not with her was when he was with Geneva Stacy, Casey’s guardian, and Casey in Hillsboro.
Susan Strotkamp is the paternal grandmother of A.P. She was not told about A.P.’s birth until he was approximately 2 months old and was not allowed to see him until he was 7 or 8 months old. Susan’s relationship with A.P. began when Donita wrote her a letter asking her to come and see A.P. She did so and provided diapers, formula, and other baby supplies for A.P. They developed a routine where Susan would pick up A.P. at Donita’s house eveiy other weekend when Casey was not home from foster care because it was Susan’s belief that Casey needed to spend time with A.P. Susan would pick up A.P. after work on Friday nights and keep him until Sunday afternoons. She took him to the zoo, movies, camping, and fishing, and to get his first haircut. Susan had A.P. in her home on 20 to 30 occasions, and most of the visitations were overnight.
Ultimately, Casey was moved to a foster home in Salina where she was allowed to come home once a month. Susan provided transportation for Casey to come home and see A.P. in Bums at Donita’s house. In fact, on a few occasions, Susan drove Casey from her foster care and stayed at Donita’s home with A.P. and Casey for a few hours. The arrangement worked well until Februaiy 2001, when Susan found out that Casey was not staying with A.P. after Susan dropped her off. Instead, Casey left with a boy whom she was dating. Because Susan believed that Casey should be spending time with A.P., she stopped providing transportation..She had visitation with A.P. a couple of times after this event but was told by Donita that Casey did not want her to see A.P. and she could not pick up A.P. anymore.
In response, Susan filed a motion for grandmother’s visitation with A.P. At the hearing, Casey testified she stopped the visitation because A.P. woke up in the middle of the night screaming after having overnight visits with Susan. Donita did not mention anything about A.P.’s screaming at night but conceded that Casey had told her about it. Casey was willing to allow Susan to see A.P. once a month for a couple of hours, supervised. At this point in time, Casey remained in SRS custody because of truancy; she had just failed her GED test which was required in order to be released from SRS custody.
In addition, Johney was charged with the rape of Susan’s 14-year-old adopted daughter at about the time the grandparent visitation motion was to be heard. When this incident occurred, Johney remained on probation for the crime of indecent liberties against Casey. At the conclusion of the hearing, the trial court noted that neither Casey nor Johney were unfit. However, he did note that Casey was 16 years old and in SRS custody. He further noted that Johney was either 18 or 19, was in the custody of the Sheriff, and was awaiting trial on serious felony charges which would probably result in his incarceration for some period of time if he was convicted. The court found there was a substantial relationship that existed between Susan and A.P. and it would be in the best interests of the child to continue to have the relationship and stated:
“I can’t honestly find at this point in time, that a substantial relationship exists currently. It would appear that it existed for a while. It was allowed to lapse, but with the child two years of age, it should not be at all difficult to reestablish a relationship.”
The trial court then awarded Susan visitation with A.P. every other Saturday from 9 a.m. to 5 p.m. Casey filed this appeal.
K.S.A. 38-129 provides:
“(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights would be in the child’s best interests and when a substantial relationship between the child and the grandparent has been eslablished.” (Emphasis added.)
On appeal, Casey points out that the trial court found no current substantial relationship between Susan and A.P. and, therefore, had no right to award Susan visitation rights with A.P. This requires that we interpret the statute in question, and we have unlimited review. Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 654, 16 P.3d 962 (2001).
In Kansas, grandparent visitation cannot be granted under the statute unless it is established that a substantial relationship has been established between the grandparent and the child and that visitation is in the best interests of the child. Paillet, 270 Kan. at 653. The statute does not, however, require any timing factor in the relationship such as that it be current, existing, or continuous. In Paillet, the court stated:
“The provisions of K.S.A. 38-129(a) are clear and unambiguous and do not provide for an exception to the requirement of finding the existence of a substantial relationship between the grandparents and grandchild. Clearly, the legislature, if it wanted to, could have included such an exception, but it did not do so. It is for the legislature and not the courts to ’draft’ an exception to the statute.” 270 Kan. at 654.
In line with the language in Paillet, we conclude that if the legislature had intended to require an existence of the substantial relationship at the time of or within a certain time frame from the hearing or filing of a motion for visitation, it could have included such language. It did not.
A comparison of our statute with others in the United States is not helpful. Our statute is, by and large, different in language and in intent than others.
We note that the trial court found there was a substantial relationship between Susan and A.P. The court went on to state there was no current relationship at that time but that it had existed in the past and should not be difficult to reestablish. We hold that this finding satisfies the requirement of the statute insofar as finding a substantial relationship has been established. There is no requirement in the statute that die relationship must exist at the time of the hearing or for any length of time whatsoever. We do not believe that the court should read the statute to create additional requirements where none exist. We hold that a finding a substantial relationship has existed between the grandparent and the grandchild in the past is sufficient to satisfy the statutory requirements.
Casey next argues there was insufficient evidence to support the trial court’s finding that Susan’s visitation was in the best interests of A.P.
When a challenge is made on the sufficiency of the evidence to support the trial court’s finding regarding the best interests of the child, the appellate court reviews the evidence in a light most favorable to the prevailing party below to determine if substantial evidence exists to support the finding. Paillet, 270 Kan. at 653.
As we pointed out earlier, two factors are required to be found by the court in order to award grandparent visitation. One of those factors is the establishment of a substantial relationship between a grandparent and the grandchild, and the other factor is what is in the best interests of the child. We have examined the record in this case rather carefully, and we find that the evidence is sufficient to support the trial court’s findings in both instances, and the trial court did not err in awarding Susan visitation rights with A.P.
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Marquardt, J.:
Linda Jane Wiseman appeals the trial court’s grant of summary judgment for Unified School District No. 348 (U.S.D. No. 348), holding that Wiseman was a statutory employee under the Workers Compensation Act (Act) and barred from bringing a tort action against U.S.D. No. 348. We affirm.
Wiseman was a special education teacher for the East Central Kansas Cooperative in Education (Cooperative) located in Baldwin City. The Cooperative, U.S.D. No. 348, and two other school districts in the area had an interlocal agreement which provided that the Cooperative was to “provide, through a cooperative effort, educational services in those areas of special education that are mandated by both federal and state legislation.”
On December 1, 1998, Wiseman was loading special education students into the school district’s automobile when a school bus backed into the automobile. Wiseman was knocked down on the pavement, which caused injuries to her back.
Wiseman brought a negligence action against U.S.D. No. 348. U.S.D. No. 348 moved for summary judgment, arguing that Wise-man was a statutory employee and the Act was her exclusive remedy.
Wiseman timely appeals the trial court’s grant of summary judgment to U.S.D. No. 348.
“The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that diere is no genuine issue as to any material fact and that die moving party is entíded to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply die same rules, and where we find reasonable minds could differ as to the conclusions drawn from die evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
Wiseman argues that she was performing “abnormal work” at the time of her injury; therefore, she was not a statutory employee within the meaning of the Act.
Under the exclusive remedy provision of the Act, if an employee can recover workers compensation for an injury, he or she is barred from bringing a negligence suit for damages against an employer or coemployee. K.S.A. 44-501(b); Scott v. Wolf Creek Nuclear Operating Corp., 23 Kan. App. 2d 156, 158, 928 P.2d 109 (1996).
Wiseman relies on Bright v. Cargill, Inc., 251 Kan. 387, 837 P.2d 348 (1992), where an employee of Southwest and Associates (Southwest), specializing in metal fabrication, was working in a grain elevator owned by Cargill. Bright was severely injured by an accident negligently caused by Nanny, who was an employee of LSI, a temporary employment agency that had assigned Nanny to work at Cargill. Bright brought a negligence action against Cargill, LSI, and others. Cargill filed a motion for summary judgment, asserting that it was Bright’s K.S.A. 44-503 statutory employer and, consequently, Bright’s exclusive remedy was under the Act. The trial court granted Cargill’s motion for summary judgment, reasoning that Bright and Southwest were engaged in something that was necessarily inherent in and an integral part of Cargill’s trade or business; therefore, Bright was Cargill’s statutory employee. Bright, 251 Kan. at 391-92.
The Bright court stated that the test to determine whether the work which gave rise to the worker’s injury was a part of the principal’s trade or business under K.S.A. 44-503(a) was the test taken from Hanna v. CRA, Inc., 196 Kan. 156, 159-60, 409 P.2d 786 (1966), which is as follows: (1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? and (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative, the work being done is part of the principal’s “trade or business,” and the injured employee’s sole remedy against the principal is under the Act. 251 Kan. at 393-94.
After applying the Hanna test, the Bright court held that Cargill had not shown as a matter of law that the work being performed by Bright and Southwest was inherent in and an integral part of Cargill’s trade or business. 251 Kan. at 399.
Here, Wiseman argues that she clearly established the following facts: She was employed by the Cooperative teaching preschool children with learning disabilities, physical handicaps, and behavior problems; she conducted her own teaching methods and curriculum for the children under the supervision of the Cooperative; U.S.D. No. 348 personnel were not trained and did not engage in such activities; and neither the bus driver nor the automobile driver was her coemployee.
The undisputed evidence showed the following: Wiseman was an employee of the Cooperative, which had a contract with U.S.D. No. 348 to provide special education; U.S.D. No. 348 was responsible for the transportation of the children to the attendance center; and Wiseman was injured while loading her students into the school vehicle on school property. Providing special education for preschool children is an inherent and integral part of the business of U.S.D. No. 348. Helping children get into the district vehicle, which was driven by the school district driver, was not “abnormal work,” contrary to Wiseman’s argument.
The work performed by Wiseman was inherent and integral to the trade and business of U.S.D. No. 348. Based on the Hanna test, Wiseman’s sole remedy against U.S.D. No. 348 was under the Act. This case is factually distinguishable from Bright. The trial court did not err in granting summary judgment for U.S.D. No. 348.
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Marquardt, J.:
Todd Howarth appeals the trial court’s denial of his motion for: (1) an order to enforce the settlement agreement; (2) an order to allow his attorneys, Ron D. Beal and Robert Wiechman, to intervene; and (3) a judgment declaring that Howarth and his attorneys possess no obligation of confidentiality under the terms of a settlemént agreement with Oklahoma City Professional Hockey, Inc. (OCPH) and its insurer, United States Fidelity & Guaranty Company (USF&G) (defendants). We affirm.
Howarth filed a lawsuit against Simon Olivier, OCPH, USF&G, and Gulf Insurance Company to recover damages for injuries he sustained in a hockey game as a player of Wichita Hockey, Inc. On October 21, 2000, Howarth entered into a written settlement agreement with defendants. The agreement read, in pertinent part, as follows:
“1. OCPH and USF&G jointly agree to pay Howarth, and Howarth agrees to accept payment of, the total sum of [amount omitted] by certified check made payable jointly to Todd Howarth and Robert (Rocky) D. Wiechman, Jr., or by wire transfer to the trust account of Mr. Wiechman. Delivery of the certified check shall be made to Mr. Wiechman at 330 N. Main, Wichita, Kansas. Delivery of the certified check or wire transfer funds shall be due, and shall be completed on or before, 5:00 p.m. on November 20, 2000. Time is of the essence.
“6. Subject to receiving payment in the amount, in the manner and by the time specified in paragraph 1, above, Howarth and his attorneys, Robert (Rocky) D. Wiechman, Jr. (“Wiechman”) and Ron D. Beal (“Beal”), agree not to divulge, and to keep confidential, the amount payable under the terms of this setdement agreement."
Through the use of a fax machine, all parties signed the settlement agreement on October 21, 2000. On October 24, 2000, Howarth signed three original settlement agreements and hand delivered them to defendants’ attorney for defendants’ signatures. On November 20, 2000, defendants returned the agreement for Wiechman’s and Beal’s signatures. Wiechman and Beal signed all three original settlement agreements and sent two of them to defendants the following day.
On November 20, 2000, defendants presented a certified check to Howarth which represented a partial payment of the settlement amount. On November 22,2000, the balance of the settlement was transferred to Wiechman’s trust account.
Howarth filed a motion for declaratory judgment with Beal and Wiechman as proposed intervenors, claiming that they were not bound to maintain confidentiality of the settlement due to defendants’ failure to pay the settlement pursuant to the agreement.
Defendants’ attorney, Mary T. Mahcoat, alleged that on November 14, 2000, she attempted to give Howarth an uncertified check which represented USF&G’s portion of the settlement; however, Beal refused to accept an uncertified check. Mahcoat also claimed that USF&G would have wired the funds to Wiechman’s trust account on November 20, 2000, but a USF&G representative informed her on that day that it needed a copy of the settlement agreement signed by all parties faxed to USF&G for authorization purposes. However, Beal refused to sign a faxed copy of the agreement; he insisted on signing only the original agreement.
At the motion hearing, Beal admitted that he refused to accept the uncertified check and did not sign a faxed copy of the settlement agreement as Mahcoat had requested. The trial court denied Howarth’s motion, finding that no justification existed for refusing USF&G’s attempts to pay the settlement proceeds. The trial court held that defendants substantially comphed with the terms of the agreement.
Howarth filed a motion to alter or amend the judgment, arguing that the doctrine of substantial performance does not apply to an express condition in the settlement agreement. Alternatively, Howarth contended that the determination of whether substantial performance exists is a question of fact which requires a trial. Following a hearing, the trial court denied the motion. The trial court found no material facts in dispute and dismissed Howarth’s claims against defendants with prejudice. Howarth appeals.
Howarth claims that he and his attorneys owe no duty to keep the settlement agreement confidential. He contends that the doctrine of substantial performance does not apply to a condition precedent, particularly where time is of the essence.
Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. The interpretation and legal effect of written agreements are matters of law, and an appellate court exercises unlimited review. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998).
Contracting parties may agree to terms in a contract and impose conditions so long as the conditions are not illegal or contrary to public policy. See Wills v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903 (1976); Barbara Oil Co. v. Patrick Petroleum Co., 1 Kan. App. 2d 437, Syl. ¶ 1, 566 P.2d 389, rev. denied 222 Kan. 749 (1977).
“ A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. A condition precedent requires the performance of some act or the happening of some event after the terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect. [Citations omitted.]’ ” Barbara Oil, 1 Kan. App. 2d at 439-40.
Under the written agreement in the present case, Howarth claims that his promise to keep the settlement amount confidential was subject to the defendants’ payment by a specific time and date and in a specified manner. R is undisputed that the full payment was not made on the date specified in the agreement.
The rule of “substantial performance” is recognized and applied in the field of contract law. Almena State Bank v. Enfield, 24 Kan. App. 2d 834, 838, 954 P.2d 724 (1998). Substantial performance is shown when the following circumstances are established by the evidence: (1) The party made an honest endeavor in good faith to perform its part of the contract; (2) the results of the endeavor are beneficial to the other party; and (3) such benefits are retained by the other party. Substantial performance is a relative term, and whether it exists is a question to be determined in each case with reference to the existing facts and circumstances. 24 Kan. App. 2d at 839.
Howarth argues that the trial court denied him due process by ruling on the issue of substantial performance without a hearing. Howarth raised this issue with the trial court in his motion and extensive brief in support of his argument. Howarth had due process; this issue has no merit.
The trial court stated: “Defendant USF&G on two separate occasions attempted to comply with the Settlement Agreement, with no appropriate justification from plaintiff s counsel for refusing the attempts.”
American Jurisprudence discusses substantial performance in contracts:
“[T]he law looks to the spirit of a contract and not the letter of it ... . Where one party to a contract has received and retained the benefits of a substantial partial performance of the agreement by the other party who has not fully performed all his contractual promises, the first party cannot retain the benefits and repudiate the burdens of the contract, but he is bound to perform his part of the agreement, and his remedy for tire breach is limited to compensation in damages.” 17A Am. Jur. 2d, Contracts § 631, p. 640-41.
Under the doctrine of substantial performance, the parties are presumed to have impliedly agreed to do what was reasonable, under all the circumstances, with reference to the matter of performance. 17A Am. Jur. 2d, Contracts § 632, p. 642.
Here, defendants argue that they attempted to pay Howarth by the November 20,2000, deadline but Howarth hindered their ability to complete the wire transfer on November 20, 2000. Defendants allege that Howarth is responsible for the confusion and mistakes in obtaining all of the required signatures on the settlement agreement and providing the information so USF&G could effectuate payment.
Howarth admits that he refused the uncertified check and also refused to send a faxed signature to USF&G. We find that defendants acted reasonably in attempting to make a timely payment of the settlement amount. If Howarth had not frustrated timely performance by defendants, this issue could not have been raised. Howarth created the problem and now asks this court to reward him for his unreasonable behavior.
A party who demands compliance with a condition precedent cannot hinder, delay, or prevent its happening for the purpose of avoiding performance of the contract. Wallerius v. Hare, 194 Kan. 408, 412, 399 P.2d 543 (1965). A refusal to perform must be genuine and grounded in good faith. See Barbara Oil, 1 Kan. App. 2d at 440. Here, the trial court did not err in its ruling, and Howarth and his attorneys are not excused from the confidentiality provision of the settlement agreement.
Defendants do not concede that the trial court erred in overruling HowartlTs motion for declaratory judgment; however, they argue that the trial court’s ruling should be affirmed based on principles of equity rather than the doctrine of substantial performance. Defendants contend that their late payment of the settlement to Howarth should be excused on the grounds of forfeiture, waiver, or prevention because Howarth retained the proceeds.
We agree that Howarth prevented defendants’ performance. If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. See Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999).
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Knudson, J.:
Western Resources, Inc. (WRI) and Kansas Gas and Electric Company (KGE) filed this joint petition for judicial review from a final order of the Kansas Corporation Commission (KCC) in an electric rate proceeding instituted by the utilities.
Jurisdiction is conferred upon this court under K.S.A. 2001 Supp. 66-118a(b) and in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. In a separate but related appeal, KIC also filed a petition for judicial review from the KCC’s order. See Kansas Industrial Consumers v. Kansas Corporation Comm’n, 30 Kan. App. 2d 332, 42 P.3d 110 (2002).
On appeal, WRI and KGE contend the KCC erroneously interpreted or applied the law, the KCC’s order was not supported by substantial competent evidence, and its decision was otherwise unreasonable, arbitrary, or capricious. We conclude the KCC acted within its authority, and there exists substantial competent evidence to support its findings and decisions to achieve just and reasonable utility rates.
The KCC Proceedings
In November 2000, WRI filed an application with the KCC seeking an approximate $92,000,000 rate increase for its electric service division. On the same date, KGE, a wholly owned subsidiary of WRI, also filed an application with the KCC for a rate increase of almost $58,000,000. Both applications were consolidated into the same agency docket, 01-WSRE-436-RTS.
Various parties intervened in the proceedings before the KCC. The intervenors included Citizens’ Utility Ratepayers Board (CURB), Kansas Industrial Consumers (KIC), City of Wichita, City of Topeka, Unified School District No. 259 (U.S.D. 259), Midwest Energy, Inc., Empire District Electric Company (Empire), Kansas Municipal Energy Agency, The Goodyear Tire & Rubber Company (Goodyear), ONEOK, Inc. d/b/a Kansas Gas Service Company, and Southcentral Municipal Energy Agency.
The KCC held evidentiary hearings on the applications from May 17, 2001, through June 4, 2001. Subsequently, all parties had the opportunity to file post-hearing trial briefs and reply briefs.
On July 25, 2001, the KCC issued a decision on the rate applications. Its order dealt with a wide variety of issues pertaining to the revenue requirements of WRI and KGE. The KCC ordered a decrease of KGE’s revenue requirement by over $41,000,000 and increased WRI’s revenue requirement by $18,470,583. Timely petitions for reconsideration attacking various portions of the initial order were filed by KIC, the KCC Staff, WRI and KGE, and the City of Wichita.
On September 5, 2001, the KCC issued its order on reconsideration. In this order, the KCC made various adjustments with respect to certain issues and clarified other points. The end result was a determination that WRI had an increased revenue requirement of $25,401,336 and KGE had a decrease in its revenue requirement of $41,062,598.
Timely petitions for reconsideration were filed from the order on reconsideration by KIC, WRÍ and KGE, and Goodyear. The petitions for reconsideration were denied in the KCC’s final order of October 11, 2001. WRI and KGE filed this joint petition for judicial review.
Standard of Review
Pursuant to K.S.A. 66-118c, this court reviews an order of the KCC under the KJRA. In their brief, WRI and KGE contend the KCC erroneously interpreted or applied the law, the KCC’s order was not supported by substantial evidence, and the KCC’s decision was otherwise unreasonable, arbitrary, or capricious. Those claims of error are consistent with the jurisdictional grant of the KJRA. See K.S.A. 77-621.
On appeal, the KCC’s findings are presumed valid, and its order may only be set aside if it is not supported by substantial competent evidence, is without foundation in fact, or is otherwise unreasonable, arbitrary, or capricious. Williams Natural Gas Co. v. Kansas Corporation Comm’n, 22 Kan. App. 2d 326, 334-35, 916 P.2d 52, rev. denied 260 Kan. 1002 (1996).
The legislature has vested the KCC with broad discretion in weighing the competing interests involved in setting public utility rates. Because discretion is delegated to the KCC, the courts do not have authority to substitute their judgment for that of the KCC. The courts also have recognized that the KCC’s decisions involve complex problems of policy, accounting, economics, and other special knowledge to achieve just and reasonable utility rates. Consequently, a court may not set aside a KCC order merely because the court would have arrived at a different conclusion had it been the trier of fact. The court may reverse or nullify a KCC order only when the decision “ ‘ “is so wide of the mark as to be outside the realm of fair debate.” ’ ” Williams Natural Gas Co., 22 Kan. App. 2d at 335 (quoting Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 497, 720 P.2d 1063 [1986]).
Imputation of Off-System Sales Revenues
WRI and KGE first challenge the KCC’s decision to impute revenues to the companies for additional off-system wholesale sales of electricity as a result of new generation facilities brought on line during or shortly after the test year. WRI and KGE contend the revenues attributed to those facilities were speculative and contraiy to the record. WRI and KGE also contend the KCC’s decision was not based upon substantial competent evidence and post-hearing evidence proffered by the applicants was improperly rejected.
The test year adopted by the KCC ended on September 30, 2000. In their applications, WRI and KGE requested that the KCC include in their rate base costs relating to new generation facilities incurred outside of the test year. The new facilities included three combustion turbine peaking units at the Gordon Evans site and a Purchase Power Agreement (PPA) under which WRI could purchase 200 megawatts of capacity from Westar Generating, Inc.’s State Line facility; Westar is a wholly owned subsidiary of WRI. These new facilities created about 514 megawatts of new capacity for WRI retail customers. Two of the three Gordon Evans units went into service during the test year; the third unit went into service in June 2001. Westar’s State Line plant went into commercial service in June 2001. The KCC determined the increased capacity for WRI was a necessary and prudent investment and included the costs in WRI’s rate base.
The above adjustment to rate base required the KCC to also consider whether the additional generation capacity would likely increase retail and off-system wholesale sales. The KCC agreed with WRI and KGE that the increase in retail customers was not sufficiently quantified. Next, the KCC noted the steady increase of wholesale sales in recent years and the marketing projections made by WRI and KGE to tire financial analysts on Wall Street. Ultimately, the KCC added an additional $19,191,165 in revenue from off-system sales. The KCC’s determination was based upon evidence that there would be 28,000 megawatt hours (MWh) available for off-system sales at $750 per MWh.
WRI and KGE challenged this adjustment in their petition for reconsideration. In their petition, WRI and KGE asked the KCC to consider additional evidence in the form of an affidavit with calculations from a WRI manager, Shane Mathis. In its subsequent order, the KCC declined to accept Mathis’ affidavit, noting WRI and KGE had the opportunity to provide the information in a timely fashion as prefiled rebuttal evidence or during the hearing. The KCC also found that the determination there would be additional off-system sales was not speculative. However, the KCC did agree, “based on its familiarity with market conditions,” the $750 per MWh was too high and reduced the adjustment to $12,794,600 based on a price of $500 per MWh. WRI and KGE filed a timely petition for reconsideration from this order that was denied by the KCC.
The KCC is to determine tire reasonable value of property owned by a public utility which is used and required in its public operations. K.S.A. 2001 Supp. 66-128(a). Generally, property which has not been completed and dedicated to commercial service is not considered used and useful; however, the KCC has discretion to include the cost of uncompleted property in several circumstances. K.S.A. 2001 Supp. 66-128(b)(2). Moreover, we have previously recognized the KCC has discretion to include in rate calculations any costs and revenues not part of the test year if the changes are known and measurable. Gas Service Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 623, 635-36, 609 P.2d 1157, rev. denied 228 Kan. 806 (1980).
WRI and KGE contend the price finally adopted by the KCC— $500 per MWh — was several times greater than the prices actually received by the utilities for off-systems sales during the test year and, therefore, was speculative and unsupported by the record.
Various witnesses testified about the off-system sales issue with, predictably, a wide variety of proposals:
Witness Sponsor Projected Sales Price/MWh $ Sales Margin
A. Crane CURB 28.000 MWh $750 $21M
T. Corrigan Wichita 435.000 MWh $31.02 (net) $30M $13.5M
Ed Bodmer Topeka $11M
Leslie Morgan WRI/KGE (Unspecified) $7.49 (net)
In challenging the KCC’s decision, WRI and KGE argued their generating facilities performed at extraordinarily high levels during die test year, which permitted higher off-system sales than normal, and that performance would be unlikely to continue. In their applications, WRI and KGE reduced their revenue requirement by $11.8 million to account for “as available” wholesale sales made during the test year. They argue any other adjustments are speculative. The utilities also argued the new generation capacity was created to service their retail load obligations and to reduce the potential for power outages and increased costs for purchases on the spot market; therefore, the new capacity should not be linked to increased wholesale transactions. Finally, they refer to evidence indicating the average wholesale market price actually received by WRI from 1994 to 2000 ranged from $27.24 to $31.16 per MWh, averaging $30.80 for the last 3 years.
WRI and KGE admitted they always try to maximize their sales margins and acknowledged the possibility of increased off-system revenues. WRI has a power marketing group which serves both utilities as well as other operations of WRI. The group provides power trading and wholesale marketing services with the purpose of trading or selling power on the wholesale market; there was some evidence the group used utility assets to make these sales. The record also established a fairly steady increase in WRI’s off-system sales between 1994 and 2000.
The KCC relied heavily upon the testimony of CURB’S expert witness, Andrea Crane, who based her projections of $750/MWh on a WRI presentation of potential earnings made to financial analysts. WRI and KGE contend this presentation was merely potentialities proposed to analysts that were based on assumptions of the most favorable possible market. The KCC found Crane’s calculations reasonable and in its initial order adopted them, thereby imputing additional revenue of just over $19 million.
On appeal, WRI and KGE argue that Crane’s calculations were speculative and contrary to the clear tenor of the other evidence regarding actual wholesale prices and volumes. Once testimony is admitted in a rate case, the KCC has discretion to weigh and accept or reject that testimony. Kansas Gas & Electric Co. v. Kansas Corp. Comm’n, 14 Kan. App. 2d 527, 538, 794 P.2d 1165, rev. denied 247 Kan. 704 (1990).
We are not impressed with the contention Crane’s testimony does not constitute substantial competent evidence of off-system revenues. We believe it is disingenuous for WRI to argue its representations to Wall Street analysts and the financial markets should be considered tantamount to exaggerated puffery rather than an honest appraisal of expected growth and earnings. We conclude WRI’s representations to potential investors and analysts constitutes credible evidence to support Crane’s opinion and the ultimate finding entered by the KCC. Moreover, as we will next discuss, on reconsideration the KCC mitigated from the high side of Crane’s calculations.
On reconsideration, the KCC reduced the off-system sale price projections to $500 per MWh. WRI and KGE contend there is no evidence in the record to support that price figure and that the KCC erred in using a price figure based on “its [the KCC’s] familiarity with market conditions.” In connection with this argument, WRI and KGE also contend the KCC erred in relying on its own knowledge while denying the companies’ request to add additional testimony through the affidavit of Shane Mathis that was included with their motion to reconsider.
With respect to the KCC’s refusal to consider the supplemental affidavit of Shane Mathis, the standard of review is abuse of dis cretion. See Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, 50, 941 P.2d 390, rev. denied 262 Kan. 961 (1997). See also Kansas Gas & Electric Co. v. Kansas Corp. Comm’n, 14 Kan. App. 2d at 537 (admission of expert testimony lies within KCC’s discretion in hearings before that body).
After a KCC hearing has ended, a party may request, if good cause is shown, that the record of testimony be reopened. K.A.R. 82-1-230(1). When seeking to submit additional evidence in a petition for reconsideration, the additional evidence must have either been not available or not known to exist at the time of the hearing. K.A.R. 82-1-235(c)(4). In addition, the nature and purposes of the evidence must be briefly stated and cannot merely be cumulative. K.A.R. 82-1-235(d).
WRI and KGE do not contend Mathis’ evidence was either new or undiscoverable. They conceded the affidavit was somewhat cumulative (although more specific) of the evidence presented at the hearing. WRI and KGE also argue that if the KCC can rely on evidence outside the record (i.e., its own knowledge of prices), it was arbitrary not to accept the additional evidence.
In support of this argument, WRI and KGE refer to Colorado Interstate Gas Co. v. F.E.R.C., 850 F.2d 769 (D.C. Cir. 1988). In Colorado Interstate, the appellate court held FERC’s unexplained decision to treat Kansas and Texas ad valorem taxes differently for purposes of natural gas price caps was the “quintessence of arbitrariness and caprice.” 850 F.2d at 774. WRI and KGE fail to explain how this case supports their claim that the KCC’s refusal to accept additional evidence was somehow unlawful or arbitraiy.
In this case, the KCC held extensive evidentiary hearings over a period of at least 12 business days. The record consists of 62 volumes (plus five notebooks) of pleadings, prefiled testimony, exhibits, hearing transcripts and post-trial briefs and motions. WRI and KGE presented prefiled rebuttal testimony from the witness in question, Shane Mathis, who testified about WRI’s power marketing business and, to a limited extent, its wholesale sales practices. This rebuttal testimony was filed well after the testimony of Andrea Crane and Timothy Corrigan, who both gave opinions regarding the off-system sales issue.
WRI and KGE have not justified their failure to file prefiled rebuttal testimony or present this evidence more specifically in the KCC hearings. We conclude the KCC did not abuse its discretion in declining to reopen the record for evidence that could have been presented during the hearing.
A remaining issue is whether the KCC’s finding of a $500 per MWh price figure for off-system sales which was based on its “own familiarity” with the market is supported by substantial and competent evidence. We answer this question “yes” because the KCC’s determination was within a zone of reasonableness. The Kansas Supreme Court has observed:
“There is an elusive range of reasonableness in calculating a fair rate of return. A court can only concern itself with the question as to whether a rate is so unreasonably low or so unreasonably high as to be unlawful. The in-between point, where the rate is most fair to the utility and its customers, is a matter for the State Corporation Commission’s determination.” Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, Syl. ¶ 17, 386 P.2d 515 (1963).
See also Farmland Industries, Inc. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 172, 195, 943 P.2d 470, rev. denied 263 Kan. 885 (1997) (in fixing a rate within the zone of reasonableness, the KCC must apply a balancing test considering the interests of all concerned parties).
In this proceeding, the KCC finding was a final adjustment of $12,794,600 of additional off-system revenues. This adjustment was consistent not only with Crane’s testimony but also with the testimony of two other expert witnesses, Timothy Corrigan and Ed Bodmer. Corrigan recommended a net sales revenue of $13.5 million. Bodmer proposed a net sales revenue of approximately $11 million.
For all of the foregoing reasons, we conclude the KCC did not err in its imputation of additional off-system sales revenues.
Unamortized Gain — LaCygne 2
The second issue raised by WRI and KGE concerns an adjustment to rate base entered by the KCC to recognize an unamortized gain realized by KGE on the sale of the LaCygne 2 electric gen erating plant in 1987. This ruling reduced KGE’s rate base by $86.5 million.
In 1987, KGE entered into a financing arrangement to sell its 50% interest in the new LaCygne 2 facility (a coal-fired generating plant) to an owner-trustee and lease the facility back for approximately 29 years. At the end of the lease, KGE would have the option to renew the lease or purchase the plant at fair market value. The sale price for the plant, $392.1 million, far exceeded the book value of $69.4 million.
In seeking approval of the sale/leaseback transaction, KGE advised the KCC the transaction permitted it to capture certain tax benefits as a lessee that it would not have as an owner. KGE also claimed this transaction benefitted customers by delaying rate increases, causing some rate reductions, and improving KGE’s financial health.
The KCC approved the sale/leaseback transaction in September 1987 in KCC Docket No. 156,521-U. The KCC, in its order, agreed that KGE’s ratepayers might benefit from the transaction, but only if KGE’s rates accurately reflected the company’s revenue requirement. The KCC noted the exact impact of die sale could not be accurately determined at that time. According to the order, KGE proposed to amortize the gain on the sale to its Kansas jurisdictional cost of service over the life of the lease and proposed that any unamortized gain could be used in reducing rate base in future rate cases.
In approving the sale, the KCC specifically directed its Staff to investigate “all aspects of KG&E’s cost of service” and to determine whether existing rates accurately “reflected KGE’s revenue requirement. Staff was ordered to report its findings to the KCC, which would then determine if any rate adjustments were necessary.
When the present rate case was filed, the Staff of the KCC and the KIC proposed that KGE’s rate base be adjusted to treat the remaining unamortized gain from the sale of the LaCygne facility as cost-free capital. The Staff witness, James Proctor, testified that KGE realized a $322.7 million gain from the sale of the facility and recommended KGE’s rate base be reduced by $86.5 million. Proc tor testified he was on the KCC’s Staff in 1987 and that the KCC approved the sale-leaseback because KGE offered to allow consideration of any unamortized gain in future rate cases. WRI and KGE concede that at the time of tire current proceeding, over $87 million of the net gain from the LaCygne sale had not yet been amortized on KGE’s books.
Similarly, James Dittmer, an expert testifying on behalf of KIC and Goodyear, stated the gain from the sale of the LaCygne facility essentially was cost-free capital and unless rate base was reduced to reflect this gain, the ratepayers would effectively be paying interest or an equity return on funds which had no true financing cost. Moreover, it would allow the utility to pay the higher lease payments (which included a premium over the book value of the plant) without offsetting those higher costs with the accompanying gain the utility received in the transaction. Dittmer recommended KGE’s rate base be reduced by $86 million.
Dittmer acknowledged ratepayers have benefitted from the “levelizing” effect of the sale/leaseback and the amortization of the gain in the cost of service calculation already recorded by KGE. However, he explained the proposed adjustment was not a double benefit to ratepayers, but instead would prevent shareholders from earning a return on cost-free capital. Dittmer also noted WRI and KGE were not contending the adjustment would deprive company shareholders of a fair rate of return.
In opposing this proposed adjustment, WRI and KGE presented testimony that the LaCygne sale/leaseback was designed to improve KGE’s financial health. The companies also noted previous orders of tire KCC did not intimate the gain should be used to reduce KGE’s rate base. Other arguments were that the proposed adjustment gave a double benefit to ratepayers and ignored the “true economic reality” of the transaction, the ratepayers more than benefitted because the sale proceeds were used to reduce the cost of capital by repurchasing stock and buying back high coupon debt, thereby reducing KGE’s cost of service, and reference in the 1987 order regarding KGE’s offer to permit unamortized gains to be used to reduce rate base was inconsistent with KGE’s rate application.
In the present case, the KCC ordered the remaining $86 million unamortized gain from the 1987 transaction be used to reduce KGE’s rate base. The KCC agreed the proceeds should be considered cost-free capital and noted this same adjustment was proposed by Staff in a 1997 rate proceeding involving the companies, Docket Nos. 193,306-U and 193,307-U. Finally, the KCC rejected WRI and KGE’s arguments that the 1987 order misstated KGE’s proposal; the KCC reasoned that if KGE disagreed with the language of the 1987 order, it should have filed a timely petition for reconsideration.
On appeal, WRI and KGE argue the KCC has unreasonably deviated from its order in prior KGE rate proceedings contrary to Kansas law. Generally, our appellate courts recognize a regulatory body has authority to change positions on an issue if the new position is supported by substantial competent evidence. Thus, parties may not reasonably rely on any prior order of the body to such an extent to invoke the doctrine of equitable estoppel. Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. 248, 259, 699 P.2d 1002 (1985), vacated on other grounds 475 U.S. 1002, 89 L. Ed. 2d 289, 106 S. Ct. 1169 (1986). However, our courts also have recognized that when an administrative agency deviates from a policy it had adopted earlier, it must explain the basis for the change. Farmland Industries, Inc. v. Kansas Corp. Comm’n, 24 Kan. App. 2d at 191. Where the KCC rules' in a manner inconsistent with a previous decision, the law requires the commission to explain its change in position. Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm’n, 244 Kan. 157, 190, 769 P.2d 1 (1989).
In this case, however, WRI and KGE have failed to establish the KCC deviated from any prior orders. The KCC’s 1987 order clearly indicated the KCC was concerned about the lack of clarity as to how KGE would treat the gain it would realize in the sale of the property. The order approving the transaction specifically noted KGE proposed to amortize the gain on tire sale to its Kansas jurisdictional cost of service over the life of the lease transaction and that any unamortized gain could be considered as rate base adjustments in future rate cases. Based on the clear language of the order, the adjustment ordered in the present case was consistent rather than inconsistent with the 1987 order.
KGE argues the 1987 order language was inconsistent with KGE’s original application. KGE also argues this reference to future rate cases was not binding because it was not included in the order language at the end of the KCC’s order. Neither of these arguments are compelling. KGE’s original application clearly proposed that in addition to the allocation of the gain through amortization to cost of service, “the benefits from the disposition of the proceeds from the Transaction will be passed on to ratepayers.” This seems to give broad assurances about the benefits ratepayers would receive. Morever, the order language in the 1987 ruling dealt with authorizing the sale/leaseback transaction and its current rate treatment. The KCC, as always, retained jurisdiction over the issues. Finally, nothing in subsequent proceedings involving KGE altered the provision from the 1987 order, recognizing the possibility of future reductions of rate base by unamortized portions of the gain.
For these reasons, the KCC’s decision to allow a reduction of KGE’s rate base for the unamortized gain is not inconsistent with prior KCC orders or rulings. The fact the KCC initially permitted KGE to amortize the gain does not alter the fact KGE was on clear notice of the possibility that any remaining unamortized portions might, in future cases, be used to reduce its rate base.
WRI and KGE also argue the LaCygne 2 adjustment is illegal because it gives all the benefits of the sale to ratepayers in violation of Kansas Power & Light Co. v. Kansas Corporation Commission, 5 Kan. App. 2d 514, Syl. ¶ 3, 620 P.2d 329 (1980), rev. denied 229 Kan. 670 (1981).
In Kansas Power 6- Light Co., the utility challenged the KCC’s rate determination. One of the issues related to the agency’s treatment of a $1.4 million gain from the sale of the company’s office building in Salina. The KCC allocated a portion of the gain in a manner to reduce rate base, even though the Federal Energy Regulatory Commission (FERC) accounting rules permitted this type of gain to be credited “below the line,” which inures to the stockholders. This court ultimately concluded that while the general rule is that capital gains are retained by the utility, the KCC may consider the gain as a factor in the ratemaking process. 5 Kan. App. 2d at 528. This court also concluded that a KCC order that effectively gives all the profit from the sale of a capital asset to ratepayers is improper; the case was remanded with instructions for the KCC to provide a method to permit both stockholders and ratepayers to benefit from the transaction. 5 Kan. App. 2d at 529.
Kansas Power & Light Co. is factually distinguishable because it involved the outright sale of a capital asset. The KCC’s 1987 order clearly reflects that the sale/leaseback transaction with die LaCygne 2 plant was primarily a financing device designed to improve the company’s financial situation. Under the lease agreement, KGE had the right to extend tire lease or buy back tire plant at fair market value at the end of the 29-year lease.
Even if we were to assume Kansas Power 6- Light Co. applies, it is undisputed that the sale/leaseback transaction has benefitted ratepayers. On the other side of the ledger, KGE’s assertion that the KCC’s finding would somehow deprive shareholders of all benefit from the underlying transaction is not supported by citation to the record. Moreover, we have been unable to find from the evidentiary record the testimony of any witness that reducing KGE’s rate base 14 years after the transaction would deprive the shareholders of all benefit from tire transaction. Common sense would seem to dictate shareholders did receive benefits from the transaction. KGE received over $300 million in profit from the sale and had the use of the money, cost free, since 1987. Additionally, KGE’s decision to use the proceeds to buy back stock and redeem high coupon debt benefitted both ratepayers and shareholders.
Finally, WRI and KGE contend diere is not substantial competent evidence to support the KCC’s decision. The testimony of James Dittmer and James Proctor discussing KGE’s ability to use the sale proceeds as cost-free capital more than support the KCC’s decision to finally reduce KGE’s rate base by the balance of the unamortized gain. KGE had the full use of the proceeds for 14 years. There was no evidence that reducing rate base would deprive KGE’s shareholders of a fair share of the benefits of the sale/leaseback transaction.
For all of the foregoing reasons, we conclude the KCC’s order regarding the LaCygne 2 adjustment is not contrary to prior KC.C orders. There is no evidence that KGE’s shareholders were deprived of benefit from the proceeds from the sale/leaseback transaction. Moreover, the decision is supported by substantial competent evidence.
The ADIT Adjustment
WRI and KGE contend the KCC’s rate base adjustment and related revenue adjustments related to the acquisition premium (AP) paid by Kansas Power & Light Company (KPL) to acquire KGE constitutes error. The utility argues the decision is (1) contrary to prior KCC orders in the merger case and other rate cases involving the companies; (2) constitutes a taking of property and interference with contract rights; and (3) is factually and legally unsound.
We begin our discussion by first reviewing the 1991 merger of KPL and KGE. In 1991, KPL and KGE merged into a single entity known as KPL (which later became WRI). As part of the merger agreement, KPL agreed to pay an AP to KGE shareholders. An AP is a payment above the book price for the company. The total AP in this merger was approximately $500 million.
In the merger proceeding, Docket Nos. 172,745-U and 172,155-U, the KCC refused to allow the companies to include the AP in their rate base. However, the KCC determined that $312 million was a reasonable approximation of likely cost savings from the merger. Because these savings were anticipated, the KCC ruled the companies could recover this portion of the AP from ratepayers by amortizing the amount as operating expense over 40 years. This allowed the companies to amortize $7.8 million annually beginning in 1995; to net this amount, however, the actual expense was “grossed up” to $12.9 million to recover current income taxes that would have to be paid.
The KCC also decided that if there were additional merger savings above the $312 million, those savings should be shared equally by ratepayers and shareholders. The KCC specifically declined to place the AP in the rate base and stated that the companies’ only opportunity to “earn a return of or on the allowed AP will be from merger-related savings.”
In 1997, the KCC conducted the first post-merger rate proceeding for WRI and KGE. Ultimately, WRI, KGE, and the KCC Staff entered into a settlement agreement to resolve all issues pertaining to revenue requirements. The KCC issued an order approving the settlement agreement with a determination the annual merger savings was $40 million. The KCC permitted WRI to treat $13.5 million of the saving as additional operating expenses and to continue to amortize the AP as operating expense of $12.9 million annually.
This brings us to the present proceedings. In its order of July 25, 2001, the KCC ordered a decrease in KGE’s rate base of $66,295,177 and a decrease in WRI’s rate base of $16,698,284. To support this adjustment, the KCC found as follows:
“64. Accumulated Deferred Income Taxes. KPL paid an acquisition premium (AP) when it merged with KGE. An AP is a sum above book value that an acquiring company agrees to pay to shareholders of a company that is being acquired. In a 1991 Order, the Commission allowed the Applicants to begin amortizing approximately $12.9 million of the AP annually in 1995. The Commission stated that at that time, it was not allowing the AP to be put in rate base. The Applicants’ only opportunity to earn a return of or on the AP would be from merger-related savings. Savings above the annual amortization amount were to be determined in the next rate case and shared 50-50 between ratepayers and shareholders. Pursuant to the Order, 50% of the savings above the allowed amortization would be included in cost of service. [Citations omitted.]
“65. In 1997, in Docket Nos. 193,306-U and 193,307-U, the annual merger savings were found to be $40 million. The amount above the $12.9 million amortization figure was approximately $27 million. Of the $27 million, 50% was to be imputed as an operating expense when calculating the Applicants’ regulated earnings. Approximately $13.5 million was to be treated as an operating expense, and approximately $12.9 million per year was being amortized, for a total revenue requirement recoveiy related to the AP of $26.5 million. [Citations omitted.] The $26.5 million is recovered annually in rates through the operating income statement. [Citation omitted.]
“66. Staff argues that the Applicants are receiving a return of and a return on the AP through rates, and that the effect of this is equivalent to rate base treatment. Staff asserts that its Accumulated Deferred Income Tax (ADIT) adjustment is a standard adjustment for rate base items and that if it is not accepted, the Applicants will receive an unfair benefit. Staff maintains that accepting this ad justment is not inconsistent with prior Orders. Staff s adjustment is also supported by Wichita. The Applicants rely on the 1991 Order which said that the AP was not being put in rate base. They argue that an ADIT adjustment was not contemplated and that no rate base offset is justified. [Citations omitted.]
“67. The Commission accepts Staff s adjustment. ADIT was not mentioned at the time of the 1991 and 1997 Orders [citation omitted], but the Commission finds that this was because ADIT did not become an issue until after the $26.5 million amount was determined and the Applicants began to recover that amount. [Citation omitted.] As Staff indicates, including ADIT in rate base is standard to recognize for ratemaking purposes the cost-free capital provided from ratepayers related to differences between when expenses are deducted for regulatory and income tax purposes. There would be no need to specifically refer to such an adjustment in an Order. Including ADIT in rate base is a well-recognized regulatory accounting concept that is applied in a variety of situations to account for deferred income tax benefits related to rate base assets or for timing differences between when expenses are deductible for income tax purposes and financial reporting purposes. [Citation omitted.]
“68. There is no dispute that the Applicants are receiving both a return of and a return on the AP. [Citations omitted.] This is equivalent to the AP being in rate base. A rate base item would normally have a related ADIT component. [Citation omitted.] The ADIT adjustment addresses the benefit the Applicants derive from collecting deferred income tax expense through the annual recovery of $26.5 million in merger savings. Through rates, the Applicants are collecting deferred income taxes related to the AP from ratepayers. [Citation omitted.] The deferred income taxes are collected before the Applicants are required to pay income tax expense for the amortization of the AP. The result is an increase in expenses for purposes of calculating rates before the utility actually has to pay the expenses. Because the Applicants collect deferred income tax expenses related to amortization of the AP through rates, it is necessary to recognize the unamortized ADIT in rate base to avoid an unjust benefit accruing to the Applicants. [Citations omitted.]
“69. Deferred income taxes are recovered as part of the $26.5 million annual recovery. The equivalent amount of AP in rate base is determined by calculating the present value of the annuity represented by annual collection of the $26.5 million through rates over a 34.83-year period. Using the rate of return ordered in this case to discount the annuity, the Commission finds that $208,644,237 of the AP is receiving equivalent rate base treatment. Further, because deferred income tax is collected as part of the $26.5 million, the Applicants are in effect receiving rate base treatment for the present value of the deferred income tax payments. That is, the Applicants receive a return on the present value of the deferred income tax payments. Because the Applicants receive a return on the present value of the deferred income tax payments and recovery of the deferred income tax essentially provides an interest-free loan from the ratepayers to the Applicants, it is necessary to decrease rate base by ADIT to avoid an unfair benefit to the Applicants. [Citations omitted.] A cost-free loan from ratepayers should not be in rate base. The ADIT adjustment deducts the amount of taxes that correspond to the cost-free capital that the Applicants recover every year as part of the $26.5 million. The Applicants collect deferred income taxes from the ratepayers, and have the use of that money until the time when the taxes are ultimately paid. The ADIT adjustment deducts from rate base tire amount of funds that are collected from ratepayers by the Applicants, but are yet to be paid. Without the ADIT adjustment, the Applicants would receive a revenue windfall from ratepayers. The ADIT adjustment, taking into consideration the ROR ordered, results in a decrease in KGE’s rate base of $66,295,177, and a decrease in WRI’s rate base of $16,698,284. [Citations omitted.]
“70. Staffs ADIT adjustment is conservative. Instead of simply using the Applicants’ records which show a return of the AP of $12,951,970 [citation omitted], and calculating tire benefit to the Applicants over the remaining 35-year amortization period, Staff determined the present value of the cash-flow from the ratemaking treatment and based its ADIT adjustment on that number. While the Applicants’ records would have supported the argument that the $26.5 million AP recovery is equivalent to placing $453 million of the AP in rate base, Staff concluded that it was more appropriate to use its methodology which finds that the recovery is equivalent to having approximately $220.6 million of the AP in rate base. Staffs calculations result in a lower ADIT adjustment. [Citations omitted.] [Given the rate of return ordered in this case, the recovery is equivalent to having in rate base the $208 million figure stated above, instead of tire $220 million discussed at the hearing.]
“71. The Applicants assert that Staff has failed to consider that they are paying current income taxes on the $26.5 million that they recover. Staff did consider this, but stated that it was not relevant because the $26.5 million had been grossed up for income taxes. [Citation omitted.] The return of the AP was approximately $7.8 million annually. In the 1997 Order, the amount was set at $12.9 million to take into account the income taxes that would be paid. [Citation omitted.] That is, it was ’grossed up’ for income tax expense to recognize the income tax expense related to the amortization of the AP. Because the current income taxes were anticipated and accounted for when setting the $12.9 million recovery amount, those current taxes are not an issue now. The payment of current income taxes simply represents the Applicants paying off the cost-free capital provided by ratepayers through the Applicants’ previous recovery of deferred income tax expense. The Applicants also contend that Staff is trying to ‘create’ deferred taxes. This is incorrect. The deferral of income taxes is recorded on the books of the Applicants. As noted above, this is not unusual and is handled through a standard adjustment for ADIT.”
As a necessary corollary, the KCC also ordered income statement adjustments in paragraph 92 of its findings, stating: “c. Staff s ADIT rate base adjustment requires a decrease in deferred income tax expenses of $1,903,393 for KGE, and a decrease of $479,422 for WRI.”
In its order on reconsideration dated September 5, 2001, the KCC refused to modify its previous order and elaborated as follows:
“9. Several arguments relating to the accumulated deferred income tax (ADIT) adjustment have been made. This issue was discussed extensively in the July 25, 2001 Order. [Citation omitted.] Although WRI and KGE make numerous complaints about the Commission’s Order, they do not dispute the primary justifications for the ADIT adjustment. WRI and KGE do not contest the finding that they are receiving both a return on and a return of the acquisition premium (AP). In fact, a document verifying this fact, CURB Exh. 12, originates from WRI and KGE. Exhibit B, which WRI and KGE attach to their petition as support for their argument that this is not equivalent to rate base treatment, relies upon an incorrect number and is not a valid analysis of die Commission’s Order. Exhibit B starts with the premise that the Commission is comparing the amount of its adjustment to the placement of $312 million in rate base. This is inaccurate. As stated in ¶¶69-70 of the July 25, 2001 Order, the adjustment adopted by the Commission is equivalent to placing approximately $208 million of the AP in rate base. The odier numerical arguments and calculations of WRI and KGE suffer from similar problems and provide no basis for changing the ADIT adjustment.
“10. The ADIT arguments made by WRI and KGE were fully considered in the July 25, 2001 Order. The 1991 merger order established a non-traditional method for dealing with the AP. In reviewing the arguments relating to the ADIT adjustment, the Commission has looked at what is happening in reality and the effect on the utilities and ratepayers. WRI and KGE are receiving the same benefits as if $208 million of the AP had been directly placed in rate base. In recognizing this, the Commission must malee the appropriate ADIT adjustment. This adjustment is consistent with the KPL-KGE merger framework and with the 1991 and 1997 Orders. The Commission finds no grounds for reconsidering the ADIT adjustment.”
Thereafter, in its order of reconsideration, the KCC stated the overarching constitutional and legal principles applicable to rate-making decisions to be as follows:
“27. WRI and KGE maintain that the end result of the Commission’s Order is outside of the ’zone of reasonableness.’ In rate-making cases, the Commission must consider and balance the interests of utility investors, current ratepayers, future ratepayers and the overall public interest. After balancing these interests, the Commission must determine what rate within an elusive range of reasonableness is most fair to the utility and its customers. Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 488-91, 720 P.2d 1063 (1986). In this proceeding, each ruling was carefully considered and tire interests of all parties were painstakingly balanced. The overall result and die rates ordered are fair, reasonable and supported by the record.”
In our opinion, it was the duty of the KCC to determine the impact of the merger savings and prior commission orders on the issue of fair and just rates. The central question to be answered was whether an adjustment to rate base was necessary to carry out the KCC’s intent that there would be a 50-50 sharing of the merger savings between ratepayers and shareholders through the allowance of increased operating expenses. To answer that question, the KCC annuitized the merger recovery that was allowed, applied an appropriate discount rate, and concluded $208,644,237 of the AP is receiving equivalent rate base treatment. Consequently, the KCC required appropriate rate base adjustments to effectuate its stated intent of a 50-50 sharing of the merger savings.
The cash flow analysis of the KCC is entirely consistent with the methodology employed by the expert witness, James Proctor. We also note the financial records, books, and records of WRI and KGE disclose an AP of $800 million and an offsetting ADIT entry of $300 million. These entries are consistent with the KCC’s reasoning and decision. Finally, there was admitted into evidence a company document (CURB exhibit 12) demonstrating that as a result of the merger savings recovered from the ratepayers, WRI and KGE are receiving a return on investment as well as a return of investment.
Accordingly, we conclude there is substantial evidence to support the findings and determination of the KCC, its order is not inconsistent with the 1991 and 1997 orders, and the order does not constitute an unlawful taking of property.
Depreciation Rates for Coal-Fired Plants
WRI and KGE also contends the KCC erred in its determination of the appropriate depreciation rate for the companies’ coal fired steam generating plants. WRI and KGE contend the KCC relied on unsound depreciation analyses and ordered depreciation rates that were so low they were confiscatory.
WRI and KGE own interests in a number of steam production facilities including but not limited to the Jeffrey Energy Center, LaCygne Energy Center, Lawrence Energy Center, and the Gordon Evans Energy Center. The parties fad to specify which plants are coal fired (versus fueled by natural gas or some other fuel). However, it appears the significant differences between the testimony of the experts were limited to these four facilities and the Wolf Creek nuclear power plant.
In determining the appropriate depreciation factor for these plants, recorded as an expense in calculating rate base, various witnesses testified, including James Aikman and Michael Majoros, Jr-
Aikman was an independent consultant specializing in depreciation issues retained by WRI and KGE to perform depreciation studies on their electric properties. Aikman testified his studies used a conventional straight line depreciation method over the service life of the properties and involved remaining life accrual rates. Aikman visited ¿1 of WRI and KGE’s plants and had previously toured the Wolf Creek facility during an earlier depreciation study. Aikman testified the life span forecast method was the most appropriate method to determine the depreciation rates for electric generating plants. He also testified that dollars, rather than capital units, are the better measure for depreciation calculations.
Aikman testified depreciation accrual rates should reflect engineering judgment, recent industry and specific company experience, and current projections for the future. Aikman admitted these other factors were more subjective items and required judgment in estimating average service fife, He also admitted that if a group of his peers engaged in his process of calculations, their conclusions might vary from each other 10 to 15 percent as to the annual depreciation amount.
Aikman considered the actual property history maintained by the companies in his analysis. However, he recognized that future life estimates cannot be made solely on past fife experience. Judgment plays an important role in determining depreciation accrual rates.
With respect to the LaCygne 2 plant, Aikman recommended that KGE amortize the depreciation over the remaining life span of the lease. In 2000, there were 17 years remaining on the lease. Aikman also assigned a 22-year remaining life for the Jeffrey Energy Center, 16 years of remaining life to the Lawrence Energy Center, and a 16-year remaining life to the Gordon Evans facility. Aikman admitted, however, that managers at WRI told him they had no current plans to retire any of the generation facilities at the time of his study and that if a plant stays on line longer than projected in a depreciation analysis, the accrual rate would drop.
Michael Majoros was an expert retained by CURB and several other intervenors. Majoros is vice president of an economic consulting firm that researches rates, revenues, and performance of regulated firms and industries. He has testified on numerous occasions before public utility regulatory commissions about depreciation issues. In preparing his proposals, Majoros and his team evaluated Aikman’s testimony and exhibits, responses to various data requests, and independent calculations. Majoros also prepared a nationwide study of the lives of steam production units in excess of 50 MW. Majoros and/or an associate visited WRI’s headquarters and toured the Jeffrey, Lawrence, and LaCygne plants.
Majoros conceded the alternative approach recommended by WRI in determining depreciation had intellectual merit; however, he did not recommend the other methodology. In his study, Majoros accepted Aikman’s net salvage proposals and most of his life proposals based upon Majoros’ independent analysis and judgment. However, Majoros strongly disagreed with Aikman’s recommended life proposals for the Jeffrey, Lawrence, and LaCygne Energy Centers.
Majoros, like Aikman, used the life span method to determine the depreciation rate for production plant functions; this method is based on the premise that all plants within a property group will retire concurrently in a specific number of years after initial placement. Under this method, the projected final retirement date is the most important factor in determining depreciation. Majoros primarily criticized Aikman’s retirement date calculations because, contrary to industry standards, Aikman did not review economic studies, company forecasts or retirement plans, or any studies about technological obsolescence, adequacy of capacity, or com petitive pressure. Although Aikman discussed these matters with management, he did not review or perform any independent studies dealing with these issues.
As part of his analysis, Majoros and his team updated a national study of steam generating units using a data base maintained by the United States Department of Energy. This study showed that steam generating units of 50 MW or greater were experiencing average life spans of 55 years and that these spans are lengthening almost yearly. This study does not support Aikman’s 40-year and 45-year life spans for Jeffrey, Lawrence, and LaCygne Energy Centers.
Accordingly, Majoros and/or his associate visited these three facilities to determine whether there was any visible evidence to suggest these facilities would have shorter-than-average lives than the rest of WRI’s units. Majoros observed that all the plants were well maintained and were receiving continued maintenance and upgrades. Majoros also reviewed a report prepared by the Kansas Electric Utilities Research Program (KEURP), which included both WRI and KGE. The KEURP report was generated during the 1980’s and covered the Jeffrey and LaCygne plants. This report indicates that at the time it was compiled, the companies intended the plants to last longer than 40 years and that the companies had been in the process of extending the plants’ lives since that time. According to Majoros, this supported a longer life span (60 years) than the national average (55 years).
Majoros noted that Aikman calculated a straight-line remaining life depreciation rather than a whole-life depreciation. According to Majoros, however, the method of calculation can be accurate only if the fundamental service life or net salvage value does not change during the life of the plant.
It appears the primary differences between Aikman’s and Majoros’ studies are that Aikman proposed a 40-year lifespan for the Jeffrey and LaCygne properties, while Majoros recommended 55 years. As to the Lawrence facility, Aikman admitted the planned operational life of units 3 through 5 of the plant were 50 or 60 years; however, Aikman’s proposal shortened the life span for units 3 and 5 by 5 years and shortened the lifespan of unit 4 by 10 years. Ailtman did not consider the KEURP study in his calculations.
WRI and KGE first argue there is not substantial competent evidence from the record as a whole to support the KCC’s adoption of the depreciation rates proposed by Majoros. WRI and KGE argue there were fundamental flaws in Majoros’ analysis and it did not provide a rehable basis for the KCC’s decision.
In essence, WRI and KGE ask this court to reweigh the testimony of competing experts. Both Aikman and Majoros established their expertise in testifying about depreciation schedules and the KCC accepted both of them as experts. Here, the fundamental distinction was the life expectancy each expert assigned to WRI’s and KGE’s various facilities. Although the experts disagreed with the methodologies of each other, none of the evidence established that either expert’s methodologies were professionally untenable.
The complex issues involving depreciation methodologies is clearly within the expertise of the KCC. When a court is reviewing a KCC decision for substantial evidence, the court must observe several limitations. This court may not substitute its judgment for that of the administrative agency. This is true even though there may be conflicting evidence which would support a contrary result. As noted by the Kansas Supreme Court:
“ ‘ “Nothing can be gained by making a comparison of conflicting testimony. The commission is the trier of facts. The commission had the expertise through its staff to sift and evaluate .. . conflicting testimony.” [Citation omitted.]’ ” Mobil Exploration & Producing U.S. Inc. v. Kansas Corp. Comm’n, 258 Kan. 796, 815, 908 P.2d 1276 (1995) (quoting Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm’n, 244 Kan. 157, 166, 769 P.2d 1 [1989]).
As long as the record contains substantial competent evidence supporting the agency decision, the decision is reasonable and must be upheld. 258 Kan. at 809. See also ABATE v. PSC, 216 Mich. App. 8, 27, 548 N.W.2d 649 (1996) (Despite the existence of conflicting expert testimony, a decision by the Public Service Commission must be affirmed if it is supported by opinion testimony, offered by a qualified expert who has a rational basis for his views, regardless of whether other experts disagree.).
Majoros’ recommendations were based on national surveys and review of company records and facilities. He found no evidence to establish that any of the plants would be retired from service prior to the average life span of similar facilities. WRI and KPL never provided any evidence to either expert when, if ever, they planned to retire any of the facilities. While Aikman focused primarily on actual history of on-going investment and repairs of the facilities, he admitted past history was not a sole basis to judge remaining life of a facility. Aikman did not review information about technological obsolescence, competitive pressures, or company forecasts. Moreover, Aikman did not consider the KEURP study, generated in connection with WRI and KGE, proposing to prolong the life of its Jeffrey and LaCygne facilities. WRI and KGE do not refer to any testimony repudiating the proposals included in the KEURP study.
For the foregoing reasons, we conclude there is substantial competent evidence to support the KCC’s acceptance of Majoros’ study.
WRI and KGE also contend the KCC’s findings as to depreciation are not supported by proper findings. They contend the KCC’s evaluation of the competing studies was inadequate and the KCC improperly ignored criticisms of Majoros’ study.
A review of the record on appeal strongly suggests this issue has not been preserved for appeal. K.S.A. 2001 Supp. 66-118b provides that a party seeking review of a KCC order must petition for reconsideration of the order in accordance with K.S.A. 2001 Supp. 77-529. A party may not rely upon any ground in a court proceeding that was not “set forth” in the petition for reconsideration. K.S.A. 2001 Supp. 66-118b. Under K.S.A. 2001 Supp. 77-529(a), the party must file a petition for reconsideration “stating the specific grounds upon which relief is requested.” Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 222, 227-28, 943 P.2d 494 (1997), aff'd in part and rev’d in part 264 Kan. 363, 956 P.2d 685 (1998). Failure to exhaust administrative remedies generally is a bar to judicial review of agency action. Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 85-86, 991 P.2d 883 (1999). Whether a party is required to or has failed to exhaust required administrative remedies is a question of law over which appellate review is unlimited. 268 Kan. at 82.
It does not appear WRI and KGE challenged the adequacy (or lack thereof) of the KCC’s findings of fact on the depreciation issue in their initial petition for reconsideration. At most, WRI and KGE asserted the reasons given for accepting Majoros’ study was “not sufficient to support the Commission’s ruling” and that the KCC “provided no proper basis for its decisions concerning depreciation.” These generic assertions were made in discussing all the claimed flaws of Majoros’ study and all the “proper” features of Aikman’s study. Consequently, WRI and KGE did not clearly advise the KCC that its findings of fact were inadequate, and we may presume the KCC found all facts necessary to support its ruling. See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998) (citing Galindo v. City of Coffeyville, 256 Kan. 455, 467, 885 P.2d 1246 [1994]).
Moreover, even if we were to consider the issue raised, we find no support for reversal. The KCC is not required to render its findings of fact in minute detail. The findings must be specific enough to allow judicial review of the reasonableness of the order. Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 475, 749 P.2d 21 (1988). However, findings by the KCC do not have to be stated with such particularity as to amount to a summation of all the evidence. In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d 525, 535, 685 P.2d 304, rev. denied 236 Kan. 875 (1984). The KCC is not generally required to explain why it did not accept every piece of evidence presented. Southwest Kan. Royalty Owners Ass’n v. Kansas Corp. Comm’n, 244 Kan. at 190. Moreover, an agency’s findings will be upheld, “ ‘though of less than ideal clarity, if the agency’s path may reasonably be discerned.’ ” Williston Basin Inter. Pipeline Co. v. F.E.R.C., 165 F.3d 54, 65 (D.C. Cir. 1999) (quoting Greater Boston Television Corporation v. F.C.C., 444 F.2d 841, 851 [D.C. Cir. 1970]).
The practical question before the KCC was to determine which of two experts’ reports was more reasonable in determining the useful life of production facilities; there was ample evidence in the record to support an adoption of either expert’s analysis. Cf. Zinke & Trumbo, Ltd., 242 Kan. at 489-91 (the KCC’s unexplained determination a gas field is a common source of supply, when all the evidence in the record was to the contrary, was error in the absence of sufficient findings of fact to support the determination). We conclude more detailed findings explaining why the KCC accepted Majoros’ study would not be of substantial assistance to this court in discharging its obligation of appellate review.
Finally, WRI and KGE specifically attack the life span Majoros recommended and the KCC adopted with respect to the LaCygne facility. Aikman testified the useful life should be based on the length of KGE’s lease of the facility, which would expire in 2017. However, Majoros determined KGE’s interest in LaCygne should expire based on the useful life of the facility, which he estimated to run until 2030. WRI and KGE contend this rate is so low as to be confiscatory.
WRI and KGE argue that because KGE’s lease of the facility ends in 2017, it is arbitrary and capricious to set a depreciation rate for a time period well beyond the life of the lease. As noted above, however, the sale/leaseback agreement presented to the KCC in 1987 indicated that at the end of the lease, KGE had the option to renew the lease or purchase the LaCygne plant back at fair market value. Therefore, the companies’ claim their interest automatically terminates at the end of the lease is not supported by the record. There was no evidence cited which reflected that KGE would not seek to renew its lease or to buy back the facility in 2017. Moreover, the KCC clearly indicated in 1987 when it approved the lease that the transaction was clearly a financing mechanism and not an outright sale. For these reasons, the KCC’s decision was not arbitrary or capricious.
Depreciation Rate — Wolf Creek
WRI and KGE also dispute the KCC’s decision as to the appropriate depreciation rate to be allocated to the Wolf Creek nuclear power plant. The KCC adopted a depreciation rate which assumed Wolf Creek’s owners would apply for and obtain a 20-year exten sion of their operating license. WRI and KGE contend this determination is speculative, unreasonable, and unlawful. WRI and KGE also argue the rate is discriminatory as compared to other co-owners of Wolf Creek.
Aikman and Majoros were the primary witnesses on this depreciation issue. Aikman recommended that depreciation for Wolf Creek be amortized over the “licensed life” of the plant; because the present license expires in 2025, Aikman recommended a 25-year amortization for existing capital expenditures made in year 2000. Aikman proposed an accrual rate for Wolf Creek of 2.81% based on this life span. Aikman testified that there is no assurance that any application for an extension of Wolf Creek’s license would be granted. Aikman also cited the fact that several nuclear units have been decommissioned prior to the expiration of their license and the prevailing public attitudes toward nuclear facilities; he admitted later, however, that several of the decommissioned plants were prototypes unlike Wolf Creek.
Like Aikman, Majoros used a life span method in determining the appropriate depreciation rate for Wolf Creek. The primary issue, according to Majoros, was whether the life span should reflect an assumption of a 20-year extension to Wolf Creek’s operating license. In his evaluation of Wolf Creek, Majoros visited the Nuclear Regulatory Commission (NRC) to investigate the status of operating license extensions. Majoros noted that five units at two different nuclear plants have been granted 20-year extensions by the NRC recently. Five other units at three plants have applied for extensions and 28 more units at 17 plants are expected by tire NRC to apply for license extensions by 2004. Based upon the 20-year license extension, Majoros recommended an accrual rate of 2.36%.
While Majoros conceded Wolf Creek was not able to apply for an extension until 2005, he fully expected the company to apply for an extension; there was evidence of statements from Wolf Creek’s manager of the intent to seek an extension. Majoros also noted Wolf Creek has received good ratings in all phases of recent NRC inspections and had been extremely reliable in recent years. Moreover, the NRC has instituted streamlined application procedures.
Majoros noted that in a recent Maryland rate case, 20-year extensions were granted to two units of a nuclear plant owned by Baltimore Gas & Electric within 2 years of Aikman’s testimony that the extension should not be presumed in the company’s depreciation calculations. In this situation, if the extensions are not factored into depreciation rates, the facilities become vastly over-depreciated. WRI’s current depreciation rates are too high, resulting in the assets being over-depreciated while at the same time the company is collecting rates for estimated decommissioning.
In rebuttal, Aikman testified that other experts’ projections that Wolf Creek’s operating license would be extended was “wildly speculative.” He noted Wolf Creek may not even apply for an extension until 2005. However, Aikman admitted he had not talked with the management at Wolf Creek about the potential for a license extension. The KCC admitted into evidence a newspaper article where a top management official at Wolf Creek stated he perceived no problems in getting an extension of its operating license.
WRI and KGE argue that because Wolf Creek cannot apply for an extension of its license until 2005, it is speculative and arbitrary for the KCC to base the depreciation rates for the plants on the assumption Wolf Creek would apply for and receive such an extension.
This issue comes down to whether there was a reasonable and rational basis to determine Wolf Creek’s life span was likely to extend beyond the expiration of its initial operating license in 2025. Both experts agreed that life span analysis was the appropriate method for determining the depreciation rate and that the forecasted life span of a electrical facility calls for the exercise of considerable judgment based on a number of factors.
Here, the KCC found the testimony of Majoros, who predicted a 20-year license extension for Wolf Creek, more persuasive than that of Aikman. The record reflects that Majoros considered Wolf Creek’s good operating record and public statements from its management that it would seek tire extension and were hopeful it would be granted. Majoros also noted the NRC’s streamlined application process for extensions and its license extensions for well-run nuclear plants.
Setting depreciation rates requires the KCC to forecast the actual useful life of a generating facility. By definition, such a decision inherently involves projections, not certitude. In our opinion, the KCC’s special expertise must be given deference by this court. We conclude there exists substantial competent evidence in the record to support the KCC’s determination.
WRI and KGE also argue additionally that the depreciation rate for Wolf Creek was unduly discriminatory and arbitrary because other utilities owning a share of Wolf Creek have received significantly different depreciation rates through the KCC.
Kansas City Power & Light (KCPL) owns the same percentage of the Wolf Creek facility as does KGE. In a rate order issued in January 1998 in Docket No. 97-KCPE-661-RTS, the KCC set KCPL’s depreciation rate for the Wolf Creek facility at 3.09%. Majoros’ depreciation rate for Wolf Creek, adopted by the KCC, was 1.73%.
The KCPL rate proceeding cited was resolved through an amended settlement agreement among KCPL, the KCC Staff, and CURB. One of the settled issues permitted KCPL to set a depreciation rate for Wolf Creek at 3.09%. The order also provided for a $14.2 million annual rate decrease by KCPL. However, the order clearly reflects that the KCC anticipated KCPL rates would be revisited in the anticipated KCPL and WRI merger. This merger, of course, never occurred.
WRI and KGE have not provided authority which requires the co-owners of a facility to receive the same depreciation rate for co-owned property. The KCC explained that prior to its present order, KCPL and KGE did not have identical rates. Moreover, WRI and KGE’s rate case is obviously much closer in time to when Wolf Creek can apply for a license extension.
Absent any authority requiring the KCC to impose the same depreciation rate for co-owners whose rate cases occur at significantly different times, we are not in a position to question the expertise of the KCC. We conclude there is substantial competent evidence in the record to support the KCC’s decision upon this issue.
Conclusion
We conclude the KCC did not erroneously interpret or apply the law; its final order is not unreasonable, arbitrary, or capricious; and the underlying findings are supported by substantial competent evidence. Accordingly, the decision of the KCC will not be disturbed.
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Pierron, J.:
Daniel L. Hartpence, a juvenile, was prosecuted as an adult on charges of rape and aggravated criminal sodomy. Hartpence entered Alford pleas to two counts of aggravated indecent liberties with a child, severity level 3 person felonies, in violation of K.S.A. 21-3504(a)(3)(A). See North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Hartpence argues on appeal that the magistrate judge erred in ruling he should be prosecuted as an adult, that the district court had jurisdiction to consider an appeal of the magistrate’s decision, that prosecuting him as an adult substantially increased the penalty in violation of his constitutional rights, and that presuming he should be prose cuted as an adult under K.S.A. 38-1636(a)(2) violated his due process rights.
In April 1998, H.A.O., a 7-year-old girl, lived with her mother, two brothers, and three of her mother s friends, including a friend named Tyler. Hartpence was a friend of Tyler. On April 14, 1998, H.A.O. was sleeping against the wall in two beds pushed together. She said her two brothers and Tyler were sleeping with her. H.A.O. testified that she woke up to find Hartpence “licking [her] where [she] goes to the bathroom.” H.A.O. tried to stop Hartpence by rolling over, but he held her shirt and would not let her roll over. H.A.O. stated that after Hartpence stopped licking her, he put his finger inside her vagina. H.A.O. said that Hartpence eventually stopped, but stayed in the bedroom. H.A.O. left the bedroom and went downstairs. H.A.O. said she did not tell her mother immediately because she was afraid Hartpence would hurt her. However, H.A.O. revealed the incident the next day.
On April 16,1998, Hartpence was charged in juvenile court with one count of rape and one count of aggravated criminal sodomy. At the time of the offense, Hartpence was approximately 17 years and 5 months old. The State filed a motion to prosecute Hartpence as an adult. After hearing evidence, the magistrate judge granted the State’s motion. The magistrate judge granted a hearing on Hartpence’s motion for reconsideration. After hearing a large amount of expert testimony, the magistrate judge affirmed his ruling to allow the State to prosecute Hartpence as an adult.
On July 8, 1998, Hartpence was formally charged as an adult with one count of rape and one count of aggravated criminal sodomy, both severity level 2 person felonies. On March 8, 1999, Hartpence entered an Alford plea to two counts of aggravated indecent liberties with a child, severity level 3 person felonies, in violation of K.S.A. 21-3504(a)(3)(A). The district court sentenced Hartpence to a controlling term of 74 months’ incarceration.
Hartpence first argues the magistrate judge erred in certifying him as an adult. The standard for reviewing the decision to authorize prosecution of a juvenile as an adult is whether the decision is supported by substantial evidence. In re J.D.J., 266 Kan. 211, 216, 967 P.2d 751 (1998); State v. Claiborne, 262 Kan. 416, 420, 940 P.2d 27 (1997). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. State v. Garcia, 250 Kan. 310, Syl. ¶ 3, 827 P.2d 727 (1992).
Under K.S.A. 38-1636(a), Hartpence was presumed to be an adult and he had the burden to rebut the presumption. K.S.A. 38-1636(e) sets forth the factors to be considered when determining whether to treat a defendant as an adult or a juvenile. These factors must be considered by the court even where there is a presumption that the defendant is an adult under K.S.A. 38-1636(a)(2). K.S.A. 38-1636(e) states in pertinent part:
“In determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of tire respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.”
After analyzing the K.S.A. 38-1636(e) factors, the magistrate judge ruled there was substantial evidence to support Hartpence’s prosecution as an adult. The only evidence presented at the initial hearing was the testimony of Hartpence’s mother, who testified Hartpence was a learning disabled child, that he was less mature than other kids in the special education classes, and that his maturity level was that of a 12-year-old. At the hearing on the motion for reconsideration, Hartpence presented additional testimony from several experts who had examined him, including a speech pathologist, a neuropsychologist, and an forensic psychiatrist. The factors in K.S.A. 38-1636(e), as applied to Hartpence, are as follows:
(1) The seriousness of the alleged offense and whether protection of the community requires prosecution as an adult.
Hartpence argues there was no evidence to suggest he posed a risk to society and that society would be better protected if he was adjudicated as a juvenile and allowed the supervision and therapy recommended by Dr. Peterson. Hartpence argues the two halves of factor (1) cancel each other out and should have had no effect on the magistrate judge’s decision.
The magistrate judge found both charges of rape and aggravated criminal sodomy were severity level 2 person felonies and were among the most severe criminal charges available for prosecution under the Kansas Criminal Code. He found the charges were certainly appropriate for prosecution as an adult. He also found that if the allegations were proven, the victim was 7 years old and the protection of the community would be a significant factor for consideration. These findings are supported by the record.
(2) Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.
Hartpence argues that although his crimes were morally repugnant, there is nothing to suggest his crimes were committed in an aggressive, violent, premeditated, or willful manner.
The magistrate judge stated that Hartpence did not present any evidence to counter this factor. The judge indicated the victim was a 7-year-old female nearly 10 years younger than Hartpence. He found Hartpence had violated die victim in two “particularly odious forms” and held that, given this fact in conjunction with the tender age of the victim, the crime was a violent offense.
At the reconsideration hearing, the magistrate judge again emphasized the young age of the victim:
“[T]he violence of this to that individual and from that individual’s perception cannot be disregarded by the Court and is a substantial contributor to the Court’s determination today’s date that this individual should be prosecuted as an adult. Obviously this was done in an aggressive manner and it was done in a willful manner. Quite possibly it was done in a premeditated manner.”
Again, the findings are supported by the record.
(3) Whether the offense was against a person or against property.
The magistrate judge found the facts clearly indicated the crime was against a person and that K.S.A. 38-1636(e)(3) required the court to give greater weight to offenses against persons, especially in the event of personal injury. The court stated that the nature of the offenses, if proven, could cause severe psychological injury to the victim.
Hartpence argues there was no evidence presented that the victim suffered severe psychological injuiy and this factor should not count against him. The factor does not require severe injury and was properly analyzed by the court.
(4) The number of alleged offenses unadjudicated and pending against the respondent.
There were no unadjudicated or pending charges against Hartpence.
(5) The previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant.
The magistrate judge found Hartpence had previously been found to be a juvenile offender in a prior adjudication of aggravated battery. Hartpence’s previous adjudication for aggravated battery occurred when he stabbed a peer in shop class with a cold chisel. The court noted the previous offense again involved a person as opposed to property, that the previous crime was of a violent nature, and that he caused injury to the victim.
(6) The sophistication or maturity of the respondent.
Hartpence argues all of the witnesses at the reconsideration hearing testified he was either emotionally or intellectually substantially below the standard for an average 17-year-old. He states that Dr. Peterson testified his home environment was emotionally and psychologically infantile. Ms. Burn and Dr. Cowan testified that Hartpence’s mental functioning and cognitive abilities were of a child much younger than 17. Hartpence argues there was overwhelming evidence of his impaired maturity level and that he should have been adjudicated as a juvenile.
The court considered Hartpence’s home environment, emotional attitude, and pattern of living. The court found that Hartpence’s sophistication and maturity weighed against prosecuting him as an adult. However, after hearing all the expert testimony at the hearing on the motion for reconsideration, the court commented:
“There’s little doubt in this Court’s minds eye that if one single component of that, that calculus of eight were to be determinative on the intellectual and the emotional development of the individual or particular subsection, subsection 6, that that factor alone might carry the, carry the case back into juvenile Court system. Nonetheless, there are other criteria that do have to be weighed in conjunction with this. . . .”
(7) Whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction.
At the reconsideration hearing, the magistrate judge acknowledged the expert testimony concerning whether Hartpence could be rehabilitated. However, the court clearly questioned whether the necessary rehabilitation could be completed prior to expiration of the court’s jurisdiction under the juvenile code. The court stated:
“I think that the testimony of each and every one of tire experts was that there are a very, veiy, very great many miles who would necessarily have to be traveled in order to bring this, this individual up, up to parity in his level of functioning, his level of intellectual, and his level of emotional development. There are simply not the years available. There are quite frankly not the resources available within the juvenile justice authority’s system to even begin to malee the necessary progress that would require, be required within the remaining years under which he could be subject to the Court’s jurisdiction so as to allow him to return to society out of that structure and not be a continuing threat to the community.”
The court’s determination that there were no resources available which were likely to rehabilitate Hartpence in the applicable time frame was well supported by the evidence.
(8) Whether the interests of the respondent or of the community would be better served by criminal prosecution.
The magistrate judge found, similar to factor K.S.A. 38-1636(e)(1), that Hartpence’s alleged offenses were highly appropriate for prosecution as an adult. At the reconsideration hearing, the judge stated that it was necessary to assure society, through the operation of the criminal justice system, that appropriate adult level sanctions were available to be imposed on Hartpence.
The magistrate judge also noted that Hartpence was 17 years and 5 months old when he committed the offenses and was nearing the age of 18 when he would be automatically prosecuted as an adult. The court emphasized that Hartpence himself was not a juvenile of tender age when he committed the offense, but was a juvenile near the age of adulthood. Weighing all the factors, the magistrate judge found the factors listed in K.S.A. 38-1636(e)(1), (2), (3), (5), (7), and (8) sufficiently outweighed the mitigating evidence in K.S.A. 38-1636(e)(6) and that Hartpence should be prosecuted as an adult.
The insufficiency of evidence pertaining to any one or more of the factors listed in K.S.A. 38-1636(e) is not, in and of itself, determinative of the issue. In re J.D.J., 266 Kan. at 218. There is no requirement that evidence be presented on each and every factor set forth in the statute. State v. Stephens, 266 Kan. 886, 892, 975 P.2d 801 (1999). The standard for evaluating the certification of a juvenile to be tried as an adult is whether the decision as a whole is supported by substantial competent evidence. It is not error for the court to give greater weight to some factors than it gives to others when evaluating the waiver. State v. Smith, 268 Kan. 222, 244-45, 993 P.2d 1213 (1999).
We find there is substantial evidence to establish factors (1), (2), (3), (5), (7), and (8) of K.S.A. 38-1636(e) in favor of adult prosecution. We also recognize there is substantial evidence to establish factor (6) in favor of keeping Hartpence in the juvenile system. This was not an easy case and the magistrate judge went to some pains in examining the totality of the situation and in setting forth his decision in great detail. The magistrate judge considered each of the 8 factors in K.S.A. 38-1636(e) and weighed those factors either in favor or against prosecuting Hartpence as an adult. Under a substantial competent evidence standard of review, it is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. In re J D.J., 266 Kan. at 223. We also do not forget that because of his age, Hartpence is presumed to be an adult in this case. The record as a whole reflects there was substantial evidence to support the magistrate judge’s decision that Hartpence should be prosecuted as an adult.
Hartpence next argues the district court erred in holding that it lacked jurisdiction to consider his appeal from the magistrate judge’s ruling.
On July 1,1998, the magistrate judge granted the State’s motion to try Hartpence as an adult. After a change in attorneys, Hartpence filed and was granted a reconsideration of the magistrate judge’s decision. In the meantime, Hartpence filed a notice of appeal, but later withdrew it, conceding an appeal was only allowed after a conviction and in the same manner as other criminal appeals pursuant to K.S.A. 38-1681. At the reconsideration hearing, the magistrate judge denied Hartpence’s motion and allowed the State to dismiss the juvenile complaint and refile charges in district court.
On March 8, 1999, Hartpence entered an Alford plea to two counts of aggravated indecent liberties with a child. The district court sentenced Hartpence to 74 months’ incarceration on the first count and a concurrent term of 46 months’ incarceration on the second count.
At the end of the sentencing hearing, defense counsel informed the court she had prepared a notice of appeal to the district court of the magistrate judge’s decision to prosecute Hartpence as an adult. The court set the matter over for hearing. After a full hearing, the district court denied Hartpence’s request for an appeal to the district court. The court held: “Daniel Hartpence’s appeal must be taken to the Appellate Court, not this Court; that this Court does not have jurisdiction to hear the appeal of the Magistrate’s finding; and order authorizing prosecution of Mr. Hartpence as an adult.”
The issue raised by Hartpence involves the interpretation of various statutes. Interpretation of a statute is a question of law and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Two statutes are in conflict. K.S.A. 38-1683(a) provides that “[a]n appeal from a district magistrate judge shall be to a district judge.” On the other hand, K.S.A. 38-1681(a)(l) provides that an appeal from an order authorizing prosecution as an adult “shall be taken only after conviction and in the same manner as other criminal appeals.” Although Hartpence did not ask the district court to consider K.S.A. 38-1683(a), he asks this court to reverse based on the statute.
When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling. State v. Wilson, 11 Kan. App. 2d 504, Syl. ¶ 1, 728 P.2d 1332 (1986); see State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985). K.S.A. 38-1683 is the general statute in the situation presented to the court. K.S.A. 38-1683 applies to all decisions of a magistrate judge. However, K.S.A. 38-1681 applies only to decisions concerning a determination that a juvenile should be prosecuted as an adult.
K.S.A. 38~1681(a)(1) states that the appeal shall be only after a conviction and in the same manner as other criminal appeals. Interpreting K.S.A. 38-1681(a)(1) leads to the conclusion that the district court did not err in finding an appeal of a magistrate judge’s decision to prosecute a juvenile as an adult is properly filed with the appellate courts, not the district court, after a conviction. “The rule of strict construction means that ordinary words are to be given their ordinaiy meaning.” Matjasich v. State Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001). We read K.S.A. 38-1681(a)(l) to mean that after a juvenile has been tried and convicted as an adult under the Kansas Criminal Code, the normal appeal goes to the appropriate appellate court, and the appeal of the magistrate judge’s decision to prosecute the juvenile as an adult will follow along with that criminal appeal.
Our research of Kansas case law supports our ruling that the district court did not err in finding it lacked jurisdiction. All cases addressing the appeal of an order authorizing prosecution of a juvenile as an adult have been to the Kansas appellate courts. No party has challenged jurisdiction. See, e.g., State v. Smith, 268 Kan. 222; Findlay v. State, 235 Kan. 462, 681 P.2d 20 (1984).
Recently, the Kansas Supreme Court addressed virtually an identical case without any mention of whether the case was proper in terms of jurisdiction. In State v. Avalos, 266 Kan. 517, 974 P.2d 97 (1999), the Kansas Supreme Court considered an appeal from a district magistrate judge’s order authorizing the defendant’s prosecution as an adult pursuant to K.S.A. 38-1636. Avalos entered an Alford plea to lesser charges and then appealed the decision to the Kansas Supreme Court. We find the Avalos court’s addressing the magistrate’s decision “in the same manner as other criminal appeals” to be the proper procedure for an appeal of the decision.
Next, Hartpence argues the decision that he should be prosecuted as an adult increases the penalty for an offense; therefore, such decision should be made by a jury beyond a reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Hartpence lists his possible dispositions as a juvenile and then compares that to the potential sentences on the sentencing guidelines grid for commission of severity level 1 and 3 crimes. There apparently are no factually similar cases to support his argument. He does cite the language in Apprendi that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutoxy maximum must be submitted to a juxy, and proved beyond a reasonable doubt.” 530 U.S. at 490.
The State responds that Apprendi should not be extended to the case at bar. The State argues the magistrate’s decision to try a juvenile as an adult is a jurisdictional determination, not a sentencing determination as was the case in Apprendi and our Supreme Court’s decision following Apprendi in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
Only a handful of cases have addressed this issue. In Gould, Justice Abbott in his dissent foreshadowed Hartpence’s argument:
“I am troubled by other matters, although I recognize that they probably do not fall under Apprendi. For instance, cases frequently come before us where, if the defendant is tried as a juvenile, the most he or she will have to serve is a few years. If, on the other hand, the defendant is tried as an adult for the same offense, he or she may face up to 100 years. We have other areas of law in which similar results are reached, and although they do not fall under Apprendi, they seem fundamentally unfair in light of Apprendi.” 271 Kan. at 414.
Two cases have addressed Apprendi in the context of juvenile matters. However, in each case the adjudication was resolved in juvenile court proceedings and then enhancement of sentence was applied following the resolution in juvenile court. Commonwealth v. Quincy Q., a juvenile, 434 Mass. 859, 753 N.E.2d 781 (2001); State v. Gonzales, 130 N.M. 341, 24 P.3d 776 (Ct. App. 2001). This type of enhancement is not applicable to the case at bar.
Kansas, as well as most other state jurisdictions, has statutes allowing a court to waive or transfer juvenile court jurisdiction and direct that a juvenile be prosecuted as an adult under the applicable criminal statute. K.S.A. 38-1636(f)(l). In making its determination of whether to try a juvenile as an adult, the court considers the eight statutory factors listed in K.S.A. 38-1636(e). We will not extend Apprendi to the level of proof necessaiy in establishing the factors in K.S.A. 38-1636(e).
Apprendi involved the sentencing phase of a prosecution. The New Jersey hate crime statute in Apprendi authorized an increase in the maximum prison sentence based on a judge’s finding that the defendant acted with the purpose to intimidate because of, inter aha, race. 530 U.S. at 470-71. Here, we are dealing with a determination of in which court a juvenile will be tried for resolution of his or her case and not whether an individual will be sentenced beyond the statutory maximum. This decision is akin to a jurisdictional determination. The court in State v. Muhammad, 237 Kan. 850, 856, 703 P.2d 835 (1985), stated of the process:
“While a waiver hearing involves a substantial right subject to the requirements of due process, it is not adjudicatory in nature in that it does not result in any determination of guilt or innocence or in confinement or punishment. It is merely a preliminary process to determine the type of adjudicatory procedure to be carried out at a later date. The only decision is dispositional in that the court determines whether further proceedings will be under the juvenile offenders code or under the Kansas criminal code.”
Also, a juvenile court system, in which juveniles are given preferential treatment, is not constitutionally required. The court in Commonwealth v. Wayne W., 414 Mass. 218, 223, 606 N.E.2d 1323 (1993), stated: “A State that elects to commit to its judiciary the responsibility of determining whether [an individual] will be tried as a juvenile or an adult . . . must observe only the constitutional due process requirement of essential fairness.”
The determination of whether a juvenile should be tried as an adult is made by a court after considering the statutory factors in K.S.A. 38-1636(e). We hold a court’s determination of the matter does not offend Apprendi.
Last, Hartpence argues the presumption in K.S.A. 38-1636(a)(2) that he is an adult violates his constitutional rights under the Due Process Clause. Hartpence acknowledges that his argument has been rejected by the Kansas Supreme Court in State v. Coleman, 271 Kan 733, 26 P.3d 613 (2001). However, he states he is preserving the issue for any subsequent federal appeal.
The Coleman court stated: “The presumption in K.S.A. 38-1636(a)(2) is rebuttable. The presumption does not improperly shift the burden of proof to the defendant on any elements of the offenses charged. The presumption in K.S.A. 38-1636(a)(2) does not violate procedural due process rights.” 271 Kan. at 738.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 808, 975 P.2d 807 (1998). There is no indication the Supreme Court is departing from its previous position.
Affirmed. | [
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Beier, J.:
Putative natural father C.H. appeals the termination of his parental rights to D.T.
D.T. was bom on October 2, 1999. Within 6 weeks, a child in need of care (CINC) petition was filed, describing D.T.’s father as unknown. D.T. was placed in the custody of the Secretary of Social and Rehabilitation Services (SRS), where she remained at the time of the district court hearing on C.H.’s rights.
The district court terminated the rights of D.T.’s natural mother but was forced to continue the matter because the putative natural fathers had not received sufficient service of process. One putative natural father’s rights were eventually terminated, and the court held a hearing on November 7, 2001, as to C.H.
C.H. testified that he had a year-long sexual relationship with the natural mother of D.T., during which D.T. was conceived. C.H. admitted that he had held D.T. only twice since she was bom, both times before he was incarcerated in August 2000. He had not had any contact with D.T. or supported her for more than a year. C.H. also admitted that he did not know whether D.T. was his daughter, but he stated that he wanted to take sole custody of her if he was determined to be her father. C.H. asked the court to continue the hearing for 10 more months until he was released from prison.
The district judge terminated C.H.’s rights at the conclusion of the hearing, saying:
“All right. Mr. [H.], I appreciate what’s in your heart; but I can’t wait ten months for you to get out of jail and then how ever many months it would be after that for you to get yourself set up and in a position to maybe take care of this child. This child has been in the legal custody of the state of Kansas since November of 1999. Basically all but one month of her fife has been in the custody of the State. You apparently have con — had some on-again and off-again problems with the criminal justice system and have been in a — been locked up for a good portion of that time. As a result of that, you haven’t been able to provide any support. You haven’t been able to visit. You haven’t been able to maintain conduct — or contact and communication. You simply, for the last two years, haven’t been able to adjust your condition to meet the needs of this child, and I can’t wait another year or past that.”
“. . . [S]o I am going to find . . . pursuant to K.S.A. 38-1583(a), that you are unfit, drat your parental rights should be terminated; and this, I do not believe, is going to change in die foreseeable future. In diese cases, we look at in what we call ‘child time’ and not ‘adult time’; and another year, year and a half is an awful long time in the life of a two year old child to wait and see if maybe you could get together and •— be a father. Therefore, I am ordering your rights terminated. I believe die facts I have discussed cover those statutoiy factors found in K.S.A. 38-1583(b)(4), (b)(8), (c)(2); and under 38 -1583(e) giving primary consideration to the physical, mental, and emotional needs of the minor child, it’s abundantly clear to me drat I need to terminate die father’s rights so that SRS can retain custody with the Court’s consent to adopt and continue to take steps to ñnd a permanent home for this child.”
The standard of review in an appeal from a termination of parental rights case is whether substantial competent evidence in the record supports the district court’s finding that the parent is unfit. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. The appellate court reviews the evidence in the light most favorable to the party prevailing below and does not reweigh the evidence or substitute its judgment for that of the district court. In re C.C., 29 Kan. App. 2d 950, 952, 34 P.3d 462 (2001).
C.H. argues the district court lacked substantial competent evidence to find that he was unfit and that it was in D.T.’s best interest to terminate his rights.
K.S.A. 2001 Supp. 38-1583(a) provides that, once a child has been adjudicated to be a child in need of care, the court may terminate parental rights if it “finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” The statute provides a nonexclusive list of factors the district court may consider, and subsection (e) provides that the ex istence of any one of the factors alone may establish grounds for termination. K.S.A. 2001 Supp. 38-1583.
In this case, the district court relied upon physical, mental, or emotional neglect of D.T.; C.H.’s lack of effort to adjust his circumstances, conduct, or conditions to meet D.T.’s needs; and C.H.’s failure to maintain regular visitation, contact, or communication with D.T. See K.S.A. 2001 Supp. 38-1583(b)(4), (b)(8), and (c)(2).
The record amply supports the existence of these factors favoring termination.
C.H.’s contact with D.T. was dramatically infrequent and superficial, even when the time and tandem incapacity of his incarceration is eliminated from the calculus. He also admitted that he had not contacted or supported D.T., although, in our view, these activities would not necessarily have been prohibited by his prison time. The additional delay before he could assume more direct parenting also was fair game for consideration. C.H.’s argument that a further wait of 10 months was reasonable because it would be in D.T.’s best interest to live with her natural father glorifies his momentary contribution to her creation over her need for a permanent and stable home. He fails to recognize that the courts must strive to decide these cases in “child time,” rather than “adult time.” See In re C.C., 29 Kan. App. 2d 950, Syl. ¶ 2. D.T. had already spent all but 1 month of her short life in State custody; the district court was justified in finding that 10 additional months were more than C.H. — or we — should ask of her.
Affirmed. | [
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The opinion of the court was delivered by
Mason, j. :
The Marion Auditorium Association is a corporation, organized in 1904 under the laws of this state, the purposes of which are thus stated in its charter: “To lease or purchase a site in Marion, Kansas, and to erect a building thereon, and furnish same in a proper manner; and for the support of literary and scientific léctures, and public entertainments, and the promotion of music and other fine arts; and a place for all kinds of public meetings, innocent sports and amusements.” Shortly after its organization it procured a site and erected an auditorium, of which Jerry Forney was made manager. In 1906, by its board of directors, it executed an instrument undertaking to lease the building (with some restrictions as to its use) for an annual rental of $250 to T. O. Kelley for a period of five years, which might at his option be extended for five years more. The board also made an order abolishing the office of manager. Forney, however, claimed to be in possession of the property and refused to vacate it.'' Kelley thereupon brought an action of forcible entry and detainer against him, which was taken to the district court on appeal. There a demurrer was sustained to the evidence of the plaintiff, who prosecutes error.
The defendant’s claim, upon which the ruling complained of was based, is that the auditorium association was not a purely private corporation, but was charged with duties to the public which it could not avoid; and that the lease it executed involved an attempted evasion of its obligations in this regard and was therefore an absolute nullity for all purposes, and gave the lessee no right upon which he could maintain an action. It has often been held that a public-service corporation, such as a railway company, can not without express legislative consent lease property which is necessary to the exercise of its public functions and thereby escape responsibility for their proper performance. (10 Cyc. 1092, 1095, 1152; 7 A. & E. Encycl. of L. 747; 29 A. & E. Encycl. of L. 63.) It may well be doubted whether the description above given of the purposes for which the auditorium association was chartered shows it to be a qmsi-public corporation óf the class to which the principle invoked would under any circumstances be applicable. But waiving that consideration, Forney’s contention must fail for the reason that he has no standing to question its authority to execute the lease. In Harris v. Gas Co., 76 Kan. 750, this court held that ordinarily the question whether a corporation has exceeded its powers in entering into a contract can be raised only by the state or by a stockholder. But it is not necessary for the purposes of the present case to invoke that doctrine. The general rule is that “a stranger to the transaction, and [one] to whom the corporation owes no duty, can not set up the question of want of authority in the corporation.” (29 A. & E. Encycl. of L. 80. See, also, 10 Cyc. 1166, and cases collected in 12 Cent. Dig. cc. 1593-1598; 5 Dec. Dig., pp. 1099-1101.) It is true that Forney appears not only to have been a stockholder in the corporation but to have owned a majority of the stock. If his rights in that capacity were invaded by the lease he might have attacked its validity in an appropriate proceeding. But an action of forcible entry and detainer is not of that character. It is designed only to provide a summary inquiry into the right of immediate possession. The ownership of stock gave Forney no right of direct control of the property, and no standing to challenge the power of the association to execute the lease. Whatever possessory right he ever had was due to his having been selected as manager. The order of the board of directors abolishing that office, not being shown to have been invalid, must be deemed to have terminated that right. Whether or not the corporation in executing the lease violated any duty it owed to the state or to its stockholders, it violated none that it owed to Forney in any capacity affecting his right to retain control of the property. The evidence therefore tended to establish the plaintiff’s cause of action and the demurrer to it should have been overruled.
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
Johnston, C. J.:
In an action brought by the Johnson Realty Company against Jeremiah Feik to recover a commission for promoting an exchange of Oklahoma land for a farm in Kansas, the plaintiffs recovered a judgment for $300. The answer of Feik was (1) a general denial, (2) an admission that the exchange pleaded had been made, but there was an averment 'that plaintiffs had not brought about the exchange, and further, that their agency had been revoked before the negotiations for the exchange were begun. The third defense was largely a repetition of the second, to the effect that the exchange of lands had been negotiated between the parties, but not through the agency of the plaintiffs; that Breniser, with whom the exchange was made, was presented to him by another agent, and an averment was added that if plaintiffs had anything to do with the transaction they were acting for Breniser, and defendant believed that plaintiffs had been paid a commission for their services by Breniser. There was also an allegation that Breniser had not fully complied with all the conditions of the agreement 'to exchange. When the evidence was closed the court instructed the jury, and among other things stated that the averments of the defendant designated as the third defense were not submitted to the jury. On this appeal the defendant brings up the pleadings, instructions, two of the special findings, the verdict and judgment; but none of the evidence is contained in his abstract and it is said that no transcript of the evidence was prepared or filed.
Defendant complains of the refusal of the court to submit his third defense, and insists that he had pleaded a dual employment of the plaintiffs, or rather that they had acted for Breniser and not for defendant and had received compensation from the former. As we have seen, most of the matter stated in the third defense consisted of denials that defendant employed the plaintiffs, and allegations to the effect that they had not procured Breniser to exchange lands with the defendant. A special finding was returned by the jury to the effect that the defendant orally agreed to pay the plaintiffs $300 as their commission for their part in effecting the exchange. It is contended that the defendant was entitled to have the question of dual agency and the payment of a commission by Breniser — something of which the law disapproves —submitted to the jury. A double employment is not illegal if it is done with the full knowledge and consent of both parties. (Crawford v. Investment Co., 91 Kan. 748, 139 Pac. 481.) However, as the evidence is not preserved it can not be said that .there was error in the refusal to submit this question to the jury. If there was no evidence upon the issue the court would not have been warranted in submitting it to the jury for determination. Error can not be presumed, but must.be made to appear in the record. In the absence of the evidence or a statement that there was evidence offered in support of the issue it must be presumed here that the court found no basis in the evidence for such an instruction. As the récord stands it might even be presumed that the defendant had eliminated the issue by requests or waivers made during the trial and before the instructions were given to the jury. (Davidson v. Timmons, 88 Kan. 553, 129 Pac. 133.)
As no error is apparent in the abstract and record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff brought this action on three promissory notes given to him by the defendants. Defendant Sparks, in his answer, admitted the execution and delivery of the notes, but said that he signed them as surety only, and on the oral agreement between plaintiff Goutermont and defendant Bland and Sparks, that to secure the payment of the notes the plaintiff would take a chattel mortgage, signed by defendant Bland, on a certain printing plant; and further said that the plaintiff failed to take the chattel mortgage, and that by reason of such failure defendant Sparks was released from all liability on the notes. Judgment was rendered for defendant Sparks. The plaintiff appeals.
On the trial, evidence was introduced tending to prove that prior to signing the notes defendant Bland had agreed with the plaintiff to give him a chattel mortgage on the printing plant for the purchase price of which the notes had been given in part payment; that defendant Bland had told defendant Sparks of this agreement to give a chattel mortgage; that Bland agreed with Sparks to give the plaintiff such chattel mortgage; that thereupon Sparks signed the notes, but with the understanding and agreement with Bland that the notes should not be delivered to the plaintiff until the chattel mortgage had been given and properly filed and recorded; that Bland told the plaintiff of this understanding and agreement with Sparks before the notes were delivered to the plaintiff; and that the chattel mortgage was not given.
The plaintiff complains of the introduction of this evidence, and argues that it contradicted, altered, added to and varied the express promise to pay, set out in the notes.
Sparks could not be held liable as surety on the notes if his signature thereto was obtained on condition that Bland would execute a chattel mortgage to Goutermont to secure the payment of the notes, and on the further condition that they were not to be delivered until the chattel mortgage had been given; and if, notwithstanding'these conditions, and without the chattel mortgage having been given, the notes were delivered after Goutermont had learned from Bland that the notes were not to be delivered until the chattel mortgage had been given. In Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016, this court said:
“Between the original parties to a written instrument the rule excluding parol • evidence in contradiction of a written agreement is not infringed by proof that the instrument was never delivered, or was delivered to take effect only upon the happening of some future event.” (Syl. ¶ 3.)
(See, also, Burke v. Dulaney, 153 U. S. 228, 234; Myers v. Fry, 18 Ill. App. 74; Hardwick Savings Bank v. Drenan, 71 Vt. 289; 27 A. & E. Encycl. of L. 445; 32 Cyc. 44, 48, 174).
It was proper to introduce evidence to show that the signature of Sparks was obtained to the note on the condition named..
The suggestion is made that Sparks had no interest in Goutermont’s taking the chattel mortgage. This is urged by way of argument to show that parol evidence was incompetent. The answer to that argument is that on the payment of the notes by Sparks, he would have been subrogated to the rights of the plaintiff under the chattel mortgage, had one been given. (Note, 68 L. R. A. 513, 520, 528, 534; 37 Cyc. 402.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment enjoining them from interfering with the sale of “Mary Jane,” a product manufactured by the plaintiff, and from attempting to compel the plaintiff to label “Mary Jane” a compound.
The plaintiff is engaged at Granite City and Argo, 111., in the manufacture of a table syrup composed of eighty-five per cent corn syrup or glucose, ten per cent molasses and five per cent sorghum. This syrup is sold under the name “Mary Jane” in cans labeled as follows:
“5 Pounds Net
MARY JANE
Reg. U S Pat. Off.
Mary Jane is guaranteed by Corn Products Refining Co. to comply with the Food and Drugs Act, June 30, 1906. Registered under serial number 2317.
Mary Jane. A Table Syrup ■ Prepared from Corn Syrup, Molasses and Pure Country Sorghum. Contains Sulphur Dioxide.
M’f’i by
Corn Products Refining Co. General Offices — New York, U. S. A.”
The defendants constitute the Kansas state board of health. They contend that Mary Jane is misbranded in several particulars. Two of these dispose of this case. The defendants claim that “Mary Jane” is a compound, and that it is misbranded because the place of its manufacture or production is not shown, and because it is not specifically stated that “Mary Jane” is a compound. The defendants, through inspectors acting under the direction of defendant S. J. Crumbine, the secretary of the board, have notified the plaintiff’s agents and representatives that “Mary Jane” is misbranded; that it is unlawful to sell it in Kansas as it is branded, and that those who sell it will be prosecuted.
Does the law require that this label shall contain a statement showing the place where “Mary Jane” is manufactured or produced ? Part of section 3082 of the General Statutes of 1909 reads:
“Provided, That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: First, in the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with the statement of the place where said article has been manufactured or produced.”
The defendants contend that “Mary Jane”, is not a distinctive name for the article sold. It is not necessary to pass on that question at this time. We will assume, for the purposes of discussing the question now under consideration, that “Mary .Jane” is a distinctive name and that the article sold thereunder is a mixture or compound, and is not an imitation of, or offered for sale under the distinctive name of, any other article. The label then, so far as the provisions are concerned, complies with the law; but the label contains no statement of the place where “Mary Jane” is manufactured or produced. The statute requires that this be shown, and the label does not conform to the statute unless it is shown.
Is it necessary that the word “compound” appear in the label? The statute covering this question reads:
“Second, in the case of articles labeled, branded or tagged so as to plainly indicate that they are compounds, imitations or blends, and the word ‘compound,’ ‘imitation,’ or ‘blend,’ as the case may be, is plainly stated on the package in which it is offered for sale.” (Gen. Stat. 1909, § 3082.)
The statement on the label showing the ingredients from which “Mary Jane” is manufactured apparently indicates that it is a compound table syrup. However, it is not plainly stated that it is a compound. So far as this label shows, the process of manufacture may be such that the article produced is an entirely new product manufactured from, and not one composed of, corn syrup, molasses and sorghum. The label says that “Mary Jane” is “prepared from corn syrup, molasses and pure country sorghum,” but “prepared from” does not necessarily mean “composed of” these ingredients. If “Mary Jane” is a compound, and the evidence shows that it is, the labels on the cans in which it is offered for sale should plainly state that fact.
So long as neither of these provisions of the statute has been complied with, an injunction should not issue against the board of health to restrain it from using all legal means for the enforcement of the law.
It is not necessary to discuss the other questions presented by the defendants. The judgment of the district court is reversed and that court is directed to enter judgment for the defendants.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to set aside three deeds of real estate. A demurrer was sustained to the plaintiff’s evidence and she appeals.
On March 9, 1904, Bowen Small, the owner, executed and acknowledged a deed of the property, which .is a farm of 160 acres; to his children and grandchildren. On September 25, 1910, he married the plaintiff." On December 2, 1910, he died intestate. At the time of his death he lived with his wife in a home which he owned in the city of Severance. After his death his estate was probated. His widow remarried, but was divorced from her last husband when the present action was commenced. In September, 1911, at the solicitation of an agent of the defendants, the plaintiff executed and delivered a deed quitclaiming her interest in the farm to the grantees in the Bowen Small deed. A second deed of the same tenor was executed and delivered by the plaintiff to correct a verbal inaccuracy in the first one. These deeds were promptly recorded. The deed of Bowen Small was not recorded until after his death. The action was brought in January, 1915.
The petition alleged that the deed of Bowen Small was void because it had not been delivered by the grantor. The plain tiff testified that Mace Small, a son of Bowen Small, had charge of the farm, farmed it, and paid rent to his father. She said that Mace Small told her, after his father’s death, that he was giving his brother, Beattie Small, the rents. Bowen Small kept some stock on the farm and would go there two> or three times a week. Sometimes the plaintiff would go with him. A week or so after Bowen Small’s death, Mace Small and Beattie Small came to the plaintiff’s house to look for some papers they said they had to have. They did not say what papers. Twice afterwards they came on the same mission, and on one occasion said a paper was lacking which they could not find. They got papers each time, but the plaintiff did not know what the papers were. The deed in question was filed for record on December 8, 1910. It recited that the grantor was a widower, that it was made in consideration .of one dollar and love and affection, and it was in form a warranty .deed.
The foregoing evidence did no more than furnish a basis for speculation as to whether or not the deed was among the various papers taken from the decedent’s home after his death. The missing paper may very well have been one necessary to the probate proceedings. Mace Small and Beattie Small were not called to testify on the Subject. The register of deeds was not called to identify the person who filed the deed for record, and no attempt was made to trace possession of the instrument backward from presentation for. registration. The notary public who took the acknowledgment was not called to tell what became of the deed after it passed under his seal. The evidence fails to' give any account whatever of the instrument from the date of execution to the date of filing.
The circumstantial evidence touching the subject of proprietorship of the farm did no more than furnish a basis for conjecture. The belief is quite common that a deed delivered before death, but accompanied by some arrangement reserving beneficial use until death, is a better way of disposing of property than by will. The grantees of Bowen Small were his children and grandchildren, and the circumstances that the one who occupied and farmed the place paid rent, and permitted stock to be kept there, were insufficient to warrant the court in making a positive finding of non-delivery. There is no presumption of fraud or wrong doing on the part of Mace Small, Beattie Small, or any one else, and the burden rested on the plaintiff to furnish substantial evidence to establish her charge that the deed had not been-delivered in her husband’s lifetime.
The petition alleged that Bowen Small married the plaintiff after making the deed and that she had no knowledge of the fact that it had been made. The allegation does not amount to a charge of fraud upon the plaintiff’s marital rights, and if it did, there was no evidence to sustain it. There is no evidence that Bowen. Small contemplated marriage or even knew the plaintiff when the deed was made. He discussed his financial resources with the plaintiff and enumerated some of them, but did not include the farm among them. He told her he had money in the bank and money loaned out to the children; that he was not wealthy, but that he had plenty to keep her as long as she lived. She said she knew he had a home, and that she ' had one. When presséd for an answer, she would not say she ever believed her husbafid owned the farm. Her strongest statement was, “I just thought it belonged to the Smalls.”
Since the plaintiff failed to show sufficient cause for cancellation of the deed made before her marriage with Bowen Small, it is not necessary to discuss the evidence relating to the validity of the deeds obtained from the plaintiff to remove whatever shadow rested on the defendant’s title because the deed from Bowen Small was not recorded until after his death.
The judgment of the district court is affirmed. | [
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Gernon, J.:
Darold R. Shoptaw appeals his convictions of three counts of rape for engaging in sexual intercourse with his 13-year-old daughter, J.S.
Shoptaw raises three issues on appeal: (1) the omission of a multiple acts unanimity instruction, (2) the denial of discoveiy of or an in camera review of psychological records of the victim, and (3) the refusal of a request for a psychiatric examination of the victim.
The sad and sordid facts of this case involve Shoptaw’s daughter, who was living at home with her father, her 20-year-old brother and his wife, and her 15-year-old brother. Her mother had moved out of the house.
Authorities were called to a middle school when J.S. came to school pregnant. After some investigation and after the deliveiy of a child, DNA tests concluded that neither of the two males J.S. had stated she had had sex with was the father of the child. It was then that she disclosed that she had had sex with her two brothers. One of the brothers was determined to be the father of the child.
J.S. testified that her father started touching her breasts when she was 11 years old. Her father showed her pornographic magazines and movies and asked her if she wanted to engage in the sex acts depicted. She performed oral sex on her father only one time, even though he asked her repeatedly to do so.
J.S. testified that the first time she and her father had engaged in sexual intercourse was a few months before her mother moved out. They usually had sex in her father’s bedroom, although they had done it once in the living room. J.S. testified that she thought her father had engaged in sexual intercourse with her 3 to 10 times. Sometimes J.S. would approach her father for sex if he was not feeling well or was depressed because she thought it would make him happy. When she offered to have sex with her father, he would accept. J.S. never told anyone she was pregnant and denied it to her father when he asked if she was pregnant.
J.S. testified that her father had told her before they started having sex that she did not have to worry about getting pregnant because he had undergone a vasectomy. J.S. testified that her father had warned her that the first time they had sex it might hurt. J.S. stated that her father had been asking her for months to have sex with him before she agreed.
J.S. admitted that she would sometimes approach her brothers for sex. She testified that she started having sex with her eldest brother when she was 12 years old, after her mother left the home. She started having sex with her 15-year-old brother around the same time, although she was not sure of the exact date.
Darold Shoptaw testified on his own behalf. Shoptaw denied ever engaging in sexual intercourse with J.S., touching her inappropriately, or fondling her.
MULTIPLE ACTS UNANIMITY JURY INSTRUCTION
Shoptaw first argues that he was entitled to a multiple acts unanimity jury instruction at trial, claiming the district court’s failure to include such an instruction was reversible error. He did not request such an instruction at trial, nor did he object to the instructions given.
“No party may assign as error the giving or failure to give an instruction, . . . unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 2001 Supp. 22-3414(3).
“Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
In multiple acts cases, several acts are alleged, and any one of them could constitute the crime charged. In such a case, the jury must be unanimous as to which act constitutes the crime charged. State v. Timley, 255 Kan. 286, Syl. ¶ 2, 875 P.2d 242 (1994).
“ ‘To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]’ ” Timley, 255 Kan. at 289-90.
The present case is a multiple acts case. Shoptaw was charged with three counts of rape, although J.S. testified that they had engaged in sexual intercourse 3 to 10 times.
The Kansas Supreme Court recently addressed the multiple acts jury unanimity question in State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001). Hill established the analysis for the failure to include a unanimity instruction as harmless error. As stated in Hill:
“In applying a harmless error analysis, the first step is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by a ‘fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error in failing to give a unanimity instruction was harmless beyond a reasonable doubt with respect to all acts.” 271 Kan. at 939.
In Hill, the defendant gave a general denial to participation in two digital rapes of a young girl. The defendant was charged with one count of rape, although the victim testified that Hill had digitally raped her twice. “Hill did not present a separate defense or offer materially distinct evidence of impeachment regarding any particular act.” 271 Kan. at 940.
We conclude that there is nothing in the record to support Shoptaw’s argument that separate defenses were given to distinct factual charges. The cornerstone of Shoptaw’s defense at trial was a general denial and a general allegation that J.S. was covering up for her brothers. If, as Shoptaw argues, J.S. only implicated her father to protect her brothers, such a defense applies generally to the allegations in the same way as the father’s general denial that he ever engaged in sexual intercourse with his daughter.
There was no possibility of juror confusion. Either the juiy believed J.S.’s testimony about engaging in sexual intercourse with her father, or it believed Shoptaw’s unified defense to the charges that he had not engaged in sexual intercourse with his daughter and had been falsely accused.
This case was decided based on credibility of the witnesses. Like the situation in Hill, there is no rational basis by which the jury could have found that Shoptaw committed one rape but not the others. Any error in omitting a unanimity instruction was harmless.
IN CAMERA REVIEW OF PSYCHOLOGICAL RECORDS
Shoptaw argues that the district court erred when it quashed his subpoena duces tecum issued to the Miami County Mental Health Center to obtain J.S.’s mental health records.
The defense attorney requested an in camera review by the judge or broader inspection of the records by the attorney. Shoptaw was unable to offer any evidence as to the potential relevance of the records. Rather, the records were requested to “give the defense an opportunity to consult with an expert to see if there is, in fact, a mental condition which would have something to do with the . . . case, which would have something to do with Mr. Shoptaw’s right to a fair trial.”
The Miami County Mental Health Center filed a motion to quash the subpoena based on the doctor-patient privilege of K.S.A. 65-5601 et seq.
K.S.A. 65-5602(a) contains the following language:
“A patient of a treatment facility has a privilege to prevent treatment personnel or ancillary personnel from disclosing . . . any confidential communications made for the purposes of diagnosis or treatment of the patient’s mental, alcoholic, drug dependency or emotional condition. The privilege extends to individual, family or group therapy under the direction of the treatment personnel and includes members of the patient’s family. The privilege may be claimed by the patient, by the patient’s guardian or conservator or by the personal representative of a deceased patient. The treatment personnel shall claim the privilege on behalf of the patient unless the patient has made a written waiver of the privilege . . . .”
J.S.’s attorney exercised the privilege on her behalf.
According to the attorney who argued the motion to quash for the Miami County Mental Health Center, the records were the result of the brief treatment of J.S. in 1997, when she was 10 years old. He stated:
“I do know the — the nature of the contents of this, the file and I — I can say that, if they’re looking for an evaluation, they will not find one because none was every [sic] completed. In fact, this was a very short term type of contact with the center back in 1997, and it was broken off by the family. It was not ordered by any court. It was the family, on their own, doing this. The nature of it, I don’t know, and I don’t know if it has any bearing on this particular matter, even.”
The district judge ruled that none of 14 exceptions listed in K.S.A. 2001 Supp. 65-5603 applied to the facts of the case and quashed the subpoena of the mental health records. The trial court did not review the documents in camera before granting the motion to quash.
There are no Kansas cases dealing with the request for treatment records of a rape victim when the counseling occurred before, not after, the crime.
The United States Supreme Court dealt with the request for privileged records of a rape victim in Pennsylvania v. Ritchie, 480 U.S. 39, 94 L. Ed. 2d 40, 107 S. Ct. 989 (1987). In 1979, Ritchie was charged with rape and other crimes after his 13-year-old daughter accused him of assaulting her two to three times a week for the previous 4 years. Ritchie subpoenaed the Children and Youth Services (CYS) records relating to the current allegations, as well as records from allegations investigated in 1978. The Court noted that while the records from 1978 were from a time when the daughter was allegedly being abused, it was undisputed that she did not disclose the abuse at the time.
CYS refused to comply with the subpoena, claiming that the records were privileged under state law. Ritchie argued that the records might disclose favorable witnesses, as well as other potentially exculpatory evidence. In addition, Ritchie hoped to obtain a 1978 medical report. CYS denied there was such a medical report in the records. The trial judge, acknowledging he had not read the entire CYS record, denied the motion to sanction CYS for failing to honor the subpoena and refused to order CYS to turn over the records.
The State of Pennsylvania argued that the trial court was not required to conduct an inquiry into the CYS records because the records were privileged by state statute. Noting there were exceptions to the privilege statute, the Court could not find whether the statute prevented all disclosures in the context of a criminal prosecution. Employing a due process analysis, the Supreme Court held that Ritchie was entitled to an in camera review of the CYS records by the trial court. The trial court was ordered to review the records to determine if they contained any information that “probably would have changed the outcome of his [Ritchie’s] trial.” If the trial court found any such information, then the Court ruled that Ritchie must be given a new trial. 480 U.S. at 57-58.
In State v. Humphrey, 217 Kan. 352, 537 P.2d 155 (1975), defendant Humphrey was charged with drug possession. The main witness for the State was John Eckhart, a special agent to the attorney general. Humphrey subpoenaed the High Plains Comprehensive Community Mental Health Center in an attempt to gain access to Eckhart’s records. Information had surfaced that Eckhart had been diagnosed by the center as a psychopath and pathological liar and had been diagnosed as schizophrenic at a Veterans Administration hospital. The defense wanted the records in order to discredit Eckhart’s testimony at trial. After the trial court quashed the subpoena, Humphrey appealed, claiming he was denied his right to compulsory process.
The Kansas Supreme Court held that the trial court had improperly quashed the subpoena duces tecum because the holder of the privilege (Eckhart) had not exercised it and the physician-patient privilege of K.S.A. 60-427 only applied to civil actions and misdemeanors. The Supreme Court wrote that the proper procedure would have been to allow the defendant’s attorney to examine Eckhart’s records and offer them into evidence as to Eckhart’s competence or credibility. At that point, the trial court could have ruled on the individual admissibility of the records. Humphrey, 217 Kan. at 363.
Shoptaw argues that Humphrey recognizes no physician-patient privilege under K.S.A. 60-427 in felony cases. However, we conclude that the present case does not involve K.S.A. 60-427.
J.S.’s claimed privilege to her mental health records is covered by K.S.A. 65-5602, the statutorily created privilege to patients of a treatment facility. Dicta from State v. Berberich, 267 Kan. 215, 978 P.2d 902 (1999), indicates the privilege would apply in felony cases.
“We deem it of great significance that a psychiatrist comes under K.S.A. 60-427(b) and, thus, would not have a privilege in a felony case. There appears to be a privilege to patients of a treatment facility (K.S.A. 65-5601 et seq.) that would include any employee of a treatment facility. Thus, a psychiatrist’s patients may have a privilege in felony cases in certain situations. It would seem inconsistent to grant a greater privilege to counselors and psychologists than the privilege given to a psychiatrist.” (Emphasis added.) 267 Kan. at 223.
The treatment records in the present case predate the allegations of abuse. The treatment occurred when J.S. was 10 years old, and she testified the abuse did not begin until a year later. Unlike the situation in Humphrey, Shoptaw was unable to point to anything specific in the records that would be relevant to his case. The subpoena amounted to a request to “look and see” if there was anything helpful.
Here, it is impossible to say whether any of the information contained in J.S.’s record would have been material to Shoptaw’s defense because no one involved in the case looked at the subpoenaed records.
We conclude that in order to adequately protect Shoptaw’s constitutional rights, as well as J.S.’s interest in her privileged communications with the treatment facility, the record should be reviewed by the trial judge in camera to determine if there is any evidence that probably would have changed the outcome of the trial. If the trial judge finds such information, which is unlikely given what we know about the nature and the duration of the counseling, then Shoptaw would be entitled to a new trial.
MOTION FOR A PSYCHIATRIC EXAMINATION OF THE VICTIM
Shoptaw’s final argument is that the trial court abused its discretion in denying his request for a psychological evaluation of J.S.
The standard of review of a defendant’s motion for a psychiatric examination of a complaining witness in a sex crime case is whether the trial court abused its discretion in denying such request. State v. Rucker, 267 Kan. 816, 821, 987 P.2d 1080 (1999). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
The standard for ordering a psychiatric examination of a rape victim in Kansas was established in State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979). The Kansas Supreme Court held that “a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination.” 226 Kan. at 489.
State v. Bourassa, 28 Kan. App. 2d 161, 166-67, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000), held that the trial court abused its discretion when it refused to allow a psychiatric exami nation of an alleged 11-year-old victim after the defendant was able to proffer evidence of her mental instability including: a recent charge against her father of sexual molestation, kitten mutilation, soiling herself, the use of Prozac, and counseling for behavioral disorders.
A more recent case, State v. Price, 30 Kan. App. 2d 569,43 P.3d 870 (2002), held that the trial court abused its discretion when it refused to allow a psychiatric evaluation of the 7-year-old alleged victim, F.B. The defendant’s motion for a psychiatric examination included: F.B.’s initial disclosure of the abuse in writing, F.B.’s admission of prior sexual contact with her stepbrother, and F.B.’s reference to herself as a Mar in letters to her mother. Noting that the facts of this case were atypical, the court ordered a new trial because “F.B.’s own statements concerning her lack of veracity and the absence of corroborating evidence constituted sufficiently compelling reasons for F.B. to be evaluated.” 30 Kan. App. 2d at 575-76.
Here, Shoptaw argued that the psychiatric examination was required because J.S. was the sole witness, no physical evidence corroborated her claims of abuse, J.S.’s testimony was vague, J.S. had changed her story in relation to the dates of the abuse, and J.S. had recently experienced traumatic events in her life.
None of the factors claimed by Shoptaw at his motion for a psychiatric evaluation rise to the íevel of compelling evidence as required by Gregg. There was no evidence presented calling into question her mental veracity or ability to tell the truth as there was in Price and Bourassa. While J.S. admitted to a longer history of abuse over time than she had in the initial taped interview, this does not call into question her ability to tell the truth. In fact, all three of the other men she accused of engaging in sexual intercourse with her admitted to doing so.
The trial court did not abuse its discretion in denying Shoptaw’s motion for a psychiatric examination.
Affirmed in part, reversed in part, and remanded with instructions that the trial court perform an in camera inspection of J.S.’s mental health records and, if there is any information in such files which probably would have changed the outcome of the trial, then a new trial should be ordered. | [
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Per Curiam:
It is impossible to say whether the verdict rests upon the defense of alteration, or the one including fraud, or want of consideration and notice. There is no evidence of notice. The authority of Fist to take notes, as the one in suit was taken, is not in question. That he was an agent, that the note was taken in a matter connected with his agency, and that it was taken in his own name, did not put the indorsee on inquiry respecting any defenses the maker might have. The indorsee could not tell that the note had been altered from its appearance. Perhaps the jury concluded it had not been altered. It is a common thing to make erasures and interlineations in contracts before signature and delivery, and so far as the abstract and evidence show nothing striking or unusual appeared on the face of this one. It was not important who canceled the revenue stamp, and a cancelation by another than the maker, whose initials were used, was not a suspicious circumstance. Fist was not a stranger in the sense of the quotation appearing in Kennedy v. Gibson, 68 Kan. 612, and the fact that the note sold was that of a farmer does not justify an inference of bad faith on the part of the purchaser. Nothing else putting the purchaser on inquiry is urged in the brief or appears in the abstracts. The court erred in submitting to the jury the defense, including notice to the purchaser, and its judgment is reversed and the cause is remanded for a new trial. | [
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Per Curiam:
The plaintiff in error presents for review nothing but a question of fact. It is conceded, and properly conceded, that the commissioners had the power to review, re-mark and straighten the highway, and to establish it south of the plaintiff’s fence, but it is contended they took no such action. It is said-the purpose was to put the highway on the section-line; that whatever the commissioners did was done in execution of such purpose; that by mistake the true section-line was missed; and hence that no matter where the survey ran or the marks were placed the road is still on the section-line, which, under the circumstances, is the Edwards line. The legal conclusion would doubtless be sound (Shanline v. Wiltsie, 70 Kan. 177) if the facts were as the plaintiff states, but the fifth finding is against him. It excludes the notion of a mistake made in an ineffctual attempt to conform to the section-line and the marking out of the road at a place not intended, and declares that the commissioners actually determined the definite location of the road and marked out its course.
The plaintiff appeals to the evidence, and points out testimony of two of the commissioners that they in tended to put the road on the section-line and testimony of the surveyor that he intended to follow the government line according to the field-notes. Such testimony was indeed given, but it is only a fragment of the whole.
The court did not find that the Edwards survey was correct, but simply that the parties can not now dispute it. The commissioners testified they did not know the location of either the government line or the Edwards line. The evidence clearly shows that a straight line does not coincide with either one. The commissioners did not order the surveyor to find either one, which if followed would have made a crooked road, but ordered him to run a straight line for the road, which he did, adhering to the section-line as nearly .as possible. He testified the intention was to straighten the line; that the intention was not to put the- road on. the government line, but to get a.straight line for the three miles of road. He made a report of just what was done, and attached to the report a plat showing a straight road three miles long. The commissioners in their written report as viewers recommended that the road be straightened according to the surveyor’s report, and in their order as a board they ordered the road established according to the report and survey, which necessitates a straight line. They marked the straight line so surveyed, so platted, so reported and so adopted in a conspicuous manner on the ground as the line of the road. Now, all this indicates that the real intention was to follow the section-line as closely as possible, but wherever the section-line deviated from the surveyed line the latter should be the course of the road.
If this be the correct interpretation of the evidence the trial court is justified. If not, the most that can be said on the plaintiff’s side is that some of the oral evidence conflicts with the official record of the proceeding. In that event the court had the right to fall back upon the full and accurate record of what was plainly done as the best evidence of what was intended to be done, and it still must be sustained.
The judgment is affirmed. | [
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Per Curiam:
C. A. O’Meara entered into a contract with G. P. M. Heer by the terms of which O’Meara was to convey to Heer' a farm and Heer was to convey to O’Meara a residence property in .Topeka and to pay O’Meara $750 boot-money. Each party was to furnish the other an abstract showing good title, and the exchange of deeds and payment was to be made on or before April 23,1907. There was evidence tending to show that one R. D. Sheldon, a real-estate agent, acted as. the agent of both parties in bringing about the transaction, of which fact both had knowledge. On April 28, 1907, O’Meara went to Sheldon’s office with his deed and abstract, and Sheldon went to Heer’s office and got Heer’s deed, abstract, and $750 in cash, and, returning to his office, where O’Meara was, asked for O’Meara’s deed and abstract, which were given to him. Sheldon thereupon handed to O’Meara Heer’s deed, abstract and $638.75; also, his personal receipt to O’Meara for $111.25 for his (Sheldon’s) commission. O’Meara refused to close the deal upon that basis, claiming that he owed Sheldon no commission, .and demanded a re-exchange of papers and money, which Sheldon refused. O’Meara went to see Heer in regard to the matter and Heer referred him back to Sheldon.
After considerable controversy, the transaction was ■closed as indicated by the following receipt, which ■O’Meara signed and delivered to Sheldon:
“The Sheldon Real Estate Company.
Topeka, Kan., April 23, 1907.
“Received of R. D. Sheldon deed to lots 34 and 36 on Western avenue, in Douthitt Place, Topeka, Kan., and the sum of $638.75; it being understood that by the receipt of said deed and money I do not waive my right to the further sum' of $111.25, which the said R. D. Sheldon has retained and refuses to pay over on the ■claim that he is1 entitled to said amount as commission from me, and which claim I deny the validity of and refuse to pay. C. A. O’Meara.”
Thereafter O’Meara brought this action against Heer to recover $111.25. The district court rendered judgment in favor of Heer.
By the settlement the transaction was closed as between O’Meara and Heer. If O’Meara had any claim for the $111.25 it was against Sheldon, and not against Heer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
O. C. Lund was convicted of criminal libel, and appeals. The information alleged that he had written a letter imputing unchastity to a wife and given it. to her son to give to her husband, adding “thereby procuring said letter and communication to be delivered to the said- [wife] and read by her.” He contends that the only publication of the libel charged was one made to the wife, and that the state failed to prove the offense as charged because, although there was evidence that she in fact saw the defamatory communication, which was shown to her by her husband, there was nothing to indicate that the defendant intended or expected her to see it. The general -rule, at least in civil cases, is that the originator of a defamation is responsible only for such publication as is the natural and probable consequence of his own act (25 Cyc. 430; 18 A. & E. Encycl. of L. 1018; Lyon v. Lash, 74 Kan. 745), and it may be conceded that the defendant was not bound to anticipate that a husband would exhibit such a letter to his wife. But granting that the state failed to prove that the defendant procured the letter to be delivered to the wife, the concession avails him nothing, for the allegation in that regard may be rejected as surplusage, leaving a good pleading supported by abundant evidence. Although the information fails to allege that the husband read the letter, it does say that the defendant gave it to his son to give to' him, and that is all that is necessary either in pleading or proof.
“An averment that defendant published a certain libel, or an allegation of facts showing that he parted with it under circumstances which exposed it to be seen and read by others without averring that it was so seen or read, is sufficient.” (25 Cyc. 577.)
(See, also, The State v. Dowd, 39 Kan. 412; 13 Encyc. Pl. & Pr. 100.)
“If the accused, with intent to scandalize, affords, or causes to be afforded, to another an opportunity of learning the contents of the libelous instrument, he is guilty of a publication, although in fact the contents do not thereby become known.” (25 Cyc. 570.)
The state pleaded more than it proved regarding a publication to the wife, and proved more than it pleaded regarding a publication to the husband, but since it pleaded and proved all that was necessary to a conviction the excess in neither instance is ground for reversal.
Complaint is also made, of a variance between the pleading and evidence as to the defamatory language. The information quoted only so much of the libelous communication as charged the wife with having been unchaste. The letter in fact contained the additional words “when you lived in Clifton.” The defendant argues that this limitation as to time was a material qualification, as it showed that the wife was charged with past and not present misconduct, and that its omission deprived him of an opportunity to justify by proof of unchastity during the period referred' to. There is nothing substantial in the contention. No actual prejudice could have resulted from the failure to set out the entire letter. The requirement that the words proved shall correspond with those pleaded has indeed in some cases been pressed beyond reasonable limits — as where a variation in the tense has been held fatal. (See 13 Encyc. Pl. & Pr. 67.) But the usual or at all events the better rule is that the defamatory language need only be proved substantially as laid, and proof of additional words, not altering the sense of those set out, does not constitute a fatal variance. (25 Cyc. 579; 13 Encyc. Pl. & Pr. 65.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action plaintiff sought to recover $200 from defendants as cash rent for the use of a house in accordance with the terms of a lease to which defendants’ names were signed. The defendants answered admitting the signing of the lease but alleging that they orally agreed with plaintiff’s agent to lease plaintiff’s farm for a year and pay as rent two- fifths of the grain raised on the farm, and also $60 for the use of grass lands, and that plaintiff’s agent proposed that' he should reduce the agreement to the form of a written lease which they should thereafter come in and sign. It was further averred that shortly afterward plaintiff’s agent presented a written lease which contained not only the provisions agreed upon but also a stipulation requiring defendants to pay the additional sum of $200 as cash rent for a house that was on the farm; that they were induced to sign the lease by the false and fraudulent representations of plaintiff’s agent that the lease contained only the terms orally agreed upon, to wit, the payment of two-fifths of the grain raised on the farm and $60 for the grass land; that, being in a hurry and relying upon the representations so fraudulently made, they were induced to sign the lease without any knowledge of the 200-dollar stipulation; and that the false representations upon which they relied were made for the sole purpose of defrauding defendants. On this issue defendants prevailed, and plaintiff complains that the evidence was insufficient to overthrow the writing which the defendants had signed.
It is contended that if parties who sign an .instrument can read they will not be heard to say that they did not read or know the contents of the writing, unless they were dissuaded from reading it by some fraudulent act, artifice or trick. Was there no fraud, artifice or trick in the act of plaintiff’s agent in telling the defendants that the long, complicated writing of about seven printed pages contained only the provisions requiring them to pay two-fifths of the grain and $60 in cash, when he had placed in the body of the lease a..provision requiring them to pay $200 that had not been mentioned in the oral negotiations ? Was there no fraud, artifice or trick in lulling inquiry as to the contents of such a writing by falsely and fraudulently representing that it contained only certain specific things, when there had been inserted another stipula tion greatly enhancing defendants’ liability? There is a well-recognized exception to the rule that a party is bound to know the contents of a paper which he signs, and that is where one party procures another to sign a writing by fraudulently representing that it contains the stipulations agreed upon when in fact it does not and where the party signing relies upon the faith of these representations and is thereby induced to omit the reading of the writing which he signs. It is well settled that a written contract which one party induces another to execute by false representations as to its contents is not enforceable, and the party so defrauded is not precluded from contesting the validity of the contract by the fact that he failed to read it before attaching his signature. (Deming v. Wallace, 73 Kan. 291; Shook v. Manufacturing Co., 75 Kan. 301; Jewelry Co. v. Bennett, 75 Kan. 743; Disney v. Jewelry Co., 76 Kan. 145.)
Complaint is made of the instructions of- the court in regard to the degree of proof required to establish fraud. Several of the instructions touched on the question, and in the tenth instruction the court charged that “fraud is never presumed, and the burden is upon the defendants, as heretofore instructed, to prove by a preponderance of the evidence the fraud by them alleged in their amended answer.” It is sometimes said that proof of fraud must be clear and convincing, or strong and satisfactory, but this is no more than a preponderance, and that is all that the law requires. Courts sometimes disapprove of instructions which minimize the quantity of evidence necessary to. repel the presumption of innocence and establish fraud (Insurance Co. v. Rammelsberg, 58 Kan. 531), but a preponderance which satisfactorily establishes the fraud meets the requirements of the law. The trial court recognized the rule that fraud must be well established when it told the jury that the preponderance referred to in the instructions did not mean “the mere greater number of witnesses upon the one side or the other, but that evidence which is most convincing and satisfactory to the minds of the jury.” In the absence of evidence honesty .and fairness are presumed, and a preponderance which overcomes this presumption and all opposing evidence and is such as will lead a reasonable man to the conclusion that fraud exists is all the proof that the law requires.
Aside from this consideration the plaintiff is not in a position to complain of the charge on this ground. The instructions requested by plaintiff in regard to the degree of proof necessary to establish fraud only required the defendants to prove it “by a preponderance of the evidence,” without any qualifying or strengthening language. The instructions given by the court on this phase of the case were as- strong as those requested.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The state brings this proceeding to compel the county clerk of Wyandotte county to pay into the county treasury for the benefit of the state certain license-fees in his custody collected for the issuance of hunters’ licenses under chapter 267 of the Laws of 1905. Under this statute the county clerk issues the license under his 'seal, collects the fee ($1 from residents and $15 from non-residents), and pays it to the county treasurer. The county treasurer remits to the secretary of state, who pays the money to the state treasurer.
Section 3027 of the General Statutes of 1901 makes it the duty of the county clerk to collect for the use and benefit of the county the sum of twenty-five cents from each person requiring his services in making a certificate-under his seal, and the clerk contends that since this statute is not repealed by the 1905 act he is liable to the county for at least twenty-five cents of the fee for each license. Properly speaking, the clerk is not concerned with the question whether the entire fee for a hunter’s license should be paid by the county treasurer to the secretary of state or only a portion of it. It is his duty in any event to pay all the money derived from the source indicated to the county treasurer. The action having been brought, however, to procure an interpretation of the law for the guidance of public officials dealing with funds of this character, the court is inclined to treat the question as properly raised by a party having an interest.
The whole fee for each license belongs to the state. The purpose of'the act was to provide for the propagation of fish and the protection of fish and game. To help defray the expenses necessarily incurred the statute provides for the collection of license-fees from hunters. The game-warden might have been designated as the person to issue hunting permits, to collect fees for the privilege of hunting and to pay the sums so derived into the state treasury, but for the better accommodation of the public these functions were committed to officials already in existence who have revenue duties to perform. The state alone is interested in the collection of these fees. The county clerk and county treasurer are merely agents of the state for the particular purpose, and their services in the matter are rendered to the state and for its benefit.
The title of the act is assailed, but under numerous decisions it is clearly sufficient.
The peremptory writ is awarded. | [
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The opinion of the court was delivered by
Benson, J.:
The contention of the plaintiff is that the order vacating the original judgment quieting title, and the subsequent judgment of foreclosure and sale "thereunder, are void. It is argued that as Gibson was not a party and had no interest in the subject-matter •of the action at the time the judgment was rendered, having, as his petition showed, taken an assignment of the mortgage after that date, he had no right to make the motion.
It appears that Celia C. Prentiss owned the mort.gage at the time of the judgment, but as her assignment from the mortgage company had not been recorded she was bound by the judgment. • (Utley v. Fee, 33 Kan. 683; Doyle v. Hays, ante, p. 209.) .At the time the action was commenced the mortgage company, although made a party, had no interest in the subject-matter. Celia C. Prentiss, although the •owner of.the outstanding mortgage, was not made a party, and Gibson derived his title to the mortgage •after the judgment had .been rendered. The civil code ■provides:
“A party against whom a judgment or order has been rendered, without other service than'by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same •opeiíed, and be let in to defend.” (§77.)
Does the word “party” as here used include only those named as such in the record, or does it embrace also those whose property rights are directly affected 'by the judgment? ' As this court has held in the cases •cited above that a decree against the person in whom "the records show the title to be vested is effectual •against persons holding under him by conveyance pre viously made but not then recorded, it follows that persons so situated may incur the risk of losing their property without having been brought into court as parties. This may happen where there has been a neglect to record title deeds or assignments of mortgages or the like. In commenting on the statute in question this court has said:
“Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done consistent with the rights-of other parties. The section provides ample protection to third parties dealing with property on the faith of the judgment, and the plaintiff certainly has no right to complain if within ,a reasonable time, which by statute is fixed at three years, the defendant demands an opportunity of litigating with him the justice of the claim. In fact, a judgment upon service by publication is as between the parties in the nature of a conditional judgment, one which becomes final and absolute only at the expiration of three years, and liable in the meantime to be opened whenever the defendant brings himself within the provisions of the section.” (Albright v. Warkentin, 31 Kan. 442, 445.)
The manifest justice of allowing a person so situated an opportunity to be heard was thus referred to in Erving v. Windmill Co., 52 Kan. 787:
“We are at a loss to understand why the court refused to open the judgment and give the plaintiff in error ,an opportunity to set up his rights. The only service in .the case was by publication, notifying his assignor, Robertson, of the pendency of the action. Whether the plaintiff in error had a right to open the judgment under section 77 of the code, or brought himself strictly within the position contemplated by that section or not, it is hardly necessary to decide.” (Page 789.)
In that case the application to open the judgment had been made by one who was technically a party, and it. was held that another person not -so designated but, whose interests had been barred by the decree should be allowed to interplead.
The propriety Of allowing a person bound by a judgment, without having had notice of the proceedings, an opportunity to make his defense where it can not prejudice the rights of third persons is so evident that the-statute will be construed to afford such right if the construction is not precluded by the language used. The expression “a party against whom a judgment or order has been rendered” may, without doing violence to its terms, be held to include any one- who as assignee or grantee of a party expressly named is bound by such judgment. Such a, construction is in harmony with the' evident legislative purpose to give persons whose property rights are affected by a decree, based upon notice' by publication only, a reasonable opportunity to beheárd. It was held in New York that persons bound by a judgment, although not parties to the record, might maintain proceedings to set the judgment aside. The-court said:
“Persons thus situated bear such a relation to the-action that they could not only claim to be made parties; during the pendency of the action, but they can also move the court and'be heard in reference to any judgment rendered therein affecting their rights.” (Ladd v. Stevenson et al., 112 N. Y. 325, 332.)
But it is urged that these principles apply only to-the person who owned the mortgage at the time the-judgment was rendered, and that Gibson, having purchased it afterward, was a mere intermeddler, not being a party to the action nor in any manner interested in the subject-matter while it was pending, but taking-the assignment subject to the decree. Some general expressions of text-writers and several decisions support this view. Under a statute containing the same provisions as our own the supreme court of Nebraska, in considering the same question, said:
' “The statute above referred to provides that ‘a party •against whom a judgment or order has been rendered’ may, under certain circumstances, be permitted to set •aside the decree and make his defense, but we know of no rule which permits a person to buy into a suit, after judgment, with full knowledge, either actual or constructive, of all the proceedings, and then reopen.the nase in order that litigation may be indefinitely prolonged in the settlement of supposed defenses.” (Powell v. McDowell, 16 Neb. 424, 426.)
The same result was declared in Iowa under a similar statute (Parsons v. Johnson, 66 Iowa, 455), and there are other decisions to the same effect. A contrary view was taken in Plummer v. Brown, 64 Cal. 429, in a brief opinion, based upon the peculiar language of the code of that state, and also in Brown et al. v. Massey, 13 Okla. 670. The latter decision appears to hold that the action is in a sense pending during the three-year period in which any interested party who has had no actual notice may appear and make his defense. •Other authorities bearing upon the question are collected in a note appended to the report of Furman v. Furman, 153 N. Y. 309, in 60 Am. St. Rep. 633. In a note to the report of Tyler v. Aspinwall, 73 Conn. 493, in 54 L. R. A. 758, various decisions are cited and reviewed, and the opinion of the annotator is given that the right of a grantee, not a party to the record, to move to set aside the judgment in such a case does not exist, in the absence of statutory authority. While the precise question has not been decided in this court, the 'decisions in the Albright and Erving cases, cited above, and in Green, Adm’r, v. McMurtry, 20 Kan. 189, tend to support the action of -the district court. In the case last cited it was said:
“Any person interested in a suit may make a motion with reference to his interest, whether he is legally and technically a party thereto or not.” (Page 193.)
(See, also, Civ. Code, § 532.)
The judgment quieting title did not finally determine that the mortgage was not a lien. That decree would not be beyond question until the expiration of three years. The owner of the mortgage was not absolutely deprived of all rights thereunder. She had the right within that time to have the judgment set aside and her lien established, upon’the conditions named in the statute. It is not perceived why, having this valuable right, she could not transfer it to another, nor why such assignee should not have the same right to enforce it upon the same terms. To permit this does not affect the rights of the plaintiff in such a judgment. If the right to have it vacated exists, it is of no consequence to him in whose name it is enforced, and this should be allowed where there is no imputation of bad faith an'd no intervening equities are affected.
It must be remembered that the mortgage interest was not absolutely barred by the decree; if it had been the bar could not have been removed by assignment. Not being barred, if the judgment had been opened by proceedings in the name of the mortgage company or of Celia C. Prentiss the name of Gibson might' have been substituted. (Malone v. Big Flat Gravel M. Co., 93 Cal. 384; Thomas v. Morris, 8 Utah, 284; Civ. Code, § 40.) The same result was reached by a direct proceeding in his own name. Even if it should be held that this was an erroneous proceeding, it was not void.
It is urged that Gibson should at least have obtained leave to answer and an order of substitution, but the court made an order opening the judgment and allowing him to defend, tried the issues presented’ upon his answer referred to in the entry as being on file, and rendered judgment thereon. This was a sufficient approval of his appearance.
Finally, it is contended that the order opening the judgment was void because there was no proof that the mortgage company did not have notice of the pendency of the action in time to appear and defend. To make the order without such proof may have been erroneous, but did not oust the court of jurisdiction, and the judgment was not void. A judgment may be erroneous but. not void merely because of a defect in the proof, if the court has jurisdiction of the parties and the subject-matter. (Brenholts v. Miller, ante, p. 185; Clevenger v. Figley, 68 Kan. 699.)
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The opinion of the court was delivered by
Graves, J.:
On the 14th day of September, 1907, one W. H. Browning was shot and killed in Finney county. John T. Reed and the defendant, T. J. Bassnett, were jointly charged with murder in the first degree on account of such killing. They were tried separately. Reed was tried first and found guilty of murder in the second degree; The defendant was subsequently tried,, and on February 27, 1908, was convicted of manslaughter in the first degree, and on March 28, 1908, was sentenced therefor by the district court of that, county. From that sentence he appeals to this court. There are numerous assignments of error, but they are all covered by four principal objections, and, the argument of counsel in their briefs having been confined to these, none other will be considered here.
The first complaint made is that the court refused to grant a change of venue. The petition for this application, omitting formal portions, reads:
“That in the above cause and court he is charged with murder by the state, jointly with one John T. Reed, who has been tried and convicted, of murder in the second degree, in said county and court; that the people from whom the jurors were drawn in Finney county, Kansas, aré so biased and prejudiced against defendant that he can riot have a fair and impartial trial therein; that the cause of such prejudice and bias on the part of the said people is that there was tried in said court and said county two cases in which the charge was the same, the one of said cases was tried quite recently, and the defendants in said two cases were both acquitted; that the community at large believes they ought not to have been acquitted, and a great amount of talk was had about it, among the people^ and an intense feeling grew in the vicinity that men charged as defendant is should be convicted, and affiant believes that Reed, his codefendant, was sacrificed to that feeling, and affiant believes that he will be also, if the case is tried in Finney county, and to avoid such injustice defendant asks that this court change the venue of this case to some court in said district where such prejudice does not exist.”
To this petition was appended ninety-two signers, who made oath that they believed the statements of the petition to be true. The alleged homicide was committed in Garfield township, Finney county, and the petitioners were all residents of that township. They were secured, by the defendant and a justice of the peace, who administered the oath to each.. The defendant and one of the petitioners, J. A. Goodman, were cross-examined upon the hearing of the application. This cross-examination disclosed that the prior cases mentioned in the petition as having caused an intense feeling in the vicinity must have been cases which were tried several years before the application in this case was'made, and that since that time material changes had been made in the population by the removal from the county of persons familiar with the circumstances surrounding the prosecutions and by the addition of new settlers in the county and township. Mr. Goodman ■had lived in Garfield township twenty-two years, and was not acquainted with the names of many of the petitioners or where they resided. There was no proof to •sustain the facts involved in the conclusions of the petition ; the showing failed to make a prima facie case, so far as Garfield township alone was concerned, further than the petition itself. The court, in denying the application, ordered that no jurors be taken out of this 'township. We are unable to see how this order refusing a change of venue was erroneous or prejudicial to the rights of the defendant. ' Section 177 of the criminal code requires that where proof is made by affidavits they must be to the satisfaction of the court, which they were not in this case. The statements in the petition were the merest conclusions, unsupported by any tangible facts. (The State v. Parmenter, 70 Kan. 513.)
The next question discussed is the alleged error of the court in overruling the defendant’s challenges of jurors for cause, whereby his peremptory challenges were exhausted and he was unable to secure a fair and impartial jury. We have carefully read the examination of each juror to whom the challenge of the defendant for cause was overruled, and are unable to find that the court erred in any of such rulings. The one to which the defendant makes his strongest objection is that of juror F. W. Griggs, whose examination, so far •as material, reads:
(Examination by the state.)
“Ques. Mr. Griggs, you reside here in the city? Ans. Yes, sir.”
“Q. Mr. Griggs, have you ever heard this case dismissed? A. Yes, sir.
“Q. In a general way or a casual way? A. In both ways, I suppose.
“Q. Did you ever talk with any one about it? A. Yes, sir.
“Q. From what you may have read did you form or ■express any opinion as to the guilt or innocence of the ■defendant? A.- Well, I think I did.”
“Q. From anything you might have heard, did the-parties who were talking state any of the facts in the case? A. They were just simply speaking of the occurrence.
“Q. Was it relative to the case of The State against. Bassnett or relative 'to the case of The State against. Reed? A. Well, I think it was both.
“Q. Both? A. Yes, sir.
“Q. You read it in the newspapers? A. Yes, sir.
“Q. Mr. Griggs, from what you may have heard,or-read, did you form or express any opinion as to the. guilt or innocence of the defendant, T. J. Bassnett? A. Well, I presume I did.
“Q. Is that such an opinion as it would require evidence to remove it ? A. It certainly would; yes, sir.
“Q. Is it a fixed opinion or a slight opinion? A.. Well, I never form a definite opinion in regard to anything until I hear all of it.
“Q. Then it is a slight opinion? A. Well, it might, be that; yes, sir.
“Q. Then you have no fixed opinion at this time as to the guilt or innocence of the defendant, T. J. Bass-nett? A. No, I think not.
“Q. Do you know of any reason at all, Mr. Griggs, if you were chosen to sit as a juror to try this case, why you should not render a fair and impartial verdict under the law and the evidence? A. I have no. prejudice whatever.
“Q. If there was a killing, have you any opinion as to whether the killing was justifiable? A. I certainlycouldn’t have.”
(Examination by defendant.)
“Q: You live here in town, Mr. Griggs? A. Yes,, sir. '
“Q. You were living here last September? A. Yes,, sir.
“Q. You have heard what purported to be the facts-in this case ? A. Yes, I have heard the general run.
“Q. You read about it in the papers? A. Yes, sir.
“Q. You have an opinion in regard to the facts of’ the case? A. Well, in regard to what I have heard, T have an opinion; yes.
“Q. Well, anything you may have heard in regard' to the matter, did you believe it? A. So far as I know..
“Q. Did you have any reason to disbelieve it? A... No, sir;- not anything to the contrary.
“Q. Then, as a matter of fact, you did believe it? ■A. Well, I just take it for facts until I know it to be otherwise.
“Q. And you would believe it until the contrary was ■shown ? A. Well, I naturally would; yes.
“Q. You read about it in the papers? A. Yes; sir.
“Q. And you remember about the trial in the district court of John T. Reed? A. I knew of the ver•dict. I was not in here and heard any of it. Of course I have read something of it; yes.
“Q. Aiid so you have formed an opinion as to whether or not there was a killing had taken place? A. Yes, sir.
“Q. You formed an opinion as to whether Mr. Browning was killed? A. Yes, sir.
“Q. You formed an opinion as to where it was ■charged to have taken place? A. Yes, sir.
“Q. You formed an opinion as to how it was claimed he came to his death? A. Yes, sir.
“Q. You formed an opinion as to who it was claimed had killed Mr. Browning? A. Yes, I read the papers in regard to it.
“Q. Now, you have an opinion as to all of those facts? A. I have an opinion in regard to those facts from what I got from the papers and casual conversation with people. ' '
“Q. Yes, and what you heard in regard to the facts? A. Yes, sir.
“Q. Now, that being the case, it would require evidence from the defendant to justify that alleged killing, wouldn’t it? A. I would go according to the evidence.
“Q. It would require evidence by the defense in this ■case to remove those things from your mind as to the alleged killing of Mr. Browning? A. Well, to put it that way, I suppose it would.
“Q. Well, I don’t want to take any advantage, Mr. Griggs, I simply want to get at your state of mind.. A. Yes, sir.
“0. It would require evidence from the defendant? A. As I heard the case, of course I have an opinion in regard to it.
“Q. And it would require evidence from the defendant to justify him, would.it not? A. The evidence might change my opinion if it was to the contrary.
“Q. It could change ? A. Yes, sir.
“Q. But it "would require evidence, would it not?' A. Certainly.
“Q. On the part of the defénse? A. Certainly; I; would "go according to the evidence.
“Q. Well, perhaps you don’t just catch my meaning. You have these opinions, and you have an .opinion, that there was a killing ? A. Certainly.
“Q. You have an opinion that this defendant was, concerned in that killing? A. Yes, sir.
“Q. Now, it would require evidence to your mind to. convince you that he acted in any way justifiable,, wouldn’t it? A. Yes.
“Q. From the frame of mind that you are now in> you would require that kind of evidence from the defendant or from the defense? A. Well, I believe it would; yes.
“Q. Well, aren’t you certain it would, in your mind?' A. Yes, I think so.
“Q. And then, Mr. Griggs, could you go in — enter into the trial of this case just in the same frame of" mind as though you had never heard this matter talked; about or never heard of it or never formed any opinion, in regard to it? A. No, I suppose I couldn’t hardly,, but I believe I could be just as fair as a man that had never heard of it.
“Q. But, as a matter of fact, it would require testimony on the part of the defendant or his defense to-justify anything that may have taken place, as you understand and know them at this time? A. Well, P think it would; yes, sir.
“Q. Well, is n’t that -a fact that it would? A. Well,. I suppose, to put it that way, it would.
(Further examination by the state.)
“Q. Mr. Griggs, you say you have an opinion that, there was a killing took place. Was that from what, you might have read in the newspaper or heard talked' or from your own personal observation? A. Well, just-what I read of it, I suppose, or maybe I heard somebody say there was a killing.
“Q. Then you have no actual knowledge whatever-of the killing, if there was one? A. Except what I have read and heard; not of my own knowledge; no.
“Q. Mr. Griggs, if the evidence showed that the-killing of Browning was done by John T. Reed, and; that the defendant, Bassnett, was present, have you any opinion as to whether the killing of Browning was justifiable or not? A. No.
“Q. I will ask you another'question, Mr. Griggs: Have you any opinion as to — that if it should turn out in the case that the defendant killed W. H. Browning, have you any opinion ■ now as to. whether or not that was done in self-defense? A. None whatever; not.a bit.
“Q. From what you have read and heard about the case, I will ask you whether you have any bias or prejudice either for or against the defendant? A. I don’t have any bias against anything until I hear it.
“Q. Well, have you any for or against the defendant at all? A. Not a bit in this case.
“Q. You feel that your mind is now open to a fair and impartial consideration of the testimony that may be introduced before you ? A. Yes, sir.
“Q. Then you -can give the defendant a. fair and impartial trial and render a verdict according to the law and the evidence? A. Yes, sir.”
In connection with the answers of this juror it will be well to consider the facts upon which the accusation against the defendant depended. Just before Browning was shot the defendant had in his possession the gun with which Reed did the shooting, giving it to Reed at his request. It was contended by Reed that at the time the fatal shot was fired Browning was apparently drawing a revolver from his hip pocket, as if to shoot. Reed, therefore, upon his trial, claimed justification under the plea of self-defense. This was also a part of the defendant’s defense. The state claimed that the defendant went to the place with intent to assist Reed in bringing on the encounter in which Browning was to be killed. It will be seen from the examination of juror Griggs that he sustained no relations with the tragedy or trial which would bias or prejudice him in the least as a juror. He must be judged, therefore, under the answers given, like any other citizen having the same knowledge and being in the same situation. He had heard the case talked about casually; he read something in a general' way about the commission of the homicide. It must be assumed that he was affected thereby as ordinary people are by what they incidentally hear or read about a crime. He does not appear to have been impressed sufficiently to state any fact that he heard talked about or that he saw in print; he does not seem to. have heard any one talk who was •or claimed to be in a position to know the facts discussed. Whatever impression he had was based upon the merest rumor, and yet he stated that he had an ■opinion as to the guilt or innocence of the defendant — an opinion which it would take evidence to remove. But upon more particular, examination he stated that he had no fixed opinion — no prejudice; that he could try the case as freely and fairly as one who had never heard about the case. When he was interrogated about the specific facts upon which he entertained this opinion they proved to be the death of Browning, where and how he was killed, and that the •defendant was concerned in the killing. These facts are all immaterial. They are all conceded by the defendant. When he was asked about his opinion as to whether or not Reed acted in self-defense, he had none; and when asked as to whether or not the defendant was jusfied in what he did, he entertained no opinion. Upon ■everything material in the case his mind was free from any bias or prejudice. The questions were adroitly put to the juror so as to make it appear that he had formed an opinion as to the facts of the case, but when those facts were specifically enumerated they proved to be immaterial because undisputed. It was conceded that the defendant handed to Reed the gun with which Browning was killed. The motive with which the defendant acted was the important question in the case, and upon that the juror had no opinion whatever. When the juror stated that he presumed he had an opinion as to the guilt or innocence of the defendant, it was after all the general talk he had heard and read had been called to his mind, and when he evidently was impressed with the idea that such facts were material. Taking the whole examination of the juror together, we can not say that it was error to overrule this challenge, or, indeed, any of the challenges made. (The State v. Wells, 28 Kan. 321; The State v. Gould, 40 Kan. 258; The State v. Treadwell, 54 Kan. 507; The State v. Morrison, 67 Kan. 144.) We think these cases fully sustain the ruling of the court.
The next complaint made by the defendant is the refusal of the court to give instructions requested, which read:
“(1) You are instructed that it is made the duty of road-overseers under the law in their respective districts to notify each and all persons liable to pay a road tax of the time and place said persons shall appear and attend to do work upon any designated road, and said road-overseer may direct such person or persons to appear at such designated time and place and may notify such person what implements he shall bring, with which to perform such work, and it is the duty of said road-overseer to attend, direct and oversee such work.
“(2) And you are further instructed that if you believe from the testimony in this case that the defendant was so notified to appear by James A. Miller, the road-overseer of district No. 1 in Garfield township, on the 14th day of September, 1907, to appear at the place designated by said James A. Miller; and if you further believe from- the evidence that the defendant attended in obedience to said summons, then the said defendant had a right to be at the place and at the time where said killing took place.”
To see the force of these instructions it will be necessary to consider the facts of the case to which they relate: Reed, the defendant and others met at Browning’s premises to work on a public road, claimed to be located through there, which claim Browning disputed. .The defendant claimed to have been notified by the road officers to be there at that time and for that purpose, and that he was there in compliance with such notice. On the other hand, the state claimed that Reed and the defendant made use of the alleged road as an excuse for being there, expecting Browning to resist, in which case it was their intent to take his life. The whole point, involved was, therefore, whether the defendant went there in good faith to work the road or in furtherance of a design previously formed with Reed to seek an opportunity to kill Browning. If the former, he was. rightfully there; if the latter, he was there unlawfully. The instructions requested were therefore proper and pertinent, but were fully covered by the instructions of the court upon the same point, which read:
“Considerable testimony has been introduced tending to show that the place where the trouble in controversy occurred was a public road, or a strip of ground which was to be opened up as such, and that the defendant, in response to a call of the township officers, who, consisting of the township trustee, clerk, and treasurer, constitute the highway commissioners, and who under the law have charge and control of the roads and highways, went with others, including the road-overseer, for the purpose of 'laying out or working the road. What the facts are in this regard you are to determine from the evidence, and are to take into consideration only for the purpose of determining whether or not the defendant was in good faith in going to the place in question on this particular occasion and endeavoring to work the road at this point, and whether he was rightfully there, or, in other words; whether he was there for a legitimate and lawful purpose, as claimed by him, or for the mere purpose of making trouble with the deceased, as claimed by the state. In this connection, however, you are instructed that the question as to whether or not it was a public road or a legally laid out road, or as to whether or not the officers under whom the defendant claims to have worked were the legally constituted officers for such purpose, can make no difference whatever in this case on the material questions at issue; for even though the defendant went there without lawful authority, still if he in good faith believed it was a public road or a road which was or could be legally laid out, and in good faith went there honestly believing that he was acting under the proper legal authorities, and believed he was legally there, his right to assist the said John T. Reed in the lawful defense of his person would not be impaired.”
We think this instruction, in connection with others given, fully covers the point contained in those requested by the defendant, so that the jury were clearly informed upon this feature of the case. The rights of the defendant were fully protected in this respect. The fact that the court was not accurate in naming the officers whose duty it is to notify people to work the roads was immaterial.
Objection is specially made to the instruction given by the court which defines manslaughter in the first degree — the offense of which the defendant was found guilty. This instruction reads:
“If you acquit the defendant of the crime of murder in the second degree, you will then inquire whether or not he is guilty of manslaughter in the first degree, and in this connection you are instructed that if you find and believe, beyond a reasonable doubt, from all the evidence submitted to you, that the defendant, T. J. Bass-nett, did, on or about the 14th day of September, 1907, at and within the county of Finney and state of Kansas, without a design to effect death, by his act, procurement or culpable negligence, while engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in such manner and under such circumstances as would constitute murder at the common law, as I have hereinbefore défined the -same to you, shoot and' kill, or encourage, aid or assist another in shooting and killing, the said William. H. Browning, in the manner as charged in the information, and that such killing was neither justifiable nor excusable under the rules of law hereinbefore given you, it will be your duty to find the defendant guilty of the crime of manslaughter in the first degree; but if you do^ not so find and believe it will be . your duty to acquit him thereof.”
The specific complaint is that the testimony does not justify the instruction, as there is nothing in the evidence, it is said, which shows that the defendant was engaged in the perpetration of an offense less than a felony, as stated in the instruction and in the statutory definition of the crime of manslaughter in the first degree. This objection is founded upon the idea that the offense less than a felony contemplated by the statute must be something other than the crime with which the accused is charged. • While the state claims that it is immáterial whether such offense constitutes a part of the homicide or not, as applied to this case, it is contended by the state that it was not the intent of Reed to take the life of Browning when the fatal shot was fired, but that he only intended to stop the deceased from carrying out what his intentions appeared to be, which would be accomplished by an assault, or an assault and battery at most. The shot, however, caused Browning’s death. In this view it is insisted that the offense intended must be regarded as the “crime or misdemeanor, not amounting to a felony,” which was being perpetrated when the homicide occurred. There is evidence from which the jury might have reached this conclusion. Courts differ as to which of these views presents the true intent of the law. This question was presented to this court in the case of The State v. Spendlove, 47 Kan. 160, and it was there decided that the view herein taken by the state was correct. That case is still the law of this state, and is controlling here.
A further objection is made that after the jury had been in consultation for some time they were brought into court and given further instruction. The additional instruction is not criticized as being erroneous, but on the contrary it is conceded that the law given was correct. The objection seems to be that the same law had been substantially given before, and it was unnecessary to repeat the former instruction under a slight change of phraseology. The criticism is perhaps justified, but, while probably unnecessary, we are unable to see where or how the defendant was prejudiced thereby. We can not say that any error was committed by the court in this respect.
Upon the hearing of the motion for a new trial an attempt was made to show that one of the jurors had upon his voir dire denied having any opinion as to the guilt or innocence of the defendant, and afterward made statements indicating that he held a very decided opinion hostile to the defendant. This was fully inquired into upon the testimony of several witnesses, and upon the whole examination. the court exonerated the juror and denied the motion. The finding of the court concludes the question. (The State v. Moore, 79 Kan. 688.)
This constitutes all of the objections made, and, being unable to find that the court erred, the judgment is affirmed. | [
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Per Curiam:
This is an appeal from an order of the district court of Greeley county opening the judgment and allowing the defendant, Emma Erath, to come in and defend. The principal question involved in the proceeding is whether she had notice of the pendency of the foreclosure suit to which she was made a party defendant and in which her rights to the land were barred in time to answer and defend, she having been served by publication. There was only circumstantial evidence to prove that she had such notice, and there was direct evidence that she did not have the notice. The court below found in her favor on the question of fact, and its finding can not be reviewed here.
Again, it is contended that the plaintiff in the foreclosure suit would have been entitled to judgment for taxes paid even if his tax deed had been declared void in that suit, and that, deducting the amount of such taxes and interest from the price which the land brought at the foreclosure sale, the defendant would have nothing left, and that the reopening of the casé would not be beneficial to her and should not be allowed. The allegations of her answer, however, ,are sufficient, if sustained, to set aside the sheriff’s deed to Glenn in the foreclosure suit, as well as the tax deed.
The order is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was & proceeding in mandamus to compel the school board to call a special meeting for the reconsideration of the selection of a site for a high-school building in the city of Kinsley. It was alleged that at a meeting duly called for the purpose of selecting a location for the building a certain site was. designated by the legal voters of the school district; that shortly thereafter appraisers were duly selected, who condemned and appraised a part of the ground chosen for the site, and the appraised value of the same, together with the purchase-price of the remainder of the site, amounted to $4000. It was then averred that, for a number of reasons the site selected was deemed undesirable and unsuitable by some of the electors, and that another site, which was named, was more desirable and could be procured for $2250, thus saving to the district the sum of $1750. There were averments, too, that prior to and at the school meeting representations, were made that the site chosen could be procured for $1500, and that electors were thereby induced to vote for that site; that a petition signed by more than ten. resident taxpayers of the district had been presented to-the school board asking that a special meeting of the-electors of the district be called to reconsider the location of the school building, but that the board had refused the request.
An alternative writ was issued in the first instance, but upon a further hearing on the pleadings a demurrer was sustained and the writ denied. The ques tion presented is: Should the school board be compelled by mandamus to call a special meeting of the electors to choose a site for a school building when one has already been designated at a meeting duly called and where the school board, acting on that designation, has proceeded to condemn and acquire the site selected? The statute relating to annual and special meetings of the district provides, among other things:
“An annual meeting of each school district shall be held on the last Thursday of July in each year, at the schoolhouse belonging to the school district, at 2 o’clock P. M. Notice of the time and place of said annual meeting shall be given by the clerk by posting written or printed notices in three public places of the district at least ten days before said meeting. Special meetings may be called by the district board, or upon a petition signed by ten resident taxpayers of the district; but notices of such special meeting, stating the purpose for which it is called, shall be posted in at least three public places in the district ten days previous to the time of such meeting.” (Gen. Stat. 1901, § 6122.)
The contention is that the provision that special meetings may be called by the district board or upon a petition signed by ten resident taxpayers of the district means.that the board not only may, but must, call the meeting upon the presentation of the petition. Primarily and as ordinarily used in a statute the word “may” is permissive rather than peremptory. It is sometimes regarded as synonymous with must, as for instance “where public authorities are authorized to perform an act for the benefit of the public, or for an individual who has a right to its performance.” (Phelps v. Lodge, 60 Kan. 122, 124.) It should be given its ordinary meaning, however, unless the terms and provisions of the statute compel the other view. As was said in In re McCort, Petitioner, 52 Kan. 18, “the sense in which the word is used must always be determined from the context of the act.” (Page 20.)
Looking at the word in the connection in which it is used in the statute quoted it can hardly be said that the obvious intention of the legislature was to make the calling of a special meeting an imperative requirement. It does not appear that either the interest of the public or of third persons compels the exceptional interpretation. The legislature has provided for an annual school meeting, at which the important affairs of the district are to be decided. Among other things to be done at this meeting are the election of officers* the designation of a site for a schoolhouse, the making of provisions for the purchase or lease of a site or the sale of one no longer in use, the building, hiring or purchasing of a schoolhouse, the repairing or the furnishing of a schoolhouse with necessary fuel and appendages, the payment of floating indebtedness, the voting of a tax and apportioning the amount to be used for the payment of teachers and other purposes, deciding the length of time the school shall be held, as well as to give directions and make provisions for any litigation in which the district is a party. (Gen. Stat. 1901, § 6127.) Specific provision is made for a special meeting where the time for the regular meeting has been allowed to pass without the holding of one. It can hardly have been intended that when a meeting has been held and questions like those enumerated have been decided the same questions can be reopened at the instance of ten dissatisfied petitioners. Can it have been intended that after a tax has been voted, contracts made and a teacher employed, ten taxpayers who failed to attend or who were outvoted at the annual meeting can on request require another meeting to be called and another test of strength taken on one or more of these propositions ? If at the annual meeting directions were given to put on a new roof or to make other repairs on a schoolhouse, after the contract has been let may a resident builder who failed to get the job procure nine others to join him in a petition and have the questions reopened and the contracts, partially executed, annulled? If questions which provoke controversy, like the selection of a site, could be reopened whenever ten disappointed taxpayers might ask for another vote, dissension and disorder would prevail in many districts much of the time. In carrying out the directions given at the annual meeting the district board may desire the advice of the electors, and emergencies may arise so that the district board may upon their own initiative or upon a petition ask for an expression of the electors of the district at a special meeting, but whether such a meeting is necessary was evidently left to the discretion of the district board regularly chosen to look after the affairs of the district.
This case illustrates the wisdom of leaving the calling of a special meeting to the discretion of the district board. It appears that after the site was chosen in pursuance of the direction of the district meeting the district board proceeded to obtain a part of the ground by condemnation and a part-by purchase. The complications and litigation that might have arisen if the board had undertaken to repudiate the obligations assumed under the direction given at the regular meeting might well be considered by the board in deciding whether the public good or justice required the calling of another meeting.
The State v. Umbarger, 69 Kan. 66, is cited as showing that the district board was without discretion to refuse the petition. There a special meeting was in fact called, and it was decided that the directions given at that meeting must be followed by the district board. There was no intimation, however, that the district board is compelled to call the meeting upon the request of the petitioners.
There are some averments of misrepresentations prior to and at the first meeting, but these are not of such a character as to affect the validity of the meeting or the determination of the question involved — the proper interpretation of the word “may” as used in the statute. The district court, we think, reached the correct conclusion, and hence its judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
G. W. Brown sold and delivered some: wheat to the Quenemo Mill and Elevator Company, and received therefor the company’s check on the People’s. State Banlj: of Michigan Valley, situated in the same' town. He carried the check home with him, a distance of some eight miles, having received it- after banking hours. Between two and three weeks later he took the check to Ottawa, where he did his banking, this being-the first time since receiving it that he had been to either town. The check was then in due course of business presented to the drawee for payment, which was refused. When it was drawn the elevator company had no funds on deposit, but had an arrangement with the bank by which its checks given for wheat were to be paid, the grain to be shipped and the bill of lading-turned over to the bank.. The bank paid checks under-this arrangement as they were presented, until about. August 28, when the company became insolvent and the practice was discontinued. The bank then sued the company and attached the wheat referred to, with other property. About September 19 Brown demanded, of the bank either the payment of the check or the return of the wheat, and, receiving neither, on October-17 brought action against it for conversion. The plaintiff recovered judgment, and the defendant prosecutes, error upon the sole ground that the evidence, the substance of which has been stated, showed conclusively that the title to the wheat had passed to the elevator-company.
It was of course competent for Brown and the elevator company to make any agreement they saw fit as to when the absolute title to the wheat should pass, but in the absence of anything to indicate the contrary the transaction between them must be taken to have been the ordinary one of the sale of specific personal property for cash, delivery being made in the expectation of immediate payment. (24 A. & E. Encycl. of L. 1095, note 10.) In such a case the failure of the buyer to pay the purchase-price authorizes the seller to reclaim the property. “Where the sale is for cash, payment, it is said, must precede the transfer of title.” (24 A. & E. Encycl. of L. 1052. See notes to the paragraph from which the sentence quoted is taken, including those found in the supplements.) In these notes cases are cited having a contrary tendency, but so far as they are irreconcilable with the proposition stated they are out of harmony with what is now the established doctrine on the subject. It is true that as a matter of theory a consistent and logical argument can be made to support the view which is thus expressed in a recent text-book:
“If after bargaining for a cash sale the seller subsequently, voluntarily, delivers to the buyer the goods with the intent that the buyer may immediately use them as his own [1 e., not for inspection or a similar purpose], and without insisting upon contemporaneous payment, this action is absolutely inconsistent with the original bargain. Such a delivery is not only evidence of the waiver of the condition of cash payment, it should be conclusive evidence.” (Williston, Sales, .§346.)
But as a practical necessity, to avoid the inconvenience of requiring the seller of an article to keep one hand upon it until with the other he grasps the currency tendered in payment, there must be some relaxation of this rule. Delivery and payment as a practical matter can not be absolutely simultaneous. Some slight interval between the two acts is inevitable, and the criterion upon which the courts have agreed with substantial unanimity is that such interval does not conclusively prove a total abandonment of title and the right of possession by the seller unless under all the circumstances, of the case it in fact shows that result to have been intended. Some1 ingenuity has been exercised, with doubtful profit, in defining the character of the right remaining in the seller after a delivery and before payment, where there isN no purpose to give ^credit. Whether it is more properly described as a lien, a retention of title, or an option to rescind the •contract, is not very important so far as affects the solution of the problem presented here. It is a right •of the seller to repossess himself of the goods if the buyer fails in the performance of the agreement on his part which was intended to be contemporaneous with the delivery. It is a peculiar right growing out of a peculiar situation, and it is not necessary to give it a name the use of which might seem to decide controversies growing out of-other r elations. This right has long been recognized in Kansas- (Daugherty v. Fowler, 44 Kan. 628) and is now generally acknowledged elsewhere.
“It may be stated as a general rule, fully established ~by the cases, that, if goods are sold on condition to be performed immediately, and the vendor makes an actual delivery upon the faith that the condition will be immediately performed, and demands such performance with reasonable speed, and it is refused, no property in the goods passes to the purchaser, but that he .simply holds them in trust for the vendor until such payment is made or waived.” (120 Am. St. Rep. 869, note.)
The fact that Brown accepted a check did not imply an. extension of credit or preclude the exercise of the right of reclamation in the case of its non-payment upon timely presentation. (Hodgson v. Barrett, 33 Ohio St. 63; National Bank of Commerce v. Chicago, Burlington & N. R. Co., 44 Minn. 224; Johhson-Brinkman Co. v. Central Bank, 116 Mo. 558; Hall & Robinson v. The Mo. Pac. Ry. Co., 50 Mo. App. 179; Mathews et al. v. Cowan et al., 59 Ill. 341; Canadian Bank v. McCrea et al., 106 Ill. 281; P. & P. U. Ry. Co. v. Buckley et al., 114 Ill. 337; Charleston Railway Co. v. Pope, 122 Ga. 577.) The fact that the check might have been paid if it had reached the bank within a week from its date did not convert its acceptance by Brown into a. payment. That would have been the result if payment had been prevented by the failure of the bank in the. meantime, but such effect follows only where loss is. occasioned to the drawer. (22 A. & E. Encycl. of L. 572; Mordis v. Kennedy, 23 Kan. 408; Brown v. Schintz, 202 Ill. 509; Manitoba Mortg. & Inv. Co. v. Weiss et al., 18 S. Dak. 459.) The elevator company had no funds in the bank, and therefore was not injured by the delay in the presentation of the check. The bank as an attaching creditor was not a purchaser in good faith-and was entitled to none of the peculiar rights growing out of that relation. (13 L. R. A., n. s., 705, note.) On the other hand, it had the same standing as any other creditor • it had committed no wrong, and if the title to the wheat had actually passed absolutely to the elevator company there was no reason why it might not seize it to satisfy its claim against that company.
So far there is no room for a substantial difference of' opinion. But the real question upon which the affirmance or reversal of the case must turn is this: Did the-delay of Brown to present the check for between two-' and three weeks, as a matter of law, amount to a waiver — or afford conclusive proof of a waiver — of his." right to, reclaim the wheat, thereby causing the elevator-company’s title to become absolute? This question must be determined upon principles entirely different, from those involved under similar circumstances where-the rights of innocent purchasers have intervened. There the question presented is one of equitable estoppel, and delay is important as tending to mislead others, to their prejudice. Here the question is one of evidence, and delay is important as tending to show an intention that title should pass. Equitable considerations are not involved. True, it seems but fair and just that the plaintiff should have either his wheat or-his money, but the same would be true if he had sold. it on credit and the buyer had failed to pay at the promised time. In neither case could he maintain replevin if the title had actually passed from him.
It is said in the introduction to a note to Will McIvor et al. v. Williamson-Halsell-Frazier Co., 19 Okla. 454, bearing upon the subject under consideration, in 13 L. R. A., n. s., 697:
“The authorities are agreed on the proposition that," as between the immediate parties to a cash sale, the title does not pass until payment, even though there is a delivery of the goods by the seller to the buyer, unless the circumstances of such delivery are such as to show an intentional waiver by the seller of payment as a condition precedent to the passing of title. This question is generally said to be one of fact, to be determined by a jury.”
The cases are also collected and reviewed in notes in 120 Am. St. Rep. 868, and in 11 L. R. A., n. s., 948, in the latter of which it is said:
“The decisions upon this point depend largely upon the facts and circumstances of each case. The question is, Did the vendor act within-a reasonable time.to recover possession of the property — that is, within such a time as, taken in connection with other facts and circumstances, shows an intention to retain title until the condition of payment has been complied with?”
The case annotated (Frech v. Lewis, 218 Pa. St. 141) contains this strong statement of the requirement that the seller who wishes to assert the right of reclamation must act promptly:
“The settled doctrine of our cases is to the effect that where the contract of sale provides for payment of the purchase-price on- delivery of the articles sold, and the seller delivers the goods but the buyer fails to pay, the right of property does not pass to the buyer with the possession, but remains with the seller, who may at his option reclaim the goods. In some jurisdictions the right of property is held to pass with the delivery, unless at the time the right to retake is expressly declared by the seller. We have not gone so far. Our cases proceed on the theory that until payment has been made, or waived, the contract remains executory, and that delivery in such case is not a completion of the contract, except as an intention to so regard it is expressly declared or can fairly be inferred from the circumstances attending. Possession, however, having passed, and the buyer by the act of the seller having ' been invested with the indicia of ownership, the policy of our law requires that this situation — the possession ,in one and the right of property in another — shall continue no longer than is necessary to enable the seller to recover the goods with which he has parted. The law gives the seller the right in such case to reclaim his goods, but he must do. so promptly, otherwise he will be held to have waived his right, and can only thereafter look to the buyer for the price. The only question the present case suggests is, When does this inference of waiver arise? Our.authorities admit of but one answer: except when delayed by trick or artifice, the assertion of the right to reclaim the property must follow immediately upon the buyer’s default. This does not mean that the seller must eo instanti begin legal proceedings to recover the goods; but it does mean that the seller, when he discovers that his delivery is not followed by payment as he had the right to expect, is at once put to his election whether he will waive the condition as to payment and allow the delivery to become absolute, or retake property, and that he is to allow no unnecessary delay in making his choice. The obj ect of the law is not. to multiply his. remedies because of his disappointment. He may not continue to hold his right to the goods, but at the same time hold the buyer as his creditor; one or the other he must relinquish, and do it promptly, or the law will forfeit his right to elect. Continued acquiescence in the buyer’s possession of the goods will be taken as a choice on his part to regard the delivery as absolute, notwithstanding the buyer’s default. The policy of the law in requiring promptitude in the assertion of continued ownership of the goods could easily be vindicated were it necessary. It answers every purpose here to show that the law requires it. . . . These cases and others that might be cited, following the lead of Leedom v. Phillips, 1 Yeates, 527, all hold that the duty is upon the seller if he would retain his right to the property to proceed promptly, and we know of no case in which a contrary doctrine is asserted. In some cases the expression ‘within a reasonable time’ is used where the right to reclaim is referred to; but this expression suggests no departure from the rule as declared in Leedom v. Phillips, supra. By reasonable time is to be understood such promptitude as the situation of the parties and the circumstances of the case will allow. It never means an indulgence in unnecessary delay, or in a delay occasioned by the vain hope and fruitless effort to obtain the money from the defaulting buyer. When the delay is to be accounted for by the latter consideration, it is accepted as an acquiescence in the delivery and the acceptance of the buyer as a debtor.” (Pages 142-144.)
This language is applicable to the facts here presented only so‘far as in a general way it argues the necessity of prompt action, for the giving of the check introduces a new element, and the situation does not arise of the vendee’s failure to keep his agreement to pay being necessarily brought at once to the attention of the vendor. It illustrates, however, that the intention of the seller, although a question of fact, is determined by standards definitely fixed by law, one of them being that his conduct must be consistent throughout. In that case the vendor delayed for two months and a half to assert title to the property sold,' in the meantime making repeated efforts to collect the purchase-price. In Smith v. Dennie, 23 Mass. 262, merchandise was sold with the understanding that the vendee was to give an indorsed note. Delivery was made and the vendor neglected for eight days to demand the note. Then a creditor of the vendee attached the property and the vendor replevined it. The court held a verdict for the plaintiff in the replevin case to be against the evidence, saying:
“Eight days passed between the delivery of the goods and any call for the indorsed note, nor was any intimation made of the security to be given when the goods were delivered by the clerk, who does not appear to have been informed by the vendor of the terms of the sale. The latter, however, must be presumed to have known the next day that they had been delivered, and .yet he did not send for the note or give any manner of notice that it was required until the attachment took place eight days after the sale. .We are apprehensive that to establish the right to reclaim under such cir-.. cumstances would widen the door for fraudulent contrivances, and that afterthoughts respecting conditions will spring up to intercept attaching creditors when the ■sale was really unconditional, or at least when the vendor had thought his condition of so little importance as to be willing to abandon it and trust to the ■credit of the purchaser.
“We are of opinion that the verdict is against the ■evidence, for there was nothing in the case from which an intention to hold on upon the condition can be inferred; no declaration at the time, which though not necessary is important, and no call for security until it was forgotten or abandoned, and perhaps never would have been recurred to if the goods had not been attached.” (Page 267.)
But in the opinion it was also said:
“The vendor certainly had a right the day after to insist upon his indorsed note or to rescind the bargain and reclaim the goods. If so, why not two days or three, and if so, the time which elapses is a mere fact, from which .the jury may infer the intention. Circumstances of business and engagement may account for the delay, and, if they do, the right to security or to reclaim the goods, unless sold as before mentioned, is not impaired.” (Page 266.)
To say that the seller is required to reclaim his goods immediately, of as soon as possible, or even without any unnecessary delay, would be to overstep the rule derivable from the authorities. The requirement is that he must act with reasonable promptness. In Daugherty v. Fowler, 44 Kan. 628, this was the test proposed. In Paulson v. Lyon, 26 Utah, 438, a delay of over a month was held not to be fatal.
With a single exception the checks the non-payment of which gave rise to the litigation in the cases already referred to were presented with absolute promptness, so that the question here involved did not arise. The •exceptional case is Hodgson v. Barrett, 33 Ohio St. 63. There a barge of coal was sold and delivered, the transaction taking place at Cincinnati, where the vendors, who were residents of Pittsburg, were represented by agents. A check on a Cincinnati bank was given to the agents, who sent it to their principals at Pittsburg, where it was banked, reaching Cincinnati four days later and being dishonored. In the meantime the vendees, whose deposit was less than the amount of the check when it was drawn, had failed, and the coal had been levied upon by their creditors. The vendors brought replevin for it, and were sustained in their action, the court saying:
“No such delay is shown as would manifest an election not to rescind; nor does it appear that Haubold & Son [the vendors] were in any way injured thereby. It ought not, therefore, to affect the right of plaintiffs to treat the supposed payment by check as a nullity, and wholly to avoid the contract of sale.” (Page 69.)
It will be observed that there the check was not presented within what would have been regarded as a reasonable time had the question been one of holding a drawer who had suffered a loss by the delay. Having been received in Cincinnati, where the bank on which it was drawn was situated, due diligence for that purpose required its presentation not later than the next business day. (7 Cyc. 978, 979; 5 A. & E. Encycl. of L. 1042.) But the delay was not conclusive upon the question of the passing of title to the coal, because it was accounted for by the situation of the parties. Here the delay was considerably greater, but was explained by circumstances which naturally account for it without the necessity of supposing that the plaintiff intended to waive the right to reclaim his wheat. Long as the interval was between the making of the check and its presentation, Brown deposited it for collection at the first opportunity he had to attend to the matter in person, without making a trip to town for that very purpose. To say that to preserve his right of reclama tion it was necessary for him to present the check not later than the day after he received it would be to establish too rigorous a rule. And after passing that limit there seems to be no place where a hard-and-fast line can be drawn dividing reasonable and permissible delay' from that which is unreasonable and prohibited. If the failure to make an earlier presentation did not bar him, his subsequent conduct did not have that effect, for within a short time after learning-of the failure of the drawer he claimed ownership of the wheat, and although he did not bring his action at once, he never thereafter ceased to assert his right to do so.
We think under the authorities it was a question of fact whether under all the circumstances his intention was that the absolute title to the wheat should pass to the elevator company, and the decision of the trial court can not be disturbed on review. The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This was an action in ejectment, commenced in 1906, to recover possession of certain school-land in Ness county, with the rents and profits. Mary McLachlin, the plaintiff, claims title by virtue of a school-land certificate issued in 1885. She paid the semiannual interest thereon until 1895 and then defaulted, but prior to the commencement of the action tendered to the county treasurer the interest past due. The defendant claims as a “new purchaser” under a certificate issued February 5, 1903, and relies upon forfeiture proceedings taken against the holder of the original certificate. .
After the plaintiff had rested her case the defendant sought to prove the forfeiture of plaintiff’s contract, and offered the records of the county clerk showing the issuance of a notice of default, the return thereon being as follows:
“Received this notice this 24th day of July, 1899, and served the same by posting a certified copy in county clerk’s office, within-named Mary. McLachlin not found in the county. July 31, 1899, D. E. Bondurant, Sheriff. By T. E. Bondurant, Under-sheriff.”
The return was defective, and, under the law as it stood prior to 1907, would have been held absolutely void. (Furniture Co. v. Spencer, 59 Kan. 168; True v. Brandt, 72 Kan. 502; Spencer v. Smith, 74 Kan. 142.) For the purpose of supplying the omissions in the return the defendant offered the parol testimony of T. E. Bondurant, former under-sheriff, and attempted to show that when the notice came into his hands there was no one in possession of the land, and that he posted a copy of the notice in a conspicuous place in the office of the county clerk.
The cause was tried to the court and judgment rendered in favor of the plaintiff, which the defendant seeks to reverse.
Under the provisions of section 1 of chapter 373 of the Laws of 1907 the testimony of the officer was competent for the purpose offered. (Jones v. Hickey, ante, p. 109; Reitler v. Harris, ante, p. 148.) But it was not conclusive or binding upon the court. Its weight and credibility had to be passed upon, in this instance by the court, and the judgment in favor of the plaintiff amounts to a finding against the defendant on the weight of evidence. In other words, the testimony was •not such as to satisfy the court that the service was in fact regular and valid. The proof was of the usual character — an attempt to show by the uncertain recollection of the officer, years afterward, what condition he found the land in and what he did-in serving the notice. Proof of this kind is, at best, of little value. In this case the officer frankly admitted on cross-examination that he had no independent recollection of what occurred, but that his best recollection was that at the time he went to the land it was in cultivation and there was fresh plowing on it. This fell far short of proof that no one was in possession of the land. The case differs from Burgess v. Hixon, 75 Kan. 201, and Thayer v. Schaben, 79 Kan. 856, in both of which it is stated that there was proper service but a defective return. Here there was a defective return and a failure to show proper service.
While there is no specific claim in the briefs that section 3 of the act of 1907 applies to the facts of the case, the. broad claim is made that under the provisions of chapter 373 of the Laws of 1907 a legal forfeiture of the original certificate was established. Petersilie claims to have made valuable improvements on the land. Assuming that his evidence shows that as a new purchaser he had improved the land, and that he now makes a claim of right under the provisions of section 3, we shall proceed to consider its provisions. It provides in substance that where notice of default has been posted in the offices of the county clerk, and thereafter a forfeiture has been declared and the new purchaser has taken possession of and improved the land, the notice shall be held to be sufficient as a basis of forfeiture, “and no other notice need be shown.”
As held in Jones v. Hickey, supra, it was competent for the legislature to alter ,a rule of evidence by declaring what shall be prima facie evidence of a fact. But it is apparent that section 3 goes further than this. It is a legislative declaration of the truth of facts — an invasion of the province of the judicial department of the government, to which alone belongs the power to inquire whether facts upon which rights exist are true or false. It must be held unconstitutional because it denies to the holder of the original certificate due process of law, “and because wrongfully depriving the courts of the judicial power to determine the 'weight and sufficiency of evidence.” (Railway Co. v. Simonson, 64 Kan. 802, syllabus. See, also, Felix v. Wallace County, 62 Kan. 832.)
It is everywhere conceded that the legislature may declare that a record or an instrument or a copy thereof or a fact proved shall be presumptive or prima facie evidence of the existence of some other fact, but where it attempts to make these evidential things conclusive it passes the bounds of legislative power and invades the province of the courts, and, in the language of the court in Railway Co. v. Simonson, supra, “precludes investigation into the fact, and itself determines the matter in advance of all judicial inquiry.” (Page 808.) The legislature, in section 3, attempted to interfere with the power of the courts and to forbid the investigation of facts by a declaration that certain testimony or other evidential data shall be conclusive, and this is beyond the province of the legislature. The holder of the first certificate is thus deprived of the right to prove the actual facts as they exist, and his property is transferred by a legislative act to another. That, this is not due process of law is so clear as not to require argument. In Felix v. Wallace County, supra, Mr. Justice Smith, speaking for the court, said:
“The legislature can not be allowed to thrust its arbitrary declarations into such adversary proceedings and decide which party should prevail. It is without: power to substitute its judgment in a disputed matter for that of a court engaged in the work of administering justice by orderly methods, after discovering the: truth by hearing evidence on both sides admitted according to legal rules.” (Page 838.) •
In the seventh edition of Cooley’s Constitutional Limitations, at page 526, the author says:
“But there are fixed bounds to the power of the legislature over this subject which can not be exceeded, . . . but it has no power to establish rules which, under pretense of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his rights. ... In judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suffered to produce his proofs.”
Among numerous authorities to the same effect are: Johns v. The State, 104 Ind. 557; B’d of Comm’rs of Excise, etc., v. Merchant, 103 N. Y. 143; State v. Beach, 147 Ind. 74; Baltimore, etc., R. Co. v. Reed, 158 Ind. 25; Board of Comm’rs of Howard Co. v. State, ex rel. Michener, Att’y Gen’l, 120 Ind. 282; Vega Steamship Co. v. Consolidated Elevator Co., 75 Minn. 308; 2 Wig. Ev. § 1354.
It follows that for the reasons stated section 3 of the act is unconstitutional and void.
The present case is to some extent the reverse of Jones v. Hickey, ante, p. 109. There the plaintiff, who was the first purchaser, after proving a prima facie case for himself, went further and offered the record of the forfeiture proceedings, relying upon their invalidity because of a defect in the return, but his own evidence supplied the omission in the recitals of the return, and, under the provisions of the act of 1907, we held that he had established a prima facie showing of a valid forfeiture which defeated his right to recover. In this case the defendant simply.failed in his attempt to satisfy Lhe court that there was proper service of the notice of the forfeiture proceedings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action to oust the defendants from exercising the duties of trustees of a county high school in Gove county. The defendants claim to exercise their powers by virtue of proceedings taken under’ the following statute:
“An Act establishing a county high school in Gove county, Kan sas, and providing for the maintenance and support of such high school.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. Whenever there shall be presented to the board of county commissioners of Gove county a petition praying for the establishment of a county high school, signed by a majority of the legal voters of said county, as shown by the votes cast for county superintendent at the last preceding election for that office, duly certified by the township trustees from the several townships where said petitioners reside that the petitioners are actual- residents of the township and voters at the time the certificate is made by the trustee, such board of county commissioners shall at their next regular session make an order establishing a county high school at Gove City, in said county, and shall forthwith appoint a board of trustees for the same, in accordance with the provisions of the general statutes providing for the appointment of such trustees.
“Sec. 2. The petition such as described in section 1 of this act shall state that the petitioners are legal voters of said county, and that' this petition is to be construed and accepted by the board of county commissioners the same as a vote for the proposition, .and that this petition and vote is for the establishment of a high school as provided by this act (naming it by its title).
“Sec. 3. That the board of county commissioners of Gove county shall, at the first regular session after the passage of this act, publish a notice in the official paper of said county for a period of six weeks that they will consider a petition for the establishment of a county high school at Gove City, in Gove county, Kansas, at its next regular session, as provided by this act; but if there be no petition presented as provided in this act pursuant of said published notice, then the county commissioners shall at the next regular session issue a second notice for the consideration of establishing a county high school at Gove City, in Gove county. But no petition shall be considered if protest against the establishment of a county high school, signed by forty-five per cent, of the voters, as shown by the preceding election, and filed with the county clerk at least twenty days before the regular session which -said board of county commissioners designated to consider the proposition, as specified in said notice.” (Laws 1903, ch. 445.)
Sections 4, 5 and 6 of the act prescribe the powers and duties of the trustees. Section 7 is as follows: "This act shall be in force and take effect from and after its publication in the statute-book.”
This act was approved February 20, 1908, and took effect June 1. It was Senate bill No. 414.
After the passage of the act, but before its publication, petitions for the establishment of such high school were circulated. A notice that the board of county commissioners would at their next regular meeting in July consider a petition for the establishment of a county high school, as provided in Senate bill No. 414, Laws of 1903, was published seven successive weeks, two of which publications were made before June 1, and five afterward. No order, of the board for such publication was made, but the notice was signed by the chairman of the board and attested by the county clerk. The first action taken by the board upon this matter was at the regular session held on July 11, 1903, when an order was made reciting that a petition had been presented as provided in the act, signed by 384 voters, being a majority of the votes cast for county superintendent at the last election, and declaring that by virtue of said act “a county high school bé and hereby is established at the city of Gove City” and appointing trustees for such school.
The state contends that the statute is unconstitutional because it confers legislative powers upon the petitioners. (Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148; Hovey v. Comm’rs of Wyandotte Co., 56 Kan. 577; Hutchinson v. Leimbach, 68 Kan. 37; Railroad Co. v. Abilene, 78 Kan. 820.) The defendants deny the application of the doctrine of the cases cited, and insist that the act is valid.
The state further contends that, conceding the validity of the statute, its provisions were not complied with, because (1) no notice was ever given by the board — the action of the chairman and the clerk being insufficient; (2) the notice was not published for the time required after the act took effect; and (3) the petitions were insufficient in form, were not certified as the statute required, ana were prematurely filed. It is manifest that the notice prescribed by the statute was a condition precedent to any order to be made establishing the school. In the absence of the authority conferred by this statute the power to establish this school did not exist in the county board. The legislature might give such power or withhold it, and hence could prescribe the conditions upon which it should be exercised. One condition was that a notice by the board should be published for six weeks. The importance of observing the'conditions prescribed by law where the power of taxation is to be exercised was forcibly stated by Mr. Justice Brewer in Lewis v. Comm'rs of Bourbon County, 12 Kan. 186. Possibly some of the particulars relating to the form and certification of the petitions should be held to have been determined by the finding of the commissioners and were not subject to review in this action. This we do not decide. But their authority to make any finding or take any action toward establishing the school depended upon the notice.
“Where a statute confers a new right, privilege or immunity the grant is strictly construed, and the mode prescribed for its acquisition, preservation, enforcement and enjoyment is mandatory.”
“Where a statutory power or jurisdiction is granted, which otherwise does not exist, whether to a court or an officer; and, in all cases where, by the exercise of such a power, one may be devested of his property, the grant is strictly construed; the mode of proceeding prescribed must be strictly pursued; the provisions regulating the procedure are mandatory as to the essence of the thing required to be done.” (2 Lewis’ Suther. Stat. Const., 2d ed., §§ 632, 627.) .
In reviewing the proceeding establishing a high school in pursuance of a vote taken at a special election it was held that 'the failure to publish notice of the special election as required by law was fatal. In the opinion it was stated:
. “This court has always held that the particulár manner provided by statute for giving noticé of a special election must be strictly pursued.” (The State, ex rel., v. Echols, 41 Kan. 1, 5.)
A notice as required by statute is necessary to give to county commissioners the authority to lay out a highway. (Comm’rs of Chase Co. v. Cartter, 30 Kan. 581; Bourbon County v. Ralston, 79 Kan. 432.) And generally the statutory requirements relating to the giving of notice before proceeding to exercise a special power must be complied with or the act is void. (Gossard v. Vaught, 10 Kan. 162; George v. Oxford Township, 16 Kan. 72.)
“Statutory requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is a matter of convenience rather than of substance.” (The People v. Schermerhorn, 19 Barb. [N. Y.] 540, 558.)
(See, also, Jones v. The State of Kansas ex rel. Atherby and Kingsbury, 1 Kan. 273, 280.)
The importance of the notice of this proceeding is made more apparent in this statute by the provision that the petition should not .be considered if a protest of 45 per cent, of the voters was filed twenty days before the session designated to consider the proposition. By publishing this notice for only five weeks after the act took effect the time thus allowed for remonstrance was abridged, unless we hold that the voters were bound to take notice of a publication made before any authority to make it existed. The words “passage of this act,” contained in section 3, must be construed as the time when it should take effect. (1 Lewis’ Suther. Stat. Const., 2d ed., § 183; Cooley’s Const. Lim., 7th ed., pp. 223, 224; Comm’rs of Miami Co. v. Hiner, 54 Kan. 334.) Until the act took effect the commissioners had no more power to give the notice than to make the final order. Where a county was prohibited from issuing bonds for one year after its organization it was. held that the commissioners had no authority to order an election within that time. (The State, ex rel., v. Comm’rs of Haskell Co., 40 Kan. 65.)
As the conditions of the law with respect to notice were not complied with the school was not legally established. 'We need not consider the constitutional question, nor the other objections urged against the statute.
Judgment will be entered for the plaintiff as prayed, for. | [
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"The opinion of the court was delivered by
Smith, J.:
It will be observed that the petition alleges that “at all times prior to the wrongful acts of -defendant hereinafter complained of” a certain condition of the stream existed on the plaintiff’s land, which he had obviated or remedied by building and maintaining a crossing or roadway across Elm slough. It is also apparent, although the allegations are somewhat ■disconnected, that the wrongful acts complained of relate to the raising and maintaining the height of the dam, which caused the alleged injuries.
It is contended by the defendant that-to constitute a ■cause of action the petition must show that the defendant had not lawfully acquired the right to raise the height of his dam. This identical question was presented in Akin v. Davis, 11 Kan. 580. In the opinion 'Mr. Justice Valentine said:
“It is also claimed that said petition does not state -facts sufficient to constitute a cause of action, because it does not state that the defendants did not obtain the Tight to flood the plaintiff’s land by virtue of proceedings under the mill-dam act. (Gen. Stat. 576, ch. 66.) It is not necessary that any such statement should be inserted in the petition. If it is true that the defendants have obtained any such right by virtue of proceedings under the mill-dam act, it is for them to plead it and prove it.” (Page 588.)
The specific acts which resulted in the continuing trespass or nuisance were pleaded, and if it was necessary to characterize the acts as unlawful it was done as above indicated. In Rhea v. Williams, post, it is said that the words “wrongful” and “unlawful” have the same significance.
It is further contended that the court erred in the judgment rendered in that the injunction was mandatory to reduce the dam to its former height and perpetual against erecting or maintaining it at a greater height than that at which it formerly had been maintained. It is said that the perpetual injunction debars the defendant from proceeding according to law to obtain the right to raise the height of the dam, and to pursue such authority, when so obtained. We do not understand the judgment to have this effect.
The judgment of the court is affirmed. | [
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Per Curiam:
The plaintiff, Gibson, holds the land, in question under a quitclaim deed made after, but recorded before, a warranty deed to the defendant, Tucker, made by the same grantor. The plaintiff purchased in good faith, after exercising all reasonable diligence in making inquiries and im the examination of the records. ’ It is conceded that the plaintiff had no notice of the outstanding unrecorded deed' held by the defendant, unless it should be held that one Rhodes, who had such knowledge, was his agent in the purchase of the land.
The question, then, is whether Rhodes was in- fact the plaintiff’s agent. Upon an examination of the evidence it clearly appears that the plaintiff dealt with Rhodes as the owner of the land and made the purchase ■directly from him, although the naked legal title was in another, who executed the deed. In these circumstances Rhodes was not the agent of the plaintiff, but should be considered the vendor, in accordance with the understanding of the parties to the transaction.
The defendant, who failed to have his deed recorded or otherwise to give notice of his interest until after the plaintiff had completed his purchase, has no cause to complain of the judgment. (Eger v. Brown, 77 Kan. 510.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Four questions are involved in the determination of this case: (1) The identity of the mortgage foreclosed with the mortgage which Tate assumed and agreed to pay in his deed from Collins and wife. (2) Did the acceptance of the deed from Collins and wife by Tate constitute an independent contract of indebtedness from Tate to the mortgagee or his assignees upon which the latter could, with personal service, have obtained a money judgment against Tate? (3) Was. the personal action, if any such action ever existed in favor of an assignee of the mortgage against Tate, barred by the statute of limitations? (4) If the mortgage mentioned in the deed was the same as the one assigned to Brooks, and if, as it appears, an action on this indebtedness was barred by limitation as against Collins, was the lien of the mortgage upon the land thereby destroyed?
The question as to the identity of the mortgage is simply a question of fact to be determined upon evidence by the court. It is said that because the mortgage was described in the deed as dated November 20, <1888, while the mortgage in suit is dated November 1, 1888, and acknowledged on November 20, 1888, this of itself conclusively proves that there were two instruments. The evidence, however, showed that Collins did not perfect his title to the land until November 3, 1888, and it is as reasonable to suppose, especially as the mortgage was recorded November 21, 1888, that it was not completed or delivered until the 20th as that it was executed and delivered two days before he acquired title to the land. At any rate this is not conclusive, but is only a circumstance which may be overcome by other evidence.
The ■ plaintiff, to show the identity of the instruments, produced a bonded abstracter, who testified that he had made an abstract of this land and that there was no other mortgage of record thereon dated prior to the time of the execution of the deed from Collins to Tate. It is urged that the evidence of the bonded abstracter is incompetent. He testified, however, to nothing said to be contained in the record, but simply to the negative — that there was no record of any other' mortgage existent at the time. We think the objection is not well taken. (See 2 Wig. Ev. §§ 1230, 1244.)
There was substantial evidence to sustain the finding of the court on this point, and we can not disturb it.
The evidence is undisputed that Tate, who áccepted the deed from Collins and thereby assumed and agreed to pay the mortgage debt, left the state of Kansas before the maturity of the debt and has been ever since absent from the state. ' Therefore, if there ever was any cause of action against Tate in favor of the mortgagee or his assignee, the running of the statute was suspended by Tate’s absence and such action was not barred. (Civ. Code, § 21.)
It was, in substance, decided in Schmucker v. Sibert, 18 Kan. 104, that if the cause of action upon a note is barred by limitation any suit upon the mortgage given to secure the* note is also barred, and, vice versa, if an action upon the note is not barred a suit upon the mortgage is not barred. This decision has many times been cited with approval in this court. The indebtedness of Tate to the holder of the mortgage did not originate in the execution of the note and mortgage by Collins to Frahm, but in the contract to assume the indebtedness embodied in the deed from Collins to Tate, And, so long as a suit by the holder of the mortgage could be maintained against Tate on that contract, so long survived the lien of the mortgage upon the land conveyed by Tate- to Hendricks. This question and practically all the remaining questions in this case may be answered from the following excerpt from the opinion of Mr. Justice Brewer in Schmucker v. Sibert, supra:
“The acceptance of the deed makes it a contract in writing binding upon the grantee, just as the acceptance by a lessee of a lease in writing signed by only the lessor makes' it a written contract binding upon such lessee; and suit can be instituted upon it, and the same rights maintained, as though it were also signed by the grantee. And it is not to be considered as a mere promise or acknowledgment, as named in the exceptions to the statute of limitations, and therefore to be signed by the party to be charged. Those exceptions apply to debts already existing against the parties sought to be held, and aim to continue in force prior liabilities. But the grantee in such a deed was not liable before its execution. His liability dates from that. That is the first contract he has made, the first obligation he has assumed. At that time therefore, as to him, the statute first commences to run. Nor is he discharged by the fact that the debt as to the original debtor has since his promise become barred by the statute of limitations. For his contract is an original, absolute promise to pay the debt, and not a mere contract of indemnity, and to save the original debtor harmless. The creditor may ignore the original debtor entirely, and proceed directly and solely upon this promise. The grantee is not simply a surety. His promise is not to see that the original debtor pays’, or to pay if he does n’t. But it is a direct, absolute and unconditional promise to pay the debt to the creditor.” (Page 112.)
It can not be said that Tate did not accept this deed or the contract therein contained to pay the mortgage, although he testified that he did not think he assumed and agreed-to pay the mortgage. The deed itself, produced in evidence, is conclusive of the contract therein, and the fact that he conveyed to Hendricks the title to the land which he derived through this deed is conclusive evidence that he accepted the deed with its obligations. (27 Cyc. 1345.)
We conclude that the evidence was sufficient to sustain the finding of the court that the mortgage which Tate assumed and agreed to pay by the acceptance of the deed from Collins and wife is the identical mortgage sued on; that by the acceptance of the deed from ■Collins and wife, with the contract therein contained, the contract inured to the benefit of the holder of the mortgage, who could, with personal service, have obtained a money judgment against Tate; that an action by the holder of the mortgage against Tate was not barred by limitation at the time of the commencement of this suit, the running of the statute having been ■suspended by the absence of Tate from the state of Kansas; that Hendricks took the land subject to all liens thereon which existed at the time of the conveyance from Tate to him, and that a suit to enforce the mortgage- lien on the land was not barred by limitation until the debt which it secured was so barred.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Although the plaintiff challenges
the finding- of fact as to the purchase and ownership ,of the Selby notes it is not open to reconsideration, because the evidence on which it was "based was not preserved and there was no motion for a new trial.
There remains the question whether the facts found -’justified the ruling that the plaintiff was not entitled to a foreclosure of the Merriman mortgage. That mortgage.was legally executed, duly recorded, and it, as well as the claim which it secured, had been purchased by and was the property of the plaintiff. The mortgage had never been discharged by payment or release. The lien of the mortgage was prior to that acquired under the Selby mortgage; and of that fact the junior mortgagee had abundant notice. Aside from priority of record, there was a recital in the Selby mortgage that it was executed subject to the Merriman mortgage, previously given. The plaintiff was denied a foreclosure of this mortgage, not because of waiver, extinguishment or satisfaction, but because the note for the payment of which the security was given had become merged in the personal judgment rendered in the city court of Coffeyville.
It may be assumed, as the trial court found, that the judgment of the city court was valid and is a subsisting obligation. It is also clear that when the Merriman note was reduced to judgment it became merged in the judgment and could not thereafter be made the foundation of a subsequent cause of action. (Price v. Bank, 62 Kan. 735; Remington v. Hudson, 64 Kan. 43; Redden v. Bank, 66 Kan. 747.) However, the merger and extinguishment of the note did not discharge the debt nor extinguish the mortgage. The form of the debt was changed, but the debt itself, for which the mortgage was security, remained in full force. The debt secured by the mortgage is the primary obligation between the parties, and the note is no more than the primary evidence of that_debt.' The note and mortgage are not so closely tied together" that' a creditor mtist sue on both in the same action. He may bring an action against the debtor wherever he may be found, but can only foreclose, the mortgage in the jurisdiction where the land lies. He may obtain a personal judgment on the note alone without- waiving .his rigjrt to foreclose on his mortgage. (Lichty v. McMartin, 11 Kan. 565; Investment Co. v. Law, 62 Kan. 193.) The supreme court of Indiana has held it to be well settled that a recovery of a judgment on a note is no bar to an action to foreclose the mortgage. (O’Leary v. Snediker, 16 Ind. 404; Jenkinson v. Ewing, 17 Ind. 505; Conyers v. Mericles et al., 75 Ind. 443.) In Iowa it was held that “the holder of a note secured by a mortgage may take judgment upon the indebtedness at law without thereby waiving or releasing the lien of the mortgage, and may subsequently, if he sees fit, bring his action £o foreclose such lien within the life of the j udgttient thus procured.” (Gilman v. Heitman, 137 Iowa, 336; 347.)
The giving of a new note for the one that was secured by the mortgage does not take the debt out of the .security unless that was'the intention of the-parties, and 'this is upon the theory that the thing secured is the debt rather than the. evidence of the debt. In Priest et al. v. Wheelock, 58 Ill. 114, where the effect of taking judgment upon a note was considered, it was said that “that instrument was given to secure the debt, and it was immaterial what form it’ assumed, whether an account, note, or judgment. The substance, and not the mere form, is regarded in equity, and hence the pledge was to secure payment of the money, and not a mere extinguishment of the note by the debt assuming another form. Because the judgment extinguished the note, it does not follow that the mortgage was discharged, or the lien it created on the premises was extinguished. The lien of the mortgage on the lot-still continued, to secure the payment of the debt then evidenced by the jud'gmenf.” j (Page 116.) In section 936 of volume 1 of the sixth edition of Jones on Mortgages there is a statement of the general rule, well supported by authorities, that “the merger of the note in a judgment does not extinguish the debt, and the mortgagb continues a lien until it is satisfied or the judgment is barred by the statute of limitations.” (See, also, Riley’s Adm’r v. McCord’s Adm’r, 24 Mo. 265; Macomb Sewer-pipe Co. v. Hanley, 61 Minn. 350; Torrey v. Cook, 116 Mass. 163; Cissna and Others v. Haines and Others, 18 Ind. 496; Kempner and Blum v. Comer, Fairris & Dial, 73 Tex. 196; Denistoun v. Payne, 7 La. Ann. 333; 23 Cyc. 1195; 20 A. & E. Encycl. of L. 959; Wiltsie, Mort. Forecl. § 328.)
Coming to the question of pleading, it is contended by the defendant company that the note upon which, the plaintiff relied had ceased to exist as an evidence of indebtedness and did not furnish a basis^of recovery.. The note, being merged in the judgment,-'was no longer an evidence of the debt, and therefore it could hot be ' used as a ground of action. Thereafter the judgment was the only evidence of the debt secured by the mort--. gage, and if the plaintiff had no other foundation for this action than the original note he would necessarily fail. In his petition he pleaded the note and mortgage, without mentioning the fact that the note had been reduced to judgment. In the answer of the com-' pany, however, the judgment was set out, and in his. reply the plaintiff referred to this judgment and expressly averred that it had been sold and assigned to him. On the allegation that the judgment came to him by assignment testimony appears to have been taken, as there is a specific finding of the referee that the receiver of the loan company not only sold and transferred the note and mortgage to the plaintiff but at about the same time the judgment based on the note was assigned to him. In this way the judgment was. brought in issue. It is true that the plaintiff made other allegations inconsistent with the existence and transfer of the judgment, where he alleged that the act. creating the city court was invalid and also that the judgment had been set aside in that court. Notwithstanding these inconsistent theories of the plaintiff the-debt in the form of the judgment was brought into the pleadings and was considered by the trial court, and on these averments and the evidence under them the-rendition as well as the assignment and transfer of the- .judgment were found as'facts by the trial court. / On these facts and the authorities cited the plaintiff is •'entitled to recover the debt evidenced by the judgment ■•and to a foreclosure of the mortgage given to secure the debt. The lien of that mortgage is prior- and paramount to that of the Cable Company, which, as we have >seen, was taken subject to the plaintiff’s mortgage. .
. The judgment of the district court is therefore reversed. and the cause remanded, with directions to render judgment in accordance with the views herein ■expressed. | [
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The opinion of the court was delivered by
Burch, J.:
Much space is taken up in the statute-book with laws regulating the sale of intoxicating liquors for lawful purposes, prohibiting and punishing sales for unlawful purposes, and'suppressing and punishing the maintenance of liquor nuisances. The county attorney of each county is required diligently to prosecute all violations of these laws, and for failure of duty in this respect he may be removed from office.
Section 2462 of the General Statutes of 1901 is a part of this scheme of laws, and reads as follows:
“It shall be the duty of all sheriffs, deputy sheriffs, constables-, mayors, marshals, police judges, and’police officers of any city or town having notice or knowledge of any violation of the provisions of this act, to notify the county attorney of the fact of such violation, and to furnish him the names of any witnesses within his knowledge by whom such violation can be proven. If any such officer shall fail to comply with the provisions -of this section, he shall upon conviction be fined in any sum not less than, one hundred nor more than five hundred dollars; and such conviction shall be a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addition to the imposition of the fine aforesaid, order and adjudge the forfeiture of his said office. For a failure or neglect of official duty in. the enforcement of this act, any of the city or county officers herein referred to may be removed by civil action.”
The primary purpose of this provision is to put the county attorney in command of evidence whereby the law may be vindicated. The' presumption is that he will do his duty. Sometimes, however, the county attorney displays masterly inactivity in the enforcement of the liquor-law, and then the diligent and faithful making of reports to him by the officers named may either •compel him to act or furnish ground for his removal.
The law was framed to accomplish results. Its letter and spirit are unmistakable to any one who carefully studies it. When the defendant took office he bound himself to fulfil both. The findings are conclusive that he had knowledge of many violations of the law and knew the names of the witnesses by whom such violations could be proved. The record he was required to keep and the arrest slips turned in. by his subordinates gave him notice of the fact of other violations. He did nothing except to talk with the county attorney in a .general way about the subject of liquor prosecutions by the city. This is not what the statute requires. The notification must be given, in such a manner that the county attorney may understand it is an official communication, and in such terms that he will be put in possession of the specific information which it is designed to convey. The opinion of the county attorney respecting the importance of the class of cases discussed with him was not a lawful guide to the defendant’s conduct. The county attorney is given no authority to grade violations of. the law and thus create a standard ■ of duty for police officers. Nor could the defendant and the county attorney agree upon any policy to be pursued which would displace the statute. The statute fixes the standard and settles the policy which must be observed.
The fact that the cases within the defendant’s knowledge were sporadic, or, as they are termed, “migratory,” is immaterial. The statute does not recognize the classification. They were violations of the law, and if a policeman know the facts it is his simple duty to notify the county attorney.
In communities where persistent efforts to evade the •law are persistently opposed the liquor traffic is usually reduced to the degenerate state described in finding No. 11, and to what is known as “bootlegging.” The law is not satisfied until such violations are punished. When detected by police officers they must be reported to the county attorney with promptitude or successful state prosecutions become impossible. Notifying the county attorney is just like any other regular police business. The purpose is the efficient suppression and certain punishment of crime. Unqualified diligence and celerity are always necessary to accomplish'this purpose. Manifestly the making of weekly or monthly or quarterly reports is insufficient. The county attorney must be notified just as soon as the due and orderly discharge of police duty, will permit.
It should not be inferred from what has been said that the county attorney must prosecute indiscriminately every kind of a case brought to his attention, even though, under the circumstances, and considering the evidence available, he has no reasonable prospect of se curing a conviction. As the law officer of the county he possesses some discretion, to be exercised candidly and honestly in individual instances. But police officers have no discretion with reference to the classes of cases they should report..
Such being the clear law of the > case, the question is whether the defendant should be ousted from office. There is no finding of corruption or of wilful disobedience of the statute., The defendant was without police experience when he undertook his office, was ignorant of the law, and has suffered from ill health. From a showing made in response to a cost order it appears he is a poor man, and his term ends in. a few days. He has been ready and willing to do his duty, but the attitude of the county attorney toward the class of cases with which he has had to deal seems to have misled him. The parole of prisoners and the enforcement of police court sentences have nothing to do with the case. Ignorance of the law does not exculpate, nor does ill health, unless it incapacitates from duty; but all the circumstances of the defendant’s situation may be considered in connection with his motives, which plainly enough are not dishonest, and so may influence the discretion which the court may exercise over the extraordinary remedy of quo warranto. That the court has such discretion, see Tarbox v. Sughrue, 36 Kan. 225; Weston v. Lane, 40 Kan. 479; Horton v. Wilder, 48 Kan. 222, 226; City of Topeka v. Water Co., 58 Kan. 349; The State, ex rel., v. Wilson, 30 Kan. 661, 671.
It is difficult to say what will best satisfy the demands of justice in the premisés, but under all the facts the court is of the opinion that judgment should be rendered in favor of the defendant, and it is so ordered. | [
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The opinion of the court was delivered by
Graves, J.:
The contention in this case is that the lot in controversy, having been designated upon the recorded plat as a part of the town of Fremont, can not be described in any other manner. It is urged that the attempt to locate it in a, town having another name amounts to nothing, imposes no burden upon the land, and a tax deed founded upon such a proceeding does not constitute a conveyance; in other words, the tax deed in controversy, because of this misdescription, is void. No other defect is urged against the deed.
The land was taxable; the tax was delinquent. The land was assessed as being a part of the town of Fremont, and was so described on the tax-roll. It continued to be so described until 1896. The tax deed, which was executed in 1899, recites that the proceedings were concerning a lot in the town of Morland. The only question discussed by counsel is the effect of this irregular description upon the tax deed. We have not been cited to any decided cases or to any statute in support of the contention of the plaintiff. We do not understand that there is any peculiar rule relating to .the description of real estate in tax deeds. The general rule relating to descriptions in conveyances — that they must be so definite and specific that the land intended will be understood — seems applicable here. It has been held that abbreviations which are well known and generally understood may be properly used. (Douglass v. Byers, 69 Kan. 59, 64; Knote v. Caldwell, 43 Kan. 464; Comm’rs of Jefferson Co. v. Johnson, 23 Kan. 717.) In the case of Douglass v. Byers, 69 Kan. 59, it was said:
“While descriptions can not be supplied by parol evidence, it is competent to explain abbreviations and clear up ambiguities by evidence aliunde the instruments or proceedings.” (Page 64.)
Section 7696 of the General Statutes of 1901 seems to cover the question fully.
It appears that people familiar with the facts knew the town by either the name Fremont or Morland. People not familiar with the early history of the town would probably recognize the land more readily if described as a part of Morland than if as a part of Fremont. The land intended by either description could be easily ascertained by any person. The taxing officers -had the proper land in view. The owner well knew that the tax was delinquent, that the lot had been sold, and without attempting to remove the burden permitted the land to remain unredeemed until it had been conveyed by tax deed and the deed recorded for more than five years. The plaintiff did not acquire his deed to the lot until June 1, 1906, at which time he was fa miliar with the history of the town plat and of the defendant’s rights to the lot. *
We are unable to find that any material error was committed by the district court, and its judgment is affirmed. | [
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Per Curiam:
The city of Paola brought suit to enjoin the obstruction of an alleged natural watercourse. The defendants own and occupy as their residence three-lots in the city of Paola, through which the city claims, there is a natural watercourse. It also claims that the-defendants have wrongfully obstructed the same, thereby diverting the water from its usual channel, and causing it to accumulate in one of the streets. The-court made findings of fact and conclusions of law, and denied the injunction. Judgment was rendered in favor-of the defendants for costs. The plaintiff complains, and has brought the cause here upon the'findings, without evidence, contending that the findings as a whole-entitle it to a judgment. The court, however, made two» findings which seem to.conclude the plaintiff. They are as follow:
“ (11) The water which flows along the depression or in the ditch through defendants’ lots is wholly surface-water at this time.”
“(22) That the depression or ditch mentioned and described in these findings, over and through which water flows after a rain or from melting snows, where it crosses the lots of the defendants, is not a natural watercourse.”
From these facts it necessarily followed that the defendants were entitled to judgment, since the owner of land may prevent surface-water from coming on his. premises. (Palmer v. Waddell, 22 Kan. 352; A. T. & S. F. Rld. Co. v. Hammer, 22 Kan. 763; Gibbs v. Williams, 25 Kan. 214; K. C. & E. Rld. Co. v. Riley, 33 Kan. 374.)
The plaintiff, however, contends that other findings show conclusively that the waterway in question is a. natural watercourse. The court made very full and complete findings, but we have been unable to discover any which is not in harmony with those-we have quoted, to the effect that the water complained of is surface-water and that the ditch or depression is not a natural watercourse.
It is also claimed that the court erred in denying-plaintiff’s motion to change or modify certain findings of fact and in refusing to make other findings. As none of the evidence is before us these claims of error can not be considered. The judgment is affirmed. | [
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-54,
24,
-112,
48,
9,
-88,
115,
-74,
-122,
117,
7,
-103,
-120,
114,
102,
33,
44,
-85,
-88,
-115,
6,
-35,
13,
-90,
-70,
72,
73,
33,
-74,
-67,
116,
65,
38,
106,
-26,
-123,
95,
-20,
7,
-89,
-44,
-79,
-113,
-92,
-100,
5,
-17,
3,
48,
96,
-49,
-12,
92,
69,
49,
91,
30,
-79
] |
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