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Per Curiam:
The findings relating to the plaintiff’s observation of the approaching car do not necessarily conflict with the findings that he exercised due care at the time of the collision or with the general verdict. Under the case of Railroad Co. v. Gallagher, 68 Kan. 424, it was a fair question for the jury whether he was guilty of contributory negligence. If, however, he was negligent, the finding that the motorman might have avoided inj uring him by the exercise of due care after he was observed to be in danger supports the general verdict. He could not quickly extricate himself, his horses and his wagon from peril, as in Dyerson v. Railroad Co., 74 Kan. 528, so that the case is ruled by Railway Co. v. Arnold, 67 Kan. 260.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant insists that the failure of the plaintiff to have the additional insurance indorsed on the policy precludes his right to recover, and in the same connection the contention is made that the local agent was powerless to waive the conditions of the policy in respect of a change in the location of property and non-payment of the higher rate of premium, for the reason that he had no knowledge of the additional insurance at the time of the alleged waiver.
We regard it as of no importance that the policy for the additional insurance was dated four days later than the policy sued on, if, in fact, the agent at the time he wrote the policy was informed that there would be $7700 concurrent insurance, and if it appears that it required the 2500-dollar policy to make up this amount of concurrent insurance. In the ordinary course of business it would be nothing unusual that the policies on a stock which had been insured for six or seven years, bore different dates and expired at different times. It may be that the policy in the Shawnee company was a. renewal of a similar policy in actual existence on May 8. The question is, Did' the company have, through its agent, notice of this concurrent insurance? The case: was decided on a demurrer to the evidence. The testimony of the plaintiff stands admitted, to the effect that he informed the agent that the amount of concurrent insurance would be $7700 and directed him to other local agents for further information; also that at the time the local agent agreed to the transfer of the policy he asked plaintiff how much concurrent insurance was then on the stock, and was informed that the amount was the same.
“A general agent of an insurance company can modify the insurance contract or waive a condition of a written policy by parol.” (Insurance Co. v. Gray, 43 Kan. 497, syllabus.)
(See, also, Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Insurance Co. v. Hogue, 41 Kan. 524; Insurance Co. v. Munger, 49 Kan. 178; Insurance Co. v. Bank of Pleasanton, 50 Kan. 449; Insurance Co. v. McCathy, 69 Kan. 555; Insurance Co. v. Straughan, 70 Kan. 186; Cooper v. German-American Insurance Co., 96 Minn. 81.) The local agent was the general agent of the company within the scope of the foregoing decisions. (Insurance Co. v. Gray, supra.) We think that beyond any question the agreement of the agent that the policy should be transferred to cover the goods at the new location operated as a waiver of the condition that it should be in force only while the property was located on lot 12, and also operated as a waiver of the condition with respect of concurrent insurance, because he had knowledge of the facts.
. It is argued that because the policy was canceléd by the removal of the property it could no longer bind the company unless it was reinstated, and the contention is made that there was no consideration for an agreement to reinstate. It is not difficult to discover the consideration. After the plaintiff removed his stock he wrote the company and requested that the policy be canceled and the unearned premium returned to him. The company, evidently desirous of retaining in its possession the unearned premium, replied by letter and gave him a very cordial invitation to see the local agent and have his policy transferred to cover the property at the new location. He accepted the invitation, they retained the money, and are not in a position to. say that there was no consideration for the agreement to reinstate.
In regard to the failure of the plaintiff to pay the higher rate of premium, it is sufficient to say that there was no obligation on his part to pay it until it was demanded by the company. In the letter in which the company suggested that he see the local agent' nothing was said about a higher rate, and when the local agent talked with the plaintiff and consented that the policy should be considered as transferred to the new location there was no request for any additional or higher rate of premium. A case very similar in the facts is Cooper v. German-American Insurance Co., 96 Minn. 81. It was there said:
“The duly authorized agent of a fire-insurance company, having power to consent to the removal of the location of insured property and to transfer the policy, may by oral agreement consent to such removal and make such transfer, and if such agreement is made the policy does not become void but continues in force. The fact that the rate of insurance is greater at the new location does not relieve the obligations of the company under the policy, provided the insured agrees and holds himself in readiness to pay the additional premium. The duty is upon the agent .to ascertain what the increased rate is and make demand upon the insured therefor.” (Syllabus.)
It follows from what is here said that it was error to sustain the demurrer, and the judgment is reversed and the cause remanded for further proceedings. | [
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Per Curiam:
• The tax deed under which plaintiff claimed title is void on its face because it fails to state the amount for which the land was bid off by the county, and the omission is not cured by any of the other recitals. (Robidoux v. Munson, 75 Kan. 207.) The amount for which the certificate was assigned is stated, but at the date of the assignment the taxes were due for two subsequent years, and it is impossible to ascertain from the face of the deed how much of the amount paid was for the taxes for the year for which the land was sold and how much was for the subsequent taxes. (Gibson v. Ast, 77 Kan. 458.) The words “being equal to the cost of redemption at that, time” necessarily refer to the date of the assignment.
Upon the showing made the trial court committed no error in opening up the former judgment. The judgment is affirmed. | [
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Per Curiam:
James W. Boyle brought an action of ejectment against E. W. Sayers and others, who defended under a tax deed and also under a sheriff’s sale upon a mortgage foreclosure. The only tax deed shown in the record does not describe the land in controversy, but it is doubtful whether this was the deed relied on. This, however, need not be determined, for the following are the only objections made to the foreclosure proceedings, and they are insufficient as a ground of collateral attack: The affidavit made as a basis for service by publication did not describe the land, and in attempting to state that personal service of summons could not be had upon the defendants within the state omitted the word “personal”; the petition and publication notice named several defendants and several tracts of land but did not indicate that any particular defendant was interested in any particular tract more than in any other.
The judgment is affirmed. | [
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Per Curiam:
This action was commenced by Hannah Hart and Leopold Hart, the parents of Nathan Hart, who fell from a passenger-train operated by the defendant and was killed.
The facts developed at the trial are substantially as follow: The deceased got upon the train at Kansas City, Mo. He had been a traveling salesman for about fifteen years, and was familiar with railroad travel generally, and with this train in particular. His brother was with him upon this occasion; they were going to Springfield, Mo. The-train was what is known as a “full, or solid, vestibule train,” which means that the platform of each coach is enclosed with a vestibule. On the train in question, when the vestibules were all closed, a person could walk with safety from one end of the train to the other in an enclosed passage-way. The deceased and his brother were seated in the middle compartment of the smoking-car. The train left Kansas City after night. Its first-stop was at Paola. Soon after leaving Paola the brother, who had been asleep, discovered that the deceased was not in his seat, and a search was made for him. He could not be found. Every vestibule door was closed except one in the front end of the smoker, next to the baggage-car, which was open. The next morning the mangled, lifeless body of the deceased was found at the side of the track near Fontana. It was the custom of the railroad company to keep all vestibule doors closed while the train was between stations. Just when the deceased left his seat, and for what reason, is unknown. When, where and how his body got where it was found is not known. When, where and by whom the vestibule door was. opened is mere conjecture. So far as the evidence shows, the deceased was in the possession of all his ordinary faculties and in good health. Before the train reached Paola the deceased visited the water-tank frequently, as though feverish or thirsty. Any one familiar with a vestibule train could open a door as the one upon this train was opened. That vestibule was not lighted except' as the light shone in through the glass in the closed door of the- smoking-car.
Upon these facts the district court sustained a demurrer to the evidence, and the plaintiffs prosecute error.
Before the plaintiffs could recover from the defendant they must have produced testimony sufficient to establish prima facie that the defendant was guilty of negligence which caused the death of their son. The only act of negligence on the part of the defendant which has been suggested is that the door of the vestibule was open. But the testimony is absolutely silent as to when, where or how that door was opened. It" has been urged that but two agencies can be supposed to be responsible for this — the negligent conduct of the defendant’s employees, and the deceased himself. The deceased must be excluded, because he can not be imputed with the intent to commit suicide, and then noth-’ ing remains but the negligence of the defendant. The evidence, however, does not suggest these conditions exclusively. The deceased made such frequent visits to the Water-tank as to attract the attention of his brother, who testified to it.' This, being in midwinter, would justify the assumption that the deceased was uncomfortably warm, perhaps feverish, and .to obtain relief from the warm, stifling air which is often found in a smoking-car at night he may have gone to the vestibule in question, and in opening the door to get fresh air lost his balance by a sudden lurch of the train and accidentally fell out. This, of course, is mere conjecture, and only serves to show the extent to which specula tion may run, where there are no facts by which it is. guided or limited.
The evidence here presents no facts upon which it. can be safely assumed that the deceased lost his life because of any negligence upon the part of the defendant,, and therefore the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiff makes eight assignments of error, all but two of which relate to the refusal of the-court to strike out portions of the answer. As the case •was decided by sustaining a motion of the defendants for judgment in their favor upon the pleadings the judgment can not be affirmed unless it is the correct legal conclusion upon the undisputed facts. The facts, as pleaded by the plaintiff are accepted to be true and the facts as pleaded by the defendants will be accepted only so far as they are admitted by plaintiff in its reply. Of course, the meaning and effect of written instruments admitted to have been made and executed is not matter of fact to be pleaded, but of construction by the-court. Nor, of course, will propositions of law pleaded by either as to when on the facts a cause of action arose or when the statute of limitations had run be regarded as facts. As the plaintiff, presumably, did not: in reply admit as true any portions of the answer which it had previously moved to strike out, we may safely disregard the six assignments of error relating to the denial of the motion and consider only the other two, really one, to wit, that the court erred in rendering judgment for the defendants on the facts so determined.
The plaintiff, then, and DeBoissiere, for the purpose ,of promoting a charity, sometime previous to May 11, 1892, entered into a verbal contract by the terms of which DeBoissiere was to convey the lands in question to trustees, to be designated, for the purpose of establishing and maintaining an Odd Fellows’ Orphans’ Home and Industrial School Association. The plaintiff, on its part, was to pay off to one Sears an equitable lien which he had on the land, and contribute the money to erect contemplated improvements on the land and support the children in the home, for every kind of expense except teaching. This contract was to be perpetual, and was so far executed that DeBoissiere executed the deed to designated trustees and the plaintiff paid on account of the Sears claim about $20,000, and about $15,000 for the making of improvements on the land. DeBoissiere died in France in January, 1894, and left his sister, Corrinne Martinelli, as his only heir. In October, 1894, the plaintiff passed the resolution and caused to be executed the quitclaim deed copied in the statement.
The defendants contend that by this deed the plaintiff not only conveyed all the rights, legal and equitable, it had in the lands in question, but that it also repudiated its contract to “support the children in the home, for every kind of expense except teaching.” The plaintiff, however, says that the instrument was intended only to convey to the trustees whatever interest, claim or title it may have acquired by the deed made by DeBoissiere and to give the trustees control of the Rome and scRool; tRat it was made only to settle dis puted questions between the plaintiff and trustees, and that whatever it conveyed to the trustees does not avail •the defendants, as they claim title 'to the land neither through the trustees nor in privity with them, but at all times have claimed title in opposition to the trustees.
It is hard to conceive how language could be framed to express more clearly the intention of the plaintiff to convey all its rights in the land, of whatever nature they might be, to the trustees, thán the language here employed: '
, “ResoVved, that this grand lodge hereby rescinds all former action taken in connection with or pertaining to said orphans’ home.
“Resolved, that the grand master and the grand secretary convey by quitclaim deed under seal of this grand lodge to said corporation all interest, claim or title which it may have acquired by virtue of said deed made by Mr. DeBoissieré, or because'of any action heretofore taken by this grand lodge, concerning said home.”
The only action which the plaintiff pleads it had theretofore taken in reference to the land was the payment of the lien and the advancement of money for the improvements. It seems also that the following language forcibly expresses the intention of the plaintiff to bear no longer the expenses of the children in the home:
“Resolved, that this grand lodge does hereby renounce all claim to, interest in, control over, or connection with, said orphans’ home, further than to give it its blessing.”
We think this instrument, without ambiguity, assigned the rights of the plaintiff in the land and renounced all interest in, control over or connection with the orphans’ home, and declared its intention no longer to contribute to the support thereof as by its contract it had undertaken to do.
Let us assume, however, for the purpose of further examining the contentions of the plaintiff that the quit claim deed did not amount to an assignment of its equitable lien upon the land for the money it had expended upon the contract: In 1896, nearly two years after the execution of the quitclaim deed, Corrinne Martinelli, the sole heir of DeBoissiere, brought a suit in the district court of Franklin county for the purpose of setting aside the deed from DeBoissiere to the trustees for the land in question and to determine the rights and liabilities of all the parties in. and to the land. The plaintiff, as well as the trustees, was made a defendant and summoned in the action. The plaintiff appeared and answered therein, and, in a pleading in the nature of a cross-petition, set up substantially the claim now relied upon, and asked that it be adjudged to have an equitable lien upon the land and that the land be sold to discharge the same. Thereafter the defendants herein secured a conveyance of the land in question from Corrinne Martinelli to them, and were substituted as plaintiffs in that suit in place of their grantor and filed an amended petition therein. Whereupon the defendants by leave of court filed a general demurrer to the amended petition, and the demurrer was sustained and judgment was rendered declaring that the plaintiffs therein had no cause of action against this plaintiff ; and thereafter no proceedings were had by which this plaintiff was in anywise made or continued as a party to said cause. The plaintiff contends that it was no longer .a party to the action.
The defendants, on the other hand, contend that the plaintiff continued to be a party in that case through all the subsequent proceedings therein, including the final judgment of the district court in favor of .the defendants, the proceedings in error in the supreme court, the reversal of the judgment of the trial court, the filing of the mandate in the district court, the hearing of the motion in the suit for judgment in favor of the plaintiffs therein in accordance with the mandate, the allowance thereof, and the rendition of such judgment. The record of the proceeding is pleaded by the defendants herein and is not traversed by the plaintiff, .and appears to sustain the contention of the defendants that the plaintiff had' notice of such motion and was represented by counsel at the hearing thereof and at the time of final judgment therein.
We will, however, again assume that upon the sustaining of the plaintiff’s demurrer to the amended petition and the judgment thereupon rendered the plaintiff was out of the case — was no longer a party thereto, and that the final judgment therein, rendered March 23, 1893, was not an. adjudication as to its claim of a lien on the land as against the defendants herein. However, we think it must be conceded that if Corrinne Martinelli had voluntarily dismissed her suit, after the filing of the plaintiff’s answer, it could have proceeded therein to have its rights under its cross-petition adjudicated, even over the objections of Corrinne Martinelli and the trustees.
The defendants contend that The plaintiff’s cause of action, if it had any, arose immediately upon the bringing of the suit of Corrinne Martinelli, especially as the plaintiff had by its quitclaim deed, in part at least, repudiated its contract and refused longer to contribute to the support of the orphans’ home. The plaintiff, on the other hand, contends that its right to an equitable lien upon the land for money paid to discharge the Sears lien and to erect improvements on the land was contingent, upon the result of the suit to set aside DeBoissiere’s-. deed, and that its cause of action did not accrue until' the final determination of that suit — March 23, 1903. It claims this although it had, in 1897, commenced an. action against these defendants, the trustees and others, and set up practically the same claims here relied upon, and had thereafter dismissed the action without prejudice.
Two legal questions then remain: (1) When did the. cause of action of the plaintiff for the declaration. of a lien upon the land arise? (2) If this question be not involved in the first; was the pendency of the suit to set aside the DeBoissiere deed such a contingency as suspended the plaintiff’s cause of action for the lien until such suit to set aside the deed was determined?
It seems clear that at some time, if its rights had not' been assigned, the plaintiff was entitled to relief and had a cause of action for the money expended by it to promote and sustain the Odd Fellows’ Orphans’ Home. Mr. Freeman, the annotating editor ,of the- American State Reports, analyzes the cases in which relief is allowed against mistakes of law, dividing them into four classes. The fourth class is: “Where there is a mistake of law on both sides [of a contract], owing to which the object of the parties can not be attained.” (Note to Renard v. Clink, 91 Mich. 1, in 30 Am. St. Rep. 460, 461, citing Champlin v. Laytin, 18 Wend. [N. Y.] 407, 417, Corrigan v. Tiernay, 100 Mo. 276, and note to Black v. Ward, 27 Mich. 191, in 15 Am. Rep. 171.) It is evident that DeBoissiere and the plaintiff thought when they entered into the contract and proceeded to the execution of the same that by their action they had organized or could organize the Odd Fellows’ Orphans’ Home and endow it with the lands and buildings through the medium of trustees in perpetuity. They were both mistaken as to the law, and owing to such mistake their object could not be attained. There was no fraud on either side. The mistake was mutual, and when it was discovered equity should restore to each party as nearly as possible what he contributed to the mistaken enterprise. It is also apparent that- whenever either party is entitled to withdraw his contribution to the common enterprise the other party is also entitled to withdraw his contribution thereto. Is this discovery made when one party is correctly advised as to the law and Brings an action to repossess himself of his contribution, or is it made when a court of com petent and final jurisdiction has finally determined that the law does not permit the conveyance of the real estate for the desired purpose in perpetuity and therefore that the objects of the parties can not be attained?
The* plaintiff contends that its right to recover its contribution to the common purpose was contingent upon the right of the defendants, «as successors in interest to DeBoissiere, to recover his contribution, thereto, and although it was finally adjudicated in the suit brought by Corrinne Martinelli that the plaintiff in that suit really -held the title to the land at the very time of bringing the suit, and that the DeBoissiere deed was void, yet the right of the plaintiff herein to recover its contribution to the common purpose was contingent upon the final determination of that suit, and that the statute of limitations did not begin to run against its cause of action until,that suit was finally determined. Many authorities are cited by the plaintiff to sustain this contention. We have examined these authorities, and so far as they are in any way. instructive they relate to cases in which the former action, a determination of which forms the contingency upon which a later action depends, involves the determination of facts upon the existence of which a. cause of action in the later case depends, and such a relation exists between the parties to the two actions that the parties to the latter may rely upon the action of the parties' in the former.
The contention of the plaintiff is not consistent with its answer in the Martinelli case. It then recognized that it was called upon to assert and litigate any interest it had or claimed in or to the land. It responded by setting up the same claims now involved. In effect its answer was .a cross-petition asking to be reimbursed for its contributions to the original purpose which had augmented the value of the estate that Corrinne Martinelli sought to recover, and for which betterment she should repay the plaintiff if she recovered, the land.
The right of the plaintiff therein and of this plaintiff, as defendant therein, depended upon the legality or illegality of the DeBoissiere deed. It was purely a question of law, and not a single authority has been suggested, nor is it believed one can be found, where it has' been held that the pendency of one action^ wherein the sole question is as to what láw is applicable to certain facts, constitutes a contingency upon which depends the right to bring another action upon the same facts by a party not in privity with the claimant in the former action.
“A contingent claim is where the liability' depends upon some future event, which may or may not happen, and which therefore makes it wholly uncertain whether there ever will be a liability.” (Adm’r of Sargent v. Adm’r of Kimball, 37 Vt. 320, syllabus.)
(See, also, Stevens v. Stevens, 172 Mo. 28, 36; Jorgenson v. Larson, 85 Minn. 134.)
The case last cited was based upon a claim for damages against the estate of a vendor for the breach of a contract to convey land and the refusal of- the widow of the vendor -to convey the one-third of the land vested in her by the death of her husband, she not having signed the contract to convey. The grantee had previously brought a suit to compel the specific performance of the contract as to* the one-third. After citing and approving the above definition of a contingent claim, the court said:
“Now, in this case, the plaintiff’s claim against the estate of his vendor for damages for the breach of the contract to convey the land became absolute when the widow refused to convey the one-third of the land vested in her by the death of her husband. He then knew that he could not compel specific performance as to this one-third, and that his only remedy was a claim for damages against the estate. Such claim was just as absolute when the widow refused as it was when the judgment in the action for specific performance was entered. The plaintiff, however, contends that he could not know until the decision in his equitable action whether the court would hold his acts of part performance sufficient to take his contract out of the statute of frauds and make it one that could be enforced; therefore it was contingent. Or, in other words, he could not know whether he could prove a valid contract to the satisfaction of the court until it actually decided the case. If this makes it a contingent claim, then every claim before judgment thereon is a contingent one, and need not be presented to the probate court, because the result of a lawsuit is always attended with uncertainties.” (Page 187.)
The contingency upon which the plaintiff’s right in this case depended was the validity of the DeBoissiere deed, and, paraphrasing the language of the above decision, the plaintiff’s claim to recover its contribution which had been used- for the betterment of the estate became absolute when Corrinne Martinelli, the heir of DeBoissiere, declared the deed invalid and brought suit to set it aside. The plaintiff herein was in no sense in privity with either of the other parties to the former action, but whatever claim it had was adverse to each of the others.
We conclude, therefore, that the plaintiff’s right of action became absolute upon the bringing of the suit by Corrinne Martinelli in 1896. The plaintiff evidently so understood it when it filed its answer in that action, and also when it brought the action in 1897.
If the plaintiff, being a party to the suit brought by Corrinne Martinelli in 1896, stood upon its cross-petition therein until the final determination thereof in 1903, it had an action pending in court, and the statute of limitations was tolled thereby until the final determination of the action. In such case, however, the final judgment in the case was adverse to it and renders the claim asserted in. this action res judicata. If, on the other hand, the plaintiff, by its demurrer and the ruling thereon, was discharged from that suit and was no longer a party thereto, then the final judgment therein was not an adjudication of its rights, but from the time it was discharged from the action it had no action pending and the running of the statute of limitations was no longer tolled. This ruling on the demurrer was more than five years before the commencement of this action, and five years is the longest limitation possibly applicable. The record before us arid the conduct of the parties leaves some uncertainty whether or not the plaintiff was dismissed as a party from the former action; but, as we have seen, this can make no difference in the result herein, and the contention of the plaintiff is therefore adopted and its action is held to be barred by the statute of limitations. The judgment is affirmed.
Benson, J., not sitting. | [
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The opinion of the court was delivered by
Porter, J.:
The single question is whether the following writing is a contract or a mere receipt:
“Mount Vernon, Mo., December 9, 1903.
“I, Andrew J. Norris, do hereby acknowledge receipt of five hundred dollars, which amount I deduct from purchase-price of the southeast quarter of section 20, except a strip three acres square in the northwest corner of south half of S. E. quarter, and the north half of the northeast quarter of section 29, all in township 29, range 25, as commission for the sale of said land to myself, as the commission belongs to my son-in-law, George Lewis, and by agreement with all parties to be deducted from purchase-price of said land this day bought from L. M. Farris.
A. J. Norris.”
Plaintiff brought his action upon the writing and contends that it is an agreement or contract to pay a sum of money. The defendant interposed the three-year statute of limitation as a defense, and contends that the writing ,is a mere receipt and amounts to nothing more than an oral promise. The trial court, took the latter view and sustained a demurrer to the petition, of which the plaintiff complains.
The plaintiff has cited a number of cases in which, a written receipt for money is held to be a contract* but none of them in our opinion bears out his contention. In most of them the paper, besides acknowledging the receipt of money, contained words from which the law implies a promise. One of the cases relied upon is Long, Executrix, v. Straus et al., 107 Ind. 94, where the writing was in the following words: “Received of Joseph S. Long sixteen hundred dollars, on deposit, in national currency. Straus Bros.” (Page 95.) The words “on deposit” have a well-known meaning, and imply a promise to pay upon presentation* where no other date of payment is fixed. The case therefore illustrates the rule which defeats the plaintiff’s contention.
In Talcott v. National Bank, 53 Kan. 480, which we regard as controlling this case, the point decided was that a pass-book given by a bank to a depositor does not constitute a written contract within the meaning of our statute of limitations. In the opinion Mr. Chief Justice Horton, referring to the case of Long, Executrix, v. Straus et al., supra, said:
“The action in that case was upon a written instrument in the nature of a certificate of deposit properly signed by the party executing the same. It was more than a mere receipt, for it embodied an agreement.” (Page 484.)
Plaintiff also relies upon Ashley v. Vischer, 24 Cal. 322. The action there was upon two writings. The first was in the following words:
“Received of John Morrison, esq., the sum of two thousand seven hundred and fifty dollars. San Francisco, February 24, 1855. ($2750.)
(Page 322.) Edward Vischer.”
,The second was as follows:
“This is to state that I am holder of three checks on Page, Bacon & Co. (viz., $380.70, $514.40, $227.44), amounting to eleven hundred and twenty-two dollars and sixty-three cents, to be converted into cash as best possible, and to be applied to the account of John Morrison. San Francisco, February 24, 1855. ($1122.63.)
(Page 325.) Edward Vischer.”
The trial court held that the action to recover on the first instrument was barred because it was a mere receipt for money. The second instrument was construed to be a contract. The judgment of the trial court was affirmed. In the opinion the distinction between the two writings is stated to be the fact that the second, in addition to being a receipt, contained the statement that the amount was to be applied to the account of John Morrison.
In the present case the writing amounts to nothing more than an acknowledgment that so much money has been received. It is merely primó faci'e evidence of that fact; it is not conclusive, and may be contradicted or explained by parol testimony. The defendant might, for instance, show that at the time the money was received the plaintiff was indebted to him in an amount equal to or greater than the sum mentioned in the receipt. There is no promise or contract or undertaking expressed in the writing. Our statute provides that an action “upon any agreement, contract or promise in writing” (Civ. Code, § 18, ¶ 1) shall be brought within five years. There is no acknowledgment of any fact in this writing from which the law implies an obligation, and a liability can not be said to be founded “upon any agreement, contract or promise in writing” within the saving clause of the statute, unless from its terms the law will prima facie imply some liability.
It follows from what has been said that the judgment must be affirmed.
Benson, J., dissenting. | [
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The opinion of the court' was delivered by
Johnston, C. J.:
The defendant’s railway cuts off the southwest corner of a section of land near Morgan-ville and runs diagonally from the southeast to the northwest, intersecting'highways on the south and the west sides of the section. The south crossing is forty-seven rods east of the southwest corner of the section, and the west crossing, where the cattle were killed, is eighty-seven rods north of the southwest corner of the section. Morissette, who had charge of the cattle, had driven them over these highways twice each day for more than two months before the collision. On the evening of the collision he drove the herd, 112 in number, from the pasture on the east along the highway on the south side of the section, and when near the south crossing he rode ahead of the herd to see if a train was approaching, and finding none he drove the cattle over. When he reached the southwest corner of the section and started north along the west highway he again looked to the south for a coming train, but saw none. He was then eighty-seven rods from the west crossing. From that point there were buildings and trees on his right which obscured the view of a train coming from the southeast until he had reached a point seventy-five to one hundred yards from the west cross ing. From the time he turned the corner and started north he allowed the cattle to string out along the road and a number of them to go on and over the crossing without taking any precautions to ascertain the approach of a train from the southeast. When he passed the obstruction, which was about 300 feet from the crossing, he saw the coming train and endeavored to avert the danger, but it was too late, as the cattle were already on the track.
The findings of the jury affirmatively show that he did not exercise, ordinary prudence in caring for the cattle, and that the collision was the result of his concurring negligence. The railway company was found to be negligent in failing to give the necessary signals on approaching the crossing where the cattle were killed. The negligence of the company, however, did not relieve Morissette from the exercise of reasonable care for the cattle which he was driving. The law regards a railway-crossing as a place of danger, and a view of the track itself as a warning of danger to an approaching traveler. (U. P. Rly. Co. v. Adams, 33 Kan. 427.) . In many cases it has'been held that a traveler who approaches a railway-crossing with which he is familiar without looking or listening for approaching trains or using reasonable care to ascertain whether there is a present danger in crossing is guilty of contributory negligence which will bar recovery for injuries sustained in a collision. It is not enough for a traveler to look where an approaching train can not be seen or to listen when it can not be heard. Nor will it suffice that one has looked some distance away from the crossing when a view on a closer approach would have revealed the danger. (Railroad Co. v. Holland, 60 Kan. 209; Railroad Co. v. Entsminger, 76 Kan. 746.) Where by reason of obstructions or noises an approaching traveler can not see or hear a coming train, it may be necessary for him to stop or take some other suitable precaution to ascertain whether there is a train in dangerous proximity. (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284.) In short, he must exercise care proportionate to the perils of the place.
Now, Morissette had had experience in handling cattle, and he was very familiar with the crossing in question. He allowed the cattle to travel from the corner of the section and on and over the crossing, a distance of eighty-seven rods, without taking any care whatever for their safety at the crossing. He did not look or listen for a train until he was within seventy-five to one hundred yards of the crossing, and at that time the •cattle were already going over the track. It is true that he was unable to get a view of the track to the south until he reached that point, but that being true he should have taken other reasonable precautions to learn whether a train was in dangerous proximity. It would have been easy for him to ride ahead of the herd and ascertain whether there was a coming train, and that would have been no more than ordinary care. His action at the south crossing indicated that he appreciated the danger of taking cattle over such crossings and knew a prudent method of averting it. There, as we have seen, he rode forward and looked down the track for a train before allowing the cattle to cross, and if he had taken the same precaution at the west crossing the collision and loss might have been avoided. If in ■driving the cattle they had been grouped more closely, so that the leaders were only a short distance ahead of him, or , if he had been driving but a single animal, “there might have been some excuse for failing to exercise any care to ascertain if a train was coming until he had passed the obstruction. But to drive them along blindly for eighty-seven rods and allow them to string out and over the crossing without taking any precautions for their protection at such a dangerous place was a plain case of contributory negligence.
In Railway Co. v. Jenkins, 74 Kan. 487, a man standing in the rear of his wagon passed an obstruction which cut off his view of a railway track, and his team was struck and injured by a train which he failed to see but which might have been seen if he had taken care commensurate with the perils of the situation. In deciding the case it was said:
“.Ordinary care further requires that a man driving a team across a railroad track or a series of railroad tracks shall not deprive himself of the opportunity of a prompt view by unnecesarily lagging behind while the team proceeds unguarded into danger. He must be vigilant in trying to see.” (Page 488.)
So here it may be said that the inattention of Morissette while the cattle went unguarded into danger was not ordinary care. It is true, as contended by plaintiffs, that it is ordinarily a question of fact for the jury to determine whether a traveler has looked frequently enough or whether he looked or listened at the right spot before going on a crossing, but here the facts showing contributory negligence have been specifically found. The cattle, as we have seen, were permitted to travel more than a quarter of a mile and over the track without Morissette’s having made any use of his senses to avoid danger or taking any precaution for the safety of the cattle.
On the findings it must be held that there was such contributory negligence as precludes a recovery, and hence the judgment is reversed and the cause remanded, with directions to enter judgment on the- special findings of the jury in favor of the railway company. | [
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Per Curiam:
There is no merit in the contentions of the plaintiffs in error. They were served with summons in the foreclosure proceeding, entered their appearance, and filed dilatory motions which prevented the action from being tried at the October term. The motions were then withdrawn and permission was obtained to answer within twenty days, but no answer was filed. A further extension of twenty days was granted to answer, “without prejudice to a trial at the January term.” At this time one of their codefendants had already filed a cross-petition asking for the foreclosure of a second mortgage. No answer or further appearance was made until six weeks after the judgment was entered, when motions were filed asking the court to set'aside the judgment for irregularity.
The case was regularly set for trial at the January term and was regularly tried. A summons on the cross-petition was not necessary. The original summons brought the defendants into court for every purpose connected with the case, and they were bound to take notice of all the proceedings that followed. (Kimball and others v. Connor, Starks and others, 3 Kan. 414; Curry v. Janicke, 48 Kan. 168; Jones v. Standiferd, 69 Kan. 513, 517.)
The record shows nothing irregular in the proceedings, and discloses such a lack of diligence on the part of the plaintiffs in error as fully to justify the court in refusing to set aside the judgment. Affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The city of Oskaloosa, in Jefferson county, was platted in 1859. . Two men owned the land, embraced in the limits, and the dividing line ran through the middle of the plat and of a block designated on the plat as the “public square.” They organized themselves and perhaps others into what was called “The Town Company of the Town of Oskaloosa.” One: of the proprietors, as president of the town company, certified and acknowledged the plat, which was recorded, and in the dedication recited:
“And I do by these presents dedicate the streets,, alleys and square designated on the said within plat to. the use of the public and of the town of Oskaloosa, aforesaid, and to no other use or purpose whatever.”
The other land proprietor did not certify or acknowledge the plat or dedication, but proceeded to sell lots; and blocks on the portion of the town laid on his land in accordance with the plat and in every way treated the plat as if made by himself.
Oskaloosa was not then the county-seat of Jefferson, county. About 1867 Oskaloosa was made the county-seat, and the county soon thereafter built a court-house: in the block designated as the “public square,” and thereafter, and for more than forty years before the-bringing of this action, continuously occupied the square for county purposes. Some time after the courthouse was built the county built a substantial jail on the: square.
About twenty years before this controversy arose,. the original proprietor who did not sign the plat having died, his heirs brought suit against the county to recover the portion of the square which belonged to him, or the possession thereof, and on trial of that action the judgment was in favor of the county. The record in that action was introduced in evidence, but the abstract does not contain the pleadings or a statement of the contents thereof and we are unable to determine what issues were litigated in that case. It is contended, however, on the part of the city that the county in that action claimed title and right of possession.
This controversy arose over the enactment of an ordinance by the city requiring the curbing and macadamizing of certain streets therein, including the streets bordering upon this square. The city paid the cost of such macadamizing around the square, and passed an ordinance assessing one-half of such cost to the county and presented a bill for the same to the board of county commissioners, which bill the commissioners refused to allow. The city appealed from the decision of the commissioners to the district court. The trial in the district court to a jury resulted in a verdict and judgment in favor of the city.
Numerous objections to the introduction of evidence and to the 'giving of certain instructions and the refusing of others requested are made and argued. We have examined all these objections so far as they are fairly presented in the abstract and are unable to discover any material error therein against the county. Indeed, we think upon the evidence presented the court might well have instructed the jury to return a verdict in favor of the city.' This case is in all respects analogous to Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, except that in that case the square upon which the court-house was located was marked upon the plat “court-house square.” In this case, while the original platting of the city was irregular, it was acquiesced in and acted upon by all parties interested and the rights of the successors in interest to the proprietor who did not certify the plat appear to have been extinguished by the adjudication twenty years ago. It must therefore be held that the plat was a sufficient conveyance to vest in the county the fee of the park, which, as well as the streets and alleys, was dedicated to the public use.
The right of the county to the use of the square for court-house purposes is not in issue in this action. Its right to the use of one-half of the square, at least, seems to have been adjudicated in its favor twenty years ago, and after enjoying the use of the square for forty years, and by its possession asserting its right to continue such use, the county is not in good position to assert that it has no right to the possession of the square. For the purposes of this case we may say that as the county has the legal title to and the possession of the park, and, as its right to continue in possession in the future is not drawn in question, it has such an ownership in the block as to give the city a right to make the special assessment against it for the improvements to the abutting streets.
All other objections which can be made to the assessment for the improvements against the county and for the recovery of judgment for the samé are fully answered favorably to the city in Comm’rs of Franklin Co. v. City of Ottawa, supra.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
It is not contended that'the judgment is excessive or that it is not supported by sufficient evidence, if the law (chapter 144 of the Laws of 1897) is valid. The statute requires the employer, upon the request of a discharged employee, to furnish in writing the true cause or reason for such discharge. The railway company did not meet this requirement. Its “serv ice-letter,” as it is called, stated only that Brown was discharged “for cause.” This is not a statement of “the cause” or of any cause.
It is also alleged that the service-letter was issued in furtherance of a conspiracy existing between the defendant and other railroad companies to prevent employees of one company from getting employment in another company without the consent of the former employer. This claim is not supported by any evidence.
“To constitute a conspiracy the purpose to be eff ected by it must be unlawful, either in respect of its nature or in respect of the means to be employed for its accomplishment. (People v. Willis, 54 N. Y. Supp. 129, 133, 24 Misc. Rep. 537; People v. Olson, 15 N. Y. Supp. 778, 779; Payne v. Western & Atlantic R. Co., 81 Tenn. [13 Lea] 507, 521, 49 Am. Rep. 666.)” (2 Words & Ph. Jud. Def. 1460.)
There was nothing in the evidence to show that there was an unlawful purpose contemplated or that unlawful means were to be used. All that is shown is that upon Brown’s application to two other railroad companies request was made for his service-letter, when he informed the employment agent that he had worked for the defendant company, and that upon the presentation of his letter employment was refused him. Probably he could have secured employment only upon the presentation of a letter, recommending him as a desirable employee, and a letter stating the true cause of his discharge, which appears to have been sufficient in the mind of the employment agent of the defendant company to remove him from its employment, would not have availed him. If so, he was not damaged by the failure of the defendant to state the true cause of his discharge.
It may be said that if the law is valid the company need have no concern as to the effect of its compliance with the letter of the law. This leads us to the principal contention of the company — that the law is un constitutional; that it is repugnant to section 11 of the bill of rights of the state of Kansas, which provides:
“All persons may freely speak; write or publish their sentiments on all subjects, being responsible for the •abuse of such right.”
It is also contended that the law is repugnant to the fourteenth amendment to the constitution of the United States, which provides:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any' state deprive any person of life, liberty, or property, without due process of law.”
It has been conceded in argument that in the absence of a contract of employment for a definite term the master may discharge the servant for any reason or for no reason, and that the servant may quit his employment for any reason or for no reason. Such action on the part of the employer or the employee, where no obligation is violated, is an essential element of liberty in action. Can one, then, be compelled to give a reason or cause for an action for which he may have no specific reason or cause, except, perhaps, a mere whim or prejudice? Again, is not the freedom to remain silent— neither to write or publish anything on a certain subject — involved as an element in the guaranty that “all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right”? It would seem that the liberty to remain silent is correlative with the freedom to speak. If one must speak, he can not be said freely to speak.
The statute in question, like its companion statute, chapter 120 of the Laws of 1897, was the outgrowth of the financial and business depression preceding that •session of the legislature. Employers sought to recoup their loss of incomes by scaling the wages of the employees, and laborers sought to resist the decrease in wages or to compel an advance by uniting in labor organizations. The remarks of the late Mr. Justice Greene in holding the provisions of chapter 120 of the Laws of 1897 unconstitutional are equally applicable to the provisions of the law in question. An excerpt from the opinion in Brick Co. v. Perry, 69 Kan. 297, reads:
“Before approaching a discussion of the question let us exclude any notion that the act in question is a police regulation. It will be observed that it does not affect the public welfare, health, safety or morals of the community, or prevent the commission of any offense or other manifest evil. Where the object of the act can not be traced to the accomplishment of some one of these purposes it is not a police regulation. Besides, the legislature has no power to impair or limit the reasonable and lawful exercise of a right guaranteed by the constitution, under the guise of a police regulation. It must also be remembered that the right which the plaintiff claimed was violated did not originate in contract, but was purely statutory; therefore, the determination of the question whether he has any remedy depends entirely upon the validity of this statute.” (Page 299.)
. When the relation of employer and employee has ceased by discharge or by quitting the employment^ if the employee has been efficient and trustworthy the employer may be under a moral obligation to benefit the employee by giving him a statement to that effect. On the other hand, if the employee has been inefficient or untrustworthy it may be the employer’s moral duty to furnish a prospective employer, upon request or perhaps without request, a statement of these facts. But the former employer is under no legal obligation so to do, either to his ex-employee or to the prospective employer. The public has no interest in the matter, and in neither case can such a duty be imposed as a police regulation, and the attempt by statute to impose the furnishing of such a statement is an interference with personal ■ liberty.
The mere matter of time requisite to comply with the requirement of the statute is perhaps a matter of trifling consideration, yet if the state may compel the sacrifice of a few minutes of the time of one person for another, may it not compel the sacrifice of a few days of time? Where and upon what principle shall the limit be placed? Again, if the employer can be compelled to state the true cause of discharge it implies that he should state the facts as he understands them, and the facts may be in dispute and may be regarded by the employee as libelous. Litigation may result therefrom which might be a great burden'to the ehiployer, -although successfully defended. We think the state can impose no such possible burden. As in many other relations in life, the employer may be silent and be safe, or, at his option, he may be courteous and fulfil his moral obligation. It is a personal privilege.
The judgment is reversed, with instructions to set aside the judgment and to enter judgment for the defendant. | [
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Per Curiam:
This is an action to recover a strip of land not included in an instrument of conveyance but claimed to have been acquired by adverse possession. The trial court determined upon the testimony that the plaintiff in error had not held such possession or exercised such dominion over the strip for the necessary period as would give her a title. The decision of the court rests upon disputed evidence, but as there appears to be sufficient to support the general finding the judgment is affirmed. | [
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Per Curiam:
The special finding that the defendant did not set the fire ends the case. The plaintiffs offer nothing convincing to show that this finding was induced otherwise than ■ by the evidence, which overwhelmingly supports it.
The gist of the third request is this: If the circumstances present a reasonably adequate explanation of the fire on the hypothesis that it was set out by the engine the jury may so find. This is precisely what the court undertook to say in the instruction given. The phraseology employed is technically somewhat inapt, but the meaning is unmistakable. From all the expressions used, rfead together, the jury understood well enough how to deal with the evidence offered by the plaintiffs. The plaintiffs’ discomfort is occasioned by the fact that they produced no evidence which could prevail against the defendant’s proof, if the latter was accepted by the jury as true.
The fourth request singled out a particular circumstance, held it up before the jury, told them to take it •as evidence, and told them its weight and effect under certain conditions. Of course this request was properly denied.
The jury were properly advised that the burden rested upon the plaintiffs to show that the defendant set out the fire. Since they failed to establish this indispensable fact it is immaterial what occurred at the trial respecting other features of the case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The negligence charged in the petition was the failure to give warning of the approach of the train to the crossing, and allowing the crossing to be defective by failing to raise the roadway as it approached the track to conform to an elevation of the track by ballasting. Proof was offered tending to show negligence as averred, but a demurrer was sustained upon the ground, as stated in defendant’s brief, that the ’evidence proved that the deceased was guilty of such contributory negligence as to bar a recovery. We must determine, therefore, whether the plaintiff’s evidence conclusively proved such contributory negligence. If it did not, a question of fact was presented for the .jury. (Kinchlow v. Elevator Co., 57 Kan. 374.) On the •other hand, if only one inference or deduction could be drawn from the facts shown by plaintiff’s evidence, the question was one of law for the court. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586; Railway Co. v. Hanson, 67 Kan. 256.)
The rule for determining the conditions upon which evidence of negligence presents only a question of law for the court has been discussed in a multitude of cases. In Railroad Company v. Stout, 84 U. S. 657, Mr. Justice Hunt undertook to define the respective functions of •court and jury, in language quoted and approved as the true rule in K. P. Rly. Co. v. Pointer, 14 Kan. 37. In the latter case Mr. Justice Brewer, in the opinion, said:
“When the facts are disputed, it makes a question for the jury. When the facts are undisputed, and but one deduction is to be drawn from them, there is simply a question of law for the court. But where the facts, though undisputed, are such that when taken singly or in combination different minds will come to different conclusions as to the reasonabléness and care of the party’s conduct, the question is one which may properly be left to the determination of the jury.” (Page 53.)'
“It is true, in many cases, that where the facts are undisputed the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts comes in question rather than where deductions or inferences are to be made from the facts.” (Railroad Company v. Stout, 17 Wall. [84 U. S.] 657, 663.)
“The jury are the triers of the facts, and whenever the testimony has reached such a point that it must be weighed and conclusions deduced therefrom the jury alone must make the deductions in the first instance, and not the court.” (Avery v. Railroad Co., 73 Kan. 563, 564.)
“Negligence is a question of fact for the jury. It is. for them to determine whether there has been any negligence, and its nature and degree. Even where the circumstances are all admitted, if there is any doubt as to what they prove, 'it is still a question for the jury. It is not the duty of the court to draw inferences from the evidence, but only to pronounce legal conclusions from facts admitted, or properly found.” (U. P. R. W. Co. v. Rollins, 5 Kan. 167, 181.)
Mr. Anderson was in his carriage, driving north. When near the right of way he turned west into the east-and-west road, just east of the crossing. His view of the track for the last 265 feet before reaching the crossing was completely obstructed until he was at the culvert, thirty-six feet from the east rail. At the culvert he could see up the track toward the station 250 to 300 feet, but the train was not then in sight, for if it. had,been, assuming that it was running fifty miles an. hour, it would have reached the crossing before he did. The evidence of the speed of the train was that it was running very fast. It did not stop at the station, and the evidence does not prove that it could have been seen at all until the deceased reached the point fourteen feet from the east rail. He was then at least 'eighteen feet from the point of collision, as the rear end of the buggy was hit, the horse having passed over the track. If the horse walked at the rate of four miles per hour, or six feet to the second, this required three seconds; adding two seconds for the stop, five, seconds had elapsed, in which time the train, if running at the rate supposed, of seventy-five feet to the second, advanced 365 feet, and was not less than that distance from the crossing when it was seen or might have been seen by the deceased. If the train moved faster or the horse slower, or if the stop was longer, the distance was correspondingly greater. As the deceased was bound to use his faculties and be vigilant for his own safety, we must assume that he was looking and saw the train when it first came into view. The horse’s head, fourteen feet from where he sat, was then very close to the east rail; the culvert, with an open ditch at each end, was twenty-two feet behind him, or about seventeen feet behind the rear wheels of his carriage; the on-coming train was about 365 feet from him; he was looking almost directly at the front of the engine, and it was coming on a down grade. But for the unfortunate stop —the .cause of which was a fact for the jury to determine — he probably would have passed over uninjured. In making the attempt he lost his life. The duty of a person in such a situation is to exercise the care of an ordinarily prudent person for his own safety.. This implies, as this court has often held, that he should look and listen for approaching trains. (Railroad Co. v. Entsminger, 76 Kan. 746.) If the view is obstructed, greater care must- be exercised, and he should make vigilant use of his senses to determine whether there is a present danger in crossing. (C. R. I. & P. Rly. Co. v. Williams, 56 Kan. 333.) When two ways are open to a person, and one is obviously safe and the other plainly dangerous, and he voluntarily chooses the latter he will ordinarily do so at his peril. (Railroad Co. v. Brock, 69 Kan. 448.) But a person of ordinary prudence is not expected to act with the same presence of mind and care under the stress of sudden and impending danger as he would in other conditions. (Railroad Co. v. Brock, supra.) Whether it was safer for the deceased to attempt to hold the horse with his head close to the track as the on-coming train rushed by, or attempt to turn aside, with the culvert behind him and the track in front, or to go forward, were questions to be decided and acted upon instantly. In view of the lamentable outcome we may believe now that it would have been better had he not attempted to go forward — but his conduct must be viewed in the light of his situation at the moment. He was not- absolutely safe, as he might have been if standing upon the ground fourteen feet -from the track. He had to manage his horse, and this required affirmative action upon the instant. The language used in the Brock case,-supra, is pertinent to this situation:
“If one be placed in peril by the negligence of another añd through consequent fear and bewilderment err in judgment and make an injudicious choice of a means of escape, contributory negligence can not be ascribed to him as a matter of law.” (Syllabus.)
The precise question here is not whether the court believes that the deceased adopted an unwise course, or that he was negligent as matter of fact, but whether it can be determined as a matter of law that he was so negligent under the well-settled rules determining' the respective duties of the judge and the jury. It is only in cases free from doubt, where reasonable persons would not disagree, that the question of negligence becomes one of law. (Young v. Railway Co., 57 Kan. 144.) . .
The witnesses differed in their estimate of distances, at which a train could be seen at the points indicated by one approaching the crossing, but we have taken, the testimony most favorable.to the plaintiff as true, that being the duty of the court upon a demurrer to the evidence, where such testimony tends to prove the-plaintiff’s allegations. (Farnsworth v. Clarke, 62 Kan. 264.)
“Upon a demurrer to the plaintiff’s evidence, every propitious fact which it fairly supports is accepted as proved, and every favorable inference which may be fairly deduced must be indulged.” (Hoffmeier v. Railroad Co., 68 Kan. 831, 832.)
. We must, also, in considering the duty of the deceased to look and listen and in determining the distance at which he saw or ought to have seen the train,, remember that he was bound to look for trains from both directions. The fact that the evidence left the-distance of the train when it could first be seen in some-uncertainty does not militate against the plaintiff’s contention. Contributory negligence is a defense to-be proved by a preponderance of the evidence (Railway Co. v. Lee, 66 Kan. 806), unless it is affirmatively shown by the plaintiff’s testimony.
“But before the case could be taken from the jury on the ground of contributory negligence, it should be established beyond cavil'or dispute, leaving no room for differences of opinion upon the question.” (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 518.)
(See, also, Railroad Co. v. Powers, 58 Kan. 544.)
Without further citation from the opinions of this court in the numerous cases involving personal injuries at railroad-crossings, it is sufficient to say that after a careful examination we are constrained to hold that they support the. claim of the plaintiff that the alleged contributory negligence of the deceased was,. under the evidence, a question of fact for the jury, and not one of law for the court.
A witness familiar with the topography of the region was asked if he had made tests to determine whether the noise of trains coming toward the cut from the southwest would be deadened by the cut and the surroundings to a man on the highway. An objection was sustained, and the plaintiff complains of the ruling. The evidence sought was competent upon proof that the place was the same, and that the test was made under the same dr similar circumstances. The rule is thus stated in Railway Co. v. Townsend, 71 Kan. 524, approving an earlier statement made in Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667:
“If the conditions at the crossing were such that the statutory or ordinary signals were insufficient, then other and more effective warnings should have been given. It was competent to show by witnesses that had mad'e a test at the same place, and under substantially similar circumstances, how far the whistle or bell of trains could be heard, and the effect of the cut and obstructions in deadening the sounds of approaching trains.” (Page 526.)
The same rule is applicable to evidence offered to show that the smoke and steam from engines in the cut could not be seen at the crossing. The following question was asked of a witness familiar with the locality:
“State whether or not you ever made tests to ascertain whether the smoke and steam emitted by a train can be observed by a person standing in the highway over the culvert described, about thirty-six feet, east of the crossing, if the train is running fast, on a clear day, and wind is blowing from the north.”
Atmospheric conditions, the coal used, the time of its application to the fire and other circumstances would affect the weight of such testimony, but would not make it incompetent. The result of tests or experiments made under proper conditions are often admissible as tending to prove a fact in issue. (Gillett, Ind. & Col. Ev. § 66; Innis v. Steamboat Senator, 4 Cal. 5; Burg v. C., R. I. & P. R’y Co., 90 Iowa, 106; Brown v. S. C. & P. Ry. Co., 94 Iowa, 309; The State v. Asbell, 57 Kan. 398.) In offering such testimony care should be observed to show that the tests were made within the rule stated as to place and circumstances, and the court will not allow the evidence unless these requirements are observed.
It is argued that this evidence was incompetent because the company was not bound to send up smoke signals or make a noise in running its train. The evidence, however, was offered to negative an imputation of contributory negligence which might be made if the smoke was visible or the noise of the on-coming train heard by the deceased in time to have saved his life by the exercise of proper care. (Mo. Pao. Rly. Co. v. Moffatt, 56 Kan. 667.)
A witness residing near the crossing, who had worked upon that section of the track, testified that he had had occasion and opportunity to observe the speed 'of passenger-trains; that his attention was drawn to the train in question from where he was sitting at home by hearing the danger signals, and that he saw it and had an opinion as to the rate of speed at which it was running, but he was not allowed to give it. The evidence should have been received for the reasons stated in Railway Co. v. Holloway, 71 Kan. 1.
The plaintiff attempted to prove by witnesses who had used the crossing what had been the effect of the ballasting of the track upon their own teams' and vehicles. This was properly refused. (City of Parsons v. Lindsay, 26 Kan. 426.)
Some other matters are discussed in the briefs but they pertain to questions that are' within the principles already stated, or that were not necessarily before the court in considering a demurrer to the evidence. The judgment is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action of replevin to recover the possession of a punch-and-shear machine. The action was commenced in the district court of Atchisoh county, where a demurrer to the evidence was sustained and judgment rendered in favor of the defendant. From this judgment the-plaintiff prosecuted error to this court. (72 Kan. 432.) The judgment was reversed and the cause remanded for a new trial. Upon a retrial the defendant again recovered, and the plaintiff prosecutes error.
The plaintiff manufactures and sells punch-and-shear machines. The defendant ordered a machine of a special description, which was to be paid for upon delivery. The machine in controversy was sent upon such order. It was received by the defendant, but he refused either to return it or pay the price stipulated.
Upon the trial the plaintiff contended that the defendant had repudiated the purchase and refused to accept the machine, but retained possession thereof as the property of the plaintiff, claiming a lien thereon as security for damages sustained on account of the failure of the plaintiff to comply with the contract of sale. The defendant insisted that he immediately affirmed the transaction as a completed sale -and refused payment until the damages suffered by him had been adjusted.
Whether or not the transaction was such as to transfer the title of the property from the seller to the buyer was the sole question in controversy. If the machine belonged to the plaintiff, it was entitled to the possession thereof; otherwise, it was not. (Town of LeRoy v. McConnell, 8 Kan. 273; Wilson v. Fuller, 9 Kan. 177.) Upon this issue the correspondence between the parties occurring immediately before and after the delivery of the machine to the defendant was introduced in evidence. The correspondence was somewhat ambiguous, and in connection with it the defendant was permitted to testify at length concerning the proper interpretation to be placed upon his letters. A large amount of evidence was also given indicating the extent of damages which were sustained by the defendant on account of the failure of the plaintiff to comply with its contract. This was erroneous. Written instruments speak for themselves. Their interpretation is a question of law for the court. In volume 11 of the American and English Encyclopaedia of Law, at page 495, the rule is stated as follows:
“It is the duty of the court to construe written contracts, and this is true even though the contract is evidenced by voluminous mutual correspondence of the parties. Whether such ‘cprrespondence makes a, contract, and its proper construction, are questions for the court.”
The evidence relating to damages was erroneous because immaterial. There was no issue of this kind in the case. The controversy depended entirely upon whether or not there was a sale. The competent evi dence presented on this subject was confined to the written correspondence between the parties. The question of damages sustained by the defendant was of course closely connected with the transaction claimed to be a sale, and this feature might subsequently become an important matter between the parties; but it was wholly immaterial upon the question as to which of the parties was entitled to the immediate possession of the property in controversy. Evidence, therefore, giving undue prominence to this immaterial question was well calculated to confuse and mislead the jury. Indeed it seems quite probable that the jury, if they had clearly understood the real issue in the case, would have agreed upon a different verdict. Apparently the court did not regard this evidence as material, for it was ignored in the instructions, where no reference whatever was made to the question of damages. With nothing from the court to indicate the legal significance of the evidence, the jury may easily have misconceived its importance in the case, and been misled thereby. We think the rights of the plaintiff were materially prejudiced by the manner in which this case was presented to the jury. In many cases immaterial testimony may be presented to a jury without prejudice, but where it is closely connected with the subject-matter of the controversy, and is of a kind calculated to create an impression upon the minds of jurors that the rights of one of the parties is materially affected thereby, and nothing is said by the court concerning its materiality or application, it will be held to have been prejudicial unless it appears from a consideration of the whole case that it did not have that effect.
For the reasons stated the judgment of the district court is reversed, with direction to grant a new trial and proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Graves, J.:
It is contended by the plaintiffs in error-that when the widow elected to take under the statute- and her -part of the land was set apart to her the will thereby becáme nugatory, because it was impossible thereafter to effectuate the intent of the testator as evidenced by the will. On the other hand, it is insisted by the defendants in error that where a widow refuses to accept the provisions of her husband’s will and takes under the law she thereby defeats the purposes of the testator so far as she is concerned only, and the other provisions still remain in full force and must be administered so as to effectuate the intent of the testator as far as possible. (Allen v. Hannun, 15 Kan. 625; Noecker v. Noecker, 66 Kan. 347; Lilly v. Menke, 126 Mo. 190, 210; 11 A. & E. Encycl. of L. 117.)
The contention of the defendants in error is undoubtedly the law in cases where it can be applied. When, however, its application will result in the defeat of the manifest intention of the testator, and work an injustice to other heirs, it should not be applied. The rule is intended to be operative with reference to the other provisions of the will only when the intent of the testator can be preserved and followed. It seems impossible to do this under the facts of this case. The widow, by electing to take one-half of the land in fee simple instead of a life-interest in the whole tract, completely changed the subject-matter upon which the will was intended to operate, and effectually destroyed the manifest plan and purpose of the testator.
When a clause in a will is adjudged to be invalid the effect of such adjudication upon other clauses depends upon circumstances. Where the several clauses are independent and separate from the void clause, so they can be enforced consistently with the testator’s intent, they will stand and be administered; but if the void clause is so connected with the general scheme of the testator that it can not be consistently separated therefrom the whole will must be held invalid. In volume 30 of the American and English Encyclopedia of Law, at page 665, it is said:
“Where effect can not be given to the whole will, or to an entire provision thereof, consistently with the> rules of law, any part of it which is conformable to such rules will be upheld, if it can be separated from the rest of the will without violating the testator’s general intent; but if such void clause is so connected with the general- scheme of the testator that it can not. be consistently separated and disconnected therefrom* the whole will or provision is’ thereby invalidated.”
The syllabus to the case of Reid v. Voorhees, 216 Ill. 236, as reported in volume 3 of the American and. English Annotated Cases, at page 946, reads:
“Although it is a general rule that where dispositions of a will are independent such dispositions as are-contrary to law may be rejected without affecting-those which are valid, it is necessary to consider the-general scheme and intention of the testator and the-effect which the rejection of an invalid disposition will-have upon that general scheme and upon the shares of the intended objects of his bounty.. Thus, where a. testator who has no nearer heirs gives by one clause in his will property amounting to practically one-half of his estate to the children of a deceased sister, and by other clauses gives certain property- comprising the-remainder of his estate to the children of a deceased brother, he thereby manifests an intention that the two-sets of representatives designated shall share his estate in something like equal proportions, and if the clauses of the will in favor of the children of the deceased brother are void as violating the rule against, perpetuities the clause for the benefit of the children of the. deceased sister will also be rejected, so that those intended by the testator to take may take by the law of descent in two equal pbrtions in substantial accordance with the manifest purpose of the will.”
Elaborate notes are given with each of these citations, where the authorities are collected from many states and seem abundantly to support this proposition. (As bearing further upon this question, see Holdren v. Holdren, 78 Ohio St. 276; Sevier v. Woodson, 205 Mo. 202.)
The decree of the trial court shows quite clearly the difference between the will as executed by the testator and as administered. The widow, instead of receiving a life-estate in all of the land as provided by the will, took one-half in fee simple; Joseph, whom the testator intended to favor by giving him seventy acres of the homestead, received nothing; the legacy of $500 to Enos was ordered to be paid immediately, instead of after the death of the widow, as intended by the testator; the other children were given the real estate remaining after the allotment to the widow in fee simple, at once, instead of after the death of the widow, as the testator intended. The will itself and the surrounding circumstances indicate quite clearly that the testator did not intend to make such disposition of his property. In view of the generous devise made by the testator to his son Joseph, as compared with the other children, it can not be reasonably assumed that he intended the other children' to take; under any contingency, all of the land subj ect to his disposition, leaving Joseph with nothing.
The rule that a testator is supposed to know the law when he executes a will, and will therefore be presumed to have contemplated that it might be held invalid in part and to have intended that in that event the other clauses should be enforced as written, can not be applied here without making a disposition of his property which is clearly contrary to his wish. This rule may doubtless be .justly applied in some cases, but here it would result in defeating the very object for which it was created. In our view it is impossible to carry out the will of the testator by enforcing any part of the will, and therefore it should be set aside as a whole and the property remaining after the allotment to the widow partitioned among the children the same as if no will had been made.
The judgment of the district court is reversed, with direction to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Mason, J.:
In 1883 August Freitag was adjudged insane and committed to the state insane asylum, where he remained until 1905, when he died owning considerable property, leaving no one dependent upon him, and having no known heirs. An administrator was appointed, and in 1907 the state brought action against him to recover the expense of Freitag’s maintenance during all the time he 'was at the asylum and recovered a judgment for the full amount, from which the defendant prosecutes error. ;
The grounds on which a reversal is sought are: (1) That the legislature has no power under the constitution to impose upon the estate of an insane person a liability for his support at a state institution; (2) that if such power exists it-was never exercised prior to 1907, and in the absence of a statute there can be no such liability; and (3) that if such liability ever existed it can not be enforced by the method pursued here, especially in view of the proceedings under which the commitment was made.
The state constitution provides that “institutions for' the benefit of the insane, blind, and deaf and dumb, and such other benevolent institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be prescribed by law.” (Art. 7, § 1.) The defendant insists that this provision affixes to a state hospital for the insane the character of a benevolent institution', and that the exaction of payment from the persons there cared for is inconsistent with the idea of benevolence; and, also, that the obligation placed upon the state to foster and support such an institution implies that it is to be maintained wholly at the expense of the public. We do not. think, however, that the use of the term “benevolent” in describing the class to which the enumerated institutions belong was intended’ to confine them to the rendition of purely gratuitous services. And even if an unqualified requirement that the state should foster and support such institutions could be regarded as forbidding any charge being made to the direct beneficiaries, the addition of the words “subject to such regulations, as may be prescribed by law” precludes such an interpretation here, and plainly indicates that the selection of ways and means was committed to the legislature without restriction. The provision of the constitution quoted was taken from that of Ohio, with only verbal changes. In The State v. Kiesewetter, 37 Ohio St. 546, a statute was construed to authorize the expense of clothing the inmate of a state ifisane asylum to be collected from his estate. An attack upon its validity-was disposed of in these words:
“It is also claimed that this construction of the statute brings it in conflict with section 1, article 7, of the constitution, which declares that ‘institutions for the benefit of the insane, blind, deaf and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the general assembly.’
“The answer to this objection is that the provision of the constitution is-not self-executing, and that the mode in which such institutions are to be fostered and supported is. left to the discretion of the general assembly. That discretion has been exercised in the passage of the statute now under consideration.” (Page 549.)
In Baldwin v. Douglas County, 37 Neb. 283, the court held, practically overruling State v. Douglas County, 18 Neb. 601, that a statute requiring those liable for the support of an insane person to pay the expense'of his. maintenance "at a state insane asylum could not be en forced against one who as a taxpayer had contributed t'o the support of the institution, on the ground of a. conflict with a constitutional provision requiring the state’s revenue to be provided by a tax by valuation, so that every person should pay a tax in proportion to the value of his property. The grounds of the decision were thus indicated in the opinion:
“The annual cost of maintaining the insane hospital is provided for by a general tax, levied with reference to the assessed valuations of the respective counties,* again, . . . the amount due the hospital for the care, board and treatment of the insane must be paid-by the several counties, reference being had tc the' amount expended in that behalf for the insane properly chargeable to each county. Thus it would seem that the taxpayer has twice paid taxes for this one purpose. . . . As is said in the County of Delaware v. McDonald, 46 Iowa, 171, ‘the state reaches out its strong arm and makes the insane its wards, regardless of the care which -they may receive at home or the wishes of those upon whom they are dependent for-their support. . . . The state asserts its right for the reason an insane person may often need more than a mere maintenance. He often needs restraint,, confinement, medical attendance, and peculiar care and treatment. Society is entitled to be protected and relieved against him, and when this is so the state very properly takes charge of him and makes him its ward.’
“We know of no principle of equity or justice that under these circumstances would imply a contract by the husband to answer for the treatment of his wife, furnished by the state in the interest of the general public. It would seem that the public thus benefited should defray all expenses incurred for its protection. . . . ' The husband has already twice paid for. the-maintenance of the insane hospital. This was upon his property. If he -is required to pay for the treatment of' his wife, this payment is just as much a compulsory contribution to the maintenance of the insane hospital as was either of the others. It is in fact another form of taxation for the same purpose. The right to levy taxes can only be justified.as being necessary for the performance of its functions by the state. No tax ean be legally levied for any purposes foreign to those func tions, and, even that far, taxation is tolerated only from the necessities of the case. The collection of unnecessary revenue by the state is not taxation. It is robbery. The plaintiff in error has already paid his full proportion toward the maintenance of the insane hospital. More than that the authorities can not constitutionally exact.” (Pages 288, 289.)
Of this case it is said in a note in 20 L. R. A. 850:
“The above case seems to be substantially a pioneer on the question involved. The reasoning on the subject of repeated taxation of the same person seems to leave a question whether or not this repetition of burdens is not more apparent than real. If the county reimburses the state for certain patients the expense for them first paid by the' state would appear to be in reality only a loan or advancement which did not constitute a real burden on the taxpayers under state taxation. The same would be true as to the reimbursement of the county by payments from relatives. In other words, what a taxpayer paid in one form would seem to relieve him from a corresponding burden in another form, so that in reality he would in the final event have to bear ho larger burden than if he paid it in but one form and at one time.
“As to the power ‘of the state to compel a surrender of insane persons to its keeping and then compel relatives to pay for services thus thrust upon them there is an entirely different question, which, like the preceding one, seems to be quite new in the courts. A parallel case would be a school law which not only made the attendance of children compulsory, and compelled their parents and others to pay taxes for the expense of the schools as in some states at present, but also in addition compelled each parent by special charge to reimburse the state for the share of school expenses apportionable to his own children.”
While the case has not been expressly overruled, its credit4 has been very seriously impaired by a recent utterance of the same court to the effect that the point discussed was not involved, and that the reasoning employed does not appeal to the court as now constituted as-sound. (Kearney County v. Elsam, 81 Neb. 490.) Its doctrine was disapproved in Bon Homme County v. Berndt et al., 15 S. Dak. 494, where it was said:
“It seems just and proper that a single man, having no heirs within the United States depending upon him or‘his estate for support, should be required to reimburse the county for the expenses incurred for his support as an insane patient. The state is under no legal obligation to support insane patients; hence in making provisions for such support the legislature may adopt any system that it may deem wise and proper. The fact that the property of such insane person has contributed its quota to the expense of sustaining such an institution, both on the part of the state and the county, is no more than all other parties having property are required to contribute, though they in fact receive no benefit from the institution. How, then, can it properly be claimed that one who is an inmate of that institution, and has received the benefit of its care and medical treatment, should not be required to reimburse the county for the money expended for such care? The law is uniform, and applies to all parties who are alike situated, and, in our opinion, is unobjectionable in any constitutional view.” (Page 498.)
This side of the question' was thus presented in Estate of Yturburru, 134 Cal. 567:
“The only point urged by the guardian for a reversal of the order is to the effect that the law making the guardian of the estate of an insane person, where the latter’s estate is sufficient, responsible for his maintenance at a state hospital for the insane is unconstitutional. But this contention can not be upheld.
“An insane person is liable for the reasonable value of things furnished to him, necessary for his support. (Civ. Code, § 38.) This was so at common law, where the necessaries were furnished by an individual, and we have never seen a case, and do not think any can be found, holding that this rule comes in conflict with any provision of the constitution of this state or any other state of the Union. We see no reason why the' same rule should not apply to a state hospital for the insane, which does and furnishes for the insane person only those things required by the law of the state. Certainly, those things which are required by law to be done and furnished for an insane person may safely be classed as necessaries.
“The contention of appellant based on the theory that these hospitals are charitable and eleemosynary institutions, and should not be,converted into boardinghouses, finds a ready answer. It is as necessary to have institutions for the restraint of the insane,, whether they be rich or poor, as it is to have prisons and almshouses; and these institutions for the insane are charitable only so far as the legislature makes them so. There is nothing in the constitution inhibiting laws, extending charity to people in need of it; but it is not necessary to extend charity to those who are able to support themselves; indeed, it w'ould be unreasonable to do so.
• “A law in effect requiring that patients at the hospitals for the insane shall be there supported out of their own estates is wise and reasonable, and does not come within any inhibition of the constitution against, class legislation. ... It is not double taxation, nor taxation at all, to require a man to be supported out of his own estate. The money ordered paid herein is for the maintenance of the patient. It goes to the support of the hospital only because of the presence of the patient therein.” (Pages 558, 559.)
The same view was further emphasized in State Com. in Lunacy v. Eldridge, 7 Cal. App. 298. And in Guthrie County v. Conrad, 133 Iowa, 171, the conclusion reached was thus stated:
“The law requires the parent to support his minor child, and, whenever public policy or the welfare of the child demands that it be cared for in a hospital for the unfortunate, compensation therefor may undoubtedly be required, not as a proportionate share in the burdens of government, but because of the special relationship. It is a matter of general knowledge that state hospitals care for and treat a great'many patients who have no property, and for whose support no one else is liable. This necessitates a general tax for the support of such institutions, and the mere fact that the defendant has contributed his proportionate share of the amount required to meet such expense does not necessarily render section 2297 open to a charge that, it imposes a tax.” (Page 175.)
The conclusion reached in the Nebraska case referred to is obviously not due to any peculiarity of the constitution of that state, but to the conception of the court of the reasonableness of the statute involved. The provision there invoked in regard to taxation is not strikingly different from those found elsewhere, and corresponds in a general way with the requirement of the Kansas constitution that the rate of taxation shall be uniform and equal. (Art. 11, § 1.) We see no inequality, in any such sense as to involve a violation of this requirement, in compelling a citizen to contribute his proportionate share as a taxpayer for the support of an institution for the care of the insane, and also to pay for his own maintenance there. What is paid as taxes is for the benefit of the public. What is paid for the support of an individual is for his own benefit. Whether all patients at the state hospital for the insane shall be maintained at the public charge, or whether those possessed of sufficient property shall be required to pay their way, is purely a matter of policy, to be determined by the legislature.
Whether in the absence of a statute the estate of an insane person is chargeable with the expense of his maintenance at a public institution is a question upon which there is some conflict in the authorities. In Board of Commissioners of Montgomery County v. Ristine, Adm’r., 124 Ind. 242, the court decided it in the negative, saying:
“It is a thoroughly settled proposition that where one is received into a charitable institution for support, or treatment the law raises no implied obligation to pay in the absence of a contract. When an individual is received into an institution established solely for benevolent purposes the law refers his reception, and. the relief administered to him, to motives of charity,, unless the charter or by-laws of the society or institution provide that compensation may and shall be1 charged. An institution or society, no more than an individual, can assume to be dispensing charity and at the same time create a pecuniary obligation against one to whose necessities it ministers.” (Page 246.)
Two of the five judges dissented, upon grounds thus stated:
“The decedent was an insane person, and his condition was such that the public good, as well as his own benefit, required that he be confined. He had an ample estate to compensate those who might care for him, but no private person could be found prepared and willing to assume the burden and responsibility.
“The appellant was so situated that it could take the ■decedent to its poor asylum and give him proper care and attention without in any way abridging the rights or privileges of others supported at said institution. Under such circumstances we can imagine no satisfactory reason why the appellant should not be reimbursed.” (Page 248.)
Such liability is denied in these cases: Montgomery Co. v. Gupton, 139 Mo. 303; County of Oneida v. Bartholomew, 89 N. Y. Supr. Ct., 80, affirmed 151 N. Y. 655; State v. Colligan, 128 Iowa, 536.
These cases have a contrary tendency: McNairy County v. McCoin, 101 Tenn. 74; Dandurand v. County of Kankakee, 96 Ill. App. 464; Palmer v. Hospital, 10 Kan. App. 98.
Most of the cases cited in notes 10, 11 and 12 to paragraph 2, in volume 22 of the Cyclopedia of Law and Procedure, at page 1176, are controlled by statute. Where the expense is sought to be charged, not upon the estate of the insane person, but upon those ordinarily under an obligation to support him, the question may be affected by other considerations,' as is indicated in Richardson v. Stuesser, 125 Wis. 66.
But we are not required to decide what the rule might otherwise be, for we conclude that the liability in the present instance is determined by the statute. The earliest enactment bearing upon the matter was chapter 92 of the Laws of 1859 (Gen. Stat. 1901, §§ 3941-3986), which remained in force until repealed by section 1 of chapter 299 of the Laws of 1905. This act provided (Gen. Stat. 1901, §§ 3983-3986) that the probate court should make an order for the “restraint, support and safe-keeping” of any person who should be “so far disordered in his mind as to endanger his own person or the person or property of others,” the expense to be paid by the guardian out of his estate, or by the person under obligation to support him, or in default of this by the county, in which case a right of reimbursement should accrue against any one bound for his maintenance. These provisions, although not directly determinative of the question here involved, are important as showing the policy of the state from the time of its organization to have been to hold individuals liable for the cost of caring for insane persons who are restrained primarily for the common good and the expense of whose maintenance has been borne in the first instance by the public. After a state asylum for the insane had been established for some years a law was passed in relation to it which was in force when the inquiry into Freitag’s mental condition was instituted. (Laws 1870, ch. 20; Gen. Stat. 1889, §§ 3723-3733.) In section 3 of this act (Gen. Stat. 1889, § 3725) a form was prescribed for a warrant directing the steward to receive a patient and maintain him either at the expense of the county, or of his “guardian or person to bear the expense,” as the facts might require. Section 4 read:
“If, in determining the matter of maintenance, the court shall find that a person adjudged to be insane has sufficient means for his maintenance and that of his family, if he have one, without impoverishment, he shall order his guardian or other legal representative to pay for his maintenance out of the proceeds of the estate of such insane person. But if the court shall find that he has no estate, or not sufficient for his maintenance and that of his family without impoverishment, or if he be a minor, and his parents are not able to maintain him away from home, the court shall deliver to the clerk of the board of county commissioners of the proper county a certificate in form as follows: Certificate. In the matter of the insanity of A. B., of--county. To the board of county commissioners of-county: A. B., a citizen of this county, was, after due examination had in this court on the-day of-, 187 — ■, adjudged to be insane, and not having sufficient means known to this court for his maintenance, was, by an order of this court, placed in custody of--(name of person or officer), for maintenance at the expense of the county. C. D., Probate judge. (Seal.)
“When an itemized and verified account shall be presented to the board of county commissioners an order shall be issued for its payment out of the county treasury if the amount is found reasonable.”
Provision was made in the two succeeding sections for the admission of patients at private expense upon a physician’s certificate.
In 1875 it was enacted “that the expense of keeping and maintaining the insane of the state in the insane asylum shall be paid out of the state treasury; provided, this act shall not affect any existing law which requires any person or persons to pay for the maintenance of such insane person.” (Laws 1875, ch. 110, § 1.)
A new act for the government of the state insane asylum was passed in 1879, one section of which reads:
“Whenever necessary, the superintendent shall cause clothing to be issued to patients in the asylum. All issues to indigent persons shall be charged to the state; all other issues shall be charged to the parent or guardian of the person to whom the issue shall be made, and the account therefor shall be forwarded with the account for board.” (Laws 1879, ch. 113, § 5.)
These provisions manifested, a purpose on the part of the legislature to continue in the case of patients cared for in the state asylum the same policy with regard to the expense of their maintenance that had been in force for years in the case of insane persons cared for, not necessarily at a public institution, but under the control of public officers — that is, the policy of requiring the property of an insane person, so far as not needed for the support of those dependent upon him, to be applied to the reimbursement of the public for its expenditure made on his account. The evident purpose of the statute of 1875 was to transfer from .the county to the state the expense of caring for indigent patients, without affecting the liability of those having sufficient means for their own support.
In the codification of the laws in relation to the state charitable institutions in 1901 a new form of warrant for the commitment of a person to the state hospital for the insane was prescribed, in which the superintendent is directed to receive and maintain such person “at the expense of the state of Kansas.” (Laws 1901, ch. 353, § 60.) It can not be supposed, however, that if the legislature had intended to change the law regarding individual liability for the expense of caring for persons committed to the state hospital for the insane it would have indicated so radical a departure from its previous policy by merely changing the phraseology of a blank form of commitment. The words quoted must be interpreted as meaning that the subject of the commitment is to be maintained at the expense of the state (as distinguished from the county), subject to its right of reimbursement where any property is available for the purpose.
The record of the hearing which resulted in Freitag’s being adjudged insane recites a finding by the probate court that he was without sufficient means for his' support and an order that his maintenance should be at the expense of the state, and.the warrant issued in the case directed the steward of the asylum so to maintain him. The administrator contends that this shows an adjudication against the right of the state asserted in this proceeding. We think, however, that the purpose of the judicial inquiry into the financial condition of the insane person is rather to advise -the public officers of his situation in that regard than to determine the right of the state to reimbursement for the expense incurred in his behalf. At all events' nothing is decided by it except his circumstances for the time being. Although he may be destitute when committed, any after-acquired property can be applied to his support; and although he may then have abundant means, their subsequent loss •will cast the cost of His maintenance upon the state. Whether a claim exists against his estate for his care at the hospital at any given time depends upon whether at that time he had sufficient property for the purpose. This is a question of fact upon which the state is not concluded by the finding made at the time of his commitment.
In a revision of the act concerning insane persons it has been provided that “in all cases of insane persons admitted to the state hospitals, either with or without bond, the state may recover the per capita cost of the maintenance, care and treatment of the inmates of such state hospital and clothing and funeral expenses from the estate of such person.” (Laws 1907, ch. 247, § 32.) In view of the conclusions already stated it is not necessary to decide whether this provision would operate retrospectively so as to confer upon the state any right of action that did not already exist against Freitag’s administrator.
The judgment is affirmed. | [
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Per Curiam:
The principles upon which the district court decided this case are so well settled and so easy of application that, a formal opinion restating and further elucidating them is unnecessary. The defendant superseded his first answer by an entirely new one, in which he did nothing but defend. He asked for no affirmative relief whatever, but confined himself strictly to resisting judgment against him. The plaintiff’s tax title was based upon defective proceedings. He could not quiet that title; against the defendant without the aid of the statute of limitations, and he could not use the statute of limitations affirmatively to make out his cause of action. He did not seek to compel the defendant to redeem from the mortgage pleaded or be barred from redeeming, and until he does this, or the defendant moves aggressively, there can be occasion for adjudicating the mortgage lien or tax lien or claim for improvements. The plaintiff is left in possession, just as he desired to be, and can not be ousted until his rights in respect to the several matters mentioned are protected.
The judgment of the district court is affirmed. | [
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Per Curiam:
The controversy here is whether the. Prairie Oil and Gas Company is liable to James Carter and Homer Green for making certain grades and firewalls on the Copan tank-farm in Indian Territory, and. this depends upon whether J. M. Vansky, who employed them, was acting for the company or for him-. self as an independent contractor. They alleged that, the agreement was that they should receive a certain price per cubic yard for grading and excavating dirt; and rock, with a proviso that if these rates did not. yield reasonable wages a price per yard should be paid which would net them reasonable compensation for the work. The capacity in which Vansky entered into the contract with plaintiffs was put in issue, and in attempting to maintain their contention that they were: working for the company and not for Vansky the plaintiffs produced, in addition to their own testimony, that, of the superintendent and the engineer of the company, as well as the testimony of Vansky, with whom the negotiations were had. At the conclusion of their testimony the court sustained a demurrer to the evidence,, and the only question now is, Was there anything substantial to submit to the jury? Of course, if there was. any evidence which might entitle the plaintiffs to recover the demurrer should have been overruled. It. appears, however, that none of the testimony submitted would have warranted a finding of the jury against the defendant. Vansky, the plaintiffs’ witness,, testified that he was an independent contractor and' had sublet the work to the plaintiffs, and, further, that he did not employ them for the company. The superintendent and the engineer of the company, both called as witnesses for the plaintiffs, testified that Vansky did the work under a contract with the company and' did not act as the agent of the company in the negotiations with the plaintiffs. The contract between the company and Vansky under which the work was dones was put in evidence, and the plaintiffs testified that they knew of its existence and the price that Vansky was receiving from the company for the work they were doing. It is true that there was testimony that Vansky had exhibited what was designated as a salary check, and there were some fragmentary statements which the plaintiffs claim indicated agency, but there is nothing substantial in them nor any testimony substantially inconsistent with that mentioned showing that the plaintiffs were subcontractors under Vansky.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In 1907 a law was enacted (Laws 1907,. ch. 114) providing a scheme of municipal government,, commonly known as the “commission plan,” to be op-' erative in such cities of the first class as should adopt, it by a popular vote at a special election called for that, purpose. In Wichita the question whether the city should avail itself of the act was submitted to the people and received a majority of the votes cast, but notice, of the election was not given for the full time required by the statute. A curative act was passed • (Laws 1909,, ch. 76) undertaking to validate the election notwithstanding this defect. To determine by what method the-then approaching city election should be held a proceeding in mandamus was brought against the city clerk to-require him to file certain certificates of nomination for municipal offices, which had been prepared on the-theory -that no change had been effected in the former-law on the subject. The application for the writ was denied within a few days after the submission of the question, an early decision being necessary, but owing-to the shortness of the time available for its preparation no opinion was then filed. The plaintiffs’ principal contentions were:
(1) That the act permitting such cities as by popular vote elect to do so to adopt a form of government, differing from that in force in other cities of the same-class is void because violative of the several provisions of the state constitution (a) vesting the legislative-power in the house of representatives and senate, (b) forbidding the passage of special acts conferring corporate power and requiring provision to be made by general law for the organization of cities, and (c) requiring all laws of a general nature to have a uniform ■ operation throughout the state.
(2) That even if the act is regarded as valid it is not, operative in Wichita, the defective notice having ren dered the election ineffective, and the defect not having been cured by the subsequent legislation because (a) the curative act does not purport to accomplish that purpose, and (b) if it is so construed it is void as an ■attempt to confer corporate power otherwise than by a .general law.
The claim that in leaving the various cities of the first class free to adopt or reject the provisions of the act of 1907 the legislature attempted to delegate its powers to the people of those municipalities requires little discussion. Even in jurisdictions where it is held that the taking effect of a statute can not be made to depend upon the result of a popular vote the principle is recognized that “if an act in question is complete in itself, and requires nothing further to give it validity as a legislative act, it is not vulnerable to attack on' constitutional grounds simply because the limits of its operation are made to depend upon a vote .of .the people.” (Eckerson v. City of Des Moines, 137 Iowa, 452, 478.) If this court has not heretofore expressly approved this doctrine, it has approached it too nearly to leave any substantial ground for controversy. (See The State v. Butler County, 77 Kan. 527, and cases there cited.) And so many other courts have affirmed it that the question can not fairly be regarded as an open one. (See cases collected in 8 Cyc. 840, 4 Dec. Dig. pp. 1616-1618 and subsequent volume of Am. Dig. Ann. under the title of “Constitutional Law,” and note in 114 Am. St. Rep. 317.) The statute is not vulnerable to attack on this ground.
The objection that the statute is in effect special legislation, inasmuch as it enables certain cities to be governed under a plan different from that in úse in others of the same class, is more serious. The constitution provides that “the legislature shall pass no special act conferring corporate powers” (art. 12, § 1), and that “provision shall be made by general law for the organization of cities” (art. 12, §5). One of the principal objects of these provisions undoubtedly is to promote uniformity in the conduct of municipal affairs — to. avoid the evils attendant upon allowing each one of a large number of cities to operate under a separate charter — to require all cities similarly circumstanced to be governed» in the same manner, permitting variation only when really necessary, and then by means of classification based on real difference of conditions. Obviously, if the legislature may submit various plans of local government, leaving each community free to choose which it will adopt, groups are likely to be formed of similarly governed cities having nothing necessarily in common except a preference for the same system, the effect being a classification based only on the desire of the inhabitants; and in an extreme case so wide a choice may be offered that the affairs of every considerable town may be conducted in a way peculiar to itself.
A review of authorities upon the question involved is presented in Binney’s Special Legislation, from which these excerpts are taken:
“Whether proper local self-government requires or makes desirable a choice between different systems of police regulation, or local government or administration, so that a law providing for such a choice must, from the nature of the case, be regarded as general, is a very different question. In some cases, the exercise of such an option wnrks the partial repeal of a general law already in force, and such partial repeal, whether expressly forbidden in the state constitution or not, must be regarded as a form of local legislation. ... In Florida, where the constitution requires that laws regulating municipal government shall be not only general but uniform, it is held that no diversity of government can be allowed, even if the same option be granted to every member of the class to which the law applies. A system once established for a class, its members can not be allowed to decide by ordinance, each one for itself, whether or not it shall be governed by another system. . . . The constitution of Pennsylvania does not in terms require uniformity of municipal government, but the prohibition of local and special legislation is re garded as equivalent to a requirement of uniformity, diversity being one of the evils sought to be cured by this prohibition. It is held in that state that if local or special results either are or may be produced by a law, such law is not general, and hence 'that any change in the general municipal corporation law can not be limited to affect only those cities that may adopt the new act. ... On the same principle a law has been held local in Illinois, providing for the collection of city taxes by a system materially different from that pre-’ viously in force, but authorizing any city council to collect the taxes, either under the old law or the new, as it might at any time prefer. . . . In New Jersey, however, it has been held that the restrictions upon special and local legislation do not necessitate uniform laws as to matters of police and local government, as such laws would interfere with the proper regulation ■of local'affairs, and that as long as all cities or other communities of the same class have the same option the law which provides for it must be regarded as general. The same view is taken in Missouri as to police regulations, and in Illinois as to elections. ... In Illinois a law regulating elections in such cities, villages and incorporated towns as should adopt it was held to be general because of the possibility that all the cities, towns and villages in the state might accept its provisions, and, in fact, to stand on the same ground as a municipal corporation law obligatory upon cities, towns and villages thereafter incorporated, but only affecting those already incorporated under special charters if they should accept it. . . . The court undertook to distinguish this case from that of the tax-collection law already referred to, . . . but . . . the two cases are so irreconcilable as to leave some doubt as to what the law of Illinois is as to this point. . . . The two views as to the effect of local option laws, shown in the preceding pages, are irreconcilable, but one can not expect different constitutions to be interpreted in exactly the same way in all matters, even if the language is substantially identical. What a constitution means is partly a question of fact, and it should not be hastily assumed that a court of last resort has been mistaken as to the facts which brought about the adoption of any part of the constitution under which it acts. The several courts may all be right as to the facts before them in each case, however at variance their ultimate conclusions as to the law.” (Pages 99-102, 105, 106.)
In State ex rel. v. Copeland, 66 Minn. 315, it was held that a law granting powers to all cities of a certain class, to take effect in each city only upon its adoption there, contravened the provisions of the state constitution prohibiting special legislation as to cities. In Adams v. The City of Beloit and others, 105 Wis. 363, and Eckerson v. City of Des Moines, 137 Iowa, 452, the contrary view was taken. In the Wisconsin case the grounds of the opposing theories are fully developed. While the weight of authority in other jurisdictions .seems to uphold laws of the character of that under discussion, a more important consideration is that this court is already practically committed to that side of the question. In The State, ex rel., v. Hunter, 38 Kan. 578, the validity of the metropolitan police act was sustained, although it provided a method of police government to be enforced only in those cities where it should be invoked by local action. In the present case, as in that one, the law involved confers the same power upon every city of the class to which it relates. The power exists in each none the less because it may never be called into operation. We conclude that it is a general law within the meaning of the constitutional limitation under discussion, although in practice it may result in similar municipalities being governed by dissimilar methods. It is to be observed that the constitution does not in terms or by necessary implication require absolute uniformity in the government of cities of the same class, although the provisions under consideration were obviously designed to discourage diversity in that regard.
The objection that the statute violates the requirement of the constitution (art. 2, § 17) that all laws of a general nature shall have a uniform operation throughout the state is so similar to that just considered as to require no separate discussion. There is something of the same conflict of. authority on the subject, but the question has not been an open one in this state since in Noffzigger v. McAllister, 12 Kan. 315, it was said of a herd law the operation of which in each township was made to depend upon the wishes of the inhabitants:
“Neither is this act in contravention of section 17 of article 2 of the constitution. It was enacted for the whole state, and for every part thereof. Any township in the state may come within the provisions of article 1 of the act, or any township may remain out. In this respect the act resembles many other acts which depend for their practical operation upon the discretion of the county board, or the people, or the happening of certain contingencies. There is always a wide discretion allowed counties, and county boards, in the building of court-houses, jails, bridges, and other public improvements, and yet no one has ever supposed that the laws authorizing this discretion were invalid because their operation might not be practically and uniformly the same in every county in the state. Whenever a law of a general nature is passed by the legislature for the whole state, and is not applied by the legislature to any particular locality thereof, and has no words prohibiting its operation in any particular locality, it is a law having a uniform operation throughout the state, within the meaning of said constitutional provision, although it may not practically have operation in every part of the state.” (Page 321.)
It may be conceded that the failure to give the statutory notice of the election rendered it a nullity except as thp defect may have been remedied by the’ act of 1909. The plaintiffs insist that no force can be given to that act because as it stands it is meaningless and affords no clue by which it may be rendered intelligible. The substantial part of it reads:
“All cities of the first class of the state of Kansas that have prior to the passage of this act adopted by majority vote of the electors voting at an election called for the purpose of adopting a commission form of government, as provided by chapter 114 of the Session Laws of 1907, and all acts amendatory thereto, shall be from and after the passage of this act ratified,' con firmed and legalized, regardless of any and all irregularities that may have occurred in the calling, advertising, publishing and conducting of said election.” (Laws 1909, ch. 76, § 1.)
True, the act by its very terms purports only to legalize certain cities, but there is no difficulty in ascertaining what is intended. The legislature obviously designed to legalize some action that had been taken irregularly. In saying that such legalization should be accomplished “regardless of any and all irregularities that may have occurred in the calling, advertising, publishing and conducting of said election” it closed the door on any doubt that might otherwise exist that the thing meant to be validated was the irregular election. Similar liberality of interpolation has been indulged in several Kansas cases. (Landrum v. Flannigan, 60 Kan. 436; Brook v. Blue Mound, 61 Kan. 184; The State v. Deuel, 63 Kan. 811.) An illustration of a more radical defect being cured by interpretation is found in Commo-nwealth v. Herald Pub. Co., 128 Ky. 424, where a statute was upheld which so far as this matter is concerned may be said to have- contained merely these words: “Any person who sells any obscene newspaper.” The court said':
“Section 1352 is said to be meaningless and uncertain, because there is contained in it no prohibition against the things mentioned in the section, nor is it declared that it shall be unlawful to do them. In the respects mentioned, the section is technically defective, but there can be no reasonable doubt that it was the intention of the legislature to make it unlawful to commit the acts mentioned and to prohibit any person or corporation from doing the forbidden things. The intent of the section being clear, the purpose of its enactment being plain, it will not be allowed to fail because of the omission of the words ‘it shall be unlawful for,’ which should have been placed at the beginning of the section, or the words ‘shall be guilty of an offense,’ which should have been added to the section.” (Page 432.)
The final contention that requires consideration is that the curative act itself is invalid because, having no possible application now or hereafter to any cities excepting those in which an irregular election had already been held when it was passed, it is necessarily special. A statute granting corporate power that can apply only to a fixed number of corporations, and can not possibly at any time apply to any other, is ordinarily regarded as special, and therefore unconstitutional. (City of Topeka v. Gillett, 32 Kan. 431.) But a curative act is necessarily of that character. It- operates only on conditions already existing. In a sense it can have no prospective operation. Therefore whenever it relates to a subject concerning which special legislation is forbidden it is void if subjected to the ordinary test, as some courts have held that it must be. Other courts, however, recognize an exception arising from the nature of the case. Thus, in State ex rel. v. Brown, 97 Minn. 402, 5 L. R. A., n. s., 327, it was said:
“When the statute is remedial or curative the classification is legal, if it includes within the class all the subjects which are affected by the condition which it sought to remedy, or the evils it is sought to cure. Necessarily this class forms an exception to the general rule that classification can not be based upon existing conditions alone. The very object of the statute is to remedy a present condition, and if possible avoid its repetition.” (Page 415.)
The L. R. A. note to that case is so full as to make a further citation unnecessary. In this state the question was settled in Mason v. Spencer, County Clerk, 35 Kan. 512, the syllabus reading:
“Where an irregularity rendering an act of a city or subordinate agency illegal or void is simply a failure to comply with some provision of the statutes, the compliance with which the legislature might in advance have dispensed with, the legislature can, by a general curative statute subsequently passed, dispense with such compliance and thereby render the act of the city or subordinate agency legal and valid.”
Upon these grounds the statutes of 1907 and 1909 were held valid and the petition of the plaintiffs for a peremptory writ of mandamus requiring the city officers to proceed under the former law was denied.
Burch, J., dissents from' the first paragraph of the syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
MASON, J.:
A. Chilberg was convicted of a misdemeanor, and appeals. The state moves to dismiss the proceeding because he failed to file his transcript in this court within thirty days after he gave his notice of appeal. He maintains that the present statute allows him a longer time for that purpose.
A part of section 284 of the criminal code, which has never in terms been repealed or amended, reads: “The transcript must be filed within thirty days after the appeal is taken.” Under this it is held that although a defendant may serve successive notices of appeal, the one on which he finally relies (which may be filed at any time within two years after the judgment), in order to be effective, must be followed within thirty- days by the filing of a transcript of the record in this court. (The State v. McEwen, 12 Kan. 37; The State v. Caton, 71 Kan. 855.) In 1889, in amending section 287 of the criminal code, relating to a stay of execution, the legislature inserted therein these words :
“The appellant availing himself of. the benefits of this act shall take his appeal within thirty (30) days after the judgment is rendered, and shall file the transcript with the clerk of the supreme court, and shall make his application to the supreme court, or justice thereof, within ninety (90) days after the appeal is taken.” (Laws 1889, ch. 127, § 2.)
It was held that the section as so amended related solely to the matter of obtaining a stay of execution, and that it did not extend the time within which the transcript could be filed. (The State v. Simmons, 64 Kan. 795.) In 1903 the section was further amended, and this proviso was substituted for that above quoted:
“Provided further, that the appellant availing him self of the benefit of this act shall take his bill [appeal] and file the transcript with the clerk of the supreme court within two years from the rendition of the judgment or such sentence.” (Laws 1903, ch. 389, § 1.)
And this provision was inserted: •
“In misdemeanor cases, the execution óf the judgment shall be stayed by the order of the court trying the case or the judge thereof, upon the appellant giving bond in such sum as said court or judge shall prescribe, said bond to be approved by the clerk of said court, and the stay shall be granted on serving the usual notice of appeal, and the transcript may be filed in the supreme court at any time within ninety days after the rendition of the judgment, and not otherwise. If the transcript is filed within the prescribed time, then the stay shall continue to be in force until the case is finally disposed of. in the supreme court, but not otherwise.” (Laws 1903, ch. 389, § 1.)
In Youngberg v. Smart, 70 Kan. 299, it was said of the section in its present form that it was not intended to change the time for taking an appeal as limited by section 284. And upon that theory a number of motions similar to that now under consideration have since been sustained with a mere reference to that case. The court is now asked to reexamine the question, on the ground that the expression referred to did not amount to a decision and that no formal opinion has been announced on the subject. To end any doubt that may be thought to remain in the matter we now definitely decide, in line with the previous intimation, that nothing in the present section relating to the stay of execution alters the rule that in order to obtain a review of the judgment in a criminal case the appellant must file in this court a transcript of the record within thirty days after giving his notice of appeal. The force of the two' extracts quoted from the section in its present form is that in order to procure a stay the defendant, besides, giving a bond, must in misdemeanor cases file his transcript not only within thirty days, after serving his; notice of appeal but also within ninety days after the judgment is rendered, and must in all cases within two years after the judgment not only take his appeal but file his transcript as well. Nowhere in the section is anything said regarding the requirement as to the interval between the giving of notice of the appeal and the filing of the transcript, which therefore remains unchanged.
The case is dismissed. | [
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Per Curiam:
The defendant was convicted of the violation of an injunction restraining him from maintaining a nuisan.ce in a certain place in the city of Atchison. He appeals from the judgment. No question is presented which has not heretofore been determined by the decisions of this court. The evidence regarding the records of the collector of internal revenue was properly-admitted. (The State v. Schaeffer, 74 Kan. 390; The State v. Fishback, 79 Kan. 679.) There was substantial evidence to sustain the finding, and that determines the inquiry here.
The judgment is affirmed. | [
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Per Curiam:
The principal assignment of error in each of these cases is that the information is not sufficient to inform the accused of the specific offense of which he is charged.
The offense charged is a minor misdemeanor (disturbing the peace), and in each case is charged in the language of the statute and ordinance. This has been uniformly held sufficient in this court, at least since the decision of the case of The State v. White, 14 Kan. 538.
We have examined the instructions in each case and find nothing in either to justify a reversal of the judgment.
The cases were submitted together and the judgment in each is. affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In a suit to enforce a tax lien under chapter 392 of the Laws of 1901 a judgment was rendered in favor of the commissioners of Morton county declaring that there was $148.72 of delinquent taxes due to the county upon a tract’ of land, and foreclosing a lien thereon, and also adjudging that Ira M. Cobe was the owner of the unredeemed land. In pursuance of the judgment the land was sold and the sale confirmed. Afterward James M. Grimes and Ben A. Wood presented their application to have the judgment opened up and the excess of the proceeds of the sale paid to them. In the application it was represented that Grimes, who claimed an interest in the land, had obtained leave from the court to file an answer in the foreclosure proceeding, and that an answer was pre pared, on which was indorsed leave to file * it out of time. It was also alleged that Wood had acquired the interest of Grimes, and that he had been substituted as defendant in the place of Grimes. There was a further allegation that by oversight and inadvertence they had failed to make any defense at the trial subsequently had. The court refused to open up the judgment, and of this ruling complaint is made.
The grounds assigned are not such as to justify the vacating or opening up of the judgment. There is a contention that the judgment was absolutely void, but there can be no doubt that there was jurisdiction of the subject-matter, and the plaintiff in error can not well say that there was no personal jurisdiction, as he and his assignor personally appeared in court many months before judgment was rendered. It is true that these parties were not served personally or by publication at the commencement of the proceeding, but their voluntary general appearance was equivalent to personal service and gave the court jurisdiction over them for all the purposes of the litigation.
However, the right to have the judgment opened appears to be claimed under section 77 of the civil code. One who insists on the.opening of a judgment under that section must.bring himself clearly and unequivocally within its terms. (Satterlee v. Grubb, 88 Kan. 234.) An indispensable prerequisite to the exercise of the right is that the party shall make it appear to the satisfaction of the court that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. By his own showing the plaintiff in error has made it clear that he and his assignor, Grimes, had actual notice of the pendency of the action. They have shown that in the early part of the year 1905 Grimes was granted permission to file an answer in the case within fifteen days, and when that time was about to expire another leave was applied for and granted. In September, 1905, Wood, who had ac quired the interest of Grimes, was on application substituted for Grimes, and the judgment was not rendered, until April, 1906. The plaintiff in error states that he-has a meritorious defense but that by inadvertence and oversight he failed to present it at the trial. The mere-oversight or inadvertence of a party is not ground for-opening up a judgment rendered in an action of which he has had actual notice. The right invoked is for the-benefit of those against whom a judgment has been rendered who had no actual notice of the action in time to appear and defend, and is not available to one who-not only had actual notice but was in fact in court and had an opportunity to defend. No such right is granted on account of the inadvertence or neglect of a party or-his attorney.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In 1906 an action was brought in this court in the name of the state on the relation of the attorney-general against the city of Pittsburg to put an end to the unlawful practice alleged to exist there of in effect licensing the sale of intoxicating liquors, under the guise of collecting at regular intervals fines for the infraction of the prohibitory law. A commissioner' was appointed, who filed á report May 13, 1907, sustaining the allegations of the petition. A final judgment was rendered July 5, 1907, ousting the city from the exercise of the unwarranted power of deriving a revenue from the liquor traffic, and forbidding all municipal officers and agents from engaging in the prac tice referred to. (The State v. Pittsburg, 77 Kan. 848.) In November, 1907, the attorney-general filed affidavits stating that certain officers of the city and others were engaged in conduct the purpose and effect of which was to nullify or evade the force of such judgment. Citations were issued against and served upon the persons named, and formal accusations were filed charging them with contempt of court. They answered denying the charges, and a commissioner was appointed to take evidence and make findings upon the issues so joined. The report of the commissioner shows these facts, among others:
The city council appropriated no money for the payment of policemen or firemen for the months of June, July, August, September, October and November, 1907. By the contributions of a number of saloon-keepers during these months a fund was raised which was placed in the control of one Frank Linski, a resident of Pittsburg who was engaged in the wholesale liquor business in Missouri. The contributors referred to themselves as the members of a lodge, and to Linski as its treasurer, but such organization as existed had no other purpose than the collection and disbursement of this fund. Linski paid the salary of the police judge and of the policemen and firemen out of this fund for several months, taking from them in some instances purported assignments of their claims against the city; at other times taking mere receipts.
Even this bare outline sufficiently establishes what the detailed evidence confirms — that all the parties to the transactions referred to were engaged in an attempt to evade the court’s order and to render its judgment ineffectual. That they are liable to punishment for contempt is too clear to require extended discussion.
“Where the mandate of the court has been violated in spirit as well as in letter, the court will not permit the general terms of the writ to be controlled or restricted by reference to the particular nature of the grievance. Nor will the court permit defendants to evade respon sibility for violating an injunction by doing through subterfuge that which, while not iri terms a violation,, yet produces the same effect by accomplishing substantially that which they were enjoined from doing.” (2 High, Injunc., 3d ed., § 1433.)
True, the contemnors were not parties to the original action, but this is not necessary. (22 Cyc. 1012; The State v. Cutler, 13 Kan. 131.) The order against the city necessarily operated upon individuals. It ran in terms against any officers or agents. Unofficial persons who acted in behalf of the city were none the less its agents in this respect because they were not .formally employed for this purpose. (Hamilton v. Diamond Drill & Machine Co., 69 C. C. A. 532, 137 Fed. 417.) No official notice of the order was necessary. If actual notice was not inferable from the publicity of the proceedings, knowledge of the rendition of the judgment follows from the efforts made to evade it, which had no other possible purpose. Whether or not all whu participated in these efforts are to be regarded as having violated an injunction directed against them, they are guilty of contempt of court in virtue of their having attempted by artifice and evasion to render the judgment nugatory, an act as plainly contemptuous toward the court as an interference with its process would be. (9 Cyc. 20; United States v. Shipp, 203 U. S. 563.)
“It is entirely consonant with reason, and necessary to maintain the dignity, usefulness and respect of a court, that any person, whether a party to a suit or not, having knowledge that a court of competent jurisdiction has ordered certain persons to do or to abstain from doing certain acts, can not intentionally interfere to thwart the purposes of the court in making such order. Such an act, independent of its effect upon the rights of the suitors in the case, is a,,flagrant disrespect, to the court which issues it, and an unwarrantable interference with and obstruction to the orderly and effective administration of justice, and as such is and ought to be treated as a contempt of the court which issued the order.” (In re Reese, 47 C. C. A. 87, 90.)
This proposition was thus applied in Garrigan v. United States, 89 C. C. A. 494:
“As it is neither charged nor proven that the.plaintiff in error was one of the parties enjoined, he is not. chargeable for breach or violation of the injunction, in the well-recognized sense of those terms applicable to parties. He was bound, alike with other members of' the public, to observe its restrictions when known, to the extent that he must not aid or abet its violation by-others, nor set the known command of the court at defiance, by interference with or obstruction of the administration of justice; and the power of the court to^ proceed against one so offending and punish for contemptuous conduct is inherent and indisputable.”' (Page 498.)
It remains to consider the penalty to be assessed, against each of the persons found guilty of contempt. Of those now before the court who were engaged in carrying out the device to evade its mandate Frank Linski bore the chief responsibility, and it is natural and proper that he should bear the largest measure of' punishment. Of him the commissioner pertinently-says:
“By reason of the fact that the defendant Frank Linski was an honest man and could be trusted with the money, he had the unsolicited honor of being chosen as custodian and disbursing agent of the funds collected under the aforesaid arrangement; and it may be' added that he was very reluctant to perform the service, and only consented when assured by the very first men of the city that everything had been fixed up and there would be no trouble, and this last assurance, while it should be considered in palliation of Linski’s offense, at the same time seems to bring home to him the matter of notice and knowledge of the judgment and order of' the court, as that was the very thing, and the only thing, that was in the minds of all who talked about having been in Topeka or were going to Topeka to fix things. There was nothing else to fix; people who told Linski that they had fixed things, or would fix things, at Topeka, knew that there was nothing that they or any one else could fix, and all that kind of talk by men who did know better to men who did not know better was all a part of the general scheme to keep the money coming in in utter violation of the judgment and order of the court.” •
A fine of $1000 will be imposed upon him. Next to him the other contributors to the fund are deemed the most serious offenders, and a fine of $500 will be assessed against each of them. They are: Adam Kazmierski, Peter Barani, - W.. S. Stroud, John Simion, Joseph Valentine, John Welch, Pete Comiskey, Simon Wirnsberger, A. N. Stroud, John Tangye, B. W. Brown, and W. H. Conlon. The police judge, J. E. Holden, was hot shown to have taken part in the objectional transaction further than by receiving his own salary from the saloon-keepers. His fine will be fixed at $100. The policemen, being specially charged with the enforcement of the law, should properly incur a greater penalty for its violation than the firemen. Their fine will be made $50 each, and that of the firemen $25 each. The policemen concerned are: S. M. Lawler, E. T. Carter, E. M. King, J. E. Walker, J. J. Leemaster, Charles M. Fisher, and Charles Phillips. The firemen are: T. W. Howe, J. T. Atkinson, Marion Robertson, George White, William Doss, F. O. Robinson, Peter Cordray, and Walter Stanfill. Payment of these fines will be enforced by commitment to the county jail of Shawnee county. | [
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The opinion of the court was delivered by
Smith, J.:
In his brief the plaintiff practically admits the correctness of the ruling as to the first count of the petition, and counsel for both parties concede that the three-year statute of limitations is applicable to the second cause of action.
It may be said, by way of premise to the consideration of the authorities cited, that the receiver of an insolvent corporation acts in a fiduciary relation toward both the creditors and stockholders of the insolvent concern. The creditors justly expect him to endeavor to make the assets discharge their claims, and, if need be, and there be an obligation on the stockholders to pay any deficiency, that he will exercise diligence in collecting the amount of such liability, not exceeding the deficiency. The stockholders also look to him to realize as much as possible from the assets to pay the indebtedness, and, if a surplus can be accumulated, to enlarge their dividends. If it becomes necessary in order to pay debts to make an assessment upon the stockholders, then each stockholder looks to the receiver to see that every other solvent stockholder is compelled to pay his share, to the end that no other assessment may become necessary. The receiver, then, was acting in the interest of, and in a sense for, the defendant in, prosecuting the claims for contribution against the national banks, which were presumably solvent. The banks refused payment of the assessment against them. The receiver promptly brought suits and obtained favorable judgments, and upon a reversal thereof by the supreme court of the United States promptly applied for and obtained from the court having jurisdiction of the case the order for the second assessment, and upon the refusal or neglect of the defendant to pay it brought this action. The defendant would have been aggrieved had the first assessment been for one hundred per cent, on the value, of his stock — nearly three times the amount apparently necessary to discharge the remaining obligations of the corporation.
If it be said that the receiver was bound to know the law and that he knew when the national banks refused to pay the assessment that they were not liable therefor, it must also be said that his mistake was the mistake of the defendant and other stockholders for whom he was then acting and whose interests were adverse to those of the national banks. The receiver, however, can not be held to this rule. He was but the arm of the court, and was obeying its direction. If the prosecution of the claims against the national banks occurred through ignorance of the law, it was the mistake of the court by whose order alone he was empowered to act, and is not attributable to him. The result of the action against the national banks to collect the first assess ment must therefore be regarded as a contingency upon which depended the right of the Minnesota district court to order the second assessment. If, under the first assessment, sufficient money could be obtained to discharge the obligations of the insolvent corporation, there was no occasion for making a second assessment; otherwise, it was the duty of the court to make a second assessment.
“A contingent claim is where the liability depends upon some future event, which may or may not happen, and therefore makes it now wholly uncertain whether there ever will be a liability.” (Adm’r of Sargent v. Adm’r of Kimball, 37 Vt. 320, 321.)
(See, also, Stevens v. Stevens, 172 Mo. 28; Jorgenson v. Larson, 85 Minn. 134.)
The statute of Minnesota which was pleaded and made a part of the petition specifies many contingencies which may affect the amount to be raised by an assessment, and then provides that the court shall, after hearing the parties and the evidence offered, order such a ratable assessment upon all parties liable as stockholders as appears necessary, considering the probable solvency and responsibility of the stockholders and the probable expense of collecting such assessment. The statute further provides:
“Whenever, at any time after an assessment for an amount less than the maximum stockholder’s liability has been levied, it shall appear, by petition or otherwise, and after hearing as hereinbefore provided, that by reason of the insolvency of stockholders, or for any other cause, it is necessary, or for the interest of creditors, that a further assessment be levied, the court shall order the same for such amount, proportion or percentage as it may deem proper; and in the same-manner, and with like effect, at any time thereafter may levy additional assessments, not exceeding in the aggregate the maximum stockholders’ liability.” (Rev. Laws Minn. 1905, § 3188.)
It appears, then, that the Minnesota district court was expressly authorized by the law of the state to de termine when the contingencies of the case made it necessary to order a second assessment. It also appears by the petition that that court exercised the power conferred by statute and judicially determined that the second assessment was necessary, and accordingly ordered it.
The defendant, contending that the action is barred on the second count, correctly says that the question is to be determined by the law of this state. (Rankin v. Barton, 69 Kan. 629.) He also relies upon the case cited and the case of A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628, as authority for the proposition that the cause of action is barred under the rule that where some preliminary action is essential to the bringing of a suit upon a claim, and such precedent action devolves upon the claimant, he can not prevent the operation of the statute of limitations by unnecessary delay in taking such action.
In Rankin v. Barton, supra, Rankin was the receiver of a national bank, and brought the suit against a stockholder of the bank upon an assessment made by the comptroller of the currency. The duty of taking an accounting, and making an assessment if necessary, devolved upon the comptroller, and, the right of action therein not arising until such action had been taken, the rule was laid down as above stated. That action was brought upon a second assessment, nine years after the insolvency of the bank and eight years after the first assessment had been made. No reason was given for the long delay, and in the absence of such reason it was held that the delay was unreasonable and the action was barred. It is apparent that that case was very different from this, and under the rule there promulgated the question in this case is whether the reason pleaded shows the delay to have been reasonable.
In A. T. & S. F. Rld. Co. v. Burlingame Township, supra, which was an action by the township to recover damages against the railroad company resulting from the manner of the building of its railroad across a public highway, a preliminary proceeding to have the damages appraised was necessary. The township trustee applied to the commissioners in June, 1884, for the appointment of appraisers of the damages, a report of the appraisers was made, and the action was brought by the township against the company within less than a year thereafter. To the petition of the plaintiff, which set forth no reason for the delay, the defendant answered that the railroad had been constructed in 1869, about fifteen years before the bringing of the action, and that the action was barred. ' The plaintiff demurred to the answer. The district court overruled the demurrer, and this court reversed the ruling. The second paragraph of the syllabus reads:
“Where preliminary action is essential to the bringing of an action upon a claim such as is required of the township trustee in chapter 105 of the Laws of 1876, and such precedent action rests with the claimant, he can not prevent the operation of the statute of limitations by long and unnecessary delay in taking such action; but the statute will begin to run in a reasonable time after he could by his own act have perfected his right of action; and such reasonable time will not in any event extend beyond the statutory period fixed for the bringing of such an action.” (36 Kan. 628.)
The defendant herein construes the last clause of that syllabus to mean that under no circumstances whatever could the time of bringing the precedent action be delayed beyond the statutory period. The language should be read and understood in connection with the context. We take its true meaning to be as follows: Where the duty to take the preliminary action rests upon the claimant he can not prevent the operation of the statute of limitations by long and unnecessary delay in taking such action, but in such case the statute of limitations will begin to run in a reasonable time after the claimant could have taken the preliminary action, 'and unnecessary inaction for the full period of limitation always amounts to an unreasonable delay.
The rule leaves the question pending here to be, Did the bringing of the precedent action rest upon the receiver, and was the delay unnecessary? In the Burlingame case the precedent action was wholly within the control of the township trustee. In this case the precedent action was not wholly within the control of the receiver. In that case no reason whatever' was given for the delay. In this case a very tangible reason affecting the rights of the defendant and other stockholders is given. The making of the second assessment did not rest with the receiver. After his appointment he promptly applied to the district court to make the first assessment. The court decided the assessment was necessary, fixed the rate which appeared to it sufficient, and ordered the receiver to proceed to collect any amounts not paid within thirty days. The receiver proceeded to obey the order without apparent delay, and when the adverse decision was rendered promptly applied for another assessment. Although considerable time elapsed between the first and second assessments, we think it can not be said as a question of law that the delay was unreasonable or unnecessary. The statute of limitations, then, did not begin to run until the second assessment was made, and this action was commenced within three years thereafter.
It is urged that a statutory liability of a stockholder created by the laws of another state should not be enforced by the courts of this jurisdiction. The liability is not pleaded as statuory, but as arising from the contract of subscription for the stock. (Rankin v. Barton, 69 Kan. 629, 633.) Nor was this the ground of the demurrer or of the ruling of the court thereon. (Mentzer v. Burlingame, 71 Kan. 581.)
The order sustaining the demurrer to the second cause of action and the order of dismissal are reversed, and the case is remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Graves, J,:
This action was commenced in the district court of Cowley county against the city of Arkansas City, by Evelyn S. Payne, to recover damages for injuries sustained by her in falling through a hole in a sidewalk of said city. She recovered a judgment, and the city prosecutes error. The alleged errors consist of the erroneous admission'of testimony and misleading and erroneous instructions given to the jury.
The hole in the sidewalk which caused the injury was made by an adjacent property holder, for his own convenience, under an arrangement with the city. When the original petition was filed the city caused this property holder to be made a party defendant, and filed a cross-petition against him. Afterward this cross-petition was dismissed, and the case proceeded between the plaintiff and the city alone. Upon the trial the plaintiff was permitted to read this answer and cross-petition as evidence. It contained statements, which amounted to admissions by the city of material facts which the plaintiff would otherwise have been compelled to establish by other testimony. Such admissions are proper evidence, from whatever source obtained. We are unable to see any error in permitting the pleading to be read in evidence. (Solomon Rld. Co. v. Jones, 30 Kan. 601; Juneau v. Stunkle, 40 Kan. 756; Lewellen C. Lane v. Choctaw, Oklahoma & Gulf R. Co., 19 Okla. 324.) This has long been the practice in this state, but the reason for the rule is so clearly stated by Mr. Chief Justice Burford .in the case last cited that we quote therefrom as follows:
“The weight of authority and better-reasoned cases support the rule that, a pleading or an admission or allegation in a pleading, notwithstanding it may have been withdrawn, stricken out or superseded by an amended pleading, is competent in evidence, and may be introduced against the party from whom it proceeded, like any other admission or declaration, subject, however, to explanation by the party who made it. This rule rests on the general principle that whatever a party has said about his case may be proved against him, and whatever writing he has signed or authorized may be, if relevant, introduced against him, the weight of such evidence to be left with the court or jury trying the case.” (Page 328.)
Complaint is made of the definition of ordinary care, as given by the court in an instruction which reads:
“Ordinary care is such care as is usually exercised by persons of ordinary care, caution and prudence in the age and country and under the same or similar circumstances as a party charged with like -negligence.”
From a large number of definitions counsel have selected, as a fair standard, one which reads:
“That- care which ordinarily cautious, prudent persons would exercise under the same, like or similar circumstances.”
We think the two substantially alike. If it be conceded that the one given by the court is less clear and not so easily understood, it conveys the same meaning; as the other, and is couched in substantially the same' language. Taken in connection with the other instructions given, the jury could not have been misled or confused by it, and we can not say that it was erroneous.
The defendant further objects to an instruction of' the court which reads:
“A primary duty to keep the streets and sidewalks in. a reasonably safe condition for public travel devolves, on the city, and the defendant city can not escape its: liability for the lack of ordinary care in regard thereto by granting permission to the property owners to place-manholes therein for their private use, under an agreement that such property owners must keep such manholes in repair and in a safe condition. The city has not power to grant such privileges, and if it did so and then depended upon the property owners to keep such manholes in a safe condition, and failed to exercise ordinary care in regard thereto, the city can not escape liability for the reason that they may have depended upon the property owners to keep such manholes in a .safe condition.”
The specific objection made to this instruction is to, the words: “The city has not power,to grant such privileges.” This criticism comes from a misconception of the scope of the instruction as a whole. The privilege which the city had no power to confer, within the meaning of this instruction, was the right to maintain coal-holes or manholes in the sidewalk upon condition that the same should be kept in repair, and thereby relieve the city of such duty. The fact that the city was not claiming such exemption as a defense in the action does not make the instruction erroneous. There was enough in the case upon this point to make it entirely proper for the court to call attention to it by •an instruction, so the jury would not be misled upon that subject. We are unable to see any impropriety or •error in this instruction.
Complaint is also made of an instruction which reads:
“If you find for the plaintiff, then you should allow her such a sum of money as in your judgment will fairly and fully compensate her for the injuries which the testimony in the case shows her to have sustained; and in determining the amount of such award you should consider the character of any injury to her person which the testimony shows her to. have sustained, any mental or physical pain which the evidence shows she may have suffered or which the, testimony reasonably shows she will suffer in the future; whether or not her ability to earn money has been impaired by such injuries as the testimony shows her to have sustained; the time which she had necessarily lost by reason of such injuries; the state and condition of her health before and subsequent to the injuries complained of, in so far as such subsequent health has been occasioned by the alleged injuries, if any; and you should allow her such a sum of money as will in your best judgment fairly and fully compensate her for the injuries which the evidence shows to be the direct and natural consequences of such injuries which the evidence' shows her to have sustained.”
The specific objection to. this instruction -is that it permits a recovery for future pain, which the testimony reasonably shows she will suffer. We see no error in this. The future pain for which she may recover is limited to such as, results from the injury and the evidence shows it is reasonable to expect. This limitation does not leave the jury to mere speculation, but confines them to the testimony.
These are the questions presented, and, being unable to find error in any of them, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A prosecution for misconduct in office was begun against a city marshal. A motion to quash the information was sustained, and the state appeals. The statute involved reads:
“Every person exercising or holding any office of public trust who -shall be guilty of wilful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity, or under color of his office, shall on conviction be punished by imprisonment in a county jail for a term not exceeding one year, and fined not exceeding one thousand dollars.” (Gen. Stat. 1901, § 2194.)
The information characterized the conduct of the defendant as “wilful” and “unlawful,” but did not use the term “malicious.” The acts complained of, however, if done wilfully and wrongfully, showed such a disregard of the obligations owed by the officer to the public as necessarily to render them malicious within the ordinary meaning of that word as used in criminal statutes, the only element it implies more than wrongfulness and wilfulness being the absence of legal justi fication and excuse. {The State v. White, 14 Kan. 538; 12 Cyc. 150.)
The first of the three counts of the amended information charges in substance that although the ordinance required the marshal to' see that all offenses against the statutes and ordinances were prevented or punished, the defendant wilfully and unlawfully permitted certain persons to maintain bawdy-houses, prohibited both by ordinance and by statute, that he connived at an arrangement for their paying, periodical fines in the police court without ceasing their unlawful occupation, and that he “extended the police protection of the city” to them. This is equivalent to charging that having personal knowledge of the violation of the ordinances and statutes he made no attempt in good faith to enforce the law or procure the punishment of persons offending against it. Such personal knowledge is not attributed to him in express terms, but it follows from the allegation that he wilfully permitted the illegal business to be carried on. Such action on his part would constitute misconduct in his official capacity, or misconduct in office, of which it was said in Falloon v. Clark, 61 Kan. 121, that “it is something which amounts to a breach of the conditions tacitly annexed to the office, and includes any wrongful official act or omission to perform an official duty.” (Page 125.)
The second count is very similar to the first, except that personal knowledge by the marshal of the violation of the law is explicitly charged and the allegation defining the marshal’s duties under the ordinance is omitted. It contains the averment, however, that the defendant failed and refused to perform the duties “enjoined upon him by the laws of the city” by failing and refusing to make or order the arrest of the keepers of the bawdy-houses, and this sufficiently implies that, it was a part of his official duty to cause such arrest.
The third count charges that the defendant gave “aid,. comfort, protection and assistance” to certain keepers of bawdy-houses, and that in return and as a reward therefor they presented to him, and he accepted, a gold star with a diamond setting. It is only reasonable to interpret the allegation that the defendant gave the wrong-doers “protection” as meaning that he gave them protection against the interference by the public officers with their violation of the law. The acts complained of in this count are not in terms characterized as wilful or wrongful, but their nature is such that they necessarily constitute wilful and malicious misconduct in office within the meaning of the statute, and the .use of these words would have added nothing substantial to the charge.
The information contains much repetition and surplusage, and lacks the definiteness that is desirable in criminal pleading, but no one of the counts when fairly construed seems vulnerable to a motion to quash.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
Shup brought a suit against Moon and Jones for the declaration of a resulting trust in á tract of land, for the conveyance of the legal title to Shup, and for rents and damages. It was charged that Shup gave to Moon for collection, as Shup’s agent, a note secured by a mortgage on the land; that Moon assumed the agency, caused the mortgage to be foreclosed,, violated instructions to bid in the land for Shup, who-advanced the money to pay the costs, took a certificate-of sale and sheriff’s deed in his own name and conveyed, to Jones, who was in collusion with him. The defendants answered, a trial was had, findings of fact were made by a .jury and by the court, and judgment was. rendered for the defendants. Shup requested findings of fact»which were refused, unsuccessfully attacked certain of the findings which were made, vainly disputed the conclusions of law drawn by the court, was. denied a new trial, and prosecutes error.
Here is what the court and .jury found,: Kramer deeded the land in controversy to Shup for a credit of.' $4000 on a note which Shup held against him. Moon undertook to dispose of the land as Shup’s agent, agree ing to take for his commission what he could obtain over $4000. Through Moon’s efforts the land was traded to Madden, of Polo, Mo., for a stock of merchandise invoicing $5900. Shup and Moon became partners in the stock in the proportion of $4000 to $1900. Afterward the stock was traded for land in Oklahoma taken in Shup’s name, and Shup settled with Moon by giving him a note for $1900, with other real estate as security.
The arrangement with Madden was that the stock of goods should be clear. It was mortgaged, however, and Madden could not lift the lien. In order to save the deal, which could not be consummated otherwise, Shup and Moon deemed it best for Shup to undertake to borrow the necessary money in the sum of $1300. Madden agreed if this could be done to secure Shup by a mortgage for the amount on the land. The parties were all in Missouri, where the stock was located. Telephone communication was opened with the ■ Colony Bank,, of Colony, Kan., Moon doing the talking for himself and Shup. Application was' made for a loan to Shup of $1300, which the bank declined until Moon agreed to guarantee payment of and to become surety for the loan. On the basis of this assurance the cashier placed the money to the credit of Shup and Shup checked it out to discharge the lien on the goods.- When Shup returned to Kansas he gave a note to the bank for the money, which was renewed once or twice, when the bank called upon Moon to comply with his agreement, and Moon, .pursuant to his promise, signed 'Shup’s note at the bank as surety. Successive renewal notes signed- by both parties included accumulated and unpaid interest so that the debt finally rose to $1495.15.
Madden gave Shup a note for the amount of the loan obtained from the Colony Bank, and secured the note by a mortgage to Shup on the land. In the negotiations with Madden the understanding between the parties was that when the Madden no'te was paid the proceeds should pay the contemplated loan. When the loan was effected and the Madden note and mortgage were executed they were taken for the express purpose and with the distinct understanding and agreement between Shup and Moon that the proceeds should be applied in liquidation, of the 1300-dollar loan from the Colony Bank, which had been procured through Moon’s agreement to be surety for it.
Madden did not pay Shup, and Shup did not pay the bank. Shup delivered the Madden paper to Moon for foreclosure. Moon procured counsel, had suit brought in Shup’s name, judgment was duly rendered, and the land was sold. A few days before the sale Shup furnished $66.75 to apply on the expenses of suit. Moon had instructed the-attorneys in the case to bid in the land in his name, which was done. A certificate of sale issued accordingly, and after the period of ^redemption expired a sheriff’s deed issued to Moon.
Shup was not present at the sale and had no actual knowledge or notice that the bid was made in Moon’s name or that the sheriff’s deed ran to Moon, but in taking title in his own name Moon had no purpose or intention to cheat or defraud Shup. The sheriff’s deed was delivered to Moon on October 4, and he immediately offered to Shup that the latter take the land and the title thereto free of all claim of Moon, provided Shup. pay the debt at the bank upon which both were liable. This Shup declined to do. Thereupon Moon paid the bank in full, on October 8 recorded his deed, and on October 15 conveyed to Jones.
Jones gave a stock of goods for the land. The trade was pending before the sheriff’s deed issued. Moon had told Shup about it and had even introduced Shup to Jones as the owner of the land. Shup made no objection whatever to the trade. When Jones inquired of him concerning the land he referred Jones to Moon for information, and his conversation and conduct were such as to lead Jones to believe that whatever Moon did was all right with him. When Moon offered to turn over the land Shup was told that he could complete the trade with Jones, and Jones purchased without ■fraud or collusion and in good faith.
From the foregoing it is plain that Shup was beaten on the facts. Much undisputed law is cited in the brief to sustain the theory of the case presented by the petition, but it has no bearing on the case presented by the findings. Shup’s evidence was all in perfect harmony with the petition, but the court and jury found a different state of facts from the evidence produced by the defendants, so that, if the facts stand as found, the case is closed.
The court has little time to give to disputes of fact arising upon conflicting oral testimony, but one or two matters may be noticed. Following the allegations of the petition the plaintiff’s evidence was that two days before the sale he paid Moon $66.75, instructed Moon to attend the sale, bid off the land for him, and pay the costs out of the money furnished; and that Moon accepted and receipted for the money on these conditions and agreed to bid and purchase for Shup. The court was specially requested to find according to this testimony, and refused to do so.
The evidence shows that it was a matter of surprise that Madden allowed the land to sell, but in anticipation of a sale Shup and Moon adjusted between themselves the supposed expense of the suit. It was estimated at $100. Going back to the transaction which gave rise to the note and mortgage, and figuring on the old partnership basis of $4000 to $1900, Shup’s share w<puld be about two-thirds, so he furnished $66.75. The actual expense was: costs, $57.40-; attorney’s fees, $40; total, $97.40, which Moon paid. After seeing the witnesses and hearing all the evidence the trial court apparently did not believe there was any agreement to bid in Shup’s name, and this court is not in a position to say the finding requested should have been made.
The plaintiff, however, relies upon the case of Guern sey v. Davis, 67 Kan. 378, the syllabus of which reads as follows:
“In an action by a principal against his agent for a breach of duty, an allegation of a specific direction to the agent is sufficiently established by showing that the •agent’s duty in all cases covered the transaction in suit, and an instruction to the jury hypothesizing a •specific direction in the particular case is warranted by •such evidence.”
This is good law, but it applies only in cases of true •agency, and under the findings of fact the court is not concerned with such a case.
The Madden mortgage was not a mere piece of private property belonging personally to Shup. It was .given for the specific purpose of paying the money borrowed from the bank. In equity and by agreement of the parties it stood as indemnity against Moon’s liability on the note the bank held. Moon’s relation to the mortgage was, to that extent, the same as if it ran to him instead of to Shup. When the mortgage was delivered to Moon for foreclosure he had the right to proceed as if it had been assigned to him for the purpose of accomplishing the object for which it was given. He was in a sense a trustee for both parties, but he was in no sense exercising a naked ‘agency. Acting in good faith, Moon brought the foreclosure suit to a conclusion and carried the fruits to Shup for the purpose of having them applied as the mutual obligations of the two men required they should be applied. He was faithful to his trust. Shup renounced, and Moon paid the bank. Shup then had no remedy in equity against Moon which did not involve an offer to do equity by reimbursing Moon.
The plaintiff argues against the finding that the Madden mortgage was given to protect the bank loan, because the bank was not a party to the agreement, because the money was loaned to Shup, and because the Madden mortgage was given to Shup individually. The true character of the transaction was established by abundant evidence. But if the evidence were less clear these are only incidents and forms, which equity penetrates or disregards in order to reach and deal with substance. It is said that the question whether Moon intended to act fraudulently in taking title in his own name was one of law., The question was one of fact, upon which Moon could testify directly. An argument is built up to show that Jones purchased with such notice and knowledge of Simp’s rights that he is not entitled to keep 'the land, but the record contains substantial evidence warranting the finding that Jones was allowed to purchase under circumstances which required Shup to speak at the time if he ever intended to protest.
The conclusions of law drawn by the trial court need not be discussed seriatim. They are substantially correct and lead to the proper judgment. In any event this court is able to apply the law to the facts found.
The judgment of the district court is affirmed. | [
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Per Curiam:
That the plaintiff constituted the family of his deceased wife is settled by Weaver v. Bank, 76 Kan. 540, overruling Ellinger v. Thomas, 64 Kan. 180. (See, also, Cross v. Benson, 68 Kan. 495.)
That temporary absence will not defeat the homestead right is settled by cases too numerous to need citation. That during the temporary absence of the owner premises may be rented without destroying their homestead character has been settled ever since the decision in Hixon v. George, 18 Kan. 253. (See, also, National Bank v. Warner, 22 Kan. 537; Garlinghouse v. Mulvane, 40 Kan. 428, 431; Shirack v. Shirack, 44 Kan. 653, 656; Deering v. Beard, 48 Kan. 16, 19; Pitney v. Eldridge, 58 Kan. 215; Upton v. Coxen, 60 Kan. 1; Bebb v. Crowe, 39 Kan. 342; Hoffman v. Hill, 47 Kan. 611.) These decisions, and particularly Deering v. Beard, Pitney v. Eldridge and Upton v. Coxen, dispose of the arguments relating to present right of possession and two homesteads in one tract. Besides, the creditor has.no license to claim a homestead for the tenant in this case.
The facts being agreed to, burden of proof is not material. The' question is purely one of law — what shall the judgment be? The parties stipulated how the agreed statemént .of facts should be interpreted:
“The said plaintiff has never abandoned or relinquished his residence upon said lots on said Mona avenue, unless by reason or by virtue of the facts herein-before set forth.”
The agreed facts show a removal for a temporary purpose. They do not include an intention not- to return.
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The opinion of the court was deliverd by
Johnston, C. J.:
The state brought a suit against Henry Werner to enjoin him from maintaining a place where intoxicating liquors were sold and kept for sale in violation of law. When the suit was begun the district judge was absent from the county, and hence the petition and verified application were presented to the probate judge, who granted a preliminary injunction, or restraining order. The défendant was duly served with summons, and'also with-the order of injunction. Later the defendant was cited before the court to answer an accusation that he,was still maintaining a nuisance in violation of the injunction order previously issued by the probate judge. His answer to the charge of contempt was that the probate judge had no authority to grant an injunction or restraining order, and, as the order issued by him was void, there was no contempt. On a demurrer to the answer the court sustained the contention of defendant and dismissed the contempt proceedings. The state complains of this ruling.
The statute authorizing a proceeding by the state to abate and enjoin the nuisance above mentioned provides that an injunction may be granted at the commencement of the suit without requiring a bond, and that any person violating the terms “of any injunction” granted in such suit shall be punished for contempt. There appears to have been a contention by the defendant that the order made was what is designated as a “temporary injunction,” an order which the probate judge has no authority to issue. Formerly a probate judge had authority to allow a temporary injunction, and this, under other provisions of the code, might be continued in force until a review of the same’ was had in the supreme court. - The legislature of 1901 amended the code in this particular by providing that only temporary restraining orders should be granted by the probate judge. (Laws 1901, ch. 281; Civ. Code, § 289.) While the order issued in this case has some of the characteristics of a temporary injunction, it is open to the interpretation that it is an order that the probate judge had authority to grant, namely, a temporary restraining order. The accusation filed by the state treated the order granted as a temporary restraining order, and the district court specifically decided that the probate judge had no authority to issue a temporary restraining order. The question then is fairly before the court whether the probate judge is authorized to issue temporary restraining orders in such cases.
The statute providing for abating and enjoining a nuisance, as will be observed, does not undertake to prescribe methods for enforcing the remedy of injunction in this class of nuisances, and hence the general-provisions of the code! regulating the granting of injunctions apply. The kind of injunction to be issued at the commencement of such a .suit is not stated. The code provides for perpetual and provisional -injunctions. Of course, it was not contemplated that a perpetual injunction should be allowed at the commencement of the suit. The provisional injunctions provided for in the code are divided into temporary injunctions and temporary restraining orders. It can hardly be contended that because one of these is designated as a restraining order it is not to be re garded as an injunction. The code defines an injunction as “a command to refrain from a particular act. It may be the final judgment in an action, or may be allowed as a provisional remedy, and when so allowed it shall be by order.” (Civ. Code, § 237.) There is little, if any, difference between a temporary injunction and a temporary restraining order, except as to duration. (The State v. Johnston, 78 Kan. 615.)
What is designated as a temporary injunction may ordinarily be issued at the commencement of the suit, with or without notice, as the court or judge may determine; but as such injunction remains in force until the final hearing, or until it is set aside by the court, it is rarely granted without notice. Then, again, an order allowing or refusing a temporary injunction may be reviewed in the supreme court before the final hearing of the cause, and in that way the life of the order may be greatly extended. Instead of granting an order of such duration or effect the court or judge may require notice to be given to the defendant of the application for a temporary injunction and in the meantime grant a temporary restraining order which shall •only remain in force until the time fixed for the hearing upon notice. (Civ. Code, §240.) After a party has answered a temporary injunction can not be issued except upon notice, but even in that case a temporary restraining order may be issued which will remain in force until the decision of the application for an injunction. (Civ. Code, § 241.) The order so issued is in junctional in character, and has the same efficacy while it is in force as any other injunction. It falls within the statutory definition of an injunction; that is, it is “a command to refrain from a particular act.” (Civ. Code, § 237.) It is made ’to be obeyed, and the disobedience of the same is necessarily contempt.
The temporary restraining order allowed by the probate judge is more temporary in character than a temporary injunction, but it is as imperative and binding while it is in force as any other injunction, and a violation of the order is as marked a case of contempt as would be the violation of a perpetual injunction. It is suggested that The State v. Jepson, 76 Kan. 644, in effect holds that a restraining order may not be issued in this class of cases. In that case it was' held that in proceedings of this kind the state is entitled to an order of injunction at the commencement of the action, without notice. No question was raised there as to the character of the temporary order to be issued, and no distinction was drawn between temporary injunctions and temporary restraining orders. It was decided that the judge was not justified in refusing a temporary order because no notice of the application had been given to the defendant. In such a case it is the duty of the judge to grant a provisional'injunction when the suit is begun, to be in force until the final hearing, or else an order restraining the parties until the time fixed for hearing upon notice. '
The legislature, having brought nuisances under the prohibitory law within the scope of the remedy of injunction without providing specific methods for it’s enforcement, manifestly intended that the general rules of procedure should control so far as they were applicable. Nothing in the act is inconsistent with the rule providing for the allowance of restraining orders, and when such an order is granted it must be obeyed, and the disobedience of it is punishable as a contempt.
The judgment of the district court is reversed, and the cause remanded for further proceedings. . | [
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The opinion of the court was delivered by
Benson, J.:
The only question in this casé is. whether a judgment entered by default quieting title upon a tax deed set out in the petition is void merely because the tax deed' is, upon its face, void as a conveyance. The argument is that because the petition affirmatively showed want of title in the plaintiff under-the tax deed a valid judgment could not be rendered in his favor, and that the judgment in fact entered thereon should be set aside as a nullity under section 575 of the civil code.
The motion filed by the defendant to set aside the judgment on this ground was properly denied. The court had jurisdiction of the parties and of the subject-matter, ánd the petition challenged judicial action. It averred that the plaintiff was the owner of the land and in possession thereof, and that the claims of the-defendant thereto were groundless, but cast a cloud upon the plaintiff’s title, which he prayed should be quieted.
The tax deed was not a nullity, but gave the plaintiff rights and equities in the land, although void as a muniment of title. (Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158; Pierce v. Adams, 11 Kan. 46.) Whether it conveyed the title, however, or was only evidence of a lien for' taxes, or what its legal effect was, were questions presented to the court, requiring judicial consideration and determination. If the court erred in its judgment upon these matters such error could only be corrected by appropriate proceedings, which were not taken. The judgment is therefore conclusive between the parties.
After a court has obtained jurisdiction an erroneous decision does not render the judgment void. (Hodgin v. Barton, 23 Kan. 740; Walkenhorst v. Lewis, 24 Kan. 420; Clevenger v. Figley, 68 Kan. 699; Taylor v. Coots, 32 Neb. 30.) Trials are upon issues of law as well as of fact. (Civ. code, § 265.) Where a demurrer is interposed specifying that the petition does not state a cause of action, the judgment entered thereon is a final judgment, although it presents only an issue of law. (Brown v. Kirkbride, 19 Kan. 588.)
“It is well settled that an issue so determined is a bar, not only to any dispute as to the facts, but also as to any further consideration of the law bearing on the case.” (Hyatt v. Challiss, 59 Kan. 422, 427.)
If the defendant’s contention is correct, then in any case where a petition would be held insufficient to state a cause of action, if demurred to, it would be better not to incur the expense of presenting a demurrer and taking an appeal from an adverse ruling, since the final judgment might at any time be set aside on motion. A party who is summoned in the course of a regular judicial proceéding, either personally or by publication, in a court having jurisdiction, will have his day in court, and must appear and take the proper ■steps to protect his interests within the time allowed for that purpose. Opportunity may not knock again -at his door.
The order denying the motion to set aside the judgment is affirmed. | [
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Per Curiam:
The drilling company contracted with, the oil company to drill a well. The oil company was to furnish the casing and other appliances, while the duty of inspection of the appliances devolved on the drilling company. Before the well was completed it became obstructed so that it could not be drilled further, and the drilling company sought to recover for the work done, on the theory that the suspension of work was due to the fault of the oil company. On one side it was claimed that the casing furnished was not sufficiently thick and strong to withstand the pressure of the water, and that it collapsed and obstructed the drilling of the well. On the other side it was claimed, among other things, that the obstruction was below the disc in the well, where the pressure of the water on the inside counterbalanced the pressure from the outside, and that the trouble was not because of insufficient casing but was due to some defect or irregularity in drilling the well.
»In the trial a witness was asked the question, “What, in your judgment, was the trouble; was that in the bottom of this well?” And over objection he answered: “That casing caused the trouble; it was too light.” The admission of this evidence was material error. The witness had had experience in drilling wells and was competent to testify to the strength of the pipe, the extent of the pressure it would withstand, and the like, and also as to the way the drill and other appliances worked when he tested them, and the jury might have inferred from this and other testimony the cause of the trouble; but he should not have been permitted to give an opinion on the issue the jury were called to decide.
“The opinion of witnesses is only admissible upon the ground of necessity, but can never be given upon the ultimate facts which it is the duty of the jury to determine.” (Erb v. Popritz, 59 Kan. 264, 270.)
(See, also, K. P. Rly. Co. v. Peavey, 29 Kan. 169; Telephone Co. v. Vandervort, 67 Kan. 269.)
As the admission of this testimony was prejudicial error, it is unnecessary to consider the other assignments. The judgment is reversed and the cause remanded for a new trial. | [
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Per Curiam:
Paul R. Chubbuck presented an application to the district court of Morton county to open up a judgment rendered against him upon service by publication, claiming that he had no actual notice or' knowl edge of the pendency of the action in time to defend. At the hearing the adverse party offered evidence to the contrary, consisting of an affidavit of the attorney for the plaintiff stating that he had sent to Chubbuck’s post-office address in Illinois a registered letter enclosing a copy of the notice of publication clipped from a newspaper, and had received in reply thereto a registry return card signed by Chubbuck, which was attached to the affidavit as an exhibit. This receipt bore date twenty-seven days before judgment was rendered. It was offered in evidence, as was the deposition of Chubbuck, in which he admitted his signature but stated that he had no recollection of signing the receipt nor of receiving a copy of the notice and would not swear that the letter did not contain a copy of the notice. On this evidence the court refused to open up the judgment, and Chubbuck complains.
It is seriously contended that section 77 of the code of civil procedure, which permits the adverse party to offer counter-affidavits, must be construed with such strictness as to prohibit the introduction of any other kind of testimony, and that the court erred in admitting in evidence the registry receipt and the deposition of the defendant because they were not affidavits. The registry receipt was a part of the affidavit of the plaintiff’s attorney and was attached to it as an exhibit. The deposition was a verified written declaration of a witness, and therefore an affidavit. (Hanna v. Barrett, 39 Kan. 446; Bank v. Bank, 59 Kan. 354.) Besides, there is nothing in the statute which prohibits the court from hearing any competent evidence tending to show that the defendant had notice or knowledge of the pendency of the action in time to defend.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The investment company brought this action against the board of county commissioners. The petition alleged that in 1901 the plaintiff purchased of the defendant certain tax-sale'certificates on a number of lots sold by the treasurer of the county for the ■delinquent taxes of 1896; that in 1902 the county clerk •of the county issued to the plaintiff a tax deed for the property; that thereafter the plaintiff paid the taxes on the land for the year 1901; that the tax deed and certificates were thereafter adjudged invalid by the court of common pleas of Wyandotte county; that the plaintiff had asked the defendant to refund to it the money paid for the certificates and the subsequent taxes, and that this request had been refused. The petition further contained an offer to execute and deliver a quitclaim deed to such person or persons as the -defendant might direct, and alleged that by reason of the premises and the statutes of the state of Kansas the plaintiff wa,s entitled to a return of the amounts it had paid, with interest, and prayed for judgment accordingly.
The defendant filed a demurrer to this petition, and, upon that being overruled, answered. The plaintiff replied by a general denial.
' After-ward the case came regularly on for trial, and, the defendant failing to appear, the plaintiff introduced its evidence and the court rendered judgment in its favor. No exception was taken to the evidence or to .the judgment rendered, and no motion for a new trial was filed. In fact nothing was done by the defendant at that term of court.
At the third term of court thereafter the defendant filed a motion to vacate and set aside the. judgment on the grounds that the court was without jurisdiction to render it, that the petition stated no cause of action, and that the judgment was utterly null and void. The court denied the motion, and the case is brought here to review that order.
. The action was evidently based on section 7685 of the General Statutes of 1901. Section 121 of chapter 107 of the General Statutes of 1868, in part, reads:
“If, after the conveyance of any land sold for taxes, it shall be discovered or adjudged that the sale was invalid, the county commissioners shall cause the money paid therefor on the sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, to be refunded, with interest on the whole amount at the rate of ten per cent, per annum, upon the delivery of the deed to be canceled.”
In 1879 this section was changed to its present form by substituting this clause: “the board of county commissioners may, by proper order, cause the money paid therefor on the sale, together with such subsequent taxes and charges paid thereon by the purchaser or his assigns as they may judge proper” (Laws 1879, ch. 40, §3; Gen. Stat. 1901, §7685), in lieu of the clause: “the county commissioners shall cause the money paid therefor on the sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, to be refunded.” In other respects the old section was reenacted.
The defendant claims that the language of the statute as it now stands, emphasized by the fact of the amendment, leaves no doubt that the law makes it a matter of discretion in the board of county commissioners whether they will cause the refund to be made or not, and that the court has no power to compel the exercise of that,discretion or to compel payment where the discretion has been exercised by the commissioners adversely to the claim of the plaintiff.
We are not prepared to say that this is not a correct interpretation of the law, but, if so, it does not follow that the judgment is void. The abstract furnished does not advise us what evidence was introduced upon which the court acted. The evidence may have disclosed that the taxes upon which the sales and deed were based were illegal and levied for an entirely unlawful purpose or that the lands were not taxable. If such or other defense were shown by the evidence, although not averred or insufficiently averred, in the petition, the case comes within the rule which allows a defective statement of a cause of action to be aided by the verdict or by a finding of the court. (O’Conner v. Standard Theater Co., 17 Mo. App. 675; Delashman v. Berry, 21 Mich. 316.)
It was alleged in the petition that by reason of the facts stated therein and the statutes of the state of Kansas the plaintiff was entitled to judgment against the 'defendant. This was not a very good statement of fact,- but it was sufficient to challenge the attention of the court to the consideration of the statute referred to. It is said that “may” and other words used in the amended statute conclusively show that it is a matter in the discretion of the county commissioners, whereas, the word “shall,” used in the old statute, made the refunding of the money paid mandatory. This may be a correct interpretation of the statute, but that was a matter for-the consideration of the court,-and the court, having jurisdiction, had a right to decide.it. Having had the power to decide, its judgment is equally conclusive, whether its decision be right or wrong, until such judgment is reversed in proper proceedings for that purpose in an appellate court.
The defendant, having been summoned into court, was compelled to take cognizance of all subsequent proceedings, and if it was aggrieved by the action of the court its remedy was by appeal; and it could not lie dormant until all remedy in the way of appeal had become unavailable and then go into court and ask that the judgment be set aside as void. (See Brenholts v. Miller, ante, p. 185; Manley v. Park, 62 Kan. 553; Rowe v. Palmer, 29 Kan. 337; Walkenhorst v. Lewis, 24 Kan. 420; Head v. Daniels, 38 Kan. 1.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Ransom Pigg, the appellant, was arrested and brought before E. R. Simon, judge of the court of Topeka, on a warrant charging' him with grand larceny in stealing a sum of money. He offered to waive a preliminary examination. The complaining witness, John McIntosh, is. a cousin of the appellant, and resided at that time in Missouri. The- county attorney asked to have McIntosh examined and a recognizance taken for his appearance as a witness at the trial. Over the objection of the appellant this was done, and from the evidence it appeared that there was probable reason for believing the appellant guilty of larceny from the person. He was accordingly bound over to the district court to answer that charge. Afterward an information was filed in the district court charging him with larceny from the person. He was tried, convicted, and judgment was rendered upon the conviction. He was refused a new trial, and appeals.
The principal claim here is that the court erred' in overruling his plea in abatement. In this plea he alleged that he had never been given a preliminary examination for the offense charged in the information, had never waived the same, and was not a fugitive from justice. The law is well established that a new offense can not be added after the defendant has waived an examination. (The State v. Spaulding, 24 Kan. 1; The State v. Jarrett, 46 Kan. 754.) This declaration of law has usually been made in cases where the defendant had waived his right to a preliminary examination and no testimony was in fact taken. It is equally well settled that if it appear on the examination that the defendant is guilty of a public offense other than that charged in the warrant he may be bound over for that offense. In the syllabus in Redmond v. The State, 12 Kan. 172, it was said:
“In such a case, in justice tovthe defendant a new complaint ought to be filed, but the statute does not in terms require it.” (Syllabus.)
In The State v. Fields, 70 Kan. 391, it was said:
“The language of the statute permitting a prosecution for a felony other than that charged in the warrant apparently limits the right to cases in which it appears upon a hearing that the defendant is guilty of such other offense.” (Page 395.) .
Assuming that the offense of larceny from the person — for which the defendant was tried and convicted —is a distinct and separate offense from larceny, the appellant having waived a preliminary examination only for the offense charged in the warrant the county attorney was not authorized to file an information against him charging him with larceny from the person unless in virtue of the fact that testimony was taken at the examination tending to show him to be guilty of that offense.
Obviously, we have a different question presented from that decided in the cases cited. It is the contention of appellant that when he offered to waive examination there was nothing for the magistrate to do but to bind him over to answer the particular charge; in other words, without the filing of a new complaint charging a different offense the examining magistrate was without jurisdiction to hear any evidence. This contention can not be sustained. We are aware of no law forbidding the practice, and certainly there is no good reason why a prosecuting attorney may not introduce evidence before the examining magistrate notwithstanding the accused has waived a preliminary examination. At the time the waiver is made the prosecutor may not have knowledge of facts that would authorize the filing of another complaint. It is .apparent that the interests of justice will often require that some evidence be introduced by the state. The prosecutor may wish to make a preliminary investigation to learn the facts so that he may proceed intelligently in the subsequent prosecution of the case, or to preserve the testimony of a witness. It may become necessary, as in -this case, to examine a witness 'in order to furnish a basis for requiring a recognizance for Ms appearance at the trial. Besides, the state has ¡an interest and concern in the discharge of an accused person when there is no ground for believing him guilty. In The State v. Goetz, 65 Kan. 125, Mr. Justice ¡Cunningham, speaking for the court, used this language :
“While ene object of a preliminary examination is to inform the defendant of the nature and character ■of the crime charged against him, it is also a step and a necessary step in the proceeding that leads up to his trial in the district court.” (Page 127.)
Indeed, the purpose of a preliminary examination may be said to be threefold: (1) To inquire concerning the commission of criiñe and the connection of the 'accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there be probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to perpetuate testimony; (3) to determine the amount of bail which will probably secure the attendance of the accused ’ to answer the charge.
In State ex rel. Attorney-general v. Judge, 104 La. 237, it was held that the right of the state to demand a preliminary examination can not be defeated by the accused waiving an examination. The statute authorizing preliminary examinations which was construed in that case is much broader and more explicit in its-provisions than ours. It is made the duty of the examining magistrate to open proceedings of inquiry touching the accusation, to examine under oath the witnesses, and to reduce their depositions to writing. The testimony thus taken, both that of the witnesses and of the accused, has been held under proper circumstances to be competent evidence before grand and petit juries. (State v. Wiggins, 50 La. Ann. 330.) The, court, in State ex rel. Attorney-general v. Judge, supra, held that the principal object of a preliminary examination is, first, to inquire touching the commission of crime and the accused’s connection with it, and, second, to perpetuate testimony. In the opinion it was said:
“The state has an interest in both. If a crime has been committed, the facts and circumstances connected therewith should be known to the prosecuting officers, to the end that proper steps for the vindication and enforcement of the law may be taken. If the particular person accused of the crime is shown by the.examination not to be the guilty one, his discharge is ordered. The state has as much concern and interest in the liberation of one falsely accused as it has in the apprehension and detention of one who is rightfully accused. If from the examination the proof is evident or the presumption great that the person accused is the guilty one, his committal is ordered. If the offense is one bailable under the law, the amount of bail he is to give is determined. If not bailable, the accused is ordered confined. . . . Witnesses may die, or leave the state, or become disqualified to testify. Hence, the necessity to perpetuate their testimony in form for future use, and the best and most practical way to do this is through a preliminary examination.” (Pages 239, 240.)
Since the evidence was properly admitted showing an offense other than that charged in the warrant, it became the duty of the magistrate to bind the appel lant over to answer to the other charge; and hé can not be heard to say that he was not given a preliminary examination, because in such a case the law is that he must take notice of the nature and character of the offense charged against him from the evidence introduced at the examination as well as from the papers in the case. (The State v. Bailey, 32 Kan. 83; The State v. Smith, 57 Kan. 673; The State v. Fields, 70 Kan. 391; The State v. Moon, 71 Kan. 349.)
No express provision is found in our statute which authorizes a defendant to waive a preliminary examination. As a matter of fact, all that he does by waiving an examination is to say that so far as he is concerned the state need offer no evidence, thereby permitting an information to be filed without it. (Crim. Code, § 69.) He may waive the necessity but he can not waive the right of the state to offer evidence if it sees fit. We are at a loss to conceive how the appellant could have been prejudiced by the introduction of evidence. He was present and represented by counsel. The evidence fully, advised him of the character of the offense with which he was charged. The warrant charged him with the larceny of certain money, and the evidence charged that he took the same money from the person of John McIntosh. t
A further contention is that the court of Topeka i's not an examining magistrate and that all proceedings before that court were void. The act creating the court of Topeka provides in part as follows:
“The1 court hereby established shall have the same jurisdiction, civil.and criminal, as justices of the peace now have in this state; and for the purpose of the j urisdiction hereby conferred, and of its proper and necessary exercise, all the laws of this state relating to the powers, duties and jurisdiction of justices of the peace and practice, pleadings and proceedings in justice courts which are not in conflict with the provisions of this act shall apply to said court of Topeka and the judge thereof and to the mode of practice therein, and to the power thereof, original, mesne, and final, so far as the same may be applicable.” (Laws 1899, ch. 129, § 2.)
Section 8 of the act provides:
“And in all preliminary examinations held before said judge in cases of persons accused of the commission of a felony, it shall be the duty of said clerk to take down all the testimony in writing and file the same with the papers in the case.”
The same act which creates the court abolishes the jurisdiction of justices of the peace to hold preliminary examinations, and if appellant’s theory is correct there is no way in which such examinations can be held in the city of Topeka, or, in fact, in any city where there is a city court. In the statute the terms “court of Topeka” and “judge of the court of Topeka” are used interchangeably, but the intention of the legislature is not open to doubt. The law manifestly confers upon the court the same powers and jurisdiction that a justice of the peace exercises when sitting as. a court, and upon the judge of the court the same powers and duties that a justice exercises when acting as"a magistrate in preliminary examinations.
An objection is made to the sufficiency of the transcript from the city court, but the transcript, together with the evidence of the clerk, shows that it contained a true statement of the proceedings in the preliminary examination. The-failure of the clerk to sign the certificate attached to the transcript was a mere oversight, and the- district court properly permitted the certificate to be amended by having the clerk attach his signature. (The State v. Geary, 58 Kan. 502.) There is nothing substantial in the claim that the certificate shows that the preliminary examination was held before the clerk instead of before the judge.
On the trial the state offered in evidence the money which it is claimed had been stolen. It is contended that the evidence was improperly admitted for the reason- that there was no attempt to have a witness de scribe each bill by giving its number, series and denomination. It appears that the identical money described in the information, and claimed to have been stolen, was introduced in evidence and exhibited to the jury. It was not necessary that a witness'should take each bill and describe its distinguishing marks, or identify it as one described in the information. One of the issues of fact submitted to the jury was the question whether the money described in the information was stolen. Nor was it necessary to introduce evidence to show the value of the money, since the money itself was introduced in evidence and proved its own value. Courts will take judicial cognizance of the value of money. (Grant v. The State, 55 Ala. 201; Ector v. The State, 120 Ga. 543; Collins et al. v. The People, 39 Ill. 233.)
The information alleged that the money was the property of John McIntosh. He testified that the money belonged to his father, and that when he left home he just took it. This can not be held to constitute a variance, because the actual status of the legal title to stolen property is no concern of .the thief. (25 Cyc. 89.) The possession of the property in the complaining witness was sufficient to make it the subject of larceny, and the title may be laid either in the owner or the person from whom it was taken. This is the law even where the person from whom it was taken had stolen it from some one else. “Thus, if A steal goods from B, and' C afterward steal the same goods from A, C is a felon both as to A and B.” (Ward v. The People, 3 Hill [N.Y.], 395, 398. See, also, People v. Nelson, 56 Cal. 77.)
We find no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
GRAVES, J.:
This action was commenced in the district court of Sedgwick county, in August, 1905, by Henrietta Matson, to recover damages caused by a fire claimed to have been negligently set out by an engine owned arid operated by the defendant railway company.
The plaintiff owned grass-land which was used for the purposes of pasture and the production of hay. The railway company operated its railroad over the plaintiff’s land. On the 15th of March, 1904, a fire was set out by the engine of a freight-train, and burned over about sixty acres of the plaintiff’s land. On the 11th of March, 1905, another fire was set out, which burned over about sixty acres more of plaintiff’s meadow. The ground burned over was the stubble where the grass had been mown. The petition contained two causes of action, one for each of the fires. The averment as to how the damage was caused reads:
“That by reason of the negligent and careless manner in which said defendant was operating its said railroad as aforesaid, and its failure to properly equip said locomotive or engine with adequate modern appliances to prevent the escape of live sparks and coals of fire from' said engine, the grass, mulch and stubble on plaintiff’s said premises, located as aforesaid, was ignited and set on fire by and from sparks and coals of fire . . . emitted or thro'wn from the locomotive or engine, and . . . that said defendant then and there carelessly and negligently allowed said fire to spread and burn the grass, stubble and mulch there located on and attached to plaintiff’s said premises, and that said fire then burned over and greatly injured sixty acres of grass- and pasture-land, a portion of the property of said plaintiff, . . . and said fire then and there destroyed and injured said plaintiff’s property and land, to her damage in the sum of $150.”
The allegations of each cause of action were practically the same. The railway company filed a general denial. Upon the trial the plaintiff produced numerous witnesses who testified that such a fire injures the productive capacity of the land and that this land produced less grass the succeeding years than before, and that the market value of the land and of the farm as a whole was materially depreciated by the fire. Some of. the witnesses placed the extent of this depreciation at $2.50 an acre. The defendant produced numerous witnesses who testified that such fires do not injure the land and that the subsequent crops of grass on this land were as good as before the- fire. The evidence upon this point presented a sharp conflict, both in quantity and apparent quality.
After the defendant rested its case the plaintiff asked leave of the court to amend the petition so that proof could be made as to the value of the grass destroyed, which was refused. This refusal of the court constitutes the principal error complained of here. The court, in making the order, and as the reason therefor, said:
“The pleadings conform to the proof. There is no evidence in the record as to the value of the hay and grass destroyed.
“The request of plaintiff to amend comes too late. The case having been tried upon the claim of the plaintiff that the damage for which recovery was sought was for injury to the land itself, and defendant’s testimony having been directed to refuting this contention of the plaintiff, it would be unfair to now permit plaintiff to amend as requested. This case was not filed until subsequent to the fire of 1905, . . . consequently she was aware of the extent of her damage at the time she filed her suit. The statement of plaintiff’s counsel to the jury and his whole contention being that plaintiff sought to recover for damage to the land, and the entire case having been tried upon that theory, it would be unfair to permit an amendment at this time.”
The request to amend the petition, made after the evidence of both parties had been submitted to the jury, was a direct appeal to the sound discretion of the court. The plaintiff was not entitled as a matter of right to make the amendment. It has been frequently held by this court that under such circumstances the ruling of the court, will not be disturbed unless it be made to appear that it was an abuse of discretion. (Davis v. Wilson, 11 Kan. 74; K. P. Rly. Co. v. Kunkel, 17 Kan. 145; L. & C. 7. A. L. Rld. Co. v. Small, 46 Kan. 300; Kennett v. Van Tassell, 70 Kan. 811.)
Courts, in order to facilitate the transaction of business, are compelled to require litigants to be diligent and careful in the preparation and presentation of their cases. One party can not be permitted negli gently to overlook some important feature in the preparation of his case for trial, and then, when about to suffer the consequences of such negligence, be relieved, to the disadvantage of his adversary, by an appeal to the discretion of the court. Such a practice would lead to intolerable confusion and embarrassment. In this case the plaintiff was fully aware of the loss of the grass burned before the petition was filed. For some reason which does not appear this element of damage was not included in her cause of action, and no attempt was made to establish the value of the grass destroyed. Its importance was not discovered until the defendant had presented its evidence. The defendant had prepared to meet the case stated in the petition. To have permitted the amendment of the petition at that time, as requested, would have introduced a new cause of action and made a retrial of the case necessary. This situation was due to the negligence of the plaintiff in failing to embrace these facts in the petition when it was filed.
This is not a case where new facts are discovered during the trial which could not, by the exercise of reasonable diligence, have been known and pleaded before the trial commenced. It was an omission for which no excuse is offered. Even under such circumstances, if the amendment had been allowed under proper terms, such ruling might have been sustained; but the question here presented is, Was it error to refuse the request to amend? We can not say that under the circumstances shown the court abused its discretion by such refusal.
The averments of the petition seem broad and general enough without amendment to have justified proof of the value of the grass burned, but it does not appear from the abstract that an offer of such proof was made,, and therefore the question of its admissibility is not before us and need not be considered. Apparently the plaintiff prepared and presented the case upon the theory that the measure of damages was the difference in the market value of the farm immediately before and after the fire. During the trial the court inquired of counsel for plaintiff what he claimed the measure of damages to be, to which counsel responded: “Damage to the land itself; injury to the freehold.” The case was fully and fairly tried upon this theory. It was incumbent upon the plaintiff to show, by a preponderance of the evidence, that the market value of the land was depreciated on account of the fire. This was not done, and the plaintiff was not entitled to recover anything. The view of the case taken by the plaintiff in this respect is further shown by instructions which the court was requested to give. They read:
“(4) The court instructs the jury that if they find that the defendant is responsible for the respective fires, or either of them, alleged in plaintiff’s petition, and for the injury and destruction of plaintiff’s property, as alleged, you come then to the last question in the case: ‘What was her damage?’ Now, if you find that plaintiff has sustained damages, and that defendant is liable for those damages, then you must assess them, and in doing so you may .take into consideration the difference, if any, between the fair market value of the land in question just before the fire and such value just after the fire, in each instance, where you find that a fire was set out and defendant is liable therefor, as heretofore instructed; and in no event can you allow plaintiff for damages to this land more than $150 for each of the burns alleged in her amended petition, or $300 in all. But if you find for the plaintiff and allow her damages in either instance, then she will be entitled to a reasonable amount for attorney’s fees, in addition to the damages to the land, and it is your duty to find and include in your verdict such an amount for attorney fees, not exceeding $100 in all.
“(5) You are further instructed that if you find for the plaintiff and have occasion to ascertain her damage, .as heretofore instructed, then you are at liberty, in weighing the evidence submitted herein as to ,the value of the land before and after the respective fires, to consider the fertility of said land, the character, quality and quantity of grass and hay that said land was, and is, capable of producing, the value of the use of said land by the plaintiff before and after the respective fires, for pasturage, as well as the resultant injury, if any, to the roots of the grass, and the effect, if any, of the said fire or fires occasioning said injury or upon subsequent stands of grass and crops of hay upon said land.”
These were refused by the court, but instructions practically the same were given, which read:
“ (10) You are instructed that the plaintiff in this case sues for damages by reason of the depreciation of the value of her real estate, occasioned by fires communicated by the engines of the defendant company. If you find for plaintiff, you can allow her nothing for the loss of hay or grass or any injury occasioned to the grass upon said land, except as it affects the value of the real estate. To enable you to arrive at a verdict under the issues joined in this case you should find the fair market value of the land before and after the fire, as shown by the evidence, and, if you find that the value of the land was depreciated by reason of the fires, allow the plaintiff the loss occasioned by such depreciation; but if the market value of the land was not affected by the fire, the plaintiff can not be said to be damaged, and you must find for the defendant.”
“(12) The plaintiff is not suing in this case for the loss of hay, grass or pasture occasioned by the fire, but only for the injury to the real estate, and you can not consider any loss of hay, grass or pasturage, except for the purpose of enabling you to arrive at the value of the real estate before and after the fire; but for such purpose you have a right and are justified in considering the same.”
“(14) If you find for plaintiff, in determining the measure of .damages to be allowed you should not allow for difference in the fair market value of the land over which the fires burned, where the ground so burned was irregular in shape and extended over different portions of a quarter-section, but should allow, if at all, for the depreciation in the price of the real estate as a whole— that is, as a quarter-section.”
The case was presented to the jury strictly.in harmony with the theory upon which it was pleaded and proved by the plaintiff, and we see no error in the proceedings. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The appellant alleges error in trying the issue upon the plea in abatement without a. jury. It is doubtful whether any issue of fact for a jury was presented under this plea, as the question whether a preliminary examination had been held or waived could be determined from the transcript of the justice’s proceedings which was offered in evidence by the appellant. There was no request for a jury and no exception taken to a trial by the court. Moreover, the information, to which this plea was directed was afterward quashed.
A motion to quash and a plea in abatement were filed to the information upon which the appellant was finally tried. The motion was denied, and thereupon, being arraigned, he pleaded not guilty, without asking for a hearing upon his plea in abatement or calling the attention of the court thereto in any manner. The cause was then continued to the next term. The appellant alleges that the court erred in not disposing of this plea in abatement before proceeding further. This claim can not be sustained. When called upon to plead the appellant entered his plea of not guilty, and thereby waived the plea in abatement, which, although filed, was not presented.
Error is also alleged in denying the motion to quash the information. It is argued that the motion should have been sustained because in the warrant the appellant had been charged only with forging the check, and no preliminary examination had been held or waived upon the charge of passing it. This is an erroneous interpretation of the warrant. Without division into counts it charged that the appellant forged the name, and uttered the check. It was not necessary that there should be the same fulness of statement in the warrant required in an information. (The State v. Baker, 57 Kan. 541.) Enough appeared in the warrant to apprise the appellant that he was charged with feloniously passing the check, and, having waived a preliminary, examination thereon, the county attorney was authorized to charge the crime more fully in the information. (The State v. Shaw, 72 Kan. 81.)
It is contended that the county attorney in filing the first information, charging only the forging of the name, elected to try the appellant for that specific offense, and that he could not afterward be properly charged, tried or convicted for any other; and this is also one of the grounds urged for quashing the second count. It was proper to charge the two offenses in separate counts, and there was no occasion for an election. (The State v. Zimmerman, 47 Kan. 242.) The warrant was a sufficient basis for both counts. The fact that' other and insufficient informations had been filed in an effort to present proper charges could not. preclude the county attorney from presenting a good and sufficient information. The imperfect informations having been quashed, the county attorney had a right, to file ,a good one authorized by the warrant and the appellant’s waiver of a preliminary examination thereon.
The information charged that the Phillips County Bank was the county depositary, but the journal of the-county commissioners showed that the Phillips burg County Bank had been designated as such depositary. The appellant insists that this was a fatal variance. There was evidence, however, that the county funds were in fact deposited in the Phillips County Bank; that it had on deposit $18,000 of money belonging to the-county on the day this cheek was presented; that the appellant recognized that bank as the county depositary by depositing county funds therein and drawing checks thereon as such county treasurer against such deposit, in the usual course of business. This was evidence that, the bank was in fact such depositary, and there was no evidence to the contrary. The appellant admitted that., he received the proceeds of this check from that bank.. He can not in this action successfully question the regularity of its appointment as depositary.
The other specifications of error relate to testimony and the instructions of the court. The instrument alleged to have been, forged was an ordinary bank check, drawn by the appellant in his capacity as county treasurer upon the Phillips County Bank, and' purported to be countersigned by L. T. Martin, county clerk. The county clerk testified that he did not sign his name to this instrument. The appellant testified that he did. Several witnesses having the proper qualifications were called to examine this disputed signature and to make comparisons with the signature of the county clerk upon other instruments, admitted to be genuine, and give their opinions thereon to the jury. While so testifying these witnesses were asked to point out wherein’ the disputed signature differed from’the genuine, and to show the jury such differences. In doing this the check in question was passed from one juror to another and examined by them while these witnesses testified. It does not appear that it was formally introduced in evidence, although it was marked “Exhibit B,” and by that designation was referred to in the examination of witnesses by counsel for both parties. A witness for the appellant was asked concerning a conversation with the county clerk about a difference claimed by that officer between his genuine signature and the one upon the check. The following appears in the examination of this witness:
“Ques. What did he say about any other difference? Ans. He did not say anything, only it turned up more— the latter part turned up more.
“Q. Take that to the jury and show them — just show them what he said was the only difference. [Witness complies.] A. He said that the difference in this was that he turned this point [indicating] of the ‘M’ up more. [Passing to another juror.] He said that the difference in this that he turned this part up more, the latter part of the ‘M.’
“The court: The capital ‘M’? A. Yes,° sir. [Pass ing to another juror.] He said he turned this latter point of the ‘M’ up more than this is; [passing to another juror,] that he turned the latter part of the ‘M’ up more than that.
“Mr. Colby: That he turned the latter part of the ‘M’ up more than that? A. Yes, sir; that he turned the latter part of the ‘M’ up more than that; [passing to another juror,] the latter part, he said he turned that up more than this is turned up.”
The court in instructing the jury commented upon this evidence as though the check had been formally introduced, and informed the jury that they might take into consideration, in connection with these opinions, the knowledge of the witnesses, the testimony of Mr. Martin and of the appellant relating thereto, and their own examination of the signature — thus treating the check as in evidence'. The contention of the appellant is that all this testimony based upon these comparisons was erroneously admitted and should have been withdrawn from the jury, and that the instructions referring thereto were improper, for the reason that the check was not in evidence. We can not assent to this. The check was before the jury in the hands of the various witnesses, and in the hands of some of the jurymen, at least, and was subject to their inspection. The court considered it as in evidence, and'the failure to introduce it more formally was the merest oversight. The appellant’s rights could not have been affected in the slightest. degree by the omission. His own counsel cross-examined the witnesses of the state in precisely the same manner that he would have done had the check been offered more formally to the jury and a note thereof made in the record. It was before the court and jury for all the purposes of the trial, and this objection can not now prevail. The court is required on this appeal to “give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Crim. Code, § 293.)
A motion for a new trial was presented based upon the statutory grounds, and upon the further ground that the jury were misled by the statements of, the county attorney. Upon the hearing of this motion the affidavit of two jurymen was read who testified that the county attorney in his closing argument had stated that the evidence showed that the appellant had changed the name of the payee in the check from the “New England National Bank” to “C.-W. Bowman,” that this act constituted the crime of forgery, and that after so changing the.check he had received $4000 thereon, which made him guilty of passing it; that the jury had voted unanimously that the appellant was not guilty of signing the name of L. T. Martin, but was guilty of changing the. name of the payee .and passing the check ás thus changed; that as the second count covered the charge of passing the check the jury found him guilty under that count; that the affiants believed from the evidence that the name of L. T. Martin had not been forged, and were of tlfe same opinion now. The county attorney filed his affidavit wherein he testified that in his closing argument he made the remark that the alteration of the check was a crime, but that he did not tell the jury that the appellant could be convicted of passing the forged check because of such alteration; that no objection to his remark .was made by the appellant or his counsel, nor was the court’s attention in any way challenged by counsel for appellant to such remark. The court in denying the motion said:
“In the argument the county attorney said in substance that the evidence showed that defendant had first written the check or order payable to the New England National Bank, and 'afterward changed it to make it payable to himself, and that this constituted a crime and was forgery. He. did not say this made him guilty of forging the instrument as charged, being the forging the name of Martin to the check. The remark was not objected to, but was called to the court’s attention for the first time when presenting the motion for a new trial.”
The state objected to the affidavit of the jurors and the court ruled that part of the affidavit was incompetent and excluded it. The substance of the part excluded was stated by the court as follows:
“That the jurors did not find defendant guilty of forging the name of Martin to the check, and did not find him guilty of passing the check so forged, and that they understood they could find him guilty of passing a forged instrument if he changed the name of the payee in the check, and that they believed the court’s instructions permitted them to do so.”
The court committed no error in rejecting this part of the affidavit. “Affidavits of jurors will not be read to impeach their verdict on any ground essentially.necessary to consider in making up the verdict.” (The State v. Horne, 9 Kan. 119, syllabus. See, also, The State v. Furbeck, 29 Kan. 532.)
The affidavit of the jurymen referring to the statement of the county attorney and the affidavit of that officer presented a question of fact for the trial court— one which could be determined not only from the testimony thus offered but from judicial knowledge gained in presiding at the trial. This court can not disturb that finding.
We have carefully examined the abstracts and the proceedings presented for review, alleged by the appellant to be erroneous, and find no error affecting his substantial rights. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
To recover the damages sustained by the loss of parts of two consignments of tobacco delivered to the Missouri Pacific Railway Company for shipment to two agents of his in Independence, Kan., Henry Baden brought this action against the railway company. When the tobacco was delivered to the defendant there were issued dray tickets, or receipts, in connection with bills of lading. These receipts were substantially alike, and the following constitutes the material parts of one of them:
“No. E. 66732. ST. LOUIS, Mo., 5-22-1903.
Duplicate.
RECEIVED, IN GOOD ORDER, FROM Liggett & Myers-Drummond Branch, Continental Tobacco Co.
By Mo. P. c/o....... .A. T. & S. F. at K. C. Mo
Consigned to.............J. N. Adams......
At............ Independence .............
Via......................Kans..........
Care of..................................
Subject to conditions of company’s bill of lading.
[Then follows the statement of the articles shipped, with the weight and rate charged on each package.]
FREIGHT CHARGES PREPAID.”
Payment was made of the full amount of the freight charges from St. Louis, Mo., to destination at Independence, Kan. The goods were shipped on May 22, 1903, and should have been received at destination within five days from the time of shipment. 'A part of each consignment was delivered at destination in the following August, but the greater part of the goods so shipped never reached the consignee, and this action was brought to recover $451.95, the value of the goods lost or destroyed.
The defendant denied generally its liability, and alleged a delivery of the goods to its connecting carrier, the Atchsion, Topeka & Santa Fe Railway Company, at Kansas City; and the further claim was made that if the goods were damaged or destroyed the damage •or failure to deliver was caused by the act of God, at Kansas City, Mo. ■ There was a contention, too, that under the bill of lading issued by the defendant the remedy for any loss or damage should be against the particular carrier in whose custody the goods were at the time of the loss, and that the defendant assumed no other responsibility for the safety of the goods or their safe carriage than might be incurred on its own line.
On the trial the j ury found for the plaintiff, award1ing him the amount of his claim, and the defendant now insists that the evidence in the case did not justify that result. After producing the receipt and bills, for the purpose of showing through shipments of the tobacco from St. Louis, Mo., to Independence, Kan., and testimony that plaintiff paid to the defendant the full freight charges for the through carriage of the goods, there was introduced in evidence a statute of Missouri which reads as follows:
“Whenever any property is received by a common carrier to be transferred from one place- to another, within or without this state, or when a railroad or other transportation company issues receipts or bills of lading in this state, the common carrier, railroad or transportation company issuing such bill of lading shall be liable for any loss, damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may be delivered, or over whose line such property may pass; and the common carrier, railroad or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company, through whose negligence the loss, damage or injury may be sustained.” (Rev. Stat. Mo., 1889, § 944.)
Several decisions of the supreme court of Missouri interpreting this statutory provision were received in evidence, including McCann v. Eddy, 133 Mo. 59, Dimmitt v. The Kansas City, St. J. & C. B. Ry. Co., 103 Mo. 433, and Western Sash & Door Co. v. C. R. I. & P. Ry. Co., 177 Mo. 641. The testimony shows that the defendant contracted to carry the tobacco from St. Louis, Mo., to destination at Independence, Kan., and under the statute it made itself liable for the negligence of connecting carriers as well as its own.
It is contended by the defendant that the loss was not on its line, and that by a provision in the bill of lading issued in connection with the receipt already mentioned its liability was restricted to such loss or damage as occurred on its own line. The provision referred to is as follows:
“And it is further specially understood that for all loss or damage occurring in the transit of said property the legal remedy shall be against the particular carrier only in whose custody the said property may actually be at the time of the happening thereof, it being understood that the Missouri Pacific Railway Company, leased, operated and independent lines, in receiving the said property to be forwarded as aforesaid, assumes no other responsibility for its safety or safe carriage than may be incurred on its own road.”
The defendant could not abrogate the statute by the insertion of such a provision in the bill of lading. Under the statute if the defendant had only contracted to carry the tobacco to the 'end of its own line its liability would have ended there, but having made a contract for a shipment to destination it must respond for the negligence of the connecting carrier. That the defendant could not relieve itself from liability by the provision relied on is well shown by the decisions of the supreme court of Missouri as to the meaning and effect of the statute. In McCann v. Eddy, 133 Mo. 59, the same question was fully considered. It was said:
“We can not, therefore, give such an interpretation to the statute as would permit a carrier to contract for a through shipment and at the same time exempt himself from liability on account of the negligence of connecting carriers. Such an interpretation would in effect operate as a repeal of the vital provisions of the law which declares a conclusive liability in such case. The statute does not undertake to change the law in respect to liability of a carrier for his own negligence, but to extend it to connecting carriers as well and declare a liability for negligence without regard to which was in fault.
“Under these views of the law no difficulty is found in giving construction to the contract. The agreement to carry from Stoutsville to Chicago is absolute and unconditional. The thirteenth condition or covenant can only be regarded as an attempt, on the part of defendant, to relieve itself from the responsibility of answering for the negligence of the carrier by which it undertook to complete the contract. The statute forbids such a qualification of the contract.” (Page 69.)
That case was taken to the supreme court of the United States, where the validity and force of the statute was examined, and that court held that the statute as interpreted by the supreme court of Missouri is not repugnant to the constitution of the United States. (Missouri, Kansas & Texas Railway v. McCann, 174 U. S. 580.)
In Marshall & Michel Grain Co. v. K. C., F. S. & M. Ry. Co., 176 Mo. 480, a railway company issued a bill of lading for a shipment of goods beyond its own line and to a point in another state, and received therefor the entire freight charge. In the bill of lading was the stipulation that the responsibility of the railway company should not extend beyond its own line, and the ■ court said:
“In that case it is held that in a case where property is received by a carrier for transportation from one place to another, such carrier may be held liable for the negligence of any other carrier to which such property may be delivered, unless it limits its duty and obligation to transportation over its own route, which it may lawfully do, but that such carrier can not contract for a through shipment, as in the case at bar, to a point beyond its line, and at the same time exempt itself from liability for the negligence of the connecting •■carrier which completes the transportation.” (Page 490.)
In another Missouri case the prior decisions as to the ■effect of the statute were summed up in this way:
“A carrier receiving freight destined beyond its own line may stipulate that it will not be liable for negligence of the connecting carrier if its contract of carriage is limited to the end of its own route, but if the receiving carrier’s contract is to transport the freight to point of destination it can not so limit its liability, and must answer for the negligence of the connecting ■carrier. These cases further hold that the receiving carrier in receiving freight and issuing a bill of lading therefor to a point beyond its own line prima facie agrees to carry to such point, and to prevent such a construction of the contract it will be necessary that it stipulate that it is-only to carry to the end of its own line.” (Bank v. C. G. W. R’y Co., 72 Mo. App. 82, 88.)
In a later case, involving a through shipment beyond the line of the receiving carrier, the supreme court of Missouri reviewed the former decisions and held the initial carrier liable for the negligence of the connecting carrier. Among other things it was said:
“It follows that while the statute does not 'in terms, it does in effect, render unavailing, when the goods are ■once received by the railroad company for through shipment, any exception to the liability fixed by the stat ute for non-liability for loss over the connecting line. Upon the goods being presented for shipment is the time that the burden is cast upon the transportation company to determine what risks it will assume. If the goods are received for through transportation be.yond its line, the statute fixes its liability. If the goods are received and the contract for transportation ends with the line of the company, the contract will control. But the clear purpose of the statute under discussion, and that is the effect of it as interpreted by the court, is to render inoperative exceptions as to non-liability as to goods received for through carriage. In other words, railroad companies can not have a joint trafile arrangement and say to the shipper, ‘Yes, we will receive your property and ship it to the point of destination beyond our lines, but will only be responsible for loss occurring on our own line.’ This statute does not deprive the parties of any legal right to make a contract, but simply indicates the form of the contract, ■after it is made.” (Western Sash & Door Co. v. C. R. I. & P. Ry. Co., 177 Mo. 641, 657.)
It is argued that the Missouri court in Dimmitt v. The Kansas City, St. J. & C. B. Ry. Co., 103 Mo. 433, 440, held that a provision similar to the exception in this case should be treated as an agreement to carry the goods only to the end of its own line. Some of the language in the opinion in that case affords some reason for this argument, but the supreme court .afterward declared the statement was dictum and expressly repudiated the view, holding that when a contract for a through shipment was made the company could not exempt itself from liability for the negligence of the connecting carrier. (McCann v. Eddy, 133 Mo. 59, 68; Western Sash & Door Co. v. C., R. I. & P. Ry. Co., 177 Mo. 641, 655.)
The proof in this case was to the effect that there was a through shipment by which the defendant undertook to carry the tobacco to destination. The jury, under instructions of the court, in effect found that there was a through contract under which the tobacco Was received for shipment. The tobacco was not transported and delivered within a reasonable time after it was received for shipment, and the greater part of it has never been delivered. The plaintiff therefore made a prima facie case under the rule of the cases cited, and the defendant became liable for the loss whether it occurred by reason of its negligence or that of the connecting carrier. As stated in Western Sash & Door Co. v. C., R. I. & P. Ry. Co., 177 Mo. 641, “if the goods are received for through carriage, the shipper looks alone to the railroad company issuing the receipt, and the receiving company must seek its remedy for loss against the connecting carrier.” (Page 654.)
It is further contended that there is no liability on the theory that the goods were destroyed by the act of God in the flood at Kansas City. Upon this issue the burden of proof rested upon the defendant. That flood occurred on May 30, 1903, whereas the goods were received for shipment at St. Louis on May 22, 1903. According to the testimony a reasonable time for shipment of the goods from St. Louis, Mo., to Independence, Kan., was from three to five days, and the flood did not occur until eight days after the- goods were received by the defendant. It is stated that prior to May 30, 1903, there was a general congestion in the yards in Kansas City, due in part to the heavy business, and also to the bad condition of the tracks. Although there is some testimony as to the general condition at Kansas City about the time of the flood, there is no proof showing that the car containing the 'tobacco was in the flood or affected by it, and there is the other circumstance that, portions of both shipments of tobacco were received in good order some time in the following August. Some interrogatories were submitted as to where the goods were when they were lost, and the jury answered that, there was no evidence to show where the goods were lost nor in what manner they were lost or destroyed. In. view of the testimony it can not be said that a mistake was made by the jury in failing to find that the tobacco was destroyed in the flood.
Complaint is made of the instructions, but an examination of them shows that the court closely followed the doctrine laid down in the cases cited herein. No reversible error is found in any of the rulings in charging the jury.
The judgment of the district court is affirmed. | [
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Per Curiam:
This is an action to enjoin the collection of a tax for the support of the Gove county high school. The court sustained a demurrer to the petition on the ground that the facts stated were not sufficient to constitute a cause of action. The only averment of any reason for restraining the collection of the tax or to show its illegality is that “there was and is no high school in said county of Gove which has been established or created according to law.” This is equivalent to saying that the high school establishment was illegal, and is a pure conclusion of law. The statement was insufficient when directly challenged by a demurrer.
The judgment is affirmed. | [
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Per Curiam:
A temporary injunction was obtained against the officers of the city of Grainfield to enjoin them from contracting debts, issuing scrip and paying outstanding scrip. There were involved twenty-eight claims against the city upon which warrants had been issued. Some of them were challenged because the claims were not verified and presented in proper form, the ordinances appropriating money to pay the scrip had not been passed and funds had not been set apart for their payment, and the warrants had been issued for claims that were illegal. The trial court examined the claims and warrants in detail. One of them was perpetually enjoined because no fund for its payment had been provided. The temporary injunction was dissolved as to three of the claims, and the remaining twenty-four were found to be just claims against the city, but because they had not been properly presented the injunction was continued in force against them, the court holding that these claims might be paid in case they were afterward properly verified and presented, and regularly allowed. The claims and the questions arising on them appear to have been carefully examined and the rights of the public as well as' the claimants justly determined. It is an injunction proceeding, in which equitable considerations outweigh mere technical objections. In the state in which we find the evidence it can not be said that a wrong result was reached.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an original proceeding for a writ-, of habeas corpus, prosecuted by John F. Hanson, who is confined in the jail Of McPherson county upon a com mitment issued by the probate court of that county for contempt. It appears that the petitioner was present in the probate court, where a trial was in progress between an administrator of an unsettled estate and persons holding claims against the estate which the administrator was contesting. The petitioner, who is an attorney, had been the adviser of the administrator of the estate, and had books and papers in his possession deemed to be important as evidence in the controversy before the court. In the course of the trial he was called as a witness, and after being duly affirmed was asked if he had any books or papers pertaining to the estate in his possession. He refused to answer. The court then adjudged him guilty of contempt and assessed a fine against him of $25, and ordered it to be paid at once, which the petitioner refused tó do. The court then committed him to the custody of the sheriff until such fine should be paid and the answer made to the question propounded. The witness still refuses to answer the question or pay the fine. .
The petitioner’s claim for relief is based entirely upon the theory that the power of the court to punish for contempt is given by the statute, and that such power is exclusive. He further contends that the statute does not authorize commitment for non-payment of a fine assessed for contempt.
The brief is devoted to a discussion of the statute relating to contempts, and it is contended that the ac-. tion of the probate court was not within such statute. In the view we have taken much of this discussion is immaterial, as we do not concur in the assumption that a probate court is without power to punish for contempt except as conferred by the statute. The probate court in this state is created and its jurisdiction fixed by section 8 of article 3 of the constitution, which reads:
“There shall be a probate court in each county, which shall be a court of record, and have such probate juris •diction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law.”
It will be seen from this that a probate court in this state is a court of record and has jurisdiction of the estates of deceased persons. In the case of Howbert v. Heyle, 47 Kan. 58, this court said:
“It must be remembered that the probate court in this state is a court of record (Const., art. 3, § 8; Act relating to Probate Courts, § 1) ; and while it has jurisdiction only of particular classes of things, such as the care of thé estates of deceased persons, minors, and persons of unsound mind, yet it has general jurisdiction of these things.” (Page 65.)
This was repeated in the case of Higgins v. Reed, 48 Kan. 272, 280. In volume 9 of the Cyclopedia of Law and Procedure, at page 26, it is said:
“Independent of authority granted by statute, courts of record of superior jurisdiction, whether civil or criminal, possess inherent power to punish for contempt of court. Such power is essential to the due administration of justice, and the legislature can not take it away or abridge it, although it may regulate its use. Statutes conferring the power are simply declaratory •of the common law.”
In volume 7 of the American and English Encyclopaedia of Law, at page 33, it is said:
“When, however, the court is a creature of the constitution, the better opinion seems to be that it can not, by legislative enactment, be shorn of its inherent right to punish for contempts; nor can the legislature abridge that right, although it may regulate its exercise. The constitution may confer on the legislature the power to abridge the right of courts created by the constitution to punish for contempts, but in only a very few states -of the Union has that been done.”
In the case of In re Millington, Petitioner, &c., 24 Kan. 214, this court said:
“Courts of record have an inherent power to punish for disorderly conduct in the court-room, resistance of their process, or any other interference with their proceedings which amounts to actual contempt.” (Syllabus.)
(See, also, The State v. Thomas, 74 Kan. 360, 365.)
The syllabus to the case of State, ex rel. Phelps and Baker, v. Judge, 45 La. Ann. 1250, in 40 Am. St. Rep. 282, reads:
“The power to punish for contempts, actual or constructive, is inherent in all courts of record, and is essential to the preservation of order in all judicial proceedings.”
In the case of In re Shortridge, 99 Cal. 526, the court said:
“No authority has been found which denies* the inherent right of a court, in the absence of a limitation placed upon it by the power which created it, to punish as a contempt an act — whether committed in or out of its presence — which tends to impede, embarrass or obstruct the court in the discharge of its duties. It is a doctrine which is admitted in all its rigor by American courts everywhere, and does not need the support of foreign authorities based upon the fiction that the majesty of the king, represented in the persons of the judges, is always present in the court. It is founded upon the principle — which is coeval with the existence of the courts, and as necessary as the right of self-protection — -that it is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence. It exists independent of the statute.” (Page 532.)
The case of Hale v. The State, 55 Ohio St. 210, is a leading one upon this subject. In that case the court decided:
“The general assembly is without authority to abridge the power of a-court created by the constitution to punish contempts summarily, such power being inherent and necessary to the exercise of judicial functions; and sections 6906, 6907, Revised Statutes, will not be so construed as to impute to the general assembly an intention to abridge such power.” (Syllabus.)
In the opinion it Was said:
“In the case before us, a court, created by the con stitution, punished summarily, as for a contempt, one guilty of a wrongful act which interfered with the exercise of its jurisdiction. Upon a careful examination of the reported cases we find but one which seems to deny its power to do so.” (Page 215.)
In 36 L. R. A. 254 exhaustive notes are appended to the Hale case, containing the citations of many authorities additional to those cited in the opinion.
* It may be safely assumed that these cases indicate a general concurrence of courts in the proposition that every court created by the constitution which is not limited by that instrument in this respect possesses inherently full power to enforce its orders, protect its dignity and preserve good order, and to that end may administer punishment for contempt; and this power exists independently of any statute. As probate courts are created in this state by the constitution, they fall within the foregoing category.
The petitioner attacks the whole proceeding as void because not in accordance with sections 330, 331 and 332 of the code of civil procedure. If these sections were intended to apply to courts of record, they are not controlling. The court, independent of this statute, had full power to make the orders of which complaint is made. If courts were limited in their power to enforce proper orders, as urged here, contumacious witnesses could effectually impede and embarrass them to such an extent as practically to prevent the administration of justice.
The petitioner was in the wrong. He should have answered the question, and if the evidence desired was in his possession, and material, he should have voluntarily produced it. Members of the bar are not expected to embarrass courts, but rather to aid them in the discharge of their difficult duties. If an attorney, in his zeal for a client or in the excitement of the occasion, should overstep professional propriety or violate his duty as a witness in open court he should retrace the steps so taken at the earliest opportunity.
We are unable to grant the relief prayed.for. The petitioner is remanded to the sheriff in whose custody he was when this proceeding was commenced, and the costs of this proceeding are taxed to the petitioner. | [
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The opinion of the court was delivered by
Mason, J.:
E. T. Lieurance recovered a judgment against the St. Louis & San Francisco Railroad Company on account of injury to live.stock in shipment, and the defendant prosecutes error.
Complaint is made of the refusal of the court to strike matter from the reply on the ground that it constituted a departure from the cause of action set out in the petition. Whether the ruling was erroneous is not material, for no issue raised in the portion of the reply objected to was submitted to the jury. Any prejudice the defendant may have suffered through their having read the pleading is not substantial enough to warrant a reversal.
Another unavailing- complaint is made of the admission of testimony concerning the statements and conduct of one who assumed to act in behalf of the defendant, upon the ground that there was no evidence that he was authorized to bind the company.- The witness had already testified without objection that the person in question was the claim agent of the company, and the acts attributed to him were such as would, presumptively at least, fall within the scope of the employment of an officer so designated.
The stock was delivered to the railroad company at Fort Scott, to be transported over its line to Memphis and there delivered to a connecting carrier for transportation to Harriman, Tenn. The injury was occasioned by a wreck before Memphis was reached. The animals were unloaded at Memphis, where their destination was changed to Lenoir City. For the purpose of establishing the extent of his damage the plaintiff was permitted to testify to what their value was at Memphis in the condition in which they arrived there, and what it would have been if they had not been injured. The company contends that the evidence on this point should have been confined to their value at Harriman. Ordinarily, in an action against a carrier for injury to goods in transit the measure of damages is the difference between their market value at the point of destination in the condition in which they are actually delivered and what they would have been worth there but for the injury. (6 Cyc. 580.) The defendant, however, was not prejudiced by the rule adopted in this case. A part of its obligation was to transport the animals in good condition to Memphis. In electing to change their ultimate destination at that point the plaintiff in effect accepted a delivery there. His right of action was then complete if he saw fit so to regard it. And the measure of his recovery on that theory — the amount of loss he had actually suffered— was manifestly the difference between what his prop erty was worth on the market where they then were and what its value would have been there but for the • accident.
The defendant contends that error was committed1 in allowing the plaintiff to testify to market values at 'Memphis, his cross-examination showing that he had not himself bought or sold there. The objection, however, goes rather to the weight than to the admissibility ■of his testimony.
The last contention of the defendant which is thought to require separate statement is that the plaintiff ought not to recover because he had failed to comply with a provision of a contract under which his shipment was made requiring him to give a written notice of any claim for damages for injury to his stock within one ■day after its delivery and before it should, be removed or mingled with other stock. The plaintiff, however, testified that before the expiration of the time for the giving of this notice the company’s claim agent, having been informed by him of the injury to the stock, examined it at his request and gave advice as to its •disposition. The testimony justified the court in submitting to the jury the question whether the giving of a notice in writing had become unnecessary, under the rule thus announced in Railway Co. v. Wright, 78 Kan. 94:
“Where a car-load of cattle, which were being transported to market, was in a railroad wreck and suffered 'injury, and the representatives of the railway company 'in charge of the live-stock business at the place of delivery were present and inspected the injured cattle when they arrived' and then directed what disposition should be made of them, the purpose of the stipulated notice was fully accomplished and no further notice was essential to a recovery.” (Syllabus.)
So far as Railway Co. v. Kirkham, 63 Kan. 255, is ‘in conflict with this doctrine, it has necessarily been ¡superseded by Railway Co. v. Frogley, 75 Kan. 440.
The.judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
'This was an action to foreclose certain mortgages on a tract of land in Harvey county. One of the defendants, O. H. Rhodenbaugh, a citizen of Colorado, was served with summons by publication. The court decreed foreclosure and this was followed by sale and confirmation. Rhodenbaugh filed a motion to set aside the judgment and that he should be permitted to defend against the answer and cross-petition of his codefendant, C. C. Epp. He, also moved that the six months’ redemption period should be extended to eighteen months on the ground that he was in possession of the premises.
Affidavits pro and eon were offered on these motions and the trial court found certain facts:
“That the defendant, O. H. Rhodenbaugh, during the pendency of this action had actual notice thereof in time to appear in court and make his defense.
“That the finding and judgment made by the court at the time of the rendition of the judgment and in the order of confirmation of sale were made upon the evidence of the attorney for the plaintiff and not under oath.
“That upon the evidence submitted at this time, the judge finds that at the time of the sale of the real estate by the sheriff of Harvey County, Kansas, and at the time of the confirmation of the sale, the lands and tenements described and involved in the action had been abandoned and' were not occupied in good faith by the defendant, O. H. Rhodenbaugh.”
Certain conclusions of law were made:
“1st: That the admission of evidence upon the question of abandonment of the lands and tenements not under oath was error but did not render the finding of the court void.
“2nd: The evidence upon the present hearing sustaining the original finding, the finding will stand as made.
“It is hereby considered, ordered and adjudged that the two motions of the defendant, O. H. Rhodenbaugh, herein, to wit, his motion to vacate the judgment and grant a new trial herein and his motion to amend and modify the order of confirmation of sale, be and they hereby are. overruled.”
Error is assigned on the rulings of the court on these motions.
Counsel for appellant insist that he was entitled as a matter of right to have 'the judgment against him vacated under section 596 of the civil code, and that the trial court “evidently assumed that we were proceeding under section 77 of the old code or 83 of the new code, instead of the section [first] .above quoted.”
Section 596 of the code is a grant of power to the trial court to vacate or modify its judgments and orders. Before a litigant can invoke the exercise of the powers of the courts therein granted he must bring himself within the provisions of the code which cover his situation. Clearly these provisions are such as are prescribed in section 83 of the code, and the important condition in appellant’s situation is that he must “make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense.” The appellant did not establish this matter to the court’s satisfaction. On the contrary, by sufficient evidence, the trial court’s finding is that he did have actual notice. We see no way to disturb that finding, and it follows that there was no error in overruling his motion to vacate the judgment.
Touching the denial of appellant’s motion to extend the redemption period from six to eighteen months, the statute provides:
“But where the court or judge shall find that the lands and tenements have been abandoned, or are not occupied in good faith, the period of redemption for defendant owner shall be six months from the date of sale,”, etc. (Civ. Code, §476.)'
In the first instance, the court’s finding that the property was abandoned was based upon the unsworn statements of plaintiff’s attorney. The trial court conceded that this was error. It was hardly that. At most it was but an irregularity. In a certain sense a lawyer is always on oath that he “will neither do nor consent to the doing of any falsehood in court.” The weight of authority is that the omission to swear a witness must be objected to at the trial. (The State v. Hope, 100 Mo. 347; City of O’Neill v. Clark, 57 Neb. 760, 764; Moore v. State, 96 Tenn. 209; Goldsmith v. The State, 32 Tex. Cr. App. 112.) If the omission is noted in time the witness may then be sworn and corroborate his previously unsworn testimony. (Southern Railway Company v. Ellis, 123 Ga. 614.) Here, however, the court took full precaution to avoid the consequences of even technical error by receiving other sworn evidence which established the accuracy of its first finding — that the property was abandoned at the time it decreed six months’ redemption. The matter does not differ in principle from a case where the judgment is founded on a publication service based on an insufficient affidavit. Upon the later presentation of a sufficient affidavit, the judgment already rendered will stand. (Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Long v. Fife, 45 Kan. 271, 25 Pac. 594; Morris v. Robbins, 83 Kan. 335, 111 Pac. 470.)
The great preponderance of the evidence showed the premises to be unoccupied, the farm residence vacant and many of its windows broken and its foundation undermined, the arable land idle and untilled, the windmills dismantled, the barns and outbuildings collapsed or collapsing, and that they had no appearance of being in the possession of any bona fide caretaker. To meet such conditions the legislature wisely limited the redemption period to six months, and the present case was a proper one for the application of the six months’ rule.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
In 1899 Anna Steinborn made a will by which she
gave certain small bequests to some of her children and undertook to devise to Louisa, August and John certain real estate. The will was probated in 1902, the estate was fully administered and final settlement was made in 1904. It appears that literally construed the will covered certain land not owned by the testatrix and omitted about ninety-nine acres which she did own, so if the instrument be sd taken the latter amount of land was left undisposed of by the will and descended to her heirs. In 1905 Louisa, August and John entered into a contract with the other children, David, Charlie and Anna, by the terms of which the latter were to be paid $2195 — $795 to David, $700 to Charlie and $700 to Anna — such payments to be made as soon as the promisors should obtain a clear title to the land, the promisees to pay one-half the cost of getting such clear title, the first parties to have the choice of paying these sums in cash or in bankable notes at six per cent. The amended petition of the plaintiff, David Steinborn, set out the foregoing facts and a copy of the contract and alleged that Louisa, John and August instituted an action in the district court in which the plaintiff and his brother and sister were the defendants, in which they made default and which resulted in quieting the title to the land in the plaintiffs in that action, and that such proceedings did divest the plaintiff of his interest in the land and vest it in the plaintiffs therein, that they had failed to pay his $795 less his portion of the court costs, except $100 paid in the spring of 1914, that ever since the making of such contract the plaintiffs therein have been in possession, claiming ownership of the land, and prayed judgment and a lien for the balance of the $795 with interest.
The suit known as case No. 5031 set up a mistake in the description in the will and asked for its correction in accordance with the intention of the testator, the petition therefor being verified by August Steinborn, and the decree was entered March 14, 1906, in accordance with the prayer of the petition. The abstract states that in the trial of this case all of the papers and proceedings in case No. 5031 were considered by the district court as sufficiently pleaded and were examined and considered on the- demurrer. The court sustained a demurrer to the amended petition and from this ruling the plaintiff appeals.
It seems that at the succeeding term leave was asked to re-docket the case for further orders, which was denied, and an attempt is made to dismiss the appeal on account thereof, but as the appeal seems to have covered all adverse rulings it will not be dismissed.
On the part of the defendants it is urged that the court had no jurisdiction to change the will’after it had been probated and that its attempt to do so and the decree were and are without legal force and effect, and hence their title has not been perfected and the amount promised the plaintiff has never become due or payable. Plaintiff responds that the result of the former suit was in effect to quiet the title to the land against the plaintiff in favor of the defendants who have ever since been in possession claiming ownership, and treating the matter as the quieting of their title, and hence they can not be heard to assert its invalidity or ineffectuality.
Much discussion is had as to the distinction between correcting and changing -a will which need not be considered for the reason that the case turns on another matter.
The court had jurisdiction of case No. 5031 and whether or not it properly changed the will so as to vest the plaintiffs therein with the title' they desired, the decree undertook so to do and has never been appealed from, and the beneficiaries thereof can not be heard now to assert its invalidity as a defense to their obligation to the heirs against whom such decree was taken.
The contract to pay as soon as clear title to the land should be obtained, the alleged recognition of this obligation by the payment of $100 thereon two years before this action was brought, with the defendants’ alleged claim of full title, conceded by the plaintiffs, and their continued possession of the land under such claim, in the absence of anything to the contrary, makes out a case for the plaintiff for the amount unpaid on his claim.
The j udgment sustaining the demurrer to the amended petition is reversed and the cause is remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Mason, J.:
William Schaap brought an action against Perry Hayes to recover damages for an assault and battery alleged to have been committed upon him. The jury returned a verdict for the defendant, but the court set it aside on the ground that it was contrary to the evidence, and he appeals.
The rule is familiar that ordinarily a ruling granting a new trial because of the judge’s view of the effect of the evidence is not appealable. The defendant, however, maintains that this case falls within the rule announced in Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348, that an order granting a new trial because the verdict is against the evidence may be reversed where there' is no substantial dispute as to the material facts, and there was no evidence at all against the findings of the jury. The defendant concedes that “the evidence is somewhat conflicting as to who was the aggressor, and as to what was done,” but insists that there was no basis for a verdict against him, because although there was testimony that the plaintiff was struck in the face, knocked down and kicked, receiving various bruises, there was no evidence whatever “tending to prove the value or extent of any damage” sustained by him, no showing being made of the incurring of expense for medical treatment, or of the amount of suffering occasioned by his injuries. The plaintiff, having introduced evidence tending to show that he had been wrongfully struck by the defendant, the physical effect of the blows being stated, was entitled to have his case go to the jury. It was not necessary that any witness should place a money estimate upon his physical or mental suffering. “It is unnecessary to submit any evidence as to the value of mental and physical pain and suffering and humiliation, and the amount of damages to compensate therefor, since this is a question exclusively for the jury.” (8 R. C. L. 653. See, also, 8 A. & E. Encycl. of L. 659; 1 Sedgwick on Damages, 9th ed., § 171a; 1 Bouvier’s Law Dictionary, 3d ed., p. 751.) A question of fact having rightfully been submitted to the jury, their verdict can not stand without the approval of the trial court.
The order granting a new trial is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This was an action to recover for services, the defendant denying the authority of another employee to make the contract of employment. After listening to all the evidence the jury found in favor of the plaintiff and the trial court approved the verdict. The defendant appeals. Various errors are assigned respecting the admission of evidence and the giving of instructions, but we find no substantial error in these respects.
The chief contention is that the evidence failed to show the alleged authority of the agent to employ the plaintiff and an. examination of the abstract would lead to the conclusion that this contention is well grounded. The counter abstract, however, contains sufficient evidence of the express authority of the agent and of the knowledge and acquiesence of the company to sustain the verdict.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These cases are a continuation of the litigation of. Lynn v. McCue, 94 Kan. 761, 147 Pac. 808, and 96 Kan. 114, 150 Pac. 523. The first case is an appeal from the judgment of the district court resulting from the second trial, which occurred after the case had been remanded for retriaL The second is an application for a peremptory writ of mandamus to compel the trial court to observe the directions in the mandate of this court, the appellant alleging that the trial court had not taken the steps as ordered, and had not conducted • the new trial in accordance with the directions of this court.. In the'original appeal the judgment of the district court was affirmed in part and in part it was reversed, and the case remanded with directions. In the mandate to the district court, which was accompanied by copies of the opinions of this court, it was recited that it had been ordered and adjudged by the supreme court that “the judgment of the district court be affirmed as to the plaintiff; otherwise it is set aside with directions to grant to the trust company the relief asked against McCue, and to award to the receiver (for the benefit of ■the creditors) damages against the trust company in such sum as that company shall be found to have suffered from the conversion referred to.” In the mandate there were further directions as to the apportionment and payment of costs. When the mandate reached the district court it was spread upon the records and an order of sale issued for the sale of the property to satisfy Lynn’s judgment. The sale occurred and was confirmed on September 27, 1915. Afterwards some additional pleadings were filed in the case, and a second trial was had on October 25, 1915, before a jury which returned a general verdict in favor of the receiver with fourteen special findings of fact upon the issues submitted to it. One of the findings was set aside by the court on the motion of the trust company. The motion of the trust company for judgment upon the special findings was denied, the court holding that there were underlying liens against the mortgaged railroad-property prior and superior to the lien of the mortgage securing the bonds of the railroad company in excess of the sum of the verdict recovered by the receiver, and therefore' refused to give the receiver an affirmative judgment against the trust company, and further holding that as the trust company was not in its pleadings asking an affirmative judgment against the receiver it could recover nothing in this action. Some orders were made as to the payment of costs and the cancellation of notes, mortgages and indebtedness. Although a motion for a new trial was made by the trust company and overruled on October 29, 1915, no appeal was taken from the rulings and decree of the court until August, 1916. When the appeal was taken the trust company made the application for the writ of mandamus, asking that the district court be compelled to reconvene and enter a judgment in favor of the company as the supreme court had directed, giving it a lien for $400,000 upon the Haskell county lands as prayed for in the answers which it' had filed in the original case.
The appeal was not taken within the six months prescribed by the statute. (Laws 1913, ch. 241.) No appeal was taken until August 12, 1916, more than two months after the time allowed for an appeal had expired. It is contended that the •trial court disobeyed the mandate of this court as to one branch uf the case; that it had no power to do what was done, and, therefore, its judgment was absolutely void. The limitation on appeal it is argued has no application to a void judgment, a nullity, which is open to attack at any time. A consideration of the first opinion and the one delivered on the rehearing shows that the judgment was .rendered in a complicated, equitable suit. There were quite a number of parties in the case between whom there was a complexity of controversies and the judgment required the balancing of equities and the adjustment of numerous rights. The opinions and mandate directing the future action of the trial court in the case were open to interpretation. That court had the power to interpret the meaning of the judgment and orders of this court, and if the scope of the inquiry was unduly extended and an unwarranted order or judgment rendered the appellant could have moved to set such order or judgment aside, and if this was d,enied the ruling could have been corrected on an appeal taken within the statutory time. While it is the clear duty of the trial court, upon a remand of the case with directions to implicitly follow the directions and give effect to the decision of this court, yet when the directions are not final and specific but are subject to interpretation the action of the court in interpreting them, however erroneous, can not be regarded as absolutely void. Its action was no more than error.
In Weishaar v. Haenky, 75 Kan. 848, 90 Pac. 1134, it was said:
“When the record containing the mandate of this court reversing the judgment of the district court a second time for want of sufficient facts was brought-to its attention by a motion for judgment a judicial question was presented which the court had jurisdiction to decide. It had the same jurisdiction to allow that it had to deny the motion. Even if it decided wrong, that fact did not oust it of jurisdiction.” (p. 848. See also, Manley v. Park, 62 Kan. 553, 562, 64 Pac. 28; Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001; In re Wallace, 75 Kan. 432, 89 Pac. 687.)
In cases of this character the trial court is not without discretion nor is it governed by an inflexible rule. In Conroy v. Perry, 26 Kan. 472, it was said:
“It is true that the mandate issued from this court directed a judgment upon the findings in favor of defendant, but we have heretofore held that such mandate does not compel a mere technical, blind and literal following thereof. It means simply that upon the facts as thus stated, such a judgment ought to be entered, leaving full discretion to the district court to act upon any new facts presented, and to act thereon as justice and equity may require.” (p. 473.)
In Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119, the same view was taken, where it was said:
“Where the direction in a mandate of the reviewing court is specific and final ordinarily the trial court must carry it into effect. However, a blind; technical ’and literal compliance with the mandate, without regard to new facts or to justice and equity, is not required.” (p. 592. See, also, Kansas Pacific Rly. Co. v. Amrine, Treasurer, &c., 10 Kan. 318; Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150, 1 Pac. 69; McDonald v. Swisher, 60 Kan. 610, 57 Pac. 507.)
When the mandate was spread on the record and the question of carrying out the orders and judgment of this court was presented to the trial court it acquired jurisdiction of the case with full power to determine the meaning and scope of the decision given on the appeal and to try the remaining issues in accordance with the rules laid down in the opinions of this court and the directions given in its mandate. An interpretation was placed on the rules and directions of this court which, as we have seen, were open to interpretation. The case was tried through to the end by the parties as cases are ordinarily tried and if the rules were not properly applied and the directions given were not followed in the subsequent proceedings the errors of the court might have been corrected upon an appeal. The errors, however, are not available after the time for appeal has expired and the extraordinary remedy of mandamus can not be employed for the correction of such errors.
The appeal taken out of time will be dismissed and the application for the peremptory writ of mandamus will be denied.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff obtained an injunction against the defendants under the intoxicating liquor law of this state and the defendants appeal.
1. The title to the action, as set out in the petition, is: “The State of Kansas, Plaintiff, vs. A. A. Glass and C. A. Glass, Defendants.” The opening statements of the petition are:
“Now comes the plaintiff herein the State of Kansas, by W. P. Montgomery, Assistant Attorney General of Labette County, Kansas, and for cause of action against the said defendants, and each of them, alleges:”
The petition is signed “W. P. Montgomery, Attorney for Plaintiff,” and is verified on information and belief. The defendants contend that the petition is insufficient because the action is not prosecuted on the relation of W. P. Montgomery and because the petition is not signed by W. P. Montgomery as assistant attorney-general. In Pottenger v. The State, ex rel., 54 Kan. 312, 38 Pac. 278, an action to enjoin the maintenance of a liquor nuisance, this court, in speaking of the necessity for adding the name of a relator, said:
“We think there is no necessity for adding the name of any person as relator.” (p. 312.)
The petition is signed by W. P. Montgomery. It shows his official capacity and follows the language generally used in petitions in such actions in this state. This is all that is necessary. The defendants’ objection is not well founded.
2. The defendants objected to the introduction of evidence under the petition on the ground that it did not state facts sufficient to constitute a cause of action. The petition alleged, in substance, that at the place named, a nuisance, the character of which was described, was maintained with the knowledge, permission and consent of the defendants who owned the property. The petition alleged all that was necessary.
3. The defendants insist that the evidence was not sufficient to warrant the court in rendering judgment against them. The evidence established that the defendants were the owners of the premises in question; that the building situated thereon was divided into several rooms; that each of the defendants occupied a room in the building as a place of business; that intoxicating liquors were sold and drunk on the premises; that intoxicated persons congregated and stayed there; that raids on the place were made by the police department of the city of Parsons; that the building was known as “West Point,” and that “West Point” had the general reputation of being a place where intoxicating liquors were sold, drunk and given away in violation of law. Each of the defendants testified that he knew nothing of the sale of any intoxicating liquor on the premises. The trial court found otherwise, and that finding was justified by the evidence. The objection that the evidence was not sufficient to warrant judgment against the defendants is without foundation.
4. The court found as follows:
“Twentieth: From the circumstances shown by the evidence, and the findings as detailed in the preceding nineteen special findings, the court finds that defendants and each of them had knowledge and notice of the unlawful sale of intoxicating liquors on the premises, of the drinking of the same on the premises as a beverage, and that persons congregated there for all of said purposes.”
The defendants contend that this finding was contrary to the evidence. The finding was not only supported, but was amply justified by the evidence set out in the defendant’s abstract.
5. The defendants insist that the testimony did not prove that a nuisance had been kept or maintained by them. It was not necessary to prove that they had kept or maintained the nuisance. It was sufficient if the evidence proved that the nuisance had been kept and maintained with the knowledge, permission or consent of the defendants.
6. The petition, as originally filed, asked for one hundred dollars attorney’s fee. On the trial the court permitted an amendment so as to make the petition ask for an attorney’s fee of two hundred dollars. The defendants complain of this. The granting of such permission was within the sound discretion of the trial court.
7. Complaint is made that two hundred dollars attorney’s fee was allowed without proof of the value of the services rendered. This was not error. The services were rendered largely in the presence of the court. In The State v. Porter, 76 Kan. 411, 91 Pac. 1073, this court said:
“In many lawsuits the more burdensome part of the lawyer’s duties are discharged out of court and beyond the observation of the judge, and in such cases evidence would be required thereof in court. In this case it is evident that his own senses and observation were the best witnesses possible to the judge, and this court is able to say from the record that under the circumstances the sum allowed as fees was not unreasonable for the services rendered.” (p. 415.)
8. The judgment enjoins the defendants and each of them, and their agents, servants, employees, successors and assigns, and each of them, and all other persons, from keeping, maintaining or operating, or permitting to be kept, maintained or operated, in or upon the premises described, or in the buildings situated thereon and appurtenant thereto, a place where intoxicating liquors are kept for sale, barter or delivery in violation of law; and from selling, bartering or giving away, or permitting to be sold, bartered or given away, intoxicating liquors on said premises in violation of law; and enjoins all persons from entering into or Congregating upon the premises for the purpose of drinking intoxicating liquors as a beverage, or from in any manner assisting in placing intoxicating liquors on said premises to be used in violation of law. The defendants contend that this judgment is too broad in its scope, and that it subjects the defendants to burdens unwarranted by the facts. There is no burden imposed on the defendants or either of them, except that of not using their premises in violation of law nor permitting them to be so used by others. When it is shown that a place is a common nuisance, under the liquor law of this state, and an injunction is granted to abate that nui sanee, the judgment should be broad enough to preclude every possibility of the continuation or reopening of the nuisance by the persons enjoined, or by any one acting for, by, through or under them, or either of them, or with their permission.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This was a replevin action by the plaintiff bank to recover possession of a drilling machine used for drilling oil and gas wells. The petition set forth the special ownership of the bank based upon two chattel mortgages executed by Ben Hight, the owner of the machine, who was made a defendant. The mortgages recited that they were taken subject to a prior chattel mortgage of $600 held by defendants Baker and Tilden, the petition alleging that the prior mortgage had been fully paid, and that whatever rights Baker and Tilden claimed in the property were subject and-inferior to‘the rights of plaintiff. Baker and Tilden answered by a general denial. Defendant Ben Hight filed an answer and cross-petition, in which he admitted the claims of plaintiff and alleged that the prior mortgage had been fully paid; also that he owned the property subject only to the liens of the plaintiff. He alleged that the value of the property at the time plaintiff demanded possession from Baker and Tilden was $1500, and he asked for judgment against his codefendants for the value of his interest in the property after satisfaction of plaintiff’s claim.
The jury returned a verdict for the plaintiff and found the value of its special interest in the property to be $416.87. Special questions submitted by the court and by defendant Hight were also returned. The plaintiff was given judgment in accordance with the findings. Hight was given judgment against Baker and Tilden for the value of his interest in the property which the jury found to be $411.19. From both judgments Baker and Tilden appeal.
In September, 1913, Baker and Tilden entered into a written contract with Ben Hight, the owner of the drilling machine, by which he was to drill a well for them to a depth of 1200 feet, and he was to be paid $1 per foot on the completion of the well; they were to furnish water for drilling purposes. A few days later they loaned him $600, secured by a chattel mortgage on the drilling machine. The mortgages under which the plaintiff claims were executed subsequently for loans made by the bank to Hight. After drilling the well 620 feet Hight threw up the contract, claiming that he was unable to proceed by reason of the delay of Baker and Tilden in furnishing water. He testified that he went to Oklahoma where Baker and Tilden were, explained the situation and offered to let them use the drill and tools to complete the well, and asked them to credit him with $1 a foot for the depth the well had been drilled and apply it on the mortgage, but that they refused to give him credit on the mortgage. They immediately took possession of the drilling machine and tools, and the j ury find that they sold the property under the mortgage for $1100, and that the fair and reasonable value of the property at that time was $1408. .
The principal contention of Baker and Tilden is, that instead of offering proof of payment of the $600 mortgage, the entire testimony consisted of proof of damages claimed by Hight on account of the breach of the contract to furnish water for drilling purposes, and that there was no evidence of any settlement between them and Hight or of any recognition by them of a counterclaim or set-off in his favor.
Over the objection of defendants Baker and Tilden, the court permitted the plaintiff to offer evidence to show numerous delays in furnishing water,, and evidence to prove a claim for unliquidated damages due to Hight by reason of such delays. The court also submitted' the issue of unliquidated damages to the jury, and instructed that if the jury found that Baker and Tilden failed to furnish water in sufficient quantities, and that by reason thereof, and from no fault of his own, Hight was rendered unable financially or without great loss to himself to prosecute the work, he was justified in ceasing work, and would be entitled to recover $620 for the drilling done and in addition thereto such damages ás the evidence showed he sustained.
The court also submitted to the jury the issue whether it was understood between Hight and Baker and Tilden at the time the note and chattel mortgage were executed that the indebtedness should be paid out of the consideration for the drilling of the well. No special questions were asked or sub mitted respecting this issue except that the jury found, in answer to a question submitted by Hight, that at the time Hight abandoned the contract he requested Tilden “to apply the money then owing in drilling the well, on the $600 note and mortgage.”' The plaintiff..as well as defendant Hight insist that notwithstanding the written contract for drilling the well provided that the $1 per foot should be due and payable on the completion of the well, it became at once due and payable by reason of the breach of the contract by Baker and Tilden. Upon the evidence and findings it is impossible to discover whether the jury found for the plaintiff upon this theory or upon the theory that the first mortgage was satisfied by a claim for damages arising from the ‘breach of the contract. By the general verdict we must assume the jury found that the appellants had breached the contract, and in that case defendant Hight was entitled to have the payment for so much of the work as was completed applied in satisfaction of the mortgage.
The contention of appellants is that a plea of payment can not be supported by evidence of a claim or set-off for unliquidated-damages; that the-word “payment” in its legal sense means a delivery by the debtor to the creditor of money or something accepted by the creditor as payment of the debt. It was not necessary, however, for the plaintiff to allege payment. Without any plea of payment, under the liberal rules that have always been applied to replevin actions under the code, plaintiff might háve offered evidence tending to show satisfaction in any lawful manner of the prior mortgage debt, or any facts that would advance the junior mortgages to a priority. Actions in replevin under the code have always been regarded as constituting a class by themselves so far as the scope of the issues made by the pleadings is concerned. In most of the cases the question has been: What may be proved by the defendant under á general denial? It has been repeatedly held that he may prove every fact which goes to show that plaintiff should not recover against him. (Colean v. Johnson, 82 Kan. 655, 109 Pac. 403, and cases cited in opinion.) We know of no reason why this same rule should not apply to a petition which states a cause of action in replevin. Without filing a reply the plaintiff may rebut the effect of any proof offered by the defendant. (Street v. Morgan, 64 Kan. 85, 67 Pac. 448.) In Miller v. Thayer, 96 Kan. 278, 150 Pac. 537, which was a replevin action, it was said:
“If for any reason the indebtedness evidenced by the note does not exist, the plaintiff is not entitled to the possession of the property in controversy under his chattel mortgage. Whatever defeats the note may be set up as a defense to defeat the plaintiff in this action. In order that the dispute concerning the transaction may be settled, it is necessary that the claims of both the plaintiff and the defendant be adjudicated. Both parties ask that the right to the possession of the property be determined. It is proper that this be done. This can not be done without determining the matters presented in the answer. There are no practical, insurmountable difficulties in the way of determining, in this action, all the rights of these parties growing out of the transaction which has become the subject of this lawsuit.” (p. 280.)
In the present case Hight’s cause of action on his cross-petition respecting the very property in controversy could only be determined by an inquiry as to his right to set off against the first mortgage, held by his codefendants, a claim for unliquidated damages; and the plaintiff had a vital interest in that issue because the priority of its own mortgage lien was directly involved.
There was a sharp conflict in the evidence upon the issue whether appellants had failed in any respect to furnish an adequate supply of water for drilling purposes; but the jury determined that issue against appellants and the trial court approved the verdict. The appellants also offered evidence tending to justify their refusal to credit their mortgage with the amount claimed to be due on the 620 feet the well had been drilled when Hight abandoned the contract. Their evidence seems to show, without substantial contradiction, that they knew of a large amount of claims for labor and material which had not been paid by Hight, and which they subsequently paid to prevent liens and attachments being filed against the property. We find no error, however, in overruling the objection to the introduction of testimony, because the petition, as well as the cross-petition, stated a cause of action; and there was no error in the admission of testimony or the instructions submitting the issue as to unliquidated damages.
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Knudson, J.;
Richard T. Powell appeals his jury trial conviction for voluntary manslaughter, a lesser degree of the originally charged crime of first-degree murder. Powell poses a provocative challenge to his conviction, contending that because the evidence was not sufficient to support second-degree murder, he could not be convicted of voluntary manslaughter. Powell also contends the State committed prosecutorial misconduct in its closing argument.
We affirm. The evidence overwhelmingly demonstrates an intentional killing occurred without mitigating circumstances. Consequently, Powell may not complain that he was fortuitously convicted of a lesser degree of second-degree murder. We further conclude any prosecutorial conduct that may have occurred did not deny Powell a fair trial.
On May 22, 1997, police recovered a dead body under a bridge in a residential area of Kansas City, Kansas. The body was wrapped in black plastic trash bags. A fingerprint analysis identified the body as Marion Wilson.
An autopsy revealed Wilson’s death was caused by multiple stab wounds. Twenty-seven cuts, scrapes, and abrasions covered Wilson’s body, including two fatal wounds to his chest and back. Several wounds to Wilson’s hands indicated he put up a struggle. The pathologist estimated Wilson had been dead for 1 to 2 days. A drug screen showed phencyclidine (PCP), an illegal drug causing erratic behavior, in Wilson’s system.
The police investigation of Wilson’s death turned up no leads or suspects for the following 8 months. On February 7, 1998, police detectives arrived unannounced at the residence of Marquita Jones to speak to her on an unrelated matter. During the discussion with the detectives, Marquita volunteered information about a homicide where a dead body was recovered under the bridge in the same location where the police found Wilson.
Marquita told the detectives that Powell tolled an unknown man in her home on May 20, 1997. Powell is the father of Marquita’s daughter; he frequently spent the night at Marquita’s home. Marquita witnessed Powell stab the man with a butcher knife and then wrap the dead body in black plastic trash bags. She learned the body was eventually found from hearing the news broadcasts.
Marquita lived with her mother, Renee, her brother, Donte, and her three children; they were all home at the time of the murder. The detectives interviewed Renee and sometime later Donte at the police station.
Marquita showed the detectives the remaining traces of blood in the house, which had not been cleaned. Investigators recovered samples of blood from a stairway in the laundry room. Forensic scientists performed DNA analysis on the samples. The blood found in the laundry room matched a sample of Wilson’s blood; Powell was eliminated as a contributor.
The State charged Powell with one count of premeditated first-degree murder. Mar quita, Renee, and Donte testified for the State and provided the details of the homicide. The defense presented no witnesses. The trial court instructed the jury to consider murder in the second degree and voluntary manslaughter as lesser included offenses.
We turn next to the specific issues raised in this appeal.
Sufficiency of the Evidence
Resolution of this issue is controlled by our holding in State v. Harris, 27 Kan. App. 2d 41, 998 P.2d 524 (2000). In Harris, the defendant was charged with murder in the second degree but convicted of voluntary manslaughter. We concluded there was insufficient evidence of provocation to support the defendant’s conviction of voluntary manslaughter. Nonetheless, noting the obvious windfall to the defendant, we held the defendant was not in a position to complain on appeal of insufficient evidence to support his conviction for voluntary manslaughter when the evidence was sufficient to convict him of the greater degree of the same crime.
Recognizing the impact of Harris, Powell argues the evidence was insufficient to convict him of second-degree murder because the State’s witnesses lacked credibility. This argument is not persuasive. The function of determining witness credibility belongs to the jury and is not an issue for an appellate court to resolve. State v. Cooper, 252 Kan. 340, 347, 845 P.2d 631 (1993).
We agree with the holding in Harris. There was sufficient evidence to convict Powell of second-degree murder, and he may not complain on appeal that the jury inexplicably convicted him of a lesser degree of homicide.
Ineffective Assistance of Counsel
This claim relates to the previous issue discussed. Powell argues his Sixth Amendment rights to a fair trial were violated by trial counsel requesting lesser included instructions before consulting with him or securing his approval. The record before us does not support Powell’s version of the instruction conference. It was the trial court, not Powell’s attorney, who decided the evidence supported the giving of lesser included instructions.
It is the duty of the trial judge to decide what instructions are proper under the evidence presented, regardless of the requests or even the objections of the parties. See K.S.A. 2001 Supp. 21-3107(3); State v. Weyer, 210 Kan. 721, 727, 504 P.2d 178 (1972).
We fail to discern how trial counsel’s performance could be considered deficient under the circumstances of this case. The trial court, over the State’s objection, decided the lesser included instructions should be given. We conclude Powell’s argument has no legal merit.
Prosecutorial Misconduct
Powell’s final issue is a claim of prosecutorial misconduct. Powell first claims the prosecutor insinuated the defendant used PCP on the night of the murder when there was no evidence to support such a representation. Second, Powell claims the State made improper comment regarding the culpability of its witness Donte Jones. The evidence at trial was that Jones helped Powell dispose of Wilson’s body.
Our standard of review is settled. If a prosecutor’s statements during closing argument rise to the level of violating a defendant’s right to a fair trial and deny a defendant’s Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. State v. Lumley, 266 Kan. 939, 965, 976 P.2d 486 (1999). A two-step analysis is employed to determine if the questioned remarks require reversal. First, the appellate court determines whether the remarks fall outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, if the remarks are found improper, the court considers whether the remarks are so gross as to prejudice the jury against the defendant and deny him or her a fair trial. To support such a conclusion, the appellate court must be able to declare beyond a reasonable doubt 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. State v. McCray, 267 Kan. 339, 345, 979 P.2d 134 (1999).
We do not believe the prosecutor’s comments regarding Powell’s possible PCP use were supported by the evidence. Likewise, the prosecutor’s remarks concerning Donte’s culpability were not fair comment. However, we do not believe those comments caused prejudice and denied Powell a fair trial. Powell’s defense was that he did not kill Wilson. The direct evidence that he did was very substantial. We conclude after review of the entire record that the misconduct had little, if any, likelihood of changing the result of the trial.
For all of the foregoing reasons, we affirm Powell’s conviction. | [
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Marquardt, J.:
Brandon K. Gibson appeals numerous convictions for the possession, sale, and cultivation of marijuana, and possession of cocaine with the intent to distribute. The cases have been consolidated for this appeal. We affirm in part and dismiss in part.
I. Facts
A. Case No. 00 CR 510
In May 2000, law enforcement officials received a telephone call from Rod Scharfe, who informed them that a residence was being used solely for the purpose of cultivating marijuana. Scharfe identified Gibson and Kenneth Guye as the individuals involved.
Detectives Rod Cook and Mark French contacted Gibson’s neighbors. The neighbors reported that it did not appear that anyone actually lived in the residence. Detective Cook found that the usage of electricity for the residence was nearly three times as much as that of prior occupants.
A search warrant was obtained. During the search of the residence, the officers found marijuana plants in various stages of growth. They also found processed marijuana and cocaine. The officers seized 202 marijuana plants with a total weight of 964.9 grams. The officers also found various paraphernalia, including a dehydrator and specialized lighting. Documents found at the residence bore Gibson’s name.
Gibson was arrested and charged with one count of cultivation of marijuana, one count of possession of marijuana with the intent to distribute, one count of possession of cocaine with the intent to distribute, one count of felony possession of drug paraphernalia, three counts of no drug tax stamp, and two counts of misdemeanor possession of drug paraphernalia.
Gibson was tried by a jury and convicted on all counts. After the verdict was entered, the trial court issued an order arresting judgment on one conviction for not having a drug tax stamp. Gibson filed a timely notice of appeal.
B. Case No. 00 CR 772
In July 2000, Officer Shawn Grimes received a report that a gun was displayed during an argument over a drug deal at Gibson’s apartment. When Officer Grimes went to Gibson’s apartment, he saw a white male leave the apartment and drive away. Officer Grimes stopped the vehicle approximately one block from Gibson’s residence. The driver was identified as Kelly Surs. Surs volunteered that he had been in Gibson’s apartment.
Surs testified that when he was at Gibson’s residence, Gibson gave him a bag of marijuana as payment towards a loan. The authorities recovered the marijuana and some cocaine when they stopped Surs’ vehicle.
Detective Richard Fink applied for a search warrant for Gibson’s apartment. Detective Fink attempted to serve the warrant by knocking on Gibson’s door, but there was no answer. The officers forced their way into the apartment using a sledgehammer. No one was in the apartment.
In the various rooms of Gibson’s apartment, Detective Fink found an unsmoked portion of a marijuana cigarette, vegetation stems and seeds, used sandwich bags that were stained green, a sandwich bag which had a comer removed, a trash can littered with green vegetation, a package of rolling papers, a large box of freezer bags, a scale, clay nuggets, and periodicals with instruction for the cultivation of marijuana using a hydroponic system. All of the green vegetation tested positive for marijuana. Green vegetation was also found floating in the toilet bowl.
Gibson testified that on the night in question, he was not home at the time he was allegedly visited by Surs. Gibson was alerted by friends that the authorities had been in his apartment. Gibson did not return to his apartment for several days.
Gibson was charged with one count of selling marijuana within 1000 feet of a school, one count of possession of marijuana with the intent to distribute, two counts of felony possession of dmg paraphernalia, and one count of misdemeanor possession of dmg paraphernalia. Gibson’s case was tried to a jury in May 2001. He was acquitted of the charge of selling or distributing marijuana within 1000 feet of a school, but convicted of the remaining charges. Gibson filed a timely notice of appeal.
Gibson’s cases were consolidated at the sentencing hearing. Gibson presented evidence in support of his motion for a durational and dispositional departure. Gibson’s expert witness testified that Gibson suffered from a paranoid personality disorder. The expert believed that Gibson would not be able to receive adequate therapy in a prison setting. The State provided testimony which showed that Gibson would be able to receive mental health counseling while he was incarcerated. The State also presented evidence of Gibson’s prior failure to comply with the conditions of his probation.
The trial court found that Gibson had been a drug dealer for 15 years and was unlikely to change his behavior. Gibson was sentenced to a controlling term of 89 months’ incarceration. Gibson filed a motion to consolidate his cases for appeal with this court, which was granted.
II. Evidence Admitted Pursuant to K.S.A. 60-455
Prior to trial in Case No. 00 CR 510, Gibson made an oral motion in limine to prevent the State from presenting evidence concerning Gibson’s prior contacts with the police. The State had earlier filed a motion which asked the trial court to allow testimony regarding Gibson’s other drug-related crimes. The State argued that such evidence was admissible under K.S.A. 60-455 to prove intent, preparation, plan, and absence of mistake or accident. The trial court denied Gibson’s motion and allowed the State to present its 60-455 evidence.
At trial, Scharfe testified that he visited Gibson’s home to purchase drugs. Angeline Velez, Gibson’s former girlfriend, testified that she caught Gibson cultivating marijuana in his apartment. Velez testified that she “turned him in” and that the grow operation at Gibson’s apartment was similar to the set-up at the house which was raided by the police. Velez testified that she warned Gibson she was going to tell the authorities, which gave him enough time to move his grow operation.
In Case No. 00 CR 772, prior to trial, the State filed a motion seeking the admission of Gibson’s prior drug activities pursuant to K.S.A. 60-455. The trial court granted the motion.
Detective Mark French testified that he responded to the call at Gibson’s residence because he had previously investigated Gibson for controlled substance violations. Detective French reported the details of the investigation concerning Gibson’s cultivation of marijuana. Detective French also testified about a search of Gibson’s apartment in March 1998, when the police discovered one marijuana plant. Detective French testified that at the time of the search, it looked like all of the cultivation equipment had been moved to another location. Detective French opined that the operation was moved to the location that was raided in May 2000. Detective French testified about Gibson’s convictions in Case No. 00 CR 510.
On appeal, Gibson makes lengthy arguments in each criminal case, arguing that the evidence lacked relevancy, was unduly prejudicial, and was introduced for the sole purpose of prejudicing the jury against him.
Three requirements must be satisfied for the admission of evidence under K.S.A. 60-455. First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice. If these requirements are met, the scope of appellate review is limited to whether the trial court abused its discretion. State v. Lane, 262 Kan. 373, 388, 940 P.2d 422 (1997).
K.S.A. 60-455 reads:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevancy, there must be some material or logical connection between the asserted facts and the inference or result they are designed to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999).
Clearly, the evidence presented to the juiy in both cases was relevant. Scharfe testified that he previously helped Gibson with his marijuana cultivation activities. Scharfe testified about the grow operation that was in Gibson’s apartment before it was moved to the other location. Velez also testified that she saw a grow operation at Gibson’s apartment. Velez believed that her threat to inform the authorities about Gibson’s activity prompted the move to the location which was later raided by the police.
We have no trouble concluding that the evidence submitted pursuant to K.S.A. 60-455 was generally relevant. However, under Lane, we must determine whether the evidence was relevant to prove one of the facts specified in the statute.
The State sought to admit the evidence to prove intent, preparation, knowledge, plan, and absence of mistake or accident. The trial court admitted the evidence on the basis of those factors, as well as on the basis of factors independent of K.S.A. 60-455.
A. Intent
The crucial distinction in admitting evidence of other crimes under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime, but whether the defendant has claimed that his or her acts were innocent. The relevancy of a prior conviction to the offense charged is linked to the similarity of the two offenses. State v. Synoracki, 253 Kan. 59, 71-72, 853 P.2d 24 (1993).
In State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989), the Kansas Supreme Court noted that possession of an illegal substance may be susceptible to two interpretations, one innocent and the other criminal. Accordingly, the intent with which the act was committed becomes a critical element in determining its character. 244 Kan. at 196. However, where illegal possession of drugs is charged, intent may be the only issue. In that instance, the similarity of the prior offense to the crime charged is a key factor when determining whether that evidence is relevant. 244 Kan. at 198; see State v. Faulkner, 220 Kan. 153, 158, 551 P.2d 1247 (1976).
In Case No. 00 CR 510, Scharfe and Velez testified about Gibson’s prior experience with the cultivation of marijuana. Their testimony removes any doubt that Gibson’s possession of the plants was innocent. Velez’ testimony was particularly relevant, as it showed that Gibson likely transferred the cultivation operation from his apartment to the home that was raided by the police.
In Case No. 00 CR 772, Gibson was charged with possession of marijuana with the intent to distribute. However, there was not a large amount of marijuana found at Gibson’s apartment. Accordingly, Detective French’s testimony about Gibson’s prior convic tions helped to prove that Gibson had the requisite criminal intent. This testimony was especially probative as related to otherwise innocuous items such as plastic baggies, which may be innocently owned.
In both cases, the trial court properly admitted evidence of Gibson’s prior crimes to prove intent.
B. Preparation
Preparation for an offense consists of devising or arranging means or measures necessary for the commission of the offense. Accordingly, a series of acts that very logically convinces the reasonable mind that the actor intended that prior activities culminate in the happening of the crime in issue may have strong probative value in showing preparation. State v. Grissom, 251 Kan. 851, 924, 840 P.2d 1142 (1992).
Scharfe testified that Gibson asked him for tips on the cultivation of marijuana. Scharfe also testified about a grow operation at Gibson’s apartment. Velez testified that she found out Rod Scharfe was teaching Gibson how to cultivate marijuana in his basement apartment. In Case No. 00 CR 772, Detective French testified about Gibson’s arrest in May 2000 and a search of Gibson’s apartment in 1998. Detective French testified that the May 2000 raid of the grow house yielded a significant amount of processed marijuana. Specifically, Detective French testified that processed marijuana was found in the freezer.
Scharfe and Velez testified about the steps Gibson took to prepare for the cultivation operation. Detective French’s testimony proved that Gibson’s cultivation allowed him to prepare and distribute large amounts of marijuana. The evidence was relevant to show preparation.
C. Plan
Plan refers to an antecedent mental condition that points to the doing of the offense or offenses planned. The purpose in showing a common scheme or plan is to establish, circumstantially, the commission of the act charged and the intent with which it was committed. Stricdy speaking, the exception is limited to evidence which shows some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan, or scheme directed toward the doing of the offense charged. State v. Marquez, 222 Kan. 441, 446-47, 565 P.2d 245 (1977). In addition, evidence of prior crimes, though unrelated to the crimes charged, may be admitted to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes. See State v. Damewood, 245 Kan. 676, 681-82, 783 P.2d 1249 (1989).
Scharfe testified that Gibson had a grow operation at his apartment. Velez testified that she saw “shiny paper” hanging on the walls of Gibson’s apartment. Velez testified that some of the plants were in dirt and some were being grown hydroponically. Velez testified that the plants were divided into various stages of growth in the apartment. The arrangement described by Velez was similar to the arrangement Gibson used at the grow house which was raided in May 2000.
In Case No. 00 CR 772, Detective French testified that the May 2000 raid, police found processed marijuana in the refrigerator and freezer. Detective Fink testified that Gibson’s freezer was littered with green vegetation.
We believe that the testimony was especially relevant to prove Gibson’s plan to cultivate marijuana. Gibson operated in a very specific manner, and the testimony admitted pursuant to K.S.A. 60-455 showed how Gibson displayed a certain modus operandi.
D. Probative Value Versus Prejudicial Ejfect
In Case No. 00 CR 510, the jury was informed that Scharfe had been a drug dealer for 10 years. Gibson was also able to inform the jury that the State agreed to grant Scharfe immunity from prosecution in exchange for his testimony against Gibson. Velez testified that there was a time she refused to allow the police to search her residence. Gibson also informed the jury that paperwork with Velez’ name on it was found at the grow house which was raided by the police. Velez also testified that she discovered Gibson had a child with another woman.
These facts diminish any potential prejudice caused by the testimony. Clearly, the jury knew that Scharfe was not a model citizen and Velez had a reason to fabricate her testimony. The credibility of these witnesses was challenged by Gibson, but the jury chose to believe their testimony regardless of their character flaws. Moreover, the testimony was not so inflammatoiy that it would absolutely prejudice the jury against Gibson. It would likely not surprise the average juror that Gibson, who was charged with cultivating a substantial amount of marijuana, had a past history of drug use. Accordingly, we do not believe that the testimony given pursuant to K.S.A. 60-455 in Case No. 00 CR 510 so prejudiced the jury that it was unable to render a fair decision. The probative value of the testimony clearly outweighed any potential prejudice.
In Case No. 00 CR 772, Detective French testified about Gibson’s prior arrest and conviction, as well as a search warrant served in 1998. However, Detective French admitted that the 1998 search warrant yielded only one marijuana plant. In addition, Detective French’s testimony about the May 2000 raid amounted to only 11 pages of the trial transcript. Detective French’s entire testimony spanned 42 pages. We do not believe the focus of Detective French’s testimony was on Gibson’s prior conviction.
We have examined all of the factors mentioned in Lane and conclude that all of them were satisfied here. The only inquiiy which remains is whether the trial court abused its discretion by admitting the testimony. We believe that it did not. As shown above, the testimony was relevant to the issue of intent, plan, and preparation. We find the similarities between the occurrences to be compelling. Moreover, the testimony was not overly prejudicial. Accordingly, we have no trouble concluding that the trial court did not abuse its discretion by admitting evidence pursuant to K.S.A. 60-455 in both criminal cases.
E. Admissibility Independent of K.S.A. 60-455
On appeal, the State maintains that the evidence introduced in Case No. 00 CR 510 was admissible independent of K.S.A. 60-455 as part of the res gestae. The State believes that'Scharfe’s testimony established a relationship between him and Gibson. Similarly, the State believes that Velez’ testimony showed Gibson’s past involvement with controlled substances. The State made a similar argument at Gibson’s trial.
Res gestae deals with the admissibility of evidence of acts done, as well as declarations made before, during, or after the occurrence of the principal event. Such evidence is admissible as part of a continuing course of conduct where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence. State v. Edwards, 264 Kan. 177, 200, 955 P.2d 1276 (1998).
Acts done or declarations made as part of a continuing course of conduct are not admitted into evidence without limitation but are governed by the procedural rules and rules of evidence set out in Article 4, chapter 60, of the Kansas Statutes Annotated. Thus, to be admissible, evidence must still conform to the requirements of K.S.A. 60-460. Wide latitude is given to the trial court in determining whether evidence constitutes part of the res gestae. Edwards, 264 Kan. at 200.
Scharfe and Velez testified that Gibson was growing marijuana at his apartment in 1998. This testimony corroborated the opinion of Detective French, who believed that Gibson had moved the grow operation from his apartment to the raided location in March 1998. All of this testimony seems to be closely connected to the offenses charged in Case No. 00 CR 510. Scharfe and Velez provided information about a continuing course of conduct that stretched from 1998 until the raid in May 2000. Accordingly, we believe that this information was properly admitted as part of a continuing course of conduct. Thus, the evidence was admissible independent of K.S.A. 60-455.
III. Limiting Instruction
In Case No. 00 CR 510, Gibson did not request a limiting instruction. In Case No. 00 CR 772, the trial court gave a limiting instruction. On appeal, Gibson argues that the trial court must give a limiting instruction when evidence is admitted pursuant to K.S.A. 60-455. In addition, Gibson maintains that the instruction which was given was improper. He claims that the trial court should not have given a “shotgun” instruction because it could confuse the jury.
No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the 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).
Generally, in every case where evidence of other crimes is admissible solely under the authority of K.S.A. 60-455, the trial court should give an instruction limiting the purpose for which the evidence of the similar offenses is to be considered. Under such circumstances, the failure of the trial court to give a limiting instruction, regardless of request, is of such a prejudicial nature as to require the granting of a new trial. State v. Green, 232 Kan. 116, 120, 652 P.2d 697 (1982). However, when evidence is admissible independent of K.S.A. 60-455, the failure to give a limiting instruction is not error. State v. Wilson, 247 Kan. 87, 97, 795 P.2d 336 (1990).
In Case No. 00 CR 510, the trial court admitted the prior crimes evidence pursuant to the factors set forth in the State’s trial brief. One factor listed by the State was that the evidence was admissible to show a continuing relationship and other relevant information. We have previously held that the evidence was admissible independent of K.S.A. 60-455, which means that it was not error for the trial court to fail to give a limiting instruction to the jury. Gibson’s argument to the contrary is not persuasive.
The trial court instructed the jury in Case No. 00 CR 772:
“Evidence has been admitted tending to prove that the defendant committed crimes other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident as it relates to Counts II, III, and IV of the Information.”
At trial, Gibson objected to the proposed limiting instruction on grounds that it should only apply to Counts III and IV. The State replied that it always intended the evidence would apply to Counts II, III and IV. Gibson never objected that the language of the instruction was too broad. If a party does not specifically object to the giving of an instruction, we examine the record on appeal only to see whether the giving of the instruction was clearly erroneous. See Evans, 270 Kan. at 588.
The Kansas Supreme Court has repeatedly disapproved of the “shotgun” approach to instructing under K.S.A. 60-455. In disapproving of shotgun instructions, the court has said that rarely will all of the eight elements enumerated in the statute be relevant to issues at trial. Thus, the use of a stock 60-455 instruction only increases the risk of error. State v. Donnelson, 219 Kan. 772, 777, 549 P.2d 964 (1976).
In State v. Moore, 218 Kan. 450, 543 P.2d 923 (1975), the trial court gave a shotgun limiting instruction after the introduction of evidence pursuant to K.S.A. 60-455. However, the defendant failed to object to the shotgun nature of the instruction. Instead, the defendant objected on grounds that the instruction was improper. The Kansas Supreme Court, after reviewing the contemporaneous objection rule, concluded that the shotgun limiting instruction was not clearly erroneous. The court refused to reverse the defendant’s conviction. 218 Kan. at 455-56.
It is firmly settled in this state that a party making an objection must do so in a timely manner, stating with specificity the grounds for the objection. See State v. Jamison, 269 Kan. 564, 569-70, 7 P.3d 1204 (2000). Gibson failed to object to the shotgun nature of the limiting instruction given at his trial. Accordingly, we will follow the Kansas Supreme Court’s action in Moore and find that the limiting instruction was not clearly erroneous. We disapprove of the instruction given by the trial court and caution that limiting instructions given after the admission of evidence pursuant to K.S.A. 60-455 must be narrowly tailored to mention only the grounds under which the evidence was admitted. However, given the lack of a specific objection and the nature of the evidence, we do not believe that this was an error which requires reversal.
IV. Failure to Allow Certain Testimony
In Case No. 00 CR 772, Gibson sought endorsement of a witness on the morning of trial. Gibson told the trial court that Art Leon was not an alibi witness, just someone “saying that approximately half an hour before the cops say they were there that my client was seen on the road.” The State objected on grounds that Leon was indeed an alibi witness. Gibson’s request was denied.
On appeal, Gibson argues that the trial court erred by excluding Leon’s testimony. Gibson believes that he should have had the ability to disclose Leon’s identity on the morning of trial. Gibson specifically contends that the trial court failed to follow the factors enumerated in State v. Bright, 229 Kan. 185, 194, 623 P.2d 917 (1981). Gibson believes that such an inquiry is necessary to handle the late endorsement of witnesses for both the prosecution and the defense.
The exclusion of alibi testimony because of noncompliance with the notice requirements of K.S.A. 22-3218 is within the trial court’s discretion. State v. Claiborne, 262 Kan. 416, 423, 940 P.2d 27 (1997).
K.S.A. 22-3218(1) reads:
“In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereupon the names of witnesses he proposes to use in support of such contention.”
The notice required in K.S.A. 22-3218(1) must be served on the prosecuting attorney at least 7 days before the commencement of the trial. See K.S.A. 22-3218(2). The notice requirement does not deprive the accused of the alibi defense but simply makes notice a prerequisite. Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an llth-hour defense is both obvious and legitimate. Claiborne, 262 Kan. at 423.
In Bright, the Kansas Supreme Court held that there is no reciprocal statutory requirement that the defendant must disclose the names of defense witnesses prior to trial, with the exception of alibi witnesses. 229 Kan. at 192. The court listed seven factors which the trial court should consider when deciding whether to allow the late endorsement of a witness. 229 Kan. at 194. The factors enumerated in Bright apply when the defendant seeks to endorse an additional alibi witness. See State v. Douglas, 234 Kan. 605, 607-08, 675 P.2d 358 (1984). However, in Douglas, the defendant properly noticed the names of three alibi witnesses. The defendant sought the endorsement of an additional alibi witness after the State rested its case.
In order for the trial court to allow the late endorsement of an alibi witness, a defendant must demonstrate good cause for the delay. A defendant does not demonstrate good cause when his or her excuse is that he or she knew the witnesses’ addresses but not their names. See State v. Pham, 27 Kan. App. 2d 996, 1007, 10 P.3d 780 (2000).
The factors enumerated in Bright do not apply to this case because Gibson failed to follow the statutory notice requirement. Thus, our only question is whether the trial court abused its discretion by refusing to admit Leon’s testimony. The only thing Gibson told the trial court was that Leon’s testimony was not discovered until the morning of trial. We do not believe that this was a good cause. Gibson did not state that Leon’s testimony was not capable of being discovered until the morning of trial. It appears that Leon’s testimony was capable of discoveiy if Gibson would have desired to pursue an alibi defense. Accordingly, we find that the trial court did not abuse its discretion when it did not allow Leon to testify.
V. Sufficiency of Evidence
Gibson points out that Detective Fink only recovered marijuana residue from his apartment in Case No. 00 CR 772. Gibson argues that the marijuana residue seized from his apartment was not enough to support a charge of possession with the intent to distribute.
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).
In Count II, the State alleged that Gibson unlawfully possessed marijuana with the intent to sell, deliver, or distribute. This offense is defined at K.S.A. 2001 Supp. 65-4163(a), which reads:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with the intent to sell, deliver or distribute; cultivate; prescribe; administer; deliver; distribute; dispense or compound:
(3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105, and amendments thereto or designated in subsection (g) of K.S.A. 65-4107 and amendments thereto or designated in subsection (g) of K.S.A. 65-4109 and amendments thereto.”
In order to sustain a conviction for possession of narcotics or dangerous drugs for purpose of sale, there must be sufficient proof of possession of such drugs and proof that the possession was for the purpose of sale. Such proof may be circumstantial and may consist of evidence as to quantity of the narcotic, equipment found with it, place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale. State v. Smith, 4 Kan. App. 2d 149, 151, 603 P.2d 638 (1979).
In determining whether a defendant is guilty of possession with the intent to distribute, the trier of fact is entitled to weigh all the circumstances in a given case. The quantity of drugs possessed is only one factor to be considered. Thus, a conviction for possession with the intent to distribute may be upheld even though the quantity of drugs seized is consistent with personal use. Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13 (1991). However, possession with the intent to distribute is a crime which requires an act coupled with a specific intent. The Virginia Court of Appeals found that in order to be convicted of possession of a controlled substance with the intent to distribute, the Commonwealth must prove that the defendant possessed the controlled substance contemporaneously with his or her intention to distribute that substance. 12 Va. App. at 869.
There is no question that Gibson possessed marijuana. Gibson testified that the apartment searched by the authorities was his. Detective Fink testified that he found a partial marijuana cigarette and green vegetation in numerous places in the apartment. Thus, our only question is whether Gibson possessed the marijuana with the requisite intent to distribute.
Detective Fink testified that according to his training, he looked for certain paraphernalia which would indicate an intent to distribute. Detective Fink elaborated that such paraphernalia may include packaging, scales, ledgers, or other mechanisms of distribution. Detective Fink testified that in this area, bulk marijuana is normally broken down into smaller amounts for distribution.
Detective Fink testified that he recovered a trash can containing several used plastic bags with green stains. One of the bags had a comer removed, which, he testified, was a common practice for packaging controlled substances. Detective Fink testified that in his experience, distributors of marijuana will initially receive their marijuana in bricks or large bags. When Detective Fink found the empty plastic bags in Gibson’s trash can, he believed that it was an indication that larger quantities of marijuana were once present in Gibson’s home, but had since been removed from the bags for repackaging.
During the execution of the search warrant, Detective Fink discovered a large box of freezer bags, a box of sandwich bags, and an empty box of freezer bags. Detective Fink testified that this, together with the other evidence, was a “strong indication of distribution.” Detective Fink also recovered a scale from Gibson’s kitchen. Detective Fink found green vegetation floating in Gibson’s toilet bowl and suspected that Gibson had attempted to get rid of evidence by flushing it down the toilet.
This case is unique because the amount of marijuana found at Gibson’s apartment was small. However, when we view the evidence in its entirety and in a light most favorable to the State, we must conclude that there was sufficient evidence to support Gib son s conviction. Detective Fink provided extensive testimony concerning the evidence of marijuana distribution found at Gibsons apartment. The paraphernalia, especially the plastic bag with its comer removed, provided strong circumstantial evidence in support of the State’s case. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000).
Detective Fink provided sufficient testimony to sustain a conviction if the jury chose to rely on his experience and knowledge about the distribution of marijuana. The jury so chose, as was its prerogative. We find that there was sufficient evidence to support Gibson’s conviction.
VI. Application of the Risk Assessment Tool at Sentencing
Gibson contends that the trial court erred by not considering placement at a community correctional services program. Gibson believes that the trial court should have applied the standardized risk assessment tool mentioned in K.S.A. 2001 Supp. 75-5291(a)(2)(E).
Interpretation of a statute is a question of law, and this court is afforded an unlimited standard of review. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
In Case No. 00 CR 510, Gibson’s convictions placed him in a border box. In Case No. 00 CR 772, Gibson fell in a presumptive prison box. Gibson was assigned his presumptive sentence; thus, we do not have jurisdiction to consider his complaint regarding Case No. 00 CR 772. See K.S.A. 21-4721(c)(l). Accordingly, his appeal on this issue in Case No. 00 CR 772 is dismissed. Our inquiry is limited to the facts of Case No. 00 CR 510.
It appears that Gibson failed to carefully read the sentencing documents contained with the record on appeal. On the presentence investigation report, the court services officer recommended community corrections rather than court services placement. Under the community corrections recommendation, there is an “x” marked in the box “(a)(2)(E) Scored ‘high risk or needs, or both.’ ” We believe that the State completed the mandatory standardized risk assessment on Gibson and made appropriate recommendations.
The record on appeal does not disclose any error in the procedure surrounding Gibson’s sentencing hearing.
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Pierron, J.:
Kenby Oil Company d/b/a Fuelman (Fuelman) appeals the district court’s ruling that a guaranty agreement did not comply with the statute of frauds, K.S.A. 33-106, and was, therefore, unenforceable. We affirm.
Fuelman is in the business of supplying gas and related products through various retail outlets throughout the Midwest. In March 1999, Fuelman called upon Transportation Associates, LLC, (Transporation) to inquire about its interest in obtaining Fuelman credit cards for its long-distance truck drivers. Pete Stanley, a manager of Transportation, expressed interest and completed an application and agreement for credit with Fuelman. Fuelman determined it would need a personal guaranty from the “owners” of Transportation in order to approve the issuance of credit cards.
On March 11, 1999, Fuelman delivered a personal guaranty form to Transportation, with instructions to have the form signed by an owner of Transportation. The form was given to Stanley, who stated he would give the form to Greg Lange, an owner of Transportation, for his signature. Lange signed tire guaranty form and faxed the form to Fuelman. The blank preceding the phrase “hereinafter called ‘Guarantor’s Company’ ” in paragraph 1 of the agreement was not filled in at the time the form was faxed to Fuelman.
After Fuelman received the guaranty form signed by Lange, the form was signed by Bob Maniré, a salesman for Fuelman, and dated March 11, 1999. The credit department at Fuelman then filled in the name “Transportation Associates” in the blank in paragraph 1 on the personal guaranty form. Fuelman approved the credit and issued credit cards to Transportation.
By May 2000, Transportation owed Fuelman over $50,000, and the credit account was seriously in default. Transportation ceased doing business in May 2000. Fuelman has never been paid by Transportation, and Transportation no longer exists. Transportation owed Fuelman $60,836.83, including 18% interest through February 27, 2001.
After failed attempts to settle the matter, Fuelman sued Lange on his personal guaranty. Lange contended he did not remember signing the guaranty or faxing it to Fuelman. At the time Lange signed the guaranty, Fuelman did not do business with any other businesses in which Lange had an ownership interest.
The district court, after receiving stipulated facts and briefs from both parties, ruled that under the statute of frauds, K.S.A. 33-106, the guaranty was unenforceable because it was incomplete. In its opinion, the court stated the personal guaranty did not describe whose obligation Lange was agreeing to guarantee, and that omission was material and, thus, fatal. The court entered judgment on behalf of Lange, denying Fuelman’s claim.
The district court’s opinion states the guaranty did not name the creditor. Clearly, this was an unintentional misstatement on the part of the court. The term “creditor” should have been “principal debtor.” Later in the opinion, the court once again stated the guaranty form did not have the name of the “plaintiff creditor,” whose obligations the defendant was agreeing to guarantee. Undoubtedly, this was also an unintentional misstatement and the term should have read “principal debtor.”
The district court held that the failure to provide the name of the guarantor’s company in the guaranty agreement was an omis sion of a material term; thus, the agreement did not comply with the statute of frauds and was unenforceable. Fuelman claims the description of the principal debtor as “Guarantor s Company” stated the name of the entity with reasonable certainty and was sufficient to comply with the statute of frauds. This issue involves the interpretation of K.S.A. 33-106. Interpretation of a statute is a question of law, and this court’s review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
In pertinent part, K.S.A. 33-106 provides:
“No action shall be brought whereby to charge a party upon any special promise to answer for the debt, default or miscarriage of another person; . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
Kutilek v. Union National Bank of Wichita, 213 Kan. 407, 516 P.2d 979 (1973), and Walton v. Piqua State Bank, 204 Kan. 741, 466 P.2d 316 (1970), have been cited by both parties for support.
In Kutilek, plaintiff signed a guaranty agreement in favor of Union National Bank, but the agreement contained two blanks when it was signed. The first blank was to show the loan amount requested at the time of the instrument’s execution. The second blank was to indicate the total limit of the guarantor’s liability. The district court concluded that the unfilled blanks were material omissions; thus, the document did not comply with the statute of frauds and was unenforceable. The Kansas Supreme Court affirmed the decision of the trial court:
“ ‘To be sufficient as a note or a memorandum under the statute of frauds (K.S.A. 33-106), a writing must be complete in itself, leaving nothing to rest in parol. The general rule that a contract which is not entirely in writing is to be treated as a parol or verbal contract, is applicable in determining whether the contract is within the inhibitions of the statute of frauds.' ” 213 Kan. at 412 (quoting Walton, 204 Kan. 741, Syl. ¶ 1).
The Kutilek court commented that a guarantor is a favorite of the law and concluded that the guaranty agreement lacked the essentials of a note or memorandum under the statute of frauds and was void and unenforceable. 213 Kan. at 412.
In Walton, the plaintiff had a long history of providing financial assistance to her brother. She executed and delivered to Piqua State Bank a loan guaranty agreement for the purpose of guaranteeing a loan to her brother. At the time the agreement was signed, it contained many blanks. The document did not: (1) name or otherwise identify the other party to the contract; (2) state whose debt was guaranteed; (3) list the amount of the debt guaranteed; or (4) make reference to the principal obligation, the terms or conditions of repayment, the consideration, or the date of the contract.
The Walton court held the loan guaranty agreement signed by plaintiff lacked the essentials of a note or memorandum under the statute of frauds and was void and unenforceable. 204 Kan. at 748. In its decision, the court quoted from Clark v. Larkin, 172 Kan. 284, Syl. ¶ 2, 239 P.2d 970 (1952):
“ ‘A Memorandum, in order to be enforceable under the statute of frauds, may be any document or writing, formal or informal, signed by the party to be charged or by his lawfully authorized agent, which states with reasonable certainty (a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, (b) the land or other subject matter to which the contract relates, and (c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.’ ” 204 Kan. at 747.
The Walton court further stated:
“In Wing v. Mollett, 115 Kan. 116, [118,] 222 Pac. 88 [1924], this court quoted with approval from 27 C.J. 267, 268:
To be sufficient as a note or a memorandum under the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. The entire agreement must be expressed in the writing. The contract cannot rest partly in writing and partly in parol. The general rule that a contract which is not entirely in writing is to be treated as a parol or verbal contract is applicable in determining whether the contract is within the inhibition of the statute of frauds. The memorandum must contain all the essential elements or material parts of die contract.’ ” 204 Kan. at 747-48.
The Kutilek court found the amount that was to be guaranteed was material and its omission from the guaranty agreement caused it to fail under the statute of frauds. 213 Kan. at 412. The Walton court found the agreement did not satisfy the statute of frauds, in part, because it did not state whose debt was guaranteed. 204 Kan. at 748. In the instant case, much like in Walton, the information omitted when the agreement was signed was the identity of the principal debtor. Like the omitted information in Walton and Kutilek, this information was an essential element and a material part of the contract.
Fuelman urges this court to consider the fact that both parties stipulated Fuelman did not do business with any business other than Transportation in which Lange had an ownership interest. From this fact, Fuelman contends the only entity that could have been placed in the blank for “Guarantor’s Company” was Transportation Associates. Thus, the general description of “Guarantor’s Company” was sufficient and clear enough to properly identify the principal debtor and comply with the statute of frauds.
Although Fuelman’s argument may be factually accurate, this court cannot consider that evidence. The document, on its face, was not complete. The principal debtor was not sufficiendy identified in the guaranty agreement. Only through parol evidence can one ascertain the specific entity referred to in the guaranty agreement as “Guarantor’s Company.” As previously stated, to be sufficient under the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. Kutilek, 213 Kan. at 412.
While the details in this case were better set out than in the above-cited cases, there was still an important element missing from the four comers of the guaranty. The law does not favor incomplete guaranties. Sophisticated vendors that leave blanks in guaranties do so at their peril. Kansas courts do not approve guaranties that are in any way incomplete.
The guaranty agreement signed by Lange lacked one of the essentials of a note or memorandum under the statute of frauds, and was void and unenforceable.
Affirmed. | [
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Rulon, C.J.:
Defendant Billie J. Spicer appeals his jury convictions of aggravated battery and driving while suspended, arguing (1) the prosecutor committed misconduct during opening statements, (2) the district court erred in failing to instruct on voluntary intoxication, and (3) the imposition of an upward durational departure-sentence is unconstitutional. We affirm the convictions, vacate the sentences and remand for resentencing.
On July 28, 1999, the defendant was returning home from work and stopped by Rosie’s Cantina, a local bar where his mother worked. Defendant ordered a beer and met with his mother and his girlfriend, Jennifer Gentry.
Gentry and the defendant’s mother had been looking for a new place to live during the day. Finding a trailer house that they wished to show the defendant, the three of them left the bar at approximately 5:30 p.m.
The three returned to the bar that evening. The defendant’s mother stayed only a short time before going home to watch a program, but she returned later in the evening. The defendant and Gentry also left the bar briefly during the course of the evening. However, they both returned and consumed various amounts of alcohol throughout the evening.
When Gentry and the defendant prepared to leave the bar shortly before closing, the defendant was intoxicated and needed some assistance getting to Gentry’s car. Gentry had stopped drinking approximately 2 hours before leaving.
According to Gentry, shortly after they left the bar, the defendant began to insist upon driving. Gentry refused, believing defendant to be too intoxicated to drive. Consequently, the defendant threw the transmission into park, pulled the keys out of the ignition, and threatened to throw the keys into a field if Gentry did not allow defendant to drive. Eventually, Gentry conceded to the defendant’s demands. The defendant began to speed the car down the highway and refused to slow down as requested by Gentry. Fearing the defendant would wreck the car, Gentry climbed into the back seat. Moments later, the car failed to make a bend in the road and slammed into a utility pole.
The defendant’s factual version of the events preceding the crash differs from Gentry’s version of the facts. Defendant claims that as Gentry and he left the bar, Gentry hounded him with questions concerning his fidelity to her. The defendant became irritated and told Gentry to move back to Lawrence because he did not want to deal with Gentry’s accusations. In response, Gentry supposedly floored the accelerator and threatened to kill both of them. The defendant tried to calm Gentry and slow down the vehicle. When Gentry did, the defendant threw the car into park, took the keys out of the ignition, and demanded to drive. As the defendant drove, he claims Gentry renewed the argument. The next thing the defendant recalled was seeing .the pole right before the crash.
As the car hit the pole, Gentry was thrown forward and the seatbelt ripped off her right arm. Gentry was the first to regain consciousness after the crash and realized that her arm was missing when she attempted to exit the vehicle. Gentry tried to honk the car horn, but it would not operate, so she began to walk to seek assistance. The defendant could not move because his pelvis had broken in the crash.
A neighbor, who was investigating the loss of power to his home, stopped to assist the defendant and Gentry.
After an investigation, the State charged the defendant with recklessly causing an aggravated battery of Gentry, in violation of K.S.A. 21-3414(a)(2)(A), and driving while suspended, in violation of K.S.A. 2000 Supp. 8-262. The jury convicted the defendant of the lesser included offense of reckless aggravated battery, K.S.A. 21-3414(a)(2)(B), and convicted the defendant of driving while suspended.
Prosecutorial Misconduct
The defendant challenges certain comments made by the prosecutor during opening statements. The defendant claims the juiy was prejudiced before the evidence was produced which, consequently, tainted the jurors’ perception of the later testimony.
No contemporaneous objection to the prosecutor’s opening statements was lodged by the defendant at the time of trial. Generally, this court will not consider an issue on appeal that was not properly raised before the district court. See State v. Cravatt, 267 Kan. 314, 331, 979 P.2d 679 (1999). However, where prosecutorial misconduct likely caused such prejudice to form in the minds of the jurors that the defendant was unable to obtain a fair trial, Kansas courts have implemented a plain error standard of review. See State v. Sperry, 267 Kan. 287, 308-09, 978 P.2d 933 (1999).
Where plain error is alleged, review of prosecutorial misconduct consists of a two-part analysis. See State v. Pabst, 268 Kan. 501, 504-05, 996 P.2d 321 (2000). Under the first part, the reviewing court must determine whether the prosecutorial remarks went beyond the permissible bounds of examination or argument, remaining cognizant of the wide latitude permitted prosecutors in arguing reasonable inferences based upon the evidence. See State v. Maybin, 27 Kan. App. 2d 189, 197, 2 P.3d 179 (2000). Once the reviewing court has concluded the prosecutor’s statements have exceeded the permissible scope of examination or argument, the court is required to determine whether the statements, when viewed in light of the record as a whole, are so gross and flagrant as to prejudice the jury against the defendant. Such statements are deemed harmless, however, if the reviewing court is convinced that the prejudicial statements had little, if any, likelihood of changing the result of the trial. See Maybin, 27 Kan. App. 2d at 197-98.
Here, the defendant contends the prosecution’s opening statements repeatedly characterized the defendant as a bar, invading the province of the jury to determine credibihty and prejudicing the jury’s perception of the evidence.
In material part, the challenged prosecutors comments are as follows:
“The defendant’s reckless stupid act of driving a car while under the influence of alcohol, which resulted in Jennifer Gentry’s arm being tom from her body, is why we are here today.
“. . . And when you look at the three versions that the defendant gave, I think you’ll see a common pattern here and that is the defendant lied to law enforcement to avoid the trouble that he knows he would be in for driving drank and causing the type of injuries that you’ll see through the testimony.
“Any time the focus was on him he tried to divert the focus to the victim in this matter; but each time he was rebutted both with statements of eyewitnesses, with the physical review of the scene by law enforcement and then finally the nail in the coffin the DNA which shows that his blood was on the driver’s side air bag of die vehicle.
“Now, the lies and the attempt to shift the blame to the victim have continued with the defendant grasping at straws to avoid the unavoidable fact, and the unavoidable facts are here number one the defendant drove the vehicle at the time of the accident. Number two, he drove that vehicle in Brown County, Kansas which is required in the elements and number three, that he recklessly caused the great bodily harm or disfigurement of Jennifer Gentry.
“Now, what will the defendant try next? Well, he’s recently hinted that the victim may have somehow kicked the steering wheel causing him to lose control of the vehicle. A fact that the defendant later acknowledged was not true to Randy Linck when he stated to Officer Linck that if she had kicked it it didn’t cause the accident.
“. . . You’ll know that it’s another attempt by the defendant to avoid the inevitable and that is that he is guilty of recklessly causing great bodily injury.
“In summary ladies and gentlemen I think it will be clear to you when you wade through the smoke and mirrors of the defendant’s lies and look at the bare facts of this case that you’ll be convinced that the legal elements of aggravated battery are present and that is that the defendant recklessly caused great bodily harm by driving intoxicated. By driving under the influence and caused that great bodily harm or disfigurement to another person.”
The prosecution’s characterization of the act of driving while intoxicated as “stupid,” while not eloquent, cannot form the basis for prosecutorial misconduct. Because the defendant faced criminal liability if the jury convicted him of recklessly causing injury to his passenger while driving under the influence of alcohol, it caused no prejudice to the defendant to label such conduct as “stupid.” According to the defendant’s own testimony, he now wishes he had chosen another course of action. Calling into question the wisdom of the actions of the defendant which provide the basis for criminal liability does not shift tire burden of proof to the defendant or undermine the credibility of any of the parties. The statement is well within the broad discretion of the prosecutor to comment upon the evidence.
However, the prosecution’s comments thereafter grossly cross the line separating persuasive argument upon the inferences to be drawn from the evidence adduced at trial and impermissible character attacks upon the credibility of the defendant. Unquestionably, a prosecutor may properly address inconsistencies within the defendant’s version or versions of the facts. The prosecutor may properly suggest fallacies in the defendant’s attempts to provide legitimate bases for the inconsistencies. In short, the prosecution may argue that the jury should arrive at a single finding of fact based upon the state of the evidence, but the prosecution may not comment about the defendant’s credibility. See State v. Hutcherson, 25 Kan. App. 2d 501, 506, 968 P.2d 1109 (1998). A determination of a party’s or a witness’ credibility lies solely within the province of die jury. State v. Manning, 270 Kan. 674, 701, 19 P.3d 84 (2001).
We firmly conclude the prosecutor made grossly improper comments about the defendant’s credibility during opening statements. Such is improper argument, especially during opening statements when the juiy has not yet been exposed to evidence untainted by comments by the respective parties.
A determination the prosecution’s opening statements contained improper argument does not demand a reversal of the defendant’s convictions, if the misconduct did not affect the outcome of the trial. See Mayhin, 27 Kan. App. 2d at 197-98.
Here, the jury was asked to consider whether the defendant’s recklessness caused great bodily injury or disfigurement to the victim. The trial testimony overwhelmingly demonstrated the defendant drove a vehicle while under the influence of alcohol and drove the vehicle at a speed greater than conditions warranted. The defendant does not deny he was driving the vehicle, that he was un able to maintain control of the vehicle, and that the resulting crash partially dismembered the victim.
The physical evidence obtained from the crash site effectively refutes any argument the vehicle was knocked off course by the victim. Although several theories were presented, the ultimate reason for the crash related to the defendant’s lack of good driving judgment. As a result, the prosecution’s improper comments did not affect the juxy’s finding that the defendant’s recklessness caused the victim’s injuries. Reversible error is not predicated upon the prosecutor’s misconduct in this case. However, we strongly disapprove of the prosecutor’s conduct during opening statements.
Failure to Instruct on Voluntary Intoxication
Next, the defendant claims he should be granted a new trial due to the district court’s refusal to instruct the jury on the defense of voluntary intoxication. As the defendant concedes, this instruction was not requested by him. This court reviews the district court’s decision for clear error. See State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
The defense of voluntary intoxication may be used only where the charged offense requires a specific intent. See State v. Johnson, 258 Kan. 475, 485, 905 P.2d 94 (1995). The defendant argues that recklessness, as used in the aggravated batteiy statute, requires an appreciation of the dangers associated with particular conduct. As such, the defendant claims that voluntary intoxication may be used to vitiate the reckless element of the charge if the intoxication made the defendant unaware of the dangers posed by his conduct.
In State v. Esher, 22 Kan. App. 2d 779, 922 P.2d 1123, rev. denied 260 Kan. 997 (1996), this court considered whether the sections of the aggravated battery statute requiring intent were specific intent crimes for purposes of determining the applicability of a voluntary intoxication defense. The applicable statute under our consideration defined aggravated battery as “intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3414. Concluding the intent element of the stat ute to be merely a general intent requirement, this court held that voluntary intoxication was not an available defense to the offense as charged. Esher, 22 Kan. App. 2d at 786.
General intent is a state of mind in which a person is conscious of the act he or she is committing without necessarily understanding the consequences of that action, yet voluntary intoxication provides no defense for the commission of a prohibited act requiring only general intent. See State v. Sterling, 235 Kan. 526, 527-28, 680 P.2d 301 (1984).
Specific intent requires a demonstration of a greater culpable mental state than mere recklessness or negligence. See State v. Robinson, 256 Kan. 133, 137, 883 P.2d 764 (1994). K.S.A. 21-3201 provides that general intent may be proven by demonstrating intentional or reckless conduct. Just as the “intentional” element of intentional aggravated batteiy merely articulates the general intent requirement, the “reckless” element of reckless aggravated battery merely articulates the general intent requirement. See Esher, 22 Kan. App. 2d at 785-86.
The reckless requirement of the charged offense, here, does not require any specific state of mind to commit an offense. Rather, the statute merely requires a person to take an unjustifiable risk which results in a harmful touching to the person of another. In other words, the harm to another need not be intentional, in the sense the offender intended physical contact with the other person but included accidental physical contact which harms the person, although the harm may not be intended. “Recklessness” does not transform aggravated battery from a general intent crime into a specific intent crime. Clearly, an instruction on the defense of voluntary intoxication was not warranted here. See Davis v. State, 522 A.2d 342, 344-45 (Del. Supr. 1987) (discussing, in depth, the court’s earlier holding in Wyant v. State, 519 A.2d 649 [Del. Supr. 1986], which provided that voluntary intoxication is no defense to intentional or reckless conduct, unless the offense proscribed requires specific intent). This issue has no legal merit.
The Upward Departure Sentence
The defendant’s final issue on appeal concerns the legality of his departure sentence. The district court ordered an upward dura tional departure sentence of 38 months for the base offense of aggravated battery, although 18 months is the standard sentence for the defendant’s offense.
Based upon our Supreme Court’s ruling in State v. Gould, 271 Kan. 394, Syl. ¶ 3, 23 P.3d 801 (2001), the statutory scheme for imposing upward durational departures is unconstitutional on its face. Consequently, the imposition of an upward durational departure sentence was illegal.
The State argues this issue is moot because the sentencing court, on its own initiative, amended the journal entry to correct the illegal sentence.
A district court loses jurisdiction to hear any motions to modify a sentence when a timely notice of appeal has been filed. See State v. Williams, 235 Kan. 485, 495, 681 P.2d 660 (1984) (citing State v. Dedman, 230 Kan. 793, 640 P.2d 1266 [1982], for the proposition that the proper procedure for correcting an illegal sentence following a notice of appeal is to await the mandate from the appellate court or to file a motion for the appellate court to issue a temporary remand for modification of the sentence).
The sentencing court properly followed the holding of our Supreme Court but was without jurisdiction to correct the sentence while an appeal was pending in this court. This issue is not moot, and the case must be remanded for resentencing.
We affirm the convictions, vacate the sentences, and remand for resentencing. | [
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Buchele, J:
Bernadette Jokan appeals the district court’s grant of summary judgment in favor of Farmers Insurance Company, Inc. (Farmers).
The underlying facts in this case are not in dispute and have been stipulated to by the parties.
On June 10, 2000, Ranol Jokan was riding in a car driven by James Syrokosz. The car crossed the centerline and struck several vehicles. Ranol died as a result of his injuries. At the time of the accident, Farmers insured the Syrokosz car. The policy limited liability to $100,000 per person and $300,000 per occurrence, subject to the terms and conditions listed within the policy.
Ranol was survived by his wife, Bernadette Jokan, and two minor children— Alexander Jokan, who was 2 years old, and Malia Jokan, who was 4 years old, at the time this action was filed. The surviving Jokans demanded personal injuiy protection benefits and compensatory damages. Farmers agreed to pay the policy limits for personal injury protection benefits, plus $100,000, the per person limit under the liability section of the policy.
The Jokans demanded payment of $300,000 under the “per occurrence” limitation of liability. Their position is that the “Limits of Liability” section of the policy is ambiguous. Also they contend the loss of Ranol’s earnings is not within the “per person” policy limits but is a covered loss under the per occurrence cap.
The district court granted summary judgment in favor of Farmers. The court found that the policy language regarding the limits of liability was not ambiguous and limited the damages of the Jokans to $100,000.
Resolution of this issue requires interpretation of both the insurance policy and the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. Interpretation of an insurance contract is a question of law. Harris v. Richards, 254 Kan. 549, Syl. ¶ 1, 867 P.2d 325 (1994). Interpretation of a statute is also a question of law. This court’s review over questions of law is unlimited. See Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 888 (1998).
The policy Farmers issued to Syrokosz provided:
“We will pay damages for which any insured person is legally hable because of bodily injuiy to any person, and/or property damage arising out of the ownership, maintenance or use of a private passenger car, a utility car, or a utility trailer.
“Limits of Liability
“The limits of liability shown in the Declarations apply subject to the following.
1. The bodily injuiy liability limit for ‘each person’ is the maximum for bodily injury sustained by one person in any occurrence. Any claim for loss of consortium or injuiy to the relationship arising from this injury shall be included in this limit.
2. Subject to the bodily injury liability limit for ‘each person the bodily injury liability limit for ‘each occurrence’ is the maximum combined amount for bodily injury sustained by two or more persons in any occurrence.
3. The property damage liability limit for ‘each occurrence’ is the maximum for all damages to all property in any one occurrence.
4. We will pay no more than the maximum limits provided by this policy regardless of the number of vehicles insured, insured persons, claims, claimants or policies, or vehicles involved in the occurrence.”
The policy also provided the following definitions:
“Accident or occurrence means a sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured person.
“Bodily injury means bodily injury to or sickness, disease or death of any person.
“Damages are the cost of compensating those who suffer bodily injury or property damage from an accident.
“ ‘Eligible injured person’ means
(1) the named insured or any relative who sustains bodily injury while occupying, or through direct physical contact with while not occupying, any motor vehicle, or
(2) any other person who sustains bodily injury while occupying the insured motor vehicle or through direct physical contact with the insured motor vehicle while not occupying any motor vehicle.
“ ‘Survivor’ means a deceased eligible injured person’s spouse, or child under the age of eighteen (18) years, where such person’s death resulted from a bodily injury.”
K.S.A. 40-3107 provides, in material part:
“Every policy of motor vehicle liability insurance issued by an insurer to an owner residing in this state shall:
(e) contain stated limits of liability, exclusive of interest and costs, with respect to each vehicle for which coverage is granted, not less than $25,000 because of bodily injury to, or death of, one person in any one accident and, subject to the limit for one person, to a limit of not less than $50,000 because of bodily injury to, or death of, two or more persons in any one accident, and to a limit of not less than $10,000 because of harm to or destruction of properly of others in any one accident;
(g) notwithstanding any omitted or inconsistent language, any contract of insurance which an insurer represents as or which purports to be a motor vehicle liability insurance policy meeting the requirements of this act shall be construed to obligate the insurer to meet all the mandatory requirements and obligations of this act.”
The Jokans contend that Farmers is in violation of the KAIRA because of its policy definition of damages. They argue the policy violates 40-3107(e) because it limits Farmers’ obligation of compensation to those who actually suffered an injury. The cornerstone of this argument is the use of the phrase “because of bodily injury” in K.S.A. 40-3107(e). The Jokans’ position is that the statutory phrase “because of bodily injury" is legally distinguishable from the policy phrase “those who suffer bodily injury” because the phrase “because of bodily injury” connotes a cause and effect situation in which a person who was not physically harmed is eligible for compensation as the result of injury sustained by another, without being limited by the per person cap. In contrast, they argue “those who suffer bodily injury” connotes recovery by only the injured person.
From this interpretation of the policy, they move to 40-3107(e), which requires insurers to give stated limits of liability of not less than $25,000 because of bodily injury sustained by one person and a minimum of $50,000 when two or more persons sustain bodily injury. Relying on this statute, the Jokans contend that the legislature intended insurance companies to provide liability limits for each person, meaning an injured person, plus each person who may have a derivative claim resulting from an injury sustained in an automobile accident.
We believe the statute is clear and unambiguous. K.S.A. 40-3107(e) does not use the word “each.” Instead, it sets the minimum liability as $25,000 for one person and $50,000 for two or more persons, subject to other limitations in the policy. The legislature intended coverage of a minimum of $25,000 when one person is injured in an accident and a minimum of $50,000 when more than one person is injured in an accident. See Fam Bur. Mut. Ins. Co. v. Winters, 248 Kan. 295, 300-01, 806 P.2d 993 (1991). The statute does not require insurers to provide coverage for derivative claimants in excess of the “per person” policy limitation. Derivative claims are the consequence of injury suffered by another; they depend upon rights of the injured party to recover and are subject to the same defenses available to the underlying personal injuiy claim. See Kinsella v. Farmers Ins. Exchange, 826 P.2d 433, 435 (Colo. App. 1992); T. Copeland & Sons v. Kansa General Ins. Co., 171 Vt, 189, 195-96, 762 A.2d 471 (2000).
The Farmers’ policy at issue here allows recovery of a maximum of $100,000 by the injured person, up to a maximum of $300,000 per accident, regardless of the number of persons injured. Since the only injured person covered under the policy was Ranol, recovery is limited to a maximum of $100,000. If two of the Jokans had been injured, then their recovery would have been limited to a total of $200,000 because of tire per person limitation of $100,000. If all four of the Jokans had been injured, their recovery would have been limited to $300,000.
K.S.A. 60-1902 provides that a wrongful death action may be brought by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. The Jokans correctly argue that under the wrongful death statutes, the Jokan children have a derivative claim for the loss of Ranol’s income. However, this right does not equate to a right to compensation from Farmers.
As stated above, under 40-3107(e) and the limitation of liability section of the policy, Farmers is required to provide liability compensation up to $100,000 in the event that one person is injured in one accident. The definition of damages in the policy (the cost of compensating those who suffer bodily injury) is consistent with the statute. Farmers is required to provide compensation of up to $100,000 because of the injuries to one person, Ranol. Compensation is due to either the injured person or the injured person’s representative in the event of death or incapacity. See Farmers Ins. Co. v. Rosen, 17 Kan. App. 2d 468, 839 P.2d 71, rev. denied 252 Kan. 1091 (1992). Farmers tendered the required compensation to the Jokans.
The Jokans rely on Rosen in an attempt to establish that derivative damages are covered by the policy. We disagree with their reading of Rosen.
In Rosen, April Rosen was struck by a pickup truck driven by an insured of Farmers. April was a minor at the time of the accident, so her parents, James and Ginger Rosen, filed suit against Farmers for loss of consortium, medical bills, and expenses.
Farmers conceded, under a policy containing the same language as the policy in the present case, that it was required to pay for damages that any insured person would be legally liable for because of bodily injury to any person. Since the loss of consortium and the payment of medical expenses were damages for which the Farmers’ insured may have been legally liable because of bodily injuries to April, Farmers agreed those damages came within the coverage provisions of the policy. However, this stipulation did not lead to recovery by the Rosens.
In framing the issue presented, the Rosen court stated:
“The real question as argued by Farmers and the Rosens is whether James and Ginger Rosen’s claims for loss of care and loss of services, here admittedly covered damages under Farmers’ automobile policy, come within the operation of the automobile policy’s per person hmitation, with the result being that Farmers’ exposure under the automobile policy is limited to the policy’s $100,000 per person limit rather than the policy’s $300,000 per occurrence limit.” 17 Kan. App. 2d at 471.
The Rosens claimed that the policy covered each of the three claims, subject to the $300,000 per occurrence limitation. In affirming the grant of summary judgment in favor of Farmers, the Rosen court held:
“We are persuaded and hold that the pertinent language of Farmers’ automobile policy is unambiguous, that coverage under Farmers’ automobile policy for James and Ginger Rosen’s claims is subject to the policy’s $100,000 per person liability limit applicable to April Rosen’s claim, and that Farmers’ exposure for the three Rosen’s claims is limited to $100,000.” 17 Kan. App. 2d at 474.
In the present case, Farmers acknowledges it will pay damages for which its insured is legally liable. However, those claims are subject to the $100,000 per person hmitation set forth in the policy. The Jokans’ derivative claims, just as the Rosens’ claims, are subject to the per person limitation set forth in the policy.
The Jokans next argue that Farmers’ policy is ambiguous.
“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. [Citation omitted].” Spivey v. Safeco Ins. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993). "As a general rule, the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993).
“Ambiguity is not to be derived from or created by the fragmentation of an insurance contract. . . . Ambiguity arises from conflicting provisions not from the failure to include all the terms of a contract in each of its parts.
“[A]mbiguities in the wording of insurance contracts are to be construed in favor of the insured [; however,] this rule has no application whatsoever to language that is clear in its meaning. [Citations omitted.] . . . Where an insurance contract is not ambiguous, a court’s function is to enforce the contract made, not to make another contract for the parties. [Citations omitted.]” Scott v. Keever, 212 Kan. 719, 723-25, 512 P.2d 346 (1973).
The question presented is whether the language “loss of consortium or injury to the relationship” is specific enough for this court to decide if lost wages are included in the liability limitations. The Jokans contend that under the doctrines of expression unius est exclusion alterus and “reverse construction,” Farmers’ failure to specifically exclude economic losses means that in derivative actions, economic losses are not subject to the $100,000 per person cap. A Kansas appellate court has not decided this issue.
“Loss of consortium” and “injury to the relationship” are not defined within the policy. “Consortium has been defined as a right growing out of the marital relationship which includes the right of either spouse to the society, companionship, conjugal affection and assistance of the other.” Hoffman v. Dautel, 192 Kan. 406, 411, 388 P.2d 615 (1964). By this definition loss of consortium is not applicable to the claim of lost income on behalf of the children.
Since “injury to the relationship” is not defined in the policy, it is helpful to look to a judicial interpretation of a similar phrase. In Fisher v. State Farm Mut. Auto. Ins. Co., 264 Kan. 111, 955 P.2d 622 (1998), the Kansas Supreme Court was asked to determine whether an award of workers compensation benefits, paid to an employee who was killed while in the scope of employment by an underinsured motorist, precluded the heirs from pursuing a claim under the underinsured motorist coverage of the insurer’s policy.
In Fisher, the district court had reviewed K.S.A. 44-504(b), the statute that governs subrogation in workers compensation claims, and noted that the statute distinguished “loss of consortium” as being a noneconomic loss and “loss of services” as being an economic loss. However, the verdict form did not distinguish between loss of services and loss of wages. An expert testified regarding the value of the loss of wages and the loss of services. The jury disregarded the testimony and returned a verdict that was significantly less than the expert’s combined total. The court used the expert’s figures, calculated the percentages of loss of wages and loss of services, respectively, and applied the loss of services percentage to the jury verdict. Since wages are covered by workers compensation, the courf awarded the heirs the percentage of the jury verdict for “loss of services” only. The Supreme Court affirmed.
Since the workers compensation statute is similar to the exclusionary language of the Farmers’ policy, in that both involve loss of consortium and loss of services, it is instructive that at least one Kansas court has construed the phrase “loss of services,” in a derivative suit brought by heirs, to include a loss of wages. See Fisher, 264 Kan. at 124-26.
Recently, in Clark v. Scarpelli, 91 Ohio St. 3d 271, 744 N.E.2d 719 (2001), the Ohio Supreme Court was asked whether the same policy language as in the Farmers’ policy in the present case was clear and unambiguous because it restricted wrongful death derivative claims to the per person cap.
The policy in question contained the exact limiting language as in this case regarding “loss of consortium” and “injury to the relationship.” The Clark court found that “the phrase ‘injury to the relationship’ is a clear reference to claims for wrongful death as contemplated by the [insurance] policy.” 91 Ohio St. 3d at 283.
The Clark court, recognizing that wrongful death beneficiaries are statutorily authorized to recover benefits in actions brought for the “exclusive benefit” of the decedent’s next of kin, concluded:
“In that regard, tire wrongful death itself and the relationship between the decedent and his next of kin are inextricably intertwined. It is axiomatic that there would be no cause of action for wrongful death without both a wrongful death and the existence of at least one living statutory beneficiary of the decedent. Thus, we agree with the court of appeals that the language loss of consortium or injury to the relationship’ encompasses all derivative claims, including claims for wrongful death.” 91 Ohio St. 3d at 284.
As a result of its conclusion, the Clark court held that any derivative claim arising from the death of the petitioner’s son was included in the “single each-person policy limit.” 91 Ohio St.3d at 284.
This conclusion is consistent with the Colorado Court of Appeals’ decision in Kinsella, 826 P.2d 433, where the plaintiff s minor son was seriously injured in a car accident. The medical bills were stipulated to exceed $200,000. The insurance policy provided uninsured motorist coverage of $100,000 per person and $300,000 per occurrence. Farmers paid $100,000 in uninsured motorist benefits and $100,000 in personal injury protection benefits. The policy contained the exact language as the policy in the present case.
The plaintiff sought an additional $100,000 in uninsured motorist benefits for medical expenses incurred on his son’s behalf. Farmers denied the claim, asserting the policy limited recovery to $100,000 because of the per person restriction.
The plaintiff filed a declaratory action, and both sides filed motions for summary judgment. The trial court found the policy unambiguously limited the amount of recovery of uninsured motorist benefits to $100,000 and the plaintiff s derivative claim failed because the policy limits had been exhausted by payment on the son’s personal injury claim.
On appeal, the Kinsella court recognized that derivative claims are dependent upon the right of the injured party to recover and are subject to the same defenses available to the underlying personal injury claim. 826 P.2d at 435. The court found that the claim for medical expenses was not based upon separate injury to the plaintiff and, absent a showing that plaintiff sustained separate bodily injury, the $100,000 per person limitation applied. 826 P.2d at 435.
Additionally, the Kinsella court found die policy was not ambiguous because it plainly placed the limit of liability for bodily injury sustained by one person at $100,000 maximum. 826 P.2d at 435. The court rejected the plaintiff s argument that because his claim was a derivative claim for medical expenses, it was excepted out of the limitation clause because it was not a claim for loss of consortium or injury to the relationship. The court viewed the limiting language of loss of consortium and injury to the relationship as being surplusage at best, since the sentence immediately preceding the limitations specifically limited recovery to $100,000 when only one person sustained bodily injury. 826 P.2d at 435-36.
The Jokans’ argument that injury to the relationship refers to intangible aspects of the relationship between an injured person and his or her family, not pecuniary damages, such as loss of income, is persuasive. Since loss of consortium clearly involves a marital relationship, then it is logical to conclude the injury to the relationship exception was intended to cover nonmarital relationships. Further, the argument that Farmers could have easily and early excepted out all economic losses is also persuasive.
However, “[a]mbiguity arises from conflicting provisions not from the failure to include all the terms of a contract in each of its parts.” Scott, 212 Kan. at 723. Here, tire policy does not contain conflicting parts. It clearly limits recovery under the liability section to $100,000 when one person is injured or killed in an accident. Farmers’ failure to specifically list each conceivable exception does not create ambiguity. As the Kinsella court held, the “loss of consortium/loss of relationship” language is surplusage. 826 P. 2d at 436. The limiting language is clear and unambiguous.
We conclude that the policy language here unambiguously limits recovery for bodily injury sustained by one person to $100,000 and that this limitation encompasses all derivative claims, including loss of income.
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Beier, J.:
Andrew J. Musick IV was convicted of cultivation of marijuana, a severity level 3 drug felony. He appeals the trial court’s denial of his motion to suppress.
Musick’s troubles with this case began when two persons who identified themselves as Daniel and Gail Schoenberger contacted the police after being in Musick’s rented home in Garden City. The Schoenbergers said that they worked for a firm hired by the property owner to find tenants and collect rents. They said they had observed 15 marijuana plants in the basement, 15 to 20 marijuana plants in an upstairs bedroom, and a large pile of $50 bills on the dining room table.
The following day, two police detectives drove by the home at midday and observed that the blinds on every window were closed. Approximately 2 hours later, Detective Larry Watson swore out an “Affidavit and Application for Search Warrant” containing the information from the Schoenbergers and the detectives’ drive by the home. It did not detail any other attempt to verify the identity and reliability of the Schoenbergers or the information they provided. Still later that day, Detective Watson executed the search warrant at the home and seized marijuana plants and other contraband.
Musick contended at pretrial that the information in the warrant did not support a finding of probable cause and that the good faith exception to the warrant requirement did not apply. The district court denied his motion to suppress and convicted him after a bench trial on stipulated facts.
When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the findings of fact of the trial court. The appellate court must not substitute its view of the evidence for that of the trial court if the trial court based its factual findings on substantial competent evidence. State v. Wonders, 263 Kan. 582, 588-89, 952 P.2d 1351 (1998). However, the ultimate decision concerning the suppression of evidence is a question of law requiring independent appellate review. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995).
Musick would have us treat the Schoenbergers with the same degree of suspicion that we attach to anonymous tipsters or confidential informants. This is inappropriate. The Schoenbergers identified themselves to the police and gave details that could have been used to find them quickly in the event their information was false. In subjecting themselves to potential criminal and civil liability, their information took on an added degree of reliability. As recognized recently by the Supreme Court in two cases, “the most favored of the tips are those which are in fact not really anonymous at all. These tips occur when the person giving the tip gives the police his or her name and address or identifies himself or herself in such a way that he or she can be held accountable for the tip.” State v. Slater, 267 Kan. 694, 700, 986 P.2d 1038 (1999); see also City of Pratt v. Stover, 272 Kan. 279, 283, 32 P.3d 1143 (2001) (drunk driving tip from person who gave her name, address to police dispatcher).
Musick's reliance on United States v. Leake, 998 F.2d 1359 (6th Cir. 1993), does not help him. In Leake, the Sixth Circuit Court of Appeals found no probable cause for a search warrant when police attempted to confirm an anonymous tip by surveillance of a home. 998 F.2d at 1365. The surveillance only confirmed the address and the existence of a basement. Leake is distinguishable from this case on its facts.
Courts simply do not consider informants who provide their names and other identifying information as unreliable as anonymous tipsters and confidential informants, for whom corroboration is required before a residential search warrant is issued. When an informant identifies himself or herself to the authorities and provides enough contact information to be held accountable for the tip provided, it is reasonable for the police to believe the tip and act upon it. See State v. Rose, 8 Kan. App. 2d 659, 663, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983) (uncorroborated evidence from admitted coconspirator with first-hand knowledge who subjected himself to potential liability by coming forward); see also United State v. Downes, 2001 WL 121951 (D. Kan. 2001) (citizen informant identified by name with first-hand knowledge of wrongdoing entitled to presumption of reliability without corroboration). Probable cause was established. See State v. Prewett, 246 Kan. 39, 46-47, 785 P.2d 956 (1990).
It was certainly reasonable to believe the Schoenbergers in this case. They not only put their names on the line, they supplied enough information to make it clear how and why they knew what they knew. Although better police practice would have been to verify their names and employment status before applying for the search warrant, such verification was not indispensable to the finding of probable cause adequate for its issuance.
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Elliott, J.:
Christopher Greenwood appeals the trial court’s denial of his motion to set aside his convictions and vacate his sentence.
We affirm.
Greenwood was charged with three counts of sexual exploitation of a child, K.S.A. 2001 Supp. 21-3516(a)(2), and he pled guilty as charged. After sentencing, Greenwood moved to vacate his convictions and sentences, claiming his conduct did not violate the criminal statute cited above under State v. Donham, 29 Kan. App. 2d 78, 24 P.3d 750, rev. denied 272 Kan. 1421 (2001). Alternatively, Greenwood argued his convictions were multiplicitous.
The trial court, relying on Donham, ruled the convictions were multiplicitous and dismissed two of the counts and vacated the sentences on those counts. The trial court also found the language Greenwood relied on from Donham was nonbinding dicta. This appeal follows.
Since Greenwood is collaterally attacking his conviction, we treat this case as a K.S.A. 60-1507 proceeding. Greenwood’s request for relief is based on his interpretation of Donham, decided after Greenwood’s sentencing. We shall decide Greenwood’s appeal on its merits, thus bypassing a decision as to what relief may or may not be procedurally available. Cf. Easterwood v. State, 273 Kan. 361, 44 P.3d 1209 (2002).
In order to determine if the trial court erred in denying Greenwood relief, we must examine whether Greenwood’s conduct in fact violated K.S.A. 2001 Supp. 21-3516.
The factual basis of Greenwood’s plea included the fact German National Police received 11 computer photographic images of nude and semi-nude prepubescent girls engaged in sexual intercourse, masturbation, and oral sex with adult males. The photographic images were received from a person later identified as Greenwood.
Further, thousands of pornographic images depicting children under the age of 14 years engaged in sexually explicit conduct, including sexual intercourse, were found when the hard drive of Greenwood’s computer was inspected by police following the execution of a search warrant. Greenwood admitted he had child pornographic images and movies on his hard drive, had been trading the images, and had set up a computer server to do so. Greenwood also admitted some of the children were between the ages of 5 and 6 years old.
Greenwood’s reliance on the dicta in 29 Kan. App. 2d at 82, stating: “The sexual exploitation of a child statute does not list possession of electronic images as a means of violating the statute,” is simply misplaced.
Here, Greenwood was not charged with possessing electronic images; he was charged with violating the statutory language.
In the context of this case, K.S.A. 2001 Supp. 21-3516(a)(2) criminalizes the possession of any “computer hardware ... or any other computer related equipment . . . that contains or incorporates in any manner any film, photograph, negative, photocopy, videotape or video laser disk in which a visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct.”
Likewise, Greenwood’s reliance on State v. Zabrinas, 271 Kan. 422, 24 P.3d 77 (2001), is also misplaced. There, Zabrinas was charged with possessing “a visual medium” containing a child “engaging in sexually explicit conduct.” 271 Kan. at 436. The convic tion was affirmed. 271 Kan. at 444. That case does not bolster Greenwood’s “electronic images” argument.
We hold the type of conduct exhibited and admitted by Greenwood is precisely the type of conduct prohibited by the statute; neither Donham nor Zabrinas holds otherwise. We simply give effect to the obvious legislative intent, rather than speculate on what the law should or should not be. See State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996). Here, the factual basis for Greenwood’s plea is that he was in possession of computer hardware containing photographic images and movies depicting sexually explicit conduct by children.
The factual basis for Greenwood’s plea supports his conviction for the crime charged. Additionally, a guilty plea, freely given, waives any defects and/or irregularities occurring prior to the plea — even if the defect reaches constitutional dimensions. See State v. Melton, 207 Kan. 700, 713, 486 P.2d 1361 (1971).
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Knudson, J.:
Delbert E. Haines appeals the revocation of his probation approximately 18 years after his initial sentence was ordered. Haines contends the trial court denied Haines due process when it revoked his felony probation more than 16 years after the probation violation warrant was issued. Under the facts of this case, we hold Haines was denied due process. We reverse the judgment of the trial court and order termination of his probation.
In November 1982, Haines pled guilty to one count of attempted rape and a sentence of 3 to 10 years was imposed and a fine of $1,000 levied. Haines was placed on probation for 2 years, with out-of-state supervision contemplated upon suitable employment being secured.
Haines did find employment as an over-the-road truck driver and moved to Ohio. According to Haines, he was informed that if he paid off his fines and court costs, he would no longer be required to report. Haines maintains he gave money to his wife to send to Kansas for the fines and costs and she' did not send the money.
On October 3,1983, a warrant was issued for Haines for failure to pay the $1,000 fine and failure to report. According to the warrant, the Kansas probation office sent Haines letters to what was believed to be Haines’ mother’s house and his wife’s house. By the time the letters were sent, the State was aware Haines’ wife had left him. The letter from the mother’s house was returned because of an insufficient address, and the letter to the estranged wife was not returned.
In 1999, Ohio officers responding to a disturbance at Haines’ house and discovered the warrant. Haines returned to Kansas on his own accord and sought out information from the Sedgwick County Adult Probation Office. An employee of the office advised Haines he was in violation of his probation because he still owed the $1,000 fine, plus costs.
He was advised he should seek counsel, which he did. He contacted an attorney. The attorney told Haines the worst thing he could have done was to return to Kansas. On the advice of counsel, Haines returned to Ohio to wait for the warrant to be served. Haines was served, waived extradition, and returned to Kansas.
At the time of the revocation hearing, Haines was 68 years old. He has a heart problem that requires medication and suffers from oral cancer. Haines apologized to the court for allowing his estranged wife to be in control of sending the money and requested the court to allow him to pay the fine, plus interest, and reinstate his probation.
The State argued Haines had been arrested five times, beginning in 1964 and ending with the attempted rape charge in 1982; therefore, he had not proved he was interested in staying out of trouble. The State did not indicate Haines had been arrested in the many years after being placed on probation or otherwise controvert the representations made by Haines.
The trial court revoked Haines’ probation and ordered that he serve the sentence previously imposed. Haines’ motion for reconsideration or to modify was denied.
On appeal, Haines argues the delay between the time of the issuance of the warrant and the time of the revocation hearing violated his due process rights under the Fourteenth Amendment to the United States Constitution. The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. State v. Walker, 260 Kan. 803, Syl. ¶ 2,926 P.2d 218 (1996). Kansas law allows the revocation of probation after the term of revocation expires if the proceedings were instituted during the term of the probation and revocation occurs within a reasonable time thereafter. State v. Williams, 20 Kan. App. 2d 142, 148, 884 P.2d 743 (1994). Jurisdiction to revoke probation does not expire with the expiration of the probationary period; however, the court’s authority is not without limit. Due process requires that the State act in a timely and reasonable manner.
In State v. Duke, 10 Kan. App. 2d 392, 699 P.2d 576 (1985), the defendant’s probation was revoked because he failed to pay his fines and court costs. This court found that the automatic revocation of probation without inquiring into the defendant’s ability to pay was improper. 10 Kan. App. 2d at 395-96. In dicta, this court noted that K.S.A. 1984 Supp. 22-3716, an earlier yet similarly worded version of the revocation statute applicable in the present case, complied with constitutional requirements. 10 Kan. App. 2d at 393. Both versions of the statute require a defendant to be brought before a court without unnecessary delay after being arrested on a warrant issued for a probation violation. See K.S.A. 22-3716(b).
In Williams, wherein an amended motion to revoke probation was not filed until 9 months after the initial motion to revoke, and the revocation hearing was not held for an additional 21 months thereafter, the court reversed the revocation of probation because the State’s action was not reasonable or timely. See 20 Kan. App. 2d at 151.
While Williams is factually distinguishable from the present case, its recognition of an unreasonable delay in prosecuting a probation violation is fully applicable in this case. In Williams, the court noted several other states have held that an unreasonable delay by the State in the issuance and execution of a warrant for the arrest of a probationer whose whereabouts are either known or ascertainable with reasonable diligence may result in the State’s waiver of the violation. 20 Kan. App. 2d at 146; see, e.g., People v. Diamond, 59 Mich. App. 581, 588, 229 N.W.2d 857 (1975); State v. Murray, 81 N.M. 445, 449, 468 P.2d 416 (1970).
The facts of this case do not favor the State’s position or the decision of the trial court to revoke probation. The record is clear that the State’s efforts to locate Haines were restricted to two letters, one sent to his ex-wife and one to his mother’s residence that was returned for lack of a sufficient address. More than 16 years have gone by since the State acted. The record indicates Haines has been employed as a truck driver and lived in Ohio the entire time preceding the probation revocation proceeding. There is no indication that the State attempted to locate him through his driver’s license, social security number, employer, or any means other than mailing letters to his mother’s house and his estranged wife’s house. At the time of the revocation hearing, Haines was still living in Ohio and was collecting social security benefits. It is clear he did not attempt to secret himself away. The State’s failure to conduct a reasonable investigation to ascertain Haines’ whereabouts constitutes a waiver of the violation. Since the government waived the violation, Haines does not have to show he was prejudiced by the delay. See State v. Wonders, 27 Kan. App. 2d 588, 592, 8 P.3d 8, rev. denied 269 Kan. 940 (2000).
We reverse the trial court and order that Haines be released from custody. Further, under the totality of circumstances, we order his probation terminated.
Reversed and remanded with directions. | [
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Marquardt, J.:
Nicole Lee Holm appeals the trial court’s decision awarding grandparent visitation rights to Robert George William DeGraeve, Nicole’s father. We affirm.
Nicole has three children; each child has a different father. Nicole has a history of drug abuse and emotional problems.
In 1997, Robert and his wife Mel were awarded guardianship of Nicole’s son Z. Nicole consented to the guardianship. Z. lived with Robert and Mel from June 1997 to October 2000.
Mel testified that during the guardianship, Nicole “barely acknowledged Z. was alive.” Mel testified that Nicole stated she did not really love Z. because she did not love his father.
Z. returned to Nicole’s home in October 2000, but continued to visit Robert and Mel every other weekend. In February 2001, Nicole terminated Z.’s contact with Robert and Mel.
In March 2001, Robert filed a petition for grandparent visitation with all three of Nicole’s children. Nicole filed an answer, claiming that Robert had been “disruptive in the children’s lives.” She also claimed that Robert threatened and harassed her and her husband. The petition was heard by the trial court in August 2001.
The trial court did not find Nicole to be an unfit parent; however, it found that Nicole’s refusal to allow Robert visitation was motivated by “feelings of antipathy and dislike for her stepmother and her anger with her father.”
The trial court found that there was a substantial relationship between Robert and Z. and visitation was in Z.’s best interests. Such a finding overcame the presumption that Nicole was acting in Z.’s best interests. Accordingly, the trial court granted Robert visitation with Z. and ordered mediation to establish a visitation schedule. In November 2001, the trial court approved the mediator’s visitation schedule. Nicole appeals.
Nicole argues that the trial court erred by allowing visitation absent a finding that she was an unfit parent.
In cases involving grandparent visitation, we review the evidence in a light most favorable to the prevailing party below to determine if substantial evidence exists to support the trial court’s findings. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issue can be reasonably resolved. Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 653, 16 P.3d 962 (2001).
K.S.A. 38-129 reads, in relevant part:
“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 established.”
The United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S.Ct. 2054 (2000), recognized that a parent’s interest over the care, custody, and control of his or her children is perhaps the oldest of the fundamental liberty interests recognized in this country. 530 U.S. at 65. Historically, the law has recognized that natural bonds of affection lead parents to act in the best interests of their children. Accordingly, so long as a parent adequately cares for his or her children, there will normally be no reason for the State to inject itself into the private realm of the family and question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. 530 U.S. at 68-69.
K.S.A. 38-129 makes no reference to a prerequisite finding of parental unfitness. Moreover, neither Troxel nor Paillet establish a bright line rule requiring a finding of parental unfitness as a prerequisite to grandparent visitation. See In re T.A., 30 Kan. App. 2d 30, 34, 38 P.3d 140 (2001). There is a fundamental presumption that a fit parent will act in the best interests of his or her child in determining visitation under K.S.A. 38-129. However, a parent’s determination of what is in the child’s best interests is not always absolute; otherwise the parent could arbitrarily deny grandparent visitation without the grandparents having any recourse. T.A., 30 Kan. App. 2d at 34.
A trial court is not required to make a finding of parental unfitness before awarding grandparent visitation. Nicole’s argument to the contrary is not supported by the statute or relevant case law.
In order for the trial court to grant grandparent visitation, the court must find that a substantial relationship exists between the grandparent and the child and that the visitation is in the child’s best interests. See Paillet, 270 Kan. at 653. The burden of proof is upon the grandparent to prove these elements. T.A., 30 Kan. App. 2d at 34-35.
The trial court correctly noted that Robert bore the burden to overcome the presumption that Nicole was acting in her children’s best interests. Robert presented testimony from numerous witnesses, all of whom had first-hand knowledge of Robert’s relationship with all of the children, particularly Z.
It is undisputed that Z. resided with Robert from June 1997 to October 2000. The guardianship began when Z. was 6 months old. Z. did not see Nicole from August 1997 to February 2000, at which time supervised visitations were initiated. Notwithstanding the fact that Nicole was granted visitation with Z., she missed at least 1 month of visits.
Nicole testified that Robert was trying to control her through the children. Nicole wanted her father and Mel to “change their attitudes” toward her. Nicole specifically wanted them to “stop trying to make [her] fife difficult by going in and testifying, ganging up and testifying with this person; and basically, just that.” Nicole admitted that she did not contribute to Z.’s care while he was in Robert’s home.
Nicole and her current husband do not appear to have a harmonious relationship. Robert’s home serves as a gathering place for the family, which includes a large number of cousins. Nicole has not allowed Z. to have contact with his relatives.
We agree with the trial court that Robert had a substantial relationship with Z., and he successfully overcame the presumption that Nicole was acting in Z.’s best interests. Accordingly, the trial court did not err in granting Robert visitation with Z.
Nicole requested that she be awarded attorney fees pursuant to K.S.A. 38-131. The trial court denied her request.
K.S.A. 38-131 reads:
“Costs and reasonable attorney fees shall be awarded to the respondent in an action filed pursuant to K.S.A. 38-129 et seq. unless the court determines that justice and equity otherwise require.”
On appeal, Nicole cites no authority for her request other than the statute. She maintains that because the statute uses the word “shall,” it is mandatory that she be awarded attorney fees. She completely ignores the phrase “unless the court determines that justice and equity otherwise require.”
Nicole interjects an equity argument, stating that she is an unemployed mother of three children and cannot pay her attorney fees. Nicole maintains that she acted in her child’s best interests.
Generally, an award of attorney fees rests within the sound discretion of the trial court, and its determination will not be disturbed on appeal in the absence of an abuse of discretion. York v. InTrust Bank, N.A., 265 Kan. 271, 307, 962 P.2d 405 (1998).
Where the trial court made no finding on the issue of justice and equity, petitioner must pay respondent’s attorney fees. Spradling v. Harris, 13 Kan. App. 2d 595, 602-03, 778 P.2d 365, rev. denied 245 Kan. 786 (1989).
Vindictiveness on the part of the respondent in a case brought under K.S.A. 38-129 is a finding that supports the trial court’s reasoning in denying the respondent attorney fees. In the instant case, the trial court found that Nicole withheld visitation for “vindictive purposes” that were not in the best interests of Z. and refused to award Nicole attorney fees. The trial court did not abuse its discretion by finding that the interests of justice and equity required that attorney fees not be awarded to Nicole.
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Elliott, J.:
In this case, the trial court dismissed the claims of Mary Ann Curts and Barbara Pinter for false imprisonment, assault, and negligence per se as barred by the statute of limitations; and the claims of outrage and negligent infliction of emotional distress for failure to state a claim upon which relief can be granted. See K.S.A. 60-212(b)(6).
Plaintiffs appeal only the dismissal of their claim for negligent infliction of emotional distress, claiming the trial court erred in holding their failure to allege physical injury barred the claim. We disagree and, thus, affirm the trial court.
The issue facing us is narrow and requires no recitation of the facts alleged in the petition. Plaintiffs rely on our decision in Reynolds v. Highland Manor, Inc., 24 Kan. App. 2d 859, 954 P.2d 11 (1998). There, we reviewed the elements for a claim of negligent infliction of emotional distress:
“To sustain a claim for negligent infliction of emotional distress, the plaintiff must establish that the conduct complained of was accompanied by, or resulted in, immediate physical injury. [Citation omitted.] A plaintiff ‘must show that the physical injuries complained of were the direct and proximate result of the emotional distress caused by the [defendant’s] alleged negligent conduct.’ [Citation omitted.]” 24 Kan. App. 2d at 861.
There, we addressed the plaintiff s claim the case could fall under an umbrella exception to the physical injury requirement by stating: “The only major exception to the physical injury requirement in emotional distress claims is where the plaintiff charges the defendant with acting in a willful or wanton manner, or with the intent to injure.” 24 Kan. App. 2d at 864. We rejected the argument since plaintiff did not allege any willful or wanton conduct, and there was no evidence defendant acted intentionally. 24 Kan. App. 2d at 864.
Several Kansas cases, some hoary with age (see In re Estate of Bernatzki, 204 Kan. 131, 133, 460 P.2d 527 [1969]), have mentioned this “exception” to the physical injury requirement. See, e.g., Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 274, 662 P.2d 1214 (1983); Lonergan v. Small, 81 Kan. 48, 51-55, 105 Pac. 27 (1909).
The exception to the physical injury requirement must have an allegation of willful or wanton conduct. “Willful conduct” is an act performed with a designed purpose or intent to do wrong or cause injury. Paida v. Leach, 260 Kan. 292, 297, 917 P.2d 1342 (1996).
“Wanton conduct” is an act performed with a realization of the imminence of danger and reckless disregard or complete indifference to the probable consequences of the act. 260 Kan. at 297.
Thus, we must conclude the exception to the physical injury requirement of a claim for negligent infliction of emotional distress is nothing more — nor less — than the tort of outrage, an intentional tort. See Dawson v. Associates Financial Services Co., 215 Kan. 814, 819-22, 529 P.2d 104 (1974) (adopting Restatement [Second] of Torts § 46[1]) [1964]; PIK Civ. 3d § 127.70.
The plaintiffs in Anspach v. Tomkins Industries, Inc., 817 F. Supp. 1499 (D. Kan. 1993), aff'd 51 F.3d 285 (10th Cir. 1995), attempted to malee the same argument plaintiffs make here. Applying Kansas law, Judge O’Connor rejected the claim:
“Plaintiffs assert that their claim for negligent infliction of emotional distress is viable, even absent resultant physical injury, because the conduct of the defendants was wanton. If plaintiffs’ theoiy is to be accepted, it is not clear how the negligence claim would be anything but a reiteration of plaintiffs’ intentional infliction of emotional distress claim, which asserts liability on the basis of intentional or reckless disregard of plaintiffs’ rights. In fact, the authority plaintiffs cite in support of their position exposes the infirmity of their theoiy: ‘The general rule of negligence has no application to willful or wanton wrongs.’ Bowman v. Doherty, 235 Kan. 870, Syl. ¶ 2, 686 P.2d 112 (1984). It is not clear whether plaintiffs also taire the position that the defendants are liable for simple negligent infliction of emotional distress (arising out of conduct that was not wanton). To tire extent the negligence claims are not based upon intentional or wanton conduct, in the absence of contemporaneous resultant physical injury, the claims cannot stand.” 817 F. Supp. at 1509.
We agree with this analysis of Kansas law. The exception to the physical injury requirement in a negligent infliction of emotional distress claim is nothing more than the tort of outrage. The trial court did not err in dismissing plaintiffs’ claim of negligent infliction of emotional distress for failing to allege physical injury. The claim was time barred by the 1-year statute of limitations contained in K.S.A. 60-514(b).
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The opinion of the court was delivered by
Mason, J.:
Mary Emma Hannon recovered a judgment against the Grand Lodge of the 'Ancient Order of United Workmen of Kansas, upon a beneficial certificate issued to her husband, and it appeals.
1. The defendant is a fraternal beneficiary association, ’ incorporated under the laws of this state. Its appeal was not takén within sixty days after the rendition of the judgment, and the plaintiff moves to dismiss on that ground. The statute provides that any such association, “which shall fail to pay any judgment rendered against it in any court in this state, unappealed from, within sixty days of the rendition of- such judgment, . . . shall be excluded from doing business within this state.” (Gen. Stat. 1915, § 5413.) This provision has been interpreted as requiring an appeal by such an association to be taken, if at all, within the time named, and as authorizing the dismissal of its appeal if perfected after that period! (Modem Woodmen v. Heath, 71 Kan. 148, 79 Pac. 1091; Daughters of Justice v. Swift, 73 Kan. 255, 84 Pac. 984.) The defendant seeks to avoid this effect of the statute by contending that it applies- only to foreign associations authorized to do business in this state. , It has not heretofore been so régarded. The appellant in the case last cited was a Kansas corporation. The language used to describe the penalty imposed for a failure to comply with the requirement referred to — exclusion from doing business in the state — tends to suggest that a foreign-rather than a domestic corporation - was in the mind1'of the draftsman of the act, and expressions which it elsewhere employs have a similar tendency. But a consideration of the statute as a whole makes it clear that domestic corporations are covered by the provision under consideration, and by the other provisions of the same section, so far as they are in their nature applicable. The second section of the act (Gen. Stat. 1915, § 5402) refers in terms to associations organized under the laws of this state, and the section requiring the payment of unappealed judgments within- sixty days also contains a provision for an injunction against a company which violates that or any of - the stated requirements, and adds that a receiver may be appointed “in case of a perpetual injunc tion allowed, under the provisions of this section, against an association incorporated under this act or other law of Kansas.”
2. The defendant also maintains that inasmuch as the statute referred to was enacted in 1898 the portion of it requiring appeals by fraternal beneficiary associations to be taken within sixty days was annulled by the adoption of the present code, in 1909, containing a section repealing the former code of civil procedure, “and all acts amendatory thereof and supplemental thereto.” (Civ. Code, § 755.) A number of statutory provisions, limiting the time within which certain actions shall be brought, are found outside of the code of procedure, such as that relating to the recovery of land sold for taxes (Gen. Stat. 1915, § 11,456) or those relating to injunctions against assessments for local improvements (Gen. Stat. 1915, §§ 1352, 1783, 1970). These provisions in a sense may be said to be amendatory of and supplemental to the code of procedure. But essentially they are independent enactments, and have been so treated. The existence of special limitations to be found elsewhere is recognized by the code itself. (Civ. Code, § 14.) And these special limitations are not subject to the exceptions provided in the code. (Beebe v. Doster, 36 Kan. 666, 14 Pac. 150.) Doubtless many statutes relating to substantial rights, and dealing with matters of procedure only incidentally, contain provisions that by necessary implication restrict the application of sections of the code, and may to that extent be said to amend or supplement them. But clearly the legislature had no thought of wiping out these special limitations and restrictions when it repealed the old code and “all acts amendatory thereof and supplemental thereto.” Its obvious purpose was to install a new procedural system, complete in itself, and superseding all former legislation directed to that specific subject. The repeal reached all acts which expressly amended or supplemented the code, but not thqse which affected it only impliedly and incidentally.
3. Notwithstanding that the appeal was not taken within the prescribed time, the questions sought to be raised have been examined upon their merits. The plaintiff’s case rests upon her claim to have shown that her husbánd had disappeared and had not been heard from for more than seven years, under circumstances that warranted a presumption of his death, within the rule applied in Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, 77 Kan. 401, 94 Pac. 788, and Caldwell v. Modern Woodmen, 89 Kan. 11, 130 Pac. 642. The defendant maintains that the showing failed, chiefly because it did not appear that sufficient diligence had been exercised to trace and discover the missing person. We think there was evidence enough on that point, the details of which need not be stated, to take the case to the jury.
4. After the plaintiff’s husband joined the defendant association it adopted a new by-law in these words:
“Mysterious disappearance or unexplained absence of a member shall never be considered proof or evidence of death of such member.”
Complaint is made of the giving of this instruction regarding it:
“This by-law as far as it controls or governs the action of the A. 0. U. W. in determining whether a member is dead, would be binding, but you are instructed that no by-law of the association can control or prevent the courts and juries from applying the usual rules of evidence in the trial of cases coming properly before them and in arriving at a verdict you are not bound thereby and may disregard the same.”
The application for membership contained an agreement to comply with all laws, rules and regulations thereafter enacted by the order. The power of the association to make the bylaw in question binding upon one who was already a member depends upon whether or not it was reasonable as applied to him. (Uhl v. Life Association, 97 Kan. 422, 155 Pac. 926.) If it were to be given effect in the trial of an action brought upon the beneficiary certificate previously issued to such a member, it would amount to a declaration of a rule of evidence to be applied by the court to the determination of a question of fact —a regulation of the amount and character of evidence by which such fact might be determined. It is one of the functions of a court, where the rights of the parties to a controversy turn upon a disputed matter of fact, to investigate and decide, for the purpose of that case, the question at issue. Its decision may be mistaken, but it is binding on the parties to the litigation because it is necessary that some final settlement of the disagreement should be had. That the probability of correctness may be increased rules of evidence, which ex perience is thought to have shown to be salutary, have been established. One of them is that the unexplained absence of a person for a period of seven years, during which time he has not been heard from, although inquiries concerning him have been diligently prosecuted, is sufficient to raise a presumption of death. The courts do not assume to say that mere absence or disappearance shall ever be given the effect of death, but that disappearance and absence for a fixed period, accompanied by certain other circumstances, may constitute prima facie evidence that death has actually taken place. For the fraternal association to require a court to disregard that rule in an action where one of the issues is whether a member, to whom it had issued a certificate payable at his death, is living or dead, would be substantially to impose upon that tribunal a new method of procedure, much as though it were to direct that death'was not to be regarded as having taken place unless it should be proved beyond a reasonable doubt, or by the testimony of witnesses who saw' the corpse and identified it from personal acquaintance with the member. We think such a regulation as applied to existing certificates is unreasonable, and therefore transcends the power of the association.
The rule as to'the circumstances under which unexplained absence shall be deemed to raise a presumption of death is so well settled in this state as to have acquired substantially the force of a statute. It has been declared and applied by the courts and acquiesced in by the legislature. Where the rule has been confirmed by statute, by-laws similar to that here involved have been held inoperative as to certificates already in existence (Samberg v. K. O. T. M. M., 158 Mich. 568; Sovereign Camp of Woodmen of the World v. Robinson, [Tex. Civ. App.] 187 S. W. 215), and even as to those thereafter issued (Supreme Ruling of Fraternal Mystic Circle v. Hoskins, [Tex. Civ. App.] 171 S. W. 812; Utter v. Insurance Co., 65 Mich. 545). ,
In the case last cited it was said:
“Courts will not permit the course of justice, upon trials before them, to be stipulated or contracted in such manner as to defeat the ends to be subserved by such trials. The parties to the contract can not agree to oust the courts of jurisdiction over such contract. The operation of this clause, requiring direct and positive proof, in many cases would, in effect, preclude the court from jurisdiction and bar a recovery. If they can make this agreement, they can also stipulate that the evidence must come from certain persons, or make any agreement they see fit, controlling and directing the course of proceeding upon the trial. They may contract in relation to a condition precedent before bringing suit, or in relation to anything going to the remedy, but not to the right of recovery itself.” (p. 554.)
Upon this principle it has been decided that a mutual insurance association may not by any regulation it can adopt restrict the right of the holder of an existing policy to sue upon it in any court to which the law gives him access. (Eaton v. International Travelers’ Ass’n, [Tex. Civ. App.] 136 S. W. 817; Ñute v. Hamilton Mutual Insurance Company, 72 Mass. 174.) In the case last cited the by-law appears to have been adopted prior to the making of the contract sued upon.
A by-law suspending a member of a fraternal benefit association who has disappeared, if he does not. make known his whereabouts within a stated time, has been held to be enforceable against existing members (Royal Arcanum v. Vitzthum, 128 Md. 523), but that involves a different question.
A conclusion contrary to that we have reached was announced in McGovern v. Brotherhood of Firemen and Engineers, 31 Ohio Cir. Ct. Rep. (Ohio Cir. 1910) 243, but we are not satisfied with the reasoning employed. The cases there citied on this proposition did not involve any question of retroactive operation. Moreover, the petition in that case did not aver that the insured was dead, but merely set out the facts as to his absence for seven years. A by-law providing that a benefit association should not be liable for disability or death of a member resulting from the discharge of firearms, when there was no other witness thereto, was held valid as to existing certificates in Moses v. Illinois Commercial Men’s Ass’n, 189 Ill. App. 440. But that decision appears to have been based largely upon the argument in Boeh v. Protective Ass’n, 164 Iowa, 199, where the by-law was in force when the certificate was issued.
In Arnold v. Heptasophs, 123 Md. 675, a by law limiting the time within which an action might be brought was held to be enforceable even with respect to certificates already issued, but the question there discussed was whether the parties to a con tract can by an agreement incorporated therein shorten the statutory period of limitation, the authorities cited going no further than to indicate that this may be done. The right of a fraternal benefit association to fix a new time limit for actions on outstanding certificates was denied in Rosenstein v. Court of Honor, 122 Minn. 810; it was there stated, however, that so far as the record, disclosed no notice of the. change had ever been given, and neither the insured nor the beneficiary knew of it prior to the bringing of the action. In a later case the same rule was applied without reservation. (Kulberg v. National Council, 124 Minn. 437.)
The judgment is found to be sustainable upon the merits, but for the reason already stated the appeal is dismissed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover for pasturing certain cattle. The jury found in his favor for the sum prayed for less five hundred dollars. The defendants appeal. The contract over which the controversy arose was, aside from the formal parts, in these words:
“Witnesseth, that the said party of the first part this day agrees to pasture for said parties of the second part, in his pasture known as the ‘Hume Pasture,’ four miles east of Bazaar, Chase county, Kansas, nine hundred and three head of cattle; that said first party agrees to receive all of said cattle at the station in Bazaar, Chase county, Kansas, and to deliver the same to said parties of the second part in any number they may desire at said station during said pasture season or at the end thereof; that when said season closes, said first, party agrees to be responsible to second party for all cattle lost during said pasture season, and agrees to pay them for such lost cattle, what said steer or-steers that may be lost cost second parties, together with the freight added; in case any cattle die then first party shaft keep the brand and • shall not be liable for all cattle that may die during said season. Said first party shall keep salt at all times in said pasture for said cattle.
"In consideration of the covenants set forth above, second parties agree to pay first party eight dollars per head for the pasturing of said cattle, to be paid when said cattle are taken out of said pasture, but should said cattle be kept in said pasture to any date later than October 1, 1913, then second parties agree to pay said first party all of said rent on the first day of October, A. D. 1913.
“This contract is for the year nineteen hundred thirteen.”
When the case was here before (Cox v. Chase, 95 Kan. 531, 148 Pac. 766) it was held that the trial court erred in denying the defendants’ offers to prove and directing a verdict for the amount sued for. It was said that'in the course of the trial the judge remarked that he did not regard the contract as a lease, but as an agreement to pasture so many head of cattle on that pasture. The exact language shown by the abstract in that case was:
“I don’t regard this contract — I haven’t in my reading of it, regarded this contract as a lease of that pasture to dispose of it; it is an agreement to pasture so many head of cattle on that pasture.”
It was held “that the contract is essentially one for the pasturage of cattle and is not a lease.” (p. 535.) It was said that “in the case of Brown v. Trust Co., 71 Kan. 134, 80 Pac. 37, relied on by the plaintiff, the parties went over the pasture and examined it before contracting, while here the defendants had never seen the pasture, and had a right to assume that it would supply water as well as grass for their cattle.” (p. 536.) It was also stated (p. 536) that authorities directly in point had not been cited or found. Notwithstanding all this we are now met with the repeated assertion that the only reason we did not construe the contract as a lease was the decision in the Brown case. At page twenty-seven of his brief the plaintiff says:
“That the construction that should be placed on the contract in this case is somewhat doubtful, is proven by the fact that a learned district judge construed the contract to be a lease, and this court construed it to be a contract for the pasturing of cattle. However, if all the facts had been before this court, that were placed before the trial court at the last trial, we have no doubt but what this court would have held that this construction came within the ruling laid down in the case of Brown v. The Trust Company, 71st Kan. p. 134; and should be construed as a lease.”
He capitalizes the provision to pay all the “rent” ón the 1st of October and reminds us that the parties “so construed the contract so as to bring it within the rule laid down in the Brown case,” also that “Brown went out to see the pasture before he signed the contract, which was just such a contract as the one in question.” But to make it more specific we are told on page thirty-six that we construed the contract as one for pasturing cattle and not a lease, “for the reason that appellants never saw the pasture.” Italics are used on page thirty-seven to reiterate the proposition that knowledge of the pasture, before signing the contract, was the “test by which such a contract is held to be or not to be a lease.” One strange thing about this is that the contract in the Brown case (71 Kan. 134, 80 Pac. 37), although in many respects different from the one under consideration, was not construed to be a lease. It was held to be a “contract” “for the furnishing of a particular pasture, and not for furnishing sufficient pasturage for a certain number of cattle.” (Syl. ¶ 2.)
“The agreement was to furnish a particular pasture at a certain price; that plaintiff’s 1800 head of cattle should be pastured there, and, in effect, that it should not be overstocked by putting other than plaintiffs’ cattle in the pasture. So it appears that plaintiffs got what they contracted for — the Stevens pasture.” (p. 137.)
The Brown contract bore little, and this bears much less, resemblance to a lease.
“A lease is a contract for the possession and profits of lands and tenements, either for life or a certain term of years, or during the pleasure of the parties.” (5 Words & Phrases, p. 4043; Lumber Co. v. Malone, 8 Kan. App. 121, 123, 54 Pac. 692; 24 Cyc. 894.)
The resident of the town who sends his cow to pasture at so much a month does not thereby become the lessee and tenant of such pasture. Neither does the cattleman who contracts with a ranchman to pasture his cattle in a certain field or pasture for a season. Were the full possession and control of the pasture turned over to and assumed by the cattleman the relation of landlord and tenant might arise and the contract might be one of lease instead of agistment. This is defined to be “where a person takes in or feeds or depastures horses, cattle, or similar animals upon the land for reward.” (1 Words & Phrases, p. 278.) This with precision and exactitude fits the contract here involved and more nearly that in the Brown case than does the definition of a lease.
The answer averred a failure to give the cattle the attention due from an ordinarily prudent man to his own cattle, failure to keep the defendants informed as to the conditions of the pasture, a failure of water and a shrinkage and damage.
After the case was remanded the reply, which alleged proper care and notification, was amended by adding an averment of a refusal to guarantee water and full knowledge of the pasture on the part of the defendants before making the contract.
A large amount of testimony was received touching the alleged refusal of the plaintiff to guarantee water before the contract was made, but as this evidence and the instructions thereon were withdrawn from the jury it can not be said from anything appearing in the record that defendant suffered mar terial prejudice by its admission.
Over the strenuous objections of the defendants the court admitted evidence showing the weight of the cattle when they were taken into the pasture and the amount they had gained when taken out. It is argued that not only was this prejudicial error but it gave the vigilant and learned counsel for the plaintiff the chance to make a most telling but specious argument to the jury about the great profits the defendants had made from the flesh put on the cattle from the nutritious grass in the Hume pasture. As the burden of the defendants’ cross-petition was that they had suffered loss by the shrinkage of the cattle on account of the failure of water and the failure to notify them thereof, and as they introduced evidence tending to show such shrinkage and loss, it was competent to show the actual condition and gain in order that from the entire evidence the jury might arrive at the proper conclusion.
Complaint is made, however, that the court refused proffered testimony to the effect that cattle from the same herd and bearing the same brand, pastured in another county where the water did not fail, gained twenty to forty pounds more a head than those pastured by the plaintiff and were in good condition when sold, twenty or thirty days later, than those removed from the Hume pasture on account of the failure of water, and that they brought a much better price. This was ruled out as incompetent, the pasture in question being sixty or seventy miles distant from the Hume pasture. While it is claimed and the defendants offered to show that this pasture was of the same general character it is impossible to blink the fact that this testimony involved collateral issues as to the comparative. conditions of the two pastures touching soil, water, grass and possibly other matters, and while probably it would not have been error to receive such testimony (3 C. J. 40) we are unable to find that its exclusion was materially erroneous.
The court refused an instruction that the defendants were entitled to the benefits of their bargain, and that the gain made by the cattle in the Hume pasture should be considered as bearing on the question of the plaintiff’s care of the cattle while in the pasture, but not as minimizing any damages by reason of loss of weight or loss of market condition which may have arisen from any act of negligence upon the part of the plaintiff in the care of the cattle while in his pasture. The court did instruct that if the defendants were compelled to remove their cattle before they would have done so in the course of their business by reason of the water failure, the consideration for the contract of pasturage thereby partially failed and they would be entitled to have the bill reduced in an amount proportionate to such failure.
“In estimating such damages . . . [the jury] should take into consideration the time from the taking of the cattle until the close of the pasture season, together with the reasonable value thereof, and the benefits received, as compared with the value of the whole pasture season.”
The requested instruction should have been given in view of the evidence touching the gain and weight of the entire herd pastured by the plaintiff, but the charge given so nearly included the essentials of the one refused that we can not hold its refusal materially prejudicial.
The refusal of an express instruction touching the effect of a failure of water is complained of, but this point was sufficiently covered by the charge given by the court.
Neither can the rejection of evidence as to the current price for good pastures in the same vicinity be availed of, for the two reasons that its reception would not have shed any light on the issues, and further that it, like that offered as to the cattle kept in other pastures, was not presented on the motion for new trial as required by section 307 of the civil code. (Miller v. Foundation Co., 93 Kan. 38, 143 Pac. 493; Stout v. Bowers, 97 Kan. 33, 154 Pac. 259; Muenzenmayer v. Hay, 98 Kan. 538, 159 Pac. 1.)
The court struck out the testimony of one of the defendants, that in the ordinary course of their business they would not have shipped the cattle which were taken out of the pasture if there had been sufficient water until thirty days later or possibly longer than that. This was error, and counsel say that it left no basis for that part of the ninth instruction touching the partial failure of consideration. But as the witness was permitted to state the market conditions thirty days after these shipments were made, no substantial harm was done by the ruling complained of.
The jury were sent out Saturday afternoon, and failing to reach a verdict were excused until Monday morning when the court announced a desire to change .slightly some of the instructions and withdraw those touching the refusal to guarantee water, and told the jury that this left with them the question of finding what the damages were by reason of the plaintiff’s neglect, if any; also the question of partial failure oi; the consideration, if it were a fact, of the water failing in the pasture so that the defendants did not have the full enjoyment of the pasture season.
“And if you find that they took the cattle from the pasture without the full enjoyment of the pasture season, either by reason of the negligence of the plaintiff or by reason of the failure of water, then you are instructed that you will ascertain what that failure of consideration was by taking into consideration the failure in length of the pasture season and the benefits that were derived, and the benefits that would have been derived for the whole of the season, taking into consideration all those circumstances in determining what damage, if any, resulted from failure of consideration.”
The court further said:
“In taking this away entirely, I expect I ought to express a little more fully the burden that is upon the defendants in this case. That is, that the burden is upon the defendants to prove by a preponder anee qf the evidence that the water supply was insufficient for the cattle, and that they were damaged by reason thereof. The burden is upon the defendants to show negligence on the part of the plaintiff and the failure of this water supply and that they were damaged by it and also the amount and extent of their damages so far as any failure of consideration may have been concerned.”
The abstract shows that counsel here suggested that these remarks ought to be written and appended to the instructions for the guidance of the jury, to which the court responded :
“The instructions are not really changed except those matters were cut out of it and you may go out and consider this case and if you have any difficulty with your instructions come in later and we will discuss that matter later.”
After having been out for some time the jury returned into court and announced that they had reached a verdict, but it was not received. The court said:
“I am going to reinstate a part of the instructions I took from your consideration awhile ago and I will mark it here, and I will let you go back and examine the instructions in connection with this evidence and then if you still want to return a verdict it is all right and if you don’t, you may change it to suit the circumstances.”
Later the jury returned a verdict for the plaintiff in the sum of $2209. The court having instrúeted in writing (whether so requested or not we do not know) there was no opportunity for counsel to request the additional instructions to be in writing until the court was in the act of giving them, and the fact that he did not interrupt with his request until they had been at least partially delivered is no reason why he should not have the benefit of such request; but as the remarks of the court were taken down by the reporter, and as there was no request to make further argument to the jury, without which such instructions if reduced to writing could not have been used by counsel in presenting the matter to the jury, and as really no véry important change adverse to the interest of the defendants was made by the court in the instructions so given, it can not be said that they suffered any substantial prejudice by the failure to reduce the remarks of the court to writing.
It must be remembered that the withdrawal of the matters referred to from the jury operated favorably to the defend ants, although of course the effect of such withdrawal on the minds of the jurors may have been more theoretical than real. But we are forbidden both by precedent and by statute to reverse causes except for prejudicial error affirmatively appearing when it appears that substantial justice has been done in the case. (Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034; The State v. Hammon, 84 Kan. 137, 146, 113 Pac. 418; Saunders v. Railway Co., 86 Kan. 56, 119 Pac. 552; Root v. Packing Co., 94 Kan. 339, 147 Pac. 69; Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648; Elevator Co. v. Harrison, 97 Kan. 289, 292, 154 Pac. 1016; Emery v. Bennett, 97 Kan. 490, 493, 155 Pac. 1075.)
We can not supersede the jury’s verdict with one of pur own,.for that would mark a new era in judicial procedure. On the contrary, we must assume, in the absence of a showing to the contrary, that their handling of the facts wrought substantial justice — not only to one, but to both of the parties. In this state error does not raise the presumption of prejudice. Experience has led to the classification of errors into those termed prejudicial and that greater legion denominated harmless. To give reversing potency to the latter would be to step aside from'the path of judicial progress.
Nó substantial and prejudicial error having been made to appear, the judgment is affirmed.
Porter, J., dissenting. | [
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The opinion of the court was delivered by
BURCH, j.:
The action was one for damages for personal injuries sustained by a pedestrian while attempting to use a sidewalk on the margin of a city street.- The plaintiff recovered and the defendant appeals.
The sidewalk was constructed of- cement and was in good repair. At the place where the injury occurred the surface of the sidewalk was fifteen and a half inches above the surface of the street, and the sidewalk, which was elsewhere eight feet wide, was narrowed by a building which projected into it a distance of nearly three' feet.
The plaintiff is a farmer who visits the city only occasionally. He had some acquaintance with the walk and had noticed that it was high. He had not been in the city for about five months before the night of December 19, 1913, when he was injured. The night in question was very dark and rainy. The street lamps were not lighted and there was no railing along the outer edge of the walk. The plaintiff walked slowly along the sidewalk, feeling his way, keeping the projecting building in sight as well as he could, and trying to see the edge of the sidewalk, when he fell into the street below and broke his right ankle.
With the general verdict in favor of the plaintiff, the jury returned the following findings of fact:
“Q. 1. Were the street lamps on Main street lighted at the time of the accident on December 19, 1913? A. No.
“Q. 2. If you answer question No. 1 in the negative, then was the defendant city negligent in not having its street lamps lighted? A. Yes.
“Q. 3. Was plaintiff injured on the night of December 19, 1913? A. Yes.
“Q. 4. If you answer question No. 3 in the affirmative, then would such injury have occurred if the street lights had been lighted? A. No.
“Q. 5. Was the plaintiff guilty of contributory negligence? A. No.
“Q. 7. On the night of the accident were there any guards of railings on the curb side of the walk where the accident occurred to prevent persons using the walk from stepping or falling off? A. No.
“Q. 8. If you answer question No. 7 in the negative, then state whether plaintiff would have fallen off said walk if there had been guards or railings placed along the curb side of said walk? A. We believe it not likely.”
The defendant claims that as a matter of law it was not guilty of negligence. The substance of the argument is that there must of necessity be different levels in any plan of street improvement. Plans for street improvements, street lighting, and the like, are subjects committed to the judgment and discretion of the governing body of the city. When officers of a city exercise their best judgment, adopt a plan of street improvement, and following that plan construct the improvement according to approved methods, the city is not liable at all for incidental damages, and is liable to persons using the street only in the event that the improvement is manifestly unsafe. If the plan be one which many prudent men would approve, or if it be so doubtful whether or not the improvement be dangerous for use that different minds might entertain different opinions with respect to it, the benefit of the doubt must be given to the city. Several distinct subjects are embraced in this argument.
The city could light its streets or not, at its pleasure. Having installed lamps, the city could light them on such nights and during such hours as it pleased. These are subjects to be dealt with according to the judgment and discretion of the city authorities, and whatever their action, no legal duty is violated. In this case, however, liability was not predicated on the failure of the city to light its streets. The basis of the action was breach of duty to maintain a street devoted to public use in a condition reasonably safe for the public to use.
The city had a right to plan the street improvement according to its discretion. It could improve all or only a part of the street. It could build a sidewalk or not. It could establish the grade of the street and the grade of the sidewalk at different levels. It could fix the location and width of the sidewalk, the same as it could choose the materials entering into the construction of the walk. Considering merely the subject of the nature and extent of street improvement, no one could complain, whatever the city might do or forbear doing. The city, however, rested under the positive legal duty to keep its streets and sidewalks in a condition reasonably safe for their intended use. No matter how carefully plans of improvement were considered, and no matter how faithfully the adopted plan was executed, if the result were actual peril to persons using the street with due care the duty to make and keep the street reasonably safe for travel was not fulfilled and an action would lie in favor of one suffering injury consequent upon the breach of duty.
Decisions of this court established and illustrating the foregoing principles are very numerous. Among them are the following. City of Atchison v. Challiss, 9 Kan. 603; Methodist Episcopal Church v. City of Wyandotte, 31 Kan. 721, 3 Pac. 527; Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822; City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; McGrew v. Kansas City, 69 Kan. 606, 77 Pac. 698; The State v. Concordia, 78 Kan. 250, 96 Pac. 487.
The law fixes the standard of the city’s duty. Streets and sidewalks must be such that public travel on them may be reasonably secure. If on the trial of a case it be doubtful under the evidence whether or not a city has measured up to that standard, if the evidence be conflicting, or furnish the basis for different inferences, the jury pronounces on the subject of liability or nonliability after having been instructed regarding the law. If there be no conflict of evidence or inference from evidence to be resolved, the situation is the same as if the entire case were stated in a petition against which a demurrer has been lodged. The jury has no function to perform, and the court applies the law and states the result. In either instance there is no presumption whatever, either for or against the propriety of the city’s conduct. In the field of official discretion, the planning and construction of street improvements, all presumptions are in favor of correct official conduct. In the field of peremptory duty, to conform their work to a certain standard, no premium is placed on the judgment of city officers. The question is, Have they conformed? and the court and jury determine the case precisély as they do other cases involving charges of imprudence and misconduct.
The standard applied by the court, or by the jury under the direction of the court, rests in a supposed generalization of the experience of ordinarily prudent men. The fact that the generalization has not been and can not be crystallized into perfectly definite form, as, for example, that curbing shall not be more than eight inches high, does not detract from the authority of the standard (Ellsworth v. Jarvis, 92 Kan. 895, 141 Pac. 1135), and affords no basis for assuming that work-planned and executed by the officials of a municipal corporation reaches the required standard of perfection. In the case of Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, it was- said that the benefit of the doubt might properly be given the city when under the facts it is so doubtful whether or not the street planned by the city is dangerous that different minds might entertain different opinions about the matter. It was not said that benefit of the doubt must be given the city. No governing principle was stated. No new standard was set up — diversity of opinion instead of reasonable prudence. The issue was not shifted from whether or not a sidewalk is dangerous to what different people may think about it. The statement amounted to no more than an observation on how the mind might operate when in grave doubt. In this case thé question whether or not, under all the circumstances, including the encroachment of the building, the absence of light and the absence of a railing, the sidewalk was reasonably safe if used at night by a person who exercised due care on his part, was properly submitted to the jury.
The defendant claims that as a matter of law the plaintiff was guilty of contributory negligence. Stress is laid on the plaintiff’s knowledge of the condition of the walk. This court has said time and again that a pedestrian may use a defective street or sidewalk, knowing its condition, without being guilty of contributory negligence, and may do so after dark. The question always is, whether or not under all the circumstances the pedestrian exercised due care. In this case the question was properly submitted to the jury.
.The cause was submitted under admirable instructions, the verdict and findings were sustained by sufficient evidence, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by -
Mason, J.:
The C. C. Jones Investment Company sued F. D. Lowrey for a commission on the sale of bank stock. A demurrer to the petition was sustained, and the plaintiff appeals.
The petition alleges that a sale of the stock was made by the defendant to a customer produced by. the plaintiff. The question in controversy is whether the facts set out show an employment. The defendant maintains that under the allegations of the pleading the plaintiff volunteered his services and is for that reason entitled to no compensation. The solution of the question presented depends upon the effect given to the letters interchanged by the parties. On March 19, 1911, the plaintiff wrote to the defendant:
“At the present time we have a very strong demand for active interests ingoodbanks, and we are now in touch with several bankers who would like to buy some stock carrying with it an official position in an institution in your territory. If for any reason you would consider making a sale of your banking interest, please let us know at once and we will be glad to give our best efforts to assist you in making a satisfactory sale to one of these parties. You need have no hesitancy in giving us detail information in regard to your bank, as we used the most approved confidential method in handling this business.”
■ The defendant answered on the 28th of the same month:
“Yours received. While I am not anxious to sell out, I might consider it providing it was satisfactory to the other stockholders. The price would be about $175.00.”
■ In January, 1912, the plaintiff sent the following letter, to which no reply was returned, the sale being made to the customer named, about ten days later:
“Mr. John E. Wagner, who is an experienced banker and is looking for a ¡proposition where he can purchase an active-interest in a bank similar to yours, was in our office the other day and stated that he would be glad to take the matter up with you. We advised that he call on you at as early a date as possible. If he enters in negotiations with you and you think we could render you further assistance by coming to Earned.and helping to close a deal, let us know and we will be glad to do so. You of course understand Mr. Lowrey that we charge the usual commission of $5 per share on the amount of stock sold.”
,,We hold that these allegations show a liability on the part of the defendant. The first letter was an offer of the plaintiff’s aid as a broker to find a. customer for the stock, and the de fendant was bound to presume that the services, if they were accepted and proved successful, were to be compensated, there being nothing whatever to suggest that a gratuity was intended. The letter in reply, indicating a willingness to sell at a price named, was fairly to be interpreted, in the absence of anything to the contrary, as a qualified acceptance of the offer —an invitation to the plaintiff to produce any probable customer it might find, in the expectation of receiving a commission if a sale should be brought about through its efforts. A somewhat similar question was presented in Johnson v. Huber, 80 Kan. 591, 103 Pac. 99. There a real-estate agent wrote to a landowner asking if he would sell, and asking for a price, including commissions. He answered merely giving his price and saying that the tract could not be sold without the consent of the tenants. The court said:
“We have no difficulty in determining that the first letter and the reply should be construed as a contract authorizing the .plaintiff to find a purchaser for the land, the price to be $2000 cash, net, provided arrangements could be made with the tenant as to time possession should be given.” (p. 595.)
(See, also, Stephens v. Scott, 43 Kan. 285, 23 Pac. 555; 4 R. C. L. 248; Note, 27 L. R. A., n. s., 786.)
The judgment is reversed and the cause remanded with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued J. H. Price & Sons and J. R. Burnett under the workmen’s compensation act by reason of an accident in a coal mine where the plaintiff was working. Afterwards the J. R. Burnett Coal & Mining Company was substituted for J. R. Burnett, defendant, and from a judgment in favor of the plaintiff against both defendants the Burnett company appeals. The plaintiff alleged, among other things, that on or about the 31st day of January, 1912, the J. R. Burnett Coal & Mining Company, as lessor and principal, entered into a contract with the James H. Price & Sons Company, as lessees and contractor, whereby the Prices were to mine certain coal pursuant to an agreement set out as an exhibit, and that in pursuance of this contract and under the terms thereof, the Prices began operating a shaft; that a part of the business of the Burnett company was to contract for the removal of coal and to buy the outfit of strip pits and other shafts and buy and sell coal on the market; that by the terms of the contract the Burnett company was liable.
The plaintiff insists that the decision in Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, controls.
The coal company contends that under the workmen’s compensation act the principal and subcontractor can not be sued jointly; that the Pottorff decision does not apply; that the coal company was served with no notice of injury or claim for compensation, and no waiver was shown, and that this defendant is not liable on any theory. The claims of counsel as to what the evidence was are so diverse that the transcript itself has been carefully examined, with the result that aside from the contract, the only evidence found touching the relation of the two companies is that the Prices operated the mine under the contract, the coal company exercising no control thereover whatever, and that the miners were paid by Price & Sons.
The contract is in form a lease covering the mine and its entire equipment, the work of mining to be prosecuted continuously and industriously from the first day of February. 1912, until all the workable or minable coal should be taken out. Lessees were to furnish all posts, ties, caps and mine timbers and all other necessary materials to carry on a successful mine operation; to pay all costs, charges and wages in whatsoever nature involved in the operation of the mining; to work the mine in compliance with the mining laws of the state; to permit the lessor or its agents to inspect and examine the equipment and mine at any and all times, the development of the mine and ground, the work to progress on lines estab lished by the mining engineer of the lessor; the mine to be surveyed twice a year and blue prints thereof furnished; the lessee to permit an examination of its books and papers pertaining to weights and the daily bulletin from which miners’ wages were paid, for the purpose of ascertaining the total output. The mine was to be turned back to the lessor in good condition, ordinary wear and tear of equipment excepted, the lessee to maintain the same at its own cost, replace parts broken and not to suffer any removal thereof except for repairs, and to employ only competent men to handle the machinery. The lessees were to purchase six mules from the lessor and to accept and pay for all feed, • props and mine timber on hand February 1, 1912, at actual cost to lessor, the mules to be paid for in monthly installments on a basis of ten per cent of the net earnings of the lessee. All coal taken out or removed was to be loaded in railroad cars on tracks at the mine on orders of the lessor and subject only to its disposition—
“One of the principal objects of this agreement on the part of the lessor company being to secure the entire output from this mine,^ it being expressly understood that the lessees are not to dispose of, or sell any coal in wagon-load lot mined from said land, except to employees as per contract with the U. M. W. of A. and said lessees shall pay the difference between the U. M. W. of A. contract price per ton and the price per ton paid to lessees by lessor under this agreement.”
The lessee was to furnish clean marketable coal at $1.25 a ton, payment to be made on or before the 20th of each month for all coal furnished to lessor the preceding calendar month.
“Cash shall be advanced to enable the lessee to meet pay-rolls as per contract with U. M. W. of A., but no money will be advanced in excess of the value of the coal mined on the date such advance is made.”
The lessee was to have equal running time with other mines mentioned or that might be operated with the lessor during the life of the contract, but unless the lessee should furnish clean, marketable coal the running time should be reduced according to complaints. No assignment was to be made or anyone permitted to come in under the lease except upon the written consent of the lessor. The tenth paragraph was to the effect that the lessee should be responsible for all damages of every nature whatsoever done to persons or property during the performance of the work or arising from any negligence of the lessee or any trespass by it or its. employees or agents, the lessor in no wise to be responsible for any claim, expense and costs in connection with such damages or injuries. In case the wage contract of district No. 14 should be altered and the cost of mining should thereby be changed the price for coal under this agreement was to be adjusted so as to conform to such change. . Any refusal of the lessee to comply with any provision of the agreement for five days after his attention should be called thereto in writing by the lessor was to authorize a termination by the latter of all rights of the lessee upon ten days’ written notice.
“But such termination shall not relieve the lessee from any obligation hereby imposed upon it except that of further prosecuting the mining, and nothing in this paragraph shall modify the provisions of paragraph ‘Tenth’. ”
It was further agreed, among other things, that James H. Price should give his personal supervision to the mine and the operation thereof during the term of the agreement. Mention was made of a former lease of a part of the mine called the Curran-Patmor part, which lease was to be respected by the parties to this contract. Finally it was stipulated that all the property placed on the premises by the lessees should be security to the lessor for any loss suffered on account of any. violation of the terms of the contract by the lessee and a lien thereon was expressly granted as if the mortgage extended thereover.
The trial court treatéd the contract in question as evidence of a partnership and instructed the jury that if they should find that the firm of Price & Sons was operating the mine under and by virtue of the contract, “then and under such circumstances, if they exist, the defendant, The J. R. Burnett Coal & Mining Company, will be deemed to have reserved some control over the work and workmen in said mine and therefore would iikewise be subject to the provisions of the Workmen’s Compensation Law along with its cbdefendants, said partners.”
In another instruction they were told that under such circumstances the Burnett company would be jointly liable along with the defendant firm of J. H. Price & Sons Coal Company for such injury. It is claimed that. Price & Sons were independent operators or contractors and according to all the authorities whether they were or not depends upon who had the right of control over the work. This was made plain in Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, approving the definition of the term “independent contractor” as “ ‘one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except' as to result of his work’ ”, and it yras said that “an independent contractor represents the will of his employer only in the result of his work and not-in the means by which it is accomplished,” and “ ‘the proprietor may make himself liable by retaining the right to direct and control the time and manner of executing the work.’ ” (p. 781.)
In a footnote to State, ex rel. Virginia & R. L. Co. v. District Court, 128 Minn. 43, in 7 N. C. C. A. 1076, citing numerous authorities, several of them involving cases somewhat similar to the one now under consideration, it is said that, “The principal element which controls in determining the relationship is apparently the extent to which the one undertaking the work is subject to or free from the control of the person for whom the work is done,” and it is pointed out that the right and not 'the fact of control is the determining feature, and that the test is the same in compensation as in other cases.
The company had a right to lease the mine and its equipment and provide that the coal should be taken out in a proper manner and delivered to the lessor or its order — developing the underground work in directions desirable to the owner as indicated by its engineer. It had a like right to provide that a breach of contract should work a termination of the rights of the other party and to require such party to respond for all damages incurred in the work. We find nothing in the contract which authorizes the lessor to say aught as to' who shall be employed in the mine, what hours shall be observed or what wages paid, or dictate in any manner save to require compliance with the plain terms of the agreement by virtue of which the lessee is to mine and deliver coal to the lessor or its order. In the Pottorff case the law stated in Railway Co. v. Lossley, 76 Kan. 103, 90 Pac. 990, was quoted to the effect that the fact that the one who engages a contractor to produce a given result “ ‘possesses a limited or partial control will not entail such a liability if the contractor is still left free to exercise his own will generally respecting, the methods and means of accomplishing the result.’ (Syl. ¶ 5.)” (p. 782.)
The contract contains nothing to indicate a partnership to share mutually in the profit or. loss of an enterprise. .It is either what it purports to be or else it is the creation of the relation of employer and employee, in which case the lessee was to act for, represent and to be responsible to the lessor in the mining operations. But there is nothing in the instrument tending to show any thought or desire to form such a'relationship. Several features relied on in the Pottorff case are wanting here, and there is not present here as there a manifest purpose to cloud with words a meaning to be extracted- by the searching eye of the law in'spite of such purpose. It was there pointed out that the agreement could be annulled at the pleasure of the company with or without default of the other party; that the owner might work the mines to their capacity, restrict production or stop the work altogether; that the company owned a store and the empolyees were to purchase all their merchandise supplies and powder thereat. These features are not found in the present contract. Much stress was laid also on the provision in that 'case that the lessee must quit should the work of the mines not be “agreeable” to the company, and that the company might operate the mines at full capacity or shut down entirely, according to its own requirements and demands —features that are not in the contract before us. From the contract itself and from the meagre portion of evidence abstracted and from the entire transcript nothing can be deduced to indicate that any miner employed by Price & 'Sons had any reason to believe or even suspect that he was working for the Burnett Coal & Mining Company, and we are unable to find anything to justify the conclusion that the company had any authority over or responsibility for such employees.
“It is not essential that one who engages a contractor to produce a given result should reserve, or should interfere and take, complete or exclusive control over all features of the work to render him liable as a master of the contractor’s servants, but the fact that he possesses some control will not necessarily entail such liability. No matter if the control go to the extent of conditioning the work in many aspects, still if the contractor is left free to exercise his own will generally respecting methods and means he is independent and the employer is not the master of his servants.” (Railway Co. v. Loosely, 76 Kan. 103, 121, 90 Pac. 990.)
In a note to Messmer v. Bell & Coggeshall Co., 133 Ky. 19, in 19 Ann. Cas. 1, it is stated:
“Where the employee represents the will of the employer as to the result of the work but not as to the’means or manner of accomplishment, he is an independent contractor. . . . The mere fact that the employer reserves a right to supervise or inspect the work during its performance does not make the employee a servant, where the mode and means of performance are within the control of the employee.” (pp. 12, 14.) '
.In Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498, the exception to the rule holding an owner liable when the work is intrinsically or inherently dangerous, discussed and applied in Railroad Co. v. Madden, 77 Kan. 80, 93 Pac. 586, was again considered at length and numerous authorities cited. It was said, however, (p. 362) that in the absence of legislation upon the subject the courts had not hitherto held as a matter of law 'that mining is so inherently dangerous as to make the owner 3iable for the negligence of an independent contractor, where it..is not shown that the mine was unsafe when the contract was made or that the owner reserved some control of its operation. From this two members of the court dissented, (p. 363) on the ground that mining is intrinsically dangerous. A similar holding and an expression by special concurrence in line with the dissent referred to may be found in Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578. These decisions were rendered in 1910 and 1911, respectively. In 1913 the legislature by section 2 of chapter 216 of the Laws of that year, amending the original compensation act, referred, among other things, to a mine and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, “each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary- risk to the life and limb of the workman engaged therein ‘ are inherent, necessary, or substantially unavoidable.”
The views of counsel as to the effect of this declaration have, since the submission of the case, been requested, received and considered, also their further views as to the matter of claim for compensation and the effect of section 4 of the original compensation act (Laws 1911, ch. 218), invoked by the plaintiff. Whether or not the exception would apply and the lessor as well as the lessee be liable were this an action for damages on account of negligence, need not be considered. This is an action for compensation, the question of negligence not arising. The amended petition alleged that J. H. Price in looking after the plaintiff and attempting to settle with him was acting for the Burnett company. After a demurrer had been overruled an answer was filed consisting of a general denial duly verified thus placing on the plaintiff the burden of showing the alleged agency of J. H. Price, of which there was no proof except the' contract itself, the effect of which has already been determined. Otherwise there was no allegation or proof of any claim for compensation made to the Burnett company. The failure to plead want thereof might well be held not to amount to a waiver of such claim as contended by the plaintiff, but a decision on this point is rendered unnecessary by the statutory provision relied on — section 4 of chapter 218 of the Laws*.of 1911. .This provides that when any person therein referred to as principal undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person, referred to as the contractor, for the execution of the whole or any part of such work the principal shall be liable to pay to any workman employed in execution of the work any compensation under the act which he should have been liable to pay if that workman had been immediately employed by him; that when compensation is claimed or proceedings are taken against the principal, then in the application of the act—
“References to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.”
Other provisions as to liability over and questions of pleading are made and subdivision “d” is as follows:
“This section shall not apply to any case where the accident occurred elsewhere than on or in, or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in, or about the execution of such work under his control or management.”
Whatever may be the basis of the liability of the owner in certain cases involving employment inherently dangerous, whether imputed agency, public necessity or other ground, real or fictitious, this statute attaches no liability for compensation to one who is not in the execution, control or management of the work wherein the injury occurs.
Finding nothing in the record showing such execution, management or control by the Burnett company, the judgment against this defendant must be reversed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an original proceeding in mandamus to compel the respondents, the school board of district No. 24, Stevens county, Kansas, to construct and erect two schoolhouses in the district, and to maintain two schools for the ensuing year.
The petitioners are residents and qualified electors of the district. The alternative writ alleges that on the 4th day of March, 1916, a special election was held at which the district voted bonds in the sum of $2000 for the purpose of erecting “schoolhouses”; that at the annual meeting held April 14, 1916, no action was taken in reference to the erection “of new schoolhouses for which said bonds were voted,” and no action was taken in regard to the disposition of the old schoolhouse which was situated on land not owned by the district. It is then alleged that thereafter upon a petition signed by ten resident taxpayers and legal voters of the district, the board called a special meeting to be held on the 22d day of May, 1916, for the following purposes:
“First: Building two school buildings in said district. Second: To locate the sites for said school buildings. Third: For the purpose of reconsidering the levy for school purposes for the year 1916. Fourth: To vote upon the proposition of disposing of the said old school building.”
It is alleged that at the meeting of May 22 a motion was duly made and seconded that the district build two schoolhouses with the proceeds of the bonds theretofore issued, that the motion was put to vote, and out of fifty-eight, which was the total number of legal voters in the district, there were thirty votes in favor of the motion and twenty-one votes against it, and that without any action being taken upon the other propositions for which the meeting was called the meeting adjourned.
The writ then alleges that a petition signed by a majority of the legal voters and taxpayers of the district was presented to the district board asking for a special meeting of the district, to be held June 20, 1916, for the purpose of “correcting minutes of last special meeting, and, 1. Locating the site for the new school building. 2. Raising the levy for school purposes for the year .1916, to $860.00. 3. To vote on the proposition of disposing of old school building.”
It is not alleged that the district board called this meeting; it is alleged that the notice was posted by the district clerk and the meeting held, at which it was lawfully determined that the sites for the two schoolhouses be located and the schoolhouses built as follows: One schoolhouse to be built one mile and a half south of the old schoolhouse on land (describing it.) One schoolhouse to be built two miles north of the old schoolhouse on land (describing it).
It is alleged that the respondents have torn down and destroyed the only school building in the district and that the district does not own or control a school building. The alternative writ was issued September 5, 1916, when the action was commenced, and directed the respondents to answer and show cause why the peremptory writ should not issue requiring them to construct two schoolhouses as provided for at the special meeting of June 20, 1916.
The respondents’ answer pleads quite fully the facts relied upon as a defense. This opinion may be shortened by referring to these facts later in connection with the evidence, which is comprised of depositions taken by the respondents. After the main witnesses on behalf of respondents had testified, all the petitioners were called as witnesses, but they refused to testify, two of them stating that they expected to testify before this court when the case was set for hearing. The case has been submitted on the pleadings and the evidence taken by the respondents.
School district No. 24, in Stevens county, is six miles north and south, and Tour miles east and west. The Seward county line bounds the district on the east and the Kansas-Oklahoma state line is the southern boundary. In 1908 a schoolhouse was built at the geographical center of the district upon land owned by F. B. Shinkle and under an agreement by which he was to convey the site to the district by warranty deed. Ever since the building was erected the school has been maintained at this place until the building was torn down as hereinafter stated. On June 7, 1916, Mr. Shinkle conveyed the land to the district by a deed which the district accepted and filed for record.
On March 4, 1916, at a special election, the district voted bonds in the sum of $2000, not as petitioners allege, for the purpose of erecting “schoolhouses,” but for the purpose of erecting a “schoolhouse” in the district. The controversy over the question of two schoolhouses developed later. The bonds were issued and sold to the state-school fund. At the annual meeting of the district, which was held April 14, 1916, no action was taken in regard to the disposition of the old schoolhouse. The meeting voted for an eight-months’ term of school and for a levy that would produce $525. The treasurer reported $150 on hand. There was a discussion with reference to having two schools in the district, but no record was kept of this discussion in the minutes. Mr. Brightup, clerk of the board, who is one of the petitioners in this action, opposed having more than one school, and explained to the meeting that it took $525 to run the one school the previous year, and he placed the figures on the blackboard showing it would take $1200 to run two schools, and informed the meeting that the assessed valuation of the district (which is $191,811 for the year 1916) was not enough to justify two schools without voting an excessive tax, and that the district paid from $65 to $75 per month for a teacher. The meeting then adjourned. A petition .was presented later for a special meeting to be held May 22. The evidence shows that it was not presented to the board, but was presented to the individual members. No meeting was called by the board, but Mr. Brightup, the clerk, posted the notices, and the meeting was held and attended by a majority of the legal voters of the district. The notice stated that the purposes for which the meeting would be held were: First. Building two schoolhouses in the district. Second. To select a site for them. Third. To reconsider the levy for school purposes. Fourth. To vote on the proposition of disposing of the old school building.
The evidence shows, without any dispute, that Mr. Wettstein, a member of the board, who is one of the respondents, presided-at the meeting, and before putting a motion which had been made for two schoolhouses, he stated that he supposed every one understood that the adoption of the motion meant a change in the site, and that in order to do this it would require a majority of the legal voters in the district. There was some discussion and an examination of the school laws with reference tó the changing of the school site, but the vote was taken with the understanding that it would require a majority of the voters in the district. There were thirty votes in favor of two schoolhouses and twenty-one votes against, and the chairman declared the motion lost.' A motion was made to adjourn the meeting and it carried. The evidence shows that the minutes of the meeting, as first written up by the clerk, showed that the motion to have two schoolhouses was lost.
Thereafter, on June 7, 1916, the schoo.1 board procured a deed from the owner of the land conveying the premises to the district, and on the same day entered into a written contract for a new schoolhouse; they tore down the old building, contracted for the purchase of lumber, and had some of the sand hauled for the construction of the new building when they were enjoined from further proceeding by the district court of Stevens county in a suit brought by some of the petitioners in this action. On July 8, 1916, the district court dissolved the injunction. Thereafter some of the petitioners served written notice upon the contractor and upon the lumber company, notifying them not to proceed with the contract and not to furnish any material therefor, threatening litigation if the notice was disregarded.
The petition asking the board to call a special meeting for June 20,. 1916, was not, as the writ alleges, signed by a majority of the legal voters of the district, nor was it presented, except to the individual members of the board. At the time it was presented to Mr. Wettstein it contained twelve names. The meeting was not called by the board, but the clerk prepared and posted notices of the meeting and a meeting was held which was attended by a majority of the voters of the district. The June meeting seems to have been called upon the theory that at the special meeting of May 22 the motion that two schoolhouses be built had in fact carried, and the first business transacted at the meeting June 20 was the adoption of a motion that the minutes of the preceding meeting should not be approved, but that they should be corrected to read that the motion for the erection of two schoolhouses had carried instead of lost. There were thirty votes in favor of the erection of one schoolhouse a mile and a half south of the old site, and about twenty in favor of locating one two miles north of the old school.
The facts set forth as grounds for the peremptory writ are not borne out by the evidence, while every material fact pleaded in defense is sustained. If the application for the alternative writ had stated the facts as they existed, needless to say, the writ would not have issued. Instead of there being but fifty-eight legal voters in the district there were sixty-four, so that if it were conceded that the special meeting of May 22 was called by the board (and the evidence fails to show that it was), the proposition to erect two school buildings did not carry, as it received but thirty votes. Besides, there was no objection to nor appeal from the ruling of the chairman declaring the motion lost, and because it was understood to have failed, the other propositions were not presented nor voted upon; moreover, the vote for two schoolhouses was submitted with the understanding of those present that its adoption meant a change of site. The school laws provide that where the school building has a value of not less than $400 the site can not be changed except by at least a two-thirds vote; if the value is less than that sum a majority vote is sufficient. (Laws 1903, ch. 428, § 1, Gen. Stat. 1909, § 7409.) The value of the building must first be determined by three appraisers appointed by the county commissioners. (Laws 1903, ch. 428, § 2, Gen. Stat. 1909, § 7410.) In this case the value of the old building has never been (determined; it was torn down for the purpose of erecting the new building for which the bonds had been voted, and the pleadings as well as the evidence are silent as to its former value. The board did not take down the old building until June 12, after the special meeting of May 22, and the material was placed under cover with the intention of using it in constructing the new building.
The meeting of-June 20 was. not called by the board. The school laws provide that “special meetings may be called by the district board or upon a petition signed by ten legal voters of the district.” (Laws 1911, ch. 283, § 1.) The word “may” in this statute has been construed as permissive and not mandatory upon the board. (The State v. School District, 80 Kan. 667, 103 Pac. 136.) Some of the remarks of Mr. Chief Justice Johnston in the opinion in that case apply with so much force to the situation here that we quote:
“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.” (p. 670.)
If the meeting held June 20 had been legally balled, and the number of legal voters in the district had been fifty-eight instead of sixty-four, the petitioners concede that sites were not chosen for two school buildings. There were thirty votes at this meeting for building one schoolhouse a mile and a half south of the old school, but the proposition to locate a building in the north end of the county had only twenty-one votes. It is also conceded that the district has never acquired and has never taken any steps to acquire title to the lands upon which we are asked to compel the board to erect buildings.
At the hearing and in the briefs the petitioners have placed much stress upon the conditions which exist in the district and the disadvantages imposed upon some of the patrons who live near the extreme ends of the district, and we are asked to make some kind of an order which will relieve the situation. The area of the district is, of course, too great to furnish equal privileges to all the school patrons, but these conditions exist because the neighborhood is sparsely settled, and the assessed valuation of the property therein is.not sufficient to justify a division of the district. The statute provides:
“That new districts shall not be formed with an assessed valuation of less than one hundred thousand dollars, and territory shall not be ( detached from any school district the assessed valuation of the property of which is less than one hundred thousand dollars, or the valuation of property of which would thereby be reduced below one hundred thousand dollars.” (Laws 1911, ch. 268, § 7.)
The location of the district in the corner of the county doubtless makes it difficult to send part of the pupils to adjacent districts. Besides, there are but thirty-one children of school age in the district. The claim of the petitioners that the respondents have destroyed the old building, and that there is no school building in the district, does not appeal to us with much force in view of the undisputed facts. In March the district voted bonds to build a new schoolhouse; after the special meeting of May 22 in which a proposition to build two schoolhouses had been considered and voted down, the board was proceeding to carry out the expressed will of the voters of the district, and having first procured a deed to the site which belonged to the district, and where the voters at the special election expected the new building to be erected, entered into a written contract for the construction of the new building for which the bonds had been voted. The respondents tore down the old building, made a contract for the. purchase of lumber and had 'hauled the sand, and were proceeding to erect the new building when some of the petitioners and other patrons of the district enjoined them from proceeding with the construction. When the court dissolved the injunction the lumber dealer and contractor refused to go ahead with their contracts because the petitioners had given written notice to them threatening litigation if the contracts were carried out. The. respondents say in their answer, and the evidence shows, that except for the action of the petitioners the new building would have been completed in ample time for the opening of the fall term of school.
The respondents say in their answer and testify that they are willing to provide transportation for the school children in the district who reside more than two and one-half miles from the school, in accordance with the provisions of the law. (Laws 1911, ch. 273, § 1.)
The writ will be. denied. | [
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The opinion of the court was delivered by
Mason, J.:
J. W. Goulding occupied a room in a building owned by L. W. Fulton under a written lease for one year expiring February 1, 1915, providing for a monthly rental of $30. Prior to the expiration of the lease, negotiations were had as to the terms on which Goulding might continue his occupancy, in the course of which a proposition was made that he should pay $40 a month, which was modified by a provision that for one year he might pay $35 a month, he making such repairs as he found necessary. He remained in possession, paying $35 a month, and making some expenditure for repairs. About February 10, 1915, he prepared a written lease, which Fulton refused to sign without the insertion of a clause making it subject to a sale. Goulding refused to accept that addition. About the middle of April, 1915, Fulton sold the property to M. O. Willey, who, upon sufficient notice, brought a proceeding for unlawful detainer against Goulding, which was taken to the district court on appeal. The district court, after hearing the evidence, directed a verdict for the plaintiff on the ground that under the admitted facts the minds of the parties had never met as to the terms of a lease, and that Goulding had become a tenant at will. The defendant appeals.
I. The ruling made can stand only in case the evidence, with the reasonable inferences therefrom, considered in the most favorable aspect for the defendant, had no tendency to sustain his contention that he was entitled to hold the property until February, 1916. In addition to the matters already stated there was evidence establishing, or tending to establish, these facts: On January 10, 1915, Fulton, who was a nonresident, wrote to his agent:
“Now as to leasing the room to Goulding, will say the price will be $40 per month in advance. I have a chance to rent it for $40 per month and have had it for some time só you see it is a matter of business with me. You can notify him that his rent will be $40 per month after the expiration of his lease. I have a splendid opportunity to rent it for $40 so would not consider any other proposition. Please let me hear from you soon.”
On January 19, 1915, he again wrote:
“In reply to your letter will say Harry Goulding [the defendant’s son] was here last night and he seemed to be satisfied with the proposition I made him, as follows: $35 per month for the first year and them to repair the room to suit themselves, and should they want it for two years the rent will be $40 per month.”
A day or two later Fulton’s agent showed this letter to the defendant, who, within a few days, began making repairs, which were completed by February 1, costing about $100, consisting of painting, papering and electric-light wiring. On or before February 10 he paid $35 as rent for that month to the agent, who remitted it to Fulton on that day, writing him that the roof was leaking and that Goulding was complaining of it, suggesting that he should ascertain the cost of fixing it, and adding: “Mr. Goulding is getting a lease drawn up and it will be ready in a day or so, and I will send it to you for your approval.” Shortly afterwards Goulding gave a form of a lease to the agent, who sent it to Fulton, who, on February 24, wrote to Goulding:
“Mr. Griggs [the agent] sent me a lease contract to sign and return to you but as I want to sell the building I did not return the lease. I am about to sell it now but in case the deal does not go through we would have to have a sale clause attached to the lease as I want to sell the building. I' will let you know how I come out on the sale in a short time. In case I do not make this sale we will fix up a lease subject to sale. If you still want it. Will write you again in a few days.”
We think this evidence was sufficient to warrant a court or jury in finding these facts: Fulton’s letter of January 10, when communicated by his agent to Goulding, amounted to an offer to rent the property for one year at $35 a month, the tenant to make any needed repairs, and to have an option to keep the place another year at $40, the other terms of the tenancy to be such as the law would imply without express agreement, or possibly to be the same as were embodied in the prior lease. Goulding by his conduct, if not in so many words, signified to the agent that he accepted this offer without qualification. The agent’s relations to the transaction were such that notice to him of an acceptance was of the same effect as though given to his principal.
2. If these facts are regarded as established, then a completed contract resulted prior to February 10. And in that case the circumstance that Goulding afterwards asked to have a lease executed embodying the agreement already made, or even that he proposed the insertion of new conditions in such a lease, could not operate to rescind the contract that had already been entered into, so long as he did not repudiate its terms, or insist upon the proposed new matter as a condition of its performance on his part.' The fact that the parties may have contemplated the subsequent execution of a formal instrument as evidence of their agreement does not necessarily imply that they had not already bound themselves to a definite and enforceable contract whose terms could be changed only by mutual consent. (Post v. Davis, 7 Kan. App. 217, 52 Pac. 903; 6 R. C. L. 618-620; Note, 29 L. R. A. 431; Note, 110 Am. St. Rep. 755.) It results from these conclusions that the case should have been submitted to the jury to determine the questions of fact already indicated.
3. A contract giving the tenant the right of occupancy for one year, with the privilege of two, is within the statute of frauds. (20 Cyc. 214; 29 A. & E. Encycl. of L. 886.) Here the making of repairs may possibly have constituted such a part performance as to take the contract out of the statute. But in any event the letter of January 19, signed by Fulton, was a sufficient memorandum in writing to satisfy the statute. Considered in connection with other portions of the correspondence it sufficiently identified the property. The fact that it was addressed and delivered to the agent of the writer and not to the other party to the contract does not render it inadequate for the purpose.' (20 Cyc. 255; 29 A. & E. Encycl. of L. 855.) And the offer having been made in writing, signed by the party sought to be charged, an oral acceptance was sufficient. (20 Cyc. 254; 29 A. & E. Encycl. of L. 858.)
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Missouri Pacific Railway Company to enjoin Loren Sproul from removing or interfering with the telegraph wires of the company, used in connection with the operation of its trains.
The defendant is engaged in the business of moving buildings in El Dorado, and had a contract to move a building from where it stood to a place on the other side of the plaintiff’s railroad. Suspended on the same poles were the wires owned jointly by the plaintiff and the Western Union Telegraph Company, also those of the Atchison, Topeka & Santa Fe Railway Company, and a local telephone company. When the defendant was ready to move the building across the track, he notified the agent of the plaintiff that he desired to cross the track under the wires of the company, and was informed that the wires might be lifted for the passage of the building upon the payment of $3.80, a charge made, it was said, to meet the expense of a lineman releasing and raising the wires. Defendant refused to pay the charge, and as he insisted on crossing the railroad, plaintiff obtained an order restraining him from interfering with the wires. Subsequently the order was modified so as to require the defendant to deposit the $3.80, the alleged expense of moving the wires, and $20 to cover the probable costs of the action. The deposit was made and the building was moved across the railroad by releasing the wires from the poles on either side of the crossing, and then two men on the top of the building, neither of whom appears to have been an employee of the plaintiff, lifted the wires and the building passed ■underneath them. At the end of the trial the court gave judgment for the defendant, refusing the injunction asked by the plaintiff and adjudging that the $23.80 previously deposited by the defendant should be returned to him. The plaintiff appeals.
The right of the plaintiff to maintain telegraph lines along and across public highways “in such manner as not to incommode the public in the use of such roads, streets and waters” (Gen. Stat. 1909, § 1789) is directly given by statute, and this right, may be regulated but not denied by a municipality. (Wichita v. Telephone Co., 70 Kan. 441, 78 Pac. 886; Telephone Co. v. Concordia, 81 Kan. 514, 106 Pac. 35.)
It does not appear that the city had undertaken to regulate the height at which wires should be maintained on and over the streets of the city nor to provide for lifting the wires when high structures were to be moved upon the streets over which wires had been placed. The. right of the defendant to the reasonable use of the street for the moving of buildings is not open to question. The testimony is that buildings are frequently moved along the streets of El Dorado and is not an uncommon use of the streets in other cities. It appears that the city of El Dorado had issued a license to the defendant authorizing him to move buildings, but it is not shown that any regulations had been made by the city as to the manner of moving buildings or as to the relative duties and rights of parties when buildings are being moved across streets over which wires are strung. It is competent for a city to regulate the height at which telegraph wires shall be placed so as not to incommode the public in the use of the streets, and also to regulate the business of moving buildings along and across streets so as not unnecessarily to interfere with the use of the streets by others; and no reason is seen why it might not provide for and regulate the raising and removal of wires so as to allow buildings to pass under them and to provide for the expense of such raising and removal of wires. No such regulation having been made, and each party having a right to the use of the streets, the only substantial question in the case is whether the house mover should pay the expense of lifting the wires of plaintiff for the passage of the building. It does not appear that any of the other companies made any objection to the raising of their wires or any charge for doing it.
The plaintiff insists that its right to the use of the streets was paramount to the rights of a house mover, although licensed by the city, and that the burden of raising the wires should be placed upon the defendant. The railway company was granted a right to the use of the streets, but took it subject to public control and to the rights of others to use the streets. ‘The grant was made, as we have seen, to be used in such a manner as not to interfere with the public in the use of the streets. The moving of buildings, derricks and such structures on the streets and other highways is not an infrequent or uncommon use. While the use may not be regarded as ordinary, at least not so common as travel over the streets by wagons, carriáges, automobiles and like vehicles, it is a frequent and a proper use and one which the plaintiff should have eontem»plated and provided for in placing its wires over the streets. (Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63; Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28; Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833.)
If the railway wires had been placed only ten feet high, so that a load of hay, a traction engine, a threshing machine, or some such outfit which customarily passes along the streets could not have passed under the wires without raising them, it would hardly be contended that the railway would be entitled to compensation for raising the wires in order to per mit the outfits to pass. In view of the frequent use of the streets for moving buildings, disclosed by the evidence, and the holding of this court that it is a proper use and one which should have been within the contemplation of those placing wires over public streets, and in the absence of statutory or municipal regulation as to the manner and expense of raising, the wires in order that the streets may be used for that purpose, we think the expense of raising them in order that the defendant may move his building should be borne by the plaintiff or the company placing the wires there. It appears to have been a simple and easy task, one that might have been done by any ordinary lineman in a few minutes. As trains are operated by orders sent over the wires it is important that they should be .handled by experienced persons and in a way that would not unnecessarily interrupt the use of the wires or imperil persons and property that are being moved under orders sent over the lines. No great trouble or expense is involved in lifting the wires for the passage of the kind of buildings which are ordinarily moved. Cases are cited in which the moving of a building along the streets is not within the rights enjoyable by the public as a use of the streets. These depend to some extent on statutes and ordinances, and also on the fact that the moving of buildings in the particular region is not a frequent or recognized use of the streets. The following are illustrative of those cases: Edison Electric Light & Power Co. v. Blomquist, 185 Fed. 615, and Northwestern Tel. Ex. Co. v. Anderson et al., 12 N. Dak. 585,
This rule is not in keeping with the view taken by this court in regard to the use that may be made of the streets, and especially where, as here, it is shown that it is a use to which they are .frequently and customarily devoted in a particular city or community.
In Indiana R. Co. v. Calvert, 168 Ind. 321, an electric street railway company sought to recover damages from a house mover who had moved a building over its railroad. A city ordinance required the street railway company to raise or remove the wires in order to allow buildings to pass. The company refused to comply with the requirement and the house mover himself loosened the trolley wires and raised them so the building could pass over the railroad. The work was done in a reasonable time and without unnecessary damage to the company,' but it did interrupt the operation of the railroad to some extent and caused an alleged loss and expense of $87.50. The court held that the regulation was a proper legislative exercise of the police power, and that while ordinary travel is the primary purpose for the use of a street, the moving of buildings along them is a convenient and customary use, and that the conduct of the parties with reference to it was within public control. It was further held that as the interference and damage was minor and inconsequential and could not be said to be unreasonable, the company was not entitled to recover damages from the house mover, i
Under the circumstances shown here we think the trial court ruled correctly in holding that the defendant should not be required to pay the expense of raising the wires of the plaintiff when the building was moved under them. Its judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for slander uttered by an attorney in the trial of a cause which he was conducting. A demurrer was sustained to the petition and the plaintiff appeals.
The material portions of the petition follow:
“The plaintiff herein is and was at all times hereinafter mentioned, of good reputation, sane mind, and on the 21st day of May, 1915, and previous thereto, was of good social standing and enjoyed the fellowship of a large concourse of friends in and around Solomon, Kan.
“That the defendant, C. E. Rugh, is and was at all times mentioned herein, a regular practicing attorney-at-law, and resides at Abilene, Kan.
“The plaintiff further alleges that on the 21st day of May, 1915, the said C. E. Rugh was in the employ of Charles Klover, and was the attorney on the part of the defendant, Charles Klover, in the case on trial on said day, entitled, Rosa Klover v. Charles Klover, which case was an action for alimony on the part of Rosa Klover against her husband, Charles Klover; and that said case was tried in the district court of Dickinson county, Kansas; that in the trial of said case, the defendant, C. E. Hugh, maliciously and publicly made the statement, ‘that the plaintiff herein, Rosa Klover, was crazy; that she was insane’; that said defamatory matter was spoken of and concerning the plaintiff herein.”
The defendant argues that the petition shows on its face that the defamatory statement was privileged, and hence that the sufficiency of the petition could be tested by demurrer. The general rule is that the defense of privilege should be specially pleaded, when the fact of privilege does not appear on the face of the petition. (25 Cyc. 481.) The plaintiff assumes that the effect of the decision in the case of Hess v. Sparks, 44 Kan. 470, 25 Pac. 580, is that a demurrer will not lie to a petition disclosing the privileged character of the statement complained of. The opinion in Hess v. Sparks expressly stated that the defense of privilege was not before the court under the pleadings. No demurrer to the petition was filed. The petition did not disclose privilege. The answer was a general denial only, and the general rule that privilege, being new matter, should be specially pleaded, was applied. Consequently the decision is not an authority on the question under consideration. If the plaintiff himself assert in his petition facts which establish the privileged character of the words complained of, he asserts nonliability of the defendant, and there is no reason for the court to decline to entertain a demurrer. In the case of Gosewisch v. Doran, 161 Cal. 511, 119 Pac. 656, it was said:
“While it is ordinarily true that privilege is to be pleaded as affirmative matter of defense to an action for libel, yet where the complaint shows on its face that the publication was privileged, the point may be raised on general demurrer.” (Syl. ¶ 4.)
All the authorities, English and American, agree that whatever an attorney may say during the trial of a cause, which has reference to the cause, is privileged. In England, the limitation of reference to the cause does not exist. In this country, by the weight of authority, the limitation is regarded. But the courts are liberal in applying the doctrine, and extend the privilege to all statements which may possibly be pertinent to the proceeding. (Youmans v. Smith, 153 N. Y. 214.) If the words spoken by an attorney in the course of a judicial proceeding have reference to the cause under consideration, they are not actionable, although false and malicious. (Maulsby v. Reifsnider, 69 Md. 143.) The reasons for the privilege are ably stated in the opinion in the case just cited, an extract from which may be found in L. R. A., 1916 E, 783.
In this instance,, if the statement complained of were made concerning the legal capacity of the plaintiff to maintain the suit, or as a comment on her conduct of the suit, or on her testimony as a witness, or had other reference or application to the cause or the trial of it, the statement would not be actionable.
The defendant argues that since the petition expressly alleged the statement was made by an attorney in the trial of a cause, it should be presumed, until the contrary appears, that the statement was referable to the cause, and not to something extrinsic. One of the reasons for the privilege is that an attorney ought to be free to act for his client, without being restrained by apprehension of personal consequences to himself, and that such independence is destroyed by being exposed to litigation. Liability to suit; involving expenditures of time and money, and involving uncertainty and anxiety, is itself a deterrent upon free and untrammeled advocacy. Unless the presumption be indulged, the defendant is exposed to the very hazard from which the law seeks to protect him, by a stratagem of pleading. The defendant illustrates his argument by producing the verified answer of his client, filed in the case on trial when the words complained of were spoken. The answer stated that the plaintiff had been adjudged insane in one of the Canadian provinces while residing there, that she had been confined in an asylum, had been found to be incurably insane, had been deported to Solomon City, Kan., had never been restored to sanity, and had been of unsound mind since the month of April, 1913.
The petition disclosed a judicial proceeding which was fully described and which was on trial on the day the words complained of were spoken. The defendant was described as attorney for one of the parties, and it was alleged that his defamatory statement was made “in the trial of said case.” The law will not assume that the defendant stepped outside of his employment and outside of his office as an attorney and de parted in his remarks from the proceeding. His statement having been made in the trial, prima facie it concerned the cause on trial, and was privileged. If the relation which, from the description given, the words appeared to bear, did not in fact exist, the plaintiff should have alleged that they had no reference to the cause. Without such an allegation, nonliability on the ground of privilege appeared on the face of the petition.
It may be remarked here that if the petition had contained an additional allegation to the effect that the defendant’s utterance bore no reference to the trial or any matter connected with it, a general denial would not have raised an issue. Under the arbitrary rule governing the subject, the allegation would stand as admitted, unless the facts, showing privilege were pleaded in the answer. This rule of pleading, however, does not relieve a plaintiff from the necessity of stating a cause of action in the petition, or relieve a plaintiff, when the petition is attacked by demurrer, from the consequences of having pleaded in the petition the privileged character of the defamatory utterance.
The petition was demurrable on another ground.
It is nowhere alleged, either directly or by plain inference, that the words attributed to the defendant were false. Characteristic words of a petition for slander, “false,” and “falsely,” are conspicuously absent. The words used on. the date named in the petition, May 21, 1915, referred to some time in the past — “was crazy,” “was insane” — and the plaintiff appears to have been careful to avoid stating that she was previously of sound mind, by discriminating between sane mind and social standing. In her brief the plaintiff justifies the form of her pleading by contending that she followed the form prescribed by section 126 of the civil code, which reads as follows:
“In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove, on the trial, the facts, showing that the defamatory matter was published or spoken of him.”
That section does no more than make it unnecessary to plead extrinsic facts for the purpose of showing the applica tion to the plaintiff of the defamatory matter set out, where that would have been necessary at common law. The statement of the facts constituting a cause of action (Civ. Code, § 92) is still essential, and no cause of action for slander exists unless the defamatory words were falsely spoken. The word “maliciously” inserted in the petition did not strengthen it, because the truth is a full defense, even although the utterance of the defamatory statement were malicious. (Civ. Code, § 127, as interpreted by the decision in the case of Castle v. Houston, 19 Kan. 417.)
In 25 Cyc.'453„the rule of pleading is stated as follows:
“A petition for libel or slander which fails to allege that the words complained of are false is held to be demurrable.”
In the case of Bottomly v. Bottomly, 80 Md. 159, the syllabus reads:
“A declaration setting forth that the defendant, maliciously intending to effect the discharge of plaintiff by his employer, did maliciously write to the employer a letter, stating defendant’s displeasure at something the plaintiff was alleged to have said, described as too , bad to mention, in consequence whereof plaintiff was discharged, does not set forth a good cause of action, since it does not aver that the defendant’s statement concerning the plaintiff was false.”
In the opinion it was said:
“The declaration does not aver that the defendant falsely charged the plaintiff with using the bad language attributed to him. The law does not assume that the charge was false in the absence of an averment to that effect. It must pass judgment on the pleading according to the facts which it sets forth. ... If the defendant’s letter had charged the plaintiff with conduct which would justly incur scorn and contempt, and would render him unfit for social intercourse; if it had even charged him with the commission of an atrocious felony, he could, nevertheless, maintain no action against the defendant if the charge should be proved true at the trial. It is well known that the truth of the offensive words, written or spoken, is a complete justification for the use of them. The rules of practice require the justification to be specially pleaded. This is the technical form of presenting the defense on the face of the record; but this mode of proceeding is the result of another technical rule, and in no way detracts from the force and effect of the truth as an element in the case, which is destructive of the plaintiff’s right of action. . . . According to the technical rule which we have mentioned, when the defamatory words are charged in the declaration to be false, the falsity is admitted, unless there is a plea specially alleging that they are true. But if the words are determined to be true, it is of no avail to allege that they were malicious, or that they caused damage to the plaintiff.” (pp. 161, 162.)
The judgment of the district court sustaining the demurrer to the petition is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a mandamus proceeding to compel the board of county commissioners of Stanton, county, to designate the plaintiff, The Johnson State Bank, as the Stanton county depository. By agreement of the parties the- cause was tried by Hon. William H. Thompson as judge pro tern., the district judge being disqualified. From the judgment in favor of the plaintiff granting the peremptory writ of mandamus the defendants appeal.
For a number of years the defendants had- been depositing all county funds in the First National Bank of Syracuse, situated in Hamilton county. On January 11, 1915, the plaintiff bank, which was legally authorized to do a general banking business and which is the only bank in Stanton county, submitted its bid to the defendant board at the regular session offering to pay two per cent interest on the average daily- balances deposited in the bank, and at the same time it tendered a bond in the sum of $22,000 conditioned as the law requires; At the same time the First National Bank of Syracuse proposed to pay three per cent on the average daily balances, and it also agreed to take up outstanding warrants to the amount of $7600, for which provision had not been made, and to pay par for these warrants when they were registered and presented for payment. It offered a bond in the sum of $35,000 that it would account for the funds deposited with it. It was agreed between the parties that the average daily balances of Stanton county had never exceeded $21,000 and had ranged from $8000 to $21,000’ during the year preceding this litigation. According to the averments in the answer of the.defendants the Johnson State Bank had a capital stock of $19;O00 with deposits in the sum of $3241.65, when the last report was made, and the National Bank of Syracuse a capital stock oí $50,000 and a surplus of $20,000. It was alleged by the defendants that they gave düe consideration to both bids and to the .responsibility of the plaintiff; that they considered and adjudged that the plaintiff was not a responsible bank as provided by law and that it was not financially able safely to carry out the terms of its contract. The court held that the answer did not set forth a defense and refused to receive evidence as to the responsibility of the plaintiff bank or the grounds upon which the defendants refused to designate the plaintiff as the depository. A number of preliminary and technical objections were raised at the trial, which are not deemed to be of sufficient importance to require comment.
The turning point in the case is whether the question of the responsibility of the plaintiff bank was a matter for the consideration of the board of county commissioners in acting upon its offer and in designating a county depository.. The question must be determined by the statute providing for the designation, which is as follows:
“That in all counties of this state the county treasurer shall deposit claily all. the funds and monies of whatsoever kind that shall come into his possession by virtue of his office as such county treasurer, in his name as such treasurer, in one or more responsible banks located in the county and designated by the board of county commissioners as county depositories. Such bank or banks shall pay interest on the average daily balances at such rates as may be agreed upon, which rate of interest shall not be less than two per cent per annum, and shall credit the same monthly to the account of such treasurer. Before making such deposits the said board shall take from said bank or banks a good and sufficient bond, in a sum double the largest approximate amount that may be on deposit at any one time; if a personal bond, or the bond of some surety company authorized to do business in the state of Kansas, in a sum aggregating the largest approximate amount which may be on deposit at any one time, conditioned that such deposit shall be promptly paid on the check or draft of the treasurer of said county; but in no case shall more than one-half of the amount of said bond be subscribed by the officers of said bank; and such bank or banks shall on the first Monday of each month file with the county clerk of such county a statement of the amount of money on hand at the close of business each day during the previous month, and the amount of interest accrued thereon during such month: Provided, That it shall be unlawful for the board of county commissioners of any county to designate as a depository for county funds, any bank in which the county treasurer or any member of the board of county commissioners shall be the owner of any stock or otherwise pecuniarily interested therein: Provided further, That if the banks in such county will not accept such money and pay interest thereon, then the board of county commissioners may designate some other bank or banks in the state of Kansas, which bank or banks shall give the bond hereinbefore provided for.” (Gen. Stat. 1909, § 2163.)
As will be seen, the power to designate county depositories. devolved upon the board of county commissioners, and they are authorized to select them from the responsible banks of the county, but not those in which a member of the board has any stock or interest. The banks so selected are required to pay such rate of interest as may be agreed upon, but at a rate that is not less than two per cent per annum, and are also required to give bond and make reports at stated times. It is provided at the end of the section that if the banks in the county, that is, those spoken of in the early part of the section, will not accept the money and pay interest thereon the board may designate other banks in the state as depositories. Considering the language of the entire section, as we must in interpreting any part of it, we are of opinion that only responsible banks are eligible to designation, and that the determination of responsibility of banks is vested in the board of county commissioners. The banks referred to in the last proviso of the section are manifestly banks of the class named in the first part of the section, responsible banks from which the board is authorized to make a designation. It can not be conceived that the legislature was authorizing boards of county commissioners to select banks which they knew or had good reason to believe were not responsible. If a bank of the county, which is responsible, will accept the funds and pay at least the minimum rate of interest, the board is not warranted in placing the funds in a bank outside of the county.
While the power to determine the matter of responsibility is vested in the board, it must, of course, be exercised in good faith. The board can not arbitrarily or capriciously decide that a bank is irresponsible nor send the funds outside of the county upon their mere will or pleasure. They áre required to exercise fair and sound judgment, and if they have followed the forms of law and made their decision in good faith it is not open to review.
The ruling of the trial court that no defense was stated in the answer of the defendants and in granting the peremptory writ of mandamus can not be upheld; but the issues of fact remain for determination, including the questions whether-the responsibility of the plaintiff was determined arbitrarily or in good faith, and whether the plaintiff, if responsible, had conformed to the requirements of the law.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs appeal from a judgment denying specific performance oft a contract for the conveyance of land to them.
Plaintiff A. C. Moorhead was clerk of the district court of Stevens county. Plaintiff W. W. Hayward was cashier of the Hugoton State Bank. Moorhead and Hayward were partners in the real-estate business. J. A. McMichael was a customer of the Hugoton State Bank. Defendant R. M. Crawford was a real-estate agent in Hugoton.
Defendant A. O. Edmonds owned a section of land in Stevens county. On the 4th day of January, 1915, J. A. McMichael bid in this land at sheriff’s sale for $5200. Of this A. C. Moor-head had knowledge. -The land was listed for sale with a number of real-estate agents, among whom was defendant R. M. Crawford. The land was not listed with the plaintiffs. Soon after the conclusion of the sheriff’s sale, J. A. McMichael withdrew his bid and entered into a written contract with R. M. Crawford for the purchase of the land. This contract contained, among other things, the following provisions:
.-“Possession to be given upon delivery of deed which is to be a general warranty deed executed by the present owner or owners, together with abstract showing clear title with all taxes paid to daté and to be delivered as soon as it can be obtained.
“Provided Always, that this contract is entered into subject to the will and consent of present owner or owners, and provided further that in case the said second party shall fail or refuse to pay or accept land according to the conditions of this contract he shall forfeit to the said first parties, the amount of purchase money paid.”
The trial court made findings of fact as follows:
“1. The defendants R. M. Crawford and James McMichael enteréd into a written contract on the 4th day of January, 1915, by which McMichael agreed to purchase the land in controversy for the agreed price of $7000.00; $3500.00 cash, balance on time secured by first mortgage with eight per cent interest as shown by written contract in the answer.
“2. In a short - time and on the same day the plaintiffs solicited Michael to permit them to see the contract and after examining it asked McMichael why he did not allow them the opportunity to make the sale of the land. McMichael informed them that he did not know they were in the business and he finally said to them that he would give them the same opportunity he had given Crawford; that he would pay the man who first got him the deed for the land.
“3. Upon this statement the plaintiffs went to Liberal to try to purchase the land from Edmonds, the owner. Learning that he was at Helena, Oklahoma, they drove there that night and saw him there the next day.
“4. At - Helena in the conversation with Edmonds, the owner of the land, Hayward the plaintiff, concealed from the fact that Crawford who had the land for sale at a net price of $6800.00 had made d contract of sale, subject to his consent to McMichael for $7000.00 and' Hayward attempted to purchase the land for less than $6000. Hayward also deceived the defendant Edmonds by pretending that Moorhead, his partner, was in Hugoton and induced Edmonds to telegraph to Moor-head at Hugoton, directing him to see Mr. Nason at Elkhart, when at the time Moorhead was in the same town in the barber shop.
“5. - On the 7th day of January, Nason executed the written contract set up in the petition, .for sale of the land to plaintiffs and put the blank deed offered in evidence up, which was blank as to consideration as to grantee, and there was no revenue stamp upon it. This deed with the contract'was put in escrow.
“6. The plaintiffs gave a check for $500.00 to Nason, endorsed the check and forwarded it to Edmonds, and Edmonds cashed it and received the money upon it.
“7. Edmonds would not have accepted this check except for the deception practiced by plaintiffs.
“8. When Edmonds discovered that he had been deceived, that certain facts of which plaintiffs had knowledge were concealed from him, decided that he would not perform the contract made by Nason, and a short time thereafter, and on the 8th day of February, made a warranty deed of the premises to Crawford. Crawford paid his $6800.00 therefor.
“9. The defendant Edmonds, through his attorney Macy, offered to pay the $500.00 back to the plaintiff Hayward. Hayward told Macy to see Moorhead.
' “10. At the trial of this case the defendants in open court tendered and have paid to the-Clerk of the Court the sum of $500.00 for plaintiffs.”
On these facts the court stated the following conclusions of law:
“1. The blank deed is not a sufficient writing to authorize the signing of a contract by Nason that would bind Edmonds.
“2. Nason has no interest in the land. He was the agent of Edmonds, and had no authority to sign the contract in writing.
“3. .Edmonds was induced to accept the $500.00 upon the contract signed by Nason, by reason of deceit and concealment of the truth by the plaintiff Hayward.
“4. The plaintiffs are not entitled in equity to specific performance of the contract.
“5. That the temporary injunction hereinbefore granted should be dissolved.”
1. The plaintiffs argue that the first, fourth, and fifth findings of fact are erroneoús in that they are not complete and do not state all the facts properly connected with those found. The plaintiffs did not request further, additional, or clearer findings of fact. The plaintiffs, if they desired to complain of findings of fact because they were not complete or clear, should have requested the trial court to correct the findings. Since such a request was not made, this complaint will not be considered. (Briggs v. Eggan, 17 Kan. 589, 591; Kellogg v. Bissantz, 51 Kan. 418, 424, 32 Pac. 1090; Pennell v. Felch, 55 Kan. 78, 81, 39 Pac. 1023.) .
2. The plaintiffs contend, in effect, that the seventh and eighth findings of fact are not supported by the evidence. An examination of the evidence shows that it amply supports these findings. No good purpose will be served by setting out the evidence.
3. The plaintiffs complain that the conclusions of law are not based on the findings of fact, and insist that judgment should have been rendered in their favor. These two propositions will be considered together. Some of the conclusions of law are largely conclusions of fact, based on the evidence and on other facts shown in the findings. The controlling conclusion of law is that the plaintiffs are not entitled to specific performance of the contract. The plaintiffs, to support their contention, argue that whether or not the blank deed was a sufficient writing to authorize the signing of a contract by Nason, and whether or not he had any interest in the land, are immaterial in determining the judgment that should be rendered. This does not control the judgment, and, therefore, does not aid the plaintiffs. The plaintiffs also argue that defendant Edmonds ratified th,e acts of his agent, Nason, by accepting and cashing the check for $500. The difficulty with the plaintiffs’ argument on this question is that Edmonds would not have accepted the check but for the deception practiced by the plaintiffs, and did not know of this deception until after the money had been received on the check.
The plaintiffs further argue that neither Edmonds nor McMichael was injured, and that Crawford, at the time he accepted the deed from Edmonds, knew of the plaintiffs’ rights. This argument is not good. Edmonds has been injured in that he is liable to Crawford for commission on the sale of the land if the sale made by Crawford to McMichael is not consummated. McMichael has been injured in that he has been deprived of title to the land during the litigation. The plaintiffs’ right to the land under their contract with Edmonds is subject and inferior hr the rights of McMichael and Crawford, for the reason that the plaintiffs, when they secured their contract for the purchase of the land, had actual knowledge of the contract between McMichael and Crawford. Whatever interest the plaintiffs acquired in the land was acquired through the fraud and deception practiced by them when they induced Edmonds to contract with them for the sale of the land at a time when they knew that Edmonds’ agent had contracted to sell the land to MeMichael. Edmonds had no knowledge of the contract with MeMichael at the time he made the contract with the plaintiffs. The plaintiffs are not entitled to specific performance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to recover the possession of sixty-nine head of cattle.
In the spring of 1913 J. A. Fager bought cattle from the Knorpp Cattle Loan Company of Kansas City, and to secure notes given in payment of the cattle he executed two chattel mortgages, one upon 223 head of Panhandle yearlings, branded M on the left hip, and the other upon 100 head of native Kansas yearlings, mostly dehorned and branded 0 on the left hip, and thirty head of red native Kansas yearlings, marked with a slash on the left hip. Before the notes became due they were assigned by the cattle company to the plaintiff, Fred Ehrke, and as the notes were not paid when they became due Ehrke took a new note and mortgage to himself in which the property was described as follows:
“Two hundred twenty-three (223) head of coming two-year-old native Panhandle steers and heifers, all branded M on left side and 9 on left thigh, also one hundred (100) head of coming two-year-old native Kansas steers, branded thus, O on right hip. The above described cattle are now on the premises of the party of the first part two miles north of St. Paul, Neosho County, Kansas, where they are to be kept until the expiration of this instrument.”
Fager again applied for an extension, which Ehrke granted, and in June, 1914, a new note and mortgage were executed and filed, but before the execution of that mortgage and in February, 1914, E. M. Tucker and Harry Tucker, without personal knowledge of the existing mortgage, purchased from Fager seventy head of two-year-old native Kansas steers and took them to their premises in Osage county, and no question was raised as to the validity of the transfer until the fall of 1914. About that time Fager disappeared and Ehrke, learning of the sale of cattle to the Tuckers, claimed that the Tucker cattle were a part of those included in his mortgage and shortly after-wards brought this action of replevin. The Tuckers defended upon the ground that the cattle purchased by them were not a part of those described in the plaintiff’s mortgage, and further that the mortgage in existence when the purchase was made had been released. When the evidence was introduced the court ruled that the plaintiff had failed to show a right of recovery and directed a verdict in favor of the defendant.
The question submitted here is: Can the mortgage, under which the plaintiff claimed, be applied to the cattle in controversy? It is not claimed that any of them are included in those described in the mortgage as 223 head of Panhandles, nor the thirty head of natives branded on the left hip with a slash, but it is contended that they are a part of those described in the mortgage as two-year-old native steers branded O on right hip. The evidence does not show that any of the Tucker cattle were branded in that way, and no brand like it was found upon them. The cattle were purchased from Fager, who executed the mortgage, but it appears that he was buying and selling cattle from time to time and had about 400 head of cattle when the sale was made to the defendants. The cattle were not kept on his premises at the place described in the mortgage, but were kept at a number of places where feed could be obtained for them, in the region round about his place. Plaintiff had not seen the cattle prior to the sale made to the defendants, and the mortgage, which was taken by plaintiff about four months after the Tuckers had purchased their cattle, recited that the 100 native Kansas steers branded 0 on the right hip were still on Fager’s premises two miles north of Saint Paul, where they were to be kept until the expiration of the mortgage. It appears that in January, 1914, plaintiff sent his agent Stotts to Neosho county to inspect the mortgaged cattle, and at that time Fager pointed out certain red, roan and brindle cattle as those included in plaintiff’s mortgage, but Stotts did not find any of them branded 0 on the right hip. He did not make a close or careful examination, as he says that he did not look for or pay any particular attention to brands, the principal identifying mark used in describing the cattle in the mortgage. While he stated that he saw all of the mortgaged cattle, it appears that he came to that conclusion because Fager said the cattle shown him were the mortgaged cattle. At that time Fager had about 400 head of cattle, and many more than seventy head of native cattle of the colors and age of those described in the mortgage. It appears that his cattle were held in bunches at a half dozen or more places, some of which were twenty miles away from the place named in the mortgage. After plaintiff learned that cattle had been sold to. Tucker, he sent an expert to examine the Tucker cattle, but the expert was unable to find a brand on them that corresponded at all with the one described in the mortgage. John Fager, a son of the mortgagor, testified that the Tuckers got their cattle at the farms of the Showalters, near Saint Paul, and that their cattle were there when Stotts inspected them, and further that the cattle bought by the Tuckers were obtained from among those examined by Stotts. In that connection, however, he testified that most of the cattle were two-year-old natives which his. father bought from a man named Stinger in the spring of 1913.
It devolved upon the plaintiff, of course, to prove that the cattle in Tucker’s possession were those described in the mortgage. To recover he must produce substantial evidence tending to show that fact, and if he did so the case should have been submitted to the jury. The defendants are presumed to have had knowledge of the contents of the chattel mortgage, and if by the description there given, aided by inquiries which it would naturally suggest, the cattle could have been identified, the description would have been sufficient to bind them. (Waggoner v. Oursler, 54 Kan. 141, 37 Pac. 973; Rudolph v. Commission Co., 76 Kan. 789, 92 Pac. 1103.) A partial misdescription does not invalidate the mortgage (King v. Aultman & Co., 24 Kan. 246), but in determining whether a third party, aided by inquiries suggested by the mortgage, could have identified the property, the whole description is to be taken into consideration. The suggestion which indicates the line of inquiry must come from the mortgage itself, and can not rest alone in the minds of the mortgagor and mortgagee. If the defendants had had actual knowledge of the mortgage executed by Fager, and had made inquiry, they would have looked first for the principal mark of identification, viz., the brand 0, and not finding it on any of the cattle purchased, would have been reasonably well assured that the cattle which they purchased were not included in the mortgage. This assurance would have been strengthened when they noted that the cattle they had purchased were not kept at the place designated in the mortgage. It is true that the cattle were purchased from Fager, who had executed the mortgage, but he had many more cattle of the color and age of those described in the mortgage. The descriptions, therefore, of color, age and location in the mortgage, did not furnish a basis for identification. If the Tucker cattle had been the only native Kansas two-year-old steers of the class named in the possession of Fager an inquiry may have led to the identification, but subsequent purchasers are not required to pursue inquiries where, as here, the entire description led in a different direction and indicated so clearly that the cattle in question were not intended to be included in the mortgage. The law contemplates that mortgages, to be valid, shall be sufficiently definite in description so as to give notice to subsequent purchasers and mortgagees, and afford them protection against imposition. One who seeks to obtain and hold a mortgage lien on cattle must, for the protection of third parties, give a more definite description of them than was done in this instance. In directing a verdict, the evidence in favor of the plaintiff with every reasonable inference that can be drawn from it must be taken as true, and it is said that some evidence tends to establish identity. Verdicts can not be based on a mere scintilla of evidence, and unless substantial proof is offered in support of the claims of the plaintiff, a verdict against him may be directed. In this case the trial court determined that no substantial evidence was produced that would furnish a basis for a verdict, and its judgment must be affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action involves, the rights of plaintiffs and defendant in two hundred acres of land in Wilson county. Prior to 1885 the title and ownership had been vested in Churchill Edwards, a'citizen of Illinois, who died intestate, leaving a widow and five living children and three minor grandchildren who were the offspring of his deceased daughter, Alice. In June, 1885, this widow and all her living sons and daughters and their spouses conveyed the land in controversy to defendant T. J. Hudson, the deed reciting that the grantors were the sole heirs at law of Churchill Edwards—
“Except the minor children of Alice Cribb, deceased, said Alice Cribb being a child of said Churchill Edwards, deceased, who died before said Churchill Edwards did, and left surviving her three children, viz: Roy Cribb, Ida Cribb and Arthur Cribb.”
The deed to Hudson described the parcel of land conveyed in terms of the government survey, concluding thus:
“Exception and reserving therefrom the right, title interest and estate therein of the said Roy Cribb, Ida Cribb and Arthur Cribb.”
This deed was recorded in November, 1885.
The plaintiffs include Roy Cribb, Ira Cribb who is the father of Arthur Cribb who died single, the husband and minor children of Ida who is likewise dead, and the guardian of these minors.
The plaintiffs’ action was for possession as tenants in common with the defendant, for an accounting of rents ¿nd profits, and for partition.
Defendant’s answer pleaded:
“Defendant further admits that some kind of deed was executed in his favor about twenty-nine years ago by parties claiming to own the land, for which he paid for at the time of the execution of said deed, but defendant says he has not been able to find said deed since the filing of petition by plaintiff, and is therefore unable at this time to state the term® of said deed.
“Second: For a further answer to plaintiff’s petition defendant says that he has been in the full, open notorious, peaceable, continuous and undisputed possession of each and every part thereof for more than twenty-eight years last past, and that during all of said time, he has made claim of full title and ownership of said land, openly and adversely to all others, and now claims to own said land, not only by deed, but by adverse possession. That during all of that time he has paid the taxes on said land, has had the same inclosed by fence, and has in no way been disturbed in his possession.”
Certain special questions were answered by the jury, and the judgment decreed partition:
“And that there be set off to said parties their special interest therein as follows:
“To T. J. Hudson a interest therein.
“To Roy Cribb a %6 interest therein.
“To Ira C. Cribb a Vsq interest therein.
“To Samuel C. Bailey a ^2 interest therein.
“To Edwin C. Bailey a tlw interest therein.
“To Mabel R. Bailey a interest therein. . . .
“And if decided that such partition cannot be so made without manifest injury thereto, that said premises be appraised and sold, . . . an attorney fee of $50.00 to plaintiff’s attorneys, . . . rents and profits . . . for the year 1914 in the sum of $100.00. The balance of said proceeds shall be paid to the respective parties according to their respective interest as above set forth.”
The defendant appeals, and the principal errors assigned will be discussed.
1. The defendant filed a motion to require the plaintiffs to make their petition more definite and certain in the following particulars: “7th. To require the plaintiffs to separately state and number his sevejal causes of action.”
This motion was overruled. Such ruling was within the court’s discretion. (Civ. Code, § 122.) The appellant does not disclose and it can'not be discerned how this ruling prejudiced him. (Civ. Code, §581; Hamilton v. Railway Co., 95 Kan. 353,] 359, 148 Pac. 648.) Virtually the plaintiffs’ case constituted but one cause of action — partition. As to rents and profits, none was awarded except for the then current year, and the small fraction thereof accruing to plaintiffs was only a trifling incident in the case.
This motion to make more definite likewise sought to have the plaintiffs set out certain dates, ages, etc., such as the date of the death of Alice' Cribb. The date of her death was of no consequence. Neither was her age; nor were the ages of her children. Defendant’s deed told him they were minors; so did the petition. The age of Ira, the father of Arthur who died in 1892, was immaterial; nor was it important whether a guardian was appointed for Ida’s minor children at her death or not. A guardian for them was appointed sometime, The State Bank of Evanston, 111., and it was one of the plaintiffs in this case. (Civ. Code, § 110.)
2. Defendant assigns error because a deed dated April 3, 1900, from the claimants of the outstanding title under Alice (Edwards) Cribb was introduced in evidence as one of the circumstances to show that as late as 1900 Hudson recognized their interests as tenants in common. Ira Cribb testified that he had offered to sell plaintiffs’ interest to Hudson for $100 and that Hudson had agreed'to buy at that price, and the deed was sent to the Wilson County Bank. While it does not appear that Hudson ever took up this deed, his letters written to Ira Cribb in 1901, 1902 and 1903 contained statements tending to corroborate Cribb’s testimony. They read:
“'June 11th, 1901. . . . And if farm matters turn out as prospects now indicate, I will be in shape to take up the deed to your satisfaction this fall.”
“Feby. 24, ’02. ... I contemplate selling most -of my personal property about the first of May and if I do so will take up deed.”
“April 3, 1903. ... I told you when here however, that rather than have a claim hanging over me, that when I got around to it I would send one hundred dollars for the child’s part which you claim I have no title to. There was no agreement on my part with you that I was indebted to anyone and I am neither under moral or legal obligations to take up and pay for the deed you sent. . . . Should I get ahead so that I have one hundred dollars which I am not compelled to use immediately and I hope to be in that condition soon, I will take up the deed, but do not agree to do it now or at any time.”
The findings of fact conclude this phase of the case:
“Q. No. 8. Did T. J. Hudson, the defendant, go into possession of . . . the lands in controversy, on or about November 2d, 1885? A. Yes.
“Q. No. 1. Did the defendant T. J. Hudson recognize the interest of plaintiffs in said lands prior to April 3, 1900, and agree to pay them one hundred dollars? A. Yes.
“Q. No. 2. Did the plaintiffs send the deed for their interest in said lands to the Wilson County Bank for said defendant? A. Yes.
“Q. No. 3. Did the said defendant continue to recognize the interest of said plaintiffs in said lands until April 3, 1903? A. Yes.”
3. The demurrer to the evidence was properly overruled. The discrepancy between the petition and the proof on the question whether Alice or her father, Churchill Edwards, died first is immaterial. She was dead leaving minor heirs when Hudson acquired the land by the deed of 1885, and that deed apprised him of their existence and of their rights. Hudson’s possession was the possession of all the tenants in common. The rule as to such is “One for all; all for one.” And it takes considerable ingenuity on the part of a tenant in common to avoid that doctrine and to arrange his conduct and possession so as to institute an adverse holding against his fellow tenants in common, with notice to them, so that the statute'of limitations will begin to run. Nor is there any good reason in law or morals why it should be otherwise. Defendant’s mortgaging the land about three years after he acquired an eleven-twelfths interest in it did not have that effect; and defendant fails in this action not so much on account of the affirmative proof of recognition adduced by plaintiffs as on account of the lack of clear, convincing and satisfactory proof affirmatively showing defendant’s adverse possession for the statutory period of fifteen years. (Schoonover v. Tyner, 72 Kan. 475, 84 Pac. 124.)
The other errors assigned have been carefully examined but the court does not consider them serious or worthy of discussion. (Civ. Code, § 581.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
These actions are submitted together because both depend on the same state of facts and involve the same questions of law. This opinion is written in No. 20,514.
The plaintiff obtained judgment for one thousand dollars for damages caused by the subsidence of land into excavations made by mining coal. The defendant appeals.
The case was tried largely on an agreed statement of facts, as follows:
“It is agreed that on the 16th day of February, 1904, said defendant made, executed and delivered a deed to this plaintiff, Barney Napute, Paul Omelia and Joe Audo for the Southeast quarter (S. E. %) of Section ten (10), Township thirty-one (31), Range twenty-four (24), containing one hundred sixty (160) acres for the consideration of four thousand ($4000.00) dollars, and in said deed, said defendant reserved the mineral right with other reservations, a true and correct copy of said deed being attached to this stipulation and made a part hereof.
“It is agreed' that soon after said conveyance the title to said property passed to this plaintiff, Barney Napute and Joe Audo and was divided in equal parts between said parties, and that this plaintiff, Barney Napute, became the sole owner of fifty-three (53) acres extending north and south in the center of said quarter section and a tract of twenty-seven (27) acres of land in the northwest corner of said quarter section, and that the said plaintiff, Barney Napute, was the owner of that portion of said land for more than two years prior to the filing of this cause.
“It is agreed that the original purchase price of said lands was twenty-five ($25.00) dollars per acre, and that said amount was paid for the surface only and was less than the market price of other lands in said vicinity which had not been divided into a surface estate and mineral estate. And it is further agreed that the mineral rights and reservations retained by the said defendant in said premises was of the value of eighty dollars per acre prior tó the time the coal was mined and removed therefrom.
“It is agreed that the plaintiff, at the time of the purchase of said lands in question of the defendant, had been in the past a practical coal miner and knew that he was buying farm land from under a portion of which the coal had been removed and from the remainder the coal would probably be removed. ■
“It is agreed that all the sink-holes and depressions which have developed upon the lands since the purchase thereof by the plaintiff is in that portion of the land from which the coal had been removed at the time the conveyance was made.
“It is agreed that the defendant, at the time said cause was called for trial, tendered to the plaintiff a certified check for two thousand ($2000.00) dollars, the same being a sum equal to the purchase price of ■eighty (80) acres owned hy plaintiff, and demanded a reconveyance of the'land held by the plaintiff, free and clear of any liens or incumbrances thereon, which demand for reconveyance was refused by the plaintiff unless said defendant would pay for the improvements made by plaintiff on said premises; and the plaintiff made the proposition in open court, that he would accept the two thousand ($2000.00) dollars, the original purchase price, provided said defendant would pay the actual value of the improvements made by plaintiff upon said premises, and proposed that plaintiff appoint one appraiser, and defendant appoint one appraiser and a third appraiser to be appointed by the court, which Board of Appraisers to ascertain the value of the improvements now on said land, and defendant to\ compensate the plaintiff for such improvements at the appraisers’ valuation in addition to the original purchase price of said land, and that said counter-proposition, the defendant declined.
“It is agreed by the parties hereto that the coal mined and removed by -the defendant under the premises owned by .the plaintiff, was mined under the room and pillar system and that the plaintiff had never worked in said mine and has no personal knowledge as to the manner in which said mine was worked.
“It is further agreed that all of the coal has not been removed from .the land in controversy and that the said defendant is now engaged in .mining coal under a portion of the said land but- such portions have deyeloped no sinkholes or depressions of any kind or character.
“It is agreed that the total area of all sinkholes and depressions which have appeared on the surface of said plaintiff’s land is sixty-.eight hundredths (.68) of an acre.
“It is agreed that the amount of. dirt required to fill said sinkholes in which filling would be necessary or desirable is fifteen hundred and eight (1508) cubic.yards.
“It is. agreed by the parties hereto that the said premises were purchased by the plaintiff for farming purposes and that the land so conveyed by .the defendant to the plaintiff is suitable for general farming purposes.”
Other evidence established that the defendant owned this land and had mined the coal from part of it prior to the time that the deed was made to Napute, Onelia, and Audo. That deed, contained the following reservations:
■ “The grantor herein expressly reserves to itself, its successors and assigns, all the coal and other minerals underlying the land hereby conveyed and the right to use at its-pleasure so much of-the surface of said land as may be necessary for properly working, mining and removing .said coal and other minerals, including such rights of way, above and below the surface of said land, for railroad tracks, switches, and roadways, as the grantor herein may deem necessary for'the purpose of mining and removing the coal and other minerals from said land, or any ‘other land on which mining operations are now or may hereafter be carried on -by the party' of the first part, its successors or assigns, it being the purpose of this reservation to secure to said grantor, its successors and assigns, not only the right to lay, maintain and operate the necessary tracks and roadways for the removal of the coal and other minerals' mined on the land herein conveyed but also to lay, maintain and operate such tracks and roadways as may be necessary for removing coal and other mineral from and transporting material to any ,mines, that it or its successors or assigns, may operate on any other land. The reservation of mining rights, coal and other ¡ minerals herein reserved shall continue, until all the coal and other minerals on the land herein described shall be exhausted, after which time said grantor shall own said premises in fee simple, subject to the rights of way reserved by the grantor,' and subject to the further right of the grantor at all times to lay, maintain and operate the necessary tracks for hauling coal and other minerals mined from this or other lands as aforesaid.
“The grantor herein further expressly reserves to itself the right to repurchase from the party of the second part, all or any portion of the premises conveyed by this deed, for the average price per acre paid by the said party of the second part to said grantor.”
Under the option to repurchase contained in the deed, the defendant, in a cross-petition contained in its answer, elected to repurchase the land owned by the plaintiff at the average price per acre paid to the defendant for the land, and asked that the plaintiff be compelled to reconvey the land to the defendant on the payment of that sum. The cross-petition was stricken out on the application of the plaintiff.
The defendant argues three propositions: First: That the plaintiff has no cause of action. Second: That the plaintiff’s action, if he had a cause of action, was barred by the statute of limitations at the time this action was commenced. Third: That the court erred in striking'out the defendant’s cross petition and in refusing to decree specific performancé of the option contained in the deed.
1. Has the plaintiff a cause of action against the defendant? In answering this question three things will be considered: first, the deed given by the defendant; second, the mined condition of the land at the time that deed was given; and third, the price paid for the land.
The deed was a general warranty deed, except for the reservations it contained. On its face it described and conveyed the real property and everything connected therewith, and all “rights, privileges, appurtenances and improvements thereto belonging, or in any wise appertaining.” Where real property has been separated so that one person owns the sur face and another owns a substratum, or the minerals under the surface, the person that owns the surface has an absolute right to subjacent support unless that right has been distinctly-waived.
In Walsh v. Fuel Co., 91 Kan. 310, 137 Pac. 941, this court said:
“That the right to subjacent support to the surface will not be deemed to have been waived, conveyed by or lost to the owner of the surface unless such clearly appears, from the language used in the conveyance, to have been the intention of the parties is sustained by numerous authorities, among which are the following cases: [Citing a number of cases.]
“The contract in this case is not ambiguous in the usual sense. The only question is the legal effect of the language used therein, and, as we have seen, it does not clearly appear that the right to subjacent support of the surface was intended to be waived or conveyed by appellant.” (p. 313.)
The syllabus to Lowry v. Hay, 2 Walk. (Pa. Supr. Ct.) 239, is as follows:
“The owner of the surface is entitled to actual absolute support, unless that obligation is distinctly waived.”
In section 209 of Reeves on Real Property the author says:
“Where different strata of earth or soil, one beneath the other, are owned by different persons, and there is no contract nor statute which affects their interests, the owner of the upper stratum has an absolute right to have his land supported in its natural condition by the stratum below.”
Part of section 122 of volume 1 of Minor on Real Property reads:
“The right of support, wherever it exists, whether by natural right or by agreement, supposes an absolute obligation upon the servient owner, regardless of any negligence on his part in making the excavations or improvements.”
“There is a right of subjacent support, though this is not by grant but is a right of property passing with the soil, as otherwise the surface can not be enjoyed at all.” (5 M. A. L. 364.)
Volume 1 of Tiffany on Real Property, at page 690, says:
“But the presumption is that the right to subjacent support exists, and clear evidence is necessary to support a claim to the contrary.”
Other authorities are: 3 Lindley on Mines, 3d ed., §§ 818, 819; Williams v. Hay, 120 Pa. St. 485; Burgner v. Humphrey, 41 Ohio St. 340; Notes, 2 L, A. R., n. s., 1115, 1117, and 41 L. R. A., n. s, 236, 243.
Subjacent support is a part of the realty, the same as the surface soil, the subsoil, the water, the rocks, and the minerals under the surface, and the air and light above. Real property can not exist without that support.
The deed from the defendant conveyed everything that the defendant could convey, except what was specifically reserved. The right to take from the surface subjacent support was not reserved. On its face, the deed conveyed subjacent support for the reason that such support was a part of the real property therein described.
It is argued that because the coal had, before the deed was made, been mined from that part of the land which afterward caved in, no cause of action exists in favor of the plaintiff. When that coal was mined the defendant owned the surface, the coal, and all the substrata, and had a right to take away from the surface all subjacent support. When the defendant sold this land to the plaintiff the surface was standing in its natural position, supported in some way by what was below. The plaintiff knew that some of the coal had been mined from the land, but he had no personal knowledge of the manner in which the mine had been worked. There was no evidence to show that he knew that the mine had been left in such a condition that there would be a subsidence of the surface. There was nothing to indicate that'support for the strata above the coal had been withdrawn. The plaintiff had the right to assume that such support had been left. Under these circumstances the plaintiff’s knowledge of the fact that the coal had been taken from a portion of this land did not constitute a waiver of the right to subjacent support conveyed by the deed.
It may be said that the amount paid for the land, when compared with the price for which adjoining land was selling, indicated that the plaintiff took this property and assumed the risk of the surface subsiding. It does not appear that twenty-five dollars an acre was not a fair price for this land for agricultural purposes. That price was compared with the price of other lands which had not been divided into a surface estate and a mineral estate. In other words, this land was compared with other land that included both the surface and the under lying coal. Without the surface the coal under the other land was worth eighty dollars an acre. What the surface of the other land was worth, without the coal, was not shown. For this reason no argument whatever can be based on the price paid by the plaintiff for the land.
It necessarily follows that the plaintiff had a cause of action against the defendant.
2. Was the plaintiff’s action, at the time it was commenced, barred by the statute of limitations ? The coal was taken from the land prior td the execution of the deed. The deed was filed for record March 14, 1904. The petition in this action was filed January 20, 1915. The cave-ins occurred within two years prior to the time this action was commenced. If the plaintiff had been the owner of the surface, and the cause of action had accrued at the time the coal was taken from under the land that subsided, this action would have been barred by the statute of limitations. If the cause of action did not accrue until the land subsided the action was not barred by the statute of limitations.
Until the land subsided the plaintiff sustained no damage and had no cause of action. In Railroad Co. v. Schwake, 70 Kan. 141, 78 Pac. 431, this court said:
“Where a railroad company appropriates an alley in a city for the purpose of laying its tracks, and makes a deep excavation therein close to the lot line, the damages recoverable by an abutting owner are restricted to the special injury sustained by him by reason of being cut off from access to, and egress from, his property. A landowner does not suffer damages recoverable at law for injury to lateral support of his property until the eagth is so much disturbed that it slides or falls. The actionable wrong for impairment to lateral support is not the excavation, but the act of allowing the owner’s land to fall.” (Syl.)
In Note, 23 L. R. A., n. s., 805, this language is found:
“So far as the cases are concerned which deal with applicability of the statute of limitations to actions for injury to the surface caused by mining operations or other excavations, the great weight of authority is to the effect that a cause of action does not arise until some actual mischief has been done, from which time the statute of limitations begins to run, regardless of when the mining or other excavating was done.”
. The plaintiff’s cause of action did not accrue until the land subsided; and it follows that at the time this action was commenced it was not barred by the statute of limitations.
3. The defendant insists that the court erred in' sustaining the plaintiff’s objection to the defendant’s cross-petition. The date of the deed and the .time of commencing this action have been stated. More than ten years elapsed between the excution of the deed and the commencement of this action. The deed fixed no time within which this option.to repurchase by the defendant was to be exercised. Under these circumstances that option should have been exercised within a reasonable time. (Beck v. Blue, 42 Ala. 32; Hopkins v. Lewis, 18 Cal. App. 107; Heydrick v. Dickey, 154 Ky. 475; Lawson v. Mullinix, 104 Md. 156; Williams v. Hart, 116 Mass. 513; Pickering, v. Pickering, 38 N. H. 400; Campbell v. Bartlett, 122 Tenn. 208; 36 Cyc. 724.)
The evidence showed that the plaintiff had placed improvements on the land to the value of four thousand dollars. ' Since the making of the deed, the defendant has been mining the coal from this land, and must have known that the plaintiff was putting improvements thereon. No offer was made to pay for the improvements. In the face of all these circumstances it was not equitable that the defendant should have specific performance of the option contained in the deed. In Fowler v. Marshall, 29 Kan. 665, this court said:
“Upon breach of a contract for the sale of real estate, it is not a matter of course for the court to enter a decree of specific performance. That will be done only when, upon all the facts, it is equitable it should be done. '
“He who asks specific performance should show the facts which make such a decree equitable; and a failure to do this justifies a refusal of the degree.” (Syl, ¶¶ 1, 2.)
(See, also, Bird, v. Logan, 35 Kan. 228, 10 Pac. 564; Reid v. Mix, 63 Kan. 745, 752, 66 Pac. 1021; Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202; Thompson v. Musick, 85 Kan. 399, 400, 116 Pac. 612; Johnson v. Town Co., 7 Kan. App. 134, 140, 53 Pac. 87.)
The court struck out the defendant’s cross-petition asking for specific performance, but the real question presented is the refusal of the court to decree specific performance of the option to repurchase contained in the deed. It can not be said that the trial court abused its discretion in striking out the cross-petition and in refusing to decree specific performance.
Each, of the judgments is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In this action the township is sued to recover for injuries plaintiff received when an automobile in which she was riding drove into an excavation caused by the removal of the planking over a culvert in a public road. The court sustained a demurrer to the plaintiff’s evidence on the' ground that it was not sufficient to show that the township trustee had actual notice of the dangerous condition of the highway five days before the plaintiff’s injury. The plaintiff appeals.
Previous to the accident the township officers had made an arrangement with a contractor for building several new culverts, including one known as the Tedrow culvert, where plain- ’ tiff was injured. The township was to furnish áll materials, including form lumber. Elmberg, the contractor, began the construction of the culvert October 10, and left the work in about five days, expecting to return to remove the form lum- • ber and complete the construction of the new culvert. Under his contract he had nothing to do, with the work of repairing the highway further than to make the excavation for the new culvert and to construct it. , Soon after commencing work he removed the planking of the old culvert, which stood about-' twenty feet west of the new location, and used the lumber for forms in connection with the cement work. While he continued work there he put out a lantern at night. The accident to plaintiff occurred on the night of October 23, some days after the contractor had left the work. Elmberg testified that on leaving the work he placed a plank on end in. the excavation caused by the removal of the top of the old culvert and that he did not notify any of the township officers of the progress of the work, or what he had done, or that he was leaving the work. During the progress of the work public travel had made a well-beaten track about ten feet south of both culverts. The township trustee knew that the culvert was in the course of construction. Two days before beginning work on the Tedrow cujvert the contractor was finishing the construction of the Weir bridge at another place in. the township, and the trustee came there to see him, and directed him, when he had finished the work there, to begin the Tedrow culvert,' and to place it .twenty or thirty feet east Of the old one. It is not claimed that the trustee authorized or directed the re moval of the planks of the old culvert where the plaintiff was injured, but plaintiff contends that the circumstances shown in evidence were sufficient to justify submitting to the jury the question whether or not the trustee had actual notice or knowledge of the conditions which caused the injury. The circumstances relied on are the general knowledge the trustee had of the character of the work and that it was in progress, and in addition, these facts: When the trustee visited the work at the Weir bridge he saw that the contractor was using lumber which he had taken from the old culvert to use in the cement work there. Plaintiff lays stress on this fact, and argues that the trustee must have known that the contractor would do the same thing when he came to build the Tedrow culvert. There was also evidence that Mr. Miller, the trustee, made a statement in substance to this effect: About one week before the accident to plaintiff, the trustee and his son drove past the work at the Tedrow culvert in the nighttime, the son driving. Mr. Miller was sitting on the side of the buggy furthest away from the work and did not look particularly at the conditions of the work when he passed; he saw no lights or barriers at that time. This was the only time he had been near the work while it was in progress.
We think the facts go no further than perhaps to tend to show constructive notice of conditions. The fact that the trustee knew the contractor had taken planks from the old Weir culvert to use in the cement construction there comes far ■short of tending to show that he actually knew what was done at the culvert in question.
It is said there can be no question that the work which the township caused to be done at the scene of the injury was such as caused the highway to be defective, and therefore the question of actual notice is one for the jury, because these conditions “fairly spelled danger,” citing Sims v. Williamsburg Township, 92 Kan. 636, 141 Pac. 581.
The difficulty is a failure of evidence to show that the trustee had actual knowledge of the conditions, that is, the removal of the planking from the old culvert which made it necessary to set up barriers or signals, and these are the only conditions plaintiff can, or, in fact, does rely upon. - The condition of the new structure had nothing to do with plaintiff’s accident. In the Sims case, supra, the trustee had actual knowledge’obtained from personal observation while repairing the road. Actual knowledge of conditions was established also in Abbott v. Wyandotte County, 94 Kan. 553, 146 Pac. 998; Higman v. Quindaro Township, 89 Kan. 476, 132 Pac. 215; and Mosier v. Butler County, 82 Kan. 708,109 Pac. 162, cited by plaintiff.
While actual knowledge may be established by circumstantial evidence, the same as in other cases (Watkins v. Harper County, 95 Kan. 166, 168, 147 Pac. 822), circumstances which go no further than to establish that the trustee had constructive notice are not sufficient, for the reason that the legislature has seen fit to limit the liability of counties and townships for injuries caused by defective highways to those cases where the existence of five days actual notice is established. The evidence shows gross negligence' on the part of the township officers in failing to know the actual conditions at the place where the plaintiff was injured and in not protecting the public by the erection of suitable barriers and warnings; but this is not sufficient of itself to establish liability. ' The plaintiff concedes the law to be that if the trustee had himself removed the planking, and the plaintiff’s injury had occurred less than five days thereafter, the township would not be liable under the statute. We fail to find any evidence which would have justified submitting the case to the jury on the question of notice. It follows that the judgment will be affirmed. | [
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The opinion of the court was delivered by
West, J.:
Lois Myers owned a hotel at Florence on which was a mortgage of $1275. F. C. Thomas made a verbal agreement with Mrs. Myers, through her husband, to take one-half of the property for $3500, subject to the mortgage, and turned over certain instruments which he claims were worth $828, but paid nothing more and received no conveyance. Mrs. Myers borrowed $1500 of the plaintiff bank to take up the existing mortgage and accrued interest, and made a deed to the hotel property and a bill of sale of the furniture to secure the payment, taking back an instrument giving the right to a reconveyance upon payment. Later she and her husband executed a quitclaim deed to defendant Sinclair. Thomas appears to have helped manage the property for a while, but later they all left it and a tenant named Baker had it for a time, having been instructed by Myers to pay the rent to the plaintiff, which was done. This tenant notified the plaintiff that he intended to give up possession and the plaintiff put a tenant in charge, and claiming the rights of a mortgagee in possession brought this suit to foreclose. Mr. and Mrs. Myers made default. Thomas alleged a purchase of a half interest in the property, the payment of $828, refusal of Myers to convey, possession on his part and full notice to the'bank of his rights when the $1500 loan was made, and prayed a decree requiring Myers to convey a half interest to him, and in the event this could not be done, that he have a lien for the sum paid by him with interest, and foreclosure.
Sinclair alleged ownership, right of possession and wrongful entry by the bank, and prayed for possession and a judgment for the rental value of the property. The court found for the plaintiff, denied any relief to the defendants, and decreed a foreclosure.
Thomas and Sinclair assign error in refusing specific performance to the former'and judgment for rents to the latter.
Sinclair took his deed subject to the bank’s lien and there is nothing indicating that he ever had possession. The bank took possession about the first of May, 1913, and Sinclair’s quitclaim was executed March 28, and recorded July 14, but the tenant seems to have received his instructions from Myers and not from Sinclair. It is argued that the bank took possession as owner and was bound to account to the quitclaim holder for the rents and profits, but the president testified that he was “claiming to be the mortgagee now in possession,” and this is further evidenced by the bringing of this action. At any rate Sinclair can not complain that the mortgagee, having obtained peaceable possession, applied the rents to its debt. It appears that the bank received no rent from the property after taking possession until the last two months before the trial when it received $30 a month, also that part of the rent money paid by Baker went for repairs, but just how much is not shown. There is nothing to indicate that any of the two months’ rent of $30 a month'went for improvements or repairs. A mortgagee in possession is chargeable with the reasonable rental value of the use and occupation of the premises (Walter, Adm’r, v. Calhoun, 88 Kan. 801, 129 Pac. 1176), and were Sinclair attempting to redeem, the bank would have to account for the rents, but it is not precluded from proceeding with foreclosure nor required to stop every month or two to settle up a rent matter with the quitclaim holder. When the final computation and accounting shall come all matters concerning rents, repairs and improvements can be properly adjusted out of the surplus which the decree requires to be turned into court to await its further orders.
As to Thomas, he does not offer to perform his part of the alleged oral contract or to free the land from incumbrance. While he claims that the bank had notice of his interest, this is denied by the bank’s president, and the decision of the court seems to have resolved the matter against Thomas. At any rate the situation is such that he can not in equity stand in the way of foreclosure or demand specific performance, and he does not assign error in refusing him a lien for the $828.
Complaint is made about the cross-examination of Myers over objection of counsel, but the transcript shows that no objection whatever was made.
The decree is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a mutual benefit certificate issued by the Bankers’ Life Association of Des Moines, Iowa, to William R. Priest. A demurrer was sustained to the answer and the defendant appeals.
The by-laws of the association are a part of the contract. They provide for assessments due on the first day of January, April, July and October of each year, with a “grace” period of one month within which to pay. Assessments are levied by resolution of the board of directors, and notices of ass'essménts are mailed to members in the month preceding -the calendar month in which the payment is due. Failure to pay an assessment within the required time forfeits membership and all right to share in the funds of the association. Lapsed certificates of membership may be reinstated, at the option of the association, on written application therefor. No right to reinstatement exists unless a variety of conditions'be met, among them being good health, sound constitution, temperate habits, and unobjectionable occupation and residence, on the part of the applicant.
On June 23, 1914, the association sent to the insured notice of assessment call No. 125, reading as follows :
“This is to notify you that a levy has been made upon the assessment membership of this Company for fifteen per cent, based pro rata on the amount of the Guarantee Fund of such membership, for the purpose of providing Benefit Fund.
Your portion of the Benefit Fund is.......................... $13.80
This call embraces the expense dues for six months for the Contingent Fund .......................................... 4.60
Total.............................................. $18.40
“When more than one certificate is included herein an equal proportion of the above total is payable on each.
“This sum is due July 1, 1914, and payable only to this Company at its Home Office or to a Depository Bank. One month’s grace is allowed so that payment may be made on or before August 1, 1914. If not made by that date your membership and insurance will thereby cease without action by the Company.”
The assessment was not paid on or before August 1, 1914. On September 18, 1914, the insured was reinstated. The reinstatement was procured through representations made in the application for reinstatement. The insured died on November 9, 1914. The answer avoided the effect of reinstatement by alleging that the representations contained in the application for reinstatement were not true, and predicated nonliability on lapse of membership for failure to pay the assessment within the time limited. The demurrer to the answer was sustained on the ground that notice of intention to forfeit membership had not been given, as required by chapter 212 of the Laws of 1913. If this notice was essential and was not given, reinstatement and the representations inducing reinstatement were not material. The statute reads as follows:
“An act to prevent the cancellation or forfeiture of life insurance policies, ■ without notice.
“Be it enacted by the Legislature of the 'State of Kansas:
“Section 1. It shall be unlawful for any life insurance company other than fraternal doing business in the state of Kansas to forfeit or cancel any life insurance policy on account of the nonpayment of any premium thereon, without first giving notice in writing to the holder of any such policy of its intention to forfeit or cancel the same.
“Sec. 2. Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the holder of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such policy holder shall have the right, at any time within thirty days after such notice has been duly deposited in the post office, postage prepaid, and addressed to such policy holder to the address last known by such company, in which to pay such premium; and any attempt on the part of such insurance company to cancel or forfeit any such policy without the notice herein provided for shall be null and void. The affidavit of any responsible officer, clerk or agent of the corporation, authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be prima facie evidence that such notice has been duly given.”
The defendant says the notice which was given complied with the statute. The court regards the statute as providing for notice of an intention to forfeit under an accrued right to forfeit, and not for notice given before the time for payment has expired that forfeiture will be enforced if payment be not made. The notice of June 23 did not and could not state that the assessment, which was not due until July 1, and which could be paid as late as August 1, was both due and unpaid, as the statute requires.
The defendant says the statute of this state “is based on the New York statute and is practically the same,” and cites two decisions of the New York court of appeals to the effect that notice containing the necessary information, given before the premium is payable, is sufficient. (Conway v. P. M. L. Ins. Co., 140 N. Y. 79; O’Brien v. Union Central Life Ins. Co., 207 N. Y. 180.) The New York act of 1876 regulating forfeiture of life-insurance policies provided that forfeiture should not be permitted unless a notice stating the amount of premium due and the place where it might be paid were mailed to the insured not less than thirty days nor more than sixty days before the payment became due, according to the terms of the policy. (Laws N. Y. 1876, ch. 341.) The next year the statute of 1876 was amended. The amended statute provided that power to forfeit could not be exercised except under the following conditions: “Whenever any premium or interest due upon any such policy shall remain unpaid when due,” notice shall be given to the insured, stating the amount due, the place where payable and the person to whom payable, and stating that unless “the premium or interest then due shall be paid . . . within thirty days . . . the . . . policy . . . will become forfeited and void.” The statute further provided that payment within the thirty days limited therefor should satisfy the requirements of the policy, and then proceeded as follows:
“Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in. the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.” (Laws N. Y. 1877, ch. 321.)
Very clearly two kinds of notice are here recognized: One, the advance notice stating when premium will fall due, with a forfeiture warning, and the other, a forfeiture notice given after default arising from nonpayment of premium within the contract time. ' The Conway case was decided under the act of 1877. Advance notice of the fifth year’s premium on the policy sued on was given. The notice contained the forfeiture reminder. Instead of paying the premium the policy holder gave his note for the amount. The note was not paid and the policy was canceled without the giving of another notice. The court said: .
v “The notice provided to be given by the statute as a condition of its right to declare a policy lapsed for nonpayment of an annual premium was not necessary, inasmuch as it had duly given the notice before the premium became due, which the statute has provided for.” (Conway v. P. M. L. Ins. Co., 140 N. Y. 79, 86.)
Afterwards the legislature of the state of New York went back to notice, with forfeiture warning, given before the time when premium is payable. Section 92 of the Consolidated Insurance Laws of New York contains the following provisions:
“Nor shall any such policy be forfeited, or lapsed, by reason of nonpayment when due of any premium, interest or installment or any portion thereof required by the terms of the policy to be paid, within one year from the failure to pay such premium, interest or installment, un-, less a written or printed notice stating the amount of such premium, interest, installment, or portion thereof, due on such policy, the place where it shall be paid, and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured, . . . at least fifteen and not more than forty-five days prior to the day when the same is payable. The notice shall also state that unless' such premium, interest, installment or portion thereof, then due, shall be paid to the corporation, or to the duly appointed agent, or person authorized to collect such premium by or- before the day it falls due, the policy and all payments thereon will become forfeited and void except as to the right to a surrender value or paid-up policy as in this chapter provided. If the payment demanded by such notice shall be made within its time limited therefor, it shall be taken'to be in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited or declared forfeited, or lapsed, until the expiration of thirty days after the mailing of such notice.”' (3 Consol. L. of N. Y. 1909, p. 1830.)
The O’Brien case was decided under this statute. The facts, were similar to those of the Conway case. Notice was given containing the forfeiture warning, the. premium was not paid in cash, notes were given, the notes were not paid, and forfeiture was declared without further notice. The court said:
“Notice is not required under the statute, prior to notes becoming due which are given for a premium, when the statutory notice has been given as required thereby prior to the premium becoming due.” (O'Brien v. Union Central Life Ins. Co., 207 N. Y. 180, 189.)
The result of the foregoing is that the Kansas statute “is based on the New York statute” only in the sense that the same general legislative subject is dealt with, and New York acted first. The Kansas statute is radically different from the New York statute in its earliest and latest forms. The Kansas statute resembles the first part of the New York act of 1877, but that act dispensed with notice after default if notice were given before premium was payable. The decisions cited emphasize the distinction between the two kinds of notice. The notice which the defendant gave was notice of an assessment, which called attention to the penalty for nonpayment. The statute of Kansas does not recognize it as a notice of intention to forfeit, and without statutory authority it can not be substituted for a forfeiture notice to be given after default.
Assuming the statute to. be as the court interprets it, the defendant says it does not apply to the policy sued on because the policy was issued before the statute took effect, and if the statute were to apply, the statute would be void, as impairing the obligation of the contract. With this contention the court agrees. The subject was carefully considered when the court had before it the case of Lightner v. Insurance Co., 97 Kan. 97 154 Pac. 227.
The New York statute, in its various forms, expressly applies to “any policy hereafter issued or renewed.” The Kansas statute reads “any life-insurance policy.” The plaintiff argues that the New York statute was undoubtedly before the draughtsman of the Kansas statute, and that omission of express limitation to policies subsequently issued is significant of an intention to give the unqualified terms of the act their literal meaning. If the statute, as the legislature conceived it, would impair the obligation of contracts already in force, an express limitation to policies subsequently issued was quite unnecessary. The statute could apply to none but policies subsequently issued, and the legislature will not be accused of designing a void act.
The plaintiff says the law is confined to regulation of future forfeitures of existing contracts, and properly considered affects nothing but remedy. Numerous fortifying decisions are cited which need not be reviewed at length. The rules of law are not in dispute, the question being, How shall the statute be classified? Does it affect nothing but remedy, or does it impair obligation? After the contract right of forfeiture is complete, and obligation to pay the policy is at an end, the right is taken away and the obligation is extended until the obligor gives a notice, and for thirty days thereafter. Should the insured die before notice given, or within the thirty-day period, the policy is as secure against forfeiture as it was while premium was still payable according to its terms. Should the insured live, and pay the unpaid premium within the statutory time, the obligation of the policy is unconditionally restored. In this case a forced reinstatement of lapsed membership would result, and a- reinstatement stripped of all the safeguards reserved for the insurer’s benefit in the bylaws forming a part of the contract. If the answer be true, the insured could not have secured reinstatement. If the statute be valid and govern the rights of the parties, it accomplishes for the insured what he could not accomplish except by fraud.
The conclusion reached in the Lightner case, that the statute makes a radical change in the terms of the contract, a change materially affecting the rights and obligations of the parties, is adhered to.
The plaintiff says the obligation of the contract was not affected because the defendant could have given the statutory notice after the premium became due on July 1, so that the statutory period of thirty days within which payment could be made would have coincided with the contract period of one month. This is a fortuity which could not occur with respect to April'assessments. Beyond this, however, the notice required is not notice of a contingent intention to forfeit which may possibly be entertained in the future. It is notice of an actual intention to forfeit because premium has not been paid. Such an intention can not exist until cause for forfeiture arises. Cause for forfeiture can not arise during the time within which payment may rightfully be made. That time must expire and the premium be unpaid. In the present instance the assessment was “due” on July 1, but it could be paid at any time on ,or before August 1 without delinquency. The word “nonpayment” in sections 1 and 2 of the statute, and the word “unpaid” in section 2, imply default in payment, and the statutory notice could not be given before August 2.
The judgment of the district court is reversed and the cause is remanded with direction to overrule the demurrer to the answer. | [
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The opinion of the court was delivered by
Porter, J.:
It is insisted a rehearing should be granted on the ground that the law declared in the first paragraph of the syllabus is manifestly based upon the assumption of two facts, first, that defendant offered to pay plaintiff, one-half his average earnings only “until he was able to come back to work,” and second, that a dispute existed as to whether plaintiff’s disability was permanent or only temporary; and it is contended the record contains no evidence upon which to base either assumption. It is also contended that the court misunderstood defendant’s claim. In the opinion it was stated that defendant’s principal complaint was that plaintiff ought not to recover because he refused to accept “payment or settlement” under the compensation law. In the petition for rehearing it is now insisted that defendant did not contend that plaintiff refused “a settlement.”
Taking up the last contention first, we have only to say that we used the words “payment or settlement” as meaning the same thing, just as defendant in his original brief used them where he complained that “no payment to, or settlement with plaintiff was possible, because he scorned the law and refused to be bound by it.” Dr. Johnson, who was the defendant’s adjuster and to whom the plaintiff was directed to go, testified: “I talked to him about settlement.”
Was there evidence upon which to base this statement in the opinion: “His offer was to pay plaintiff half of his wages or $6 per week, until he was able to come back to work, which the doctor believed would be in a short time.” (Sillix v. Armour & Co., ante, p. 103, 106, 160 Pac. 1021.) We were not attempting to quote the language of the witnesses, but merely the substance. Doctor Johnson’s testimony is that he told plaintiff—
“He could draw his compensation every two weeks at the rate of six dollars a week as long as it was necessary for him to be off. As soon as he was able to go bade to work, and do light work of any kind I would take it up with the superintendent and see if he could not give him a light job where he could handle the work and at the same time draw his full pay.”
We are unable to discover any difference between the meaning of the expression “as long as it is necessary for him to be off” and the expression “until he was able to come back to work.”
It is said that the evidence “conclusively proves that Doctor Johnson offered to pay him [plaintiff] one-half his wages as long as he was totally disabled, for a period of eight years, .if necessary.” In support of this, defendant quotes the testimony of Doctor Johnson, which, however, is not the only evidence to be considered. Doctor Johnson testified that he had a pamphlet copy of the compensation law in his desk, and took it out and read it to the plaintiff and told him that the law applied and that the company was working under the law; that he explained to plaintiff that “if it was necessary for him to be absolutely and totally disabled for eight years he was entitled to half for that length of time.” The plaintiff testified that Doctor Johnson did not have the law there and did not read it to him, but told him that the law allowed “so much for an arm broke, so much for a leg broke, and so much for this and so 'much for that,” etc.
It is said that no evidence can be found tending to prove that there was any dispute between Doctor Johnson and plaintiff as to the extent of plaintiff’s incapacity. It is true the word “incapacity” was not used in the conversation, and plaintiff did not assert the extent to which he claimed he was injured. He testified that at that time he did not know there was such a thing in the law as “partial incapacity” or “total incapacity,” and Doctor Johnson says that he did not tell him about partial incapacity, because he did n’t believe that plaintiff would ever be partially incapacitated. As stated in the former opinion, we think the evidence shows that Doctor Johnson believed the plaintiff was not very much hurt and would soon be able to return to work, and that the plaintiff thought his injuries were more serious. Plaintiff’s testimony is he told me he “wanted me to go to work then; I told him I was n’t able.”
It is not necessary in order to constitute a dispute between the parties that the employee should state in precise terms just what he demands, or that the claims of either party be stated succinctly and in detail, provided, there be a lack of agreement or arbitration. The employer may admit the injury and his liability generally under the compensation act, but if he and the injured employee do not agree as to the nature and extent of the inj uries, so far as these things affect the duration of the disability, and the differences between them are not submitted to arbitration, a dispute exists which authorizes the employee to maintain an action to have the facts determined.
Under the English workmen’s compensation act, before an application for compensation can be filed with the county court judge or before application for arbitration is competent there must be a dispute between the employee and the employer as to the latter’s liability. In Higgins v. Poulson (1911) 5 B. W. C. C., n. s., (Eng.) 66, it was held that there was a dispute at the time of the application so as to give the county court judge jurisdiction, notwithstanding the employer admitted liability and present total incapacity and submitted to an award of 10s. per week during total disability (the amount payable during partial incapacity to be settled thereafter). In Cooper v. Wales, Limited, (1-915) 31 Times L. R. (Eng.) 506, it was held that there was a dispute,- although the employer admitted the liability to pay compensation during total incapacity, but refused to admit his liability to pay compensation in event of partial incapacity, and the workman declined to accept an admission limited to total incapacity only.
Besides, it appears from the record that there was and still continues to be a dispute between the plaintiff and the defendant as to the nature, duration and extent of plaintiff’s injuries and whether or not he was partially incapacitated for work -from about four weeks after he received his injuries. In his petition plaintiff alleged permanent injuries and that there had been no agreement or arbitration with reference thereto. The defendant filed an answer consisting of a general denial, and offered evidence of physicians and others tending to show that a few weeks after the accident there was nothing the matter with the plaintiff. Having contested all through the litigation the claim' of plaintiff as to the extent of his injuries and the duration and extent of his incapacity, de fendant can not be heard to deny the existence of a dispute as to' the facts. It has been held that “Where the employer raises the question of duration of incapacity by his answer, he can-not be heard to say that there was no dispute at the time of the application.” (Barron v. Carmichael [1912] 5 B. W. C. C., n. s., (Eng.) 436).
Plaintiff’s wages amounted to $12 per week, and there was evidence of the foreman in that department to the effect that this was about the average paid for that kind of employment for the previous year. In one instruction the court, after stating the manner in which the average weekly earnings of plaintiff were to be determined, because he had not been employed by defendant for fifty-two weeks prior to the injury, concluded with the statement that the jury might allow a sum estimated at not less than $6 nor more than $12 for every week of such total disability. We thought the instructions, considered as a whole, explained that the jury could not allow as much as $12 a week, and adopted as plausible a computation offered by plaintiff’s counsel, which seemed to support the verdict. This is complained of in the petition for rehearing and we have reexamined defendant’s contention in this respect.
Plaintiff was injured June 4, 1913, and his own testimony is that he was able to go to work on the 21st day of July, 1913, and had worked or been able to work all the time since then, receiving wages from $1.75 to $1.85 per day during most of that time. The trial was on August 2, 1915. We think there is no force in the suggestion that the verdict of $1257 might have been arrived at by allowing him $12 per week for 100 weeks, or $9 a week for 139 weeks. These are some of the computations offered by defendant as possible explanations of the verdict. According to plaintiff’s admissions he was able to go to work eight weeks after he was injured. In some of the instructions the court charged that he could not under the compensation act recover anything for the first two weeks following his injury; in other instructions the jury were told they might allow for total disability from the date of the injury. If the jury were misled by the statement in one instruction, that they might allow $12 a week for total inca pacity, the most that can be said is that they allowed for eight weeks at a rate of $6 per week more than the compensation act authorizes for total disability. Because of the possibility that the jury may have been thus misled, plaintiff will be given the option of accepting-a judgment modified by reducing the amount $48, -or taking a new trial. In all other respects the judgment will be affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On May 7, 1915, W. S. Cook brought ejectment against his son, W. O. Cook, and his son’s wife, Nora Cook, for the possession of a farm. He recovered a judgment and defendants appeal.
The evidence showed that prior to 1902 the father owned the land; that in that year he gave possession to the son, who had ever since retained it. The son testified that he took possession under an oral gift, and made lasting and valuable improvements; that his father told him if he did all right he would probably make him a deed sometime; that he would pay the taxes as long as he lived, and would make a deed a little later on. The father denied the gift, and asserted that his son had been merely a tenant on shares; he produced several leases to that effect, saying that one had been executed each year, but that some of them had not been preserved. He also contended that the only improvements were of a slight and temporary character, and were made partly at his expense. The son denied that a lease was executed at the time he took possession, or for that year. He admitted executing several leases, and explained them by saying that he signed them to keep peace in the family. The errors assigned relate to the rejection of evidence and to the giving and refusal of instructions.
1. The son’s wife testified that before they were married the plaintiff had promised to deed the farm to her husband and herself; that after the marriage and before they moved to the farm he said they were to have it and $500 to stock it up. She offered to testify that after the plaintiff had told her “to go down there, and he would deed them the land,” his wife, who had since died, said that “that suited her because the land belonged to her. That her money went in to buy it, and she wanted him to do that.” This testimony was ruled out. If it was offered on the theory of showing that the defendants had derived title from the plaintiff’s wife the ruling was correct under the statutory provision which forbids any one to testify in his own behalf to a transaction with a person since deceased, “where either party to the action claims to have acquired title, directly or' indirectly from such deceased person.” (Laws 1911, ch. 229, § 1.) If offered for any other purpose its exclusion can not be regarded as vitally important. The witness had testified directly to the promise made by her husband’s father. Her statement that the mother was present and expressed her approval added nothing to the force of the testimony beyond, perhaps, such corroboration as might be deemed to result from the statement of collateral details, unimportant in themselves.
The son testified that in December, 1906, he had told his-mother, in his father’s presence, that his father had given him notice to leave the premises on the first of the next March. He was asked what had occurred at the' time of the conversation, and-answered that he had told her he had been given a written notice to leave. This answer was stricken out on an objection by the plaintiff. The defendants then offered to show that the mother had said she.wanted her son to occupy the farm, and to give his father a written' lease, so as to keep peace in the family, and that this was one of the reasons for his signing the lease. This offer was not rejected, but the judge said: “That won’t respond to your question at all. Ask the question along that line.” Further questions were then asked and answered, but the following question and answer were stricken out on the plaintiff’s objection that they were within the statutory rule referred to: “Q. What was agreed to between you? A. .Of course she told me not to move, that I did n’t have to.” What has already been said of the rejected offer applies as well to the evidence stricken' out — if the statement of the mother was intended to establish a claim to the property derived through her it was incompetent; if- it was offered for any other purpose it was not sufficiently material to furnish a basis for reversal.
2. Complaint is made of the giving of an instruction, the material part of which was in these words:
“While less positive proof is required to establish a parol gift of land from father to son, than between persons not so related, you are not warranted in inferring a gift from slight circumstances. The proof must be by a preponderance of the evidence, and must be of such a clear nature and quality as satisfies your mind that the gift was actually made.”
The portions of the instruction objected to are those declaring that a gift is not to be inferred from slight circumstances, and that the proof on the subject must be of such a clear nature and quality as to satisfy the mind. The statute of frauds requires the transfer of the title to real estate to be accomplished by a written instrument. (Gen Stat. 1909, § 3837.) Where an oral gift is enforced because it has been followed by the making of such improvements that to cleny enforcement would be unjust and inequitable, the proof is required to be made by something more than a mere preponderance of the evidence. (Note, 9 L. R. A., n. s., 508.) It is said that “the gift must be shown by- clear and convincing proof” (Flanigan v. Waters, 57 Kan. 18, 21, 45 Pac. 56) ; that even as between parent and child “the evidence thereof must be positive and unambiguous and the terms clearly defined” (29 Cyc. 1658). We do not think the instruction complained of placed too great a burden on the defendants.
3. The defendants also complain of the refusal to give instructions requested to the effect that the execution of the leases by the son did not estop them to deny the plaintiff’s title, if they took possession of the land under the gift; and that if the gift was made, and they took possession under it, and made valuable and lasting improvements, they should recover, notwithstanding the leases. For the leases to have operated as an estoppel it was necessary that the defendants should have either obtained possession or retained it by virtue of them. (Ireton v. Ireton, 59 Kan. 92, 52 Pac. 74.) But the instructions given were sufficient to protect the interest of the defendants in this regard. The fact that the case was submitted to the jury for their-decision implied that the defendants were not necessarily estopped by the leases, for their execution was admitted, and if that in itself had amounted to an estoppel, nothing would have been left to try. But explicit instructions were also given to the effect that if the plaintiff gave the defendants the land, and they took possession under the gift and made lasting and valuable improvements, they were entitled to a verdict, notwithstanding the subsequent execution of a lease by the son. It is true, the court stated as a reason why a lease would not work an estoppel in such circumstances that the place would have become their homestead, and the wife’s signature would have been necessary to its validity. But the reason stated for the rule by which the jury were to be guided, or the omission to state some other sufficient reason, could not prejudice the defendants, so long as the findings of fact necessary to a verdict were correctly enumerated. The charge required a verdict for the defendants if the jury believed (1) that the plaintiff had given them the land; (2) that they had taken possession under the gift, and (3) had made valuable and lasting improvements. The verdict for the plaintiff, therefore, implied a finding against the defendants on at least one of the matters indicated, and, therefore, justified the judgment that was rendered, since a concurrence of the three was necessary to a different result.
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Elliott, J.:
William Taylor appeals the trial court’s summary judgment favoring Allstate Indemnity Company (Allstate), ruling Taylor was not entitled to underinsured motorist benefits under Allstate policies issued to William Ziegler or Kristina McKenney. We affirm.
The essential facts are these; A vehicle driven by Michael Stan-turf collided with a car driven by William Ziegler. William and his passengers, Joyce Ziegler, appellant Taylor, and Taylor’s significant other Kristina McKenney, were injured in the accident.
Progressive Insurance Company provided liability coverage for the Stanturf vehicle of $25,000 per person and $50,000 per acci dent. Progressive interpled $50,000, and the district court ordered the sum to be divided as follows: William Ziegler $25,000; Kristina McKenney $12,500; Joyce Ziegler $6,250; and Taylor $6,250.
Taylor sued Allstate for underinsured motorist benefits (UIM) under a policy issued to William Ziegler and a policy issued to Kristina McKenney. Ziegler’s UIM coverage had limits of $50,000 per person and $100,000 per accident. Under this UIM coverage, Allstate had already paid $25,000 to William Ziegler and $25,000 to Kristina McKenney. McKenney’s UIM coverage had limits of $25,000 per person and $50,000 per accident. McKenney’s policy did not list Taylor as a named insured.
Allstate moved for summary judgment, arguing there was no UIM coverage under the Ziegler policy because the limits had been exhausted, and no UIM coverage under the McKenney policy because Taylor was not an insured and UIM benefits cannot be stacked. Agreeing, the trial court granted Allstate summary judgment and this appeal by Taylor follows.
Except for an immaterial dispute, the parties agree on the facts of this case. Our review is plenary on an order granting summary judgment based on stipulated facts. Veatch v. Beck, 252 Kan. 1081, 1082, 850 P.2d 923 (1993). Further, whether an insurance contract provides UIM coverage is a question of law, over which we also have unlimited review. See Cashman v. Cherry, 270 Kan. 295, 298, 13 P.3d 1265 (2000).
Taylors claim, to UIM benefits under the Ziegler policy
Without question, Taylor was an insured person under the UIM portion of the Ziegler policy. Taylor argues the trial court’s decision on this issue ignores the public policy of providing broad coverage for innocent persons injured in car wrecks, citing K.S.A. 40-284 and Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. 209, Syl. ¶ 2, 824 P.2d 955 (1992).
Here, the trial court held K.S.A. 40-284 and the Ziegler policy required the UIM coverage limit to be reduced by the liability limits carried by the tortfeasor. This left $50,000 in UIM benefits which had already been exhausted by distributions to William Zie gler and Kristina McKenney. Thus, ruled the trial court, there was no remaining coverage for Taylor.
K.S.A. 40-284(b) provides:
“Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured ... to recover from the insurer the amount of damages for bodily injuiy or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.”
To calculate the amount of UIM coverage available to Taylor, the limits of Stanturf s liability policy must be subtracted from the limits of Ziegler s policy. See Allied Mut. Ins. Co. v Gordon, 248 Kan. 715, 733, 811 P.2d 1112 (1991). On this issue, the trial court’s determination that the Ziegler policy’s UIM coverage was only $50,000 was correct.
Here, the trial court properly applied the teachings of Jones v. Automobile Club Inter-Insurance Exchange, 26 Kan. App. 2d 206, 209, 981 P.2d 767, rev. denied 268 Kan. 847 (1999).
Taylors claim to UIM benefits under the McKenney policy
Taylor also claims the trial court erred in ruling the McKenney policy did not provide UIM coverage for him. Since he was listed as a named operator under the policy and Allstate paid him PIP benefits, Taylor claims he is entitled to UIM benefits.
The McKenney policy provides: “We will pay damages which an insured person is legally entitled to recover from the owner or operator of an uninsured or underinsured auto because of bodily injuiy sustained by an insured person.” The trial court ruled Taylor was not an “insured person” under the McKenney policy. “Insured person” is there defined as:
“1. You and any resident relative.
“2. Any other person while in, on, getting into or out of an insured auto with your permission.
“3. Any other person who is legally entitled to recover because of bodily injury to you, resident relative, or an occupant of your insured auto with your permission.”
“You” is defined as the named policyholder and his or her resident spouse. The named insured is Kristina McKenney. Taylor is not McKenney’s spouse or relative, and McKenney’s vehicle was not involved in the accident. Further, whether Allstate paid PIP benefits to Taylor under McKenney’s liability coverage is irrelevant to the issue of UIM coverage. The trial court did not err in ruling McKenney’s UIM coverage did not extend to Taylor.
Taylor also claims the trial court erred in denying his motion for relief due to newly discovered evidence. The claim misses the mark. First, the “newly discovered evidence” is appended to his brief but is not included in the record on appeal. Material appended to a brief but not included in the record on appeal will not be considered on appeal. Zeferjohn v. Shawnee County Sheriffs Dept., 26 Kan. App. 2d 379, 383, 988 P.2d 263 (1999).
Second, Taylor has filed another appeal regarding the trial court’s denial of his motion for relief from judgment (case No. 87,851). The appeals were not consolidated and, thus, this issue is not properly before the court in the present case.
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Knudson, J.:
Kansas Industrial Consumers (KIC) filed this petition for judicial review from a final order of the Kansas Corporation Commission (KCC) in an electric utility rate proceeding instituted by Western Resources, Inc. (WRI) and Kansas Gas and Electric Company (KGE). KIC companies include; Atchison Casting Corporation, The Boeing Company, Farmland Industries, Inc., Delphi Automotive Systems, Inc., L.L.C., Hercules Cement Corporation d/b/a Heartland Cement Company, Kansas Hospital Association, and Raytheon Aircraft Company.
Jurisdiction is conferred upon this court under K.S.A. 2001 Supp. 66-118a(b) and in accordance with the Act for Judicial Re view and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. We note in a separate but related proceeding, WRI and KGE have also filed a petition for judicial review from the KCC’s order. See Western Resources, Inc. v. Kansas Corporation Comm’n, 30 Kan. App. 2d 348, 42 P.3d 162 (2002).
On appeal, KIC challenges the KCC’s calculation of revenue requirements of WRI and KGE. Specifically, KIC questions the KCC’s adoption of a hypothetical equity structure and its findings regarding revenues and operating expenses. We conclude the KCC acted within its authority, and there exists substantial competent evidence to support its findings.
The KCC Proceedings
In November 2000, WRI filed an application with the KCC, seeking'approximately a $92,000,000 rate increase for its electric service division. On the same date, Kansas Gas and Electric Company (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. Public hearings were held by the KCC in. April 2001 across the state.
Various parties intervened in the proceedings before the KCC. In addition to WRI and KGE, the intervenors included Unified School District No. (U.S.D. 259), Citizens’ Utility Ratepayer Board (CURB), City of Wichita, City of Topeka, the 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 the Southcentral Municipal Energy Agency.
The KCC held evidentiary hearings on the applications from May 17, 2001, through June 4,2001. Thereafter, all the 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. The order dealt with a wide variety of issues pertaining to the revenue requirements of WRI and KGE. In conclusion, 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, 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 the restricted share unit adjustment and the Board of Directors’ fees, and to account for increased coal prices, corporate-owned life insurance, and revenues from the sale of electricity from Jeffries Energy Center to Empire. The KCC also clarified the effective date of interest synchronization and its ruling as to the ONEOK savings adjustment. 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, WRI and KGE, and Goodyear. The petitions for reconsideration were denied in the KCC’s final order of October 11, 2001. KIC filed this timely petition for judicial review.
Standard of Review
Pursuant to K.S.A. 66-118c, this court’s review of an order of the KCC is in accordance with the KJRA, K.S.A. 77-601 et seq. In its brief, KIC contends the KCC erroneously interpreted or applied the law, that the KCC’s order is not supported by substantial evidence, and that the KCC’s decision is otherwise unreasonable, arbitrary, or capricious. Those claims of error are consistent with the scope of review under 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 by the court 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).
It has been repeatedly recognized that the legislature vested the KCC with broad discretion and its findings are presumed valid on review. Because discretion is delegated to the KCC, the courts do not have authority to substitute their judgment for that of the KCC. Moreover, the KCC’s decisions involve complex problems of policy, accounting, economics, and other special knowledge that go into fixing utility rates. As a result, the 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, 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]).
The Use of a Hypothetical Equity Structure
In this first issue, KIC argues Kansas law prohibits the KCC from utilizing a hypothetical capital structure for a public utility when determining rates. KIC appears to argue that any “hypothetical” capital structure, by its terms, is based on costs not actually incurred by the utility and is, therefore, unlawful.
In its initial order, the KCC adopted a hypothetical capital structure for WRI and KGE because of the debt/equity imbalance with a stand-alone utility operation. Staff recommended a capital structure of 51.62% long-term debt, 44.14% common stock, 0.90% preferred stock, and 3.34% accumulated deferred investment tax credits. WRI and KGE agreed this structure was not unreasonable, as did KIC. The KCC concluded this recommendation was, the most reasonable and valid; the KCC found it was directly related to the actual conditions and operations of the utility and was based on a detailed cash-flow analysis. In adopting a hypothetical capital structure, the KCC indicated it would adjust the interest expense factor through interest synchronization to prevent WRI from collecting from ratepayers income tax expense it would not actually pay. The KCC determined the interest synchronization need only be applied if a stand-alone utility with the unusual high debt capital structure actually came into existence; the KCC also held that if the standalone utility of this nature did not materialize or materialized for only an insignificant amount of time, the adjustment would not be applied and the interim rates, upon motion, would be made permanent. KIC attacks both of these determinations.
Did KIC 'Preserve This Issue for Review?
The KCC argues KIC did not preserve this issue for review. First, the KCC notes KIC agreed that Staff s proposed hypothetical capital structure, which the KCC adopted, was reasonable and supported by the evidence. The KCC also contends KIC has changed the theory of its case on appeal.
In its post-hearing brief filed with the KCC, KIC addressed the capital structure issue. KIC argued WRI’s and KGE’s hypothetical capital structure would overcharge Kansas retail electric customers. KIC cited its own witness’ testimony that proposed a hypothetical 14% equity factor, with the condition that revenues generated based on this factor be limited to the electrical operations and not be allowed to flow to WRI’s nonregulated companies. KIC also recognized that CURB’S hypothetical structure of 39% equity and Staffs proposed 44.14% allocations were supported by material and credible evidence. In its brief, KIC seemed to recognize the capital structure issue was being determined in the “extraordinarily unusual circumstance” of a public utility with no equity and a significant debt unrelated to its electric operations.
After tire KCC filed its initial order adopting Staffs proposed 44.14% equity figure, KIC filed a timely petition for reconsideration. In this petition, KIC argued the KCC should adjust the equity component from the 44.14% to a level of no more than 35%, the actual equity component reflected in WRI’s filings with the Securities and Exchange Commission (SEC). KIC argued that Staffs recommendation, as adopted by the KCC, was conditioned on an interest synchronization adjustment; it also argued the figure unfairly penalized ratepayers and favored shareholders. Finally, KIC argued that if the KCC was going to withhold ruling on the interest synchronization adjustment, it should adopt CURB’S equity figure of 39.16%. At no point in this petition did KIC assert the use of the hypothetical rate structure was per se illegal.
In its order on reconsideration, the KCC summarily rejected KIC’s arguments regarding the equity component. Instead, the KCC concluded Staff s proposal was reasonable and supported by the record. KIC filed a timely petition for reconsideration from this order as well. KIC adopted the same arguments regarding the equity component made in its initial petition for reconsideration. Again, there was no challenge to the use of a hypothetical capital structure, only the choice of the figures adopted by the KCC. These arguments were again summarily rejected in the KCC’s final order.
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.” See 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, rev’d in part 264 Kan. 363, 956 P.2d 685 (1998).
“Any ground not set forth in the application for rehearing cannot be relied upon in judicial review proceedings.” Peoples Natural Gas v. Kansas Corporation Commission, 7 Kan. App. 2d 519, 526, 644 P.2d 999, rev. denied 231 Kan. 801 (1982). The purpose of requiring that all issues be included in the petition for reconsideration is to inform the KCC and other parties where mistakes of law and fact were made in the order. Citizens’ Utility Ratepayer Bd., 24 Kan. App. 2d at 228; see Southwestern Bell Tel. Co. v. Kansas Corporation Comm’n, 29 Kan. App. 2d 414, 29 P.3d 424 (2001). Requiring a petition for reconsideration permits the KCC to correct errors which are called to its attention and thereby perhaps avoid judicial review. Williams Natural Gas, 22 Kan. App. 2d at 332.
In attacking the KCC’s order on appeal, KIC first contends Kansas law prohibits any use of a “hypothetical” capital structure because it is not based on actual costs of the utilities. KIC is arguing, for the first time on appeal, that the KCC was barred from considering any equity figure not based on actual costs.
We note KIC’s arguments were not ráised in either its trial brief or in any of its petitions for reconsideration. Accordingly, this issue is not properly before the court.
As noted by WRI and KGE, the courts of Kansas have recognized the KCC’s power to use a hypothetical equity ratio for rate of return purposes. See Sekan Electric Coop. Ass’n v. Kansas Corporation Commission, 4 Kan. App. 2d 477, 480, 609 P.2d 188 (1980) (quoting E. Nichols and F. Welsh, Ruling Principles of Utility Regulation, Rate of Return Supplement A, 157 [1964]) (“ ‘[T]he owners and managment of a utility have the right to determine what the debt-equity ratio should be, but they may not always make the ratepayers foot the bill resulting from the choice.’ ”).
Is the Equity Component Adopted Supported by the Record?
KIC also argues the 44.1423% equity component adopted by the KCC is not supported by substantial competent evidence. KIC argues that Staff s equity calculations were based on the assumption that an interest synchronization would accompany the equity component. KIC argues the Staff s proposal was interlinked and that the interest synchronization was necessary to avoid a windfall if the hypothetical capital structure was used. KIC also notes the KCC recognized in its initial order that the equity figure would result in excess earnings by WRI and KGE. KIC raised similar arguments in its petitions for reconsideration.
In its initial order adopting Staffs proposed capital structure, the KCC stated that treating some ofWRI’s debt as if it were equity would gave WRI the benefit of greater return on equity and tax benefits arising from a reduced interest deduction. The KCC also noted the interest synchronization might be needed to prevent WRI from collecting through rates income tax expense it would not actually pay. If applied, this adjustment would decrease KGE’s revenue requirement by just over $26,000,000 and decrease WRI’s revenue requirement by just over $23,000,000. The KCC, however, determined that if the stand-alone utility of this nature did not materialize or materialized for only an insignificant amount of time, the adjustment would not be applied and the interim rates, upon motion, could be made permanent.
Staff s witness, James Proctor, testified that a hypothetical capital structure is used in rate making to estimate the capital structure of a regulated utility when the utility is part of a diversified corporation and it is hard to identify what debt and equity is associated with the utility or when excessive equity is shifted within the diversified corporation to the utility. In this case, Staff s hypothetical capital structure was based on the electric utility’s structure prior to recent steps taken by WRI to restructure the corporation for a spin-off and sale of its utility operations. In essence, Staff s figures reversed WRI’s actions assigning unsecured senior notes from unregulated segments of WRI to the utility operations and which used the utility’s assets to secure a $600 million loan.
To come up with Staff s proposed capital structure, Proctor reviewed the cash-flow of the utility operations to determine long-term debt attributable to the utility rather than the unregulated operations. After determining the appropriate amount of long-term debt directly related to the utility, he determined the common equity component by equating it to the amount of long-term debt not related to the utility’s operations. One of the options recommended by Proctor was for the KCC to set rates for WRI’s electric business based upon Staff s proposed capital structure and to advise the company a post-merger rate case would be conducted to investigate the reasonableness of the utility’s rates at that time.
Goodyear argues Sekan does not permit a hypothetical capital structure that increases the cost of capital. This argument fails for two reasons. First, this was not raised by any of the parties while before the KCC. Second, Staff s capital structure was based on a cash flow analysis that attempted to ascertain the debt and equity associated with the utility rather than WRI as a whole. Thus, it would seem this proposal was a clear attempt to estimate the actual debt-equity balance of the utility and was designed to ignore WRI’s creative corporate restructuring allocations. The capital structure was set up to ensure that the debt-equity balance most closely resembled that directly associated solely with the electric business. Consequently, the cost of capital calculated does not increase the burden on ratepayers beyond the costs reasonably attributable to the regulated utility.
In his testimony, Proctor also discussed interest synchronization. He defined the term as a rate making approach used to determine the interest expense deduction for calculating current state and federal income taxes and to determine the level of interest expense incurred for long-term debt. Staff and Proctor proposed using the utility’s actual weighted-average cost of long-term debt rather than WRI’s hypothetical weighted-average cost of long-term debt for determining interest expense.
The interest synchronization issue related to WRI’s proposed use of a weighted-average cost of long-term debt that included debt not directly associated with its utility operations. If rates were established based on cost of long-term debt in this fashion, according to Proctor, “[the utility operations’] cost of service after separation from Westar will allow for recovery of current state and federal income tax expense which is not incurred”; interest synchronization would be needed to prevent this type of windfall. (Emphasis added.) In his live testimony, Proctor again emphasized the company would receive a windfall without the interest synchronization; the concern with the interest on debt, however, would not arise in the absence of WRI’s restructuring plans.
Based upon Proctor’s testimony, therefore, it appears both the hypothetical capital structure and interest synchronization were related to WRI’s restructuring and efforts to sell the utility operations to the Public Service of New Mexico (PSNM). The hypothetical capital structure was needed because the restructuring shifted WRI’s long-term debt, even for unregulated operations, to the electric utility; in developing its capital structure, Staff attempted to undo, on paper, the restructuring effort and limit the long-term debt component to debt actually associated with the utility operations. Staff s witness testified interest synchronization was needed if, in fact, the utility operations became a stand-alone utility and was merged into PSNM. While both issues are related to the restructuring and proposed merger, the record supports the KCC’s determination the capital structure adopted did not require interest synchronization unless the utility operations became a standalone entity in this present form. This is implicitly supported by the fact that Staff, in its petition for reconsideration of the initial order, did not challenge the KCC’s use of its equity figures without the interest synchronization.
We conclude tire KCC’s order adopting the 44.14% common equity component is supported by substantial competent evidence and its order indicating interest synchronization would occur if a stand-alone utility with a skewed debt-equity ratio materialized for a significant amount of time also is supported by the evidence. While other experts proposed other hypothetical structures, it is for the KCC rather than this court to determine what weight evidence should be given. See Mobil Exploration & Producing U.S. Inc. v. Kansas Corporation Comm’n, 258 Kan. 796, 815, 908 P.2d 1276 (1995).
Revenue and Exclusion of Fuel Costs
KIC also challenges the KCC’s treatment of savings and revenues associated with the State Line Electric Generation Plant and the Gordon Evans facilities. The State Line facility, owned by another WRI wholly owned subsidiary, Westar Generating, Inc., began commercial operations in June 2001, approximately 9 months after the end of the test year. The KCC included the fixed costs associated with the plant into WRI’s rate base.
KIC argues the State Line Plant is more efficient and will reduce WRI’s and KGE’s fuel costs because of this efficiency. KIC argues the KCC erred in not recognizing these fuel cost savings and, consequently, the order permits the utilities to recover for fuel costs not actually incurred. KIC also argues the additional generation capacity created by WRI’s new generation facilities would lead to a growth in retail sales. Both issues were raised in KIC’s petitions for reconsideration before the KCC.
The KCC permitted costs associated with WRI’s investment in the Gordon Evans and State Line plants even though the Gordon Evans unit and the State Line plant did not go into commercial service until 9 months after the end of the test year. The KCC also recognized that adjustments should be made to rates for any additional off-system sales, additional customers, and fuel savings associated with the new generation capacity; however, the KCC held the adjustments were appropriate only if they could be reasonably quantified. While the KCC approved an adjustment for additional off-system wholesale sales, it concluded any adjustments for additional customers and fuel saving were not sufficiently known and measurable. In its order on reconsideration, the KCC simply restated its prior conclusion that “these are not sufficiently known and measurable.”
This issue involves inclusion of costs, revenues, and savings attributable to events occurring outside the test year (ending September 30, 2000). In discussing the process of adjusting expenses outside the test year, this court has previously stated:
“ ‘Ratemaking, by its very nature, is prospective and in order to neutralize the negative effects of speculation and guesswork about future economic conditions, it is accepted practice to base future rates upon known past and present conditions through the use of data gathered during a specified test period. [Citation omitted.] This process of prognostication creates a conflict between the need to lend some finality to ratemaldng by utilizing a well-defined, finite test period and the need to base calculations upon the latest available relevant data which often pertains to time periods other than the test period. [Citation omitted.] A satisfactory resolution of this conflict is that when known and measurable post-test-year changes affect with certainty the test-year data, the commission may, within, its sound discretion, give effect to those changes. [Citation omitted.]’ ” Gas Service Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 623, 635-36, 609 P.2d 1157, rev. denied 228 Kan. 806 (1980) (quoting Narragansett Elec. Co. v. Harsch, 117 R.I. 395, 416, 368 A.2d 1194 [1977]).
Here, the KCC found the fuel cost savings adjustment and the additional customer adjustment supported by KIC were not known and measurable. The KCC argues its determination constitutes a negative finding which cannot be disturbed on appeal absent an arbitrary disregard of undisputed evidence. Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, 52, 941 P.2d 390, rev. denied 262 Kan. 961 (1997). KIC argues the KCC arbitrarily disregarded and rejected the undisputed evidence.
KIC argues the KCC ignored evidence of fuel cost savings from its witness, James Dittmer. Dittmer testified the more efficient State Line would reduce KPL’s fuel costs by over $8 million and KGE’s costs by approximately $2.6 million. To calculate the projected fuel cost savings, Dittmer calculated the maximum monthly output of the State Line facility at 95% capacity (140,000 megawatt hours) and assumed this output would displace energy generated from higher cost units based on actual generation during the test year. Dittmer then multiplied the number of megawatt hours he assumed would be generated by the State Line facility by the fuel expense of the higher cost units being displaced. He also calculated the State Line megawatt hours times the annual heat rate of the plant times the projected monthly gas price to determine the fuel costs for the State Line plant. Dittmer concluded the resulting difference represents the total fuel cost savings for WRI. Dittmer assumed, because of lack of data, that 80% of the fuel savings would be attributed to WRI and 20% to KGE and then allocated the savings between wholesale and retail operations based on factors used by the companies to allocate its fuel costs. Dittmer testified his calculations were reasonable and conservative.
Dittmer also testified he annualized revenue WRI and KGE should expect from anticipated customer growth as a result of WRI’s and KGE’s increased capacity. Dittmer took the average monthly growth in sales from WRI’s and KGE’s test year and multiplied it by the additional 10 months between the end of the test year and July 2001 to determine additional revenues; he also estimated the fuel and purchased power costs that would be incurred to facilitate these increased customers.
In prefiled rebuttal testimony, James Martin of WRI challenged Dittmer’s opinions. Martin indicated Dittmer’s fuel savings adjustment was only a “best guess” and did not show known or measurable savings. Martin also challenged the uncertainty of the time frame Dittmer used (midyear 2001) in his projections. Another WRI witness testified that if the KCC stepped outside the test year for fuel cost savings, it would also have to consider increased fuel and purchased power costs due to load growth, increases in the price of coal, and normalizing the utilities’ exceptional unit availability performance during the test year. At least one witness testified fuel costs would be affected by factors such as load levels, forced outage rates, and fuel prices.
In rate proceedings, the KCC has discretion to weigh the evidence presented and to accept or reject testimony. In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d 525, 538, 685 P.2d 304, rev. denied 236 Kan. 875 (1984). When the KCC is presented with conflicting evidence, this court cannot substitute its judgment in weighing and crediting the evidence. 9 Kan. App. 2d at 539. However, the KCC may not arbitrarily disregard or reject evidence. Gas Serv. Co. v. Kansas Corporation Comm’n, 6 Kan. App. 2d 592, 597, 631 P.2d 263, rev. denied 230 Kan. 817 (1981).
There is no dispute that fuel savings could be achieved from the operation of the State Line facility if it was used to displace a unit with a higher heat rate. In their cross-examination of Dittmer at the heaiing, none of the parties asked questions about his fuel savings or customer growth calculations. In their intervenors’ brief, WRI and KGE also relied on a portion of the record citing the affidavit of Shane Mathis to assert that the fuel cost savings, if any, would be offset because the KCC imputed revenue to them for off-systems sales of the excess capacity from the State Line facility. However, Mathis’ affidavit was presented after the hearings in WRI and KGE’s post-hearing trial brief; the KCC declined to permit WRI and KGE to reopen the record to submit evidence they could have included in their rebuttal evidence prior to the hearings. Therefore, this information is not properly before the court.
Before the KCC, the challenges to Dittmer’s calculations were generic and limited. Moreover, the KCC failed to explain why it was rejecting this evidence. Still, Dittmer’s calculations were based to some extent on projections and assumptions. Because ratemaking, especially out-of-test-year determinations, are within the discretion of the KCC, it is difficult to conclude the KCC arbitrarily ignored this evidence.
An appellate court cannot nullify the Commission’s disbelief of evidence nor can it determine the persuasiveness of evidence which the Commission may have believed. Cf. NEA-Topeka, Inc. v. U.S.D. No. 501, 225 Kan. 445, 456, 592 P.2d 93 (1979). Negative findings will seldom be set aside if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may. be disregarded for any reason. Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 779, 955 P.2d 1315 (1997).
Moreover, in Gas Service Co. v. KCC, this court recognized that even if an out-of-year adjustment is known and measurable, it is still somewhat conjectural. This court upheld the KCC’s refusal to include an out-of-year adjustment, even though the evidence was uncontroverted as to the program involved and the expense related to it. 4 Kan. App. 2d at 636. In this case, the revenue requirements determined by the KCC were done on an interim basis and subject to refund “until it is determined what will occur with the electric utility and the [KCC] is assured that there will not be an electric utility in financial distress.” Because the rates in this case remain interim, future KCC review appears likely. Waiting to see whether, in reality, various changes in operations arise to justify adjustments for fuel cost savings and additional retail customer base does not constitute an abuse of discretion.
Intervenors’ Briefs
The briefs filed by the intervenors generally support the arguments and issues raised by KIC. However, in CURB’S brief, it challenges the interest rate on a $600 million loan incurred by the WRI’s unregulated businesses. CURB contends the interest rate on this loan was improperly included in the embedded cost of debt of WRI and KGE. Likewise, Goodyear and U.S.D. 259 contend the KCC’s order is unlawful because it fails to make findings to support its rejection of interest synchronization as required by K.S.A. 77-621(c)(5).
The record reflects that neither CURB nor U.S.D. 259 filed petitions for reconsideration from any of the KCC’s orders. Goodyear did not file a petition for reconsideration from the initial order, but it did file one following the KCC’s order on reconsideration simply incorporating by reference KIC’s petition for reconsideration. Neither CURB, Goodyear, nor U.S.D. 259 filed a petition for judicial review.
Failure to exhaust administrative remedies generally is a bar to judicial review of agency action. Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 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. The doctrine of exhaustion of administrative remedies is designed to promote proper relationships between the courts and administrative agencies. The doctrine’s foundation is based on a sound consideration of comity and convenience and recognizes the separation of powers doctrine. 268 Kan. at 86.
Here, these intervenors did not exhaust any administrative remedies on the various additional issues they seek to argue. The intervenors will not be permitted to circumvent the exhaustion requirement by attempting to raise issues different from those raised by the party which did exhaust its administrative remedies.
For these reasons, we reject these additional issues not raised or preserved by KIC.
Conclusion
For all of the foregoing reasons, we conclude KIC is not entitled to relief from the decision of the KCC. The KCC did not err in its adoption of a hypothetical capital structure and its disposition of issues pertaining to revenue requirements were based upon substantial competent evidence.
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Wahl, J.:
Appellant Arnold E. Jones appeals the trial court’s extension and revocation of his probation. He had entered a plea of guilty to one count of possession of cocaine in violation of K.S.A. 1998 Supp. 65-4160(a). A chronology of the dates pertinent to this case is helpful:
December 1, 1998: Jones was sentenced to the presumptive sentence of 24 months’ probation under the supervision of community corrections, with an underlying prison term of 11 months.
May 25, 2000: K.S.A. 2000 Supp. 21-4611 took effect.
June 27, 2000: The State filed an application for revocation of Jones’ probation.
July 7, 2000: The district judge notified the parties it would hold a hearing on August 4, 2000, to determine whether Jones’ probation should be extended because Jones failed his drug tests, failed to maintain employment, and failed to complete necessaiy counseling.
August 4, 2000: Jones appeared and asked for a continuance of the hearings to extend his probation and to revoke his probation until September 1, 2000. The court continued the hearings until September 1, 2000.
September 1, 2000: Jones failed to appear because he was incarcerated in the McPherson County Jail on new charges. Jones’ counsel appeared and agreed to an extension of Jones’ probation. The court extended Jones’ probation to December 1, 2000, the term imposed at his original sentencing, “for the reasons set forth in the motion for extension of probation.” The hearing on the revocation of Jones’ probation was set for October 2, 2000.
October 2, 2000: Jones appeared and requested a continuance of the hearing until December 1, 2000, which the court granted.
October 27, 2000: The State filed a second application for revocation of probation for Jones again testing positive for cocaine, and a bench warrant was issued.
December 1,2000: The district court revoked Jones’ probation and ordered him to serve the prison portion of his sentence.
December 4, 2000: Jones filed his notice of appeal.
Jones argued the district court did not have jurisdiction to revoke his probation because the application for revocation was not filed until after K.S.A. 2000 Supp. 21-4611 took effect on May 25, 2000. Whether the district court has jurisdiction to revoke probation is a question of law over which this court’s review is unlimited. State v. Williams, 20 Kan. App. 2d 142, 145, 884 P.2d 743 (1994).
The newly amended K.S.A. 21-4611 sets the nonprison sanction for a severity level 4 drug crime at a maximum of 12 months. K.S.A. 2000 Supp. 21-4611(c)(3). The statute also addresses the effect these provisions have on probationary periods already in existence:
“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 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. 2000 Supp. 21-4611(d).
Jones argued that with the statute’s enactment effective May 25, 2000, his probation ended on December 1, 1999, 12 months after his sentence was originally imposed, and the district court did not have jurisdiction to extend or revoke his probation at any later time.
The Kansas Supreme Court rejected this argument in State v. Ferguson, 271 Kan. 613, 23 P.3d 891 (2001), based on the statute’s plain language. Because subsection (d) gives the district court until September 1, 2000, to review and modify the existing sentence, the district court retained jurisdiction until that date. “[N]othing in the amendment requires that prior nonprison sentences made in excess of the new requirements be immediately revoked and altered.” 271 Kan. at 617. Therefore, the district court properly retained jurisdiction over Ferguson for the purpose of revoking her probation on May 26, 2000. 271 Kan. at 617.
In this case, the district court likewise retained jurisdiction to modify Jones’ probation until September 1, 2000. Although the district court did not revoke Jones’ probation until December 1, 2000, 3 months after the statutory period for review had expired, it continued to retain jurisdiction to order the revocation of Jones’ probation. A district court has jurisdiction to revoke probation as long as proceedings are commenced before the expiration of the probation term. Williams, 20 Kan. App. 2d 142, Syl. ¶ 1. The State filed its first motion for revocation on June 27, 2000, while Jones’ probation was still in effect.
Jones asserts the district court’s extension of his probation did not meet the requirements of K.S.A. 2000 Supp. 21-4611(c)(5) because the order did not set forth with particularity the reasons for extending his probation on September 1, 2000. He argues the extension was invalid and, hence, the probationary period was not enlarged and so the revocation of his probation must be reversed.
The district court had jurisdiction to modify Jones’ probation on September 1, 2000. The order extending probation simply states: “[Ajfter having considered the evidence, and as authorized by K.S.A. 21-4611, . . . defendant’s probation is extended from December 1, 1999, to December 1, 2000, for the reasons set forth in the motion for extension of probation.” The court was apparently referring to its notice of hearing on motion for extension of probation where it stated the probation should be extended for “failing drug testing, failing to maintain employment, and failing to complete counseling.”
Two subsections of K.S.A. 2000 Supp. 21-4611 may set the standard for the extension of probation — subsections (c)(5) and (c)(8). The interpretation of a statute is a question of law over which this court has unlimited review. State v. Engles, 270 Kan. 530, 532, 17 P.3d 355 (2001). The State does not argue with Jones’ assertion that the outcome of this issue depends on the interpretation of K.S.A. 2000 Supp. 21-4611(c)(5), which states:
“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.”
It appears from the record that the district court was proceeding under this section of the statute.
The district court’s brief statement falls short of the statute’s requirement of setting forth with particularity the reasons for finding the safety of the public will be jeopardized or the welfare of the inmate will not be served by the shorter period of probation. See State v. Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992) (“When something is to be set forth with particularity, it must be distinct rather than general, with exactitude of detail, especially in description or stated with attention to or concern with details.”). Simply stating the reasons for revoking Jones’ probation does not explain how the public safety will be jeopardized or how Jones’ welfare will not be served by the shorter period of probation.
Without this preliminary finding, the district court’s extension of probation was an abuse of discretion which resulted in an illegal sentence. See State v. Childers, 16 Kan. App. 2d 605, 618, 830 P.2d 50 (1991), rev. denied 250 Kan. 806 (1992). See Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 (1994), which defines an illegal sentence as a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized. An illegal sentence may be corrected at any time. K.S.A. 22-3504; State v. Palmer, 262 Kan. 745, 752, 942 P.2d 19 (1997).
While we have found no cases construing K.S.A. 2000 Supp. 21-4611, we find the issue before us to be somewhat analogous to the situation when a district court fails to consider placement of a defendant at the Labette Correctional Conservation Camp and the case must be remanded to the district court for resentencing. State v. Schick, 25 Kan. App. 2d 702, 703, 971 P.2d 346 (1998), rev. denied 266 Kan. 1114 (1999).
This matter must be reversed and remanded for the district court to make the findings required by K.S.A. 2000 Supp. 21-4611(c)(5).
Reversed and remanded. | [
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Knudson, J.;
Julie Doss appeals the district court’s grant of summary judgment in favor of Dr. Ronald Manfredi, a chiropractor. The issue on appeal is whether Manfredi owed a legal duty to Doss.
The controlling facts are not in dispute. Doss’ personal injuxy protection (PIP) carrier, Traders Insurance Company (Traders), hired a claims company, which in turn hired Manfredi to review Doss’ chiropractic treatment records and advise whether the chiropractic treatments were related to injuries Doss received in an automobile accident. Manfredi reviewed the records and concluded a portion of the chiropractic charges were not adequately documented as related to the accident. After Traders refused to pay some of the chiropractic bills, Doss filed suit against Manfredi, alleging a negligent evaluation. The district court, in granting summaiy judgment to Manfredi, found he owed no legal duty that would support the negligence claim.
On appeal, Doss argues her negligence claim is supported under a theory of negligent misrepresentation or, alternatively, under a theoiy of a duty owed to a third party by a tortfeasor. We conclude neither theory has legal merit under the uncontroverted facts and affirm the district court’s grant of summary judgment.
In Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 604-05, 876 P.2d 609 (1994), the Kansas Supreme Court adopted the tort of negligent misrepresentation, as defined in the Restatement (Second) of Torts § 552 (1976). Section 552 was quoted in Mahler as follows:
“ ‘(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
" ‘(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
" ‘(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.’ ” (Emphasis added.) 255 Kan. at 604.
See Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 218, 4 P.3d 1149 (2000).
Based upon the uncontroverted facts, Doss’ reliance on the Restatement (Second) of Torts § 552 is without legal merit. Manfredi, in his professional evaluation, provided information for the benefit of Traders, not Doss, and is subject to liability only to Traders if he failed to exercise reasonable care or competence in obtaining or communicating the information.
Doss also argues the negligence claim against Manfredi is supported under the Restatement (Second) of Torts § 324A (1964), adopted by the Kansas Supreme Court in Schmeck v. City of Shawnee, 232 Kan. 11, Syl. ¶ 4, 651 P.2d 585 (1982).
Before liability may be imposed under § 324A, there must be a showing that a defendant undertook, gratuitously or for consideration, to render services to another. See Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 669, 792 P.2d 993 (1990). In order to meet this requirement, the evidence must show the defendant, through affirmative action, assumed an obligation or intended to render services for the benefit of another. 246 Kan. at 674-75. “Without an affirmative act or an agreement, there is no duty owed under § 324A.” P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 834, 877 P.2d 430 (1994). The extent of the undertaking defines the scope of the duty. McGee v. Chalfant, 248 Kan. 434, 442, 806 P.2d 980 (1991).
We find instructive Smith v. Welch, 265 Kan. 868, 967 P.2d 727 (1998). In Smith, the Supreme Court discussed whether and under what circumstances a physician may incur liability in performing an independent medical examination (IME). Smith was injured in an automobile accident and filed suit against another driver. She agreed to an IME by defendant’s medical expert. During the examination, she was asked personal and inappropriate questions and was sexually battered by the examining doctor. Smith settled her claim for personal injuries from the automobile accident, but then filed an action against the physician for assault, battery, invasion of privacy, and related torts. The district court granted summaiy judgment in favor of the physician. On appeal, the Supreme Court noted that there was no physician-patient relationship when a physician performs an IME, and, therefore, the physician had no duty to treat the person he examined for illnesses or to diagnose illnesses other than to “ ‘conduct the examination in a manner not to cause harm to the person being examined.’ ” 265 Kan. at 881.
Here, Manfredi only reviewed the chiropractic records relating to the treatment of Doss without any IME. Under the reasoning expressed in Smith, we do not believe such a tenuous nexus between Doss and Manfredi is sufficient to establish a legal duty.
In Ervin v. American Guardian Life Assur., 376 Pa. Super. 132, 545 A.2d 354 (1988), plaintiff applied for life insurance and took an EKG at the request of the insurance carrier. The carrier’s physician examined the EKG, which disclosed cardiac abnormalities that the physician failed to discover or, in the alternative, to disclose to the plaintiff. Less than a month after the EKG, plaintiff suffered a heart attack and died. The Ervin court stated:
“[T]he defendant physician in the instant case owed no duty to the plaintiffs decedent either to discover his heart problem or, having discovered it, to inform the decedent thereof. The defendant had been employed by American to advise the company whether the applicant was an insurable risk. He was not employed to make a diagnosis for the applicant or to treat the applicant for any condition which was discovered. Neither was there any evidence that the defendant, by giving the applicant advice or otherwise, had assumed a physician-patient relationship. In the absence of a physician-patient relationship between defendant and the applicant, the defendant physician did not owe a duty to the applicant to discover and disclose that the applicant was suffering from heart abnormalities.” 376 Pa. Super, at 139.
The appellant in Ervin attempted to rely upon § 324A of the Restatement (Second) of Torts to create a duty on the part of the insurance carrier’s physician where none existed under traditional medical malpractice cases. The Ervin court found § 324A inapplicable because the physician had not read the EKG to benefit or to treat anyone but merely to advise the insurance company whether it was being asked to insure someone who was a poor risk. 376 Pa. Super, at 140.
Based upon the above decisions and the uncontroverted facts of this case, we hold Manfredi had no duty to Doss under § 324A of the Restatement (Second) of Torts.
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Green, J.:
Gregory Lundquist appeals his convictions by a juiy of possession of marijuana, possession of drug paraphernalia, and felony obstruction of official duty. On appeal, Lundquist contends that the trial court improperly instructed the jury on the elements of possession of marijuana. We disagree and affirm. In addition, Lundquist maintains that his convictions for possession of marijuana and possession of drug paraphernalia were multiplicitous. We disagree and affirm. Finally, Lundquist contends that the evidence was insufficient to support his conviction of felony obstruction of official duty. We agree and reverse.
Officers Sean Wallace and Brian Hedgecock were parked in their car on C Street in Arkansas City waiting to arrest a resident for outstanding warrants. The officers observed Lundquist enter the residence with a package under his arm. A few minutes later, he left without the package and drove away in a Ford Escort.
This aroused the officers’ suspicions because Hedgecock had purchased cocaine at that residence as part of a drug task force investigation. The officers abandoned their stakeout of the residence to question Lundquist about an expired tag and a broken taillight on his car.
When Wallace pulled up behind Lundquist’s car, Lundquist left his car and started walking towards a body shop. Wallace ordered Lundquist to stop. Lundquist ignored the order and kept walking towards the shop. Inside the shop’s garage, Wallace again identified himself as a police officer and ordered Lundquist to stop. Lundquist ran away. The officers pursued Lundquist. At some point, Lundquist reached inside his pants pocket. Fearing Lundquist might have a weapon, Wallace drew his gun, yelling, “Hey, you. Do you want to get shot?” Lundquist dropped a cellophane wrapper on the ground.
Hedgecock handcuffed Lundquist, and Wallace retrieved the wrapper. Wallace saw that the wrapper contained residue similar to marijuana. Testing later confirmed the residue in the cellophane wrapper was marijuana.
Lundquist first argues that the trial court erred in the jury instruction on the elements of possession of marijuana. At trial, Lundquist failed to object to the instruction.
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly die matter to which he or she objects and the grounds of his or her objection, unless the instruction or die failure to give the instruction is clearly erroneous. K.S.A. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility die jury would have rendered a different verdict if die trial error had not occurred. [Citation omitted.]” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Jury Instruction No. 2 stated:
“The defendant is charged in Count I with the crime of unlawfully possessing marijuana. The defendant pleads not guilty. To establish tiiis charge each of die following claims must be proved: (1) that the defendant possessed marijuana, (2) that the defendant did so intentionally, (3) that diis act occurred on or about June 22, 2000, in Cowley County, Kansas.
“As used in these instructions, the proof of the possession of any amount of marijuana is sufficient even diough such amount may not be measurable or usable.
“Possession means having control over the tiling with the knowledge of and the intent to have such control.”
Lundquist concedes that the trial court correctly instructed the jury on the elements of possession of marijuana, PIK Crim. 3d 67.16 (2001 Supp.), but argues that the addition of the words “proof of the possession of any amount of marijuana is sufficient even though such amount may not be measurable or useable” was unnecessary or superfluous.
“The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, die trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.’ ” [Citations omitted.]” Hibbert v. Ransdell, 29 Kan. App. 2d 328, 331-32, 26 P.3d 721 (2001).
Lundquist correctly notes in his brief that the instruction is still a correct statement of the law despite the addition of the extra language.
K.S.A. 2001 Supp. 65-4162(a)(3) states that
“[e]xcept as authorized by the uniform controlled substances act, it shall be unlawful for any person to possess or have under such person’s control: ... (3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105 and amendments thereto or designated in subsection (g) of K.S.A. 65-4107 and amendments thereto or designated in subsection (g) of K.S.A. 65-4109 and amendments thereto.”
The statute prohibiting the possession of marijuana does not have any requirement that a particular amount of drugs be found. In fact, our Supreme Court has stated: “ ‘[T]he proof of the possession of any amount of a controlled substance is sufficient to sustain a conviction even though such amount may not be measurable or useable.’ (Emphasis added.)” State v. Brown, 245 Kan. 604, 613-14, 783 P.2d 1278 (1989). As a result, we determine that the trial court correctly instructed the jury.
Lundquist next argues that his convictions for possession of marijuana and possession of drug paraphernalia are multiplicitous because the cellophane wrapper which contained the marijuana residue and was the basis for the drug paraphernalia charge was an inherent part of possession of marijuana.
“Whether convictions are multiplicitous is a question of law subject to unlimited review.” State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171, 182 (2001).
“Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998). Such multiple punishments are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977); State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1991). . . .
“The concept of multiplicity in Kansas comes from two sources. The first is the traditional ‘common-law’ multiplicity concept. This exists where the State attempts to use a single wrongful act as the basis for multiple charges and is based on the merger of the charges. State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). This concept has been a part of Kansas law since at least our decision in State v. Colgate, 31 Kan. 511, 515, 3 Pac. 346 (1884), wherein we stated: ‘[U]pon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense.’ The test for whether the offenses merge and are, therefore, multiplicitous is whether each offense charged requires proof of a fact not required in proving the other; if so, then the offenses do not merge and are not multiplicitous. Garnes, 229 Kan. at 373. Offenses also do not merge if they are committed separately and severally at different times and at different places. 229 Kan. at 373.” State v. Garcia, 272 Kan. 140, 143-44, 32 P.3d 188, 190-91 (2001).
The second source of multiplicity is statutory. K.S.A. 21-3107(2)(d) defined an included offense as “a crime necessarily proved if the crime charged were proved” and stated that a defendant could not be convicted of both the crime charged and the included offense. This statute was amended in 1998, and subsection (2)(d) was eliminated. L. 1998, ch. 185, sec. 1. It was replaced with language which defined an included crime as “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” See K.S.A. 2001 Supp. 21-3107(2)(b). The present statutory language in essence mirrors the common-law elements test, thereby leaving it as the only remaining test for multiplicity. See also State v. Saiz, 269 Kan. 657, 662-63, 7 P.3d 1214 (2000) (for crimes committed after effective date of 1998 amendment of K.S.A. 21-3107, second prong of State v. Fike, 243 Kan. 365, 757 P.2d 724 [1988] disregarded).
The statute under which defendant was charged with possession of marijuana, K.S.A. 2001 Supp. 65-4162(a)(3), states that
“[e]xcept as authorized by the uniform controlled substances act, it shall be unlawful for any person to possess or have under such person’s control: ... (3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105 and amendments thereto or designated in subsection (g) of K.S.A. 65-4107 and amendments thereto or designated in subsection (g) of K.S.A. 65-4109 and amendments thereto.”
K.S.A. 2001 Supp. 65-4105(d)(24) defines tetrahydrocannabinol as an active ingredient found in marijuana.
K.S.A. 2001 Supp. 65-4152 states in relevant part:
“(a) No person shall use or possess with intent to use:
(3) any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.”
K.S.A. 65-4150 defines drug paraphernalia:
“(c) ‘Drug paraphernalia’ means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the [16 Kan. App. 2d 283] uniform controlled substances act. ‘Drug paraphernalia’ shall include, but is not limited to:
(9) Capsules, balloons, envelopes and other containers used or intended for use in packaging small quantities of controlled substances.”
“The test for whether the offenses merge and are, therefore, multiphcitous is whether each offense charged requires proof of a fact not required in proving the other; if so, then the offenses do not merge and are not multiphcitous.” Garcia, 272 Kan. at 143-44.
Under the above test, the charges are not multiphcitous. K.S.A. 65-4151 lists 14 factors to consider in determining whether an object is drug paraphernalia. Subsection (e) states that the court is to consider the “existence of any residue of controlled substances on the object” in making its determination, but the statute does not specifically state there must be drug residue on an object for that object to be considered drug paraphernalia. The State was not required to show that the paraphernalia contained marijuana residue in order to prove Lundquist guilty of possession of drug paraphernalia under K.S.A. 2001 Supp. 65-4152(a)(3). The presence of marijuana on the cellophane wrapper was merely another factor for the court to consider. See State v. Hill, 16 Kan. App. 2d 280, 284, 823 P.2d 201 (1991), rev. denied 250 Kan. 806 (1992).
K.S.A. 2001 Supp. 65-4162(a)(3) and K.S.A. 2001 Supp. 65-4152(a)(2) have at least one different element, and the two statutes are arguably aimed at two different substantive purposes. K.S.A. 2001 Supp. 65-4162(a)(3) proscribes contraband drugs while 65-4152 proscribes paraphernalia employed in using contraband drugs. Because marijuana can be possessed in a variety of different ways, the legislature clearly intended to punish a person for unlawful possession of paraphernalia separately from the offense of possession of marijuana. See Hill, 16 Kan. App. 2d at 284-85.
Next, Lundquist argues that there was insufficient evidence to convict him of felony obstruction of official duty.
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, this court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
K.S.A. 21-3808 provides:
“(a) Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.
“(b)(1) Obstructing legal process or official duty in the case of a felony, or resulting from parole or any authorized disposition for a felony, is a severity level 9, nonperson felony.
“(2) Obstructing legal process or official duty in a case of misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case is a class A nonperson misdemeanor.”
In State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), the defendant fled when a police officer attempted to pull him over for disregarding a stop sign; he was eventually taken into custody. When police learned he had outstanding felony warrants, they charged him with felony obstruction for fleeing from the police. The court held a misdemeanor or felony charge for obstruction of official duty under K.S.A. 21-3808 depends upon the officer’s belief when he or she is carrying out an official duty. In other words, what the officer believes at the time of pursuing a suspect determines if obstruction of official duty will be charged as a misdemeanor or felony. The charge was reduced to a misdemeanor count of obstruction because the officer’s knowledge and intent at the time he approached the defendant dictated the severity of the crime. 261 Kan. at 538-39.
Lundquist correctly relies on the holding in Hudson to support his argument that the evidence was insufficient to support his conviction of felony obstruction of official duty because the officers approached him for expired tags and a broken tailight, both of which are misdemeanor offenses. As in Hudson, the only offenses committed in the arresting officers’ presence were the misdemeanor violations. The State concedes the charge should have been misdemeanor obstruction of official duty.
Nevertheless, the State misplaces its reliance on State v. Sullivan, 17 Kan. App. 2d 771, 773-74, 844 P.2d 741 (1993), requesting that this court remand the case for resentencing as a misdemeanor while ignoring Lundquist’s challenge to the sufficiency of the evidence.
In Sullivan, this court stated:
“The distinction in classifying the offense [as a felony or misdemeanor] only affects sentencing. The elements required to prove either a felony or a misdemeanor violation of obstructing official duty are the same. Therefore, since sufficiency of the evidence was not raised, the case is remanded for resentencing as a misdemeanor.” (Emphasis added.) 17 Kan. App. 2d at 773-74.
In the present case, Lundquist does challenge the sufficiency of the evidence concerning his conviction for obstruction of official duty. Therefore, Sullivan is inapplicable to the facts of this case. Because the evidence was insufficient to support Lundquist’s conviction of felony obstruction of official duty, we reverse his conviction for this crime.
Convictions affirmed for possession of marijuana and possession of drug paraphernalia, and conviction reversed for felony obstruction of official duty. | [
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Elliott, J.:
The State appeals the trial court’s order dismissing, on statutory double jeopardy grounds, a single complaint charging Robert J. Weller of felony fleeing and eluding an officer.
We agree the prosecution is not barred by K.S.A. 21-3108 and, therefore, we reverse and remand.
Procedurally, the case is straightforward. Weller was charged with nine counts: felony fleeing and eluding and various traffic offenses. After a bench trial, Weller was found guilty of felony fleeing and eluding and three of the traffic offenses.
Weller moved to arrest judgment, and the trial court vacated the felony fleeing and eluding conviction because the charging document did not list all of the essential elements; thus, the trial court had no jurisdiction over the charge. See, e.g., State v. Crichton, 13 Kan. App. 2d 213, 214, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989).
The State refiled the felony fleeing and eluding charge which the trial court had dismissed based on the compulsory joinder rule found in the double jeopardy statute, K.S.A. 21-3108(2)(a). It is from this order the State appeals, arguing K.S.A. 21-3108(4)(a) allows the prosecution to proceed.
K.S.A. 21-3108(2)(a) essentially provides that a prosecution is barred if the defendant was formerly prosecuted for a different crime if the prior prosecution resulted in acquittal or conviction and the subsequent prosecution is for a crime of which evidence was admitted in the prior prosecution and which could have been included in the prior charging document in the prior prosecution.
Here, simply put, the prior prosecution was not for a different crime — the two prosecutions were for the same crime: felony fleeing and eluding. In the prior prosecution, the State presented enough evidence of felony fleeing and eluding that the trial court found Weller guilty beyond a reasonable doubt. Further, the State attempted, in the prior prosecution, to charge felony fleeing and eluding, but omitted an essential element which proved fatal to the State’s case when the trial court granted Weller’s motion to arrest judgment.
K.S.A. 21-3108 was derived from the Model Penal Code. See Judicial Council comment to K.S.A. 21-3108 (Weeks 1974). The counterpart to K.S.A. 21-3108(2)(a) is Art. 1, § 1.09 of the Model Penal Code (1962), which talks in terms of the current prosecution being for a violation “of a different provision of the statutes than a former prosecution.”
We recognize that In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979), concluded the compulsory joinder rule continued to operate even after the conviction was set aside, for whatever reason. 3 Kan. App. 2d at 745.
Based on our reading of the plain language of K.S.A. 21-3108, Berkowitz simply does not apply here. Weller, in the second prosecution, was not charged with a different crime.
At the same time, K.S.A. 21-3108(4)(a) clearly states a prosecution is not barred “under this section” by a former prosecution before a court which lacked jurisdiction over the defendant “or the offense.” (Emphasis added.)
State v. Love, 5 Kan. App. 2d 768, 625 P.2d 7, rev. denied 229 Kan. 671 (1981), is instructive with respect to K.S.A. 21-3108(4)(a). There, Love was charged with aggravated robbery, but an essential element was lacking in the charging document under State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979). A second prosecution by an information listing the missing element was frustrated by the trial court’s granting of a writ of habeas corpus, based on double jeopardy grounds. See 5 Kan. App. 2d at 769.
On the State’s appeal, we held Love’s first conviction was obtained by a court lacking jurisdiction over the offense and was, therefore, a nullity. As a result, the second prosecution was not barred. 5 Kan. App. 2d at 771-73.
The Model Penal Code counterpart of K.S.A. 21-3108(4)(a) is essentially the same: A former prosecution is not a bar where the former prosecution was before a court lacking jurisdiction over the defendant or the offense. Art. 1, § 1.11 (1962).
Clearly, K.S.A. 21-3108(4)(a) and our prior holding in Love provide that the present prosecution of Weller is not barred.
We see no conflict between K.S.A. 21-3108(2)(a) and K.S.A. 21-3108(4)(a). But even if there is a conflict, K.S.A. 21-3108(4)(a) controls. We can find no Kansas precedent on the question of which section controls if both apply.
When interpreting a statute, the legislative intent governs when it can be ascertained from the statute. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
Our starting point is the clear language of K.S.A. 21-3108(4)(a): A prosecution is not barred under this section by a former prosecution where the court lacked jurisdiction over the defendant or the offense. The emphasized words clearly indicate subsection 4 acts as an exception to all of the subsections of K.S.A. 21-3108, including K.S.A. 21-3108(2)(a). Subsection (4)(a) controls over subsection (2)(a).
Our construction of the statute conforms to several precedential sources. First, our construction is consistent with longstanding United States Supreme Court and Kansas Supreme Court double jeopardy jurisprudence. See Grafton v. United States, 206 U.S. 333, 345, 51 L. Ed. 1084, 27 S. Ct. 749 (1907) (before a person can be put in jeopardy, the court in which the defendant was acquitted or convicted must have had jurisdiction); United States v. Ball, 163 U.S. 662, 669-70, 41 L. Ed. 300, 16 S. Ct. 1192 (1896) (an acquittal before a court lacking jurisdiction is void and, therefore, no bar to subsequent prosecution in a court having jurisdiction over the offense); State v. Hendren, 127 Kan. 497, Syl. ¶ 1, 274 Pac. 274 (1929).
Further, as noted above, K.S.A. 21-3108 was based on the Model Penal Code. While the Kansas statutes are more concisely written, the Model Penal Code, on which K.S.A. 21-3108 is based, clearly reaches the same conclusion: A prosecution is not barred by K.S.A. 21-3108(2)(a) when the provisions of K.S.A. 21-3108(4)(a) are met.
Finally, following the adoption of the Criminal Code in 1968, Professor Raymond Spring authored a comprehensive article analyzing the “new” double jeopardy statute. See Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J. 179 (1970).
After discussing the first three subsections of K.S.A. 21-3108, all of which bar a subsequent prosecution, Professor Spring stated:
“Certainly some general qualifications upon the bar provided by the earlier provisions of section 21-3108 are necessary. The law appears to be universal that no bar arises from a former trial before a court which lacked jurisdiction and this is recognized in 21-3108(4)(a). Where the complaint, information, or indictment is fatally defective the court is without jurisdiction, since no valid judgment can be entered.” (Emphasis added.) Spring, 9 Washburn L.J. at 190.
In enacting K.S.A. 21-3108, the legislature intended to comprehensively codify the complex topic of double jeopardy. As previously noted, we must give effect to the legislature’s intent when it can be ascertained. See State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
In the present case, Weller was not subjected to being twice tried for the same offense. The first prosecution was held in a court lacking jurisdiction over the charge and was, therefore, void.
We reverse the trial court’s decision; the prosecutor may, within her discretion, retry Weller for felony fleeing and eluding.
Reversed and remanded. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff applied to the district court of Stanton county for a writ of mandamus to compel the board of county commissioners to levy a tax to support a high school maintained by a school district for the school year ending in June, 1916. Thé alternative writ was issued October 2, 1915. The defendant answered setting up certain defenses and the plaintiff’s demurrer to this answer was overruled on October 11, 1915. The plaintiff elected to stand on its demurrer, but not until February 29,1916, did it file its appeal in this court.
The time set by the statute for levying county taxes for the ensuing fiscal year is the first Monday in August. (Gen; Stat. 1915, § 11346.) Of course, if any duty to levy taxes is omitted its performance may be thereafter compelled by mandamus, but ordinarily such mandamus action must bo prosecuted with dispatch so that, if proper, the peremptory writ may be issued in time to be effective — that the levy may be made and the tax extended on the rolls before taxpaying time. This of necessity would need to be not much later than November 1. (Gen. Stat. 1915, §§ 11347, 11348.) The first half- of the then ensuing fiscal year’s taxes must be paid by De cember 20 and the second half by the 20th of the following June. (Gen. Stat. 1915, § 11396.)
From this it must be obvious that it is altogether too late to be of any importance or of any service to the parties to determine now the correctness of the trial court’s ruling on the demurrer to defendants’ answer. Nothing this court could say or do could now cause a levy of taxes for the year 1915-1916 to be made in time to aid a district high school for the school year ending June, 1916.
In Rice v. County Board of Canvassers, 50 Kan. 149, 32 Pac. 134, it was said:
“There is another sufficient reason why the writ should not go. It is a fundamental rule of law that it will never be granted where, if issued, it would prove fruitless and unavailing. (Shellabarger v. Comm’rs of Jackson Co., 50 Kan. 138; High, Ex. Rem., § 14; People v. Board of Canvassers, 129 N. Y. 370; 14 Am. & Eng. Encyc. of Law, 104.)” (p. 154. 26 Cyc. 147-149.)
' While it is not squarely alleged in defendants’ answer that the plaintiff’s high school has been abandoned, it is inferentially pleaded, and this fact is asserted in appellee’s brief and not denied, so the controversy has altogether descended to a mere moot question, and as such the appeal should be dismissed. (Shoe Co. v. Dawson, 94 Kan. 668, 146 Pac. 996.)
If the high school were still being conducted it might be proper to decide the legal questions as a guide in the matter of making levies for the support of the school in succeeding years. (The State, ex rel., v. Haskell County, 92 Kan. 961, 967, 142 Pac. 246.)
The appeal is dismissed. | [
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The opinion of the court was delivered by
Mason, J.:
Laura Belle Evans recovered a judgment against the city of Hutchinson on account of injuries she received in a fall caused by irregularity in thq surface of a sidewalk due to the scaling off of the cement crust covering a space about two feet long and six inches wide. The defendant appeals.
1. One witness testified that the depression in the surface of the walk occasioned by the breaking and removal of the crust was about half an inch deep. Another who visited the place two or three weeks after the accident estimated the depth at three inches. Objection is made to the latter testimony on the ground that no showing was made that the condition had not changed.' There was no direct and explicit evidence to that effect, but it was shown that the hole in the walk had existed for several years and was not repaired until later. Moreover this objection was not specifically made at the trial and is not now tenable.
2. The jury returned an affirmative answer to a question submitted in these words: “Was the defect in the sidewalk over which plaintiff passed a place about two feet long and six inches wide where the upper crust or surface crust of the cement walk had broken through to a depth of about one-half inch ?” The defendant insists that a depression of half an inch is so shallow that the court should say as ‘a matter of law that it could not constitute an actionable defect. In view of the testimony already referred to the finding that the depth was “about” half an inch can hardly be regarded as indicating that it was not greater in places. In a number of cases somewhat similar defects in a sidewalk have been held to be so slight that no question for a jury is presented in an action seeking to hold the municipality liable for resulting injuries. (Note, L. R. A. 1916 A,'490, and notes therein referred to; Note, 20, Ann. Cas. 798.) The ordinary rule, however, as shown by cases cited in the notes referred to, is that liability depends on whether an injury such as that complained of should have been anticipated, by the exercise of reasonable prudence, as the result of the defect in question. (28 Cyc. 1367.) Each case turns to a large extent upon its own peculiar features. A review of the specific decisions arising out of facts having some likeness to those here presented would extend this opinion unduly, and is not regarded as necessary. Clearly the scaling off of the top of a cement sidewalk in irregular patches of considerable size, leaving a depression surrounded by an abrupt rise, although less than an inch in height, might cause a fall, as is said to have happened here. Whether such an accident ought, by the use of a fair degree of diligence, to have been anticipated and guarded against is a matter about which reasonable minds may differ, and therefore the question of the liability of the city was properly submitted to the jury. A break in the surface of a cement walk of the character described is an obvious defect, capable of being readily repaired, and this circumstance may serve to distinguish its menace from that of other small irregularities that are not easily to be avoided.
Language used in Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, is quoted as indicating that before a city can be held responsible for injuries sustained in a sidewalk, the condition of the walk must be such that a court can say as a matter of law that it is dangerous. As recently explained that case holds merely that where reasonable minds may differ ■ as to the dangerous character of a defect in a street, the doubt may, not must, be given to the city authorities, by the tribunal charged with passing on the matter. (Klipp v. City of Hoyt, ante, p. 14, 160 Pac. 1000.)
3. The defendant maintains that the defect was so slight that notice to the city is not to be presumed from its existence even over the period of several years. The question raised by this contention is substantially the same as that just discussed. If the appearance of the walk was enough to apprise the city authorities that such an accident might happen, there was a sufficient basis for charging them with notice, and as has just been said, that was a fair question for the jury.
4. Complaint is made of the giving and refusal of instructions defining the duty of the city. The jury were told that the city was not an insurer, but was liable only for injuries caused by its failure to use ordinary care in keeping its sidewalks in a reasonably safe.condition. We think this sufficiently covered the ground of the instructions asked on the point, and cured any inaccuracy of statement elsewhere made. Instructions asked to the effect that there could be no liability unless the injury might have been reasonably foreseen by a person of ordinary intelligence and prudence might well have been given, but their omission was not prejudicial in view of instructions that a verdict for the plaintiff required a finding that the defective sidewalk was the proximate cause of the injury, proximate cause being defined as that which leads to and might have been expected to be directly instrumental in producing the injury. An instruction asked and refused regarding'circumstantial evidence was open to some criticism, but in any event the situation did not necessitate a special instruction on that subject.
5. A question submitted to the jury (presumably by the defendant) read as follows: “How was'plaintiff injured? Describe how it happened.” They answered: “Caught her toe.” It is argued that the question called for a statement of the proximate cause of the injury, and that the failure of the jury to determine it was a negative finding which acquitted the defendant. To us the answer seems responsive and in accordance with the allegations of the petition. In the absence of a request to have it made more explicit it fairly implied that the plaintiff had been tripped by the toe of her shoe striking the edge of the hole.
6.' The contention is also made that the evidence does not support the findings and verdict. We think upon each issue as to which that question is raised there was sufficient evidence to take the case to the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from an order denying their motion to vacate and set aside a journal entry of judgment.
An opinion was rendered in this case in The State, ex rel., v. City of Stafford, 92 Kan. 343, 140 Pac. 868. At that time the case was presented to this court on a single question — that there was no evidence to support the finding of the trial court that $2200 of the amount paid to the Larabee Light & Power Company was for the surrender of its franchise. This court held that there wás sufficient evidence to support that finding and affirmed the judgment.
The city of Stafford voted to issue bonds for the purpose of constructing an electric light plant. Defendant Larabee Light & Power Company, under a franchise, operated an electric light plant in the city. This action was commenced in the name of the state by the county attorney of Stafford county, to cancel and rescind a purchase by the city of the electric light plant of the Larabee Light & Power Company, and to order the defendants to repay to the city treasurer $14,000, the amount that had been paid by the city to the Larabee Light & Power Company for the property purchased, and to recover judgment against the defendants and each of them for $14,000, in the event that the defendants were unable to repay that sum to' the city. The journal entry of judgment was signed by Neeley & Malloy, attorneys for plaintiff, and by F. L. Martin and C. M. Williams, attorneys for defendants. That journal,entry was not submitted to, nor approved by, the county attorney or the judge. After reciting the appearance of the parties by their attorneys, and the findings of the court, the journal entry contained the following:
“The injunction applied for in this case will be denied and the purchase of said plant by the City of Stafford to the amount of $11,800 will be approved, but the sum of $2200 paid for the surrender of the so-called exclusive franchise and good will is not approved, and the judg ment of $1205.33, or any portion of it out of the city light fund to pay the engineer for estimating the cost of The Larabee Flour Mills Company plant is not approved, and it is ordered and adjudged by the court that the defendants restore to the electric light fund the sum of $2200 paid for the good will and surrender of The Larabee Flour Mill franchise and any sum paid out of the said electric light fund to the expert engineer for his report, and judgment against the defendants for costs, to which order, judgment and decree of the court the defendants and each of them and all of them except, and exceptions allowed.”
On the 1st day of April, 1915, after the decision of this court on the former appeal had been rendered and the mandate recorded in the district court, a corrected journal entry' was filed by order of the court. This journal entry, after reciting the appearance of the parties and the findings of the court, just as they were recited in the former journal entry, is as follows:
“Wherefore it is by the court considered, ordered and adjudged that the plaintiff have and recover of and from the defendants, the Larabee ' Light & Power Company, the Larabee Flour Mills Company, a corporation, H. F. Tolls, F. S. Larabee, G. A. Mikesell, S. C. Turner, E. R. Brown, A. H. Watson, J. A. Tubbs, Charles Thompson, the said judgment of $2200, together with the costs of this action taxed at $-, wherefore let execution issue. It is further considered, ordered and adjudged that on the satisfaction of payment of said judgment that the money released therefrom shall be paid by the clerk of said court to the City Treasurer of the City of Stafford, Kansas, and be by him restored to the electric light fund of said city.”
In May, 1915, the defendants filed a motion asking that the last journal entry be set aside and vacated, for the following reasons:
“First, Because a journal entry of judgment, signed by the attorneys for plaintiff and defendants and approved by them, had already been filed in said cause, an appeal taken from the judgment embodied therein to the Supreme Court of the State of Kansas, by the Supreme Court affirmed, and the mandate of said Supreme Court spread upon the records of Stafford County, Kansas.
“Second, Because the. court had no authority and no jurisdiction to render a personal judgment against the defendants in the above entitled cause, as set out in said journal entry, filed April 1st, 1915.
“Third, Because the court had no authority to change, modify or alter the judgment previously rendered in said cause.
“Fourth, Because said journal entry filed April 1st, 1915, has the effect of changing and modifying and altering the judgment heretofore rendered in said cause and the court was without authority or jurisdiction to alter, amend or modify the same.”
This appeal is taken from the order overruling that motion.
1. The defendants contend that the court had no power to correct the journal entry of judgment in the manner in which it was corrected. This question is presented by the defendants from one point of view and by the plaintiff from another. The defendants argue that the court had no power to correct the journal entry of judgment so as to show a judgment different from that actually rendered on the trial. If a different judgment was rendered this argument is good, under Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Chapman v. Irrigation Co., 75 Kan. 765, 90 Pac. 284; and Eisenbise v. Eisenbise, 98 Kan. 108, 157 Pac. 416. The plaintiff contends that the court had the right to correct the journal entry so as to make it record the judgment that was actually rendered. It is, therefore, necessary to determine what the court did. This can best be done by referring to the language of the written opinion filed when the journal entry was corrected. The trial court there said:
“Counsel say that the appeal to the Supreme Court was taken from the judgment as announced in the Journal Entry which was filed in October, 1912. Whether the Journal Entry had been filed at the time of the appeal or not, I do not know. In fact I never knew that the Journal Entry had been filed in the case at all until my attention was called to the same probably a year ago; and upon an examination of it, it clearly appeared that the provisions therein contained did not conform to the conclusion reached by the trial Court. Independent of this, however, this entry cannot be called a Journal Entry in the case. All members of the bar who practice in the Twentieth Judicial District are' supposedly familiar with the rules of this Court. Rule 4 provides as follows:
“ ‘Attorneys obtaining an order or judgment shall, without delay, furnish the clerk with a form for a Journal Entry therein, which shall be ■first submitted to the opposing counsel before approved by the Court.’
“Ray H. Beales was attorney of record for the plaintiff. His name does not appear upon the document; neither does the name of the Court appear upon the document, approving the same, in any form. The rule just stated, by every implication requires the approval of the trial judge before Journal Entries are filed and recorded.
“That portion of that document does not speak the truth. It does not represent the orders and judgment of the Court; is not a judgment against anybody for $2,200; is not such an order as could be satisfied by execution.”
This language shows that what the court did was to make the journal entry recite the judgment rendered at the time of the trial. There is no question about the power of the court to correct the journal entry so as to make it speak the truth and set out the judgment that was rendered, even though the judgment as first recorded had been before the supreme court for review. (Investment Co. v. Walsh, 70 Kan. 899, 79 Pac. 688.) In Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, this court said:
“A district court has the power to correct the entry of a judgment so as to cause it to speak the truth after the expiration of the term at which it was rendered, and upon the personal knowledge of the judge of what took place in court at the time of its rendition.” (Syl. ¶ 1.)
(See, also, Chemical Co. v. Morrison, 76 Kan. 799, 92 Pac. 1114; Calhoun v. Anderson, 78 Kan. 746, 98 Pac. 274; In re Hornung, 81 Kan. 180, 105 Pac. 23 ; The State v. Linderholm, 90 Kan. 489,135 Pac. 564; Eisenbise v. Eisenbise, 98 Kan. 108, 109, 157 Pac. 416; Hart v. Hart, 98 Kan. 745; and Stone v. Pugh, ante, p. 38.) The correction of the journal entry was not error.
2. The former opinion in this case affirmed the judgment as it was rendered, and affirmed all matters that could then have been presented to this court for review. All matters that were then embraced in the judgment were settled finally and completely. In Crockett v. Gray, 31 Kan. 346, 2 Pac. 809, this language was used:
“Where a case is decided by this court, on proceedings in error from the district court, that decision becomes the law of the case, for all subsequent proceedings; and this rule covers not merely the points expressly considered and decided, but all questions necessarily involved in the decision.” (Syl. ¶ 3.)
This principle is firmly fixed in the jurisprudence of this state by the decisions of this court. (Headley v. Challiss, 15 Kan. 602; The State v. Scott County, 61 Kan. 390, 392, 59 Pac. 1055; Wheelock v. Myers, 64 Kan. 47, 52, 67 Pac. 632; Lorimer v. Fairchild, 68 Kan. 328, 342, 75 Pac. 124; Hanoi v. Klippert, 73 Kan. 783, 85 Pac. 784; Railway Co. v. Stone, 80 Kan. 7, 9, 101 Pac. 666; Estes v. Zinc Co., 97 Kan. 774, 778, 156 Pac. 758; Hutchings v. Railway Co., 98 Kan. 225, 158 Pac. 62.)
The correction of the journal entry was not the rendition of a new judgment, nor the correction or amendment of, nor an addition to, the judgment as first rendered. The correction of the journal entry made the record speak the truth concern ing the judgment that was actually rendered at the time of the trial. That part of the judgment which was made to appear of record for the first time in the corrected journal entry was a part of the judgment as rendered at the trial, and could have been presented to this court on the first appeal.
It may be argued that the defendants did not know that a personal judgment had been rendered against them. If it were established by the record that, at the time of the hearing of the former appeal, the defendants had not had an opportunity to learn that a personal judgment had been rendered against them, a very different question would be presented. When the journal entry was corrected, the trial court had direct knowledge of what took place at the time the original judgment was rendered, and decided that in fact a personal judgment had been rendered. This implies that the judge formed in his own mind a decision that a personal judgment should be rendered, and that such mental operation was given expression in such a way as to advise those present of the essential character of the judgment. .The determination pf the court concerning what took place at the time the judgment was rendered is necessarily final; and the parties to the action are charged with knowledge of what was actually done, as determined at the time of correcting the journal entry. The defendants can not be permitted to say that they did not know until the correction of the journal entry what the nature of that judgment was. •
The claims of the defendants, that the judgment for $2200 was not within the issues and that the court had no authority or jurisdiction to render a personal judgment against them, could have been presented to this court on the first appeal, and, therefore, the former decision of this court is conclusive on these matters. This conclusion is supported, to some extent, by Alexander v. Clarkson, 96 Kan. 174, 150 Pac. 576, where the detailed terms of the judgment were not known until nearly six months after it was rendered. There this court said:
“On the 19th day of September, 1913, the court rendered final judgment as recommended by the referee and ordered ‘that a decree be prepared to take effect as of this 19th day of September, 1913, in accordance with the terms of the report of the referee heretofore made and approved.’ Nothing remained to be done except to approve a journal entry, which was not done until March 6, 1914, at which time the order approving the journal entry recited that the judgment ‘be and it is hereby made and entered as of September 19, 1913.’ No motion for a new trial was filed until the 7th day of March, 1914. Held, that the motion was filed too late.” (Syl. ¶ 1.)
(See, also, McElroy v. Whitney, 24 Idaho, 210; Malmgren v. Phinney, 65 Minn. 25; Chambers v. Jacobia, 103 Wis. 37.)
3. If the personal judgment against the defendants were before us for review, we might be constrained, on the strength of the authorities cited below., to hold that such a judgment could not have been rendered in this action. (The State, ex rel., v. Wright, 67 Kan. 847; People of the State of N. Y. v. Ingersoll, 58 N. Y. 1; People of the State of N. Y. v. Fields, 58 N. Y. 491; Ayers et al. v. Lawrence et al., 59 N. Y. 192, 195; People v. N. Y. & Manhattan Beach R’y Co., 84 N. Y. 565, 568; People v. O’Brien et al., 111 N. Y. 1, 33; People v. Lowe et al., 117 N. Y. 175, 191; People v. Belknap, 65 N. Y. Supr. Ct. 241, 242; State of New York v. Starkweather, 40 N. Y. Super. Ct. 453, 459; People v. Fields, 50 How. Pr. [N. Y.] 481; Attorney General v. Moliter, 26 Mich. 444; Attorney General v. Potter, 26 Mich. 452; Attorney General v. City of Detroit, 107 Mich. 92; The State v. Rubey, 77 Mo. 610; The State ex rel. Cunningham v. Wilson, 77 Mo. 633; Cole County v. Dallmeyer, 101 Mo. 57, 65.)
The judgment, denying the defendants’ motion to set aside the corrected journal entry, is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment against the defendant for damages caused by delay in shipping a car of poultry. The defendant appeals.
On March 13, 1912, the plaintiff shipped a car of poultry from Winfield, Kan., to Hance Brothers Company, at New York City, under a bill of lading which provided that “no carrier is bound to transport said property ... in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon.” The car was received by the defendant at North Judson, Ind., and was delayed in transportation from that place to New York, where it was delivered on Thursday, March 21, at 9:55 A. M. It should have been delivered so that the poultry could have been on the market on Wednesday, March 20. On the 21st, 22d, 23rd and 25th days of March the poultry market was overstocked, and there was no demand for poultry until March 26. On that day the market price of poultry was fourteen and one-half cents per pound. There was a market on March 20, and the market price on that day was seventeen cents. The car of poultry was held from March 21 to March 26 because there was no market for the poultry. The loss sustained was the difference between fourteen and one-half cents and seventeen cents per pound, and the cost of caring for the poultry during the time it was held for a market.
1. The defendant insists that the plaintiff can not recover for the damage sustained because the petition did not state, nor the evidence prove, a cause of action. This proposition was presented to the trial court by a demurrer to the petition, by objection to the introduction of evidence, by a demurrer to the plaintiff’s evidence, and by a request that the court give an instruction directing the jury to return a verdict in favor of the defendant.
This was an interstate shipment over several lines of railroad, and was necessarily governed by federal laws. In the headnotes to N. Y. & Norfolk R. R. v. Peninsula Exchange, 240 U. S. 34, this language was used:
“The Carmack amendment of June 29, 1906, extends to failure to transport with reasonable despatch; and under it there can be a recovery from the initial carrier for loss, damage or injury for such failure although on the line of the connecting carrier.
“A condition of the tariff filed with the Interstate Commerce Commission that the carrier was not bound to transport on a particular train or vessel to arrive at .a particular market or otherwise than with reasonable despatch does not relieve the carrier from liability under the Carmack Amendment for not delivering with reasonable despatch, although the delay may have been on line of connecting carrier.”
(See, also, Railway Co. v. Fry, 79 Kan. 21, 98 Pac. 205; Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421; Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847; and Giles v. Railway Co., 92 Kan. 322, 140 Pac. 875.)
But the defendant contends that, under the Carmack amendment, the plaintiff’s cause of action, if any, was against the initial carrier, the Santa Fe railway. This contention is based on the continuity of carriage from Winfield to New York, and on that provision of the Carmack amendment which provides that the initial carrier shall be liable to the holder of the bill of lading for any loss, damage, or injury caused by it, or by any common carrier over whose lines the shipment may pass. If there is any liability, there is no question about the right of the plaintiff to proceed against the Santa Fe under the Carmack amendment; but the last clause of that part of the amendment which makes the initial carrier liable, reads:
“Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” (Part 1, 34 U. S. Stat. at Large, ch. 3591, p. 595.)
Prior to the Carmack amendment there was no question about the right of one who had sustained damage, by reason of the negligence of a carrier, to proceed against the carrier that caused the damage, although it was not the initial carrier. In Cincinnati & Tex. Pac. Ry. v. Rankin, 241 U. S. 319; the supreme court, discussing the Carmack amendment, said:
“Construing the Carmack, Amendment, we said through Mr. Justice Lurton in the case cited; Adams Express Co. v. Croninger, 226 U. S., pp. 506-507: ‘The liability thus imposed is limited to “any loss, injury or damage caused by it or a succeeding carrier to whom the property may be delivered,” and plainly implies a liability ior some default in its common-law duty as a common carrier.’ Properly understood neither this nor any other of our opinions holds that this amendment has changed the common-law doctrine theretofore approved by us - in respect of a carrier’s liability for loss occurring on its own line.” (p. 326.)'
The petition stated a cause of action against the 'defendant, and sufficient evidence was introduced to prove that cause of action.
2. The defendant insists that the court committed error by admitting incompetent evidence to prove the delay-in transportation on the defendant’s line of railroad, and to ]prove poultry market conditions. The time of the delivery of the car to the defendant at North Judson, Ind., was shown by the defendant’s inspectors and car repairers, who inspected this car when it was received at that place. The caretaker who accompanied the car from Winfield to New York testified to the time when the car reáched Hornell, on the defendant’s road. William T. Hance, of Hance Brothers Company, the consignee of the car, testified to the time when the car reached New York. These were competent witnesses, and they testified concerning their direct knowledge of the time when the car reached the points named. Frank Stewart, an experienced shipper of poultry, and William T. Hance, manager of Hance Brothers Company, engaged in the poultry business in New York, testified concerning market conditions in that city. The Producer’s Price Current, a produce paper published in New York, was introduced to show market conditions on March 21 and 22. While the evidence of Stewart may have been secondary, the evidence of Hance and the evidence contained in the Price Current was primary and competent. There was not sufficient error in admitting any of the evidence of Frank Stewart to warrant reversing the judgment.
3. The defendant complains of the instru.ctions given concerning the negligence of the defendant, and contends that there was no evidence upon which to predicate general instructions concerning negligence. There was abundant evidence on which to base these instructions. The defendant admitted a delay of eighteen hours on its line of road, and there was some evidence that tended to prove that there was a delay of thirty-seven and one-half hours, either of which war rants the instructions concerning negligence in transportation.
4. The defendant also- complains of the instruction concerning- the m'easure of dámages. The tíourt instructed the jury that the measure of damages was the difference between the market value of the poultry in New York on the day when it should have arrived there and the market value on the next market day, plus any expense reasonably incurred for feed and care of the poultry made necessary by the delay in transportation. The evidence tended to show that Wednesday practically closed the poultry market for each week, and that there was no substantial market until the next week. This instruction properly submitted the measure of damages. (Railway Co. v. Fry, 74 Kan. 546, 87 Pac. 754, 1, 79 Kan. 21, 98 Pac. 205; Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421; Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847.)
5. The defendant argues that no negligence was proved against the defendant. This argument is without merit. No good purpose will be served by reciting the evidence which tended to show that the defendant was negligent. What has been said on other propositions in this opinion may be considered in connection with the one now under discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a ruling of the trial court quashing a complaint drawn under a city ordinance. The ordinance, including its title, is as follows:
“Ordinance No. 11,500.
“An Ordinance relating to the suppression of the sale and delivery of intoxicating liquors; declaring property used in connection therewith nuisances, and providing for the abatement of such nuisances.
“Be it Ordained by the Board of Commissioners of the City of Kansas City, Kansas.
“Section 1. That it shall be unlawful for any' person, firm or corporation to drive or operate upon any boulevard, street, avenue, alley, public highway, or public ground of the City of Kansas City, Kansas, any car, wagon, truck, or vehicle, the cargo of which consists wholly or partly of any intoxicating liquor; excepting as hereinafter provided in Section 6.
“Section 2. The driving or operating upon any boulevard, street, avenue, alley, public highway or public ground of said City any car, wagon, truck or vehicle, the cargo of which consists wholly or partly of any intoxicating liquor, and such car, wagon, truck or vehicle, and the cargo thereon, and any animal or animals drawing the same, are hereby declared to be common nuisances, excepting as hereinafter provided in Section 6.
“Section 3. The driving or operating upon any boulevard, street, avenue, alley, public highway or public ground of said city of any car, wagon, truck or vehicle, upon which is inscribed, lettered, pasted, or upon which is carried so as to be exposed to the public view, the name of any person, firm or corporation engaged in the manufacture, sale or distribution of intoxicating liquors, or upon which vehicle or cargo appears any word, sign, emblem, device or object which indicates in any way that the cargo of such vehicle above mentioned and referred to consists wholly or partly of intoxicating liquors, is hereby declared to be unlawful and'to constitute a common nuisance.
“Section 4. Any person, company, firm or corporation violating any of the provisions of Sections 1, 2 and 3 of this ordinance shall be deemed guilty of a misdemeanor and upon conviction before the Police Judge shall be fined in any sum not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00); and be imprisoned not less than thirty days nor more than six months for each offense, and ad judged to payment of costs, and shall be committed to the city jail until such fines and costs are paid.
“Section 5. The Chief of Police or any police officer of the City of Kansas City, Kansas, is hereby authorized upon the arrest of any person or persons found in charge of, operating, or assisting to operate any car, wagon, truck or vehicle upon any of the boulevards, streets, avenues, alleys, public highways, or public grounds of the City of Kansas City, Kansas, the cargo of which consists wholly or partly of any intoxicating /liquors, or upon which appears any matter prohibited by Section 3 hereof, shall forthwith seize such conveyance or vehicle and an animal or animals drawing the same, and all intoxicating liquors thereon and hold the same until the trial of the person or persons arrested for driving or operating such conveyance or vehicle and upon conviction of such person or persons in the police court and the adjudging of such liquors and property to be a nuisance as defined in Section 1 and 2 hereof, all intoxicating liquors together with their containers so seized shall be forthwith destroyed by direction of the Chief of Police, and other property so seized shall be advertised for sale by the Chief of Police giving ten days’ notice in the official city paper of the time and place of sale, and the proceeds derived from such sale shall be applied first, to the expense of the sale, and any surplus shall be applied to the payment of fines and costs of the person or persons convicted of operating such nuisance if the property belonged to such person or persons; and if such property belonged to any person or persons not a party to the suit, such proceeds shall be paid to the owner of the property; provided, that any person may have a trial as to his rights of property in any of the articles so seized by serving a notice in writing to that effect upon the Chief of Police at any time before the trial of the person from whom such property was taken, whereupon, the Police Judge shall set the same down for trial and may hear and determine the same so far as it affects the right of the officer to seize and hold the same for a violation of this ordinance, which trial may be had in connection with or separately from, the trial of the person from whom the property or goods were taken.
“Section 6. Nothing in this ordinance shall be construed to prevent any person from bringing into the city, personally, intoxicating liquors purchased outside of the State of Kansas, nor to prevent any such purchaser from receiving through a common carrier within the city in- ' toxicating liquors purchased by any such person outside of the State of Kansas and to which intoxicating liquors the title vested in the purchaser outside of the State of Kansas, when such intoxicating liquors are intended to be possessed and received by such purchaser for his personal use.
“Section 7. All persons, firms or corporations doing business outside of the City of Kansas City, Kansas, which shall sell in such outside state or territory any intoxicating liquors to residents of the City of Kansas City, Kansas, shall file daily with the City Clerk of the City of Kansas City, Kansas, a carbon copy lof each and every order taken upon which such intoxicating liquor is sold, and also shall file with the city clerk the names and addresses of every purchaser to whom such intoxicating liquor is consigned, and a failure to so report such sales shall be a misdemeanor and upon conviction of such failure any person so failing shall be fined in any sum not less than five dollars nor more than twenty-five dollars.”
The count of the complaint against which the motion to quash was filed is as follows:
“Before the Police Court, J. H. Brady, Judge, J. M. Dunlavy complains of Harry Jordan, and being duly sworn, on oath says that he, the said Harry Jordan, at and in the city of Kansas City, county of Wyandotte and State of Kansas, and on or abrfut the 2nd day of November, 1915, did unlawfully drive and operate upon the streets, avenues, boulevards, alleys and public highways of said city, a certain truck or wagon, the cargo of which then and there consisted of intoxicating liquors, to-wit, about eleven (11) empty and sixteen (16) full cases of beer, the said Harry Jordan not being engaged in any manner as a common carrier delivering liquors previously purchased outside of the state of Kansas, but was transporting said beer about the streets for an'unlawful purpose, in violation o'f Section 1 of Ordinance No. 11500 of the ordinances of the City of Kansas City, Kansas.”
The grounds of the defendant’s motion to quash the coriiplaint are that the complaint does not state facts sufficient to constitute an offense, and that the ordinance is invalid for a number of stated reasons. , •
1. The defendant insists that the ordinance is void because no power to enact it has been delegated to the city. The defendant argues that, because section 5532 of the General Statutes of 1915 authorizes cities to pass ordinances prohibiting the sale of intoxicating liquor and suppressing common nuisances, and no other authority is specifically given, the city has no power to pass any other ordinance having for its object the suppression of the traffic in intoxicating liquor.
Section 1221 of the General Statutes of 1915 reads:
“The mayor and council may levy and collect a license tax upon and regulate any and all callings, trades, professions and occupations conducted, pursued, carried on or operated within the limits of such city, including . . . express companies and agencies, . . . and all wagons and other vehicles transporting merchandise or passengers for pay.”
This statute is a part of the charter powers of cities of the first class operating under the mayor and council form of gov- eminent, and is retained in the charter powers of such cities operating under the commission form of government. (Gen. Stat. 1915, § 1665.) Under both forms of government cities of the first class have power—
> “To make all needful police regulations necessary for the preservation of good order and the peace of the city, and to prevent injury to or the destruction of or interference with public or private property.’’ (Gen. Stat. 1915, §§ 1094, 1508.)
This is known as the general welfare clause. Broad and varied powers are granted by this clause. A brief statement of these powers is found in section 895 of volume 3 of McQuillin on Municipal Corporations, where the author says:
“Specifically, under the general welfare clause, or by virtue of general grant of power (as will clearly appear from the sections which follow), municipal corporations are authorized to enact appropriate and reasonable ordinances, to preserve the health and provide necessary and desirable sanitary regulations for the local population, to abate nuisances and regulate various kinds of occupations that may become nuisances or detrimental to the public health; to provide for the public safety by preventing obstructions of the streets, public ways and places, regulating the use of vehicles thereon, the storing of explosives, blasting, the movement of street cars and railroad trains, the erection of buildings and other structures by establishing fire limits, and forbidding wooden buildings in designated portions of the corporate area; to preserve the morals of the inhabitants by -forbidding certain acts offensive to just ideas and sentiments of decency and propriety of conduct; to establish and regulate markets, hucksters, hawkers, etc., regulate milk inspection and prevent adulteration of foods; to provide for the weighing and measuring of articles sold to the inhabitants; and finally to require or prohibit the doing of many other things incident to congested centers, to the end that the public welfare may be advanced.
“In brief, under this general grant of power, ordinances may be passed which are necessary and beneficial, and they will be adjudged valid by the courts, provided they are reasonable and consonant with the general powers and purposes of the local corporation, and not inconsistent with the laws and policy of the state.”
Section 5505 of thé General Statutes of 1915 imposes on mayors, marshals, police judges, and police officers of,cities the duty to notify the county attorney of any violation of the intoxicating liquor law of this state, and prescribes severe punishment and forfeiture of office for failure to comply with the statute. Sections 686a- to 686o of the code of civil procedure (Gen. Stat. 1915, §§ 7803-7617), provide a simple and effective method for the removal of city officers who fail to perform any. duty enjoined on them by law. Section 5559 of the General Statutes of 1915 provides:
“That every wife, child, parent, guardian or employer, or other person, who shall be injured in person or property or means of support by any intoxicated person, or in consequence of intoxication, habitual or , otherwise, of any person, shall have a right of action in his or her own name against any incorporated city of this state wherein the intoxicating liquors were sold, bartered or given away in violation of law which caused the intoxication of such person, for all damages actually sustained, as well as exemplary damages.”
It would not be reasonable to impose these serious consequences on cities and on city officers and at the same time to deprive cities of the right to exercise every legitimate power to suppress the illegal traffic in intoxicating liqiiors. Sections 1094, 1221, 1508 and 1665 of the General Statutes of 1915, when construed with the statutes of this state concerning intoxicating liquors, and with those imposing heavy duties and severe penalties on cities and city officers, should be held to grant power to cities to pass ordinances regulating the transportation of intoxicating liquors for legal purposes, and prohibiting such transportation for illegal purposes. Such ordinances may properly specify the class of persons that may engage in such lawful transportation, may license or otherwise authorize them to engage therein, and may impose such restrictions and conditions as will secure their obedience to the laws of the state and to city ordinances. For the purposes of transportation, intoxicating liquors should not be classed with harmless and useful articles of trade and commerce. Such liquors should be classed with those articles that are known to be dangerous and over which cities have control for the preservation of the peace and for the protection of the health, morals and safety of the city. In other words, intoxicating liquors should not be classed with flour and clothing, but should be classed with explosives, poison, diseaséd animals, and articles that spread contagion and disease among men, and should be treated accordingly. Much of the reasoning found in The State v. Railway Co., 96 Kan. 609, 152 Pac. 777, is applicable here. The city has authority to regulate the legal transportation in intoxicating liquors and to prohibit their illegal transportation. O’Neal v. Harrison, 96 Kan. 339, 150 Pac. 551; Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548; Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194; and Kleinhein v. Bentley, 98 Kan. 431, 157 Pac. 1190, support the conclusion that the city has authority to pass such an ordinance.
2. It is urged that the ordinance is void because the subject thereof is not clearly expressed in its title, and because the ordinance contains more than one subject. An examination of the ordinance and of its title shows that neither of these contentions can be rightfully upheld.
3. It is argued that the ordinance is void because it is repugnant to the provisions of sections 5544 to 5554 of the General Statutes of 1915. These sections of the statutes regulate the transportation and delivery of intoxicating liquors in this state, and are commonly known as the Mahin law. Section 5544 reads:
“It shall he unlawful for any railroad company, express company or other common carrier, or for any person, company or corporation to carry any intoxicating liquor into this state or from one point to another within the state for the purpose of delivery, or to deliver the same to any person, company or corporation within the state except for lawful purposes.”
Ordinances regulating the transportation of intoxicating liquors for purposes recognized as legal by the laws of this state, and prohibiting the transportation of such liquors for all illegal purposes, are entirely consistent with the. Mahin law. Such ordinances are valid when the purposes for which intoxicating liquors may be lawfully transported within this state are recognized.
4. The defendant argues that the ordinance is a regulation of lawful interstate commerce and therefore void. Omitting that part of the Webb-Kenyon law which is irrelevant to the subject now under consideration, the title and text of the act are as follows:
“An act divesting intoxicating liquors of their interstate character in certain cases.
“That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory,- or district of the United States, • . . . which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory, or district of the United States, ... is hereby prohibited.” (Part 1, 37 U. S. Stat. at Large, ch. 90, p. 699.)
Under that act, there is no interstate commerce in intoxicating liquors except as the law of the state may recognize the legality of their sale or transportation. In a decision of the supreme court of the United States, rendered January 8, 1917, in Clark Distilling Co. v. West’n Md. Ry. Co., 242 U. S. 311, that court said:
“As the state law forbade the shipment into or transportation of liquor in the state whether from inside or out, . . . and as the Webb-Kenyon act prohibited the transportation in interstate 'commerce of all liquor ‘intended to be received, possessed, sold or in any manner used, either in the original package or otherwise, in violation of any law of such State,’ there would seem to be no room for doubt that the prohibitions of the state law were made applicable by the Webb-Kenyon Law.” (p. 321.)
That decision completely disposes of the defendant’s contention concerning interstate commerce.
5. The' defendant insists that the ordinance is not a law of the state within the meaning of the Webb-Kenyon act. Kansas City is an agency of the state in the exercise of governmental functions. The city is authorized and commanded, to assist in the suppression of the illegal traffic in intoxicating liquors. The ordinances of the city are local laws, passed under the authority of the state. In New Orleans Waterworks v. New Orleans, 164 U. S. 471, the supreme court of the United States-said:
“In view of the adjudged cases, it can not be doubted that thé legislature may delegate to municipal assemblies the power of enacting ordinances that relate to local matters, and that such ordinances, if legally enacted, have the force of laws passed by the legislature of the state and are to be respected by all.” (p. 481.)
In N. O. Waterworks v. La. Sugar Co., 125 U. S. 18, the supreme court of the United States said:
“So a by-law or ordinance of a municipal corporation may be such an exercise of legislative power delegated by the legislature to the corporation as a political subdivision of the state, having all the force of law within the limits of the municipality, that it may properly be considered as a law, within the meaning of this article of the constitution of the United States.” (p. 31.)
In North American Storage Co. v. Chicago, 211 U. S. 306, the court said:
“In this case the ordinance in question is to be regarded as in effect a statute of the state, adopted under a power granted it by the state legislature, and hence it is an act of the state within the Fourteenth Amendment.” (pi 313.)
The defendant’s argument that the ordinance is an interference with interstate commerce must be based on the proposition that the ordinance's a law of the state within the meaning of the federal constitution. If the ordinance is a law of the state within the meaning of constitutional inhibitions, it must be a law of the state when those inhibitions are removed. It follows that when the constitutional protection of interstate commerce in intoxicating liquors is withdrawn, there is nothing left with which the ordinance can interfere; and it follows that the ordinance, passed under authority given by the legislature, is a law of the state within the meaning of the Webb-Kenyon act.
6. The defendant contends that “the ordinance is not validated by the allegation in the complaint that the defendant was transporting the liquors about the streets for an unlawful purpose, in- violation of section 1 of 'ordinance No. 11500.” The complaint alleges more than is necessary. The exceptions named in section 6 of the ordinance are not a part of the clause which creates the offense, and therefore need not be set out in the complaint. In The State of Kansas v. Thompson, 2 Kan. 432, this court said:
“The rule is: If there be any exceptions contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant, or the subject of the indictment, does not arise within the exception. But if a proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it is in that case matter of defense for the other party, and need not be negatived in the pleading.” (Syl. ¶ 2.) “
In City of Kansas City v. Gamier, 57 Kan. 412, 46 Pac. 707, in a prosecution under a city ordinance, this court said:
“In a clause of such an ordinance distinct from the one defining the offense there was a proviso to the effect that it is unnecessary to fúrnish a description of property purchased from manufacturers or wholesale dealers who have an established place of business, or which has been purchased at an open sale. Held that, the proviso being in a subsequent clause and not incorporated in the definition of the offense, it was unnecessary to negative it in the complaint.” (Syl. ¶ 4.)
This rule was followed in The State v. Thurman, 65 Kan. 90, 68 Pac. 1081; The State v. Buis, 83 Kan. 273, 111 Pac. 189; and in The State v. Creamery Co., 83 Kan. 389, 111 Pac. 474.
It was not necessary for the city to plead any of the exceptions named in the ordinance, nor any existing under the laws of this state.
7. Another question presented by the motion to quash; and embraced in the attack on the validity of the ordinance, but not argued by either of the parties to this action, is this: Are the exceptions contained in section 6 of the ordinance broad enough to include the recognized lawful traffic in intoxicating liquors in this state ? Section 5499 of the General Statutes of 1915 is as follows-:
“Any person who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not less than one hundred dollars, nor more than five hundred dollars, and be imprisoned in the county jail not less than thirty days, nor more than ninety days; provided, that any person, copartnership or corporation engaged in the wholesale drug business and having a stock, exclusive of alcohol, of not less than sixty thousand dollars may sell alcohol for medicinal, mechanical and scientific purposes to registered pharmacists who are actually and in good faith engaged in the retail drug business, such sales to be in quantities of not less than one gallon nor more than five gallons.”
This statute gives certain wholesale druggists a legal right to sell alcohol to certain registered pharmacists. If the ordinance does not expressly or impliedly make an exception in favor of all legitimate transportation of intoxicating liquors, it can not be upheld. In this state, a registered pharmacist who legally purchases áleohol from a wholesale druggist has a right to have that alcohol transported over the streets of the city and delivered to him at his place of business. Because the exceptions in section 6 of the ordinance do not include all transportation in intoxicating liquor recognized as legal by the laws of this state, the ordinance must be held invalid. It follows that the motion to quash the complaint was properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued for the freight charges on certain nursery stock shipped by defendant from Ottawa, Kan., to Chestnut Hill, Pa., consigned to the Andora Nursery Company. The latter refused to accept the shipment and declined to pay the freight charges.
The defendant filed a general denial, and answered further with a full statement of the transaction :
“That the plaintiff received such shipment as agent for the said consignee, The Andora Nursery Company and the Andora Nursery Company became primarily liable for the payment of the freight upon such shipment; that the defendant has been a patron of The Atchison, Topeka and Santa Fe Railway Company for many years and it has been the customs and understanding between the plaintiff and the defendant for the plaintiff to promptly notify this defendant whenever the consignee refused to accept or pay the freight on shipments and such was the contract between the plaintiff and defendant in this case, implied by law and the general custom of the said railway company and especially the general custom and understanding between the plaintiff and this defendant; that by reason of such agreement this defendant guaranteed the payment of the freight upon such shipment on the condition, implied by the long course of dealing between the plaintiff and defendant and the general custom and understanding of the parties in making the shipment and by implication of law, that the railway company should, with due diligence, notify this defendant in case such freight charges should not be paid.
“Fourth: Defendant says that such shipment was made on or about the 9th day of April, 1912, and arrived soon after at Chestnut Hill, Pa., that the said 9 boxes of trees so shipped were properly packed and were in good condition at that time and were of the value of $200.00; that the Andora Nursery Company refused to accept such shipment; that the plaintiff railway and its connecting lines had and retained the said shipment of nursery stock in its possession and had valid liens thereon for the amount of its freight charges; that the plaintiff and its connecting lines might have then sold the said nursery stock for a sufficient amount to have paid such freight charges or if said plaintiff or its connecting lines or'agents had notified this defendant that the Andora Nursery Company had refused such shipment, this defendant could have sold the said nursery stock for an amount in excess of the said freight charges of the plaintiff and its connecting lines. Defendant says, however, that the said plaintiff and its connecting lines made no effort to collect such freight charges from the consignee; but retained said shipment of nursery stock in its possession for many weeks after its arrival at Chestnut Hill, Pa., and after refusal of the Andora Nursery Company to receive the same and until it was too late to plant nursery stock for that season and the said nursery stock thereby became entirely worthless; that the plaintiff and its connecting lines knew the nature of said shipment; that it was nursery stock and that the same would become valueless if it was so retained by it without notifying this defendant; that it has not been possible for this defendant to collect the amount of said freight charges from the Andora Nursery Company at any time since receiving notice from the plaintiff that such freight charges had not been paid; that by reason of all the premises, this defendant was released from any guaranty of said freight charges or any liability therefor.”
Plaintiff’s demurrer and its motion for judgment on the pleadings were orverruled, and the correctness of these rulings is the subject of this appeal.
The rights and liabilities of the parties to this shipment are governed by federal law and the rules promulgated by the interstate commerce commission. We find no sanction in either for the first proposition urged in defendant’s answer — that the railway company received the shipment as the. agent of the consignee and that the latter is primarily liable for the freight charges. At common law the relations of the carrier, shipper and consignee were left largely to their private agreements, which were usually evidenced by their bills of lading and shipping contracts. Prior to 1887 these matters had received little legislative attention from congress, and in dealing with controversies arising over interstate shipments the courts interpreted the contracts of the parties and generally applied the principles of the common law. Since the adoption of the . interstate commerce act of 1887, however, and especially by its later amendments, much of the old law and many, of the old decisions have been superseded. (Kirby v. Railroad Co., 94 Kan. 485, 489, 490, 146 Pac. 1183; Railroad Co. v. Utilities Commission, 95 Kan. 604, 618-620, 148 Pac. 667.) Formerly the defense pleaded in this case might be a bar to plaintiff’s action. It is otherwise now. Before the plaintiff could enter into an understanding with the defendant to receive the shipment of trees as' the agent of the consignee and to look primarily to the latter for its compensation, it would be necessary for the railway company to promulgate a tariff rule to that effect and to file that rule with the interstate commerce commission. (Mollohan v. Railway Co., 97 Kan. 51, 56, 154 Pac. 248.) That body might approve or disapprove the rule. Nor is it likely that such a rule would be approved unless it was framed in terms applying to all shippers alike, or at least applying to all shippers engaged in the distribution of nursery stock in some general and reasonable classification which would not offend against the anti-discrimination features of the interstate commerce act.
Section 3 of the federal act, in part, reads:
“That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue ór unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic in any respect whatsoever.” (24 U. S. Stat. at Large, ch. 104, § 3, p. 380.)
Section 6 reads, in part:
“That every common carrier subject to the provisions of this act shall file with the commission created by this act . . . schedules showing all the rates, fares, and charges for transportation. . . . The schedules . . . and ... all privileges oí facilities granted or allowed and any rules or regulations which in any,wise change, affect, or determine any part or the aggregate of such aforesaid rates, fdres, and charges, or the value of the service rendered to the passenger, shipper, or consignee. . . . The provisions of this section shall apply to all trafiic, transportation, and facilities defined in this act. . . . No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days’ notice to the commission and to the public published as aforesaid. . . . Every common carrier subject to this act shall also file with said commission copies of all contracts, agreements, or arrange ments with other common carriers in relation to any traffic affected by the provisions of this act to which it may be a party.
“The commission may determine and prescribe the form in which the schedules required by this section . . . shall be prepared and arranged and may change the form from time to time\as shall be found expedient. . . . Nor shall any carrier charge or demand or collect or receive a greater or less or different compensation . . . than the rates, fares, and charges which are specified in the tariff . . .; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such, as are specified in such tariffs.” (24 U. S. Stat. at Large, ch. 104, § 6, p. 380, as amended, 4 U. S. Comp. Stat. 1913, p. 3829, § 8569.)
The alleged special arrangements between the defendant and the railway company whereby the latter received the shipment as agent of the consignee, and that the defendant, through an understanding and custom of many years, was to be promptly notified whenever the consignee refused to accept shipments and pay freight,,and that it was by reason of this understanding and custom that the defendant had guaranteed the freight, etc. — all these matters come fairly under the ban of the act just quoted. If this needs to be made still more clear, let us suppose that there were two nursery firms in Ottawa, Kan., the defendant and a competitor, and that both shipped trees far and wide by interstate railroads, and suppose the defendant’s competitor had no such understandings with the plaintiff railway company as those pleaded in defendant’s answer. In such case defendant’s competitor would be liable for the freight on all shipments refused by its consignees while the defendant would be exempt und'er the arrangements pleaded in its answer. This would amount to such discrimination and favoritism that it would soon drive the defendant’s competitor out of business. To do away with such discrimination and favoritism was one of the chief purposes of the interstate commerce act.
’ As we understand the interpretation of the interstate commerce act and the rules and orders promulgated by the interstate commerce commission pursuant to its terms, a railway company has no choice but to demand the freight charges from the shipper if they are not paid by the consignee, and the railway company' is required to exhaust its legal remedies before the unpaid freight charges can be charged off to “loss and gain.”
No. 314, Conference Rulings of the Interstate Commerce Commission, dated May 1, 1911 (Bulletin No. 6) issued April 1,1913, reads:
“The law requires the carrier to collect and the party legally responsible to pay" the lawfully established rates without deviation therefrom. It follows that it is the duty of carriers to. exhaust their legal remedies in order to collect undercharges from the party or parties legally responsible therefor. . It is not for the Commission, however, to determine in any case which party, consignor or consignee, is legally liable for the undercharge, that being a question determinable only by a court having jurisdiction and upon the facts of each case.” (Watkins on Shippers & Carriers, 2d ed., p. 896.)
There can be no distinction in principle between the carrier’s duty to collect an undercharge and its duty to collect the entire charge.
The situation of the railroad is not unlike that of a public tax collector. If a tax is not paid a tax warrant must issue, and the processes of law must be set in motion one after another so long as there is the slightest chance to collect it.
Whether the shipper or the consignee is primarily liable between themselves for the freight charges is no concern of the railway company. Since the shipper is the person who deals with the railway company and the one who induces the carrier to perform the transportation service, he is liable absolutely. (Portland Flouring Mills Co. v. British & F. M. Ins. Co., 130 Fed. 860; Baltimore, etc., R. Co. v. New Albany Box, etc., Co., 48 Ind. App. 647; Baltimore & Ohio Railroad Co. v. LaDue, 128 App. Div. 594, 598; 2 Moore on Carriers, 2d ed., p. 669.) The consignee is liable if he accepts the shipment; otherwise, except under special circumstances, he is not. If by chance the consignee is also the shipper he is liable of course, and the same would be true if the consignor were merely the agent of the consignee. But the fact that he is the consignee as well as the shipper is not the controlling point. It rests on the fact that he is the shipper.
Even the latest textbooks on this general subject must be read in the light of recent federal legislation, most of- which tend§ to modify the textbook doctrines, yet some of them are , still helpful.
In 4 R. C. L. 857, it is said:
“Ordinarily a carrier has a right to look for his compensation to the person who required him to perform the-service by causing the goods to be delivered to him for transportation, and that person is generally of course the shipper named in the bill .of lading, or the consignor. The fact that the latter does not own. the goods has been held [im] -material, on th.e' ground that the carrier’s contract and right to recover his freight can not be made to depend on what may prove to be the legal effect of the negotiations between the. consignor and the consignee on the title to the property which is the subject of transportation. Furthermore, even though there is a stipulation in a bill of lading providing that the consignee shall pay the freight, that does not of itself relieve the consignor, and a carrier is not bound at his peril to enforce the payment of freight from the consignees.”
In 6 Cyc. 500, it is said:
“In general the consignor with whom the contract of shipment is made is liable under the contract for the charges provided for therein. And this liability exists regardless of whether the consignor is the owner, and irrespective of the failure of the carrier to collect freight from the consignee. In general also the owner of the goods for whose benefit and under whose direction they are shipped is liable for the freight. As the carrier is in general entitled to freight from the consignee as a condition of delivering the goods, the consignee who actually receives the goods is liable for freight, although it may not have been exacted before delivery.”
In 2 Hutchinson on Carriers, 3d ed., § 810, it is said:
“But the remedy against the consignee is not exclusive, although he may be the owner of the goods ... So far as the carrier is concerned, the consignee will be considered as merely the agent of the shipper to pay the freight, and if he fails to pay it the party who has reposed the confidence must take the consequences of the breach of duty. It will alter none of the rights of the carrier, to whom the shipper became bound for the freight as soon as the goods were delivered for carriage, unless the carrier has entered into a new contract with the consignee, by which he may forfeit his right to resort to the consignor.” (See, also, Note in Ann. Cas. 1916 E, 378.)
The fourth paragraph of defendant’s answer admits that the shipment was promptly carried to destination. The loss and damage' to the trees arose after the transportation had been properly and timely accomplished. The only basis for charging the railway company for the loss and damage— as' a setoff, if such it be — rests upon its failure to notify 'the defendant shipper that the consignee had refused to accept the goods. As this is founded on the special understanding and custom between the railway company and the defendant, manifestly a discriminatory and special privilege if it existed, it is no defense at alh
We do not think it proper to decide this lawsuit on the'technical question presented as to the sufficiency of the bill of freight charges attached to plaintiff’s petition, nor on the want of a verification to defendant’s answer. The petition alleged all the pertinent facts even if no statement of account had been attached to it. The answer also pleaded all the pertinent facts and the pleaded defense to the action was insufficient in law to meet it. This requires that the judgment of the district court be reversed with instructions to sustain the demurrer to defendant’s answer, and to enter judgment on'the pleadings in favor of plaintiff. | [
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BüCHELE, J.:
This case presents an issue of grandparent visitation. The natural mother appeals the trial court’s decision order ing that the paternal grandparents would have visitation on a schedule different from the schedule she offered.
T.A. was bom on May 8, 1998. His father committed suicide on January 19, 1999. In April 1999, T.A.’s paternal grandparents filed a petition requesting reasonable visitation rights with T.A. The parties reached an agreement that the grandparents would have a visitation with T.A. every other Sunday from 7 a.m. to 7 p.m. starting in July 1999. In November 1999, the mother filed a motion to modify visitation to one Sunday from noon to 7 p.m. every 3 or 4 weeks.
In December 2000, the court ruled upon the motion to modify visitation, finding the mother was a fit parent, that substantial bonding had occurred between the grandparents and T.A., and that it was in the best interests of T.A. to continue some contact with his grandparents. The court modified the grandparents’ visitation to one Saturday a month for 8 hours.
The mother filed a timely notice of appeal on January 23, 2001. A cross-appeal was filed on February 16, 2001. This court ordered the parties to show cause why tire trial court’s decision should not be vacated and remanded for reconsideration based on the holdings in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), and Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 16 P.3d 962 (2001). This court further ordered the parties to show cause why the cross-appeal should not be dismissed for lack of jurisdiction, because the notice of cross-appeal was filed after the 20-day limitation of K.S.A. 2000 Supp. 60-2103.
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 established.
“(b) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”
Kansas Dept. of SRS v. Paillet, 270 Kan. 646, was decided shortly after the trial court’s ruling in this case. In Paillet, the Kansas Supreme Court considered Troxel, 530 U.S. 57, and held that K.S.A. 38-129, as it applied to the case, violated the mother’s due process rights under the Fourteenth Amendment to the United States Constitution. Paillet, 270 Kan. 646, Syl. ¶ 4.
The Paillets were the grandparents of S.D.S., the minor child of Danielle S., and the Paillets’ deceased son. The trial court held that visitation by the paternal grandparents would be in the child’s best interests and that a substantial relationship between the child and the grandparents had been established. This court did not agree with tire trial court that the Paillets had a substantial relationship with S.D.S. but affirmed the trial court by applying equitable principles of clean hands and estoppel. Kansas Dept. of SRS v. Paillet, 27 Kan. App. 2d 295, 3 P.3d 568 (2000).
This court’s opinion was issued on March 31, 2000. Danielle’s petition for review was filed on May 1, 2000. On June 5, 2000, the United States Supreme Court issued its opinion in Troxel, finding the Washington nonparental visitation statute “breathtakingly broad” as “any person” may petition the court for visitation at “any time” and held the statute as applied to that case unconstitutionally infringed on a fundamental parental right. 530 U.S. at 67.
In Paillet, the Kansas Supreme Court applied Troxel and determined an application of K.S.A. 38-129 to the facts conflicted with the due process requirements discussed in Troxel and reversed the judgments of the trial court and the Court of Appeals. 270 Kan. at 258-60.
Here, the mother stated the followings reasons to modify visitation:
1. The grandparents had failed to contact her when T.A. became ill while in their care and they exhibited a lack of knowledge in caring for him.
2. The mother wishes to tell T.A. about his father’s death when she feels he is ready, but the grandparents feel they should be allowed to tell T.A. about his father and the circumstances of his death.
3. The mother has completed her schooling, and the visitation was interfering in her family time with T.A.
4. The day care provider who transferred T.A. for visitation no longer wished to be in the middle of the situation, and the mother was forced to find other methods for the transfer.
5. The level of tension between the parties involved has begun to have an effect on T.A.
The grandparents made the following statements in response to the mother’s motion:
1. T.A. has had significant contact with his grandparents over the last 2 years and it would be detrimental to T.A. to reduce the amount of contact.
2. The grandparents contacted the day care provider to find out whether the mother gave T.A. children’s Tylenol when he was sick after they could not contact her.
3. The grandparents have always agreed the mother would be the one to tell T.A. about his father’s death at an appropriate time.
4. The grandparents have always been agreeable to rescheduling visitation if necessary.
5. The mother has had no contact with the grandparents for over a year, and the only time there has been tension was when she unilaterally canceled visitation and refused to discuss rescheduling.
The trial court stated:
“First of all, the court is going to find that [the mother] is a fit parent; two, that there has been a substantial visitation and even bonding that has occurred between the grandparents and the minor child; three, the best interest of the child is to keep in contact with the biological grandparents; four, that the visitation will be one time a month not to exceed a period of eight hours on a Saturday.”
Unlike the facts in Paillet, where the undisputed evidence was there was no relationship between the child and her paternal grandparents, the trial court here found that T.A. and his grandparents had developed a relationship. In Paillet, the trial court did not consider the mother’s fitness as a parent, presumed or proved, whereas in this case the trial court specifically found the mother was a fit parent. The Paillet court did not find K.S.A. 38-129 to be unconstitutional on its face but only in its application in the facts of the case:
“Application of K.S.A. 38-129(a) in Santaniello [v. Santaniello, 18 Kan. App. 2d 112, 850 P.2d 269 (1992)] basically conforms to the due process requirements discussed in Troxel [v. Granville, 530 U.S. 57], The decisional framework of Santaniello conforms with Troxel’s ‘traditional presumption that a fit parent will act in the best interest of his or her child.’ 530 U.S. at 69. It places the burden of proof squarely on the party seeking visitation rights to show that visitation would be in the child’s best interests. Application of K.S.A. 38-129(a) in the present case conflicts with the due process requirements discussed in Troxel. The trial court made no presumption, as required by Troxel, that a fit parent will act in the best interests of his or her child. In this case, the operative presumption seems to have been that a fit parent would not have denied visitation, which justified the trial court’s substituting its judgment in determining the child’s best interests.
“As Justice O’Conner observed in Troxel, the practical effect of such a presumption would be to allow the trial court to overturn any decision made by a fit custodial parent based solely on the judge’s finding it would be in the child’s best interests.” 270 Kan. at 658-59.
The mother argues she is a fit parent and her decisions regarding the care, custody, and control of her child should not be substituted by the decisions of the State. She further argues any application of K.S.A. 38-129 as to a fit parent would infringe on the parent’s due process right because the trial court would be substituting its decision for that of the parent. We find that Troxel and Paillet do not establish such a bright line rule. There is a fundamental presumption that a fit parent will act in the best interests of his or her child in determining visitation under K.S.A. 38-129 and that presumption must be given “special weight.” 270 Kan. 646, Syl. ¶ 7. But a parent’s determination is not always absolute; otherwise the parent could arbitrarily deny grandparent visitation without the grandparents having any recourse.
In granting grandparent visitation, K.S.A. 38-129 requires a finding of both the best interests of the child and that a substantial relationship has been established between the child and the grandparents. The burden of proof is upon the grandparents to prove these elements. The trial court must make both of these findings before grandparent visitation may be granted. Santaniello v. Santaniello, 18 Kan. App. 2d 112, 114-15, 850 P.2d 269 (1992). But, the trial court’s analysis must not end there. Third party visitation is a creature of statute and in derogation of a parent’s constitutional right to direct the up bringing of his or her children. Third party visitation statutes must, therefore, be strictly construed. A constitutional application of K.S.A. 38-129 requires the trial court to give material weight and deference to the position of a fit parent. Paillet, 270 Kan. at 658-59.
The trial court should presume that a fit parent is acting in the best interests of the child and not substitute its judgment for the parentis, absent a finding of unreasonableness. Here, the mother proposed visitation on Sundays from noon to 7 p.m. every 3 or 4 weeks. The court ordered visitation one Saturday per month for 8 hours. This does not appear to us to be a significant difference. The trial court did not make findings in sufficient detail to enable this panel to determine why the mother’s proposed visitation schedule was not adopted. Absent findings of unreasonableness, a trial court should adopt the grandparent visitation plan proposed by a fit parent.
The mother filed a timely notice of appeal on January 23, 2001. A cross-appeal by the grandparents was not filed until February 16, 2001, the 24th day from the filing of notice of appeal. Notice of cross-appeal must be filed within 20 days after notice of appeal has been served and filed. K.S.A. 2000 Supp. 60-2103(h). Appellees must cross-appeal adverse rulings to obtain appellate review of those issues. Chavez v. Markham, 19 Kan. App. 2d 702, Syl. ¶ 4, 875 P.2d 997 (1994), aff'd 256 Kan. 859, 889 P.2d 122 (1995).
The grandparents acknowledge their notice was untimely but claim the Court of Appeals has jurisdiction based on the fundamental fairness exception in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), and In re T.M.C., 26 Kan. App. 2d 297, 299, 988 P.2d 241 (1999).
The general rule is that appellate courts do not have jurisdiction to entertain an appeal unless a notice of appeal is filed within the statutory period. However, in the interest of fundamental fairness, the Ortiz court recognized an exception to the general rule where a criminal defendant either was not informed of his or her right to appeal or was not furnished an attorney to perfect an appeal, or was furnished an attorney who failed to perfect an appeal. 230 Kan. at 736. T.M.C. extended the fundamental fairness exception to civil proceedings, where a natural mother appealed from the order ter minating her parental rights. 26 Kan. App. 2d 297. The Court of Appeals stated that because a parent has a constitutional right to counsel in order to afford fairness and impartiality in termination proceedings under the statutes, it was proper to apply the fundamental fairness exception to an untimely appeal from a termination order. 26 Kan. App. 2d at 299.
Here, the grandparents argue they were not informed of their right to cross-appeal. There is no constitutional right of grandparents to counsel or to effective counsel in visitation rights proceedings. Therefore, the fundamental fairness exception found in Ortiz does not apply to the present case and the cross-appeal is dismissed.
This case is reversed and remanded for further proceedings in accordance with this opinion.
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Buchele, J.:
This case involves an uninsured motorist claim. Stephanie Shocldey Knuth settled her claim with the tortfeasor’s liability carrier for the $50,000 policy limit, then made a $50,000 claim against her carrier, State Farm Mutual Automobile Insurance Company (State Farm). State Farm denied Knuth’s claim. The case proceeded to trial, and the trial court found Knuth’s total damages to be $62,785.94 and entered judgment for her in the amount of $12,785.95, which represented the excess over the $50,000 she had collected from the tortfeasor.
Knuth appeals the trial court’s refusal to grant her attorney fees under K.S.A. 40-256 against State Farm. She contends State
Farm’s refusal to cover her damages was made without just cause or excuse. We disagree and affirm.
The trial court scheduled a hearing on Knuth’s motion for attorney fees. In support of the motion, Knuth stated the evidence would show that as of the date of refusal of coverage, State Farm made no investigation of any land concerning the medical nature of her injuries. Without taking testimony, the court denied Knuth’s motion for attorney fees. The court found that attorney fees were not recoverable because the denial of Knuth’s claim was not in bad faith. Knuth then made an evidentiary proffer that the State Farm claims superintendent, Kevrick Wilson, would testify that he had not educated himself as to her condition, had not talked to her treating physicians, had not sent her claim out for review, and had not sent her for an independent medical examination. State Farm objected to the proffer on grounds that it was inaccurate and contained argumentative conclusions of counsel. Knuth did not request the court to allow her to call Wilson, who was present at the hearing. The trial court overruled the objection and the proceedings were terminated.
We review the trial court’s decision regarding attorney fees based upon the abuse of discretion standard. DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, Syl. ¶ 8, 661 P.2d 812 (1983).
Whether there was just cause or excuse for an insurance carrier to refuse payment of a claim and, therefore, justification for denial of attorney fees is a matter within the trial court’s sound discretion. See Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134 (1974). The issue is primarily one of fact to be determined by the trial court on the basis of the facts and circumstances of each case. 215 Kan. 598-99. Judicial discretion is abused only when the action is arbitraiy or unreasonable. See Saucedo v. Winger, 252 Kan. 718, 729-31, 850 P.2d 908 (1993).
The judge who ruled on the motion for attorney fees was the same judge who tried the case and awarded Knuth judgment for $62,785.94 and, therefore, was familiar with the facts and circumstances of the accident and Knuth’s claim.
In his deposition, Wilson testified that the State Farm claim file included the accident report, photographs of Knuth’s vehicle, and Knuth’s statements. State Farm, under Wilson’s supervision, handled the personal injury protection (PIP) claim. The PIP file contained Knuth’s medial records and bills for her injuries to her knee, back, and neck.
State Farm generated a BI index on Knuth’s prior claims against insurance companies for her previous and subsequent accidents and injuries. The result showed that Knuth had made a claim for a March 11, 1994, accident in which she injured her back, neck, right knee, and right arm, and a claim made for a January 18,1997, accident in which she injured her knee when hit by a shopping cart at Sam’s Club.
Wilson testified that he had also reviewed Knuth’s settlement brochure and the attachments, which included a set of her medical records. These records showed that Knuth had a history of kneecap dislocations going back to the time she was a junior in high school. The records also showed that on July 14, 1995, she had dislocated her kneecap when she hit her knee on a chair.
At the time it denied Knuth’s claim for uninsured motorist benefits, State Farm knew that: (1) Knuth had already been paid $50,000 by the tortfeasor’s insurance carrier; (2) Knuth had a history of knee problems and there was a factual question whether her current problems were causally connected to the May 26,1995 accident; (3) the balance of Knuth’s claim was to soft tissue injury to her neck and shoulders, which presents a factual question as to the value. State Farm had referred its file to experienced defense counsel for review, who advised that the claim for uninsured motorist benefits should be denied.
An insurance company’s denial of liability is not without just cause or excuse where there is a good faith legal or factual controversy. Davis v. Prudential Prop. & Cas. Ins. Co., 985 F. Supp. 1251 (D. Kan. 1997). In this regard, an insurance company has a duty to investigate a matter in good faith. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565, 470 P.2d 756 (1970).
Under the facts of this case, it cannot be said that the trial court abused its discretion in denying Knuth’s claim for attorney fees. The record supports the trial court’s finding that State Farm made an adequate investigation of Knuth’s claim. Although Knuth suggests that State Farm should have expanded the scope of its investigation beyond its claim file in order to conduct a good faith investigation, such was not required because State Farm could adequately investigate the claim based on the file. Moreover, it was not an abuse of the trial court’s discretion to determine that State Farm did not deny Knuth’s claim in bad faith. There were bona fide questions as to whether Knuth’s knee injury was causally related to the May 26, 1995, accident. Moreover, there were also questions as to the nature and extent of her soft tissue injuries and damages, in addition to the monetary value of those claims. The verdict in this case was not significantly greater than the $50,000 that had already been paid. We find that the trial court did not err in denying Knuth’s motion for attorney fees.
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Wahl, J.:
Nicholas D. Cox was convicted of felony criminal damage to property and ordered to pay restitution as a condition of probation. He appeals the restitution order.
Cox entered a plea of guilty to criminal damage to property, a severity level 9 felony. The property was owned by Floyd Van Loenen. As a part of the plea agreement, the State dismissed two counts of arson, both severity level 7 felonies, and one count of misdemeanor theft. Cox also agreed to pay restitution in the amount of $200 to George D. Whisman for the damage to his pasture and trees that was caused by the fire started by Cox and his companion. Under the Kansas Sentencing Guidelines Act (KSGA), Cox’s presumptive sentence was probation.
The trial court began sentencing after accepting Cox’s plea when the State told the court the amount of restitution for Van Loenen’s damages was not completed. The court granted Cox probation for a 12-month period with an underlying prison term of 6 months and ordered Cox to pay restitution to Van Loenen and Whisman. If the parties could not agree upon an amount of restitution, a hearing would be set.
At the restitution hearing, the trial court ordered Cox to pay the following restitution amounts to Van Loenen jointly and severally with the codefendant:
Tractor (fair market value) $ 8,750.00
Lost work 1,810.00
Miscellaneous expenses 420.65
Van Loenen’s private attorney fee 700.00
$11,680.65
The trial court also ordered Cox to pay interest on the restitution amount at the statutory rate of 10% per annum. Cox was ordered to pay $200 per month until the restitution was paid in full. Cox appeals from the restitution order.
On appeal, Cox challenges only Van Loenen’s private attorney fee included in the restitution order. He maintains the trial court lacked authority to impose restitution for tire fee. The remaining portions of the restitution order are deemed abandoned on appeal. An issue that was addressed to the trial court but not briefed on appeal is deemed abandoned. State v. Patterson, 262 Kan. 481, 483, 939 P.2d 909 (1997).
When sentencing a defendant to a nonprison sentence, K.S.A. 2001 Supp. 21-4610(d)(1) provides that the trial court shall order the defendant to comply with a probation condition for “reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, . . . unless the court finds compelling circumstances which would render a plan of restitution unworkable.” That statute requires the trial court to order restitution for the offense; however, the trial court has considerable discretion in determining the amount of restitution. State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999). The purpose of restitution is to compensate the victim and to deter and rehabilitate the defendant. Restitution imposed as a condition of probation is an option which the defendant may exercise to avoid serving a prison sentence. 266 Kan. at 1075-76.
Cox contends the attorney fee is unreasonable because the only services provided by the attorney was totaling Van Loeneris receipts. Van Loenen testified he had not been in court before and was not familiar with court procedures. He retained an attorney to get advice on what to do. At the time of the hearing, Van Loeneris attorney fee totaled $700.
The record is very limited on what services Van Loeneris attorney did provide. The district court file includes a letter written by the attorney to the defendants’ attorneys and the trial court. He stated he and Van Loenen had been to a court hearing in early October and agreed to give the final amount Van Loenen would be requesting for reimbursement. He also stated the restitution amount requested was $15,302.24 and the supporting documentation was available. The county attorney appeared at all hearings on behalf of the State. There is nothing in this record to indicate what Van Loeneris attorney did, when he did it, the time he spent doing it, or his hourly fee for doing it. There is no finding by the court that the fee was reasonable or necessary. It appears Van Loenen retained the attorney to determine and document Van Loeneris damages.
Cox argues the legal expenses incurred by Van Loenen to determine his damages are analogous to investigation costs incurred by a governmental entity, which are not recoverable as restitution under K.S.A. 2001 Supp. 21-4610(d)(1). As authority, he cites State v. Rother, 23 Kan. App. 2d 443, 931 P.2d 1268, rev. denied 261 Kan. 1088 (1997), and State v. Jones, 11 Kan. App. 2d 428, 724 P.2d 146 (1986).
In Jones, the State requested restitution for the expenses it incurred in capturing the defendant after he had escaped. The court held that K.S.A. 21-4610(4)(a) (Ensley 1981) did not authorize restitution for the State’s expenses in recapturing prisoners. 11 Kan. App. 2d at 430-31. The Rother court referred to the holding in Jones, but held the trial court had authority under K.S.A. 28-172a(d) to order the defendant to pay as costs the State’s expert witness fees. 23 Kan. App. 2d at 444.
Based upon the record, Van Loenen’s attorney did not act as prosecutor, assistant prosecutor, or special prosecutor, and the State’s attorney did not relinquish his prosecutorial duties to Van Loenen’s attorney. The attorney was hired by Van Loenen to act as his privately retained attorney and maintained his allegiance to Van Loenen and not the State. The attorney fee was an expense incurred by Van Loenen and not the State.
Certainly, Van Loenen was entitled to retain private counsel if he so desired. We are left to wonder why he did not go to the county attorney, who had to be cognizant of the amount of Van Loenen’s damages in order to file the case. It has always been the duty of the county attorney as part of his prosecutorial duties to compile a victim’s losses in order to advise the court on matters of restitution. To take this process from the county attorney impinges upon the independence of the prosecutor and opens the door to the possibility of considerable abuse. The county attorney acts on behalf of the State. Private counsel acts on behalf of his client. Van Loenen was not a party in the criminal case and his attorney was not representing a party in the criminal case. Van Loenen sought independent legal advice on what damages he could recover and how to recover those damages. Van Loenen’s attorney fee was incurred after Cox’s criminal acts, but not as a direct result of those acts.
We are aware that another panel of this court considered this same issue in the appeal of Cox’s codefendant. State v. Hunziker, 30 Kan. App. 2d 279, 41 P.3d 880 (No. 86,861 filed Feb. 22,2002). That panel held: “Van Loenen’s retaining of an attorney to determine and to document Van Loenen’s damages was a reasonable and logical result of Hunziker’s criminal conduct.” 30 Kan. App. 2d at 286. That panel allowed Van Loenen’s private attorney fee as restitution. With due respect for the reasoning of our colleagues, we have reached a different conclusion.
In Kansas, restitution orders for a victim’s damages are dependent upon the causal link between the victim’s damages and the defendant’s unlawful conduct. State v. Beechum, 251 Kan. 194, 202-03, 833 P.2d 988 (1992) (causal connection existed between defendant’s murdering his ex-wife and the father’s lost wages and airfare expenses he incurred to accompany the victim’s son to New York to live with him); State v. Wells, 18 Kan. App. 2d 735, 736-37, 861 P.2d 828 (1993) (causal connection' existed between victim’s medical expenses and the defendant’s battery when he acted in concert with others); State v. Hargis, 5 Kan. App. 2d 608, 611, 620 P.2d 1181 (1980), rev. denied 229 Kan. 671 (1981) (causal connection existed between defendant’s unlawful possession of a firearm and victim’s wounds when defendant’s gun discharged). Causation is the focus for restitution orders.
While Kansas appellate courts do not appear to have considered this question, it has been before the Tenth Circuit Court of Appeals and other federal courts. The federal decisions are not much help here because their decisions are controlled by the Victim and Witness Protection Act of 1982 (VWPA). 18 U.S.C. § 3663 and 3664 (2000).
The VWPA has a very specific provision regarding the damage, destruction, or loss of property for which restitution' can be ordered. Attorney fees are generally not reimbursed by the federal courts. But see U. S. v. Gibson, 92 F. Supp. 2d 562, 564 (S.D.W. Va. 2000), aff'd 238 F.3d 416 (4th Cir. 2000) (under 18 U.S.C. § 3663A(c)(1)(A)(ii) (2000), the insurance company’s attorney fee in defending against defendants’ fraudulent claim in a civil suit were held to be the direct result of defendants’ fraudulent scheme and recoverable).
Other states have determined proximate causation existed between the victim’s attorney fees and the offense and affirmed such restitution orders under their statutes. In People v. Lyon, 49 Cal. App. 4th 1521, 57 Cal. Rptr. 2d 415 (1996), the defendant was convicted of embezzlement, grand theft, and unauthorized destruction of computer data. The statute authorized “economic loss incurred as a result of defendant’s criminal conduct.” 49 Cal. App. 4th at 1525. The trial court’s restitution order included the victim’s attorney fees for obtaining a civil judgment against the defendant and recording the lis pendens against defendant’s home to prevent disposal of his equity. The court held the victim’s response to preserve the defendant’s assets and recover a portion of losses was a necessary and logical result of the defendant’s criminal conduct. The fees were properly included in the restitution order. 49 Cal. App. 4th at 1525.
Pennsylvania has two statutes authorizing restitution in a criminal case. One authorizes restitution as a part of the defendant’s sentence or as a condition of probation but only for the victim’s direct loss of property or personal injuries and does not include a victim’s private attorney fee. 18 Pa. Cons. Stat. § 1106 (2000). Under 42 Pa. Cons. Stat. § 9754 (2000), restitution is provided as a condition of probation. The restitution is aimed at rehabilitating and reintegrating the defendant into society. In Com. v. Harner, 533 Pa. 14, 617 A.2d 702 (1992), the defendant was convicted of interference with custody when she took her children to Louisiana without consulting their father who had legal custody. The father incurred expenses for private investigators, legal fees, and traveling to Louisiana to find and regain custody of the children. The trial court had ordered the defendant to pay the father’s expenses, including attorney fees, as restitution. The order was affirmed because the trial court stated the restitution was ordered to rehabilitate the defendant. 533 Pa. at 22.
In People v. Wright, 18 P.3d 816 (Colo. App. 2000), cert. denied Feb. 20, 2001, the defendant was convicted of defrauding a secured creditor. The creditor recovered the property in a replevin action. The trial court ordered the defendant to pay restitution for the creditor’s attorney fee for the replevin action. The court concluded that the creditor’s expenses in recovering his collateral were the direct result of defendant’s fraudulent act of selling the collateral; thus, the expenses were properly awarded as restitution. 18 P.3d at 818.
In Arling v. State, 559 So. 2d 1274 (Fla. Dist. App. 1990), the court held it was reasonably foreseeable to a person who deals in stolen property that his or her acts may result in a third party filing litigation to determine the rightful owner of that property. It af firmed the trial court’s decision to causally relate the store’s attorney fees to the criminal offense. 559 So. 2d at 1275-76.
In State v. Christensen, 100 Wash. App. 534, 997 P.2d 1010 (2000), the defendant, a former lawyer, was convicted of stealing from his clients. One victim recovered part of her loss by retaining an attorney and settling with the defendant’s malpractice insurance carrier. Her attorney deducted his fee from the settlement. The trial court ordered the defendant to pay a restitution amount that included the victim’s attorney fees. The court found that a restitution order must be based on a causal relationship between the offense charged and proved and the victim’s losses or damages. The court stated the victim had to pay attorney fees as part of the costs in her civil suit against the defendant in order to get any recovery. She still had not recovered all of the funds defendant stole from her. The court held the victim’s attorney fees were a direct result of defendant’s offense and affirmed the restitution order. 100 Wash. App. at 538.
In Kansas, K.S.A. 2001 Supp. 21-4603d concerns dispositions for crimes committed after the enactment of the KSGA. The trial court can grant probation if probation is the presumptive sentence under the guidelines for the offense of conviction. K.S.A. 2001 Supp. 21-4603d(a)(3). In addition to or in lieu of other probation conditions, the trial court “shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant’s crime . . . .” K.S.A. 2001 Supp. 21-4603d(b)(1).
In State v. Bausch, 29 Kan. App. 2d 649, 29 P.3d 989, rev. denied 272 Kan. 1420 (2001), the defendant was convicted of felony and misdemeanor theft and unlawful use of a financial card. The law enforcement officials told the victim an audit would be needed. In its restitution order, the trial court included the amount of the theft and the victim’s expenses for photocopying and auditing its business accounts. The court noted the victim “would not have had to incur these costs but for [defendant’s] theft.” 29 P.3d at 990. The restitution order was affirmed. 29 P.3d at 991.
Criminal cases in which private attorney fees have been allowed in restitution orders are primarily crimes such as embezzlement, theft, destruction of computer data, and fraud of funds. The loss in these types of property crimes may not be readily apparent because the defendant’s conduct involved concealing, altering, or destroying the records of the funds. The necessity to find or trace the property in a separate action was the direct result of the defendant’s criminal offense. Here, Cox did not take the property or conceal the property. Van Loenen’s attorney did not assist in finding the property or tracing the loss of the property to Cox.
To inject private counsel fees into the consideration for restitution in criminal cases will place an unnecessary burden on the trial court to determine the necessity of the fee and the reasonableness of the fee. To burden the prosecutor with private counsel advocating the victim’s cause in areas which the prosecutor has made or will make an unbiased determination is without reason.
The fee of $700 allowed as restitution accomplished nothing insofar as the prosecution of Cox was concerned. It has no causal connection to the crime of criminal damage to property. The order allowing it is reversed.
Cox argues the trial court erred because it failed to consider his financial resources and liabilities prior to determining the amount of restitution payments.
Cox told the trial court he was employed at Hays International Mailing working 35 hours a week at $7 per hour. He said he had child support obligations but he did not state the amount. The record shows Cox filed an application for a court-appointed attorney and the trial court appointed an attorney for him. Cox’s application showing his finances is not in the record on appeal, hence, the trial court had more information about Cox’s financial resources and obligations than this court has.
Cox did not argue to the trial court that its restitution plan was unworkable. When the defendant does not challenge the restitution plan before the trial court, the issue is not preserved for appeal. Wells, 18 Kan. App. 2d at 737.
A trial court may modify probation conditions after giving notice to the court services officer or the community correctional services officer and an opportunity for such officer to be heard thereon. K.S.A. 2001 Supp. 21-4610(b). State v. Schulze, 267 Kan. 749, 753, 985 P.2d 1169 (1999). A defendant also has the right to be heard and to argue the restitution plan is unworkable at any subsequent hearing for probation revocation. K.S.A. 2001 Supp. 22-3716(b); Wells, 18 Kan. App. 2d at 737. The court did not err in setting restitution payments.
Affirmed in part and reversed in part. | [
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Gernon, J.:
William B. McCollum appeals the district court’s modification of child support.
William and Leah J. Stevens McCollum, both doctors, were married in 1982, had three children together, and were divorced in 1999. William was awarded custody of the three children. Leah was ordered to pay $1,694 per month in child support. In 2001, the child support was lowered to $481 per month.
The apparent basis for the reduction in child support payments was Leah’s impending move to Norway. She had recently married a Norwegian military officer who had been attending the Command and General Staff College at Fort Leavenworth and was returning to Norway. Leah would not be able to practice medicine in Norway for about 20 months until she took a course in Norwegian, passed a proficiency examination, completed a medical course, and passed an examination based on the medical course.
William appeals the reduction in child support. We reverse.
The trial court’s determination of child support will be upheld unless an abuse of discretion occurred. See In re Marriage of Scott, 263 Kan. 638, 645, 952 P.2d 1318 (1998). Judicial discretion is abused only when no reasonable person would hold the view adopted by the district court. However, an interpretation of the Kansas Child Support Guidelines (Guidelines) is a question of law providing the appellate court with unlimited review. In re Marriage of Hoffman, 28 Kan. App. 2d 156, 158, 12 P.3d 905 (2000), rev. denied 270 Kan. 898 (2001).
William argues it was plain error for the district court not to properly interpret the Guidelines concerning imputing income. Leah contends the district court accurately followed the dictates of the Guidelines.
The relevant section of the Guidelines provides:
“1. Income may be imputed to the noncustodial parent in appropriate circumstances including the following:
b. When a parent is deliberately unemployed, although capable of working full time, employment potential and probable earnings may be based on the parent’s recent work history, occupational skills, and the prevailing job opportunities in the community.” Kansas Child Support Guidelines, Supreme Court Administrative Order No. 128 § II.E.l.b (2001 Kan. Ct. R. Annot. 99).
The district court ruled:
“Well, this is a unique situation. This family was a family that had a — ■ substantial assets and substantial interests. Seeing how the children that are involved had some considerable activities that were beyond ordinary expenses that I usually and traditionally hear about in this courtroom, so there are [sic] a lot of uniqueness to this.
“There’s a lot of assets out there still remaining even after this divorce. There’s been remarriages since this divorce, so to use real traditional factors becomes, I think, a stretch when you consider the uniqueness of this family, but looking at the [child support] worksheet I have in front of me now, I find that she’s currently unemployed, I impute minimum wage of 893 per month. He’s at 10,000.1 come up with $10,893 gross income for the parties. His share’s 92 percent and her share is 8 percent.
“At the 10,800 a month family, that’s 960 for 1 child, 1,104 for the other child for a total child support obligation of 2,064. Her 8 percent share would be 165.
“I will consider the fact that she would make one trip back to the United States to visit the children and it will cost a hundred dollars per month, so I will subtract a hundred. I don’t think it’s unreasonable to expect her to withdraw 5,000 a year for the support of her child from her accounts, so that adds 416 so I come up with a total obligation of 481 per month. The court will malee it effective July 1 [2001].”
According to 2 Elrod & Buchele, Kansas Family Law § 14.2 (1999), there are two schools of thought on how a district court should rule when a parent changes from a higher paying job to a lower paying one. If the change is to further career or personal goals and not to avoid paying child support, courts generally do not think it proper to intervene in career decisions. However, the needs of the children involved must be protected by the court. Elrod and Buchele cite two cases (one from Arkansas and one from Michigan) that indicate a parent should not “assume new responsibilities or establish a new business which takes precedence over existing responsibilities to dependents and [courts] may impute income based on earning capacity.” Kansas Family Law § 14.2, p. 356.
In the Arkansas case, the Arkansas Supreme Court remanded the case for a better determination of why the former husband left his staff attorney position with the Department of Corrections to open a not veiy lucrative solo law practice. Grady v. Grady, 295 Ark. 94, 98-99, 747 S.W.2d 77 (1988). The court stated that there might be situations in which income reductions like that suffered by the former husband were reasonable and justifiable. On the other hand, the court also noted that parents do not have free reign over decisions which affect minor children involved in a divorce. Ultimately, the lower court failed to make any findings about why the father left his former position. A remand was then ordered. 295 Ark. at 98-99.
In the Michigan case, the former wife quit her job voluntarily when she remarried for the stated reason of wanting her new marriage to be stronger. Rohloff v. Rohloff, 161 Mich. App. 766, 769, 411 N.W.2d 484 (1987). The district court based its child support award on the amount of money the mother had been receiving prior to quitting her job. The court stated that it believed the mother was not “entirely free to make financial decisions which are allegedly in the best interest of her new family, but which abrogate her responsibilities to the preexisting family.” 161 Mich. App. at 775. The^court held that when a parent voluntarily reduces or eliminates his or her income and die trial court concludes the parent can work and pay child support, there has not been an abuse of discretion if a support order is entered that is based on the parent’s ability to earn. 161 Mich. App. at 775-76.
Here, the district court found Leah to be unemployed. Given that she was unemployed voluntarily, i.e., deliberately, the district court could consider her recent work history, skills, and community job opportunities in arriving at the child support award. The trial court imputed minimum wage to Leah.
As indicated on the domestic relations affidavit filed during her divorce proceedings, Leah’s income for 2000 was $120,000. Leah had been certified as a family physician three times. In the spirit of Rohlojf, Leah should not be able to abrogate her responsibilities to her family by moving to Norway. Although there was no testimony that Leah was moving to Norway to evade child support, her voluntary relinquishment of her medical license and voluntary decision to move to Norway should not mean her child support obligation is slashed from $1,694 per month to $481 per month.
Leah no longer has a medical license in Kansas. However, it is not unreasonable to think a person with her skills and degrees could obtain some form of employment — either in Kansas or in Norway — that would pay more than the minimum wage.
Paying her original child support obligation would not be a hardship to Leah. As she testified, she has a life insurance policy valued at $87,819, $1,100,000 in an IRA account, non-IRA investments of $105,000, and cash totaling $7,000. In addition, Leah anticipated receiving about $29,000 in cash proceeds from the forthcoming sale of her home. Without touching the life insurance or the IRA, Leah has available $134,000 to pay obligations. The amount she was ordered to pay was $1,694 per month. That amount, times the 20 months before she can obtain a medical license, totals $33,880, barely more than the anticipated proceeds from the sale of her house. Even this amount does not consider investment income or other earnings.
Given Leah’s work history and medical degree, the district court erred by imputing minimum wage to lower her child support payments.
Judge Beier, writing for this court, recently stated:
“The 40-hours passage simply has no applicability to a parent who has had a recent full-time salaried position at which he or she was sometimes required to work in excess of 40 hours per week. For that parent, the district court can impute income at the earlier salaried level, as long as that level does not run afoul of factors such as ’employment potential . . . occupational skills, and the prevailing job opportunities in the community.’ Section II.E.1.b.” In re Marriage of Hoffman, 28 Kan. App. 2d at 159-60.
William also argues that the district court erred by assuming Leah would return to the United States to visit her children. The district court subtracted $100 a month from her obligation to her children. As William notes, the issue was not included in any motions or discussed at the hearing on child support modification.
The district court again erred by decreasing Leah’s payments by the expense of a hypothetical trip. At one point, Leah had expressed an interest in having the children visit her in Norway. She decided, however, to postpone any decision about this until her children vocalized a desire to visit her. Nowhere, however, does the record indicate that Leah will be traveling to the United States to visit her children once a year. Further, the record is void of any indication of how the district court arrived at its calculation that the trip would cost $1,200.
The district court erred in its application of the Guidelines concerning imputing income to Leah when it modified the child support award. We conclude that the original child support order should be restored and, without evidence and a record of any discussion regarding travel expenses or offsets, that part of the order is reversed.
Reversed and remanded with directions to reinstate the child support of $1,694 per month. | [
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Gernon, J.:
This is an appeal by the State of the dismissal of its complaint against Farrukh B. Sheikh on two drug counts, attempted manufacture of methamphetamine and possession of drug paraphernalia.
The trial court dismissed the attempt count for lack of probable cause, and the drug paraphernalia count was dismissed when the judge found, as a matter of law, that the items were not drug paraphernalia.
Sheikh was driving an automobile which was involved in an accident. He exhibited behavior at the scene which aroused the suspicions of the officers, who asked if they could search his automobile. Sheikh consented, and during the search, officers located a backpack in the trunk which contained an empty 2-liter pop bottle, a 48-inch length of clear plastic tubing, four lithium batteries, a can of starting fluid, two cans of gas-line antifreeze, a container of drain opener, a bag of rock salt, and two bottles containing the contents of 14 boxes of cold tablets (48 pills per box). Officers also found .25 caliber ammunition in Sheikh’s pocket and a handgun under the driver’s seat of the automobile.
During a custodial interview and after he was Mirandized, Sheikh stated that he was on his way to someone’s home to cook methamphetamine with that person. According to Sheikh, this was one of two men who had taught him how to make methamphetamine, and he had made methamphetamine once by himself. He described the process to the detective, and the detective believed it to be a valid recipe.
Sheikh also admitted that the items found in the backpack were his and that he had purchased them to use in making methamphetamine. He stated that he had removed the pills from their original packaging, the person he planned to cook with was going to supply the anhydrous ammonia, and they would split the finished product.
When the State appeals the dismissal of a complaint, an appellate court’s review of an order discharging the defendant for lack of probable cause is de novo. This court must view the sufficiency of the evidence as would a detached magistrate at a preliminaiy hearing by drawing inferences favorable to the prosecution in determining whether there is sufficient evidence to cause a person of ordinary prudence and caution to entertain a reasonable belief of the accused’s guilt. The evidence needs only to establish probable cause, not guilt beyond a reasonable doubt. The court’s role is not to determine the wisdom of the decision to file charges or to determine whether the possibility of a conviction is likely or remote. State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000).
The State contends that the act by Sheikh of opening 14 boxes of pseudoephedrine and removing approximately 672 pills from their bubble packs, plus the act of putting these and other items in his vehicle, along with a firearm, and driving from Lawrence to Great Bend, constitute overt acts and not just preparation.
The attempt statute, K.S.A. 21-3301, states in part:
“(a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.
“(b) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.”
In State v. Garner, 237 Kan. 227, 237-40, 699 P.2d 468 (1985), the Kansas Supreme Court discussed the crime of attempt, stating:
“The nature of the crime of attempt was discussed in depth in State v. Gobin, 216 Kan. 278, 531 P.2d 16 (1975). In Gobin, the court stated that the three essential elements for an attempt under K.S.A. 21-3301 are:
‘(1) the intent to commit the crime;
(2) an overt act toward the perpetration of tire crime, and
(3) a failure to consummate it. . . .’ p. 281.
“The opinion quotes the comment of the committee on pattern jury instructions covering attempts as follows:
“ 'A problem inherent in the law of attempts concerns the point when criminal liability attaches for the overt act. On the one hand mere acts of preparation are insufficient while, on the other, if the accused has performed the final act necessary for the completion of the crime, he could be prosecuted for the crime intended and not for an attempt. The overt act lies somewhere between these two extremes and each case must depend upon its own particular facts. . . .” PIK Criminal 55.01, p. 105.)’ p. 281.
“The court in Gobin observed that it becomes apparent from reading the Kansas cases that no definite rule as to what constitutes an overt act for the purposes of attempt can or should be laid down. Each case must depend largely on its particular facts and the inferences which the jury may reasonably draw therefrom. The problem should be approached with a desire to accomplish substantial justice. It has been said that mere preparation is not sufficient. The accused must have taken steps beyond mere preparation by doing something directly moving toward and bringing nearer the crime he intends to commit. It has been said that there must be some appreciable fragment of the crime committed.
“. . . In a general way, it may be said that preparation consists of devising or arranging the means or measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made. 21 Am. Jur. 2d, Criminal Law § 159, p. 314. The authorities are in agreement that it is difficult to formulate any precise rule as to how close the overt act must come to the attempted accomplishment of the ultimate criminal result. It has been said that while the act need not be the last proximate act to the consummation of the offense, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement toward the commission of the offense after the preparations are made.”
The question is perhaps answered best by the language in U. S. v. Savaiano, 843 F.2d 1280 (10th Cir. 1988). In finding that there was sufficient evidence of an overt act, the court in Savaiano noted:
“The purchase of a recipe might not be an attempt by itself. But, proceeding to obtain the required chemicals called for in the recipe, and actively locating and attempting to meet with a chemist for instruction, are certainly acts ‘strongly corroborative of the actors’ criminal purpose.’ They are overt acts ‘pointed directly to the commission of the crime charged.’ The realistic emphasis on what had been done, rather than dwelling on what remained to be done is consistent with our decision in United States v. Prichard, 781 F.2d 179, 181-82 (10th Cir. 1986), in which we held that reconnoitering the object of a crime together with collecting the instruments to be used in that crime, constituted an attempt.” 843 F.2d at 1297-98.
Savaiano provides sufficient basis, when applied to the facts here, to lead us to conclude that the charges of attempt should not have been dismissed. We reverse and remand with instructions that the charges be reinstated. Since the possession of drug paraphernalia charge was linked to the attempt charge, it also should be reinstated.
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Pierron, J.:
Rickey L. Hogan was convicted of aggravated burglary and robbery. He filed a motion pursuant to K.S.A. 60-1507, which the district court denied. The court also denied Hogan’s motions to reconsider and to amend his petition. Hogan appeals.
Hogan was charged with aggravated burglary, robbery, and aggravated arson, all occurring on December 6, 1997. Pursuant to a plea agreement, Hogan entered a no contest plea to aggravated burglary and robbery. In exchange, the State dismissed the aggravated arson charge, did not object to Hogan’s motion for a dispositional departure sentence, and recommended concurrent sentences in the mid-range of the sentencing guidelines grid for a prison term. Hogan told the district court he had no complaints about his counsel’s representation and he understood his right to compel witnesses to testify on his behalf.
The district court, after hearing the factual basis, accepted the plea and found Hogan guilty of both charges. It granted Hogan probation for 36 months, with an underlying prison term of 114 months. Hogan’s probation was revoked on February 11, 1999.
Hogan filed a motion pursuant to 60-1507 and alleged his plea was illegal because it violated § 10 of the Kansas Constitution Bill of Rights, banning a person from being a witness against himself or herself. Hogan contended § 10 prohibits guilty pleas and plea agreements and does not allow a person to waive his or her rights. Hogan requested his plea be set aside.
On June 29, 2000, the district court held, without making findings of fact, that the files and records of the case conclusively showed Hogan was not entitled to relief and that neither an attorney nor a hearing was necessary. It dismissed Hogan’s 60-1507 motion.
On July 18, 2000, Hogan filed a “Motion for Rehearing or Reconsideration and/or to Vacate and Set Aside, or for Relief from Judgment and Motion to Amend tire Original Petition.” He claimed the amended motion raised “new evidence and issues” not raised in the original motion and that it was not a successive motion. Hogan requested that the court reconsider its decision, vacate and set aside the order of dismissal, reinstate the original motion, and grant him leave to amend that motion so the claims made in the amended motion were included. The amended motion that was attached claimed Hogan’s attorney had failed to contact witnesses who could provide exculpatory evidence before advising him to plea. The amended motion also stated this new claim was not included in his original motion due to “over-sight, inadvertence, or excusable neglect.”
On August 28, 2000, the district court denied Plogan’s motion for reconsideration. It found the same reasons as set forth in its previous order showed that Hogan was still not entitled to relief on his 60-1507 motion. Hogan filed his notice of appeal on September 6, 2000.
While there are some serious questions as to whether Hogan’s appeal is properly before this court, we will deal with his substantive complaints.
Hogan claims the district court erred by denying his motion to withdraw his plea based upon § 10 of the Kansas Constitution Bill of Rights. He fails to provide a standard of appellate review as mandated by Supreme Court Rule 6.02(e) (2000 Kan. Ct. R. An-not. 35).
Although Hogan captioned his motion as one pursuant to 60-1507, in reality, it was a motion to set aside a plea pursuant to K.S.A. 2000 Supp. 22-3210(d).
The standard of appellate review of a district court’s decision on a motion to withdraw a plea is whether the district court abused its discretion. Wadsworth v. State, 25 Kan. App. 2d 484, 967 P.2d 337, rev. denied 266 Kan. 1116 (1998).
A district court may set aside a judgment of conviction after sentencing and permit a defendant to withdraw a guilty plea in order to correct manifest injustice. K.S.A. 2000 Supp. 22-3210(d). It should be noted that Hogan does not claim innocence as a basis for withdrawing the plea. It should also be noted that Hogan does not claim the court failed to address him personally, determine if his plea was voluntary, or inquire whether he. understood the nature of the charges and the consequences of his plea. See K.S.A. 2000 Supp. 22-3210(a)(3). Hogan’s argument is that even if the court complied with K.S.A. 2000 Supp. 22-3210(a)(3), § 10 bans his plea.
Section 10 of the Kansas Constitution Bill of Rights states, in pertinent part: “No person shall be a witness against himself."
Hogan argues no contest pleas have the same effect as guilty pleas that require an admission of guilt to the charges because the State must provide a factual basis for the charges and the defendant’s no contest plea does not contest that evidence. Thus, Hogan states, he has admitted the State could present evidence to prove the charges as pled. He believes § 10 of the Kansas Constitution Bill of Rights provides a stricter prohibition against self-incrimination than the Fifth Amendment to the United States Constitution.
The State argues this issue was decided in State v. Morris, 255 Kan. 964, 981, 880 P.2d 1244 (1994). Morris made an ambiguous request for counsel when questioned by Arizona officers on Arizona charges. The Arizona officers ceased questioning him. Morris received court-appointed counsel on the Arizona charges. Officers from Kansas arrived later and gave a Miranda warning to Morris. After waiving his rights,.Morris confessed to crimes in Kansas. Morris argued he had invoked both his Fifth and Sixth Amendment rights to counsel when questioned by the Arizona officers.
The Morris court rejected this argument because (1) Morris’ ambiguous response to the Arizona officials was not an invocation of any right to counsel and (2) the Sixth Amendment right to counsel during judicial proceedings is offense-specific and does not prevent interrogation without counsel for unrelated crimes for which counsel had been appointed. Further, the United States Supreme Court, in McNeil v. Wisconsin, 501 U.S. 171, 177-78, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), rejected combining the right to counsel in custodial interrogations under the Fifth Amendment with the right to counsel during formal judicial proceedings under the Sixth Amendment. 255 Kan. at 978-79.
Morris then argued McNeil did not apply because § 10 of the Kansas Constitution Bill of Rights combined several protections found in the Fifth and Sixth amendments into one provision. The court agreed § 10 contained both Fifth and Sixth Amendment rights. 255 Kan. at 979. Nevertheless, it refused to impose greater restrictions on police activity under the Kansas Constitution than those the United States Supreme Court holds to be necessary under the federal Constitution. 255 Kan. at 981.
“The provisions of § 10 of the Kansas Constitution Bill of Rights grant no greater protection against self-incrimination than is afforded by the Fifth Amendment to the United States Constitution. The manifest purpose of the constitutional provisions, both state and federal, is to prohibit the compelling of self-incriminating testimonial or communicative acts from a party or a witness. The liberal construction which must be placed upon constitutional provisions for the protection of personal rights requires that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation. [Citation omitted.]” 255 Kan. at 981.
Hogan contends Morris is not controlling because it was not directly addressing the issue herein. He states Morris involved only a comparison of the right to silence under the Fifth Amendment and the right of assistance of counsel under the Sixth Amendment to those rights provided by § 10 of the Kansas Constitution Bill of Rights.
Although the issue in Morris was different from the one here, the result should be the same — the Kansas Constitution is not interpreted differently because its language differs somewhat from the United States Constitution.
Hogan contends that by entering a plea of guilty or no contest, a defendant is, in essence, testifying against himself or herself. He contends § 10 bans a defendant from testifying against himself or herself. The Kansas Supreme Court has stated the following regarding a defendant’s testimony:
“In a criminal trial, a defendant has the absolute right not to be called as a witness. Fifth Amendment to the United States Constitution; Kan. Const. Bill of Rights, § 10. In Kansas this right had been made statutoiy law as well as by the enactment of K.S.A. 60-423(a) which provides:
‘Every person has in any criminal action in which he or she is an accused a privilege not to be called as a witness and not to testify.’ (Emphasis supplied.)
“If a defendant desires to testify in his or her own trial, he or she may do so. In so doing defendant waives the right not to be called as a witness in his or her trial.” State v. Nott, 234 Kan. 34, 36, 669 P.2d 660 (1983).
Hogan cites no authority that the Kansas Supreme Court would depart from Morris and Nott and interpret § 10 of the Kansas Constitution Bill of Rights differently than the United States Supreme Court has interpreted the Fifth Amendment to the United States Constitution. Under Nott, Hogan waived his right not to testify against himself under § 10 of the Kansas Constitution Bill of Rights when he elected to enter a plea of no contest.
Section 10 of the Kansas Constitution Bill of Rights does not prohibit an accused from admitting guilt to criminal charges.
The district court did not err by denying Hogan’s motion to withdraw his plea.
Hogan further argues the district court should have granted a hearing and appointed counsel on his amended 60-1507 motion because he alleged substantial issues of fact that were not contained within the record.
As the State notes, Hogan ignores the district court’s denial of his motion to vacate the judgment and instead addresses only the merits of his amended motion. The State correctly argues Hogan has abandoned the court’s denial of his motion to vacate the judg ment. “ “Where the appellant fails to brief an issue, that issue is waived or abandoned/ [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 (1999). Although not discussed by the State, this failure is fatal to the issue he now argues.
Hogan fails to realize that his amended motion was never considered or filed. The district court denied his motion to vacate the judgment and, thus, it never granted his motion to amend the original motion. The denial of a motion filed under 60-1507 is a distinctly separate concept from the denial of a motion to vacate the judgment filed under K.S.A. 60-260(b) and the denial of a motion to amend a petition or motion filed under K.S.A. 2000 Supp. 60-215(a). Because he failed to properly appeal the court’s denial of his motion to vacate the judgment, that decision is final, and there is no procedural basis for reaching the merits of the amended motion.
Additionally, although the district court did not address the amended motion, the case need not be remanded to the district court for a determination on Hogan’s claim of ineffective assistance of counsel. This court can review the records and the file of Hogan’s criminal case to decide if his motion presents triable issues of fact and substantial questions of law. See Giblin v. Giblin, 253 Kan. 240, 253, 854 P.2d 816 (1993) (if the controlling facts are based upon written evidence such as pleadings and depositions, and not the evaluation of the witnesses’ credibility, this court can upon appellate review examine and consider the evidence to determine de novo what the facts establish).
When reviewing a motion filed pursuant to 60-1507, the district court applies the following standards: A judgment of criminal conviction carries a presumption of regularity. Wright v. State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980). The movant has the burden of proof of establishing irregularity of the conviction, or the grounds for relief. Supreme Court Rule 183(g) (2000 Kan. Ct. R. Annot. 211). If the motion, files, and records conclusively show that the movant is not entitled to relief, an evidentiary hearing is not required. K.S.A. 60-1507(b). An evidentiary hearing and appointment of counsel are required if the movant is indigent and the motion presents triable issues of fact and substantial questions of law. Supreme Court Rule 183(f) and (i); 5 Kan. App. 2d at 495.
A plea of guilty may be challenged by filing a motion pursuant to 60-1507 where the movant claims the plea was not knowingly or voluntarily made due to ineffective assistance of counsel. Garrett v. State, 20 Kan. App. 2d 513, 889 P.2d 795, rev. denied 257 Kan. 1091 (1995). The movant must show “counsel’s performance fell below the standard of reasonableness and there is a reasonable probability that, but for counsel’s ineffectiveness, the results would have been different.” 20 Kan. App. 2d at 514. This court’s review of counsel’s performance must be highly deferential, eliminate the distorting effects of hindsight, reconstruct the circumstances of the challenged conduct by counsel, and evaluate that conduct from counsel’s perspective at the time of trial. There is a strong presumption that counsel’s performance was effective. 20 Kan. App. 2d at 514-15.
The State subpoenaed Shirley Jones, Ervin Phillips, Sharon Carney, and Arwena Jones for trial on June 22, 1998. This was the same day Hogan entered his plea. At the plea hearing, the State proffered its witnesses’ testimony would be as follows: Ervin Phillips was at home watching television when he heard a loud banging on his front door at about midnight. He heard a familiar voice shout for him to open the door. Phillips told the person he did not want any company. Phillips next heard someone “forcefully” kicking in his door. As Phillips began to get up, two males, Hogan and Devon Biser, entered the house and forced him to sit back down on the couch. They then pulled out the telephone cord in the living room.
Phillips recognized Hogan. For the next 5 to 10 minutes, Hogan stood over Phillips as Biser ransacked Phillips’ kitchen. Biser came back into the living room carrying several packages of meat and beer. Biser and Hogan then left. When Phillips went to the kitchen to use the other phone, he found the kitchen phone had been pulled from the wall and three fires were burning in his kitchen. Phillips claimed he did not give Biser or Hogan permission to enter his residence or take his property. Phillips was in fear of being injured when Biser and Hogan entered his residence and forced him to remain on his sofa.
The State also told the district court that Hogan had told the officers when he was arrested that he was involved in the aggravated burglary and robbeiy at Phillips’ residence. Hogan claimed Biser had lacked in the front door and had stolen groceries from Phillips’ kitchen.
The State also said Carney and Jones were interviewed by the police. Carney said she knew Hogan and Biser, and they had admitted to her that they had forced their way into Phillips’ residence and Biser had stolen meat and beer. Biser told Carney he took the meat to a dope house to exchange for drugs. Jones told the police she went to Phillips’ house looking for Carney, who had been there earlier. Jones stayed in the car while Biser and Hogan went to Phillips’ house. After 5 to 10 minutes, Biser and Hogan returned to the car with beer.
After the recitation of these facts, the district court asked Hogan’s attorney if the proffered testimony was substantially what he anticipated the witnesses’ testimony to be. He responded, “Based on my recollection of the police reports, yes, your Honor.”
In support of his motion for a dispositional departure, Hogan’s attorney argued at the sentencing hearing that Hogan had a minor or passive role in the crimes. He claimed Biser went to Phillips’ residence looking for his (Biser’s) girlfriend. Biser decided to “act out” when he did not find her there. Biser went into the areas of residence where he did not have permission to go, lit several fires in the kitchen, and took property from Phillips’ kitchen while Hogan stayed in the living room trying to calm Phillips by talking to him. Hogan’s attorney acknowledged Hogan “lookfed] bad” because he was with another who committed an act of violence. Hogan’s attorney also stated he thought Hogan’s defense would make the case a good one to take to trial, but he and Hogan decided not to take that risk after the State offered the plea agreement.
Hogan’s amended 60-1507 motion alleged he told his attorney that Jones, Phillips, and Sharon Hogan would give exculpatory evidence, specifically, that he had not participated in the burglary or robbery. He also alleged Sharon Hogan would testify that the police had coached her and Phillips into falsely implicating him in the crimes. Hogan claimed his attorney did not investigate his de fense. Hogan stated Douglas L. Adams, Jr., would be requested to bring his file and records for Hogan’s criminal case. Adams was the attorney who represented Hogan in the criminal proceedings. Hogan did not explain who Sharon Hogan was; it is assumed Sharon Carney and Sharon Hogan áre the same person.
Hogan’s motion to vacate the judgment in his original 60-1507 motion was based upon “new[ly discovered] evidence and issues.” However, Hogan alleged in the amended 60-1507 motion that he had advised his attorney of the witnesses’ exculpatory testimony prior to his plea. Thus, the evidence and issues were not new. It is clear any exculpatory testimony from these three witnesses regarding Hogan’s participation in the crime would be inconsistent with their prior statements to the police. Also, any exculpatory testimony by Phillips would contradict his sworn testimony at the prehminaiy hearing. His prehminaiy hearing testimony was consistent with the State’s proffered testimony at the plea hearing.
If Jones, Carney, Hogan, and Phillips had given exculpatory testimony at a trial, the State could have used their statements to the pohce and Phillips’ sworn testimony at the prehminaiy hearing for impeachment. The State could also have gotten Hogan’s confession to the pohce admitted into evidence. Hogan implicated himself in the crimes with his confession. He did not claim his confession was made unknowingly or involuntarily. Further, if Hogan denied his knowledge of or participation in the crimes with Biser at a trial, the State would most hkely file a motion to have part of Hogan’s criminal history admitted into evidence to prove his intent. Hogan has convictions for residential burglaiy, two counts of felony theft, attempted arson, and criminal damage to property. If any of the convictions were factually similar and admitted into evidence, Hogan’s defense could have suffered immensely.
There is no evidence the three witnesses would have testified differently than before.
If the witnesses would have testified as Hogan alleged in the amended 60-1507 motion, the State could have easily shaken their credibility and used other evidence to show Hogan’s participation. As Hogan’s attorney advised at sentencing, the decision to accept the State’s plea offer was a tactical decision because it appeared to be a lesser risk. That decision was not a deficient one. A tactical decision is not itself ineffective assistance of counsel. See Sanders v. State, 26 Kan. App. 2d 826, 829, 995 P.2d 397 (1999), rev. denied 269 Kan. 934 (2000). Hogan has also failed to show he was prejudiced by his attorneys conduct because a jury trial would have resulted in a different outcome. Rather, it is likely a jury would have convicted Hogan on all charges, including the aggravated arson that the State dismissed.
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Lewis, J.:
Andrew Kopac and Patricia Kopac were divorced in 1999. The divorce decree awarded maintenance to Patricia in the amount of $2,000 per month for the first year and $1,875 per month after the first year until July 1, 2008. Andrew filed a motion to terminate his maintenance. The trial court denied that motion and awarded attorney fees to Patricia. Andrew appeals from the decision of the trial court.
We affirm.
Andrew and Patricia had two sons. One of those sons, J.K., suffers from a rare neurological disorder that has left him wheelchair bound. Because of J.K.’s disability, Patricia has been unemployed throughout his life and remains unable to seek employment because of tire need to care for their son. We note that J.K. had reached the age of majority at the time of the divorce but remains in need of constant care.
As we understand the facts, one of the primary reasons for the divorce was that Patricia had rekindled a romance with her high school sweetheart, Allan Mazur. She rekindled that romance to the extent that she advised Andrew she was going to move to Massachusetts to be near Mazur.
The trial court ordered maintenance as set forth above. The trial court’s order provided that maintenance would terminate immediately upon any one of the following events: death of either party, remarriage of the wife, cohabitation by the wife with an unrelated adult male in a marriage-like relationship, or the date of July 1, 2008.
The basis for Andrew’s motion was that maintenance should be terminated because Patricia and Mazur were cohabitating. Patricia and J.K. currently live in a house at 13 Verdun Road in Wilmington, Massachusetts. This house is owned by Mazur, and he pays the mortgage and taxes on the residence. However, Patricia pays rent for Mazur on an apartment where he resides. Patricia also pays for the utilities at the home in which she and J.K. reside.
Patricia insists she is not cohabitating with Mazur. She testified she has no joint bank accounts with him, and they have no credit cards together. Her income tax is filed as “single, head of household.” She keeps a small life insurance policy with Mazur listed as beneficiary, explaining it would give Mazur enough money to bury her if she predeceases him.
Patricia went on to testify that she is not living with Mazur, is not married to him, and has no intention of getting married. She admits that Mazur has spent the night at her home between 8 and 20 times since she moved to Massachusetts. Andrew testified that he calls J.K. every Sunday and sometimes Mazur answers the phone.
The trial court, in denying Andrew’s motion, noted there had been some evidence presented to support Andrew’s theoiy of cohabitation, but ultimately the trial court held Andrew had failed to establish his burden of proof in showing cohabitation. The court reasoned that the rationale for terminating maintenance upon cohabitation is that the ex-spouse’s financial support had been replaced by the lover’s financial support. The court noted that Patricia and Mazur did not share bank accounts or living expenses.
The trial court noted that Patricia’s attorneys had created unnecessary controversy over discovery. Nevertheless, the court awarded attorney fees to Patricia. It reduced the amount of fees requested in the light of the discovery controversy and awarded Patricia $2,000 in attorney fees.
Our standard of review in a case of this nature is to examine the record and determine if there is substantial competent evidence to support the trial court’s ruling and whether the trial court has abused its discretion. In re Marriage of Bowers, 23 Kan. App. 2d 641, 643, 933 P.2d 176 (1997).
In order for us to set aside a negative finding of fact, the party challenging that finding must prove arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice because the negative finding signifies the failure of the party upon whom the burden of proof is cast to sustain it. Thomason v. Stout, 267 Kan. 234, 238, 978 P.2d 918 (1999).
In this case, the trial court clearly made a negative finding that Andrew had failed to sustain his burden of proof. Cohabitation has an unambiguous and accepted legal meaning. In order to cohabitate, two persons must live together as husband and wife and assume the marital rights, duties, and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations. In re Marriage of Wessling, 12 Kan. App. 2d 428, 432, 747 P.2d 187 (1987).
The evidence admitted by Andrew is insufficient to show cohabitation. The trial court did not abuse its discretion in entering the negative finding. The evidence shows that Patricia and Mazur had only spent 8 to 20 nights together in the year and a half Patricia had lived in Massachusetts. The parties occupied separate resi dences even though Patricia occupied a residence owned by Mazur, and she paid the rent on the apartment lived in by Mazur. The evidence does not show any sharing of household expenses or finances and in fact shows that the parties kept their finances separate. There was no holding out to the public by Patricia and Mazur that they were husband and wife, and in fact they had no plans to marry. We agree with the trial court that Andrew did not sustain his burden of proof in showing cohabitation.
Andrew objects to the award of attorney fees in Patricia’s favor. The award of attorney fees is an issue left to the sound discretion of the trial court. In reviewing it, we will not reweigh the testimony and evidence presented, nor will we assess the credibility of the witnesses. We will not set aside an attorney fee award when it is supported by substantial competent evidence. We have examined the record and find that the trial court’s award of attorney fees was supported by substantial competent evidence, and the trial court did not abuse its discretion in this regard. The trial court took into consideration that Patricia’s attorneys had made the matter more expensive and did not award the full fee they requested. However, because of the disparity and the financial situations between Andrew and Patricia, the trial court awarded a reduced amount of $2,000 for attorney fees.
We affirm the trial court’s award of attorney fees in this matter.
We also note that Patricia has filed a motion for the assessment of appellate costs and attorney fees, and we deny that request.
In summary, we hold as follows:
(1) The trial court did not abuse its discretion in denying Andrew’s motion to terminate maintenance, and that decision is affirmed.
(2) The trial court did not abuse its discretion in its award of attorney fees to Patricia at the trial court level, and that award is affirmed.
(3) Patricia’s motion seeking appellate costs and attorney fees is denied.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought upon a bond given to secure the payment of claims for labor and material employed and used in railroad construction.
The Texas Building Company entered into a contract with the Wichita Union Terminal Railway Company for the construction of parts of a union station at Wichita. A number of contracts were made by it for that purpose, and the oné involved in this proceeding was designated as contract No. 10, which covered the construction of retaining walls, subways and other concrete structures. In that contract certain parts of the work were to be done for lump-sum prices, amounting to'$67,210, while other parts of the work were to be paid for by the cubic yard or lineal foot. In the contract it was provided that alterations and changes increasing or diminishing the expense of the work might be made without invalidating the contract. It was also stipulated that approximate estimates should be made monthly, and payments made to the contractor about the 20th of each month, less ten per cent of the amount of the monthly estimate, which the railway company was authorized to retain until the performance of the contract was complete. It was also provided that the contractor should give a bond signed by a surety company for the faithful performance of the contract, and a bond was given under the statutory requirement in section 7006 of the General Statutes of 1909, to secure the payment of all persons who might perform labor or furnish material in carrying on and completing the work. A part of the work was done and payments therefor made upon a bond given by another surety company, and afterwards the defendant, The United States Fidelity & Guaranty Company, became security for the completion of the contract and the payment of the labor and material which are involved in this action. The Standard Asphalt & Rubber Company, in pursuance of an agreement with the contractor, furnished waterproofing and the labor necessary for installing it to the amount of $10,127.28. This claim was not all paid by the contractor, and the present action was brought upon the bond to recover the unpaid balance, and judgment for $8432.28 was awarded.
On this appeal it is contended that the alterations and additions which were made involved such an increase in the cost of the work that the guaranty company is released from liability, at least for the increased cost. It is said that the cost of the work was $113,944.12, while the contract price was $67,210.50, and that while alterations and additions were provided for in the contract, such radical alterations and such large increases could not have been within the contemplation of the parties. It appears from the record, however, that the contract price was not limited to $67,210.50. That was the amount which particular parts of the work were to cost, and on which lump prices were stipulated. Other parts of the work provided for in the contract which could not be definitely ascertained until'the work was completed, were to be paid for by the foot or yard. This work was included in the contract as much as that which was to be done at lump prices, and amounted to $42,938.38, leaving only the inconsiderable sum of $5165.26 for the payment of what might be classed as additions and extras. It is readily seen that the alterations and extras are not excessive for work done under such a contract, and can not be said to be beyond the contemplation of the parties nor outside of the obligation of the guaranty company.
It is next contended that the guaranty company is released from liability; because payments were not made in the mode prescribed in the contract. It contained a provision that payments should be made upon monthly estimates about the 20th day of each month, less ten per cent of such monthly estimate, the percentage to be retained until the completion of the work. The inability of the building company to meet its obligations made a change in the manner of payments necessary to the continuation of the work by the building company. The trial court found:
“In October, 1913, it became apparent that the building company was. out of funds and would not be able to meet its pay, rolls and on October 24, 1913, an arrangement was entered into between the Building Company and the Terminal Company by which the National Bank of Commerce of Wichita, advanced each' week to the Building Company an amount sufficient to meet the pay rolls and some few other items upon the assurance from the Terminal Company that the Bank would be protected by payment to it of such sums as would be due the Building Company as the work progressed to completion.”
This arrangement continued from October, 1913, till the work was completed in April, 1914, the bank taking care of the payroll, and also paying some items for material and freight charges and interest on money advanced, as well as an attorney fee of $100 on a liability claim under the contract. The trial court found that the change in the mode of payment was made to avoid delay and an increase of expense and damages that would have necessarily accrued if there had been a forfeiture or abandonment of the work by the contractor for lack of funds. With the assistance of the bank secured by the guaranty of the railway company the building company was enabled to finish the work. The arrangement was made and carried out in good faith and resulted in no wrong or injury to the guaranty company. As will be seen, no substantial modification in the contract was made. It was not abandoned by the contractor nor was it assigned or taken over, by the railway company, but it was performed and completed by the building company through the assistance rendered by the bank at the instance and upon the security of the railway company. While an employee of the railway company supervised the payments that were made by the bank, to the extent of seeing that the funds provided for went to the payment of labor performed and material used on the work, it was all done in carry ing out and completing the contract of the building company. The deviations from the provisions of the contract as to the manner of making payments related to matters intended mainly for the protection of the railway company, and as they did not result in injury to the guaranty company, they did not opérate to release that company from liability. It is essentially an insurance company and the ordinary rules applicable to sureties do not apply. (Hull v. Bonding Co., 86 Kan. 342, 120 Pac. 544; Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563.)
In regard to the stipulation for the retention of ten per cent of the monthly estimates it may be said that the testimony shows that $5604 of the amount retained was paid out while another surety company was responsible for the performance of the contract and before the defendant guaranty company became surety for the contractor. The other surety company consented that payments of the retained funds might be made. The defendant company refused consent to the payment of the retained funds upon the alleged ground that the amounts due from the railway company were sufficient to meet the obligations of the building company. The defendant company calls attention to The Y. M. C. A. v. Ritter, 90 Kan. 332, 133 Pac. 894, and to another decision in the same case (92 Kan. 467, 140 Pac. 892), as an authority that the failure to retain the percentage of the estimates constituted a breach of the contract. In that, case the controversy was between the obligee of the bond and the surety, and it was determined that the failure to retain the prescribed percentage of the estimate was a breach of the condition of the bond; but even as between them, it was held it would not operate to relieve the surety company from liability unless the latter suffered some injury from the failure, and that in any event the company could defend against the liability only to the extent that it had-been injured. Here the trial court found upon sufficient testimony that the guaranty company had suffered no injury. (Republic County v. Guaranty Co., 96 Kan. 255, 258, 150 Pac. 590.)
Besides, the controversy here is between those who furnished labor and material and the guaranty company, upon a statutory bond expressly given for the protection of laborers and materialmen and upon which they are authorized to sue, regardless of what action may be taken by the obligee in the bond. (Gen. Stat. 1909, §§ 7006, 7007.) The bond serves the double purpose of securing the performance of the contract and the payment of claims for labor and material employed in the work. Laborers and materialmen have rights under this statutory bond independent of the obligee. The bond is required by the legislature for the benefit of laborers and those who furnish material for railroad construction, and no agreement between the railway company and the contractor or between him and the guaranty company can affect the rights of laborers and materialmen to recover upon the bond given for their protection. Modifications of the contract or failures -to observe some of its provisions, which might be good defenses as between the guaranty company and the obligee in the bond, will not relieve the guaranty company from liability upon the bond to laborers and materialmen.
In Griffith v. Stucker, 91 Kan. 47, 136 Pac. 937, it was held that a statutory bond given in a contract for a public improvement between a city and a contractor was intended for the protection of laborers and materialmen who contributed to the work, and that even subcontractors, laborers and material-men might resort to the bond for the satisfaction of their claims. It was held that the bond was given pursuant to a statutory duty for the protection of laborers and materialmen, and that that statute was analogous to the one enacted to protect laborers and others who aid in the construction of railroads, which is the one under which the bond in this case was given.
In Surety Co. v. Lime Co., 76 Kan. 914, 92 Pac. 1111, the stipulations between the city and the contractor were such as to render the contract absolutely void, but it was decided that the illegal agreements of these parties did not prevent the lime company which innocently furnished material for the work from recovering from the surety company for the material sold on the security of the bond.- In that bond, as here, the surety agreed to pay all claims for labor and material.
In an Iowa case, a contractor gave a surety bond for the faithful performance of a building contract and also to pay all claims for labor and material furnished for the work. There was a contention that the surety was released from liability because the owner had not observed the provisions of the contract in several particulars. It was held that however the failure of the owner might affect his rights against the surety company it could not release the company from liability for the material used in the building. It was said:
“Even if the surety should be held released, on this account, as to the owner, it would not follow that it is also released as to the claims of the ■ subcontractors. The bond being given for the benefit of the latter as well as the former, their right of action can not be affected by an act for which they are in no manner responsible. Their right is not derived from, nor held under, the owner of the building, but is an independent right, of which they are not to be deprived save by their own act or default,” (Lumber Co. v. Peterson & Sampson, 124 Iowa, 599, 615.)
In Indiana a statute was enacted which is substantially similar to that which was under consideration in Griffith v. Stucker, supra, and the court, after referring to the loss often sustained by laborers and materialmen through the failure of irresponsible contractors, said:
“To remedy this evil the statute was passed requiring such contractors to give a good and sufficient bond securing them in the payment for such labor and material. The bond is required for their benefit and security. To permit the contractor and the board of commissioners, by any act of theirs, without the consent of such laborers or materialmen, to destroy such security would be the grossest injustice.” (Conn et al. v. The State, ex rel. Stutsman, 125 Ind. 514, 519.)
In Dewey et al. v. The State, ex rel. McCollum et al., 91 Ind. 173, it was held that a surety bond like the one in question was intended to accomplish two things:
“1. The faithful performance and execution of the work [by the contractor] ; and 2, the prompt payment by the contractor of all debts incurred by him in the prosecution of the work, including labor, materials furnished, and for boarding the laborers thereon. As to the second of these purposes, for any breach thereof by the contractor, the right of action is in the laborer, the materialman, or the pers'on boarding the laborers, and can not be defeated by any act done, or omitted to be done, by the county board.” (Syl. ¶ 3.)
It was expressly held in U. S. Fidelity, etc., Co. v. American Blower Co., 41 Ind. App. 620, that the failure of the owner or obligee in the bond to retain a percentage of the contract price until the completion of the work will not release the surety company from liability on the building contract to material-men.
A like ruling was made by the United States circuit court in an action on a statutory bond which contained the condition that the contractor should “ ‘pay for all material and labor entering into or employed in the construction of said building.’ ” (United States Fidelity & Guaranty Co. v. Omaha Bldg. & C. Co., 116 Fed. 145, syl.) The contract provided that the owner should retain a percentage of the estimates upon which payments were made as the work progressed, but this was not done. It was held that under the bond there was an obligation to the laborer and materialman which the statute required to be inserted in the bond for their protection, and that their rights were unaffected by the acts of the owner and contractor, and that they could not be defeated unless they had done something to the injury of the surety company or to the prejudice of their own rights under the bond.
Other authorities of the same import are United States v. National Surety Co., 92 Fed. 549; Chaffee v. United States Fidelity & Guaranty Co., 128 Fed. 918; Ætna Indemnity Co. v. Indianapolis, etc., Fuel Co., 178 Ind. 70; School District, ex rel. v. Livers, 147 Mo. 580, Kansas City, ex rel. v. Surety Co., 196 Mo. 281; Doll v. Crume, 41 Neb. 655; Kaufmann v. Cooper, 46 Neb. 644; King v. Murphy, 49 Neb. 670.
This rule applies to the other defenses urged by the defendant as well 'as to the failure to retain .a percentage of the monthly estimates. Whatever defenses the guaranty company might have in an action between itself and the railway company, none of the defenses advanced by it are available as against the plaintiff for the labor and material furnished by it on the faith of the bond given for the protection of those furnishing labor and material in the railroad construction.
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The opinion of the court was delivered by
Porter, J.:
The action in the court below was to set aside and cancel a deed which the plaintiffs, who are husband and wife, delivered to H. C. Snook, conveying to him a lot in Kansas City in exchange for other property. The plaintiffs claimed that in consideration for the deed Snook agreed to convey to them the title to certain real estate in Oklahoma; that the deed he delivered to them conveyed no title to the Oklahoma land, as he well knew, and that they received no consideration for their deed; that afterwards defendant Honnell filed for record the deed they had executed to Snook, but with Honnell’s name written therein as grantee instead of the name of Snook, and that subsequently Honnell. conveyed the property described therein to the other defendants. Plaintiffs offered to quitclaim to Snook any interest they might have acquired in the Oklahoma land and asked for cancellation of their deed • on the ground of fraud.
Defendant Honnell filed a separate answer containing a general denial and alleging that he had no knowledge concerning the transaction in relation to the land in Oklahoma, and further alleging an oral agreement between plaintiffs and Snook that their deed should be executed and delivered in blank as to the grantee, with power and authority in Snook to fill in the name of any grantee to whom he might desire to transfer the property, and that when the plaintiff’s deed was tendered to Snook with the latter’s name as grantee therein, plaintiff C. L. McQlung, acting for himself and wife, agreed that Snook’s name might be stricken out in order to make the deed conform to the agreement.
The answer denied notice either of the fraud alleged against Snook or that plaintiffs, had or claimed any interest in the property. The material facts found by the trial court are in substance these: The deed in question was delivered December 20, 1913; the trade was made in accordance with a contract between the plaintiffs and Snook, in which C. L. Me- Clung acted for himself and his wife, and J. P. Johnson acted as the agent of Shook. There was an oral agreement that Snook was to deliver to the McClungs a deed from a third party conveying the Oklahoma land, with the name of the grantee left blank, and was to receive from them a deed to the Kansas City property which was to be in blank as to the grantee. When the parties met to deliver the deeds C. L. McClung appeared for his wife, in whom the title to the property in Kansas City stood, and J. P. Johnson represented Snook, who was not present. Johnson for Snook tendered to McClung a deed to the Oklahoma property without the name of any grantee therein, which McClung accepted, and McClung tendered to Johnson for Snook a deed from the plaintiffs to the Kansas City property with , the name of H. C. Snook, written in as grantee. When Johnson objected to the name of Snook as grantee, and called attention to the prior agreement, McClung assented and thereupon delivered the deed with the understanding that Johnson was to erase the name of Snook as grantee and insert another grantee therein, and C. L. McClung was duly authorized to act for his wife. Subsequently defendants Honnell and Snook made an exchange of properties and Snook delivered to Honnell the McClung deed after Johnson had erased the name of Snook as grantee and the name of Honnell had been inserted in its place. The court found that at the time Honnell accepted the McClung deed from Snook he had no knowledge of any failure of consideration, no knowledge of any fraud or claim thereof, and dealt with Snook in entire good faith, paying full value for the lot conveyed to him; that the other defendants had no knowledge of any failure of consideration or any claim of fraud, and they purchased the lot from Honnell and paid full value therefor. The exchange of properties between plaintiffs and Snook occurred December 20, 1913; four days later McClung recorded the Oklahoma deed, and made no claim of fraud against any of the defendants until April 30, 1914, when this action was brought. The property was not conveyed by Honnell to defendants Haase and Haase until March 4, 1914. The court further found that the plaintiffs acquired good title to ten acres of land in Oklahoma, but did not acquire any title to thirty acres of the tract they were to receive, and that when McClung and Snook exchanged'their deeds on December 20, 1913, nothing remained to be done by either, and that the exchange of deeds was intended to be in full satisfaction of the written and verbal contracts for the exchange of properties. As conclusions of law the court found that the facts were not sufficient to warrant a rescission of the contract of exchange or the cancellation of the plaintiff’s deed, and rendered judgment against the plaintiffs for costs.
The plaintiffs rely upon paragraph 5 of the syllabus of the original opinion in Ayres v. Probasco, 14 Kan. 175, to sustain their contention that the authority of an agent to make a change in a deed before delivering it is void unless in writing. Mr. Justice Brewer dissented (p. 191) from the statement of law declared in that paragraph of the syllabus and on>a rehearing of the case (p. 192) the court held the paragraph and corresponding parts of the opinion to be dictum. (See comment thereon in Bank v. Fleming, 63 Kan. 139, 143, 65 Pac. 213.) The facts in the Ayres case are quite different from the facts presented here. The mortgage in that case was blank except for the signatures and acknowledgment of the husband and wife. It was afterwards filled in as to grantee, description of land and consideration, contrary to the wife’s intention. Here the alteration in the instrument, 'instead of being contrary to the intention of the parties, was in strict compliance with their original agreement. The deed with Honnell’s name as grantee was recorded four days afterward; plaintiffs had notice of its contents from the record and made no objection until four months later.
Some importance is sought to be attached to the fact that the answer alleges that C. L. McClung “was thereunto duly authorized, and then and there consented orally that defendant Snook might erase his name as grantee and fill in the name of any person,” whereas the proof shows that his agent, Johnson, actually made the erasure. It was done by Johnson for Snook in the latter’s presence and the effect was the same as if Snook’s hand held the pen.
So far as the name of the grantee was concerned, the deed as finally delivered was completed in accordance with the agreement of the parties; it was duly acknowledged and entitled to record, and the plaintiffs are estopped to deny that the grantee acquired title. (Bank v. Fleming, supra.) The court’s findings are well supported by the evidence, and . its conclusions of law necessarily follow.
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