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The opinion of the court was' delivered by
Mason, J.:
Ida A. Stevens, a resident of Florida, died October 12, 1912, owning fifty shares of the capital stock of the Atchison, Topeka & Santa Fe Railway Company, which she bequeathed to her brother and sister.’ The Kansas statute which was in force at that time imposed a tax upon the succession to the property, and provided that if in that situation a domestic corporation should record a transfer of its stock by a foreign executor before the payment of the tax, it should be itself liable therefor. (Gen. Stat. 1909, § 9.278.) The tax has never been paid. On January 25, .1913, the entire statute was repealed without any substitute being provided, and without any special saving clause. (Laws 1913, ch. 330, § 1.) On February 11, 1916, the railway company recorded a transfer of the stock from the executor of the will to the legatees. The state at once brought an action against it to recover the amount of the tax. A demurrer to the petition, which stated these facts, was sustained, and the state appeals.
1. The question presented is whether the power to enforce the collection of the tax in this manner was preserved by the general saving clause of the statute, which reads:
“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.” (Gen. Stat. 1915, § 10973.)
No proceeding for the enforcement of the tax had been begun at the time the statute was repealed. If the obligation imposed upon a corporation to pay the tax where its stock is acquired by will or descent, in case it records a transfer while it remains unpaid, is regarded as a penalty, it can not be considered as one that had been incurred prior to the repeal, for it could not be in fault until the stock was presented for transfer, and this did not take place until later. Therefore if the claim sued upon exists it must be by reason'of a right which had accrued to the state, or a duty which had been imposed upon the company, prior to February 11, 1916. A present right may exist to require, as a present duty may exist to perform, an act in the future the scope of which is not exactly defined, a familiar illustration being found in the relations of the parties to an unmatured contract obligation to pay, absolutely or upon condition, a sum of money to be subsequently ascertained in a fixed manner. Here in a certain sense a right accrued to the state as early as the admission of the will to probate, to demand of the persons liable therefor the amount of the tax as it should thereafter be determined, and to enforce its collection by all the means provided by the statute, including the right to look to the. corporation to refuse, at such time as' its action should be invoked, to give effect to the transfer of the stock in accordance with the will, unless the tax had been paid, or at its option to assume the burden itself. In the same sense it may be said that at that time a corresponding duty was imposed upon the company with respect to its conduct whenever occasion to act in the matter should arise. The precise question for consideration is whether in this connection a right can be regarded as having accrued to the plaintiff, or a duty can be regarded as having been imposed upon the defendant, before an opportunity for action had been presented, and before any official determination had been made of the liability of any one.
The unqualified repeal of a statute does not affect property rights that have already vested under it. They are beyond the reach of the legislation. The field of action of a saving clause is to prevent the loss of inchoate rights and the release of imperfect obligations. (Hertz v. Woodman, 218 U. S. 205.) Legacy or succession taxes which have become due may be collected after the repeal of the statute on which they are based. (37 Cyc. 1558; Note, 8 L. R. A., n. s., 1210.) In the federal supreme court case above cited it was held (three justices dissenting) that a succession tax, although not “due and payable” when the act authorizing it was repealed, had been “imposed” and had become a “liability incurred” within the meaning of saving clauses employing those terms, at the moment the beneficiary became entitled to the immediate possession and enjoyment of the legacy. In earlier cases under somewhat similar circumstances it had been said: “It is manifest that the right does not accrue until the duty can be demanded, that is, when it [the tax] is made payable.” (Clapp v. Mason, 94 U. S. 589, 592; Mason v. Sargent, 104 U. S. 689, 693.) In the later decision the earlier ones were distinguished by reason of differences in the facts and in the statutes considered.
We think it fairly clear upon reason and authority that in the present case the right to enforce the tax against the legatees is preserved by the statute. The circumstance that at the time of the repeal they had not actually come into the possession of the property is of course' not important. The will gave them a right to it. That right might have been defeated if the estate had turned out to be insolvent. The fact of its solvency existed at the time the statute was repealed, even if no court had yet declared it, and the subsequent determination of the matter operated to confirm the title given by the will, not to create a new one. In McCoach v. Pratt, 236 U. S. 562, the refunding of a tax collected from a legatee was upheld, because of the repeal of the statute imposing it, after the testator’s death, and before the time had expired for presenting claims against the estate, and consequently before it was determined that the legacy could be paid. But that case arose under an act of congress passed prior to the time the repeal became effective, requiring the refund of such taxes “ ‘as may have been collected on contingent beneficial interests which shall not have become vested prior to’ ” that time, and providing that no tax should thereafter be assessed or imposed “ ‘in respect of any contingent beneficial interest which shall not become absolutely vested in possession or enjoyment’ ” (p. 566) prior to the date named. The decision was based on the language quoted, and was to the effect that a right under the legacy was “contingent” within the meaning of the statute, and did not become “absolutely vested in possession or enjoyment” until it was ascertained that after the payment of the debts of the estate there would be a sufficient residue to meet it. Here the amount of the tax was required to be determined by the tax commission. (Gen. Stat. 1909, §§ 9281, 9282.) The state’s right to the tax, however, can not be said to be derived from the commission’s action. That is a mere step in the collection. The right to the tax may exist although the amount has not been ascertained, just as it may exist prior to the time fixed for payment.
2. The relations between the state and the executor and legatees are obviously quite different, however, from those between the state and the defendant. The corporation has no connection with the tax except as it was made a means • (very efficient and necessary) for compelling its payment, by the section of the statute reading:
“If a foreign executor, administrator or trustee assigns or transfers any stock in any national bank located in this state or in any corporation organized under the laws of this state owned by a deceased nonresident at the date of his death and liable to a tax under the provisions of this act, the tax shall be paid to the county- treasurer of the proper county at the time of such assignment or transfer; and if it is not paid when due, such executor, administrator or trustee shall be personally liable therefor until it is paid. A bank located in this state or a corporation organized under the laws of this state which shall record a transfer of any share of its stock made by a foreign executor, administrator or trustee, or issue a new certificate for a share of its stock at the instance of a foreign executor, administrator or trustee, before all taxes imposed thereon by the provisions of this act have been paid, shall be liable for such tax in an action of contract brought by the county attorney of the prop'er county or the attorney-general in the name of the state and at the instance of either the-probate court or the tax commission.” (Gen. Stat. 1909, § 9278.)
, Where a right is preserved after the repeal of the statute creating it, ordinarily the procedure for its enforcement must also be saved in order to make its preservation effective, unless other methods for its enforcement are provided. However, when the statute under consideration was repealed the state had no right to require of the corporation any act, and the corporation owed the state no duty which was capable of performance at that time, or which there was any certainty of its ever being called on to perform. To speak of the privilege of the state to invoke the aid of the corporation in collecting the tax, should occasion ever arise, as an accrued right, or of the corporation’s obligation to respond, if it should be called upon, as a duty imposed, seems hardly within the usual and ordinary significance of the language used. The situation is not one in which much help is to be had from the authorities. Little light can be derived from decisions construing statutes preserving “rights of action,” which is a narrower term than “accrued rights,” or “accruing” rights, which is broader.
The right saved by the statute must be a right of substance rather than of mere procedure. “The statute providing rules for the construction of statutes contains no provision for the saving of a remedy or former procedure.” (Milbourne v. Kelley, 93 Kan. 753, 756, 145 Pac. 816.) A statute reducing the time within which an appeal may be taken is held in this state to apply to a judgment rendered before the change was made (Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539; Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251), although elsewhere explicit language is required to produce that effect (3 C. J, 1042; Note, 51 L. R. A., n. s., 760). The difference in the application of the rule which distinguishes between substantial and procedural rights is illustrated by the fact that in Florida a mechanic’s lien is not regarded as a “right accrued” within the meaning of that phrase in a saving clause, while here such a lien is considered as a vested right of which the claimant is not deprived even by an unqualified repeal of the statute under which it arose (Weaver v. Sells, 10 Kan. 609) — a matter as to which the decisions elsewhere are in conflict (Wilson v. Simon, 91 Md. 1) — although the lien must be enforced according to .the law in force when the proceedings are had for that purpose (Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236).
In Hewitt v. Wilcox, 42 Mass. 154, a saving clause providing that a repeal should not affect “any act done, or any right accruing, or accrued” (p. 156), was held not to preserve a defense to an action for services rendered by an unlicensed physician át a time when the statute, which was afterwards repealed, forbade his recovery.
In Collins v. Warren, 63 Tex. 311, a provision that no remedy to which a creditor was entitled under a law should be impaired by its repeal was held not to authorize an action for the breach of a bond that occurred after the law had been repealed.
In Town of Wirt v. Board of Sup’rs, 35 N. Y. Supp. 887, the right of a town to require the county to contribute to the cost of bridges was held not to survive a statute, in effect when they were built, requiring such contribution, notwithstanding a provision that the repeal should not “ ‘affect or impair any act done or right accruing, accrued or acquired’ ” (p. 891) prior thereto.
In Cushman v. Hale, 68 Vt. 444, a statute providing that a portion of certain fines should go to the prosecutor was repealed after a conviction had been had, and while an appeal was pending. It was held that the repeal destroyed the prosecutor’s claim to any part of the fine, in spite of a saving clause similar to that last quoted from, the court saying: “It is only a right, whether accruing, accrued, acquired, or established, that is saved'. Expectations and anticipations are not saved.” (p. 458.)
In Abbott v. Minister for Lands, App. Cas. Law Rep. 1895, 425, the privy council decided that the repeal of a statute providing that a holder of land in New South Wales granted by the crown might make conditional purchases of adjoining crown land without residence otherwise required therefor, deprived such an owner of the unexercised privilege referred to, notwithstanding that “rights accrued” were saved. It was there said, in effect, that the power to take advantage of a statute might without impropriety be termed a “right,” but that it was not a “right accrued.”
The theory that any exceptional strictness is to be employed in interpreting a statute imposing a tax is of at least doubtful soundness. {The State, ex rel., v. Davis, 88 Kan. 849, 129 Pac. 1197.) The object in view is to arrive at the real intention of the legislature. The obligation sought to be enforced against the defendant is of such an unusual nature that a legislative purpose to impose it ought not to be readily inferred from doubtful language. The refusal of a domestic corporation to recognize the transfer of its stock by a foreign executor without the succession tax having been paid is not in the ordinary sense a part of the procedure for the collection of the tax. It is a duty laid upon a stranger to the transaction because it happens to be in a situation to aid the state. While the statute describes as contractual the liability which arises in case the stock is transferred without the payment of the tax, it is essentially a penalty for a failure to take advantage -of the opportunity to assist in its collection. We conclude that a purpose to hold the corporation to the performance of the service referred to after the repeal of the statute imposing the tax is not indicated with sufficient clearness to justify the court in basing a liability on its omission.
Questions have been suggested with respect to the validity of the statute, which it is unnecessary to consider in view of the conclusion reached.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover fees collected by the defendant as register of deeds. The plaintiff recovered and the defendant appeals.
The defendant took office on January 13, 1913, under a statute which fixed his compensation as follows: He was allowed to retain out of fees collected the sum of $1100, and if in any year more than that sum were collected, one-half the excess was to be paid to the county. On July 1, 1913, a statute took effect giving the defendant a salary of $1500 per year and requiring him to turn all fees collected into the general revenue fund of the county. From January 13 to July 1 the defend ant collected fees amounting to $1002, which he claims he had the right to keep.
The sum of $1100 allowed the defendant by the old law should be regarded as a yearly compensation to be augmented by one-half the excess over that sum, if any, and he should be compensated at that rate per year for the time he served prior to July 1. Assuming, in order to avoid fractions, that the defendant served six full months before the new law took effect, he could keep one-half of a year’s compensation, or $550, out of the fees collected. Deducting this sum from $1002, the amount of fees collected, would leave $452 to be divided between him and the county, or $226 to each. The court applied this rule and no complaint is made of the computation by which the amount of the judgment was obtained.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff was injured by being struck by ' some moving cars while he was crossing the defendant’s switch yard at Armstrong, a suburb of Kansas City, Kan. The switch yard consists of a maze of railroad tracks running east and west; and notwithstanding the manifest danger of crossing these tracks and the defendant’s posted sign, “Railroad property, no trespassing,” this plaintiff and many other people had been accustomed to cross these tracks going to and from their places of employment in the packing houses nearby. A path had been worn across the tracks by such travel. The public highway is a viaduct over the railroad tracks, but is somewhat more circuitous and less convenient than the “short cut” across the switch yard. One of the plaintiff’s witnesses testified that when freight cars were standing on the tracks pedestrians “would zigzag to find the openings; probably go up a car length and see an opening and get back to the pathway.”
“Q. ... A- little while ago you said when the path was obstructed with cars you would go around the cars? A. Certainly.
“Q. That is the way the people did that you saw going across there, too, was it not? A. Of course they avoided climbing the cars if possible.
“Q. If possible? How would they go if it was not possible to avoid climbing the cars? A. Then they would climb them, I suppose.
“Q. You have seen people climbing over cars, have you not? A. Yes, sir.
“Q. And seen them crawl under them? A. Yes, sir; I have seen people crawl under the cars.”
Part of the plaintiff’s own testimony is indicative of the circumstances :
“On the morning that I was hurt I walked up to track N:o. 1. Near the path there is a sign saying ‘Railroad property, no trespassing.’ I saw that sign before the accident. ...
“Q. You saw that, and it says ‘No trespassing’ across here? A. Yes, sir.
“Q. You understood by that sign that you were to stay off that property, did you not? A. That would be the meaning, I suppose.
“Q. That is what you understood by it but notwithstanding that sign that was right there in that path that leads to the track you started that morning to go across the tracks, did you? A. Yes, sir.
“Q. Now, when you crossed that track, were there any cars on any of those tracks? A. There were three cars on track 3.
“Q. Where were they with reference to this path across there? A. One of the cars projected over the pathway something like 10 or 15 feet. I would say.
“Q. About half? A. About half the length of the car.
“Q. Were there any cars on track 4? A. Directly across, there were some cars on track 4.
“Q. You do not know how many? A. No.
“Q. Where were they with reference to the path? That is, were they east or west of it? A. They stood about 3 feet to the east of the path, as I came — would be coming across.
“Q. Now, did you turn out of the path from track 3? A. I had to leave the path to get around the end of this car.
“Q. What did you do with reference to going back to the path, if anything? A. I came around the car to get back into the path, and to go direct across to my destination.
“Q. Was there anything directly in your way across the path at track 4 when you came up there? A. No, sir.
“Q. When you got on track 4, what happened? A. I started to cross the track, and as I got near the center of the track I was struck in my right side here (indicating) and knocked on my left side, with my head to the west.”
A demurrer to plaintiff’s evidence was sustained, and the case is brought here for review.
The demurrer was properly sustained. On no ground except that of willful negligence could the railroad company be held liable to this plaintiff. This court has frequently said that even a lawful- railroad crossing is itself a warning of danger. Much more is a network of railway tracks in a switch yard, congested with cars, and switch engines going to and fro, “kicking” cars hither and thither, as must be done in the making and breaking up of trains. The fact that many trespassers, like the plaintiff, had worn a path across the switch yard and had persisted in trespassing for many years, swarming around or over or under the cars when the path was blocked by freight cars, did not have the effect of establishing a lawful footway across the defendant’s switch yard. The case does not differ in principle from the precedents of this court except to make the nonliability of the railway company more than ordinarily clear. (Mason v. Mo. Pac. Rly. Co., 27 Kan. 83; Tennis v. Rapid Transit Rly. Co., 45 Kan. 503,. 25 Pac. 876; Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6; Railway Co. v. Potter, 64 Kan. 13, 22, 67 Pac. 534; Zirkle v. Raihoay Co., 67 Kan. 77, 72 Pac. 539; Railway Co. v. Withers, 69 Kan. 620, 627, 77 Pac. 542, 78 Pac. 451; Raihoay Co. v. Jenkins, 74 Kan. 487, 488, 87 Pac. 702; Railway Co. v. Wheeler, 80 Kan. 187, 101 Pac. 1001; Beech v. Railway Co., 85 Kan. 90, 116 Pac. 213; Morgan v. Railroad Co., 91 Kan. 496, 138 Pac. 575; Adams v. Railway Co., 93 Kan. 475,144 Pac. 999.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from the death of a pedestrian who was overtaken by one of the defendant’s trains on a sidewalk crossing. The plaintiff prevailed and the defendant appeals.
The accident occurred in the dusk of evening, on November 27, 1914, in the city of Melvern. The defendant’s station is reached by Emporia avenue. Emporia avenue extends from west to east, and the sidewalk on the south side of the street crosses a spur track, extends along the north side of the depot, which is east of the spur track crossing, and then crosses the main-line track east of the depot. The station grounds are below the general level of the ground to the south and west. The main-line track approaches the depot from the southwest, in a deep cut. The spur track leaves the main-line track some 350 or 400 feet from Emporia avenue, curves sharply around an embankment, and at the point of intersection with the sidewalk, crosses it from south to north.' From the intersection the sidewalk rises toward the west a distance of from 75 to 100 feet,' until it reaches the general level. If a person go down the incline toward the track, the bank on his right rises higher and higher, until at a short distance from the track it is higher than a man’s head — probably eight feet high. Along the track the bank has a slope of ten or twelve feet from the bottom to the top, and the foot of the bank is from four to six feet from the west rail. A person coming down the sidewalk in daylight can see the upper part of a caboose or an engine on the curve, but can not see flat cars until quite near the track. On the evening of the accident a work train came into the station on the main-line track, and the purpose was to stop a short distance north of Emporia avenue on the spur track. At the front of the train were three flat cars. Next came the caboose, with its red lights showing in front.* Following the caboose were a coach, two dump cars and a ditcher. The engine was at the rear. The train was about 400 feet long. The plaintiff’s husband came rapidly, down the sidewalk, hesitated a moment at a point near the track, went on, and disappeared under the front flat car, which came from behind the bank at a speed of ten miles per hour. .
The charges of negligence contained in the petition and submitted to the jury were that the train was improperly made up, because of the position of the caboose and the fact that the red lights of the caboose indicated the end of the train; that the rate of speed was excessive; that the front of the train was without a light; and that no signals of the approach of the train were given. With a general verdict for the plaintiff the jury returned the following special findings of fact:
“Q. 1. Before the said Walter Jacob Deister undertook to cross defendant’s tailway track at the time and place in question, then. — •
“Did he stop? A. Yes.
“Did he look for approaching trains? A. Yes.
“Q. 2. If you, answer the last foregoing question to the effect that said Deister stopped, looked or listened before he started across the track, then state how far from the approaching flat ears he was,—
“At the time he stopped? A. About 8 feet.
“At the time he looked? A. About 8 feet.
“At the time he listened?. A. About 8 feet.
“Q. 3. What, if anything, would have prevented Deister from hearing the approaching train in time to have avoided the collision, if he had taken the precaution to listen for the same just before he started across the track? A. Nothing.
"“Q. 4. State, the rate of speed at which the train was moving at the time of the collision with the said Deister. A. About 10 miles.
“Q. 5. What, if anything, would have prevented the said Deister from seeing the approaching train in time to have avoided the collision if he had taken the precaution to look for the same just before he started to cross the track? A. Darkness, shadow of the bank, deceptive red lights on caboose.
“Q. 6. For how far could the said Deister have seen the approaching flat cars if he had taken the pains to look for them when he got within five or six feet of the track? A. Could n’t see them for reasons given in Q. 5.
“Q. 7. How far could he have heard the approaching train if he had attentively'listened for its approach when he got within five or six feet of the track? A. About 200 feet.
“Q. 8. What effort, if any, did Deister make to avoid being struck by the cars after he saw the approaching train? A. Hurried to cross tracks to avoid way car with red lights.
“Q. 9. How far was the nearest flat car from the crossing in question when Deister first saw it approaching? A. Never saw flat'car.
“Q. 10. What could have been done that was not done by those in charge of the train in question, to avoid the collision with Deister, after it became apparent that he intended to cross the track without waiting for the train to stop? A. Display white light and sound air whistle on front end of leading flat car.
“Q. 11. With reference to any signals of the approach of the train in question, please answer the following:
“1. How far from the crossing in question was the train when the engine bell was ringing (if it was ringing at all) ? A. Leading car 200 feet from crossing.
“2. State approximately how often, if at all, the air whistle on the flat car was sounded while approaching the station before the collision. A. Air whistle was not blown.
“3. Was the automatic crossing bell ringing as the train approached Emporia Avenue where deceased was killed? A. Yes.
“Q. 12. If Deister hesitated or paused before he undertook to go across the track, then what did he do thereafter to avoid being struck by the approaching cars, if anything? A. Hurried to avoid way car with red lights.
“Q. 13. If Deister paused before attempting to cross the track, how far was he from the flat cars when he did so? A. About 8 feet.
“Q. 13% Was the whistle on the engine* blown at the signal post as the train came to Melvern? A. Yes.
“Q. 14. When Deister was 75 to 150 feet from the crossing on the sidewalk, how far off could he have seen the caboose and engine of the approaching train (if at all)? A. About 200 feet (if at all).
“Q 15. When Deister got within 8 or 9 feet of the crossing on the sidewalk, how far could he have seen the approaching flat cars to the southwest? A. Not at all.”
Motions for judgment for the defendant on the special find ings and for a new trial were overruled, and judgment was entered according to the general verdict.
The defendant argues that it was not guilty of any negligence, because the deceased was fully warned of the approach of the train. The whistle was sounded for the station. The automatic bell at the intersection of Emporia avenue and the main-line track was ringing. The engine bell was ringing when the leading car of the train was 200 feet from the sidewalk. The deceased could have heard the train for a distance of 200 feet, had he listened when within five or six feet of the track. So, it is said, he was abundantly warned.
In cases like this the purpose of a warning is to give admonition of approaching danger. -The warning should be of such character as the peculiar circumstances of the particular situation suggest, and it should be reasonably sufficient to accomplish the purpose for which it is intended. The station whistle, sounded when the train was at the outskirts of town and the deceased was somewhere about town, bore no relation to the peculiar peril incident to crossing the spur track when the deceased reached it. The automatic bell was at the mainline track beyond the depot, about 150 feet away. The engine bell was around the curve behind the bank and 600 feet away. These were little more than general warnings to a person coming down the sidewalk, like the spur track itself, the depot, and other station characteristics, that he was about to go' where railroad work was accomplished by the operation of trains, and that he might expect to encounter moving cars. The noise of the train, as it came around the curving, bank, could be heard for a distance of 200 feet, and the train and the deceased were in close proximity when the deceased went on the track. Perhaps this noise, and certainly the spur track itself, admonished the deceased that a train might be approaching on the very track he was about to cross, and to look for one. The jury finds plainly enough that he saw the train. He could not, however, see the portion of the train which made it dangerous for him to attempt to cross the track. Looking in the direction from which the train was coming he saw the caboose with its red lights. The flat cars were forty-foot cars, and there were three of them. The caboose was 120 feet away. Everybody knows what a red light indicates. Displayed at one side of a street, it indicates danger at that point, on that side of the street, and not somewhere else. Displayed on an automobile, it warns persons approaching from the rear, of the locality of the rear of the car. , Displayed on a caboose, it indicates the rear of the caboose, and it is the common mark of the rear end of an incoming or outgoing train. These are matters of common practice and common knowledge. Trains at stations go backward .as well as forward, and the deceased was fairly warned of a train 120 feet away, which might be moving toward him. Although a pedestrian should not race with a train, and assumes alb the risk should he do so, the deceased could have crossed in safety if the caboose had been the nearest car. The defendant created the situation, and the question is whether or not ordinary prudence required it to give warning that it was sending an invisible instrument of death 120 feet in advance of what appeared to be the end of the' brain. The answer is obvious.
The jury’s answer to question No. 10 is not responsive to The question. The court is satisfied the answer was returned through inadvertence and not through perverseness. By the answer the jury undertook to point out what could have been done in advance to avoid the collision, instead of what could have been done to avert it after the collision became imminent. The answer, therefore, discloses the jury’s view of what omissions constituted negligence on the part of the defendant’s employees. The air whistle should have been sounded on the curve as an.alarm, and a white light should have been displayed to disclose the proximity of the leading car and indicate its approach. As this court remarked in the case of Fike v. Railway Co. 90 Kan. 409, 415, 133 Pac. 871, where authorities were cited, it has been declared to be negligence as a matter of law to run a train over a public crossing at night without a headlight, dr if the engine is not in front, then- a light at the front of the forward car. The crossing was a public street crossing. Besides this, the evidence was sufficient to show that the defendant had reason to anticipate the presence of persons at the crossing at the time the train arrived. Assuming it to be true that the flat cars were indistinguishable in the uncertain light to persons in the situation of the deceased, the declara tion of negligence as a matter of law could be made in this case. In any event, the jury’s finding of negligence as a matter of fact is well supported. The defendant is not restricted to any particular arrangement of cars in making up its trains,' but it ought not to send a train, made up with a series of cars in front which under the circumstances can not be seen, around a curve and over a public street crossing, without giving adequate warning of the approach of the leading car.
The defendant charges the deceased with contributory negligence, as a matter of law. Assuming thé material findings of the jury to be true, the question whether or not right of recovery was defeated by contributory negligence on the part of the deceased was properly submitted to the jury for determination. The character and amount of noise made by the train were not described. The evidence does not establish that the leading flat car made such a noise that its presence was manifested although it could not be seen. Granting there was room for the inference that the flat cars were not cognizable by the deceased, and that to his faculties, fairly exercised, the caboose lights marked the end of the train, his hurried movement would have taken him safely beyond the track before the train covered a third of the distance to him.
The defendant insists that the findings of the jury relating to the ability of the deceased to see the leading flat car were not sustained by the evidence. If so, the assumptions just made can not be indulged. Whether or not the deceased was unable to see the fiat cars, and was unable to see them for the reasons given in finding number five — darkness, shadow of bank, deceptive red lights on the caboose — is a very serious question, which has given the court much concern.
By the terms “darkness” and “shadow of bank” the jury endeavored to describe light conditions which could not be definitely described by any single word or phrase, or in any except relative terms. Therefore the jury are not to be held rigidly to the literal meaning of the words used. The accident happened at 5:53 in the evening. The sun set at 4:40. The evening was cloudy and the atmosphere was smoky. But there was light enough from the after-glow of .the sunken sun that objects could be seen against it, while objects below the top of the bank, and so cut off from the background of light, could not readily be .seen. The evidence discloses that various persons in various positions saw various things at various times. From the report of their observations it might be concluded ' that at the time of the accident it was quite light, and it might be concluded that the dusky stage between light and darkness was so far advanced that the tinge of blackness strongly prevailed.
John R. Farmer testified as follows:
“When I first saw the train, I was a little south and east of the depot on a little raise on the easterly side of the tracks, and the train was coming around in that east viaduct. The engine was on the west end pushing the train ahead.- When I first saw it, the train was probably 125 or 130 feet from me. ... It was getting dark, pretty dark. You could n’t see a flat car very far. There was an embankment right west of the train. It would be difficult to see a flat car in the shadow of that, embankment from where I was — it would be pretty dark.”
The jury derived the expression “shadow of bank” from this testimony.
Frank Brandeweide was inside the depot when the train came in. He testified as follows:
“I saw the train before it stopped and I saw it stop. I was standing in the southwest window. Looking against the light in the west I could just see the top of the caboose. The embankment was west of the train. I heard the whistle up in the cut and I thought it was the motor and I went to the window and looked. I stood at the window and it backed around the curved track. I never noticed any flat cars. '
“Q. When you went out there where the train had stopped, what did you see? Go ahead and tell the jury what was going on. A. I seen a large crowd of people around there, and I finally worked around where, — it was dark where the body was laying and I couldn’t see anything. They were striking matches and I went on back; you couldn’t see who it was or anything. When I went out there to the crossing where this body was, I could not see the body because it was so dark.
“Q. Tell the jury, the best you can so they will understand, the degree of darkness, how much of the body you could see, and so on. A. Why, I could see it was a body.
“Q. Was that about all you could see? A. Yes, sir.
“Q. How far could you see a train if you were looking at it, without anything between you and it, at that time? A. Well, I don’t know.
“Q. Take a chance at it. A. Oh, I couldn’t say.
“Q. How- far was it -that you saw it, — how far was it when you were looking through the window and saw it? A. It wasn’t as far as from here across the court room.
“Q. It wasn’t? A. No, sir.
“Q. You were inside of the depot? A. Yes, sir. i ,
“Q. How much of it could you see through the window? A. I could • just see the top part of the caboose.
“Q. That is all you saw of it? A. Yes, sir.”
Charles W. Irey saw the áccident. He was on the opposite side of Emporia avenue and about half a block west of the track. He testified as follows:
“I was half a block from the track. I suppose it was from 150 to 160 feet. I was going northeast. I saw the train strike him. I did not see. the train before it got to the crossing. I saw the markers on the caboose. I did not see any part of the train until the flat cars showed up. I never saw any one on the flat cars. ... I saw the train just an instant before it struck him. You could see the caboose all the time and the engine. . . . Before the flat cars came out from behind the embankment I could not see them.
“Q. Could you see the flat cars at all? A. You could after they came out on the crossing into the street — after they came out from behind the embankment in front of you.
“Q. Before the flat cars got out from behind the embankment ahead of you, could you see them,? A. No, sir.
“Q. For what reason? A. On account of the embankment.
“Q. What about the darkness, dusk or darkness at the time of the accident? A. Well, it was dusk, dark dusk.
“Q. Suppose you were on the sidewalk within five'feet of the track, looking to the southwest, was there anything to have prevented you from seeing an engine or flat cars for three or four hundred, or five hundred, five hundred fifty or six hundred feet? A. Why, I believe so, that caboose with those tail lights bn would prevent you from seeing those flat cars.
“Q. If the flat cars were between you and the caboose? A. Yes, sir.
“Q. You said you were acquainted with the situation of the tracks and the sidewalk; now then, tell the jury whether you could see a flat car coming, from the southwest when it was ten feet from the crossing and you were six feet from the crossing, from the rail on the sidewalk. A. To my best knowledge you could not.
“Q. You could not? A. No, sir.”
Irving Colyar saw the accident. He was an important witness, intelligent, careful of what he said, candid, and fair. He was on the sidewalk on his way to the depot. The deceased passed him and went on down the incline of the sidewalk ahead of him. He testified as follows, a few words being italicized because of their importance in determining the effect of the “shadow of the bank”:
“Q. Where was this he appeared to stop or hesitate? A. Just this side of the track.
“Q. Where would you say it was with reference to the edge of the embankment? A. Well, it might have been just as he could have seen up the track — just as he got to the edge of the embankment. I could not say definitely, I was too far off to tell that.
“Q. Did he hesitate or stop long enough to have looked down the track southward? A. He may have. It would not have taken him but "just an instant to turn his head. I did not notice whether he turned his head or not, but he must have been watching the train.
“Q. Where do you think he was with reference to the track when you saw him slow up, or stop? A. It is hard to tell. I could not see his feet or the lower part of his body, just his shoulders,_ from the waist up. It is pretty hard to tell just exactly where he was. I think he was just this side of the track a short distance.
“Q. About how far would you say, just a few feet in your judgment? A. Well, I judge it was a few feet.
“Q. I will ask you to state whether or not you saw or observed these flat ears before they came out into the street. A. Not until they shot around that bank. I saw them just as they shot out around that bank.
“Q. You mean about the time they crossed the sidewalk that you were on? A. Yes, sir.
“Q. Did you know there were any flat cars ahead of the caboose until that time? A. No, sir.
“Q. He then hesitated, as I understood you to say? A. Well, yes, sir, he hesitated just as he got to the track, the way it looked to me.
“Q. Could you see the train then? A. I could not from where I was.
“Q. You could not see the train then? A. No, sir.
“Q. Did he look toward the train? A. I could not tell whether he did or not.
“Q. Did he look like he saw the train and then tried to get across? A. I could not say whether he did or not, he seemed to hesitate, and the next instant he was on the track under the train — they seemed to meet there, and he disappeared there. That is all I seen of him.
“Q. You could not tell whether he tried to beat the train across or not? A. I judge he was watching that caboose cupola.”
This exemplification of evidence favorable to the plaintiff discloses substantial basis for every element of the fifth finding of fact. Even if the court should be of the opinion the deceased was not prevented from seeing the car which ran him down because of the things enumerated in the finding, and should be of the opinion the deceased must have seen the car in time to avoid it, it would constitute an invasion of the province of the jury so to declare. Ad questionem juris respondent judices; ad questionem facti respondent juratores. When there is evidence from which an inference in favor of the plaintiff may fairly be drawn it makes no difference that this court may be astonished that the jury drew the inference,- or may think the evidence rebutting the inference to be overwhelming.
It is said the first part of the first finding of fact is contrary to all the evidence on the subject. The witnesses who saw the accident agree that the deceased had increased his speed beyond a fast walk, and was running, when he came to a point a short distance from the track. The court is unable to find the testimony of any witness who, when framing his own- description of the conduct of the deceased, said he stopped, in the sense of ceasing from all forward ihotion. Several witnesses- said he hesitated for an instant, or hesitated a little. In the course of further examination, the attorney for the plaintiff would weave into his questions the word “stop,” as-shown in the examination of Irving Colyer, quoted above. The result was testimony which is abstracted as follows:
“When he stopped I don’t remember whether he looked at the train or not, but right at the time he was being struck he did.
“Q. Had Deister got clear out from behind the embankment when he stopped? A. Yes, sir.
“Q. When he stopped he looked to the south, or right at the train did he? A. Yes, sir.”
It is quite likely the following testimony tells what occurred:
“When he got to the intersection he hesitated a little. He didn’t stop still. He looked toward the train. '. . .
“Q. When you were interrupted awhile ago, you were saying you saw him stop and look towards the train and then — then what did you see him do, that is Deister? A. When he stopped, he didn’t exactly stop; he hesitated and then- he started running again.”
The dictionary meaning of the word “hesitate” is “to stop or pause respecting decision or action” and technically the finding is supported by the evidence. Certainly the jury can not be accused, under the circumstances, of prejudice or unfairness in returning the answer, and this being true, the strict truthfulness of the answer is not a matter of importance. The duty to stop before leaving a place of safety arises when stopping is necessary in order to make effective use of the faculties of sight and hearing. The deceased did check his speed sufficiently, and long enough, although but for a moment, to see the train. The visible part of the train was far enough away to make it safe for him to hurry across.
The plaintiff introduced in evidence, over objection, certain rules of the defendant, among which were the following:
“The engine bell must be rung on approaching every public road crossing at grade and until it is passed.
“When cars are pushed by an engine (except when shifting or making up trains in yards), a white light must be displayed on the front of the leading car by night.
“When cars are pushed by an engine (except when shifting and making up trains in yards), a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need.
“They will, in rounding all curves where the view is obscured, sound the whistle.
“Night signals ■ are to be displayed from sunset to sunrise. When weather or other conditions obscure day signals, night signals must be used in addition.” ,
The court instructed the jury as follows:
“The jury are instructed that the observance or non-observance of the rules of the defendant company as to the operation of its trains is not conclusive as to the negligence or care of the defendant company or its employes, but are only circumstances to be taken by the jury for what they may think they are worth in determining whether or not. the defendant’s employes were negligent in the operation of said train at the time in question.”
There is some division of opinion respecting the admissibility of such rules in cases of this character. The clear weight of authority, however, is that they are admissible. (Note, 8 L. R. A., n. s., 1063.)
In section 282 of volume 1 of Wigmore on Evidence the learned author states the following principle:
“The opponent’s conduct in taking precautions to prevent an apprehended injury, or to remedy one already inflicted, may sometimes indicate a consciousness of wrong, in respect either to the party’s identity as the wrongdoer or to his. culpability in doing the act.”
In the corresponding section of volume 5, the supplemental volüme, direction is given to add to the original section, as a new paragraph, the following:
“So, too, an employer’s general rule of conduct for employees may be some evidence against him, on this principle, as an admission of the standard of care required, where the act .of his employee in violation of the rule, is charged against the employer as an act of negligence.”
The case of Stevens v. Boston Elevated Railway, 184 Mass. 476, is cited in support of this text. In the Stevens case it was said:
“So a rule made by a corporation for the guidance of its servants in matters affecting the safety of others is made in the performance of a duty, by a party that is called upon to consider methods, and determine how its buisness shall be conducted. Such a rule, made known to its servants, creates a duty of obedience as between the master and the servant, and disobedience of it by the servant is negligence as between the two.' If such disobedience injuriously affects a third person, it is not to be assumed in favor of the master that the negligence was immaterial to the injured person, and that his rights were not affected by it. Rather ought it to be held an implication that there was a breach of duty towards him, as well as towards the master who prescribed the conduct that he thought necessary or desirable for protection in such cases. Against the proprietor of a business, the methods which he adopts for the protection of others are some evidence of what he thinks necessary or proper to insure their safety.” (p. 479.)
The inference to be derived from the promulgation of rules of this character was discussed in the British House of Lords, in the case of Dublin, Wicklow and Wexford Railway Co. v. Slatterly, 3 App. Cas. 1155. The lord chancellor, Lord Cairns, said:
“The only negligence alleged against the appellants was that the .express train from Dublin did not whistle before, or as it passed through the station, and it was suggested that had it whistled it would have acted as a caution to Slatterly, and he would not have attempted to cross the line; and farther, that, as á person accustomed to the ways of the station, he would expect that a train passing through without stopping would give notice, by a whistle, of its approach. As to the necessity for whistling, Rossiter, the engine-driver, called for the appellants, stated that it was his duty with express trains to whistle passing every station; and although it would, as it seems to me, be difficult to lay down an abstract 'rule as to the necessity of whistling, it may be taken that' the orders given to the engine-drivers showed that the appellants considered whistling under the circumstances to be a reasonable and proper precaution, and it might have been, and I think it was, right to tell the jurors that if they found this precaution neglected on this occasion they might consider it to be evidence of negligence on the part of the appellants.” (p. 1163.)
Lord O’Hagan said:
“I do not enter at any length on the question, how far the whistling was a precaution which the defendants were bound to provide for the safety of the public. It seems to me that their own conduct is, on that point, conclusive against them. . . . It is surely enough that, in the particular case, the defendants by their own conduct admitted the propriety of whistling, and accepted the duty of doing so, for the protection of their passengers and the general public. Their servants proved the orders given to whistle, at the various stations, on the passing of the express train; and they are not now to be heard in denial of the necessity of such a practice, when they themselves established it, and led people to rely on its continuance and regularity, to their manifest risk if it should be abandoned without notice, or intermitted through neglect. We were told much of the flaring lights, and the means of warning through the noises of the engines and the rushing of the train; but again the defendants answer their own argument by the fact that, in addition to these things, they practically admitted the need of something more, and taught the public to expect the signs of danger — not through one sense only, but by the ear as well as by the eye, by the whistle as well as by the lamp.” (p. 1183.)
Lord Selbome said:
“The evidence proves that on this line, and at this particular place, such notice was not only reasonably practicable but was usual. The engine-driver of the express train himself stated it to be his duty to whistle in passing every station, and wherever else he might think there was danger; and that he did so whenever he passed a level crossing. Kavanagh, the guard, added that it was the practice whenever an up train was stopping at this particular station to whistle a second time.
“In this state of things, I am of opinion that the judge could not properly have withdrawn from the jury the question . . . whether such omission was negligence on the part of the company, causing the accident.” (pp. 1188, 1189.)
Lord Blackburn said:
“But I think that if the result of the 'experience of those who have the practicable management of trains is such as to make a particular precaution ordinary and general, it may well be said that a person taking reasonable care would use that precaution.” (p. 1212.)
The minority view is stated in the case of Fonda v. St. Paul City Ry. Co., 71 Minn. 438:
“Private rules of a master regulating the conduct of his servants in the management of his own business, although designed for the pro teetion of others, stand on an entirely different footing from statutes and municipal ordinances designed for the protection of the public. The latter, as far as they go, fix the standard of duty towards those whom they were intended to protect, and a violation of them is negligence in law or per se. But a person can not, by the adoption of private rules, fix the standard of his duty to others. That is fixed by law, either statutory or common. Such rules may require more, or they may require less, than the law requires; and whether a certain course of conduct is negligent, or the exercise of reasonable care, must be determined by the standard fixed by' law, without regard to any private rules of the party. . . . There are a few cases which support plaintiff’s contention, but in none of them is the question considered or discussed at any length, and in some of them no reason whatever is given for the decision. The only reason assigned in any of them why such .evidence is admissible is that it is in the nature of an admission by the party promulgating the rule that reasonable care required the exercise of all the precautions therein prescribed. (Georgia v. Williams, 74 Ga. 723; Lake Shore v. Ward, 135 Ill. 511, 26 N. E. 520.) The fallaciousness and unfairness of any such doctrine ought to be apparent on a moment’s reflection. The effect of it is that, the more cautious and careful a man is in the adoption of rules in the management of his business in order to protect others, the worse he is off, and the higher the degree of care he is bound to exercise. A person may, out of abundant caution, adopt rules requiring of his employees a much higher degree of care than the law imposes. This is a practice that ought to be encouraged, and not discouraged. But, if the adoption of such a course is to be used against him as an admission, he would naturally find it to his interest not to adopt any rules at all.” (p. 449.)
In the case of Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, it was said:
“The rules put in operation from time to time by a railroad company regulating the speed of its trains, the distance each shall run or the time or distance such trains shall remain apart are mere conveniences better to enable such company systematically to carry on its business, and are not intended to be a warning or notice to the public that trains will not be run except on schedule time.” (p. 713.)
The rules admitted in evidence in this case were not adopted merely for the better and more systematic conduct of the defendant’s business, but were intended, in part at least, if not entirely, for the protection of the public. The distinction between the two kinds of rules is obvious. The Bush case is improperly classified with the Fonda case in the L. R. A. note referred to above.
Rules of the kind under consideration are not admitted as legal standards of duty, but as some evidence of the measure of caution which ought to be exercised in situations to which the rules apply. This limitation on the evidential value of the rules read to the jury was sufficiently stated, although not as plainly as might be desired, in the instruction quoted above.
The foregoing disposes of ‘the principal assignments of error. Other criticisms of the proceedings are not deemed to be well founded.
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The opinion of the' court was delivered by
Porter, J.:
The defendant leased the plaintiff a farm .of 320 acres in McPherson county for a period of one year from March 1, 1914, and agreed that he would “remove from said premises any personal property which he may have there.” Alleging that the defendant had failed and neglected to remove the ensilage from a silo on the premises, the plaintiff brought this action to recover damages alleged to have been sustained by'the defendant’s neglect in this respect. The jury returned a verdict awarding damages to the plaintiff in the sum of $373.75. Upon the verdict judgment was rendered, from which defendant appeals.
1. It is claimed that the verdict and judgment are based upon an erroneous measure of damages. The defendant relies upon the general rule that on a breach of covenant by the landlord to make repairs the measure of damages is the difference between the rental value of the premises as they were and what they would have been had the premises been kept in repair, having in view the purpose for which the premises were to be used. (Miller v. Sullivan, 77 Kan. 252, 94 Pac. 266.) The defendant concedes that special damages may be the natural and contemplated result of a breach of a contract to repair or make improvements, but insists that before plaintiff can recover special damages he must plead the facts upon which he intends to rely, and that plaintiff failed to allege the facts which gave him the right to introduce evidence of damages, except under the general rule above referred to. The petition alleged that:
“The defendant has wholly neglected and refused to remove certain feed in one of the silos upon said real estate whereby the plaintiff has been wholly deprived of its use and although he had sufficient green feed to fill the same and enhance its value, the defendant refused to empty said silo, and threatened that he would sue the plaintiff for damages if plaintiff removed defendant’s feed from said silo, on account of which the plaintiff has been damaged in the sum of $500.”
We think the plaintiff sufficiently alleged the facts upon which he based a claim for special damages. The petition alleges defendant’s refusal to remove the old feed from the silo, “whereby the plaintiff has been deprived of its use.” It is then alleged that plaintiff had sufficient feed to fill the silo and enhance its value, and that defendant’s failure to place the silo in such condition that plaintiff could use it caused plaintiff damages in a certain sum.
2. The plaintiff’s evidence as to the special damages was substantially this: The capacity of the silo was 120 tons. The defendant left it two-thirds full of old ensilage. The plaintiff had 110 acres of growing corn, and expected to fill the silo to its full capacity. If he had put new ensilage on top of the old it would have spoiled the new. Testimony was offered that plaintiff’s corn would yield about thirty bushels to the acre, and would have made six or eight tons of ensilage to the acre. His proof showed the cost of cutting and storing, and there was evidence of the market value of such ensilage in the neighborhood at the time. This was sufficient to sustain the judgment. The defendant could hardly have been surprised by the character of the evidence, since the petition stated the amount of damages sought to be recovered, and notified him that proof would be offered to show that plaintiff had sufficient feed to fill the silo and enhance its value.
3; Over the defendant’s objections the plaintiff was permitted to testify that he had made an agreement with a third party to feed two hundred head of cattle, and had intended to use the ensilage for that purpose. It is insisted that there was nothing in the pleading to apprise defendant that plaintiff would testify to such an agreement, and further, that it was not contemplated in the lease that plaintiff had any intention to take cattle to winter and feed on the premises. We think there was no error in the admission of this testimony for the purpose of showing that plaintiff not only had corn to fill the silo, but also that he intended to fill it and had a use for the ensilage. He neither asked nor was allowed damages for having to repudiate the agreement to feed the cattle. The evidence was admitted merely as a circumstance to show that the plaintiff had a market there for the ensilage he intended to make by the use of the silo. Nothing in the nature of speculative damages was proved or allowed.
4. The petition alleged that the reason plaintiff did not himself put the silo in condition for use was that the defendant threatened to sue the plaintiff for damages if plaintiff removed defendant’s feed from the silo. The evidence was that defendant said: “Rull had better not undertake to throw the old silage out or he would make it a dear job for him,” and that plaintiff was so informed. We think this was sufficient notice to plaintiff that he could expect trouble if he removed the old feed. We do not regard the slight variance between the proof and the allegations as material. Evidently the plaintiff construed the defendant’s language as a threat to sue him for damages in case he removed the feed. The defendant was a witness, and did not deny that he made the statement, nor did he attempt any explanation of his language. The dog in the manger would neither eat hay nor allow the horse to eat it. The defendant would neither remove the old feed from the silo, as he had stipulated to do, nor would he permit the plaintiff to remove it. 'Defendant insists that the feed in the silo was decayed and rotten, and further that plaintiff might have removed it at a slight cost. The defendant testified that it was placed in the silo in October, 1912; further, that when feed is placed in a silo, a mould or seal forms on the top, affording protection from the air and preserving the feed. The evidence does not support the contention that the feed in the silo belonging to the defendant was decayed and of no value. Besides defendant’s threat to make trouble for plaintiff, if the latter removed it, absolved plaintiff from the duty to attempt; to lessen his damages by clearing out the silo at his own expense, so that the rule that where one has been injured by the fault of another he “will not be permitted to recover damages which he might have averted by reasonable diligence” (Atkinson v. Kirkpatrick, 90 Kan. 515, 519, 135 Pac. 579) has no application to the circumstances here.
The judgment is affirmed. | [
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Rulon, C.J.:
Plaintiffs Michael G. Hill and Dianne M. Hill appeal the trial court’s order granting summary judgment in favor of defendants William Perrone and Sylvia Perrone in a case involving a contract to purchase real estate. The trial court held the Perrones lawfully rescinded their agreement to buy the Hills’ home under a buyer satisfaction clause in the contract.
The material facts are as follows:
On July 12, 2000, the defendants entered into a written contract to purchase the plaintiffs’ residence. A clause in the contract provided that performance was contingent upon the completion of all inspections to the defendants’ satisfaction within 21 days of closing. Closing was to be completed on or before September 29,2000. An addendum to the contract included the same contingency, requiring tire satisfaction of the defendants by September 15, 2000.
On September 11, 2000, a termite inspection was conducted at the plaintiffs’ residence. The inspection revealed the home had been previously treated for termites. The plaintiffs stated in the sellers’ disclosure statement they had no knowledge of property damage caused by termites; plaintiffs had told their real estate agent, Oleta Lett, the home was never treated for termites during the past 18 years they had lived in the residence.
On September 13, 2000, an inspector hired by the defendants performed a complete home inspection. The parties and Lett were present during the inspection. The inspector found a piece of wood in a crawl space of the plaintiffs’ garage which appeared to have been damaged by termites. The parties and Lett discussed the termite matter, including the earlier treatment conducted prior to the plaintiffs’ ownership. Lett stated the chemical chlordane, once a popular pesticide for killing termites, may have been used in the home for the previous treatment. The defendants’ inspector also found numerous items needing repair in the plaintiffs’ home and noted certain safety hazards in his report. At the conclusion of the inspection, defendant William Perrone and plaintiffs initialed a document listing five items of repair to be completed by the plaintiffs. The plaintiffs allege defendant William Perrone agreed to perform on the contract after the plaintiffs completed the list of requested repairs. Defendant William Perrone admits he informed Lett that she could take down the sign in the yard.
The day after the inspection, defendant William Perrone investigated the dangers of the chemical chlordane on the internet and learned that chlordane is a highly toxic pesticide now banned from use as termite treatment. Based on this information and the results of the inspection, which indicated the need for several repairs, the defendants informed Lett they did not intend to close the sale with the plaintiffs. The plaintiffs allege the repairs on the list from the inspection were completed sometime before the scheduled closing date. However, the defendants did not show up for the scheduled closing date. The plaintiffs eventually sold their home to another buyer for less money than the purchase price on the contract with the defendants.
The plaintiffs filed a petition against the defendants to recover monetary damages for breach of contract. Following discovery, the defendants filed a motion for summary judgment. The defendants claimed the results of the inspections were not acceptable and, therefore, the terms of the contract permitted them to terminate the contract. The plaintiffs argued summary judgment was inappropriate due to the existence of disputed factual matters, particularly the reasons behind the defendants terminating the contract. The plaintiffs also filed a motion for attorney fees, claiming the defendants’ motion for summary judgment was frivolous. The trial court found no material facts were in dispute and further found the defendants had exercised their contractual right to rescind under the buyer satisfaction clause. The trial court granted summary judgment to the defendants, and plaintiffs’ claim for attorney fees was denied.
Standard of Review
The issues raised in this appeal involve the question of whether the trial court properly granted summary judgment to the defendants. Kansas courts apply the following standard of review for summary judgment:
“The standard of review for issues decided on summary judgmentis well known. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving parly is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with the evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find that reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied. [Citation omitted.]” Davis v. Miller, 269 Kan. 732, 737, 7 P.3d 1223 (2000).
Right to Terminate Contract
Plaintiffs initially argue the defendants breached the contract without valid reason. Plaintiffs contend the conditions of the con tract were fulfilled when the defendants were afforded the opportunity to inspect the home and request repairs, which were completed at the plaintiffs’ expense. Plaintiffs request this court to hold the defendants breached the contract as a matter of law and remand to the trial court for a determination of damages.
The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998). Contracting parties may agree to their own terms and impose conditions to a contract so long as the conditions are not illegal or contraiy to public policy. See Barbara Oil Co. v. Patrick Petroleum Co., 1 Kan. App. 2d 437, Syl. ¶ 1, 566 P.2d 389, rev. denied 222 Kan. 749 (1977); Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903 (1976).
Satisfaction clauses in contracts are given legal effect by Kansas courts. A contract conditioned on the satisfaction of one party is binding and precludes recovery by the other party when tire satisfaction clause is exercised in good faith. Hollingsworth v. Colthurst, 78 Kan. 455, 456, 96 Pac. 851 (1908); see Vandenberg v. Board of Education, 117 Kan. 48, 51-52, 230 Pac. 321 (1924); White v. Immenschuh, 106 Kan. 333, 338, 187 Pac. 667 (1920); Canaday v. Miller, 102 Kan. 577, 578, 171 Pac. 651 (1918). Dissatisfaction is not measured objectively, but subjectively.
“Parties to a contract may lawfully stipulate that performance by one of them shall be to the satisfaction of the other. ... If such a contract be made, the party to be satisfied is the judge of his own satisfaction, subject to the limitation that he must act in good faith. He should fairly and candidly investigate and consider the matter, reach a genuine conclusion, and express the true state of his mind. He can not act arbitrarily or capriciously, or merely feign dissatisfaction.” Hollingsworth, 78 Kan. at 456-57.
The Hollingsworth case involved a contract for the exchange of land. The terms required the parties to furnish satisfactory title. The court held the satisfaction clause allowed the defendant to reject the subject land title based on his own subjective reasons. The reasonableness for defendant’s dissatisfaction is irrelevant unless proof of bad faith is presented. 78 Kan. at 457-58. Because the defendant expressed dissatisfaction with the land title, the Hollingsworth court held the plaintiff must show evidence of an improper motive or dishonesty to prevail on a breach of contract claim. 78 Kan. at 457; see also Vandenberg, 117 Kan. at 51 (plaintiff may not recover damages for defendant’s termination of construction contract contingent upon defendant’s approval of a bond for faithful performance of the work without evidence to prove defendant’s rejection of the bond was in bad faith).
In Barbara Oil, a land contract case conditioned upon the seller’s issuance of an acceptable title, this court considered the satisfaction clause a condition precedent to performance of the contract:
“ ‘A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. A condition precedent requires the performance of some act or tire happening of some event after tire terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect.’ ” 1 Kan. App. 2d at 439-40 (quoting Wallerius v. Hare, 194 Kan. 408, 412, 399 P.2d 543 [1965]).
The Barbara Oil court held the balking party must show the condition actually failed and that such failure was the true reason for not fulfilling the contract in order to escape liability. A claim of dissatisfaction resulting in a refusal to perform must be genuine and grounded in good faith. 1 Kan. App. 2d at 440.
Here, the trial court in essence applied the rules stated above to the contract in question but cited to a Pennsylvania case, Jenkins Towel Serv. v. Tidewater Oil Co., 422 Pa. 601, 223 A.2d 84 (1966). The court in Jenkins applied the subjective test for measuring the defendant’s dissatisfaction and limited the issue to a question of whether the defendant’s rejection was founded in good faith. 422 Pa. at 606.
It is undisputed the contract in question includes a buyer satisfaction clause. The defendants’ stated reasons for terminating the contract were based on their dissatisfaction with the results of the inspections. The plaintiffs argue the defendants should have been satisfied as a matter of law because the items needing repair were completed before closing. However, as stated above, the defendants’ dissatisfaction is not measured objectively, but subjectively. The defendants’ reasons for not being satisfied are immaterial. We are convinced plaintiffs may only challenge the defendants’ motives for terminating the agreement according to the good faith standard.
Are Material Facts in Dispute?
Plaintiffs allege the defendants acted in bad faith at trial. Plaintiffs argue the defendants’ true reasons for terminating the contract were due to the defendants’ inability to sell their present home. Plaintiffs further claim the defendants expressed satisfaction with the home subject to the completion of certain repairs following the inspections.
The trial court found the defendants’ concerns following the inspections were genuine and in good faith. The court found the plaintiffs failed to come forward with evidence to dispute any material facts in this case.
The good faith of a party exercising the right to terminate a contract under a valid satisfaction clause is a question of fact. A case is not ripe for dismissal when evidence is presented showing the party’s dissatisfaction was given in bad faith. White v. Immenschuh, 106 Kan. at 338. “Whether or not a contracting party’s refusal to perform was because of a genuine and good faith claim that a condition precedent failed is a question for the juiy.” Barbara Oil, 1 Kan. App. 2d at 440.
Here, the parties inserted a contingency clause in the original contract for the defendants’ home to be sold before the defendants were obligated to purchase the plaintiffs’ home. However, later the parties removed this contingency with a written addendum that the defendants promised to obtain a loan even if they continued to own their present home. The plaintiffs presented evidence showing the defendants continued to own their home after the closing date, a fact uncontroverted by the defendants. Plaintiffs argued the defendants exercised the satisfaction clause as a means to avoid liability under the contract due to the financial burden of owning two homes. As further support, the plaintiffs filed a sworn affidavit by plaintiff Dianne Hill stating she overheard a conversation between the inspector and defendant William Perrone during the inspection. According to plaintiff Dianne Hill, the inspector told defendant William Perrone that a defect in the chimney “is not a deal breaker.”
The determination of good faith requires the trial court to inquire into the defendants’ state of mind. The intent of a contracting party is ordinarily a question of fact for the jury and not appropriate for summary judgment. Courts should be cautious when granting summary judgment on issues which necessitate a determination of a party’s state of mind. See Cherryvale Grain Co. v. First State Bank of Edna, 25 Kan. App. 2d 825, 831, 971 P.2d 1204 (1999).
Viewing the evidence in the light most favorable to the plaintiffs, reasonable minds cannot differ as to the defendants’ true motive for terminating this contract. Simply put, there is no evidence of bad faith on behalf of the defendants.
We conclude the trial court did not err in granting the defendants summary judgment.
Plaintiffs’ Attorney Fees
The plaintiffs request this court to overrule the trial court’s denial of plaintiffs’ motion for attorney fees. The plaintiffs argue the defendants owe them attorney fees for the costs of defending the summary judgment motion because the defendants terminated tire contract in bad faith.
In light of our discussion above, this issue has no legal merit.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action to recover funds taken from a bank account and to determine ownership of a mobile home. The plaintiff, Vinita Powell, initiated the action on her own behalf as widow of the decedent, Howard Lee Powell, and as administratrix of his estate.
Vinita and Howard were married on November 26, 1959. The couple settled on a farm owned by Howard’s mother near Blue Mound, Kansas. Howard tilled the soil and traded cattle. Vinita was a housewife and did farm chores.
The marriage was not without its problems. Howard and Vinita lived in an old ramshackle farm house which was still heated by a coal stove. The living conditions caused Vinita to leave Howard on several occasions. Each time Vinita left, Howard would ask her to return, promising they would move to a better farm house or he would build a new one. Vinita would return, but Howard would never carry out his promises. This marital discord led Vinita to file for divorce on May 2, 1973. The parties prepared a separation agreement, but the divorce case was dismissed on April 1, 1974, for lack of prosecution.
During the spring of 1974, Howard became very ill. On May 14 he was taken to the K.U. Medical Center where it was determined he had terminal cancer. Howard was released from the medical center on Maj\30. Following his release he went directly to Iola to the home of his sister, Edith Dellinger, because his doctor stated that he needed to live in town close to a doctor. On June 1, Howard entered the Allen County Hospital. He died there on June 15, 1974.
One of Howard’s assets was a checking account which had been opened when he was a small boy at the Farmers State Bank of Blue Mound. It was the only account he had in his lifetime and was used for all his business transactions. Vinita did not write checks on the account because she did not know Howard had the account until shortly before his death. She had no checking account of her own.
Approximately two months before Howard died he went to the Blue Mound bank and told the cashier he wanted to put his sister’s name on his account. The cashier prepared a checking account signature card in the names of “Howard Powell or Edith Dellinger” and put an “x” in the box indicating the account to be a joint account. Howard did not read the card in the presence of the cashier but did sign it on the front. The cashier told Howard to take the card to his sister, have her sign it, and bring it back. Howard had Edith sign the card on the front below his signature. Howard returned the card to the bank. Neither Howard nor Edith signed the card on the back where the terms of the joint account contract were set forth.
Edith did not make any deposits into the account and did not write any checks on the account until shortly before Howard’s death. On June 3, 1974, Edith became certain Howard was going to die. She went to the bank and, using a blank check supplied by the bank, wrote a check withdrawing the entire balance, $25,616.61. The money was deposited to an account she opened at the Allen County State Bank in her name only. She did not tell Howard she had closed the account.
Howard also owned a 1972 Sundance mobile home. It was purchased new in May, 1972, by Howard. The title was issued jointly with right of survivorship to Howard and his mother, Pearl Powell. The mobile home was set on the farm close to the old farm house and was used as a residence for Pearl.
Pearl died on May 13, 1974, the day before Howard entered the K.U. Medical Center. During the time Howard was in that hospital he was visited by Edith and her husband, Sam. While there Sam asked Howard what was to be done with the mobile home. Howard stated, “I want to sign it over to Edith.” Thereupon, Howard signed the title and gave it to Sam. Because a notary public was not present the Dellingers took the title back to Iola where they had it notarized by a legal secretary. The title was sent to Topeka and a new title was issued showing Edith Dellinger to be the sole owner of the mobile home.
Since the bank account and mobile home were the primary assets of Howard Powell, Vinita filed action to recover them and bring them into the estate. The cases were consolidated for trial and all evidence presented to the trial court was in the form of documents and depositions. For that reason this court is in the position to make its own factual determination of the issues. (In re Estate of Broadie, 208 Kan. 621, 624, 493 P.2d 289.)
The primary issue is whether the bank account was one of joint tenancy with right of survivorship. The basis for determining the ownership of such an account is succinctly explained in In re Estate of Johnson, 202 Kan. 684, 452 P.2d 286. The court said:
“Whether or not a joint tenancy bank account is created in the name of a depositor and another must be determined on contract principles. (In re Estate of Smith, 199 Kan. 89, 427 P.2d 443.) If the depositor executes an account signature card which contains as part of its provisions an agreement in clear and unambiguous language that a joint tenancy account with the right of survivorship was intended, then such an account is created and the agreement is enforceable according to its terms. In such case, the signature card constitutes a contract in writing between the depositor and the bank, and parol evidence of an understanding at variance with its terms cannot be considered. (In re Estate of Smith, supra; Simonich, Executrix v. Wilt [197 Kan. 417, 417 P.2d 139].) When, however, the language of the written instrument signed by the depositor is uncertain or ambiguous, parol evidence relating to the facts and circumstances existing prior to and contemporaneously with the execution of the instrument is admissible in order to clarify the intention of the depositor at the time of the creation of the account. We have held that when a two-party account is opened without the use of a signature card or an instrument in writing signed by the depositor, a valid joint tenancy account between the depositor and bank may nevertheless be proved by parol evidence if the terms of the agreement clearly disclose that a joint tenáncy was intended to be established. The all-important thing is the clarity with which the intent of the dépositor is expressed at the time the transaction is initiated. (Edwards v. Ledford, 201 Kan. 518, 441 P.2d 834, and authorities therein cited.)” (pp. 696-97.)
After pointing out that the depositor failed to sign the reverse side of the signature card containing the depositor’s contract, the court ruled there was not a signed written contract containing express language creating a joint tenancy account; therefore, parol evidence was admissible. (See also, In re Estate of Matthews, 208 Kan. 492, 493 P.2d 555.)
Edith testified that years ago Howard told her he wanted her to have the money in the bank account; therefore, she was not surprised when Howard gave her a signature card to the Blue Mound bank account and told her to sign it. When he asked her to sign the card he told her he wanted her to have the money. Sam, Edith’s husband, testified that Howard once told him that he (Howard) might give the checking account to Edith. At the time the signature card was signed by Edith, Sam remembered Howard’s stating he wanted Edith to have the account.
While we do not consider this sufficient to establish joint tenancy, it has significance when considered with the testimony of the bank cashier, Walter Bayless. When Howard went to the bank on April 25, 1974, he told Bayless he wanted his sister’s name put on the account with him. Bayless prepared the signature card and gave it to Howard, who signed it. Howard was told to get Edith to sign it. Bayless testified that although he didn’t remember the exact conversation, he understood Howard wanted Edith to have the account upon Howard’s death and Howard knew the account was to be a joint tenancy with the right of survivorship. Bayless also testified that the fact this account was to be a joint account with right of survivorship was discussed with Howard. Prior to his mother’s death, Howard had added her name to the account. Bayless stated that at the time the signature card with the mother was signed Howard stated he wanted his mother to have the account if he died.
Together with the signature card, we deem the testimony of the three witnesses sufficient to establish a joint tenancy with the right of survivorship. (In re Estate of Wood, 218 Kan. 630, 545 P.2d 307; Winsor v. Powell, 209 Kan. 292, 497 P.2d 292; In re Estate of Matthews, supra; Edwards v. Ledford, 201 Kan. 518, 441 P.2d 834; Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P.2d 139.) Edith had the right to write checks upon the account during Howard’s lifetime as well as after his death. (See, Waters v. Nevis, 31 Cal. App. 511, 160 Pac. 1081 [1916]; Mathey v. Central National Bank of Junction City, 179 Kan. 291, 293 P.2d 1012.)
It cannot be questioned that decedent had the right to dispose of his bank account in this manner. It is well recognized that a person may dispose of his personal property during his lifetime, even to the exclusion of a spouse. (Winsor v. Powell, supra; Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P.2d 840; Small v. Small, 56 Kan. 1, 42 Pac. 323.)
Howard made a valid gift of the mobile home. By signing the title over to Edith, he did all that was necessary on his part to make a gift. By accepting the transfer and obtaining a new title, Edith accepted the gift. (In re Estate of Matthews, supra at 505; Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P.2d 878; In re Estate of Baumstimler, 159 Kan. 316, 153 P.2d 927.)
Although K.S.A. 8-135 was violated when Howard signed the title without the presence of a notary, no one has contended the signature on the title transfer was not Howard’s signature. He intended to give Edith the mobile home and his failure to comply with K.S.A. 8-135 does not invalidate the transfer. (In re Estate of Baumstimler, supra.)
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The opinion of the court was delivered by
Miller, J.:
Case No. 48,553 was commenced by Donna M. Kelly against Phillips Petroleum Company under the provisions of K.S.A. 44-512a to recover a lump-sum judgment for all installment payments of a workmen’s compensation award. The Wyandotte District Court, Division No. 6, sustained Mrs. Kelly’s motion for summary judgment and Phillips appeals.
Case No. 48,073 is an appeal by Mrs. Kelly from the judgment of the Wyandotte District Court, Division No. 2, in the workmen’s compensation case out of which the 512a action arose. Since the latter supersedes the former, we will first consider questions raised in the 512a action.
The principal issues before us are whether the supersedeas bond filed by Phillips was effective to prevent the entire award from becoming due; whether the demand letter sent on behalf of the claimant was sufficient under K.S.A. 44-512a; and whether that statute requires separate mailing or personal service of the demand letter upon the employer and its attorney of record.
Edgar Neal Kelly was for many years employed by Phillips Petroleum Company as a Stillman at its refinery in the Fairfax area in Kansas City, Kansas. Early in 1968 he sustained injuries which we need not here detail, and he died on February 7, 1968. His widow, Donna M. Kelly, and two minor children, survived. Mrs. Kelly commenced proceedings before the workmen’s compensation director on January 9, 1969. Her claim was stoutly opposed. Many hearings were held and many depositions were taken. On December 24, 1973, the examiner filed his award in which he granted compensation of $16,500 plus medical, hospital, and burial expenses. Over $15,000 of the compensation, plus medical, hospital, and burial expenses were found to be due as of the date the award was entered. The balance of compensation in the amount of $1,442.79 was ordered paid at the rate of $49 per week. The examiner’s award was approved and sustained by the director on July 30, 1974. Phillips, a self-insurer, filed its notice of appeal to the district court on August 8, 1974. Phillips did not file a supersedeas bond at that time, or within 20 days after the director approved the award.
Counsel for claimant wrote a letter on August 23, 1974, addressed and mailed to Phillips Petroleum Company, c/o McAnany, Van Cleave & Phillips, 601 Minnesota Avenue, Kansas City, Kansas 66101. The letter demanded that Phillips pay the amount then due on the award which claimant’s counsel calculated to be $18,703.45. The letter also stated:
“. . . Failure to make total payment of the sum now due and owing under the award within the time specified by the Workmen’s Compensation law will cause the entire award to be due and owing.”
Thirty-one weeks passed between the day on which the ex aminer entered his award and the day on which the director approved it. Over three more weeks passed by the time the demand letter was mailed. The award called for payment of accrued compensation (as of December 24, 1973) in a lump sum, and the balance of $1,442.79 in weekly payments of $49 each. Simple mathematical calculation leads to the conclusion that all of the award had accrued and was payable before the date on which the demand letter was mailed.
The demand letter was sent by certified mail, was received by counsel’s receptionist, and was delivered to Mr. Van Cleave, of McAnany, Van Cleave and Phillips, who were attorneys of record for Phillips throughout the workmen’s compensation proceeding. Mr. Van Cleave responded on the following day. He enclosed a check from Phillips for $112, making the total compensation paid to that date amount to $784. This covered a ten-week period prior to the entry of the award, and weekly compensation thereafter. On September 7, 1974, Phillips paid the burial and medical expenses.
Mrs. Kelly commenced this proceeding by filing a petition in the district court of Wyandotte County on October 1, 1974. The petition cited and was drawn under the provisions of K.S.A. 44-512a. Phillips filed a supersedeas bond on October 3, 1974, in the workmen’s compensation appeal. The bond was conditioned “. . . that [Phillips] will prosecute said appeal without unnecessary delay and satisfy the judgment which may be rendered against [Phillips] therein.” Phillips filed its answer in the 512a action on November 3, 1974.
Claimant filed an amended petition on April 10, 1975, by which she sought to recover, in addition to the award, civil penalties of $100 per week to the date of judgment and attorneys’ fees. This amended petition was obviously drawn in light of Laws of Kansas, 1974, chapter 203, sec. 20 (now K.S.A. 1976 Supp. 44-512a), which statute became effective on July 1, 1974. The amended petition was withdrawn upon oral motion of the claimant and by order of the trial court on May 7, 1975, and plaintiff thus abandoned her claims for civil penalties and attorneys’ fees.
Claimant and respondent both filed motions for summary judgment, that of claimant being filed January 9,1976, and that of the respondent, January 15, 1976. Each claimed that the plead ings, depositions, answers to interrogatories, and admissions on file, and stipulations and agreements made by the parties, together with the affidavits on file, showed that there was no genuine issue as to any material fact, and that the respective parties were entitled to judgment as a matter of law.
The court heard the motions on January 21, 1976. Two witnesses testified on behalf of the claimant. Thereafter, the parties submitted proposed findings of fact and conclusions of law, together with briefs. The trial court filed its findings of fact and conclusions of law April 9, 1976. Briefly stated, the court concluded that since Phillips is a self-insurer, the filing of a supersedeas bond, as provided by K.S.A. 44-556, prior to the twentieth day after the service of the demand letter, was essential to prevent the entire award from becoming due and owing; that the defendant failed to file a supersedeas bond on or before that date, September 17, 1974; since no bond was filed, the entire award became due and payable; that the demand letter was sufficient and that there was substantial compliance with K.S.A. 44-512a by the claimant in the service of the demand letter; that Phillips Petroleum Company had notice of claimant’s demand letter prior to September 17, 1974; and that claimant was entitled to judgment for the balance of the award in the sum of $14,246, plus accrued interest and costs.
Before turning to the issues before us, we will first examine the applicable statutes. K.S.A. 44-512a provides in applicable part:
“That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen’s compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same and on the attorney of record of such person, firm or corporation, payment of said demand is thereafter either refused or not made within twenty (20) days from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt.” (Emphasis supplied.)
K.S.A. 1976 Supp. 44-512a effects many changes. It provides in part, as follows:
“(a) In the event any compensation, including medical compensation, which has been awarded under the workmen’s compensation act, is not paid when due to the person, firm or corporation entitled thereto, the workman shall be entitled to a civil penalty, to be set by the director and assessed against the employer or insurance carrier liable for such compensation, of not more than one hundred dollars ($100) per week for each week any disability compensation is past due, and in the sum of twenty-five dollars ($25) for each past due medical bill, if: (1) Service of written demand for payment, setting forth with particularity the items of disability and medical compensation claimed to be unpaid and past due, has been made personally or by registered mail on the employer or insurance carrier liable for such compensation, and its attorney of record; and (2) payment of such demand is thereafter refused or is not made within twenty (20) days from the date of service of such demand.
“(b) After the service of such written demand, if the payment of disability compensation or medical compensation set forth in the written demand is not made within twenty (20) days from the date of service of such written demand, plus any civil penalty, as provided in subsection (a) of this section, if such compensation was in fact past due, then all past due compensation and any such penalties shall become immediately due and payable. The workman may maintain an action in the district court which would have jurisdiction over an appeal of an award of compensation to the claimant, for the collection of such past due disability compensation and medical compensation, any civil penalties due under this section, and the reasonable attorneys’ fees incurred in connection with the action.” (Emphasis supplied.)
K.S.A. (now 1976 Supp.) 44-556 relates to appeals, and the furnishing of supersedeas bonds. Both the original and the amended sections read substantially as follows:
“(a) Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the director to the district court of the county where the cause of action arose. . . .
“(b) . . . Such appeal shall be taken and perfected by the filing of a written notice of appeal with the director within twenty (20) days after the decision . . . shall have [been] made and filed . . . No compensation shall be due or payable until the expiration of such twenty (20) day period and then the payment of past due compensation awarded by the director shall not be payable, if within such twenty (20) day period notice of appeal to the district court has been filed and the right to appeal shall include the right to make no payments of such compensation until the appeal has been decided by the district court if the employer is insured for workmen’s compensation liability with an insurance company authorized to do business in this state or, if the employer is a self-insurer, and has filed a bond with the district court in accordance with K.S.A. 44-530. The perfection of an appeal to the district court shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision, and for the period of time after the director’s decision and prior to the decision of the district court in such appeal.” (Emphasis supplied.)
K.S.A. 44-530 must be considered in connection with the section which immediately precedes it, K.S.A. 44-529. The latter statute provides in substance that after an award has been made, a workman may make application to the director for an award in lump sum equal to ninety-five per cent of the amount of payments due and unpaid, and if the director, after hearing evidence, is satisfied that the application is made because of doubt as to the security of the compensation, then the director may enter such lump sum award unless a proper insurance certificate or bond is provided by the employer.
K.S.A. 44-530 reads as follows:
"In any proceedings upon the application of a workman for judgment against his employer upon an award hereinbefore provided and before judgment has been granted, the employer may stay proceedings upon such application by filing with the clerk of said district court a bond to be approved by the clerk of said court undertaking to secure the payment of the compensation as in said award provided, or by filing with said clerk a certificate of a licensed or authorized insurance company or reciprocal or interinsurance exchange or association that the amount of compensation to the workman is insured by it.”
We turn first to the question of the efficacy of the bond filed by Phillips on October 3, 1974. Phillips contends that since it filed its bond prior to the time judgment was rendered on the appeal, all payments except weekly compensation for ten weeks were stayed during the appeal. This argument overlooks the import of the statutes.
As we observed in Teague v. George, 188 Kan. 809, 365 P. 2d 1087, K.S.A. 44-529 and 530 were enacted together as part of the original act. These sections deal only with applications for lump-sum judgments, and, as is here pertinent, the form of a bond which may be filed. K.S.A. 44-556 governs the taking of appeals, and clearly provides that if the appellant is a self-insurer who wishes to stay the payment of past-due compensation, the self-insurer must, within the twenty-day period after the entry of the director’s award, file a supersedeas bond in the form provided by K.S.A. 44-530. This Phillips did not do. Accordingly, the entire award became due and payable and the claimant was authorized to serve a written demand under K.S.A. 44-512a, as we held in Griffith v. State Highway Commission of Kansas, 203 Kan. 672, 456 P. 2d 21. There, the now Chief Justice Fatzer, speaking for the court, stated:
“Where an employer is a self-insurer as defined in K.S.A. 44-532, and perfects an appeal to the district court from the award of the director of workmen’s compensation and thereafter fails to comply with the requirements of K.S.A. 44-556, including the payment of compensation to the workman and the filing of a bond, the Legislature intended that the workman be authorized to serve a written demand under K.S.A. 44-512a, and maintain an action to recover the entire amount of compensation matured by the employer’s default, and subsequent review by the district court of the amount of compensation awarded by the director’s award may not be had, since service of the written demand and the employer’s default supersede the director’s award.” (Emphasis supplied.) (Syl. 5.)
We hold that the supersedeas bond filed by Phillips was out of time and did not stay the award, which became due upon the expiration of the twenty-day period after the director approved it. The 512a demand letter and subsequent action did not cause the payments to be accelerated; they were already all due. The 512a demand letter and action simply constituted an alternative method of enforcing the award, which was available to the claimant.
We next turn to the question of the sufficiency of the demand letter sent on behalf of the claimant. Respondent, in effect, contends that the letter did not mention a supersedeas bond and therefore was misleading, and that the letter did not constitute a proper demand under K.S.A. 44-512a. We disagree.
The letter stated the specific amounts of compensation, burial benefits, and medical expenses which claimant calculated were then due, though the total amount claimed was in error. It stated the amount of compensation already paid, made demand for all compensation due, and stated that failure to make the total payment then due and owing within the time specified by the workmen’s compensation law would cause the entire award to be due and owing. It set forth with particularity the items of compensation claimed to be unpaid and past due. Whether it be construed in the light of K.S.A. 44-512a, or K.S.A. 1974 Supp. 44-512a which was then applicable (see Crow v. City of Wichita, 222 Kan. 322, 566 P.2d 1), we conclude that the demand letter was itself sufficient.
Under K.S.A. 44-512a as it existed prior to the amendment, the claimant was not obligated to itemize the amounts which he claimed were due and payable; the burden was on the employer and compensation carrier to compute the amounts due and make payment within the twenty-day period. Simple letters, requesting payment of all due compensation, were held to comply with the statute. Griffith v. State Highway Commission of Kansas, supra; Miller v. Massman Construction Co., 171 Kan. 713, 714, 237 P. 2d 373; Ellis v. Kroger Grocery Co., 159 Kan. 213, 215, 152 P. 2d 860.
As we said in Ryder v. Reagor, 213 Kan. 576, 579, 516 P. 2d 990:
“. . . The employer has the burden of avoiding the effects following the 44-512a demand, and neither the employee nor his counsel is under any obligation to advise the employer of the exact amount due. (Citing cases.)”
This is no longer true. The claimant now has the burden under K.S.A. 1976 Supp. 44-512a to specify the items and amounts which he contends are due; this claimant Kelly did.
The claimant sought payment of the award; she did not seek a bond, and she was not proceeding under K.S.A. 44-529. At any rate, she was not obliged to advise Phillips of its option to file a supersedeas bond pursuant to K.S.A. 44-556 if it wished to delay payment of all past due compensation. The time for filing such a bond had passed. We conclude that the demand letter was sufficient.
We turn now to the final question presented in the 512a appeal, whether the claimant complied with the notice requirements of K.S.A. 44-512a in the mailing of her demand letter. The letter was addressed, as we have noted, to Phillips in care of its attorneys of record in the workmen’s compensation case. It was sent by certified, not registered, mail. It was not addressed to the individual member of the law firm who had been handling the case.
The original enactment of this statute is found in Laws of Kansas, 1943, ch. 189, sec. 1, later codified as G.S. 1943 Supp. 44-512a. That portion of the statute relating to notice, or service of the demand letter, reads:
“. . . [A]nd service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same
The statute was amended by Laws of Kansas, 1961, ch. 243, sec. 2, and included in the original Kansas Statutes Annotated as K.S.A. 44-512a. The pertinent language of the amendment reads:
“. • • [A]nd service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same and on the attorney of record of such person, firm or corporation . . .” (Emphasis supplied.)
The most recent revision was made in Laws of Kansas, 1974, ch. 203, sec. 20, now K.S.A. 1976 Supp. 44-512a. The provision now reads as follows:
“. . . Service of written demand for payment . . . has been made personally or by registered mail on the'employer or insurance carrier liable for such compensation, and its attorney of record . . .”
All three require service of the demand letter upon the employer or the insurance carrier; and since 1961, service has also been required upon its attorney of record. All three enactments require that service be made personally or by registered mail.
Is certified mail sufficient, though the statute specifies registered mail? We think it is. Certified mail has come into widespread usage since this section of the workmen’s compensation law was enacted in 1943. Certified and registered mail have much in common: A distinctive number is assigned to the individual piece of mail; special delivery or restricted delivery is available; and a return receipt may be requested, which receipt discloses to whom, when, and where delivery was effected. The principal distinction between the two types of mail is that insurance coverage is available with registered mail, but not with certified mail. Thus, registered mail remains useful for the mailing of items having substantial value — bearer bonds, for example — but certified mail (because of its slightly lower rate) has largely replaced registered mail where the mail matter has no intrinsic value but delivery is important. A demand letter falls into the latter classification.
Both registered and certified letters are recognized by the public generally as indicia of importance. Both are treated as something special, of unusual consequence, significance, or value, by the postal employees and the public alike. We note that receipt of the demand letter before us was carefully entered in a ledger kept for just that purpose by counsel’s receptionist. That ledger listed all registered and certified mail received by the firm. We conclude that mailing by certified mail constitutes substantial compliance with the statute, and is sufficient.
The service by certified mail upon the firm which was counsel of record for the employer, and received by an employee who was authorized to receive it, was sufficient service upon counsel. But does the act require separate service upon the employer? Respondent contends that it does.
The act originally required service upon the employer or in surance carrier only. Delay ensued in communication between employer and counsel. (See Miller v. Massman Construction Co., supra.) The employer, or even the insurance carrier, could not be expected to recognize the import of the demand letter, and the consequences including acceleration (no longer true, and not here involved) of failing to comply with the demand. In order to alert counsel, the legislature in 1961 made service upon counsel a requirement.
Must the claimant in every instance mail two demand letters, one to the employer or insurance carrier at its home office and one to its attorney of record in the workmen’s compensation proceeding?
The demand letter here was addressed to Phillips and mailed to it in care of its counsel of record. The trial court found — upon substantial evidence — that Phillips had notice of the demand letter prior to the expiration of the 20-day period. Counsel for Phillips responded to the letter on the day after it was received. Several payments from Phillips, covering medical, hospital, and burial expense, as well as compensation, were delivered within the 20-day period.
Throughout the workmen’s compensation proceeding notice to counsel was, of course, notice to counsel’s client. The purpose of the demand letter was to secure payment of the award, all of which was then due. While the better practice is to serve all persons — employer, insurance carrier, and counsel — by separate letter, we cannot say that a separate letter to Phillips was necessary in this case. Both Phillips and its counsel, as the trial court found, had notice. No prejudice is shown, and an additional mailing would have served no useful purpose.
We have carefully reviewed all of our prior cases involving section 512a, and find no case precisely in point. Shinkle v. State Highway Commission, 202 Kan. 311, 448 P. 2d 12, is perhaps the closest. There we held that service of the demand letter on the employer and the attorney of record for the employer and its insurance carrier was sufficient; that claimant need not separately serve the insurance carrier, having served its attorney of record — although the evidence indicated that by inadvertence the attorney had not notified the carrier, and it had no notice of the demand letter.
Since Ellis v. Kroger Grocery Co., supra, we have consistently held that section 512a, like the rest of the workmen’s compensation act, should be liberally construed with a view of effecting its purpose. What was said in Kraisinger v. Mammel Food Stores, 203 Kan. 976, 457 P. 2d 678, relied upon by respondent, must be limited to the facts then before the court, as observed in Ryder v. Reagor, supra. Substantial compliance with the statute is sufficient.
The demand letter was addressed and mailed in substantial compliance with the statute. It was received and both Phillips and its counsel had notice. We hold that under these circumstances service of the demand letter was sufficient. The judgment must be affirmed.
Since under the doctrine of Griffith v. State Highway Commission of Kansas, supra, the 512a action supersedes the original workmen’s compensation proceeding, affirmance of the judgment in the 512a action renders the workmen’s compensation proceeding moot. Even so, we have carefully reviewed the record and briefs in the workmen’s compensation action, and have concluded that the results here reached would ultimately have ensued had that action been the primary subject of our opinion.
The judgment of the district court in case No. 48,553 is affirmed, and the appeal in case No. 48,073 is dismissed. | [
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The opinion of the court was delivered by
Owsley, J.:
Defendant appeals from his convictions for the offenses of aggravated burglary, aggravated robbery, kidnapping and battery.
An information for the above-stated charges was filed on November 13, 1973. Defendant waived arraignment and was released on bond, with trial set for January 7, 1974. On that date defendant failed to appear.
Subsequently, defendant was apprehended in the State of Arkansas for offenses committed while in that state. He was convicted of several offenses and sentenced to serve a 67-year prison term.
Authorities in Sedgwick County, Kansas, learned of defendant’s Arkansas incarceration and decided to bring him to Kansas to be tried on charges previously filed. On November 27, 1974, the Sedgwick County prosecutor filed a request for temporary custody of defendant, pursuant to Article IV of the Agreement on Detainers (hereinafter referred to as Agreement). (K.S.A. 22-4401, et seq.) A copy of the request was mailed to defendant and was received by him on November 27 or 28,1974. For some unknown reason the copy to be served upon the prison authorities at Grady, Arkansas, was misplaced.
A formal detainer, as contemplated in Article III of the Agreement, was never filed by Sedgwick County with the Arkansas authorities. Although defendant received a copy of the request, he was never formally notified by Arkansas authorities of the existence of a detainer, nor was he ever informed of his right to a speedy trial.
The request for temporary custody languished in the hands of the Arkansas authorities until April 2, 1975, when they offered to turn defendant over to Kansas. Kansas authorities obtained custody of the prisoner on May 2, 1975. Upon arrival in Kansas defendant filed a motion for discharge for lack of speedy trial, which was overruled. Trial began on June 10,1975, at which time defendant renewed his motion. It was again overruled. Defendant was found guilty.
The initial question is whether an accused imprisoned in a penal institution of another state, who has a detainer lodged against him for criminal charges pending in the State of Kansas, is entitled to dismissal of the charges when the authorities of the retaining institution fail to inform him of the existence, source and contents of the detainer and fail to inform him of the right to request final disposition thereof, pursuant to the Agreement. This question, in the context of the Agreement, is one of first impression in this jurisdiction.
The interstate Agreement on Detainers was enacted to provide a method whereby a prisoner in another state or federal institution could require disposition of charges pending against him. Under the Agreement, once a detainer has been lodged the authorities having custody of the prisoner “shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition” thereof. (K.S.A. 22-4401, Art. Ill [c].) If the prisoner properly enters a request, he must be returned to the jurisdiction in which the detainer was filed and tried within 180 days of the time he requests disposition. If the prisoner makes no request for disposition, he must be tried within 120 days from the time he is returned to the requesting state. Failure to try the prisoner within the applicable time requires dismissal of the charges upon which the detainer is based.
The state argues it is not necessary to face the foregoing issue because a detainer was never filed and the Agreement has no application. We cannot construe the term “detainer” so narrowly. Were we to do so the state could forestall the application of the Agreement by filing a request for temporary custody, ignoring the use of a formal detainer. A detainer is a hold order or informal demand by one exercising public authority for the possession of a person already in lawful custody. In the field of interstate rela tions, a detainer puts prison officials in the custodial state on notice that the prisoner is charged with a crime in another state and is a fugitive from justice. (Bursque v. Moore, 26 Conn. Sup. 469, 227 A. 2d 255 [1966].) Under the Agreement, a detainer is simply a notice filed with the confining institution that criminal charges from another jurisdiction are outstanding and the prisoner is wanted in order to stand trial on those charges. (United States Ex Rel. Esola v. Groomes, 520 F. 2d 830 [3d Cir. 1975].) We conclude that under the Agreement a request for temporary custody which has not been preceded by a formal detainer has the legal effect of a detainer.
The facts of the instant case render the 180-day provision inapplicable. The provision is not triggered because defendant was never notified of the existence of the request for temporary custody and his concomitant rights. This court must determine the effect of a detainer on a defendant’s right to a speedy trial when he is not informed in the manner prescribed by the Agreement.
The Uniform Mandatory Disposition of Detainers Act (hereinafter referred to as Act) provides that a prisoner incarcerated in this state shall promptly be notified in writing of any detainer lodged against him and shall be informed of his right to request a speedy disposition of the charges comprising the detainer. (K.S.A. 22-4301 [b].) Failure to notify a prisoner, as required, within one year entitles the prisoner to a final dismissal of the charges with prejudice. (K.S.A. 22-4301 [c].) This court has invoked the sanction for failure to notify on two occasions. (State v. Norris, 210 Kan. 457, 502 P. 2d 817; State v. Ellis, 208 Kan. 59, 490 P. 2d 364.)
Although this court has stated the purposes of the Act and the Agreement are parallel (Ekis, Petitioner v. Darr, 217 Kan. 817, 539 P. 2d 16; State v. Dolack, 216 Kan. 622, 533 P. 2d 1282), we do not mean to imply that the Act and the Agreement are alike or identical in all respects. The Agreement is distinguishable from the Act in cases where prison officials fail to notify a prisoner of an outstanding detainer. While the Act provides a sanction which compels a court to dismiss charges when a prison official fails to notify a prisoner, the Agreement has no such provision.
A legislative enactment providing for a speedy trial, with no sanction for failure to comply with the mandate, is generally construed as directory. (State v. Fink, 217 Kan. 671, 676, 538 P. 2d 1390, and cases cited therein.) In the absence of a specific sanction, the right to a speedy trial must be gauged from a constitutional viewpoint. (State v. Otero, 210 Kan. 530, 502 P. 2d 763.) Criteria to be considered were set out in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182. There the court stated:
“ . . . We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”
In the present case the total delay from the time the request for temporary custody was filed until the beginning of trial was 196 days. The reason for the delay was due partly to the negligence and inaction of the prosecution in processing the detainer. It was sent to the prison authorities in Arkansas where it vanished for over four months. The state did not explain what became of the request, nor did it explain why it did not inquire as to the fate of the request after Arkansas authorities did not respond to the request after 30 days had elapsed. (K.S.A. 22-4401, Art. IV [a].) While this delay is to be charged against the state, there is no showing that it was done intentionally.
It does not appear that defendant asserted his right to a speedy trial or that he attempted to do so. The record indicates he received a copy of the request for temporary custody at the same time it was sent to the Arkansas authorities. Although receipt of a copy of a detainer by a prisoner is not notification contemplated by the Agreement (State v. Ellis, supra), it is of some significance that defendant never inquired about the detainer after he received a copy.
Finally, defendant does not claim he was prejudiced by the delay. The trial started 16 days after the 180 days the state would have had to bring defendant to trial if he had been properly notified and had requested a speedy trial. This estimate of time must be based on an assumption the authorities in Arkansas notified defendant on the day the detainer was received and defendant on the same day requested trial in Kansas.
We conclude an application of the factors set forth in Barker v. Wingo, supra, to the facts and circumstances in the instant case, reveals the defendant was not denied a speedy trial.
The charges for which defendant was convicted arose out of the robbery of a coin shop on October 10, 1974. Defendant and three other men concocted a scheme whereby they broke into the home of the owner of the shop and took him and his wife captive. While two of the men held the owner’s wife at knifepoint, the others took the owner to his shop, forced him to open his safe and place several thousand dollars worth of rare coins in a purple bag. The loot was cached in some bushes near the intersection of First and Quentin in Wichita. It was found after a neighbor observed a man walking near the bushes. When the man approached the bushes he was carrying something, but when he walked away he was empty-handed. Police were alerted and set up a surveillance team. Defendant, his girl friend and the three other accomplices were arrested by police as they tried to retrieve the coins. Tony Scott, Gary Weyer, David Weyer and the defendant were all charged. All pled guilty except defendant. He was tried and found guilty by a jury.
During trial Gary and David Weyer were called as witnesses for the state. David testified as to the planning and execution of the crimes, relating defendant’s role. Because David Weyer had several lapses of memory and could not remember specific details the state called Detective Darrell Oakley, who had taken a statement from David shortly after his arrest. Oakley testified to the details of the crime as related to him by David at the time of arrest.
While Oakley was on the stand he testified to a statement about the crime, made to him by Gary Weyer at the time Gary was arrested. The statement set forth the details of the crime and named defendant as one of the perpetrators. Gary Weyer was present in the courtroom at the time. He then took the stand as a state’s witness and testified that Detective Oakley’s testimony concerning his statement to the police was accurate.
Defendant alleges it was a violation of K.S.A. 60-460 (a) to allow Detective Oakley to relate to the jury the statements of Gary and David Weyer. While he admits the requirements of 60-460 (a) were met, he argues the spirit of the statute was violated. The heart of his complaint centers on the practice of using a “professional” witness to testify as to statements made by a defendant’s accomplices.
It must be noted that defendant did not object to the introduction of David Weyer’s statement at the time of trial on the basis it was hearsay; he objected that the state was impeaching its own witness. A defendant cannot object to the introduction of evidence on one ground at the time of trial and assert a new objection on appeal. (State v. Patchett, 203 Kan. 642, 455 P.2d 580.)
The argument of defendant that both of the Weyers’ statements were inadmissible is without merit. Arguments similar to defendant’s were set forth and answered in State v. Fisher, 222 Kan. 76, 563 P.2d 1012. There we reversed convictions for indecent liberties with a child and aggravated sodomy because a portion of the damaging evidence was a statement made to police by a person who was present in the courtroom, but not put on the stand by the state during trial. We held that when a declarant testifies on behalf of the state in a criminal trial his out-of-court statements may be admitted under K.S.A. 60-460(a).
Applying Fisher to the instant case we find no reversible error. David Weyer was placed on the stand and testified just before his statement was introduced. Gary Weyer’s statement was introduced immediately prior to the time he took the stand. While it would be a better practice to put the declarant on the stand prior to the introduction of his statement, there is no error in reversing the order if the declarant testifies for the state.
Defendant next contends the trial court committed error in admitting hearsay statements of Tony Scott and in allowing David Weyer to testify in a conclusional manner. No objection was lodged at trial on either point; therefore, it is beyond review on appeal. (State v. Jones, 222 Kan. 56, 563 P.2d 1021.)
Finally, defendant alleges the state committed reversible error during closing remarks. The state presented its first closing statement. When defendant replied, he criticized the method used by the state in presenting David’s and Gary’s statements. In the closing argument the prosecutor replied that when witnesses take the stand they are sworn to tell the truth; that they relate facts and the state does not tell them what to say or not to say; and that in this case the Weyers were accomplices and accomplices don’t like to testify against one another. Defendant objected to the statements.
Here the remarks were not improper. They were invited by defendant’s closing argument. It was defense counsel who opened the door by criticizing the manner in which the prosecutor presented his case. The state simply responded to this argument. There is no prejudicial error when a statement, of a prosecutor is provoked and made in response to previous arguments or statements of defense counsel. (State v. Robinson, 219 Kan. 218, 547 P. 2d 335, and cases cited therein.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a jury verdict which found Michael Ferris (defendant-appellant) guilty of two counts of aggravated battery against a law enforcement officer (K.S.A. 21-3415).
The question on appeal is whether evidence of other criminal acts, here a purse snatching followed by flight from law enforcement officers, is admissible in evidence.
On August 16, 1975, the appellant entered Marceil’s Beauty Salon in Topeka and asked whether or not they cut men’s hair. He then proceeded to grab the purse of Mrs. Reba Heinrich, a beauty shop patron, run out the door and flee in a blue-gray Chevrolet.
The fleeing automobile’s high rate of speed attracted the attention of Topeka police officers Koch and Walker, who were unaware of the purse snatching. The car was stopped and the appellant fled on foot. After being apprehended and handcuffed, the appellant seized one of the officer’s pistols and fired several times, wounding both officers. The surrounding facts are more fully reported in the case of In re Ferris, 222 Kan. 104, 563 P. 2d 1046. There the appellant, age seventeen, was found not amen able to the care, treatment and training program available through the facilities of the juvenile court, and on appeal the waiver of juvenile jurisdiction was sustained.
At the trial in the instant case the appellant contended he was under the influence of drugs at the time of the shooting. He asserted an insanity defense and this formed the basis for the defense at trial.
The appellant stood trial charged with two counts of aggravated battery against a law enforcement officer. The state sought to introduce evidence of the purse snatching and escape, offenses for which the appellant was not charged.
After a preliminary argument on the matter, the trial court admitted the evidence, over the appellant’s objection, under K.S.A. 60-455 and instructed the jury that it could be considered “for the limited purpose of proving the defendant’s motive and absence of mistake.”
The state’s theory for admission of the evidence was to show that the appellant on August 16, 1975, stole a purse from a beauty shop, fled the scene in an automobile with his compatriots and was shortly thereafter stopped by police officers for a speeding violation. Caught red-handed with stolen property in his automobile, the appellant attempted to conceal the stolen purse, and then when arrested panicked and shot the officers, thereby making his temporary escape good.
The appellant’s theory of defense to avoid criminal responsibility was lack of mental capacity — that he did not understand the nature of his acts or what he was doing.
With the admission of the evidence concerning the purse snatching the state was permitted to show, and argue to the jury, the appellant had a motive for the shooting, and that there was no mistake made by the appellant in firing the pistol at the officers. The appellant was stopped and caught within minutes after having committed a theft. As such, the purse snatching and flight were part of the res gestae. The evidence was relevant to show the appellant’s intent when he shot the officers in rebutting his asserted defense of insanity. By admitting the evidence the state was permitted to show the appellant had sufficient mental capacity to scheme and plan a purse snatching immediately prior to the shooting, and have the presence of mind to flee and run from the scene where he had stolen the purse.
Here the appellant did not deny having committed the acts charged against him, thus identity was not an issue. But with an asserted defense of insanity, the nature of the defense placed intent squarely in issue. It brought into focus the defendant’s capacity to formulate the specific intent as well as his capacity to entertain, in a legal sense, a general criminal intent. (State v. Lohrbach, 217 Kan. 588, 538 P. 2d 678.) Aggravated battery against a law enforcement officer involves both a general criminal intent and a specific intent — “with intent to injure that person.” (K.S.A. 21-3414 and 21-3415.)
Although the limiting instruction here given could have been broadened to include “intent,” it was not erroneous.
On the facts in this case evidence of the purse snatching incident was admissible as part of the res gestae to prove the offenses charged, without a limiting instruction. (State v. Hale, 206 Kan. 521, 479 P. 2d 902; State v. Martin, 208 Kan. 950, 495 P. 2d 89; State v. Winston, 214 Kan. 525, 520 P. 2d 1204; and State v. Jackson, 222 Kan. 424, 565 P. 2d 278.)
Acts done or declarations made before, during or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence. (State v. Platz, 214 Kan. 74, 76, 519 P. 2d 1097, and authorities cited therein.) Evidence that does not constitute a portion of the crimes charged is admissible if there is some natural, necessary or logical connections between them and the inference or result which they are designed to establish. (In re Estate of Isom, 193 Kan. 357, 394 P. 2d 21; State v. Fagan, 213 Kan. 587, 518 P. 2d 552; and State v. Brown, 217 Kan. 595, 538 P. 2d 631.)
The opinion of this court in State v. Martin, supra, bears directly upon this point, where the court said:
“On the other hand, the state maintains that evidence of the attack upon the nearby householder was admissible in its own right as bearing directly on the crimes with which Martin was being tried. Accordingly the state argues that no limiting instruction was required to be given in this case.
“We believe the state’s position is correct. The defendant’s visit to the neighbor’s home looking for the heavy-set man, a description which we are advised fit the victim, and the defendant’s unprovoked battery upon the hapless gentleman who opened the door are part and parcel of the sequence of events leading directly to the assault and the robbery which occurred a few minutes thereafter. This evidence had relevance other than as to character or disposition; it possessed evidential value to show commission of the crimes themselves, and was admissible for that purpose.
“K.S.A. 60-455 does, it is true, prohibit proof of a defendant’s disposition to commit crimes as a basis for an inference that he committed an offense on a specific occasion, except where such evidence is admissible to prove some relevant fact such as motive, intent, plan, etc. (State v. Whiters, 206 Kan. 770, 481 P. 2d 992.) This, however, is not to say that evidence directly relating to the commission of the offense charged is not independently admissible — and without limiting instructions — even though it could also have been admitted under 60-455 for limited purposes. Even though evidence may be inadmissible on the issue of character, it may be relevant otherwise — and thus be admissible.
“The admissibility of evidence tending directly to establish a crime is not destroyed because it discloses the commission of another and separate offense. Such is the rule generally and it has long been followed in this jurisdiction. . . .” (p. 952.)
Similarly, the defendant in State v. Hale, supra, was convicted of burglary in the third degree and larceny in connection therewith, and the court said:
“In our opinion the questions asked of the defendant were pertinent upon the central issue being litigated — the guilt or innocence of the defendant. The theft of the shotgun from another home in the neighborhood tends to establish the character of Mr. Hale’s sojourn in that area and was admissible under K.S.A. 60-455, for the purpose of showing intent, motive and method of operation. (State v. Holsey, 204 Kan. 407, 464 P. 2d 12, State v. Kowalec, 205 Kan. 57, 468 P. 2d 221.)
“Likewise, the evidence relating to the defendant’s plans and preparations to destroy his place of refuge by setting it on fire may properly be considered as part and parcel of his general scheme and as falling within the res gestae. The fashioning of an incendiary device, as testified to by his erstwhile friend, Judy, plus his actions in strewing clothing and heating elements about the house may logically be said to negative an innocent occupancy of the building. Such elaborate preparations for the destruction of the house would seem more consistent with an intention to cover up or conceal all traces of the burglary and resulting theft.” (p. 525.)
On the basis of the foregoing authorities the trial court did not err in admitting the challenged evidence at the trial of the appellant.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal from a personal judgment against Thomas L. Bach and in favor of Amoco Chemicals Corporation. The judgment was based on delivery and sale of merchandise to Western Supply Company, Inc. Amoco filed its petition alleging (1) that Bach was personally indebted to Amoco in the sum of $4,495.01, (2) that demand for payment had been made, and (3) that Bach refused to pay the amount due. Bach filed a general denial. A bench trial resulted in a judgment in favor of Amoco and against Bach personally for $863.04 plus costs.
Evidence introduced at trial established that Bach was the president, managing officer and principal stockholder of Western Supply. Western Supply was a farm supply corporation which received the merchandise and placed it in its inventory of goods for resale. Western Supply was not made a party to the action.
We have considerable difficulty in understanding the legal theory or basis for plaintiff’s judgment against Bach. The pleadings are drawn as a straight suit on an indebtedness due from Bach, an individual. The pretrial memorandum signed by the judge before trial recites:
“2. The issues are discussed as referred to in the letter of September 23rd overruling the motion for summary judgment of each of the parties. It would appear that the plaintiffs have the burden of proving a misuse of the corporation funds by the defendant Thomas L. Bach, who was at the time president and apparently the sole or principal stockholder.
“3. Plaintiffs desire to depose the defendant as to his handling of the funds. After discovery has been completed, the plaintiffs will be required to specify the factual basis for their claim that the defendant is liable for the debt of the corporation as to each of the plaintiffs.
“4. The issues to be tried include:
“1) Can Plaintiffs claim against Bach for the debts of the corporation and pierce the corporate veil?
“2) What is the effect on these claims of the letter dated November 15, 1973, and is defendant individually responsible?”
The letter of September 23, referred to in the pretrial memorandum, is not included in the record and the factual basis for the claim, which plaintiff was to specify at a later time, can only be gleaned from the evidence in the record and the arguments of defendant-appellant. The plaintiff Amoco did not appear on appeal so we do not have the benefit of a brief in support of the trial court’s judgment.
The memorandum opinion of the court, omitting the final paragraph, reads:
“It appears from the file and records in this case that, but for the November 15, 1973, letter which defendant caused to be mailed to claimant, plaintiff would have pursued its legal remedies to collect $4,495.01 owed by Western Supply, Inc.
“Although the letter was on the ‘Western Supply’ letterhead and was unsigned, it was prepared by defendant as sole owner, president and managing agent. It was obviously intended to persuade creditors that the filing of claims under the bulk sales procedure, Case No. 26-556 in this court, was unnecessary for the reason that ‘provisions have been made for this by our corporate officers.’
“Whatever was defendant’s purpose in mailing the November 15, 1973, letter, it was designed to promote action which was detrimental to claimant at a time defendant either knew or in the exercise of reasonable diligence should have known corporate assets were or would likely be insufficient to pay all debts.”
In the final paragraph of the memorandum opinion, which we have omitted above, the plaintiff, Amoco, was directed to prepare a journal entry granting judgment against Bach for an indefinite sum, “approximately 20% of $4,495.01.” A supplemental memorandum was prepared by the court later and mailed to counsel. It reads:
“The reason I was indefinité about the exact percentage is that it may be proper that the Amoco debt [claim] of $4,495.01 be added to the claims of $56,969.91 filed in the bulk sales case, or a total of $60,555.92, and the percentage of claims to be paid adjusted downward accordingly by dividing that total figure into $11,620.78, the amount which was available for distribution.
“I am advised the computation amounts to 19.2% of the debt claimed or $863.04 for which the Clerk has been instructed to enter judgment forthwith along with the costs in the amount of $53.30, which included one-half of the Tom Bach deposition costs paid by Amoco. Accordingly, no journal entry needs to be prepared.”
In order to understand the references made in the memoranda to “the November 15, 1973, letter” and to the claim “filed in the bulk sales case” a further explanation is necessary.
Western Supply was incorporated in June, 1971. Bach apparently loaned the corporation $85,000.00 to get it started in the retail business of selling farm supplies. Bach’s only withdrawal from the business during its operation was an annual salary of $2,900.00. After three years of operation the accountants for the business indicated in the financial statement that the corporation had amassed an inventory of merchandise valued at $143,000.00. In that period of time its losses from operations were about $40,000.00. Arrangements were made to sell all of the fixtures and merchandise inventory, except plumbing and electrical supplies, to the Tractor Supply Company. A contract was executed in November, 1973, providing for a sale under the Uniform Commercial Code (U.C.C.), K.S.A. 84-6-101, et seq., covering bulk transfers. The contract evidenced a sale and set out a formula for fixing a final sale price for the merchandise purchased. The fixtures were valued at $24,000.00 and the merchandise inventory included in the sale was limited under the formula to not more than $84,000.00. The formula for valuation was to determine the final price to be paid by Tractor Supply. The plumbing and electrical supplies, not included in the bulk sale, were estimated by Bach to be worth $15,000.00 based on the accountant’s financial statement. In advance of the sale Bach believed the debts of the corporation, excluding the $85,000.00 he had loaned the company, consisted of a secured bank loan of $81,197.76 and unsecured debts of $31,173.84, a total of $112,371.60.
The attorneys who were handling the legal details for the purchaser, Tractor Supply Company, notified the creditors of Western Supply of the bulk sale. Bach’s letter of November 15, 1973, referred to in the court’s memorandum opinion, was apparently mailed by Bach in explanation of the formal notice to creditors. The letter was on Western Supply stationery and sent on behalf of the corporation. It reads:
“As you have been advised recently, certain fixtures and inventory have been sold to Tractor Supply Co., Inc., Chicago, Illinois. This was announced to each of our creditors, as provided for in the Kansas Bulk Sales Act. However, we feel that our creditors may be somewhat misled, due to the poor wording of the notification by Tractor Supply Co. attorneys here in Ottawa, Anderson, Byrd & Richeson. We want you to know the following:
“1. Western Supply Co., Inc., is selling only certain assets to purchaser, and Western Supply is not disolving the corporation, but will not be involved in the farm supply business, after December 1, 1973.
“2. We feel that every creditor of Western Supply Company will be paid fully by December 15, 1973. Provisions have been made for this by our corporate officers. All debts of the corporation were listed by us, as required by Kansas law, but all assets of Western Supply have not and will not be sold to Tractor Supply, however, proceeds derived by Western Supply from Tractor Supply Co. will be sufficient to pay each of you what we owe you. In effect we will discontinue our farm supply business, and by doing so, will derive cash to pay every creditor we have.
“We want to take this opportunity to thank you for a good product, and wish you the best for the coming new year. If you have any questions, please feel free to contact us until December 15th, at the above address and phone.”
When the amount to be paid under the bulk sales agreement was figured a shrinkage in the merchandise inventory showed up of approximately $18,000.00. Under the previous contract Tractor Supply was obligated and did pay approximately $90,000.00. This was paid into the district court under the bulk transfer provisions of the U.C.C. After the secured claim of the bank was satisfied, there was only $11,620.78 left to pay unsecured claims. According to the court’s supplemental memorandum opinion unsecured claims filed in the bulk sales case totaled $56,969.91, instead of the $31,173.84 previously estimated by Bach.
The plumbing and electrical inventory, which was not included in the bulk transfer, was sold over the counter and suffered an even greater shrinkage. It appears this merchandise was sold out and brought slightly under $5,000.00. The amount realized was used to satisfy taxes owed by Western Supply to both the state and federal governments. Accordingly after a total liquidation of the firm’s assets there remained only $11,620.78 to pay unsecured claims of $56,969.91 filed in the bulk sales case. This did not include Amoco’s claim of $4,495.01.
With this background we turn to the questions raised on appeal. It is argued that there is no basis in the evidence to justify a disregard of the corporate entity and that the court erred in imposing individual liability on the president of the corporation for payment of the corporate debt.
We start with the basic premise that a corporation and its stockholders are presumed separate and distinct, whether the corporation has many stockholders or only one. Debts of a corporation are not the individual indebtedness of its stockholders. However, in an appropriate case the corporate form will be disregarded and the corporation and its stockholders may be treated as identical. (Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33; Kirk v. H.G.P. Corporation, Inc., 208 Kan. 777, 494 P.2d 1087; DeWitt Truck Brokers v. W. Bay Flemming Fruit Co., 540 F.2d 681 [1976].) Power to pierce the corporate veil is to be exercised reluctantly and cautiously. (DeWitt Truck Brokers v. W. Ray Flemming Fruit Co., supra; 1 Fletcher, Cyclopedia Corporations, Perm. Ed., § 41, p. 166.)
In Kilpatrick Bros., Inc. v. Poynter, supra, it is held:
“The corporate entity may be disregarded where it is used as a cloak or cover for fraud or illegality, or to work an injustice, or where necessary to achieve equity. When the corporation is the mere alter ego or business conduit of a person, the corporate fiction may be disregarded in the interest of securing a just determination of rights and liabilities.
“The doctrine of alter ego fastens liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business, such liability arising from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under it the court merely disregards corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation.” (205 Kan. 787, Syl. 4 and 5.)
Mere single ownership of a corporation may tend to generate suspicion regarding interrelated activities involving third parties but single ownership alone will not support the alter ego theory and justify a disregard of the corporate entity. (Kilpatrick Bros., Inc. v. Poynter, supra, Syl. 6; Robertson v. Roy L. Morgan, Production Company, 411 F.2d 1041 [1969].) In this regard it should be noted that statements to the contrary in Adams v. Morgan, 142 Kan. 865, 52 P.2d 643, and cases decided before the advent of our present corporation code are disapproved. Under the present law one person may incorporate (K.S.A. 17-6001), the board of directors may be composed of only one member (K.S.A. 17-6301 [b]) and although 3 officers are required — president, secretary and treasurer — “Any number of offices may be held by the same person unless the articles of incorporation or bylaws otherwise provide.” (K.S.A. 17-6302.) There is nothing requiring stock be held by more than one individual.
An examination of the cases discloses that some of the factors considered significant in justifying a disregard of the corporate entity are: (1) Undercapitalization of a one-man corporation, (2) failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) nonfunctioning of other officers or directors, (6) absence of corporate records, (7) the use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) the use of the corporate entity in promoting injustice or fraud. There is no evidence in the present record to establish any of these factors. The corporation was operated as a separate entity. The defendant Bach loaned the corporation $85,000.00 of his own funds which he never withdrew. His only receipts from the corporation appear to be a modest annual salary of $2,900.00. There was no evidence that Bach used the corporation to conduct personal affairs or that he wrongfully used corporation funds.
Finally, it would appear that the trial court did not enter the judgment against Baeh on the alter ego theory. The debt incurred by Western Supply totaled $4,495.01 and the court determined this to be the amount due Amoco. If the corporate entity had been disregarded under the alter ego theory the liability for the entire debt would fall upon Bach, not just a portion. The judgment was entered for only 19.2% of the $4,495.01 or $863.04. The judgment as entered cannot be upheld on the record before us by disregarding the corporate entity and imposing liability upon Bach on the theory of alter ego.
Considering the court’s references to the letter of November 15, 1973, and the form and amount of judgment awarded by the court the possibility of a tort theory of recovery needs to be examined.
A corporate officer or director acting on behalf of a corporation is personally liable for damages caused by his willful participation in acts of fraud or deceit to one directly injured thereby. (Kirk v. H.G.P. Corporation, Inc., supra, p. 779; McFeeters v. Renollet, 210 Kan. 158, Syl. 2, 500 P.2d 47; Meehan v. Adams Enterprises, Inc., 211 Kan. 353, 507 P.2d 849; State, ex rel., v. Koscot Interplanetary, Inc., 212 Kan. 668, Syl. 7, 512 P.2d 416.) A corporate officer or director, actively participating in the fraud practiced on behalf of a corporation, cannot escape personal liability on the ground that he was acting for the corporation or that the corporation obtained the benefit therefrom. (Russell v. American Rock Crusher Co., 181 Kan. 891, 895, 317 P.2d 847; see also 3A Fletcher, supra, § 1143, p. 228; 19 C.J.S., Corporations, § 850, p. 281; 19 Am.Jur.2d, Corporations, § 1386, p. 782.)
Under the authorities cited, in order to support a judgment based upon fraud practiced by Bach as president of the corporation, not only must it be shown that the statements contained in the letter of November 15,1973, were knowingly false or made in reckless disregard of the truth but also that Amoco omitted filing their claim in the bulk sales case in reliance on the statements in the letter.
There is no evidence in the record of any false representations made intentionally by appellant Bach. His estimates of the value of the merchandise inventory and the amount of the unsecured claims were based on accounts of the corporation prepared by a firm of accountants, Caldwell, Gibbons and Grogan. As later events turned out his statement that every creditor of Western Supply would be fully paid was untrue. He was likewise in error when he stated the proceeds of the sale to Tractor Supply would be sufficient to pay all the creditors. Bach was questioned at the trial as to these discrepancies. He testified:
“Q. So then, really, Mr. Bach, you knew at the time you wrote the letter to the creditors, of November 15th, you knew that you wouldn’t have enough money after payment by Tractor Supply, to pay the unsecured creditors, didn’t you.
“A. No.
“Q. Why?
“A. Well, because as the letter states, not all of the inventory was being sold to Tractor Supply, and at that time of the writing of the letter, it was not determinable at that time exactly how much inventory they were going to have.
“Q. Well, you knew it couldn’t exceed $84,000.00.
“A. Well, okay, considering the debts to other creditors, other than the unsecured creditors of Peoples National Bank of $82,000.00, including the approximately $31,000.00 that was owed to the unsecured creditors that had an amount of approximately $113,000.00, and according to the agreement that Western Supply Company, Inc., had with the Tractor Supply Company, it could total approximately $108,000.00. As you just stated, that would leave $5,000.00 to be derived from other inventory that Tractor Supply Company was not buying.”
The evidence in this case will not support a finding that Bach made the statements in the letter knowing they were false or that he made them in reckless disregard of the truth. It is apparent he was relying on the books of the corporation. He had no conscious knowledge that the books or his statements would turn out to be inaccurate. The falsity or inaccuracy of the statements depended on future events. The amount obtainable for the entire merchandise inventory was not determinable until the sales were completed. Using hindsight, he probably should have known the corporation owed more unsecured claims than $31,173.84 and that the book value of the inventory of the corporation would shrink when it was sold. However, such errors in judgment as to future events will not support a judgment based on a theory of false statements knowingly made or made in reckless disregard of the truth.
In addition we are unable to find any evidence in the record that Amoco relied on the statements in the letter or that the letter was the cause of their failure to file a claim in the bulk sales case. It was admitted they did not file a claim but there is no evidence in the record as to why they failed to do so, other than the testimony of Bach that he mailed the letter to all unsecured creditors. It appears that other creditors holding unsecured claims totaling $56,969.91 were not deterred in filing their claims in the bulk sales case.
One final matter bearing upon the fraud theory of recovery should be mentioned. Fraud is an affirmative matter to be pleaded and proven. There is no mention of fraud in the pleadings or in the pretrial memorandum and no factual basis was alleged from which such might be anticipated. Under the rules of civil procedure fraud is a special matter. The applicable statutory requirement reads:
“(b) Fraud, mistake, conditions of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” (K.S.A. 60-209 [b].)
(See also Weil &: Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. 7, 479 P.2d 875.)
The record filed on appeal will not support a judgment against the president and principal stockholder for the debt of the corporation on the theory of alter ego or on the theory of active participation in fraud practiced on behalf of the corporation.
Judgment reversed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by the petitioner in a proceeding instituted pursuant to K.S.A. 60-1507 wherein the trial court denied relief without an evidentiary hearing.
On March 22, 1971, an informant told Wichita Detective Jack Watkins that a gambling game at 3213 Locust Street would be held up. Police staked out the area. Shortly before midnight a Cadillac drove by the house and parked about a block away. Three men emerged from the car and walked around the house looking in the windows. They then returned to their car and started to leave. Officers attempted to stop the car, but the driver would not yield. During a short chase the occupants threw from the passenger side of the vehicle two pistols, a sawed-off shotgun, and a towel and pillow case made into a mask. When the car was stopped petitioner and two other men emerged. A search of the occupants and the vehicle uncovered two additional masks and shotgun shells.
The three men were charged with aggravated weapons violation (K.S.A. 1971 Supp. 21-4202), unlawful possession of a firearm within five years of a felony conviction (K.S.A. 1971 Supp. 21-4204), and conspiracy to commit robbery (K.S.A. 1971 Supp. 21-3302). A jury convicted them on both weapons charges. The convictions of petitioner and co-defendant Smith were reversed on appeal because they were tried jointly and it was determined their attorney had a conflict of interest. (State v. Sullivan & Smith, 210 Kan. 842, 504 P. 2d 190.)
Petitioner was retried on February 27, 1973. The second jury found him guilty of the weapons violation and of unlawful possession of a firearm. No direct appeal was taken.
On May 23, 1975, petitioner filed this 60-1507 motion alleging his convictions resulted from illegal wiretapping and perjury of which he was not aware until January 6, 1974. The only alleged fact supporting this allegation was that there was “no confidential informant in this case who gave any information to Det. Jack Watkins, W.P.D., at 10:00 P.M. on March 22, 1971, which indicated that Petitioner was going to pull a job. . . .” No facts were set forth which indicated the nature of the perjury or the illegal wiretap. To support his position petitioner proposed to subpoena all records, files and reports, and all law enforcement officers connected with the case, as well as the confidential informant. There was no indication what the records and files contained or what the testimony of the witnesses would be.
The trial court dismissed the petition without an evidentiary hearing on the basis that there were no facts alleged or set forth in the motion supporting petitioner’s conclusionary allegations. The trial court further noted the same contentions had been presented in federal court in a civil damage action and in a proceeding for a writ of habeas corpus, and both actions had been dismissed.
On October 10, 1975, petitioner filed notice of appeal and counsel was appointed. A motion was filed to allow petitioner to file an amended 60-1507 motion. This was denied.
Petitioner contends the trial court erred (1) in denying an evidentiary hearing and (2) in denying his motion to amend his 1507 motion after counsel was appointed.
To be entitled to an evidentiary hearing on a post-conviction motion under K.S.A. 60-1507 the movant is required to allege a factual basis in the motion to support his claim for relief. It is well established that the mere conclusionary contention that a petitioner is entitled to relief, for which no factual basis appears in the record, is not sufficient to require an evidentiary hearing for post-conviction relief. (Hicks v. State, 220 Kan. 279, 552 P. 2d 889; Burns v. State, 215 Kan. 497, 524 P. 2d 737; Peterson v. State, 215 Kan. 253, 524 P. 2d 740.) While corroboration of petitioner’s statements or allegations is no longer required (Morrow v. State, 219 Kan. 442, 548 P. 2d 727), a petition must set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief. (Hicks v. State, supra; Rhone v. State, 211 Kan. 206, 505 P. 2d 673; Hacker v. State, 207 Kan. 195, 483 P. 2d 484; Lee v. State, 204 Kan. 361, 461 P. 2d 743; Wagner v. State, 199 Kan. 154, 427 P. 2d 495.)
Although petitioner alleges perjury, a charge which if proven would undermine his conviction (Rodgers v. State, 197 Kan. 622, 419 P. 2d 828), he does not set forth facts to support his conclusion and has identified no witnesses upon which he relies for proof. The trial court correctly ruled that a hearing was not required on this claim. (Van Bebber v. State, 220 Kan. 3, 551 P. 2d 878; Potts v. State, 214 Kan. 369, 520 P. 2d 1259.)
To support his charge of an illegal wiretap petitioner proposed to call as witnesses all law enforcement officers involved with his case. This nomination of potential witnesses is no more adequate than existed in Cook v. State, 220 Kan. 223, 552 P. 2d 985. There the petitioner proposed to call “a jailer” who would support an allegation that petitioner was placed in an illegal line-up. On appeal, this court affirmed the trial court’s conclusion that this was not a sufficient basis to require an evidentiary hearing.
While petitioner alleges he should have been afforded an opportunity to amend his petition after counsel was appointed and it was error for the trial court to refuse to grant leave, petitioner did not demonstrate to the trial court how he might amend his petition to show he was entitled to relief. Under those circumstances the trial court did not abuse its discretion in overruling the motion to amend.
For the reasons set forth the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a postconviction proceeding filed pursuant to K.S.A. 60-1507. On August 17,1973, Abraham Talley was tried in Shawnee county district court and convicted of aggravated robbery (K.S.A. 21-3427). Talley attempted to take a direct appeal from his conviction but the appeal was dismissed for want of jurisdiction since the notice of appeal was not filed within the time allowed by statute. At the trial Talley denied committing the offense and testified to an alibi. When he attempted to introduce the testimony of other witnesses in support of his alibi, the district attorney objected because of the failure of the defendant to give timely notice of plea of alibi in accordance with K.S.A. 22-3218. That section in pertinent part provides as follows:
“22-3218. Plea of alibi; notice. (1) 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 thereon the names of witnesses he proposes to use in support of such contention.
“(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.
“(3).........
“(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged. In the event the time or place of the crime has not been specifically stated in the complaint, indictment or information, and the court directs it be amended, or a bill of particulars filed, as above provided, and the prosecuting attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the crime other than alleged, but within the period of the statute of limitations applicable to the crime and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the crime.”
The district court sustained the state’s objection, ruling that since no notice had been given by defendant as required by the statute evidence other than the testimony of defendant supporting a defense of alibi would not be received into evidence. In this proceeding Talley attacks the constitutionality of K.S.A. 22-3218 as a violation of the due process clause of the Fourteenth Amendment to the United States Constitution. In view of the ruling in Wardius v. Oregon, 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208, we hold that K.S.A. 22-3218 is unconstitutional as violative of due process. Hence, the conviction and sentence must be vacated and a new trial granted Talley in the prior criminal proceeding.
In Wardius the court reversed a criminal conviction of an accused who was denied the opportunity to introduce alibi evidence because of failure to give timely notice of alibi as required by an Oregon statute. In the opinion the court stated:
“We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed.” (p. 472.)
While there are some differences between the Oregon alibi statute and 22-3218, these differences are without legal significance. The Oregon statute and the Kansas statute are significantly similar in that neither provides for reciprocal exchange of alibi evidence. K.S.A. 22-3218, although requiring a defendant to furnish the prosecutor with a timely notice of alibi with the names of defendant’s witnesses endorsed thereon, contains no provision requiring the state to furnish the names of witnesses it plans to use to refute the alibi defense.
In its brief the state concedes that K.S.A. 22-3218, within itself, does not provide for reciprocal discovery. It maintains, however, that the Kansas code of criminal procedure must be viewed as a whole. It directs our attention to K.S.A. 22-3201 (6) which requires the state to endorse on the information the names of all witnesses known to the prosecuting attorney at the time of filing the same. That statute further provides that the prosecuting attorney may endorse thereon the names of other witnesses who may afterwards become known to him as the court may by rule prescribe. It is the position of the state that the provisions of K.S.A. 22-3201 (6) are intended to provide for discovery by the defendant of rebuttal witnesses to the same extent as the discovery of state witnesses to be used by the state in its case in chief. Hence, it is argued that full reciprocal discovery rights of witnesses are allowed the defendant even though they are not provided for in the alibi notice statute itself.
K.S.A. 22-3201 was enacted as a part of the new code of criminal procedure effective July 1, 1970. Its predecessor was K.S.A. 62-802 (Corrick) which provided as follows:
“62-802. Informations; duties of prosecuting attorney. Informations may be filed during term time or in vacation in any court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant. He shall subscribe his name thereto, and endorse thereon the names of the witnesses known to him at the time of filing the same. He shall also endorse thereon the names of such other witnesses as may afterward become known to him, at such times before the trial as the court may by rule or otherwise prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant, or some other person.” (Emphasis supplied.)
A comparison of 22-3201 (6) with 62-802 does not reveal any significant differences. Both statutes require the prosecuting attorney to endorse on the information the names of the witnesses known to him at the time of the filing of the same. In each statute the prosecuting attorney may be permitted to endorse the names of other witnesses as may afterward become known to him within the discretion of the trial court.
The difficulty with the state’s position is that throughout our judicial history we have consistently held that a prosecuting attorney is not required to endorse on the information the names of rebuttal witnesses and that a rebuttal witness may testify even though his name has not been endorsed upon the information. (State v. Dickson, 6 Kan. 209; State v. Wood, 118 Kan. 58, 233 Pac. 1029; State v. Bean, 181 Kan. 1044, 317 P. 2d 480.) Following the lead of these cases the trial courts of this state have usually not required the names of rebuttal witnesses to be endorsed on the information or to be furnished to the defendant or his counsel in advance of such witnesses being called on rebuttal.
Our former alibi statute, K.S.A. 62-1341 (Corrick), is quite similar to K.S.A. 22-3218. It was challenged as an unconstitutional denial of due process in State v. Rider, 194 Kan. 398, 399 P. 2d 564; and in Jenkins v. State, 211 Kan. 593, 506 P. 2d 1111. Both of these cases were determined prior to the decision in Wardius and upheld the constitutionality of 62-1341. After Jenkins was denied relief in this court, he filed a habeas corpus petition in the United States District Court challenging the constitutionality of 62-1341, relying upon Wardius which had been handed down in the interim. In an unpublished opinion (Virgil Jenkins v. Atkins, No. L-2738) Judge Arthur J. Stanley, Jr., ruled on the constitutionality of 62-1341 holding it unconstitutional for failure to provide for reciprocal discovery. Immediate relief was, however, denied to bring to the Kansas supreme court’s attention the decision in Wardius. Jenkins appealed the denial of immediate relief to the 10th Circuit Court of Appeals. That court found it unnecessary to pass on the constitutionality of the statute since the state of Kansas had not appealed from the district court’s finding that the alibi statute (62-1341) is unconstitutional. The court of appeals reversed the case with directions to the district court to issue a writ of habeas corpus, reserving the right of the state of Kansas to retry the petitioner on the robbery charge if it should wish to do so. (Jenkins v. Atkins, 515 F. 2d 1078 [10th Cir. 1975].)
In this case we are faced with the same situation encountered by appellate courts in other states having similar alibi statutes. Following Wardius, they have held such statutes unconstitutional. (Allison v. State, 62 Wis. 2d 14, 214 N. W. 2d 437 [1974]; Commonwealth v. Contakos, Appellant, 455 Pa. 136, 314 A. 2d 259 [1974]; People v. Fields, 59 Ill. 2d 516, 322 N. E. 2d 33 [1974].) It is clear to us that K.S.A. 22-3218, read alone, or in conjunction with 22-3201 (6), does not require the prosecuting attorney to furnish to defendant the names of witnesses it plans to use to refute an alibi defense. Since 22-3218 does not require reciprocal discovery, that statute is unconstitutional as a denial of due process of law. This case must therefore be reversed and remanded to the trial court with directions to vacate the conviction and sentence and to grant Abraham Talley a new trial on the original charge of aggravated robbery.
In order to preserve the alibi notice requirement this court, by order entered May 10, 1977, pursuant to the authority of K.S.A. 1976 Supp. 22-4601, has amended K.S.A. 22-3218, Section (2), to provide for reciprocal discovery by requiring the state to file and serve on the defendant or his counsel the names of witnesses known to the prosecuting attorney which the state proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of a criminal case. Specifically 22-3218 (2) has been amended to read as follows:
“22-3218. Plea of alibi; notice.
“(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.
“Within seven days after receipt of the names of defendant’s proposed alibi witnesses, or within such other time as is ordered by the court, the prosecuting attorney shall file and serve upon the defendant or his counsel the names of the witnesses known to the prosecuting attorney which the state proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the case. Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided by this section so that reciprocal discovery rights are afforded both parties.” (Emphasis supplied.)
In accordance with K.S.A. 1976 Supp. 22-4601 the amendment to 22-3218 shall take effect upon its being filed with the clerk of the supreme court and upon its publication in the advance sheets of the Kansas Reports.
In view of our holding in this opinion it is not necessary to consider the other point raised by Talley in his 60-1507 petition.
The judgment of the district court is reversed and the case is remanded with directions to vacate the conviction and sentence and grant the petitioner Abraham Talley a new trial. | [
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Prager, J.
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Per Curiam:
Reversed with directions. | [
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The opinion of the court was delivered by
Miller, J.:
This proceeding in the nature of quo warranto was commenced by the state on relation of the district attorney of the twenty-ninth judicial district (Wyandotte County) to oust Shirley Cahill and Joe Mulich, the defendants-appellants, from their elective positions as members of the Board of Public Utilities of Kansas City, Kansas. The matter was heard by three of the senior district judges of that district, sitting en banc. Judgment was entered ousting the defendants from office. They appeal and the state cross-appeals. The principal issue is whether the findings of the trial court are supported by substantial competent evidence, and whether the findings support the court’s conclusions of law. Other points raised will be stated as they are addressed in the opinion.
The Board of Public Utilities of Kansas City, Kansas (referred to herein as the Board or the B.P.U.) is a five-member panel which directs the operation of the publicly owned water and electric utility systems in that city. It was created in 1929 by enactments of the legislature which now appear as K.S.A. 13-1220, et seq. Members of the Board are elected by the city at large for four-year terms. Shirley Cahill and Joe Mulich were so elected, and took office on April 7, 1975. The Board then consisted of Paul A. Haas, president of the board; James H. Browne; Shirley Cahill; Joe Mulich, and Al Bukaty, secretary. Mr. Bukaty resigned from the Board a few days before this proceeding was commenced, and Joe Mulich was then elected secretary.
The petition for ouster was filed on November 12, 1975. It contained nine causes of action. Two related to Mulich alone, seven concerned both defendants. All charges were denied. Trial commenced on December 1, 1975, and was concluded on December 11, 1975. The trial court filed a written memorandum on the following day. The court found willful misconduct in office on the part of both defendants as charged in the first cause of action, and it found willful misconduct on the part of Mr. Mulich with respect to the sixth cause of action. On this basis it ruled that the defendants had forfeited their office and the court ousted them from their elective positions.
The first and sixth causes of action, omitting formal allegations, read as follows:
(First cause of action.)
“That on or about May, June or July, 1975, [Shirley C. Cahill and Joe Mulich] did willfully misconduct themselves in said offices by the following actions, to-wit:
“(A) On May 9,1975, the defendant, Shirley C. Cahill, was advanced the sum of eight hundred dollars ($800.00) by the B.P.U., upon her request, as expense money to attend an APPA conference in Boston, Massachusetts, said eight hundred dollar ($800.00) expense money being in addition to her airfare in the amount of two hundred, twelve dollars and seventy-three cents ($212.73) which was paid directly by the B.P.U. The defendant, Shirley C. Cahill traveled to and stayed in Boston, Massachusetts, for five (5) days and nights, from May 15th to May 20th, 1975, while said conference was in session. Sometime in June, July, or August, 1975, an exact date being unknown, Shirley C. Cahill did file an expense report with the B.P.U. for said APPA conference showing expenses of eight hundred, forty dollars and fifty-seven cents ($840.57). The presentation of said expense report and the acceptance of public funds as payment for her alleged expenses constitutes willful misconduct as the bill was excessive and knowingly padded.
“(B) On May 9, 1975, the defendant, Joe Mulich, was advanced one thousand, two hundred dollars ($1,200.00), upon his request, by the B.P.U., as expense money to attend an APPA conference in Boston, Massachusetts, said one thousand, two hundred dollars ($1,200.00), expense money being in addition to his airfare in the amount of two hundred twelve dollars and seventy-three cents ($212.73) which was paid directly by the B.P.U. The defendant traveled to and stayed in Boston, Massachusetts, for five (5) days and nights, from May 15th to May 20th, 1975, while said conference was in session. On July 3, 1975, the defendant, Joe Mulich, filed an expense report with the B.P.U. for said APPA conference showing expenses of one thousand, two hundred, three dollars and twenty-two cents ($1,203.22). The presentation of said expense report and the acceptance of public funds as payment for his alleged expenses constitutes willful misconduct as the bill was excessive and knowingly padded.
(Sixth cause of action.)
“That on or about the 28th day of August, 1975, the defendant, Joe Mulich, willfully misconducted himself in said office by the following action, to-wit: On said date, Joe Mulich, along with Al Bukaty, a former board member who has since resigned, instructed the purchasing department of the B.P.U., as members of the Board, to cease purchasing hardware and related items from Tuckers Hardware and to begin buying the same hardware items from one Andy Mulich, the defendant’s brother, who is the proprietor of a paint store. Said instruction to the purchasing department was carried out and the B.P.U. began purchasing hardware products from Andy Mulich.
“That the said aforementioned conduct of the said Joe Mulich, acting in his capacity as member of the Board of Public Utilities, legally constitutes willful misconduct in office.”
The memorandum decision of the district court filed December 12, 1975, reads in pertinent part as follows:
“The Court having reviewed the evidence and considered the arguments of counsel and the authorities cited, does now make the following findings and rulings:
"1. It is our opinion that members of the Board of Public Utilities who attend a convention should be allowed their actual, reasonable and necessary expenses for attending meetings, including travel, subsistence and other expenses reasonably related to the legitimate business of the Board of Public Utilities, and that they are under a duty to present reasonable evidence of such expenses. This does not include expenses that are purely personal in nature. On this basis, we find the expense accounts of the defendants, Exhibits 15 and 16, are false, excessive and knowingly padded, and were done with a wrongful motive, and constitute willful misconduct in office on the part of each of the defendants. Evidence submitted by the defendants of alleged similar conduct on the part of past Board members is not, in our opinion, a defense in this case. Members of the Board of Public Utilities are the only public officials we know of whose expense accounts are not subject to review by some authority.
“7. With respect to the sixth cause of action, we hold that Mr. Tomasic has proven his claims. It would have been entirely proper for a Board member to check into the procedure for purchasing supplies and services and to have brought it before the Board for action. But the conduct of defendant Mulich in instructing George Bartolac, Purchasing Agent, to terminate the purchase of supplies from Tucker and to buy hardware supplies from the Andy Mulich Paint Store is ruled to be willful misconduct in office.
“12. Ouster is a drastic action. It is a remedy that should be invoked only where the evidence is clear and convincing and the misdeeds flagrant. It is our judgment that the facts and the law in this case demand a ruling that these defendants have forfeited their office and should be ousted from their elective positions as members of the Board of Public Utilities.
“IT IS SO ORDERED.
“Dated at Kansas City, Kansas, this 12th day of December, 1975.”
Appellants contend that the findings of the court on the first cause of action are contrary to the evidence, and that the findings do not support the court’s conclusions of law. The targets of the first cause of action are claims for travel expense which were filed by the defendants and paid by the B.P.U.
Mr. Haas, Mrs. Cahill, and Mr. Mulich, as authorized representatives of the B.P.U., attended an annual conference held by the American Public Power Association in Boston, Massachusetts during May, 1975. Plane and hotel reservations were made in advance for them by B.P.U. employees, and the cost of transportation by air was paid directly to the air line by the B.P.U. Hence, air travel expense is not an issue here. Prior to leaving on the trip, Mr. Haas and Mrs. Cahill each drew an advance from the B.P.U. of eight hundred dollars, and Mr. Mulich drew twelve hundred dollars.
Mr. Haas returned one day earlier than the others, and his expenses cover a four-day period, while theirs each covers five days. Haas’s total claim, including his hotel bill of $215.64, was $286. He refunded the difference between his expenses and his advance, or $514, to the B.P.U.
Mrs. Cahill’s total claim was $840.57; Mr. Mulich’s was $1203.22. The B.P.U. paid the difference between the advances and the claims, $40.57 to Mrs. Cahill and $3.22 to Mr. Mulich.
The single rate at the convention hotel was high — $53.91 per day, including tax. This charge was, of course, beyond the control of the delegates. Mr. Haas claimed reimbursement for the exact amount of his hotel bill; Mrs. Cahill’s and Mr. Mulich’s claims varied slightly but not significantly from the actual charges. The disputed areas of the Cahill and Mulich claims are amounts claimed for meals, taxi fares, and entertainment. For meals, Mulich claimed $216, Cahill, $150, and Haas, $51.84. For taxi fares, Mulich claimed $211.30, Cahill, $148, and Haas, $4.75. For entertainment, Mulich claimed $363.56, Cahill, $135.20, and Haas, nothing.
As to meals, Haas testified that he, Mrs. Cahill, and Mr. Mulich all attended at least three dinners, perhaps four, and one noon luncheon, all of which were put on by manufacturing and engineering firms. The host firm not only paid for these meals, but also picked up the cab fare when the dinner was held somewhere other than in the convention hotel. Haas paid only for his breakfasts and noon luncheons. Mrs. Cahill remembered attending only one function — a cocktail party — which Mr. Haas attended. She contended that she purchased all of her meals. She had prepared some notes for trial, calling on her memory as she was best able; these showed daily breakfasts at $12 each, including tips; lunches from $23 to $30; and dinners from $45 to $50 for each of the first four days. Mr. Mulich recalled attending only one dinner at which Mr. Haas was present. Mulich contended that he purchased all of his meals. In short, the evidence was disputed as to whether Mrs. Cahill and Mr. Mulich paid the claimed amounts for their meals, or whether most of the expense for their meals was borne by others.
As to taxi fares, Mr. Haas testified that other than to and from the airport in Boston, cab fares were paid by the firms sponsoring the dinners, and other use of cabs was unnecessary. Mr. Mulich testified that he stored his car at the airport in Kansas City, and included that charge under the taxi fare heading; that he rented a car in Boston at a cost of some sixty-some dollars, to take a short trip to see the “Plymouth or the Mayflower or whatever” on a Sunday, and he included that car rental under taxi fares; that he considered that a trip on business of the B.P.U., since he was there; and that he did use a taxi while he was in Boston. Mrs. Cahill testified that her husband paid the cab fare for Mr. Haas from the Boston airport to the hotel, approximately twenty dollars. Neither Mrs. Cahill nor Mr. Haas gave any further explanation as to their claims for taxi fares.
As to entertainment, Mr. Mulich testified that he had a “hospitality room” in his hotel room, and that he entertained other delegates. He purchased liquor and supplies from a supermarket, and invited “whoever wanted to come by to come on up.” The cost of this was $150. In addition, he contended that he spent $213.56 for “dinner — light lunch or whatever” for other delegates. Mrs. Cahill did not explain the $135 item for entertainment on her claim voucher, other than to say that the total amount of her claim was correct, and she did not give directions to list that amount for “entertainment” when her claim voucher was being prepared. Mrs. Cahill’s notes, prepared for trial, showed substantial daily entries for “entertainment.” These were not further explained.
Mr. Haas, president of the Board, testified in effect that he did not do any entertaining, and he did not know of any hospitality room, dinners or other entertainment provided by Mrs. Cahill or Mr. Mulich for anyone else.
This evidence presented an issue for resolution by the trier of fact: whether the defendants knowingly presented claims for reimbursement for expenses they did not incur, or which they knew to be purely personal in nature, or whether the claimed expenses were reasonable, necessary, and actually incurred. The findings of the trial court are supported by substantial competent evidence, and will not be disturbed on appeal.
K.S.A. 60-1202 provides in substance that an action in quo warranto may be brought “whenever any public officer shall have done or suffered any act which by the provisions of law shall work a forfeiture of his or her office.”
K.S.A. 60-1205 sets forth the grounds for forfeiture of public office:
“Every person holding any office of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, except those subject to removal from office only by impeachment, who shall (1) willfully misconduct himself or herself in office, (2) willfully neglect to perform any duty enjoined upon him or her by law, or (3) who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit his or her office and shall be ousted from such office in the manner hereinafter provided.”
The commissioner of waterworks and street lighting of Kansas City, Kansas was ousted from office by this court in 1927. State, ex rel., v. Darnall, 123 Kan. 643, 256 Pac. 974. One of the findings of the commissioner in that case was that Darnall filed a claim against the city for his alleged expenses in making a trip to San Francisco to attend a convention, which bill was paid in full out of city funds; and that the bill was “ ‘a false bill, excessive, and knowingly padded by the defendant, C. D. Darnall, and constitutes gross and willful misconduct’ ” on his part. This court approved the commissioner’s findings, concluded that Darnall had willfully misconducted himself in office, and entered judgment of ouster. We adhere to and reaffirm the view therein expressed, that the presenting of a false and excessive claim, knowingly padded, constitutes willful misconduct in office.
We do not mean to imply that public officials may not attend banquets or luncheons scheduled as a part of a conference or convention, and claim reimbursement for the required cost thereof; neither, as Judge Claflin expressed it during this trial, is it expected that persons attending such functions will eat at McDonald’s. Likewise, minor and unintentional errors in claims of public officials for reimbursement of expenses do not indicate an intent to defraud or constitute willful misconduct in office. But intentional claims for expenses not actually incurred, and grossly excessive claims, willfully presented, fall into a separate and much more serious category.
We conclude that the trial court’s findings of fact fully support its conclusions of law, and the action taken. The trial court recognized that ouster is a drastic action, and should be invoked only where the evidence is clear and convincing, and the misdeeds flagrant.
Although quo warranto was a writ of right at common law, actions in the nature of quo warranto are now generally held to invoke the discretionary powers of the trial court and thus the grant or denial of relief rests within its sound discretion. State, ex rel., v. Lane Rural High School District, 173 Kan. 1, 243 P.2d 232; and see 65 Am. Jur. 2d, Quo Warranto § 10, p. 236. This is proper and just, since minor infractions should not make such drastic relief mandatory.
Here, the trial court has exercised its discretion by decreeing ouster. It had the advantage of hearing all of the evidence directly from the witnesses and was able to observe the giving of the testimony. We cannot say that the trial court abused its discretion, and we find no error here.
Defendants (or more properly Mr. Mulich, to whom the sixth cause of action applies) contend that the findings of the trial court on the sixth cause of action are contrary to the evidence, and likewise do not support the trial court’s conclusion of law. The evidence favorable to the plaintiff, and thus with which we are here concerned since we cannot weigh the evidence and make findings of fact, is as follows: The B.P.U. had been purchasing industrial hardware supplies from Tucker Hardware, the only wholesale hardware firm in Kansas City, Kansas, for about fifty years. Tucker issues a catalog, listing and pricing its merchandise, and thus its merchandise descriptions and prices were known to purchasing agents of the B.P.U., as well as to other hardware merchants in the area. The Board also made smaller purchases each year from the Stowe, Miller and Strasser Hardware Stores.
George Bartolac, purchasing agent for the B.P.U., testified that board members Joe Mulich and A1 Bukaty came to his office and closed the door about 1:15 o’clock p.m. on August 28, 1975. They told him that he was to do no more business with Tucker Hardware, and to tell his associates and the employees in his department that this was a directive of the Board. Mr. Mulich directed Bartolac to buy hardware thereafter from the Andy Mulich Paint Store. (Andy Mulich is a brother of appellant Joe Mulich.) Before they left, Bukaty said, “If anyone finds out that we were in here and tells this, we will know where it came from.”
Bartolac immediately stopped buying from Tucker, and purchased his hardware supplies from Andy Mulich, though the prices were generally much higher. Later, when items supplied by the Andy Mulich Paint Store were not correct, Joe Mulich came to Bartolac and told him that he would get it straightened out. Also, when Bartolac found that he could not get some required items anywhere except from Tucker, he discussed this problem with A1 Bukaty. Bukaty then authorized the purchase of those items from Tucker, and Bukaty called Joe Mulich from Bartolac’s office and told Mulich that he had authorized Bartolac to buy certain hard-to-get items from Tucker.
This testimony was disputed, and contrary evidence was received. But the evidence favorable to the state was substantial and competent, and entirely adequate to support the trial court’s implicit findings that Mulich gave a direct order to Bartolac to spend public funds in purchasing hardware from his brother, regardless of price or any other factor. The evidence further indicates that after the August 28 conversation, Mulich was monitoring purchases made by the purchasing department, in order to insure that his directive was being followed.
We have held that it is willful misconduct in office for a public officer to cause a public agency to pay excessive prices for items it purchases. State, ex rel., v. Howard, 123 Kan. 432, 256 Pac. 172.
We conclude that the evidence as to cause of action No. 6 was substantial and competent to support the trial court’s findings, and its findings support its conclusions of law and the action taken. What has been said above relating to the trial court’s action on the first cause of action need not be repeated here.
Next, appellants contend that the trial court erred in refusing to continue the trial of the cause or dismiss the case or impose other sanctions as provided by K.S.A. 60-237, because of the failure of the plaintiff to produce copies of statements taken before trial. The record indicates that a few days before trial, both parties requested copies of statements taken by the other, and the trial court ordered a simultaneous exchange. This had not been accomplished by the first day of trial. At that time the trial court directed the parties to exchange tapes or transcripts or whatever was available pertaining to each witness by noon of that day. Presumably this was done, and there is no further mention of any difficulty in this regard in the record before us. We have often held that the granting of a continuance rests within the sound discretion of the trial court, and its judgment will not be overturned absent an abuse of discretion. Likewise, the imposition of sanctions under the discovery rules is a matter vested in the sound discretion of the trial court. No prejudice is shown in the record before us, and we find no abuse of discretion, and no error.
Appellants next contend that the trial court erred to the prejudice of the appellants, by permitting plaintiff to introduce evidence on the fifth, seventh and eighth causes of action, when those causes of action did not state grounds upon which relief could be granted as a matter of law.
The trial court heard evidence as to all charges; it then resolved all of the issues in one memorandum, by which it absolved the defendants of any wrongdoing on the charges contained in the fifth, seventh and eighth causes of action. We note that each of those causes of action stated grounds which, if established, would entitle the plaintiff to the relief sought, or at least would constitute grounds for ouster in the discretion of the trial court. Defendants demonstrate no prejudice, and we find none in the handling of the trial in this regard.
Defendants next claim that the trial court erred as a matter of law in denying defendants’ application for an order directing the news media, during the pendency of the trial, not to publish newspaper accounts containing a synopsis of or excerpts from or any narrative form of the testimony of witnesses. The trial court placed the witnesses “under the rule” during the trial of this action; defendants contend that this action was nullified by the court’s failure to prohibit the news media from reporting the evidence received in open court. Again, defendants claim prejudice but they do not demonstrate it in the record before us. None of the cases cited are civil in nature, and none of them deal with the reporting of proceedings in open court. In a recent case involving a partial gag order issued prior to trial by a Nebraska court, the United States Supreme Court in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 49 L.Ed.2d 683, 96 S.Ct. 2791 (1976) struck down the gag order, saying:
“To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated settled principles; ‘there is nothing that proscribes the press from reporting events that transpire in the courtroom.’ . . .” (p. 568.)
And see Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 51 L.Ed.2d 355, 97 S.Ct. __ (1977).
Clearly, the trial court did not err in refusing appellants’ motion; the news media was quite properly permitted to report proceedings which took place in open court. The need for the public to know what is going on in an ouster proceeding is substantial, and certainly outweighs the remote possibility of prejudice to parties in this civil proceeding.
We have carefully examined each of the remaining points raised by the appellants. Eight of these deal with rulings of the trial court on evidence, and we have in each instance reviewed the record and the ruling of which complaint is made, and we find no error. Discussion of the remaining point would unduly prolong our opinion and add nothing of value to it; we have ruled on each of these points before.
This is a fact case. From the voluminous record it is apparent that the trial court carefully considered the testimony of the more than fifty witnesses who testified in this case, and that its judgment is amply supported by the record and should, be affirmed. We conclude that the court committed no prejudicial error.
The issues raised on the cross-appeal need not be decided, for those issues become moot upon the affirmance of the judgment below.
Before leaving this case, however, we commend the trial judges in the expeditious handling of this matter. It is in the public interest that such cases be tried and determined with dispatch. The hearing of such matters by three judges sitting en banc, as was done here, is appropriate where it appears that the evidence will be sharply conflicting, the law difficult, and the public interest keen.
The judgment of the trial court, ousting Shirley Cahill and Joe Mulich from their elective positions as members of the Board of Public Utilities of Kansas City, Kansas, is affirmed. The cross-appeal is dismissed as moot. | [
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The opinion of the court was delivered by
AlleN, J.:
The heirs of Rodney J. Park, deceased, filed objections to the final settlement of N. C. Emery as administrator of the estate of Rodney J. Park. Upon appeal to the district court, amended objections were filed. The American Surety Company, as surety on the bond of the administrator, demurred to the amended objections (hereinafter referred to as plaintiffs’ petition) upon the ground that the cause of action, if any, was barred by the statute of limitations, and for the reason that the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled and the surety company appeals.
Rodney J. Park, a resident of Ottawa county, Kansas, died intestate, June 5, 1928. N. C. Emery was appointed administrator and duly qualified as administrator of the estate, and gave bond in accordance with the provisions of the statute, now G. S. 1935, 22-313, dated and approved June 22, 1928. The defendant American Surety Company of New York signed the bond as surety.
The petition alleges:
“First: That on or about the 22d day of June, 1928, the said N. C. Emery was duly appointed administrator of the estate of Rodney J. Park, deceased, and that on or about the date of his said appointment, the exact date being to these appellants unknown, the said N. C. Emery as such administrator came into possession of and took under his control and custody and management as such administrator, eighteen (18) shares of the' capital stock of the Farmers State Bank of Tescott, Kan., which said bank stock was owned by said Rodney J. Park, deceased, at the time of his death, and that thereafter and on or about the 23d day of June, 1928, the said bank stock was duly listed and appraised as part of said estate and was appraised by the appraisers appointed in said estate at a valuation of four thousand fifty dollars (84,050), and at the time of said appraisement and for many months thereafter, the exact period of time appellants are unable to state, was of the actual and fair market value of the sum of $4,050, and that said bank stock could be readily sold at such time of appraisement and for many months thereafter for the sum of $4,050, and which fact of value and sale possibility was well known to the said N. C. Emery, as administrator of the estate of Rodney J. Park, deceased; that at the time of said appraisement and for more than three years thereafter the said N. C. Emery was cashier of said Farmers State Bank of Tescott, Kan., and was a stockholder in said bank and well knew the market value of said stock, and that within a period of ninety (90) days from and after the appraisement of said bank stock on or about the 23d day of June, 1928, and for many months thereafter, the exact time being to appellants unknown, the said N. C. Emery as administrator of said estate' of said Rodney J. Park, deceased, could have sold said bank stock for the market value of $4,050.
“Appellants further state that at the time of his appointment as such administrator of said estate the said N. C. Emery furnished to said estate a surety bond in the sum of seven thousand dollars ($7,000) and that the said N. C. Emery executed said bond as principal and American Surety Company of New York as surety, and said bond was taken and approved by the probate judge of Ottawa county, Kansas, on the 22d day of June, 1928, and that a true and correct copy of said bond is hereto attached and marked “Exhibit A,” and made a part of the objections filed herein.
“Appellants further state that for a period of approximately nine (9) months from and after the 22d day of June, 1928, the market value of said bank stock was of the sum of $225 per share or a total of $4,050, and said bank stock could have been readily sold by the said N. C. Emery, as such administrator, for the sum of $225 per share for said eighteen shares; that on or about the 28th day of July, 1928, the personal property of said estate, except the bank stock of eighteen shares and the Farmers Elevator stock of Tescott, Kan., one share, was sold by said administrator and that the only debts of said estate remaining was a note of approximately $2,200 owing by said Rodney J. Park in his lifetime to the Farmers State Bank of Tescott, Kan., and that if said bank stock had been sold by the said N. C. Emery within a period of approximately nine (9) months from and after June 23, 1928, the said stock would have brought the sum of $4,050, leaving a balance of $1,850 for distribution, but appellants allege and state the facts to be that the said N. C. Emery, as administrator, in bad faith and for personal gain and profit without any legal cause or excuse therefor wrongfully and negligently failed and neglected to sell and dispose of said bank stock or any part thereof, and on account of the acts and conduct of the said N. C. Emery as such administrator and as hereinbefore stated in failing and neglecting to sell and dispose of said stock in said bank said shares of stock on or about the month of January, 1932, the exact time to appellants being unknown, became and continued to remain to and including the date of the filing of his pretended final account on or about the first day of March, 1935, wholly worthless and of no market value, and that by reason of the same the said appellants and said estate of said Rodney J. Parks, deceased, has been damaged in the sum of $4,050 and that said sum of $4,050 should bear interest at six percent per annum from the 25th day of September, 1928, the same being the statutory period within which said bank stock should have been sold under the provisions of section 22-601 of Revised Statutes of Kansas; 1923, together with such statutes of the state of Kansas relating to the said administration of the estates of deceased persons and that under said acts it became and was the duty of the said N. C. Emery as such administrator to sell and dispose of said bank stock as provided in said section 22-601; that these appellants are unable to state the exact time when they or either of them learned that the said bank stock had not been sold, but to the best of their knowledge, information and belief of appellants such fact was learned on or about the 14th day of August, 1932; that these appellants are unable to state how or in what manner said bank stock was not sold as such facts were and are wholly within the personal knowledge of the said N. C.'Emery, and that said N. C. Emery wholly failed to comply wtih the provisions of section 22-601 as herein-before stated; that no finding was ever made by the probate court of Ottawa county, Kansas, that said bank stock and elevator stock or any part thereof was not necessary for the payment of debts and no order was ever made by said court ordering said stock not to be sold.
“Second: Appellants hereby incorporate in this their second ground of objection to the approval of said final account all of the allegations and aver-ments contained in their first ground of objection insofar as the same may be relevant and pertinent and further state that the said N. C. Emery failed and neglected to sell and dispose of one (1) share of the capital stock of the Farmers Elevator Company of Tescott, Kan., appraised in said estate and of the market value of $130; that said stock could have been sold within the statutory period as provided in 22-601 for the sum of $130, and that said N. C. Emery wholly failed and neglected to sell said stock until at the time of the final settlement herein said stock was of the value of $10 per share and thaf by reason of the failure and neglect of the said N. C. Emery to sell and dispose of said stock said appellants and said estate have been damaged in the sum of $120.
“Third: Appellants further state that at the time of the appointment and qualification of the said N. C. Emery as administrator of said estate, and for many months thereafter, the said personal estate of the said Rodney J. Park, deceased, after the sale of all goods and chattels which sale was had on or about the 28th day of July, 1928, as shown by the records in said estate, was of the fair market value of $4,050 for the bank stock and $120 for the elevator stock; that the total indebtedness remaining was not to exceed $2,250, which amount was owing to the Farmers State Bank of Tescott, Kan.; that the sale of said bank stock, which was of the market value of $225 per share, was more than sufficient to pay said elaims and would have left a balance of approximately $1,800, and with the sale' of said elevator stock for $130 there would have been on hand in said estate the :sum of $1,930; that all of said stock should have been sold by said administrator within the statutory period as provided by section 22-601 as hereinbefore set out; that by reason of the failure and neglect of the said N. C. Emery, administrator, to sell said stock as hereinbefore set out the said N. C. Emery, administrator, from time to time paid interest in the sum of $800, as is more particularly shown by the records in said estate in the probate court of Ottawa county, Kansas, and which said records are hereby referred to and made a part hereof, but on account of the voluminous character of the same cannot be hereto attached.
■ “Wherefore, the appellants herein named, by their attorneys Lee Jackson and John J. McCurdy, object to said final account and to the approval of the same for the reasons hereinbefore stated and that appellants should recover from said N. C. Emery and his said bondsmen the sum of $4,050 with interest at six percent from September 25, 1928, and for the further sum of $800 for interest paid as hereinbefore set out and for the further sum of $130 for said elevator stock.”
Did the petition state a cause of action?
The statute, R. S. 22-601, in force at that time (since amended) provided:
“The executor or administrator shall, within three months after the date of his bond, sell the whole of the personal property belonging to the estate, which is liable to the payment of debts, and is assets in his hands to be administered, except the following: ...”
At the time of his death Rodney J. Park was an officer and stockholder in the Farmers State Bank of Tescott, and owned eighteen shares of stock in the bank, which shares were listed in the inventory at $250 per share, the book value. He was also indebted to the same bank in the sum of $2,350, evidenced by his promissory note for that amount, bearing eight percent interest, no part of which had been paid..
. Thé' administrator claimed that the bank stock was not liable to the payment of the general debts of the estate. This contention was based on the provisions of G. S. 1935, 9-153, which provides:
“. . . but no transfer of stock shall be valid against a bank so long as the registered holder thereof shall be liable as principal debtor, surety or otherwise to the bank for any debt which shall be due and unpaid.”
The administrator asserted that as Park was indebted to the bank, the statute gave the bank a first and .prior lien on the stock for the nayment of the debt due the bank, and that therefore he could not have made a valid sale of the bank stock. It is claimed that G. S. 1935, 9-153, is a special law applicable to banks, and that it controls the earlier general law, section 22-601, which requires the administrator within three months after the date of his bond to sell the whole of the personal property. The case Lithas v. Marble, 118 Kan. 752, 236 Pac. 823, is cited in support of this position.
It is not necessary to question this rule of statutory construction. It can have no application unless there is a conflict in the statutes. Our statute, G. S. 1935, 9-153, provides that “no transfer of stock shall be valid against a bank” so long as the registered holder shall be liable to the bank for a debt due and unpaid. This statute does not prevent the transfer of stock, but provides that the transferee shall take subject to the lien or claim of the bank. Thus in Battey v. Bank, 62 Kan. 384, 63 Pac. 437, it was stated:
“If an indebted stockholder were to transfer his stock free from any lien or claim of the bank, it might result in an impairment of the capital, and so, to protect the capital and customers of the bank, the legislature created a lien and placed a limitation in the statute which prevents the stockholder from transferring his stock even to a bona fide purchaser while his liability to the bank continues.” (p. 388.)
It charged the purchaser of stock with constructive notice of the lien. In Faulkner v. Bank, 77 Kan. 385, 94 Pac. 153, it was held the transfer was subject to the lien of the bank. The statute declares, and this court has consistently held, that as against the bank a transfer of the stock would not transfer a good title to stock free from the lien of the bank. (Midwest State Bank v. Sandidge, 131 Kan. 339, 291 Pac. 766.) It does not affect the right or duty of the administrator to sell the bank stock listed in the inventory; it only requires that any liability of the transferor to the bank be paid before an absolute title can be given the purchaser. The transferee is charged with notice of the lien or claim of the bank. It does not limit the right of the administrator to sell subject to the lien. The purpose of the statute was to protect'the bank and its customers. When the debt of the bank is paid the lien is discharged. It is obvious, therefore, that there is no conflict between the statutes G. S. 1935, 22-601, requiring the administrator to sell the whole of the personal property within three months, and G. S. 1935, 9-153, which gives the bank a lien on the stock where the stockholder is liable to the bank for any debt which is due and unpaid. To hold that the stock could not be sold at all might defeat the very purpose of the statute, for, if the stock was the only asset of the estate, and the stock could not be sold and no other funds were available to pay the debt due the bank, it would result in a stalemate, injurious alike to the estate and the bank. We think the petition stated a cause of action.
Was the cause of action barred by the statute of limitations?
Appellants contend that any cause of action for failure of the administrator to sell the bank stock accrued at the expiration of three months after the date of the bond, and therefore accrued on September 22, 1928; .that the cause of .action arose from the default of the administrator to comply with G. S. 1935, 22-601, and the three-year statute of limitations, G. S-. 1935, 60-306, second, is applicable. Our attention is directed to sections 22-1001 to 22-1008, which prescribe when proceedings, may be brought against administrators and their sureties, and particularly to section 22-1004, which provides:
“Whenever the executor or administrator has failed to perform his duty in any other particular than those above specified, any creditor, next of kin, legatee, administrator or other person aggrieved by such failure, may sue upon the bond.”
We are unable to agree with the contentions of the .appellants.
In Stratton v. McCandless, 27 Kan. 296, an action was brought in the district court on the administrator’s bond. The court said:
“It must be remembered that this is an action on a penal bond against an kdministrator, who is under the general control and direction of the probate court, and against sureties on the bond, who have personally committed no wrong and are guilty of no dereliction of duty. This action attempts to take a matter which properly and legitimately belongs to the jurisdiction of the probate court, and a matter which ought to be settled and determined in that court, and to place it within a jurisdiction which has no general control over the affairs of the estate. And it attempts to take' this matter from the jurisdiction of the probate court while the administrator is still acting, while the estate is still in process of settlement, and while the probate court has ample jurisdiction over both the administrator and the estate. ... In cases of this kind, where the administrator is still acting, and the estate is not settled, and the probate court has complete and ample jurisdiction over the administrator and over the estate, actions in other jurisdictions, against the administrator and his sureties, on the administrator’s bond, should not be encouraged (see reasoning in Johnson v. Cain, 15 Kan. 532); and where the question of the sufficiency of the petition in such cases arises upon demurrer, the petition should be held to be insufficient, unless the facts are stated in detail, and clearly show a cause of action.” (pp. 305, 306.)
In Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737, the syllabus reads:
“Where the estate of a deceased person is in process of settlement in the probate court, and an accounting has not been had with a former executor therein, and there has been no refusal by such executor to make a full and final accounting, and where a full settlement may be required and an adequate remedy had in that court, no occasion' exists to invoke the equitable jurisdiction of the district court, or for interference by that court with the settlement in the probate court; and in such case an action cannot be maintained on the executor’s bond until an accounting has been had in the proper tribunal, a liability ascertained, and an opportunity' afforded the former executor to discharge it.”
The question again came before this court in the recent case of Fry v. Riley, 131 Kan. 252, 291 Pac. 748. In that case an attempt was made to maintain an independent action against an administrator while the estate was still open. After a careful consideration of the statutes and our prior decisions, it was held that where the probate court was exercising jurisdiction in the' settlement of an estate, and the matter was still pending in that court, the district court was without jurisdiction to entertain an action under sections 22-1001, 22-1002 and 22-1004 of G. S. 1935.
In the case at bar the administrator and his surety gave a bond conditioned according to law. That bond bound him to administer according to law all the moneys, goods, chattels, rights and credits- of the deceased, to render true accounts of his administration annually and at other times when required by the court or the law, and to pay any balance remaining upon the settlement of his accounts to such persons as the court or the law shall direct. (G. S. 1935, 22-313.)
Our statute, G. S. 1935, 22-904, provides that any administrator wishing to make a final settlement, shall file a report of his administration in the probate court, whereupon notice must be given to all interested in the estate of the hearing thereof. The sections following disclose the issues that are raised by such an application for final settlement with reference to the administration of the estate. Our statute, G. S. 1935, 22-909, states definitely the assets with which the administrator is to be charged, and section 22-912 provides:
“If any executor or administrator shall neglect to sell any portion of the personal property which he is bound by law to sell, and retains, consumes or disposes of the same for his own benefit, he shall be charged therewith at double the value affixed thereto by the appraisers.”
The administrator in accepting the appointment and the surety in giving the bond submitted themselves to the jurisdiction and powers of the probate court, as above set forth, and became obligated to account for the management of the assets of the estate at the times and to the extent provided by law. The plain intention of the statutes referred to is that the acts of the administrator shall be subject to full and complete examination and determination upon final settlement. Moreover, in order for an administrator to secure his discharge and the release of his surety, he must file his petition and ask for such determination and final settlement. (G. S. 1935, 22-904.)
It is clear no cause of action could arise on the bond of the administrator in this case until final settlement in the probate court.
It is urged that inasmuch as the petition for removal, filed in February, 1932, has not been vigorously pressed, the heirs should be held to be guilty of laches. But that was filed by only one of the heirs, and could not bind the others. Besides, its filing certainly gave notice to the administrator- that at least one heir was dissatisfied with his management and expected to charge him in his accounts with the loss sustained, and the petition was still pending undisposed of when the administrator made application for final accounting. The court still had jurisdiction to act upon it, notwithstanding the lapse of time. It had not been dismissed or withdrawn. (Armourdale State Bank v. Hoel, 120 Kan. 130, 242 Pac. 481.)
No reason appears why the estate could not have been closed within the statutory period, and the administrator cannot be permitted to urge laches or the statute of limitations against a claim of maladministration by the heirs by reason of the lapse of time caused by his delay in filing his petition for final settlement until March 1, 1935. The heirs, on the other hand, had a right to await final settlement and make such claims then against the administrator as they might have because of his acts in the management of the estate.
There is one other reason why the statute of limitations is not applicable. Our code of civil procedure divides remedies into two classes, “actions” and “special proceedings.” An action is defined as an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong or the punishment of a public offense. (G. S. 1935, 60-103, 60-104.)
The administration proceeding in the probate court, therefore, is not an “action,” but is a “special proceeding.” In Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, it was held that the probating of a will is a “special proceeding.”
Our statute, G. S. 1935, 60-306, containing the limitation provision sought to be applied here is confined in its scope of operation to “civil actions,” and consequently does not govern remedies in “special proceedings” such as -in the administration of estates, and that this was the intention of the legislature is evident from the provisions of G. S. 1935, 60-3823, which provides that:
“Until the legislature shall otherwise provide, this code shall not affect . . . proceedings under the statutes for the settlement of estates of deceased persons, . .
In Thomas v. Williams, 80 Kan. 632, 103 Pac. 772, it was contended that the general statute of limitations applied to proceedings in the probate court. Mr. Justice Mason, speaking for the court, said:
“The plaintiffs in error invoke the statute (Civ. Code, sec. 18, paragraph 6) requiring an action for relief concerning which no other provision is made, to be brought within five years after the accrual of the cause of action. The case, however, does not fall within its terms, for the litigation which is begun by the filing of a petition in the probate' court for the sale of real estate to pay the debts of the decedent does not constitute an action, but a special proceeding, or a part of a special proceeding. (Civ. Code, §§ 4, 5; Lanning v. Gay, 70 Kan. 353.)” (p. 634.)
We conclude the petition stated a cause of action for failure to sell the bank stock and the stock in the elevator company, and the action of the court in overruling the demurrer is sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutohison, J.:
This was an action, commenced July 30,1935, for the foreclosure of a mortgage on the Manning block, consisting of two and one half lots and the buildings erected thereon in the city of Winfield, to realize upon four series of building bonds secured by the mortgage.
The court appointed a receiver to ascertain the names of all holders of such bonds, the amounts thereof and the dates to which interest had been paid thereon, and to serve them by publication notice of the pendency of the foreclosure action. Several of the bondholders intervened by leave of court, and all the issues raised were tried by the court. Extended findings of fact were made by the trial court. Conclusions of law were made thereon, and judgment was rendered for the plaintiff in the sum of $197,400, with interest, which was made a first lien on the premises described in the mortgage, and it was further ordered that the holders of certain bonds definitely described were not entitled to recover anything in the action. Among such was Mrs. Blanche S. Turner, holder of bond No. 4 of series “D” for 120,000. She filed a motion for a new trial, and after the same was overruled she appealed to this court. The cross-appeals filed by other intervenors have been dismissed, so the appeal is limited to the findings, conclusions and judgment, excluding this $20,000 bond held by the appellant, Blanche S'. Turner.
The plaintiff in the action is “The State Bank, a Corporation of Winfield, Kansas, Trustee.” The mortgagors were M. B. Light, Lewis Boys and A. F. Dauber, trustees. They executed the mortgage and signed the building bonds secured thereby. They were all officers of the State Bank. The Fidelity Trust Company was an organization of the stockholders of the State Bank before that bank was merged with the Progressive State Bank, but the consolidated bank continued business under the name of “The State Bank.” It owned, before the merger, a bank building on the east half of lot 12, adjoining the Manning block subsequently purchased. The mortgage stated that it was given to secure four series of bonds, “A,” “B,” “C,” and “D” — 125 bonds in series “A,” 33 in “B,” 96 in “C” and 46 in “D.”
The trust agreement, made the same day the mortgage was executed, stated that the trusteeship which was held by the three officers of the bank above named, as trustees, was formed for the purpose of assisting and financing the erection of an annex to the present State Bank building and to protect the bondholders until such time as the said bank liquidated or retired the entire issue of bonded indebtedness.
The trial court found that the State Bank was organized in 1905, and in 1916 and 1917 erected its bank building on the east half of lot 12. On February 1, 1918, it purchased and received a deed for the Manning block, paying $28,000 therefor. At the time it made this purchase it had a paid-in capital of $100,000, an unimpaired surplus of $50,000, and its bank building was valued at $50,000. On October 9, 1923, the bank conveyed to the three officers, Light, Boys and Dauber, as trustees, the Manning block for one dollar consideration, which deed was filed for record August 9, 1924. It contained the following clause:
“This instrument does not evidence an actual change of ownership but is for the purpose of placing the legal title in the grantees who have heretofore held the equitable title.”
The consolidation with the Progressive State Bank took place on August 9, 1924. Actual work on the construction of the annex was commenced in July, 1926, and continued without interruption until its completion.
On January 1, 1927, a trust agreement, the mortgage and a large number of “State Bank building bonds” were signed. The bonds differed only in amount, and in some instances the amount was not specified. The court found the cost of the new building to be $210,-837, but that amount included from $12,000 to $14,000 that had been used for repairs, refurnishing and equipment of the bank. The court, in finding 17, stated:
“State Bank building bonds were issued, sold and paid for amounting in the aggregate to $212,400. The following is a list of the number, name of holder, the amount, and the date to which coupon interest was paid upon each series of bonds, constituting in the aggregate the above' sum of $212,400 par value.”
This statement was followed by a list of the bonds under each series. In series “D” was bond No. 4, in the name of Mrs. Turner, in the amount of $20,000, with interest paid to July 1, 1934. This was followed by a total amount of all four series in the sum of $212,-400, and that was followed by these lines:
“These bonds were sold by Light and Boys, president and cashier, respectively, of the bank. The money paid for the bonds was deposited in the' bank ‘new building account.’ ”
The following is part of finding 19:
“On or about January 1, 1928, the Fidelity Trust Company, of Winfield, Kansas, was organized by the stockholders of the State Bank of Winfield. M. B. Light, president of the' State Bank, thereupon became and thereafter was the president and chief executive officer of the Fidelity Trust Company. At the time of the organization of the trust company there was issued and turned over to it, bonds of series ‘D,’ numbered 1, 3 and 5, aggregating $60,000, and also bond No. 4 of series ‘D,’ of the par value of $20,000. The trust company paid nothing for these bonds aggregating $80,000. The trust company thereupon issued $80,000 par value of its capital stock to the stockholders of the State Bank, for which the stockholders of the bank paid nothing.
“With reference to the' $20,000 bond, No. 4, it does appear that from the account in the bank carried in the name of Light, Boys and Dauber, trustees, there was transferred to the account in the bank carried as new building account, the sum of $20,000, but from these entries the court is unable to find that anything was ever paid to anyone by the Fidelity Trust Company for bond No. 4, or that the stockholders of the trust company ever paid to said company anything for the stock of the company that was issued to them and based upon its possession, and claimed ownership of bonds numbers 1, 3, 4 and 5, representing $80,000.
“Thereafter bond No. 4 was sold by the trust company to Mrs. Turner and she paid the trust company the sum of $20,000 therefor. M. B. Light was at the time a brother-in-law of Mrs. Turner, waq her business agent, handled her bank account in the State Bank, and wrote checks thereon os agent for Mrs. Turner, and at the same time M. B. Light was the chief executive officer of the State Bank, of the' Fidelity Trust Company, and so-called trustee under the deed of October 9, 1923, and while so acting and with full knowledge that certificate No. 4 had been issued and delivered by himself and others acting as trustees of the Fidelity Trust Company without consideration, and as agent of Mrs. Turner, sold such certificate to Mrs. Turner and paid her money in the sum of $20,000 to be transferred to the account of the Fidelity Trust Company. The knowledge of M. B. Light in this transaction the court finds to be the knowledge of Mrs. Turner, and that she therefore purchased bond No. 4 with knowledge that it had been delivered by the trustees to the Fidelity Trust Company without consideration and that she was getting nothing for her money.
“On this bond No. 4 interest was paid by the bank in the sum of $5,500.”
Finding 30 is as follows:
“The Fidelity Trust Company was organized and all the' stockholders of the same were also stockholders in the State Bank.”
The following is the fifth conclusion of law:
“The holders of the bonds enumerated and listed in finding of fact No. 18 and also of No. 4 of series ‘D’ for $20,000, are not entitled to recover anything in this action.”
The following are the first and seventh paragraphs of the journal entry of judgment:
“1. That the plaintiff, the State Bank as trustee, do have and recover of and from the defendants as trustees judgment against the defendants as such trustees in the amount of one hundred ninety-seven thousand, four hundred dollars ($197,400), together with interest thereon at the rate of five percent (5%) per annum until paid, being an amount equal to the face or par value of all bonds listed in finding of fact No. 17, except No. 34 of series ‘D’ for fifteen thousand dollars ($15,000). That said judgment constitutes a first lien on the premises described in the mortgage herein foreclosed, to wit: ....
“7. That the holders of bonds enumerated and listed in finding of fact No. 18, and also Mrs. Blanche S. Turner, as holder of bond No. 4, of series ‘D,’ for twenty thousand dollars ($20,000), are not entitled to recover anything in this action and take nothing herein. That the plaintiff do have and recover from the defendant trustees its costs herein as taxed by the clerk in the sum of
Accepting the findings of fact as made by the trial court, we have difficulty in reaching the same conclusion of law as the trial court did in conclusion No. 5, to the effect that the holder of bond No. 4 of series “D” for $20,000 is not entitled to recover anything in this action. In finding No. 19 the court grouped bond No. 4, series “D,” with bonds Nos. 1, 3 and 5 of the same series, and found that the trust company paid nothing for these bonds, and then added that the trust company issued its stock at par value to the stockholders of the bank and that the stockholders paid nothing therefor. It further added as to bond No. 4 that the records in the bank showed that there was transferred from the account carried in the name of the three trustees to the new building account the sum of $20,000. The court again expressed its inability to find that there was anything ever paid either for the bond or the stock. In the 17th finding it was found that the bonds were sold by the president and cashier of the bank, and the money that was paid for the bonds was deposited in the bank in the “new building account,” and that bond No. 4 of series “D” for $20,000 was listed in the number sold, making a part of the total of $212,400.
The very fact, as the finding shows, that there was a transfer from one account to another, viz., the “new building account,” of $20,000 for this particular bond No. 4 is a cpnclusive finding that a consideration was paid for it. The confusion seems to come from the fact that the officers of the bank were the trustees who issued the bonds and were also officers and directors of the Fidelity Trust Company, a corporation. The doubt expressed as to the existence of a consideration between the trustees issuing the bond and the Fidelity Trust Company purchasing the same with stock of the trust company was probably magnified by the fact that the same individuals represented both of them. To recapitulate, the findings are that $20,000 was transferred from one account to the “new building account” for this bond No. 4, and that this bond was “turned over” to the Fidelity Trust Company for capital stock of the trust company of par value. It is not unusual for a corporation to purchase bonds and other property with shares of its capital stock. Capital stock of a duly incorporated company is a valid consideration for the purchase or transfer of other valuable property. Other findings show the amount of the bonds “issued, sold and paid for” amounted to $212,400, and that a bond in the amount of $15,000 should properly be deducted therefrom, which would leave bonds, including No. 4, issued, sold and paid for in the sum of $197,400, which was the amount for which judgment was rendered.
Other findings showed the cost of the building to have been about $210,837, from which sum there should be deducted from $12,000 to $14,000, which would leave the real cost of the building to be from $196,837 to $198,837, so that the finding of bond issues, sold and paid for, as above computed at $197,400, is between the figures reached by the cost calculation. If bond No. 4 is not to be included in the judgment for $197,400, but to be deducted therefrom, it would give the holders of bonds in the amount of $177,400 the right to receive the benéfit of a judgment for $20,000 more than the amount of their claims.
• The specific and definite findings of fact made by the trial court are: That money was transferred in the bank for the payment of bond No. 4; that the bond was delivered to the trust company for stock in that company, the stock being of par value; and that Mrs. Turner paid the trust company $20,000 for this bond. On these specific and definite findings of fact we reach a different conclusion of law from that made by the trial court in conclusion No. 5.
We conclude that Mrs. Blanche S. Turner, the holder of bond No. 4, series “D,” is entitled to recover thereon the same as other bondholders that were held entitled to recover on their bonds under the conclusions made and judgment rendered by the trial court.
The judgment is therefore reversed and the cause is remanded with instructions to include said bond No. 4, and Mrs. Turner, the holder thereof, as being entitled to proportionate participation in the benefits of the judgment with those in whose favor the judgment had been rendered. | [
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The opinion of the court was delivered by
Allen, J.:
This is a proceeding on defendant’s motion asking the court to ■ hold plaintiff in contempt of court for default in payments of money for the support of a minor child, as ordered by the court. At the same time plaintiff moved the court for a modification of the order and that the custody of the minor child be taken from defendant and given to plaintiff. The district court heard both motions at the same time and ruled that plaintiff was not in contempt of court; that plaintiff discontinue the payments for support of the minor child, and that the custody of the minor child be taken from the defendant and given to the plaintiff. In the order overruling defendant’s motion for a new trial the court ordered plaintiff to pay defendant $10 per month on past due, unpaid installments of money, the payments of which at that time the plaintiff was in default practically six years. Defendant appeals.
On the 10th day of December, 1925, the district court of Logan county rendered a decree in case No. 1929, entitled George E. Wilkinson, Plaintiff, v. Lyndall Wilkinson, Defendant, and that defendant have the custody of the child, subject to the further order of the court; that plaintiff should have the right at any time except during school term to take the child at his own expense to his home to visit him for periods of three months or less out of each year.
It is admitted that the plaintiff made the payments pursuant to the order of the court until on or about June, 1930, when plaintiff defaulted in his payments and has paid nothing since. It is also admitted that plaintiff married again about the year 1927 and now has a wdfe and two children, aged five and four years, and that the defendant married again about the year 1929 and that her name now is Lyndall MacLean; that the minor child of the parties, Betty Rae Wilkinson, is now past fifteen years of age and lives with her mother at Salt Lake City, Utah.
It is asserted the court erred in refusing to hold plaintiff guilty of contempt. There was no evidence of willful failure to make the payments as provided for in the original decree of divorce. The evidence is undisputed that because of circumstances over which the plaintiff had no control, it has been impossible since 1930 for him to make the payments as provided in the original divorce decree. As the refusal to pay was not contumacious, there was no error in the action of the court. (Wohlfort v. Wohlfort, 116 Kan. 154, 225 Pac. 746; Davidson v. Davidson, 125 Kan. 807, 266 Pac. 650; State v. Dent, 29 Kan. 416.)
Defendant contends the court had no authority to discontinue the payments of $25 per month to the defendant for the support of the minor child and to make the order that plaintiff pay $10 per month upon past-due, unpaid installments. The order of the court provided:
“The court further finds that the plaintiff should pay to the defendant the sum of $10 per month upon the past-due, unpaid installments of money ordered to be paid to the defendant at the time the divorce was granted, such payments to begin at the time the defendant delivers the custody of said child to the plaintiff.
“It is therefore considered, ordered, adjudged and decreed by the court that the defendant’s motion for a new trial be and the same is hereby overruled and denied. And it is further ordered and decreed that the plaintiff pay to the defendant the sum of $10 per month upon the past-due, unpaid installments of money ordered by the court to be paid to the defendant at the time the divorce was granted, such payments to begin at the time the defendant delivers the custody of said child to the plaintiff. Provided, That nothing in this order shall be construed so as to prevent the defendant from collecting the entire amount of any and all installments past due and unpaid as of June 22, 1936, at any time, by the ordinary processes of law.”
This question was before this court in the recent case of Davis v. Davis, 145 Kan. 282, 65 P. 2d 562. It was there held:
“A district court has power to modify or change any previous order with respect to payments for the support, maintenance and education of the minor children of a marriage whenever circumstances render such change proper. The new order, however, cannot increase or decrease amounts past due. It must be made effective from the date of modification and not from the date of the original decree or from the time of changed circumstances. In other words, the modification must operate prospectively and not retroactively.”
In Hyde v. Hyde, 143 Kan. 660, 56 P. 2d 437, it-was argued that in a divorce action the court had authority to relieve the husband from paying past-due payments of support money for a minor child. It was not necessary to pass directly on the question, but at page 667 it was said: “No decision of this court is cited holding that in such a case a court can relieve the party from past-due payments.”
In Burnap v. Burnap, 144 Kan. 568, 61 P. 2d 899, there was a decree of divorce in Colorado — the wife was given custody of the minor children, and the husband was required to pay a stated sum per month for the support of the children. The husband came to Kansas and refused to pay the support money. The wife sued the husband in Kansas for the aggregate amount of the past-due payments. In holding the wife could maintain the action it was said: “The district court properly held the Colorado court had no power to modify its judgment with respect to amounts due and unpaid. The judgment was final so far as they were concerned.”
It is clear, therefore, that the trial court erred in permitting the defendant to pay $10 per month to be applied on the past-due, unpaid installments. The court could modify or change the amount to be paid if circumstances rendered such change proper. It could not, however, reduce the amount of accrued payments, past due.
Complaint is made of the action of the court in taking the care, custody and control of the girl, age fifteen, from her mother, the defendant, and granting the care, custody and control of the child to the plaintiff. “
In an early case, In re Bort, Petitioner, 25 Kan. 308, it was said:
“We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that . ... . We see no reason to doubt that Mrs. Bort is a loving mother, devoted and faithful to her little ones. Her conduct since she left her husband, and since the divorce, seems to have been without reproach. Whatever may be her faults, it is evident that these children will receive only the kindest care if left in their present home. They are of that tender age when they need a mother’s care. No stranger, however kind, can fill her place. We may not ignore these universal laws of our nature, and they compel us to place these children where they will be. within the reach of a mother’s love and cafe.” (pp. 309, 311.)
Since the decree of divorce the plaintiff, George E. Wilkinson, has married again, and at the time of the trial, had two children, aged four and five. He testified that all the property he has is encumbered and that he is practically insolvent; that he is partly dependent upon his second wife for the support of himself and their two children.
It also appears that the defendant has married again and lives in Salt Lake City, Utah; that the child lives with her; that she attends the public schools in that city and will soon be ready to attend the high school. The child testified that she did not wish to leave her mother or reside elsewhere than with her mother in Salt Lake City.
There is no contention that the mother is an improper person to have the care of the child. To transfer this child from her home with her mother where she has been since she was two years of age and where she is happy and well cared for, to the home of the plaintiff, who has a new wife and two children, and who is unable to support his present family, seems unwarranted. We think this order should be set aside.
For the reasons stated, the judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
This is an action by a laborer against a contractor and his bondsmen for wages and for the penalty provided for in G. S. 1935, 44-308. The amended petition was attacked by a motion to make more definite and certain and to separately state and number the causes of action. This motion was overruled in part and sustained in part. The defendant then lodged a demurrer to plaintiff’s petition. This appeal is from the order of the trial court overruling the demurrer.
The plaintiff, for his first cause of action, alleged:
“That he is a resident of and his true and correct post-office address is 809 W. Tenth street, Coffeyville, Kan.; that the defendants, W. F. Edgell and H. L. Edgell, are a copartnership doing business under the firm name and style of W. F. Edgell and Son; that the United States Fidelity and Guaranty Company of Baltimore, Md., is a corporation, duly authorized to transact .business in the state of Kansas and is engaged in the business of acting as surety for hire.
“That prior to the 21st day of April, 1936, the city of Coffeyville contemplated the construction of a sewage pump station and sewage treatment plant, and for the purpose of securing bids for the construction of the same had plans, specifications, and instructions to bidders prepared and distributed to contractors, including the defendants, W. E. Edgell and Son, for the purpose of having said contractors submit bids for the construction of the same; that for the purpose of setting a minimum wage scale and for the purpose of requiring the contractor constructing said plant to pay the minimum wages as therein set out, the plans, specifications and instructions to bidders contained the following:
“ ‘schedule of minimum hourly wage rates
“ ‘The following schedule of minimum hourly wage rates has been adopted by the city of Coffeyville for the work included in this contract, and the schedule has been approved by the acting state director of the public works administration. The contractor shall pay not less than the wages set out in the schedule below:
Unskilled labor. SO.50
Skilled labor. 1.20
Pump . .60
Watchman, up to 27 hrs. per week, $0.50; $13.50 per week from 27 hrs. up to 40 hrs.1
“That the defendants, W. F. Edgell and Son, submitted a proposal to the city of Coffeyville, wherein said defendants agreed in writing, ‘To pay the schedule of wages as set out in the instructions to bidders.’ That the proposal of the defendants, W. F. Edgell and Son, to construct said plant for the sum of one hundred twenty-eight thousand three hundred forty ($128,340) dollars was accepted by the city of Coffeyville and on the 21st day of April, 1936, the city of Coffeyville and W. F. Edgell and Son entered into a written contract, which contract contained the following provisions: ‘The scale of minimum wages as set out in instructions to bidders shall be observed under this contract.’ That immediately thereafter the defendants, W. F. Edgell and Son, commenced the construction of said plant under said contract.
“That plaintiff attaches hereto and makes a part of this petition as exhibit ‘A,’ extracts from the information and instructions to bidders, proposal, general contract and stipulations and construction regulations, under which said plant was constructed by the defendants, W. F. Edgell and Son.
“That on the 13th day of July, 1936, the plaintiff was employed by H. L. Edgell as a night watchman at a wage of eighteen dollars ($18) per week for forty (40) hours,labor each week; that while the plaintiff was designated as a watchman and was carried on the books of the defendants, W. F. Edgell and Son, as a night watchman, he was during all of the time he was in the employ of the defendants, W. F. Edgell and Son, required to and did perform the duties of a pumper in that he was required to service and operate the pumps that were used by the defendants, W. F. Edgell and Son, in constructing the said plant; that plaintiff worked for said defendants, W. F. Edgell and Son, from the 13th day of July, 1936, to January 16, 1937, on which last mentioned date he was discharged by the defendants, W. F. Edgell and Son, two thousand two hundred and sixty-eight (2,268) hours and fifty-five (55) minutes as shown by the itemized statement hereto attached and marked exhibit ‘B’ and made a part hereof, for which services plaintiff was entitled to receive pay at a rate of ■sixty (60) cents per hour as a pumper, or one thousand three hundred sixty-one dollars and thirty-five cents (11,361.35) all as set out in the written contract between the defendants, W. F. Edgell and Son, and the city of Coffey-ville; that the defendants, W. F. Edgell and Son, paid to the plaintiff the sum of only four hundred eighty-one dollars and fifty cents ($481.50), leaving a balance due plaintiff of eight hundred seventy-nine dollars and eighty-five cents ($879.85), which sum is long past due and wholly unpaid.
“Plaintiff alleges that the contract entered into between the defendants, W. F. Edgell and Son, and the city of Coffeyville, wherein the defendants, W. F. Edgell and Son, agreed to pay sixty (60) cents per hour for pumpers was made for the benefit of this plaintiff and other laborers working for said defendants in the construction of said plant; that when plaintiff was required by said defendants, W. F. Edgell and Son, to perform the duties of a pumper that he was and is entitled to the wage set out in said contract notwithstanding the fact that the said defendants carried him on the books as a night watchman.
“Plaintiff further alleges that on the 2d day of June, 1936, the defendants, W. F. Edgell and Son, as principal, and the United States Fidelity and Guaranty Company of Baltimore, as surety, executed and delivered to the clerk of the district court of Montgomery county, Kansas, a statutory bond as provided by the laws of the state of Kansas for the purpose of providing for the payment of all claims which might be the basis of liens upon the plant being constructed by said defendants, W. F. Edgell and Son; a true and correct copy of said bond is hereto attached, marked exhibit ‘C’ and made a part hereof. That the terms of said bond have been broken in that the' defendant, W. F. Edgell and Son, has failed, neglected and refused to pay to plaintiff the wages due him as above set out and by reason thereof the defendant, the United States Fidelity and Guaranty Company of Baltimore, Md., is indebted to the plaintiff in the sum of eight hundred seventy-nine dollars and eighty-five cents (SSTBtSS), together with interest thereon at six (6) percent per annum as set out in the prayer of this petition.”
The second count alleged that plaintiff was discharged by the defendant contractors; that his wages were not paid; that plaintiff is entitled to recover wages at the “same rate as if he was still in defendant’s service for a period of sixty (60) days as a penalty as provided by section 44-308, R. S. 1935.”
Did the petition state a cause of action?
In Sheets v. Eales, 135 Kan. 627, 11 P. 2d 1020, it was stated there is a presumption of law that all services rendered by an employee during the period for which he is employed, of a nature similar to those required of him in the course of his regular duties, are paid for by his salary, and to overcome this presumption he must show an express agreement for extra compensation. In that case the plaintiff agreed to assist the defendant in carrying on the business of selling tires, tubes and gasoline, and of general tire repairing for a compensation of one fourth of the “net profits” (to be figured after the payment of all expenses, which included the purchase price of tools, fixtures, machinery, etc.), plaintiff to have no interest in the business itself, or in the tools and equipment. It was further agreed that the employee would devote his entire time, skill, labor and attention, and devote his time to the business from 7 o’clock a. m. until closing time, which was to be regulated by the requirements of the business, usually being about 10 o’clock p. m., and that the employee should have time off every other evening and every other Sunday. Plaintiff was to have a drawing account of $25 per week in anticipation of profits, and it was further provided that either party might terminate the service by ten days’ notice in writing. After working under this contract for about three years, until the business was sold, plaintiff claimed additional compensation for work on 148 extra evenings and 18 extra Sundays during the period. It was alleged that on various occasions, when plaintiff told defendant he would have to have more money, defendant replied with such expressions as, “Don’t worry, I will take care of you”; “Let it slide, and I will pay you a bonus at the end of the year that will make as much money”; and “We will agree on a settlement of the extra time which will be absolutely satisfactory.” In holding that plaintiff was not entitled to additional compensation the court referred to these vague expressions, and said:
“But no agreement was ever entered into that any particular sum should be paid for any extra services that might have been rendered. He continued to work under the written contract, and it . . . did not stipulate that payment would be made for any extra services.” (p. 630.)
The court further pointed out that the extra work was of the same character as that which plaintiff was employed to do under the contract; moreover, that plaintiff was interested in the sales and in the repair work, and that the time, skill and energy devoted to the business would inure to the benefit of both plaintiff and defendant.
In holding that the plaintiff was not entitled to recover, the court cited Guthrie v. Merrill, 4 Kan. 187, and Weaver v. Skinner, 103 Kan. 97, 172 Pac. 1024. In the former case the syllabus reads:
“Where' plaintiff agreed to work for a stipulated price per month, the contract being silent as to extra services, ... in the absence of other proof, all extra work done on Sundays will be deemed to have been performed under the contract.”
In Kelsey v. Puckett, 198 Ia. 839, 200 N. W. 421, it was stated that “There is a presumption in law that all services rendered by an employee during the period for which he is employed, of a nature similar to those required in the course of his regular duties, are compensated under the stipulated agreement.” (p. 842.)
In Brooks v. L. N. R. Co., 218 Ky. 279, 291 S. W. 371, it was held that when the plaintiff was employed as a laborer and for a period of three years had received, without objection, wages as a laborer, he could not recover the difference between the wages of the laborer and those of an outside hostler's helper because on certain occasions he had assisted in such outside work.
In Thibault v. National Tea Co., 198 Minn. 246, 269 N. W. 466, 107 A. L. R. 702, it was said:
“In this instance plaintiff was employed in a certain capacity, not by the hour or by the day, but by the week, on a weekly salary or wage. He was paid the sum agreed upon at the end of each week and receipted in full for a week’s work. It is not reasonable to construe this statute so as to give a workman a cause of action for overtime when his agreed compensation for the full period has been received. Every moment of his work was spent under the single contract of employment for a stipulated price for the whole week. Under similar facts, recovery for overtime by virtue of statutes fixing the duration of a standard working day has been denied. (Luske v. Hotchkiss, 37 Conn. 219, 9 Am. R. 314; Grisell v. Noel Brothers F. F. Co., 9 Ind. App. 251, 36 N. E. 452; Bachelor v. Bickford, 62 Me. 526; McCarthy v. Mayor of City of New York, 96 N. Y. 1, 48 Am. R. 601; Vogt v. City of Milwaukee, 99 Wis. 258, 74 N. W. 789; United States v. Martin, 94 U. S. 400; 24 L. Ed. 128; Plummer v. Pennsylvania R. Co. (C. C. A.) 37 F. (2d) 874.” (p. 248.)
In Robinette v. Coal Mining Co., 1921, 88 W. Va. 514, 107 S. E. 285, 25 A. L. R. 212, the plaintiff had been employed to superintend the defendant’s power plant. He was to work eight and. one half hours per day, but worked twelve hours each day from the beginning. The action was to recover for this overtime which he 'had been compelled to work from the first day of his employment. The court held that he could not recover. In the opinion the court stated:
“Where an employee voluntarily continues in a position under such conditions, known to him from the first day he undertook the work, receives the compensation agreed upon as a monthly salary, wholly fails to insist upon a definite understanding with regard to additional remuneration for such overtime, and protests but .weakly against it, he will be deemed to have treated such overtime work as a mere incident of his usual duties, and to have waived any right to demand additional remuneration therefor. To hold otherwise would tend to throw the doors .wide open to fraud and perjury on the part of discharged and disgruntled employees, who, by making out a prima facie case of an original contract providing for fewer hours than those voluntarily accepted, might induce a jury to mulct their former employers in damages for alleged overtime work. In so holding we are not seeking to throw all the burden and risk of the terms of employment upon employees. They can easily protect themselves by insisting upon a definite agreement with regard to such overtime on the occasion when it is proposed or demanded. By a special agreement entered into or understanding had with the employer at the time of his request for such work the employee can amply safeguard himself. In that way justice and fairness can be done to both parties and each will be protected against the other.” (p. 522.)
In the case before us the petition states that plaintiff was employed as a night watchman and was carried on the books as a night watchman, and that he was paid the wages due him as a watchman. While plaintiff worked from July 13, 1936, until January 16, 1937, it does not appear that he claimed or demanded the wages due as a pumper. Under the PWA constructions regulations made a part of the contract it was provided that “Unless otherwise provided by law, claims or disputes pertaining to the classification of labor under this contract shall be decided by the owner, subject to the right of final' review by the state director, whose decision shall be binding on all parties concerned.” It is not asserted that there was any dispute as to the classification of labor under the contract. By accepting his regular wages weekly as a night watchman and by failing to make any protest or complaint as to the wages due him for the work performed, the plaintiff waived his right, if any, to additional pay under another classification paying a higher wage.
Plaintiff’s second cause of action is bottomed on G, S. 1935, 44-307 and 44-308. The petition alleges he was discharged by defendants on January 13, 1937; that at the time he-.was discharged he was entitled to payment of his wages ip,-.full as a pumper, which defendants neglected and refused to pay; that by reason thereof plaintiff is entitled to recover wages for a period of sixty days at the same rate, as a penalty under G. S. 1935, 44-308. Our statute G. S. 1935, 44-307, provides:
“It shall be unlawful for any firm or corporation employing labor within this state, to refuse or neglect to pay to any person leaving its service either by resignation or discharge, any money due as wages within ten days from the termination of such services, and such payment must be made either at the place of discharge or at any office of such company or corporation within the state, as may be designated by the party employed, he giving notice in writing, to the foreman or party in charge of such work.”
It will be noted that the statute requires that a written notice and demand be made by the employee who has been discharged, stating where he wishes to have his wages paid, which he claims are due him. This appears to be a reasonable provision. Without such a requirement an employee could wait for a period of sixty days after his discharge, as appears to have been done in this case, and then bring suit to recover the penalty. Then for the first time the employer would have notice that the employee was seeking to invoke the penalty and the employer would not have an opportunity to comply with the statute and evade the penalty. It is not alleged that the provision of the statute as to notice was complied with. We think a failure to comply with the positive provisions of the statute bars the claim of plaintiff as to the penalty.
For the reasons stated, the petition fails to state a cause of action, and defendants’ demurrer should have been sustained.
The judgment is reversed. | [
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The opinion of the court was delivered by
Smith, J.:
This case was started as a claim against the county commissioners of Allen county for the value of rock quarried on the farm of plaintiff and for damages to the real estate. The claim was denied by the county commissioners. On appeal to the district court judgment was given in favor of an interpleader and the board of county commissioners. Claimant appeals.
The issues are a little complicated and will be carefully noted. Claimant filed her claim with the board of county commissioners in the amount of $760.60. This claim was denied by the board. Claimant appealed to the district court, pursuant to G. S. 1935,19-223 and 19-224.
When this appeal was filed motions of the county commissioners that claimant be ordered to file a bill of particulars and that the Penn Mutual Life Insurance Company be made a party to the action were sustained.
In her bill of particulars claimant pleaded that during the summer and autumn of 1934 she was the owner of the farm in question, subject to a mortgage-foreclosure action brought by the Penn Mutual Life Insurance Company, and was refinancing the loan secured by the mortgage. The bill of particulars further alleged that she told an agent for the county commissioners about the refinancing arrange ments, and the agent told her that the county would give from two to eight cents a cubic yard for rock taken from the farm, and after the rock was taken the county would restore the land to a reasonably safe condition.
The bill of particulars further alleged that thereafter, on or about the first day of June, 1934, the county commissioners came on the land to take out the rock, and she told them that they had no contract with her, and that they must take nothing off the land unless they made a contract with her; that the county commissioners thereafter, without any legal right, removed 3,270 yards of rock from the farm; that the rock was crushed on the farm and the dust damaged claimant; that the rock was taken out over the pasture of claimant so that she was damaged in the amount of $375.
The bill of particulars alleged further that the quarry was left with perpendicular sides, and she was damaged $100 on that account; that she had been damaged $5 by removal of stock water, $20 on account of dust from the rock crusher, and the rock removed from the farm was worth $261.60. Claimant asked judgment in the amount of $760.60. The demurrer of the board of county commissioners to this bill of particulars was overruled.
The answer of the board of county commissioners alleged that in December, 1933, the board entered into a contract with the Penn Mutual wherein the board was given the right to enter upon the land in question for the purpose of removing rock; that it did remove 3,274 yards of rock, for which it agreed to pay two cents a cubic yard, or $65.40; that this entering and removing of the rock was by authority of a contract between the board and the Penn Mutual; that the board purchased from the tenant on the farm a right of way on through the pasture; that the board was. willing to pay either the Penn Mutual or claimant for the rock, whichever the court should decide. The board denied that it had damaged the pasture land or that claimant had the right of possession when the rock was removed. The board prayed that the court decide whether claimant or the Penn Mutual was entitled to the $65.40.
The answer of the Penn Mutual Life Insurance Company first was a general denial. It then alleged that on the 10th day of December, 1932, by virtue of an action to foreclose a mortgage it received a deed from the sheriff for the real estate in question; that the deed was duly recorded; that from December 10, 1932, to February 28, 1934, it was in actual, open and full possession of the real estate in question, free of all claims of claimant; that during all this time it was entitled to receive all the rents from the place.
The answer further alleged that in December, 1933, while the defendant was in possession of the real estate in question it entered into a contract in writing with the board of county commissioners for the removal of certain rock; that in accordance with the contract the board removed 3,274 yards of rock, and there was due the Penn Mutual $65.40, for which claim was made and filed with the board; that all of this rock was removed while the Penn Mutual was in possession and the owner of the property; that the $65.40 was due the Penn Mutual; that on February 28, 1934, the Penn Mutual conveyed the real estate in question to claimant by a warranty deed but that the deed did not convey to claimant by its terms any title or interest to any rock removed nor to any rents accruing during the ownership of the property by the Penn Mutual. The answer prayed that the Penn Mutual recover judgment for the $65.40.
To the answer of the Penn Mutual the claimant first filed a reply by way of a general denial. The reply then alleged that claimant was entitled to receive $115.50 for rentals for the real estate from the Penn Mutual and $25 for hedge posts, for the reason that on April 17,1934, the Penn Mutual entered into a creditor’s agreement for payment, a redemption sale to be financed by the Federal Land Bank of Wichita, in which the Penn Mutual agreed to accept $3,000 in bonds, with interest at the rate of five percent per annum from April 13,1934, to the date of the consummation of the contract, and agreed to accept no other consideration except the $3,000; that under this agreement all the rentals collected by the Penn Mutual, amounting to $115.50, and $25 for posts, and all right in the stone removed belonged to claimant. The reply prayed judgment against the Penn Mutual in the amount of $140.50 and against the board of county commissioners for the value of the rock sold.
Because so much stress is laid on the creditor’s agreement it will be referred to here. It appears tq be in the form first of a letter from the loan correspondent of the Federal Land Bank addressed to the Penn Mutual. The letter stated that the Penn Mutual held a foreclosed farm and asked the company to state the earliest date the indebtedness could be paid and what amount the company would accept. This inquiry was dated April 13, 1934. Apparently on the same paper the Penn Mutual stated in reply that the amount of the indebtedness referred to was $3,000 and that on payment to it of $3,000 on or before May 1, 1934, or if paid thereafter by including interest at the rate of five percent per annum on $3,000 from May 1 to the date of payment, this sum would be accepted in full satisfaction of the claim. It was also agreed that the Penn Mutual would accept bonds and that no note, mortgage or other consideration would be received from the debtor.
By way of reply to the answer of the board of county commissioners the claimant filed a general denial and specially denied that the board had a contract with anyone authorizing them to remove any rock from the real estate in question. The reply prayed for a judgment against the county as asked for in her claim filed with the board.
At the beginning of the trial the county offered to confess judgment for $65.40.
The husband of claimant testified that the Penn Mutual foreclosed the mortgage; that it took a sheriff’s deed to the place on February 27, 1933; that an agent for the Penn Mutual talked to claimant about leasing the farm and claimant and her husband stated that they would have to sublease and recommended a tenant who leased the farm from the Penn Mutual and farmed it; that claimant and her husband made an application to the Federal Land Bank in accordance with the- wishes of the Penn Mutual. The creditor’s agreement heretofore referred to was then introduced. Then several letters from the insurance company were introduced. The witness testified that neither he nor his wife had received any rentals from the farm for 1934 and had received nothing for the rock taken from the farm nor for the damages. He then testified about a conversation had with a representative of the board of county commissioners.
The Penn Mutual then showed that it received its deed to the farm on December 10, 1932, and the deed from the Penn Mutual back to claimant was dated February 28, 1934, and recorded February' 11, 1935. This deed was delivered to,the land bank in November, 1934, but not recorded until February 11,1935. The husband of claimant testified that quarry operations were begun the first part of 1934 and continued for about three weeks. The witness testified that more than half the rock was quarried after he was notified that a deed had been issued by the company and sent to the land bank. Hé also testified that about the middle of January, 1934, a tenant started to remove a hedge line fence and he notified the Penn Mutual, and an agent of that company arranged that half the posts were to remain and belong to claimant, but the Penn Mutual took all the posts. On cross-examination the witness testified that disbursement to the Penn Mutual was made on November 7, 1934, but his deed from the Penn Mutual had been sent to the bank in July; that there was some error in the way the deed was made and it was changed to his wife’s name.
After further testimony, which did not add anything to this claimant’s case, she rested. The Penn Mutual demurred to the evidence of claimant and asked judgment for $65.25. The board of county commissioners also demurred to the evidence of claimant. The trial court sustained both demurrers and gave judgment to the Penn Mutual in the amount the board of county commissioners had offered to confess.
In doing this the court said:
“In this case, a foreclosure had been filed and a sheriff’s deed issued and the Penn Mutual Company had title to the property and the possession of the property. They had rented the property to a tenant, and it seems that the claimants here were occupying the premises as subtenants under this tenant, rather than under the Penn Mutual, and it seems to me the situation more nearly resembles the matter of their having an option to repurchase the property.”
There can be no doubt that the deal whereby the land was conveyed back to the claimant was not completed until November, 1934. There can be no doubt that all the things complained of by claimant happened during the time the Penn Mutual had title to the real estate and possession of it through its tenant. The misunderstanding of claimant and her husband arose, no doubt, from the fact that they remained on the land all the time and had the intention to repurchase it all the time from the Penn Mutual. They were subtenants all the time, however, of the tenant of the Penn Mutual and had no title to the real estate whatever.
The first error urged by claimant is the order of the court refusing her demand for a jury trial. In view of the action of the trial court in sustaining the demurrers to the evidence and of what we shall say of that presently, this point is not good. If the action of the trial court in sustaining these demurrers was correct, then it would have done claimant no good to have had a jury in the first place.
The next point argued by claimant is that the court erred in excluding competent evidence. The evidence to which reference is made is the refusal to admit exhibits “P” and “Q.” They were two letters written to the Penn Mutual and the Federal Land Bank by counsel for claimant, in one case more than six months, and in the other case more than a year after the cause of action accrued. Both letters are merely a statement of the claimant’s claim. No reason appears why they would be of any value to prove any issue in this case.
Claimant next argues that the trial court erred in refusing to recognize the creditor’s agreement that has been mentioned heretofore. Claimant urges that under the terms of this agreement the claimant was entitled to have all the damages and rent from the farm while the negotiations were going on. We have examined the agreement and are unable to give it the construction insisted on by claimant. That construction might have been given this agreement had it been entered into before claimant had lost title and the right of possession to the farm. In this case, however, about all the agreement amounted to is that the Penn Mutual agreed to take from claimant $3,000 for the place and to take bonds instead of cash. There is no provision in it providing that the claimant should take anything by the deed but the title to the land as it was when conveyed to him.
The argument of claimant that the trial court erred in sustaining the demurrers of the board of county commissioners and the Penn Mutual to the evidence of claimant has already been dealt with in this opinion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
HutChisoN, J.;
This action was one to recover the balance of an attorney fee of $500 on which $125 had been paid.
The main defense and the sole ground upon which the appeal de pends, is the three-year statute of limitations. On the trial, where there were other issues involved than that of the statute of limitations, the jury returned a verdict for the plaintiff for $375, and judgment was rendered for the plaintiff and against the defendant for $375 and costs. Later with the consent of the court a motion was filed containing the following language as the second paragraph thereof:
“2. Comes now the defendant, Eli Wilson, and moves the court for judgment on the pleadings and the evidence in the above-entitled cause for the reason that said evidence conclusively shows that more than three (3) years’ time had elapsed between the accrual of this cause of action and before the commencement of this action and the same is therefore barred by the statute of limitations.”
The trial court sustained this motion and rendered judgment for defendant for costs, from which judgment the plaintiff has appealed.
It is said in the briefs that there appeared to be some confusion as to the nature and terms of the contract between the plaintiff and defendant; For this reason it will be informative to quote a part of the petition and answer. The part of the petition exactly bearing on this particular question is as follows:
“For his cause of action against the defendant, plaintiff informs the court that by verbal agreement, the defendant employed the plaintiff as an attorney to represent him in all manner and respects as are involved in the business of a lawyer, in the individual capacity of the defendant in connection with a bankruptcy action in the United States district court, for the district of Kansas, in the matter of the bankruptcy of the Eli Wilson Commission Company. That said services were, at the request of said defendant, rendered by the plaintiff continuously from the 1st day of May, 1931, to the 16th day of January, 1933. That the defendant became indebted to the plaintiff by way of compensation for said services in the reasonable sum of $500, of which amount the defendant has paid the sum of $125, and after due and proper request and demand, defendant fails, refuses and neglects to pay the balance. That the defendant is now indebted to the plaintiff in the sum of $375 with interest at six percent per annum from the 16th day of January, 1933.”
The part of the answer that is especially pertinent is as follows:
“The defendant, Eli Wilson, for further answer alleges that he retained this plaintiff, J. B. Wilson, to represent him personally in the bankruptcy case of the Eli Wilson Commission Company; . . .
“The defendant, Eli Wilson, for further answer alleges and states to the court that if said plaintiff, J. B. Wilson, did render such services as alleged in his petition and if said defendant, Eli Wilson, did at any time owe said plaintiff, J. B. Wilson, for such services, that said claim of said plaintiff, J. B. Wilson, is now barred by paragraph two (2), section 60-306, of the Revised Statutes of Kansas for 1923, said section being the statute of limitations.”
There can be no question but that the professional services of plaintiff, for which recovery is sought in this action, are such services as were rendered after the first day of May, 1931. From the evidence we learn that the defendant paid for the services rendered him up to May 1,1931, and that the situation changed substantially on that date and a new arrangement was thereafter made. It may also be noted that the plaintiff received compensation in the same case for two other items of service rendered in the bankruptcy proceedings, which were allowed and paid out of the estate. One was where plaintiff and another attorney were appointed to represent the bankrupt estate and the other was where plaintiff went to St. Louis, Mo., at the request of the trustee, to cross-examine certain witnesses as to claims against the bankrupt estate. These may have caused confusion, but they are all settled and are not concerned in any way in this appeal, which involves now only the question of the bar of the statute of limitations as to the balance of the fee of plaintiff for professional services rendered defendant after May 1,1931.
The defendant was one of the two members composing the firm of the Eli Wilson Commission Company, doing business at Lawrence, Kan., Mrs. Frances B. Walton being the other member. On February 14, 1931, involuntary bankruptcy proceedings were filed against the Eli Wilsón Commission Company, joining Eli Wilson and Frances B. Walton personally. The defendant, Eli Wilson, had plaintiff appear in his behalf personally by filing an answer and making other defenses to avoid his being declared a bankrupt personally, and on May 1, 1931, the proceedings were dismissed as to defendant personally, but the partnership bearing his name, and Mrs. Frances B. Walton individually, were adjudged bankrupts.
Defendant testified that after the proceedings were dismissed as to him personally he asked the plaintiff to make out his claim, amounting to $45,000, against the partnership, which plaintiff did with the assistance of defendant’s wife; that he received a statement from plaintiff for his services after May 1, 1931, and paid $125 thereon by leaving a check for that amount at the office of plaintiff, June 15, 1932. This check and some correspondence concerning the fee were introduced in evidence, also a certified copy of the bankruptcy docket in the federal district court of Kansas, which showed the proceedings in this bankruptcy case and that the report of the referee on petition for discharge was made on November 10,1932, and filed with the clerk of the district court on January 16, 1933.
This action to recover the balance of the $500 fee charged for services after May 1,1931, was filed in the district court of Douglas county, January 8, 1936. The evidence of the plaintiff details the professional work done by him after May 1, 1931, including the writing of many letters, the making of two calls on the referee in Topeka after the making of the report by the referee on November 10, 1932, and one call upon the clerk of the federal district court at Topeka after the filing of such report with the clerk on January 16, 1933, and plaintiff testified that these trips and calls were 'made so as to carefully watch the interests of the defendant, his client. There is no evidence in the record before us in conflict with that of the plaintiff as to the making of these three calls on such officers after November 10, 1932, except that defendant and others stated they did not know of his doing so.
The defendant argues that there was nothing done and nothing that could have been done by plaintiff for his client, the defendant, after the making of the report by the referee, because that terminated the case, except for the ten days allowed by the general orders in bankruptcy for filing petitions for review, and none such were filed in this case. So defendant concludes that after the expiration of these ten days, or on November 21, 1932, the bankruptcy proceedings in which plaintiff claims a fee were terminated and plaintiff’s cause of action then and there accrued, and since this action was not commenced until January 8, 1936, it was barred by the three-year statute of limitations.
Defendant cites 37 C. J. 829, where it is said:
“Where an attorney at law is employed to prosecute or defend an action or to represent his client in some other legal proceeding, his right to recover compensation accrues and the statute begins to run when and only when the action or proceeding is terminated or the contract of retainer is otherwise ended; for such a contract is regarded as entire and continuous. The test therefore is to determine when the services are so terminated as to give the attorney a present right of action.”
Defendant also cites 1 Wood on Limitations, 4th ed., 677; Prichard v. Fulmer, 25 N. M. 452, 184 Pac. 529; Bruner v. Martin, 76 Kan. 862, 93 Pac. 165, and Kinnard v. Stevens, 122 Kan. 347, 251 Pac. 1085, to show that a cause of action for an attorney fee accrues when the suit or proceedings in which he has been employed has terminated. The second paragraph of the syllabus in the last case above cited is as follows:
“The statute of limitations does not commence to run against a cause of action until the accrual thereof, and the accrual of the cause of action means the right to institute and maintain an action for its enforcement.”
There is no contention as to this not being the correct rule, but the question is, When were the bankruptcy proceedings terminated? Were they terminated ten days after the making of the order by the referee (November 21, 1932), or when the order was filed with the clerk of the federal district court (January 16, 1933) ? Appellee contends that because there was no petition for review filed with the referee within ten days after the meeting of the creditors and the making of the order by the referee, there was nothing to review and the proceedings were ended.
The referee in bankruptcy is an officer of the federal district court and appointed by the court (§§ 1, 34 of the bankruptcy act, 11 U. S. C. A. §§ 1, 62).
Subdivision c of section 42 of the bankruptcy act, 11 U. S. C. A. § 70, provides:
“The book or books containing a record of the proceedings shall, when the case is concluded before the referee, be certified to by him, and, together with such papers as are on file before him, be transmitted to the court of bankruptcy and shall there remain as a part of the records of the court.”
In Brown v. Persons, 122 Fed. 212, it was said:
“All orders of a referee in bankruptcy are made expressly subject to review by the judge, who has power to vacate an order discharging a trustee.” (Syl. ft 1.)
In In re De Ran, 260 Fed. 732, it was held:
“The closing of bankrupt’s estate is not established by entry on the referee’s book, ‘Order allowing aectmnt and discharging trustee filed;’ the record of the bankruptcy court not showing that the referee’s record was transmitted to the court, or its clerk. . . .” (Syl. ft 3.)
It was said in the opinion :
“The proposition that the referee alone had jurisdiction to reexamine the claim does not impress us. It is not accurate to say that the action allowing the claim was solely that of the referee; in a much more proper sense it was directly the action of the district judge. . . . The action had was as effectively that of the judge as if had under a positive order withdrawing that subject from the referee’s consideration, or as if the referee had in the first instance allowed the claim, and the matter then been brought before the district judge for review.
“The estate not having been closed, the statute of limitations does not apply” (p. 739). (See, also, ■In re Carr, 116 Fed. 556.)
The concluding order of the referee did not terminate the proceedings because it was a court matter, and his order, whether at tacked for review or not, did not complete the duties imposed upon him by statute. It must get to the court where it belonged by being filed with the clerk of the court.
The text above quoted from 37 C. J. states that an attorney’s contract to represent his client is usually regarded as entire and continuous. A reference to the quoted portions of the petition and answer in this case removes all doubt as to the term and nature of the employment of the plaintiff, for the answer states that he, the defendant, “retained this plaintiff, J. B. Wilson, to represent him personally in the bankruptcy case of the Eli Wilson Commission Company.” Under such employment nothing but death, resignation or discharge would end such a contract of employment until the proceedings were terminated, and they were not terminated before the order was filed with the clerk of the court. Therefore, the statute of limitations had not run when this action was commenced.
The judgment is reversed and the cause is remanded with directions to set aside the judgment in favor of the defendant and render judgment for the plaintiff on the verdict. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel the compensation commissioner and James Malone, in charge of compensation hearings, to cause certain affidavits which had been filed with the commissioner after the hearing in a compensation case to be included in the record on appeal to the district court, and also to require them to make an award as to one of the respondents. Defendants moved to quash the alternative writ, and a hearing was had upon briefs and oral argument. After consultation the court denied the writ. It remains to state the reasons therefor.
The record discloses that the Eagle-Picher Mining & Smelting Company is a corporation engaged in the mining and smelting of lead and zinc ore. It had a lease on a certain tract of land on which it desired to have some drillings made to test the location of ore strata and the structure above. It made a contract with William Swalley, Jr., to do this test drilling. Swalley employed Leo Wells to operate or work with the drilling machine. Wells worked under the direct supervision of Harry J. Meade, field man for the Eagle-Picher Mining & Smelting Company, who pointed out the places where Wells should drill, how the drilling should be done, how to clean out the hole,and save the cuttings and make a record of them, and how deep to drill. A number of holes were drilled. While working with this drilling rig Wells sustained an accidental injury May 5, 1937. He filed his claim for compensation, naming as respondents the Eagle-Picher Mining & Smelting Company and William Swal-ley, Jr.
A hearing was had before James Malone, acting for the compensation commissioner, on October 15. One of the questions to be determined was whether the claim for compensation had been made within the time provided by statute (G. S. 1935, 44-520a). Wells testified' that he had been paid compensation up to September 15. If that was true his claim for compensation was in time. If he had never been paid any compensation his claim was too late. Respecting those payments, respondent called two witnesses. Objections to their testimony were, sustained. Counsel then stated that he offered to show by the witnesses that the money paid Wells was the proceeds of a certain insurance policy and not payments of compensation. The commissioner declined to receive the testimony, and both parties rested. On November 27, 1937, the commissioner had completed his findings and made an award of compensation as against the Eagle-Picher Mining & Smelting Company in favor of the claimant. No award was made as against the respondent William Swal-ley, Jr., nor was it stated that the award against him was denied. A few days before this award was made affidavits were made by the two witnesses, whose testimony the commissioner had declined to receive, embodying in substance the matter counsel for respondent, at the time of the hearing, had stated they would testify to. These were forwarded to the compensation commissioner by the attorney for Swalley on November 13, 1937, with the request that they be made a part of the record of the hearing, and on the 29th of that month the compensation commissioner advised counsel for respondents that he would decline to make them a part of the record of the hearing. On December 11, 1937, the Eagle-Picher Mining & Smelting Company appealed from the award against it to the district court.
Our statutes (G. S. 1935, 44-552, 44-556) set forth what the record should contain. Affidavits filed with the commissioner after the hearing on the claim is closed are no part of such record.
With respect to, the failure of the compensation commissioner to state whether an award was made, or was not made, as against Swalley, we note that under the statute (G. S. 1935, 44-556) the district court, on appeal, considers the case both on the law and the facts, and can make such award as is proper. More than that, we see no reason why Swalley should insist that the award should be made as .to him, and since the Eagle-Picher Mining & Smelting Company is liable on the award, if anyone is (G. S. 1935, 44-503), we see no reason why it is concerned with that question, unless a question should arise between it and Swalley with respect to which, as between them, should pay the award.
It is true, as contended by plaintiff, that the one time fixed under our compensation law for hearing evidence in a compensation case is when the hearing is being held by the compensation commissioner or his examiners. (Willis v. Skelly Oil Co., 135 Kan. 543, 11 P. 2d 980; Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, 45 P. 2d 861.) Strict rules of evidence are not to be followed, and the commissioner or his examiners should be liberal with respect to the introduction of evidence, rather than otherwise. We are not passing on the question of whether the ruling excluding this offered evidence was correct. That question is not before us. The ruling may have been entirely proper. Plaintiff cites our cases in which it has been suggested that excluded evidence might be offered by affidavit. (Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396.) It would have been proper for respondent to have asked permission to file the affidavit before the hearing was closed before the examiner, or to have had the hearing continued until the affidavits could have been prepared, but none of our cases goes so far as to hold that after the hearing is closed, ex parte affidavits may be filed with the commissioner and made a part of the record.
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The opinion of the court was delivered by
Harvey, J.;
This is a workmen’s compensation case. Claimant was allowed compensation for the loss of an eye, as provided in G. S. 1935, 44-510 (3) (c) (15). Respondents have appealed and con tend the court erred, (1) in holding that the claim for compensation was made in time, and (2) in not giving credit on the award of compensation for payments which the claimant previously had received because of a prior injury to the eye. All other facts entitling claimant to compensation had been stipulated.
The first question arises in this manner: On May 30,1936, claimant’s eye was so injured that it had to be removed. Respondents in due time began paying compensation by check each week or two weeks. Claimant received and cashed six of these checks, up to and including the check dated July 18, 1936. He received respondents’ checks regularly thereafter, up to and including October 29, but for some reason not disclosed by the evidence, had not cashed those. With the last of these checks respondents sent a joint petition and stipulation, which it requested claimant to sign, to the effect that this was payment in full for twenty percent of the loss of the eye and temporary disability, and all respondents owed. Claimant then consulted counsel, and on his advice, on November 3, 1936, returned the joint petition and stipulation unsigned, and also returned the un-cashed checks, and at the same time made claim for compensation. Respondents argue that since this claim for compensation was made • more than 90 days after July 18,1936, which was the date of the last check the claimant had cashed, the claim for compensation was not within the time required by G. S. 1935, 44-520a. The point is not well taken. The checks sent in the interim were payments, so far as respondents were concerned. Had the bank on which they had been drawn failed, perhaps claimant would have been the loser. We think he might have cashed the checks, except the last one, without prejudice to his rights. Since he could not well have accepted the last one without prejudicing his rights, the fact that he returned the other uncashed checks was no prejudice to respondents.
The second question arises in this way: On September 2, 1931, while working for the Kansas Mill and Elevator Company, both operating under the compensation act, plaintiff got lime in this same eye, causing an open corneal ulcer over the pupil, impairing the vision, for which he received compensation for an eighty percent loss of vision. The Kansas Mill and Elevator Company went into receivership, and another corporate entity, the present respondent, the Arkansas City Flour Mills Company, took over the business prior to plaintiff’s present injury. Respondents contend that claimant having lost eighty percent of his vision in the eye by the former in jury, for which he was paid under the compensation act, they are liable in this proceeding for only twenty percent for the loss of the eye. The point is not well taken. The amount to be paid is governed by the statute. The only provision of our compensation law which respondents argue is applicable here is G. S. 1935, 44-510 (3) (c) (24), which reads:
“If a workman has suffered a previous disability and received a later injury, the effects of which together with the previous disability shall result in total permanent disability, then and in that event the compensation due said workman shall be the difference between the amount provided in the schedule of this section for his prior injury and the total sum which would be due said employee for such total disability, computed as provided in section 11 [44-511] of this act, but in no case less than six dollars ($6) per week nor more than eighteen dollars ($18) per week.”
Claimant here is not seeking total permanent disability, as provided by section 11 of the act. He makes no contention that his prior injury, together with his present one, results in total permanent disability under that section; hence this provision has no application here. The paragraph under which claimant is entitled to compensation in this proceeding — G. S. 1935, 44-510 (3) (c) (15) — is for the loss of an eye; not for the loss of a perfect eye. The court found claimant lost an eye. This is not controverted. The statute provides what compensation he shall receive for the loss of an eye. That is what the compensation commissioner and the trial court gave him:
' We have considered all the arguments of counsel, and the authorities cited, but deem it unnecessary to make an extended discussion or review of them.
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The opinion of the court was delivered by
Wedell, J.:
This was an action under the workmen’s compensation act for total permanent disability resulting from the loss of both eyes. The action was brought by Louis Mendel against the Fort Scott Hydraulic Cement Company, the American Service Company, and their respective insurance carriers, the Travelers Insurance Company and the Casualty Reciprocal Exchange. The first respondent will be referred to as the Cement Company, and the second respondent as the Ice Company. Judgment was rendered against both the Cement Company as a general employer, and against the Ice Company as a special employer, and against their respective insurance carriers. The Ice Company and its insurance carrier have appealed and the Cement Company and its insurance carrier have cross-appealed. As between the Cement Company and its insurance carrier, the latter occupies the position of appellee.
The Cement Company operated, two cement plants and quarries near Fort Scott, and.the Ice Company operated one or more ice plants in the city of Fort Scott. The Ice Company was remodeling and repairing one of its plants, and as a part of such work found it necessary or convenient to dig a new sewer or drainage ditch. While digging the ditch the Ice Company struck rock and found it impossible to continue excavation work by means of pick and shovel. Mr. O’Connor, the local manager of the Ice Cofnpany, obtained from the Cement Company the necessary equipment and two men, including the claimant, to blast the rock. The manager of the cement plant was not in the office and Mr. O’Connor made the arrangements for the men and equipment through Mary Monroe, a bookkeeper in charge of the Cement Company office. She in turn directed the foreman at the Cement Company’s quarries to send the equipment and two men to the ice plant. No foreman or supervisor from the cement plant accompanied the men or the equipment. Under the arrangement the Ice Company was to pay $3 per day for the use of an automatic drill, was to pay for the time the men were used and for the explosives and other materials furnished. Claimant had been employed by the Cement Company for approximately twelve years. He operated the jackhammer which was used in the drilling of holes for the reception of explosives. The other workman, Robert Galvin, was the powder man. Johnson, of the Cement Company, instructed the two workmen to report to the Ice Company. He gave them no other instructions. The men reported and were directed by Burg, engineer of the Ice Company, to the work to be performed. He advised them concerning the depth to which it would be necessary to excavate the ditch. He was present to oversee the work most of the time. After explosions the workmen of the Ice Company removed the dirt and. rock. As the dirt was removed the high points could be observed. Burg then ran the level to ascertain how much additional rock it was necessary to remove. Mendel, the claimant, then removed the high points with the use of the jackhammer.
The testimony of Galvin, the powder man, was to the effect that from time to time, if there was something they desired to know, they consulted Burg. As to instructions by Burg, other than those previously mentioned, it appears they consulted him for directions as to the extent of the shooting with a view of keeping the Ice Company men at work. Burg admitted that Rogers, the erecting engineer, had authority to give instructions to the men, but he did not know whether he had given any. Burg was the foreman in charge of the work in the sewer ditch. He insisted the shots be muffled. This was done by means of placing large timbers over the shots. When the explosion did not force the timbers out of the ditch, the Ice Company employees removed, or helped remove, them. The men worked on a Friday and Saturday, and the injury occurred at about 9:30 o’clock Sunday morning, on December 20, 1936. It appears claimant drilled into a shot or unexploded portion of a shot, which resulted in his injury. Galvin, the shooter, had instructed Burg the night before that he thought one of the shots had not gone off entirely. Galvin marked the place on the bank of the ditch and Burg marked it on the building, so they would both know where it was. Just how it happened that claimant was permitted to drill into the shot the next morning, does not appear. Since, however, this is not a negligence case, we need not pursue that question.
The Cement Company was notified of the injury and sent a man to take claimant’s place. When the work at the lee Company was completed, the workmen, with the exception of claimant, continued their regular employment with the Cement Company. The Cement Company had retained the men on their regular pay roll and it paid them their regular wages for the time they were working at the Ice Company. The evidence of the bookkeeper for the Cement Company was to the effect that she did not remember, without consulting her records, of other similar jobs,' to which the workmen of the Cement Company had been loaned. She did recall various occasions on which the company had rented its machinery for similar purposes. The evidence of the workmen was to the effect they had been sent by the Cement Company to other similar jobs and had always received their pay directly from the Cement Company, except when they had worked on a WPA job. They were able to recall only one other job to which these same workmen had been sent together. Their regular wage was forty cents an hour. The Cement Company billed the Ice Company and received pay for the time the men worked, at the rate of fifty cents an hour. The Ice Company also paid the Cement Company the agreed rental for the drill and paid it for the material and explosives used. At the time O’Connor, the manager of the Ice Company, arranged for the Cement Company men to do the blasting work he inquired whether the Cement Company carried insurance on these men, and was advised it did. The Cement Company’s insurance premium was based on its pay-roll audit. That audit, including these workmen, was, after the accident, submitted by the Cement Company to its insurance carrier. It refused to accept the premium based thereon.
The first question is, Who is liable for the compensation, the Cement Company, the Ice Company, or both? The second question is, If the Cement Company is liable either separately or jointly with the Ice Company, is the insurance carrier of the Cement Company liable under the terms of its policy?
We shall first consider the contention of the Ice Company, the principal appellant. It urges the Cement Company was an independent contractor and as such is solely liable for the compensation. In order to determine the actual relation of the parties under any employment, the courts will look to all the circumstances in volved in the particular case. (Pottorff v. Mining Co., 86 Kan. 774, 780, 122 Pac. 120.) In the Pottorff case it was said:
“Various definitions have been essayed of the term ‘independent contractor,’ as used in the law of master and servant, the sense in which it must be applied here. Judge Lurton, in Powell v. Construction Company, 88 Tenn. 692, 13 S. W. 691, said: ‘An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to result of his work.’ (p. 697.) While any definition might not exactly fit all possible cases the foregoing has the merit of brevity and is approved in Humpton v. Unterkircher & Sons, 97 Iowa 509, 514, 66 N. W. 776, and other cases. An. independent contractor represents the will of his employer only in the result of his work and not as to the means by which it is accomplished. (1 Thomp. Com. on the L. of Neg., § 622.)” (p. 781.)
In the recent case of Bittle v. Shell Petroleum Corp., ante, pp. 227, 231, 75 P. 2d 829, this court reviewed numerous authorities dealing with liability, and said:
“What is an independent contractor?
'“(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.’ (Restatement, Agency, § 2.)
“In comment to section 403, Restatement of Torts, it is said:
“‘a. The words “independent contractor” denote any person to whom the construction, rebuilding or repairing of a chattel is entrusted in such a way as to give him charge and control of the details of doing the work, irrespective of ■whether the work is done gratuitously or is to be paid for by his employer or is in any other way of financial or other benefit to the contractor.’ (p. 1091.)
“This definition and comment accord with our own pronouncements. (Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, syl. ¶ 2; Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907; Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P. 2d 474.)” (p. 231.)
The real test is the right or authority to interfere, direct, supervise or control, and not the actual interference or exercise of the control by an employer which determines whether one is a servant rather than an independent contractor. (Murray’s Case, 130 Me. 181, 154 Atl. 352, 75 A. L. R. 720.) See, also, annotations in 19 A. L. R. 226; 75 A. L. R. 725 and 14 R. C. L., Independent Contractors, § 3; 71 C. J., Workmen’s Compensation Acts, § 185.
The cement company, in the instant case, did not undertake to construct a drainage or sewer ditch for the Ice Company. It loaned its men, rented its drill and sold certain materials to the Ice Company in order that the Ice Company might complete its own undertaking. The Ice Company constructed its own sewer or drainage ditch. Insofar as actual supervision of the project was concerned it, and not the Cement Company, was in charge. The trial court so found. It was upon that finding the trial court concluded the Ice Company was the special employer of the claimant, and as such was liable for compensation jointly with the Cement Company, the general employer. The Cement Company was not an independent contractor. Whether it is liable as a general employer we shall discuss presently.
' The Ice Company next contends the finding of fact concerning the supervision and control over the loaned workmen is without support in the record. The facts previously narrated, insofar as actual general supervision of the work was concerned, support the finding. The question -of the Cement Company’s right to supervise any portion of the work will be treated later.
Does the loaning of a workman under circumstances narrated render the Ice Company a special employer, and is such special employer liable under the workmen’s compensation act? In 71 C. J., Workmen’s Compensation Acts, § 141, the rule is stated thus:
“The general test in determining whether a person to whom an employee is lent becomes his employer, and liable for compensation, is whether he assumes the ■ direction and control of the employee. As otherwise stated, it is the right to control and direct the activities of the employee, or the power to control the details of the work to be performed and to determine how it shall be done and whether it shall stop or continue, that gives rise to the relationship of special employer and employee; or it must appear that, either by the terms of the contract or during the course of its performance, the employee of the alleged independent contractor came under the direction and control of the other party to the contract, and suffered injury as a consequence of such direction and control. It is not so much the actual exercise of control which is regarded as the right to exercise it. Where the employee comes under the direction and control of the person to whom his services have been furnished, the latter becomes his special or temporary employer, and liable for compensation; where he does not, the latter does not become his special or temporary employer, and is not liable for compensation, and the original employer remains liable for compensation. Complete, full, or exclusive control, supervision or direction has been required, and not mere suggestion as to detail; and it has been held that the mere fact that the work in which the servant is engaged is superintended by the agent of some one other than the master does not relieve the master of responsibility.
“For liability to attach to a person as a special employer, the employee must have been subject to his direction and control at the time of the injury.” (p. 405.)
Our workmen’s compensation act does not differentiate between special and general employers. (G. S. 1935, 44-508 h.) We think it may properly include both. That there is a difference of views on the question of whether a special employer, in the absence of express statutory provision, is liable for compensation as well as the general employer, cannot be doubted. (See annotations, 3 A. L. R. 1181, 34 A. L. R. 768, and 58 A. L. R. 1467.)
It has, however, been definitely held, by what we regard as sound authority, that under circumstances similar to those in the instant case, the workmen may look to either or both employers for compensation in the absence of an express statutory provision to the contrary. (Matter of DeNoyer v. Cavanaugh, 221 N. Y. 273, 116 N. E. 992; Employers’ L. A. Corp. v. Indus. Acc. Com., 179 Cal. 432, 177 Pac. 273; Matter of Schweitzer v. Thompson & Norris Co., 229 N. Y. 97, 127 N. E. 904; Jaabeck v. Theodore A. Crane’s Sons Co., 206 App. Div. 574, 201 N. Y. Supp. 743, reversed on other grounds in 238 N. Y. 314, 144 N. E. 625; Pruitt v. Industrial Acc. Com., 189 Cal. 459, 209 Pac. 31; Famous, P., Etc., Corp. v. Ind. Acc. Com., 194 Cal. 134, 228 Pac. 5; Wright v. Cane Run Petroleum Co., 262 Ky. 251.)
In the Wright case it was held:
“General employer who directs employee to work under control of special employer is nevertheless liable to pay compensation for employee’s injuries, and employee injured while working for special employer may look to either general or special employer for compensation.” (Syl. j[ 2.)
In Famous, P., Etc., Corp. v. Ind. Acc. Com., supra, it was held that the pilot of an aeroplane, who is rented with the plane for a day by its owner to a motion-picture producer, from whom he takes all orders as to flight for the making of a picture, is, in case of injury, entitled to look to both employers for compensation.
The Cement Company insists that claimant, at the time of the injury, was an employee of the Ice Company. It reminds us the trial court found: He met with injury by accident arising out of and in the course of his work and employment at the Ice Company; that all control over him was at that time exercised by that company, and hence the Cement Company is not liable. Before discussing the conclusion contended for by the Cement Company, it will be necessary to also consider other findings. All findings must be read together with a view of harmonizing them with each other, and with the judgment, where that is possible. (Jordan v. Austin Securities Co., 142 Kan. 631, 51 P. 2d 38.) In this case we think the findings can be so harmonized. The trial court also found claimant had been for about twelve years, and was, on the date of the accident, an employee of the Cement Company. The correctness of that finding is not 'disputed. The trial court also found claimant was merely loaned to the Ice Company for the purpose of doing certain work. That the Cement Company directed him to do that work is not disputed. The trial court also found he was at that time receiving an average weekly wage of $19.20. That such wage was being received from the Cement Company is conceded. Neither is it disputed that the Cement Company charged and received from the Ice Company ten cents more per hour for the services of the workmen than it paid the workmen for their services at the Cement Company. While the Ice Company did supervise the work generally, there is no reason to doubt that the Cement Company retained a right to supervise the technical or dangerous aspects of the explosive work in which their men were engaged for hire. The trial court did not find the Cement Company surrendered such a right. Had it done so the finding would have been without support in the record. We cannot, and certainly will not, in the face of this record, say the Cement Company or the Ice Company had no right to see that claimant did not drill into a live shot of explosive. Moreover, both the shooter for the Cement Company, and Burg, the foreman of the Ice Company, recognized not only that right but apparently the duty to mark the location of the unexploded shot in order to protect the workmen of both employers. In view of all the circumstances we are forced to the conclusion there existed a joint right of supervision, if not in fact a positive duty, on the part of both the general and special employers to see that the workmen of both employers were protected from injury. Under such circumstances we are not inclined to follow the view of some courts which seem to hold that in order for the special employer to be liable he must have exclusive supervision and control of each and every phase or incident of the work. Neither are we willing, under such circumstances, to relieve the general employer of liability.
In addition to what has been said concerning the right of the Cement Company to exercise some supervision over the work of the men, it is well to bear in mind a few other pertinent facts. The Cement Company clearly retained the right to discharge its workmen for a refusal to do the work for the Ice Company which they were directed to do. It retained the right to replace these particular men with any other workmen in its employ. It did so when claimant was injured. It, and not the special employer, had always, as in the instant case, paid the compensation of its workmen when similarly employed on other special work. In the case of Matter of DeNoyer v. Cavanaugh, supra, it was said:
“Even where no property of the general employer is entrusted to the employee to be used in the special employment, the general employer pays the compensation, may direct the employee when to go to work and may discharge him for refusal to do the work of the special employer. The industrial commission, therefore, has full power to make an award against the general employer.” (p. 275.)
The foregoing principle as stated in the Cavanaugh case has been quoted with approval in many, if not all, of the cases previously cited in which it was held the workmen might look to either or both employers for compensation.
The case of King v. Railway Co., 108 Kan. 373, 195 Pac. 622, while not cited herein as controlling on the question of joint liability of a general and special employer, is enlightening as to the liability of the general employer to a workman whom he merely loans to another, but where the workman remains in the regular employ of the general employer. The question of joint liability was not an issue in that case.
The contentions of the Cement Company thus far stated are joint contentions of that company and its insurance carrier. In support of their contention that only the Ice Company, as a special employer, and its insurance carrier are liable, they cite Baker v. Petroleum Co., 111 Kan. 555, 207 Pac. 789; Carter v. Woods Bros. Construction Co., 120 Kan. 481, 244 Pac. 1; Chisholm’s Case, 238 Mass. 412, 131 N. E. 164; Jones v. George F. Getty Oil Co., 92 F. (2d) 255; Sgattone v. Mulholland & Gotwals, 290 Pa. St. 341, 138 Atl. 855, 58 A. L. R. 1463; Restatement, Agency, §227, Illustration 1. In none of those cases was the question of joint liability of the general and special employer involved. The real issue in the Carter case was whether particular services of a workman and recognition of him by the foreman as a workman, brought him within the compensation act as a workman. Attention is directed to our statutory definition of a workman which was there quoted:
“‘Section 44-508 of the Revised Statutes reads, in part, as follows: “Workman” means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, but does not include a person who is employed otherwise than for the purpose of the employer’s trade or business.’ ” (p. 483.)
In the instant case claimant, while injured, was employed solely by the Cement Company and engaged in the furtherance of its own trade or business. There was evidence the Cement Company did blasting work not only in its own quarries, but rented its equipment and directed its men to do blasting work for others. The men always received their regular pay directly from the Cement Company except when working on WPA projects. Irrespective, however, of other similar work to which the Cement Company detailed its men, and notwithstanding the fact the construction of the sewer was in general supervised by the Ice Company, it remains an indisputable fact the injured workman continued to be an employee of the Cement Company and was in this place of danger and engaged in this hazardous employment solely by reason of obedience to the command of his general master, the Cement Company, and at a profit to that master besides. In this sense he was clearly engaged in the trade or business of his general employer. Moreover, he was engaged in the same kind of dangerous work as that performed in the Cement Company’s quarries in which injuries are compensable under the act.
The Baker case was a negligence case, and the main question was whether the driver of a truck was the servant of the defendant or of an independent contractor. True, it was there said:
“It is well settled that the servant of A may for a particular purpose, or on a particular occasion, be the servant of B, though he continues to be the general servant of A and is paid by him for his work. 1 Labatt’s Master and Servant, 2d ed., §§ 52-57, cites the language of Mr. Chief Justice Cockburn in Rourke v. White Moss Colliery Co., L. R. 2 C. P. Div. 205:
“ ‘When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.’ (p. 200).” (p. 560.) (Italics inserted.)
The foregoing statement, together with the subsequent portion of the opinion, however, clearly indicates that a workman may be lent under such circumstances as to make the borrower liable for the acts of the workman. The case is not authority for a contention that every borrower becomes solely liable for the acts of the lent workman as a matter of law, irrespective of the circumstances surrounding the lending. In the recent case of Hartford Accident & Indemnity Co. v. Addison, 93 F. (2d) 627, it was held:
“The mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person’s servant.” (Headnote, U 5.)
The fact the authorities are in conflict as to the test for determining which employer is liable is further illustrated in the recent case of Jones v. George F. Getty Oil Co., supra (1937), in which the controlling factor was held not to be a question of who had control over the employee, but the question of whose work was being performed. In the instant case, as previously indicated, the work was not only that of the Ice Company, but also the work of the Cement Company.
The insurance carrier for the Cement Company contends that even if it be held the Cement Company is liable, the insurer is not liable for the reason its policy covered only the two cement plants and quarries mentioned in the declarations and operations incident thereto. The same contention was made in Bass v. Lebow, 146 Kan. 487, 71 P. 2d 1071, in which the policy also contained other provisions identical with those in the instant policy. Such other provisions did not restrict coverage for injuries sustained at the specific locations mentioned in the policy. Those provisions are set out at length in the opinion in the Bass case, and need not be repeated here. It was there held:
“In an action for workmen’s compensation the insurance policy provided that the work places of the employer were two oil leases described in the policy. The deceased workman lived on one of these leases, was carried on that pay roll and was killed while operating a rod-pulling machine on a lease other than one described in the policy. Held, that the work of operating the rod-pulling machine was incidental to the work of operating the oil leases and the death of the workman was covered by the policy.” (Syl.)
After reviewing the various provisions, it was said:
“These provisions in the policy must be considered, as well as the provisions describing the location of the work places of the employer. When so considered it becomes apparent that the policy does not limit the liability of the insurer to what shall actually occur on those leases. The policy contemplated that the insurer would be liable for injuries to the employees of the insured while engaged in the operations of the employer as long as the work being done was necessary, incident or appurtenant to the operations of the employer, even though the actual injury should not take place on the property named. To this effect is the holding of this court in Iott v. Continental Casualty Co., 129 Kan. 650, 284 Pac. 823; also, Robertson v. Labette County Comm’rs, 122 Kan. 486, 252 Pac. 196.” (p. 491.)
It was then said:
“There remains the question, then, as to whether the work Bass was doing when he was killed, that is, the operation of a rod-pulling machine, was neces sary, incident or appurtenant to the operations of Lebow upon the lease in question.” (p. 491.)
The question was answered in the affirmative. It is answered likewise here.
The insurance carrier also contends the designation of the locations of the two cement plants and the quarries was inserted in item No. 3 of the policy with typewriter, and since the typewritten portion was definite and certain, its provisions must govern over the printed provisions. For clarity we are placing the typewritten portion in parentheses. The pertinent portion of item No. 3 reads:
“Locations of all factories, shops, -yanfe, buildings, premises or other workplaces of this employer, by town or city, with street and number. (One quarry and cement plant located 3% miles north of Fort Scott, Kansas, and one quarry and cement plant located 1 mile north of Fort Scott, Kansas.)
“All business operations, including the operative management and superintendence thereof, conducted at or from the locations and premises defined above as declared in each instance by a disclosure of estimated remuneration of employees under such of the following divisions as are undertaken by this employer. 1. All industrial operations upon the premises. 2. All office forces. 3. Operations not on the premises.”
Construing the above portion of item No. 3 in its entirety, is it clear and certain that the portion in parentheses was intended as a restriction or limitation of liability, or was it intended as a description of the location of the plants and quarries? Clearly that question is -not free from difficulty.
The same contention is made concerning item No. 5, which reads:
“This employer is conducting no other business operations at this or any other location not herein disclosed — except as herein stated: (Other operations not covered hereunder.) ” (Italics and parentheses inserted.)
Obviously, the first word “herein,” contained in item No. 5, referred to all locations mentioned in the policy. Various provisions of the policy expressly extended coverage to other places than the cement plants and quarries. Were the words in item No. 5, to wit: “except as herein stated,” intended to refer to what might have been inserted in the blank space of that item? If so, to what did the words inserted with typewriter in item No. 5, to wit: “other operations not covered hereunder” refer? No specific operations were designated in item No. 5. It is well to note that none of the provisions inconsistent with the theory of the insurance carrier was stricken out. In view of these circumstances the terms of the policy were not clear and unambiguous. Under such circumstances the question of coverage must be resolved in'favor of the insured. (71 C. J., Workmen’s Compensation Acts, § 646 [4]; Samson v. United States Fidelity and Guaranty Co., 131 Kan. 59, 63, 289 Pac. 427; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 270, 58 P. 2d 1108; Rolfsmyer v. Kansas Life Ins. Co., 144 Kan. 520, 527, 61 P. 2d 865.) Moreover, not only the rights of the employer and-insurer, but the rights of the workmen, are here involved. In construing the effect of this policy, certain fundamental principles must be borne in mind. The purpose of the insurance requirement under the compensation act is to make certain the workmen will be protected. Every policy of insurance is required to be written in conformity with the provisions of the act, and the policy must contain an agreement that the insurer accepts all the provisions of the act. (G. S. 1935, 44-559.) This policy contained that provision. The act makes provision for compensation to the workman in the hazardous work in which he was employed by the Cement Company. (G. S. 1935, 44-505; 44-508 d.) In construing a policy, and especially where its terms are ambiguous, we are therefore warranted in giving to the policy such construction as will be in harmony with the intent and purpose of the act rather than a construction which will tend to defeat that purpose. Giving it that necessary construction, we conclude the employee was covered by the policy. In view of the foregoing it is not necessary to determine whether an insurance company may restrict its liability to a workman by making a contract with his employer which is less favorable to the workman than the act itself. That question can be settled when a case is presented which requires its determination.
It may be noted, also, that the premium rate in the instant case was based on the pay-roll audit. The policy of the Cement Company disclosed that the estimated total annual remuneration for quarrying work amounted to $40,000, with an estimated premium of $3,348, while the annual remuneration for cement manufacturing amounted to only $21,000 with an estimated premium of $1,757.70. This fact clearly indicates the. extent of the Cement Company’s quarrying work. It may be'well, also, to recall that the men sent to the Ice Company for quarrying work were selected from the regular employees of the Cement Company, who were already covered by the policy in question, and that they were not additional men to those on whom the premium rate was based.
The insurance carrier contends claimant was not engaged in quarrying work as that term is defined by G. S. 1935, 44-508 d, but was engaged in engineering work as defined by G. S. 1935, 44-508 g. The question under somewhat different circumstances might not be free from difficulty. That the Cement Company was not generally in charge of the engineering work of the Ice Company is clear. That blasting work may under circumstances properly become a part of engineering work may also be conceded. On the other hand, it is equally clear that the sewer ditch constituted a place, not a mine, where stone was being extracted, and that, in the instant case, it was being extracted by workmen of the Cement Company, at the direction of that company and as a part of its trade or business. These facts properly bring the work which claimant was performing under the definition of quarrying. It must always be remembered that the provisions of the compensation act must be construed liberally with a view of protecting the workmen, where that is reasonably possible, and not strictly with the view of defeating such protection. (State, ex rel. v. City of Lawrence, 101 Kan. 225, 165 Pac. 869; Palmer v. Fincke, 122 Kan. 825, 253 Pac. 583; Rush v. Empire Oil & Refining Co., 140 Kan. 198, 200, 34 P. 2d 542.)
In the light of all the circumstances, in the instant case, we think the intent and purpose of the compensation act will be best upheld by concluding that both the general and special employers and their respective insurance carriers are liable to claimant for compensation.
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The opinion of the court was delivered by
Smith, J.:
This was an application for the allowance of attorney fees out of an estate. The probate court denied the application. On appeal the district court denied it. Claimant appeals to this court.
On or about March 12, 1935, one Ellen Doyle died intestate a resident of Marion county, Kansas. She had no known heirs. On the date of her death she was seized of a large amount of property, both real and personal. On or about March 14, 1935, on a proper application an administrator for her estate was appointed. This administrator duly qualified and has been acting ever since. He has given bond in the amount of $407,000. Approximately eighty petitions have been filed in behalf of persons who claim to be heirs of Ellen. The matter is being adjudicated pursuant to the provisions of R. S. 22-1201 to 22-1206, also R. S. 22-933 to 22-935. (See State, ex rel., v. Good, 142 Kan. 434, 49 P. 2d 633.) If no person is adjudged to be an heir, then eventually the proceeds of the estate will be paid into the permanent school fund.
The above provisions placed the duty of looking after the interests of the permanent school fund upon the county attorney of the county of which deceased was a resident. Under the provisions of R. S. 22-1206 it was the duty of the attorney general to see that the act was enforced. Whenever in the opinion of the attorney general the public interests required it the attorney general might supersede the county attorney. Acting under the provisions of the above statute the attorney general superseded the county attorney in this case. The attorney general appointed Harold M. Hauser, A. M. Ebright and P. K. Smith as special assistants for the purpose of making the necessary investigation and to assist him and his regular assistants in looking after the litigation in volved. Early in the history of the litigation these lawyers appeared in their capacity as special assistants to the attorney general. Incidental to this appearance they each filed in the probate court claims for their out-of-pocket expenses. These claims were denied by the probate court and, on appeal, by the district court. The probate court refused to allow the claims upon the ground that the statute relied upon was unconstitutional. When the claims were appealed to this court, however, other questions were argued and passed upon as well. (See Hauser v. Estate of Doyle, 143 Kan. 719, 56 P. 2d 1217.) Among these was an argument that the provision for payment of expenses of the county attorney was personal to him and did not avail the attorney general in event he superseded the county attorney. This court upheld the constitutionality of the act, and held that where the attorney general superseded the county attorney his expenses should be paid from the estate.
On account of some motions that were filed the matter was considered again in Hauser v. Estate of Doyle, 144 Kan. 1, 56 P. 2d 1217. In this opinion the question of whether the expenses of assistants to the attorney general other than those specifically provided for in the statutes could be paid out of the estate was decided. This court said:
"We know of no reason why the attorney general may not exercise liis judgment and discretion as to the manner and method in which he performs the duties obligatory on him under the statute. He may have concluded that it would be less expensive to have attorneys close at hand to represent his office rather than go personally or send assistants from Topeka. He and his regular assistants may have been fully engaged in looking after other of the state’s business. Whatever may have been his reasons for designating the claimants as his assistants, it was not prohibited by statute; it was an act in the performance of his statutory duty. And, finally, it made no difference either to the administrator or the claimants to the estate what particular individual performed the duties.” (p. 2.)
From the time of their appointment shortly after the death of Ellen Doyle until the present time Hauser and Ebright and Smith, the latter two being law partners, have conducted investigations, made inquiries and interviewed witnesses in different parts of the United States and on one occasion in Ireland. Incident to the inquiry in Ireland was the employment of one John Deagen, a reporter, and James Cody, a solicitor, both in Ireland. By July, 1937, Hauser, Ebright and Smith had performed considerable service for the attorney general in the litigation. The attorney general filed a claim in the probate court for an allowance out of the assets of the estate for the amount of expenses incurred by him with reference to an item of a fee for services performed by Hauser, Ebright and Smith. The application was denied as to the fees of the above.
This order was sustained by the district court and is here on appeal. There is no question as to the reasonableness of the fee asked. The only question is as to the power of the probate court.
It is the theory of the attorney general that this should be treated as expenses of the attorney general. The theory of some of those who claim to be heirs and of the administrator is that this item is not properly expenses, but should be considered a fee for services performed by these lawyers. The statute pursuant to which this claim was made is R. S. 22-1204. That section is as follows:
“Whenever in the opinion of the probate judge the interests of the common schools so require, the probate court may make an allowance out of the estate to defray the reasonable expenses of the county attorney in making inquiries and in the examination of witnesses touching the rights of claimants to the estate of any such deceased person; but no expense to the estate shall be incurred under the provisions of this act where there are one or more heirs or devisees residing in the county, or where any one or more of the heirs or devisees are personally known to the probate judge.”
It will be noted that the above section provides that "the probate court may make an allowance out of the estate to defray the reasonable expenses of the county attorney in making inquiries and in the examination of witnesses touching the rights of claimants to the estate of any such deceased person.”
In this particular litigation we have already settled the question of whether the attorney general may supersede the county attorney. We have held, also, that having superseded the county attorney, the attorney general is authorized under his general powers to appoint assistants to handle the litigation other than the regular assistants authorized by statute, and to have their expenses, such as hotel bills, railroad fare, telephone tolls and similar items paid out of the, estate. (See Hauser v. Estate of Doyle, supra.) It should be noted here that the probate court and the district court allowed the application of the attorney general as to the fee of Deagen and Cody,' the Irish solicitor and reporter. All parties have treated these two items as “expenses” within the meaning of the statute quoted.
We should approach the consideration of this question with the fact established that Hauser, Ebright and Smith have performed services in excess of making inquiries and examining witnesses. As a matter of fact, they were in charge of the litigation.
Until the enactment of chapter 168 of the Laws of 1935, the estates of persons who died without known heirs and without a will were administered under the provisions of R. S. 22-1201 to 22-1206 and 22-933 to 22-935. These sections provided a comprehensive procedure for the collection, conservation and care of such estates. The entire matter of descents and distribution is governed by statute. The disposition to be made of an estate of one who dies intestate and without known heirs is entirely a matter of statutory provision. Thus we must look to the statutes for any disposition to be made of such an estate. It happens that the statute in question provides that such an estate shall go to the permanent school fund if no heir is found within a certain time.
This statute directs the attorney general to take certain steps in looking after an estate. It is the duty of that official to represent the school fund commission in any litigation just as it is his duty to represent any state agency which becomes involved in litigation. (See G. S. 1935, 75-701 to 75-710.) The statute under which this estate is being administered was enacted at the session of 1913. (Laws 1913, ch. 273.) At the same session the legislature provided for two assistant attorneys general at a salary of $3,000 and a contingent fund of $8,000 a year. Similar provision for assistants to the attorney general has been made at practically every session of the legislature since statehood. At various times provision has been made for fees being paid the attorney general and. assistants for services performed in the enforcement of particular statutes. G. S. 1935, 21-918, provides that the district court may fix a fee for the attorney for the plaintiff where an injunction is granted against the maintaining of a gambling nuisance. To the same effect is G. S. 1935, 21-2131, as to liquor nuisances. See, also, G. S. 1935, 50-130, as to an attorney fee where an action is brought to enjoin the use of property for violation of the “bucket shop” act.
Chapter 313 of the Laws of 1913 provided that the attorney general and the assistant attorneys general should not receive any remuneration for the performance of their duties other than the salaries provided by lav^, and that fees received under the above statutes should be paid into the state treasury. The practical manner in which the situation was met was that the legislature provided in the appropriation act for the attorney general for 1915 that any money paid into the state treasury pursuant to the above statutes was appropriated for the use of the attorney general. (See Laws 1915, ch. 3.) Each appropriation act for the attorney general since that session has contained a similar provision. On occasions since, when the attorney general has concluded that some particular action under these statutes required the attention of lawyers other than those provided for by statute, he has appointed them and their fee has been paid out of the contingent fund provided for his office under the appropriation act, which had been enriched somewhat by the fees paid in. In connection with this it should be noted that at the session of the legislature for 1935 the appropriation for the attorney general’s contingent fund was $17,500 for each year of the biennium. (See Laws 1935, ch. 5.) The session for 1937 provided $23,000 for this fund for each year. (See Laws 1937, ch. 6.) The same fund at the session for 1933 was $15,000 for each year. (See Laws 1933, ch. 5.) These appropriation acts are of interest to us here because they show that at the time this matter was pending in probate court the legislature increased the amount of money available to the attorney general for paying fees of this sort. We have nothing from which we can say the intention of the legislature was that the money should be used for that purpose, but the fact is more money was made available.
A situation somewhat analogous to this is covered by the holding of this court in Warner v. Warner, 83 Kan. 548, 112 Pac. 97, and the recent holding in Galloway v. Wesley, 146 Kan. 937, 73 P. 2d 1073. In the Warner case the guardian ad litem for a minor, who had represented the minor in a will contest, contended that his fee for representing the minor should have been charged as costs in the case and taxed against the plaintiff. This court held that guardians’ fees were not, properly speaking, costs and could not be taxed against the losing party. In the Galloway case this court examined G. S. 1935, 60-408, which was a part of chapter 228 of the Laws of 1911, enacted after the decision in the Warner case. That section dealt with the appointment of guardians ad litem and contained the following provision:
“Such guardian ad litem shall receive such reasonable compensation as the court or judge before whom the action is pending, or tried, may order, the same to be taxed and collected as costs in the action.”
On account of the above provision it was held that the fee of a lawyer who had been appointed guardian ad litem and had represented the minor in litigation could be charged as costs against the losing party. By analogy it appears that the above holding is authority for a conclusion that in the absence of specific, clear provision in the statute attorney fees cannot be charged and taxed as costs against a party or against an estate where there is an estate involved in the litigation. The provision in R. S. 22-1204 with which we are concerned provides that the probate court may make an allowance out of the estate to defray the reasonable expenses of the attorney general in making inquiries and examining witnesses touching the rights of claimants. There is a close analogy between the provision as to costs in the Warner case and the use of the words “reasonable expenses” in the above statute.
The claimant makes an ingenious argument that since the probate court allowed the items of the fees of the Irish solicitor and the Irish reporter there is no reasonable distinction between them and the three Kansas lawyers whose fees are involved here. The fact is, however, that the services of the two Irishmen were incidental merely in the process of the entire investigation, while the services of the Kansas lawyers cover the entire field of the litigation. Their account which appears in the abstract shows services performed in many parts of this country and one trip to Ireland. This record does not disclose it, but all parties admit that since the hearing on these claims in the district court the probate court has conducted hearings and found certain claimants to be heirs of Ellen Doyle. The claimants in this action prepared that matter for trial on behalf of the permanent school fund. Claimants point out the provisions of section 6 of chapter 168 of the Laws of 1935. This section is now G. S. 1935, 22-1212. It provides, in part, as follows:
“Expenses of the attorney general incident or necessary to his conduct of the case shall be paid from the funds provided for the expenses of the attorney general’s office. In no event shall attorneys’ fees be allowed or paid from the estate to anyone representing the state or the administrator. The state, by its county attorney or attorney general, may institute and maintain any action or proceeding deemed necessary or proper in the handling of such an estate in any appropriate court or tribunal, or defend any such action or proceeding brought by any other party.”
They argue from the fact that the above provision was enacted in 1935 that the legislature believed that prior to that enactment the probate court had authority to make an allowance out of the estate to pay the fees of assistant attorneys general representing the state. This does not follow, however, in this case. It will be seen that the provision deals first with the payment of the expenses of the attorney general and provides that these shall be paid from the contingent fund of the attorney general. That provision is clearly an amendment of the former statute. The provision as to no attorney fees being paid out of the estate was enacted for the purpose of clarifying the entire situation.
We have reached the conclusion that the probate court and the trial court were correct in holding that the probate court did not have authority to allow out of the estate the claim of the attorney general for fees of assistant attorneys general appointed by him to assist in the making of inquiries and examining witnesses touching the rights of claimants to the estate.
Counsel for some of those claiming to be heirs of Ellen Doyle appeared at the hearing before the probate court, again in district court and on appeal to this court. The claimant argues that these parties had no right to be represented at the hearing on this matter since they had not been adjudged heirs at the time the hearing in the lower court occurred. This point is not good. By the time the case reached this court the parties represented by these attorneys had been adjudged to be heirs. If this adjudication should be upheld then these people do have an interest in seeing this estate be not depleted by having the fees of assistant attorneys general paid out. (See Smith v. Smith, 107 Kan. 628, 193 Pac. 314.)
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover for damages alleged to have been sustained from consumption of canned sauerkraut juice, and from an adverse judgment the defendant appeals.
Omitting allegations not material to the appeal, plaintiff alleged that defendant, a wholesale grocery company, had sold' certain Libby’s sauerkraut juice put up in cans, to Mabel McCully, who conducted a retail grocery store in Wichita, Kan., representing that the juice was fit for use and immediate human consumption; that plaintiff bought five cans of the juice from the McCully store, and partook of the contents of one can; that the juice was not fit for human consumption or immediáte use and contained harmful ingredients; that plaintiff, as a result of using the juice, suffered illness and injuries for which she sought damages. The gist of the answer, aside from a general denial, was that defendant did not at any time engage in packing or canning kraut juice, nor did it pack the kraut juice alleged to have caused injury to plaintiff, and if it did sell the kraut juice to Mabel McCully, as alleged in the petition, it had no opportunity of inspecting or opening the can of kraut juice for inspection to ascertain the condition of the contents.
As far as now need be noticed, the proof showed that Mrs. Mc-Cully purchased the particular kraut juice from the defendant; that plaintiff’s husband went to the McCully store, where other brands were also sold, and purchased five cans of Libby’s kraut juice, which he took home. A few days later, his wife opened one can, the lid was corroded and had black spots around it, and she dumped the contents in the sink. She opened three more cans, and the lids being in the same condition, she poured the contents in a milk bottle and did not use them. She opened the fifth can, and it appearing all right, she poured out a teaglassful and, after drinking about half of it, noticed particles in it. She poured the remainder of the can in the glass and found the bottom of the can was in the same condition as the other cans. The family, consisting of herself, her husband and two children, all partook of the same meal that evening, although she alone drank any of the juice. The next morning her eyes began to swell and thereafter she was ill. There is no contention she was not seriously ill for some days and we need not detail any evidence with respect thereto. There was proof that the juice had particles or flakes in it, which some of the witnesses said were like tin or a metal of some kind. We will not detail the evidence showing that the cans were ultimately returned to the packer, and the evidence tending to show that the cans were not defective and that the juice therein was not unfit. The jury returned a verdict for plaintiff and answered special questions as follows:
“1. Did the defendant company manufacture the kraut juice involved? A. No.
“2. Was the illness of the plaintiff directly and proximately caused by the drinking of kraut juice in question? A. Yes.
“3. Was the kraut juice which was consumed by the plaintiff of wholesome quality? A. No.
“4. If you answer question 3 ‘No,’ then state whether said kraut juice contained :
(a) lead poisoning? A. No.
(b) tin poisoning? A. No.
(c) other metallic poisoning Iron? A. Yes.
“5. Was the illness of the plaintiff caused by
(a) food poisoning? A. Yes.
(b) an allergy? A. No.
“6. What amount, if anything, do you allow the plaintiff for—
(a) pain and suffering? A. $1,500.
(b) permanent injuries? A. $-.”
Defendant’s various post-trial motions were denied, and it appeals.
The appellant presents four questions for consideration. The first two presented together are: Does an implied warranty of fitness for human consumption exist between a wholesale grocer and the wife of a purchaser from a retail dealer in sales of canned goods in their original packages? And, does such implied warranty exist when the purchaser requests the dealer to supply him with the particular food of which complaint is made?
On the assumption that this appeal is the first of its type to reach this court, and therefore novel, appellant in its brief calls our attention to many authorities with reference to implied warranty of fitness for human consumption of food packed in cans and containers; to the liability of an intermediate dealer where the food is placed in cans by manufacturers and processors, and is no more open to inspection by the intermediate dealer or the immediate seller than it is to the purchaser consumer; to whether or not there is any privity of contract between the purchaser consumer and anyone other than the immediate seller. Among those cited are: Degouveia v. H. D. Lee Mercantile Co., (Mo. App.) 100 S. W. 2d 336; Julian v. Laubenberger, 38 N. Y. S. 1052; Flaccomio v. Eysink, 129 Md. 367, 100 Atl. 510; 4 Williston on Contracts, Revised ed. p. 2742; Aronowitz v. F. W. Woolworth Co., 236 N. Y. S. 133, 134 Misc. Rep. 272; Pennington v. Fuel Co., 117 W. Va. 680,186 S. E. 610; Bigelow v. Maine Central Railroad Co., 110 Me. 105, 85 Atl. 396, 43 L. R. A., n. s., 627. The authorities cited cover various phases of the problem as stated. It may be conceded that in each of the above authorities may be found statements tending to support appellant’s claim of nonliability.
In any discussion of liability in cases similar to that here presented, it should be borne in mind that some decisions are affected by application .of the uniform sales act or by other statutory provision, while others are treated from the standpoint of negligence, rather than warranty. In an annotation on “implied warranty by other than packer of fitness of food sold in sealed cans,” 5 A. L. R. 248 (pub. 1920), it is said:
“There is a square conflict of authority upon the question whether or not a dealer, in selling food in sealed cans, impliedly warrants that it is wholesome and fit for food, it having been held both that there is and that there is not such a warranty.
“The preponderance, at least, of modern authority, is to the effect that upon the sale of food to be immediately put to domestic uses there is, as between the dealer and the consumer, an implied warranty that such food is wholesome and fit to be eaten. . . .
“Applying this doctrine, it has been held that an exception to the general rule arises in the case of canned goods, the theory being that, when the reason for the rule falls, the rule itself falls. In other words, it cannot be presumed that, in the case of goods sold in sealed cans, the dealer who did not make or pack them has a greater knowledge of the wholesomeness of the contents than the purchaser. . . .
“However, as above stated, there also is authority to the effect that there is no distinction between a sale of provisions open to inspection, and provisions packed in cans or sealed packages.”
and decisions upholding both views are noted. See, also, the later annotation on the same subject in 90 A. L. R. 1269; also, 11 R. C. L. 1122; 26 C. J. 785; 55 C. J. 766. In an article in 34 Michigan Law Review, 494, entitled “Retail Responsibility and Judicial Law Making,” an analytical review is made by Prof. John Barker Waite of some decisions touching liability for sale of foods, which discloses the contrariety of reasoning and holding of the various courts.
Not many cases involving fitness of food for human consumption have been before this court. In Malone v. Jones, 91 Kan. 815, 139 Pac. 387, plaintiff, employed as a farm laborer, recovered for damages sustained by reason of being fed unwholesome meat. The judgment was upheld on the ground of negligence. On rehearing, this court adhered to its first ruling (id., 92 Kan. 708, 142 Pac. 274). In Parks v. Pie Co., 93 Kan. 334, 144 Pac. 202, plaintiff recovered a judgment for damages for the death of her husband, which was caused by ptomaine poisoning resulting from eating a pie manufactured by the defendant pie company and sold by it to a retail grocer, also a defendant, who in turn sold it to the deceased. After reviewing the evidence, it was said:
“The degree of care required of a manufacturer or dealer in human food for immediate consumption is much greater by reason of the fearful consequences which may result from what would be slight negligence in manufacturing or selling food for animals. In the latter a higher degree of care should be required than in manufacturing or selling ordinary articles of commerce. A manufacturer or dealer who puts human food upon the market for sale or for immediate consumption does so upon an implied representation that it is wholesome for human consumption. Practically, he must know it is fit or take the consequences if it proves destructive. (Tomlinson v. Armour & Co., 75 N. J. Law 748, 70 Atl. 314, 10 L. R. A., n.s., 923.)” (p. 337.)
and it was held:
“A dealer who sells human food for immediate consumption does so under an implied representation and guaranty that it is wholesome for the purpose for which it is sold.
“A manufacturer who prepares food for human consumption and places it in the hands of a dealer for sale is responsible in damages to the widow of a consumer who procures such food from the dealer and loses his life by partaking of such food.” (Syl. ¶¶ 1, 2.)
The next case was Challis v. Hartloff et al., 133 Kan. 221, 299 Pac. 586. The action was commenced on July 20, 1929. The petition alleged that on July 21, 1926, plaintiff purchased flour from a retail dealer, who purchased it from a broker who in turn had purchased it from a miller, all of them being defendants; that the flour contained a poisonous substance, and that plaintiff used the flour and suffered injuries. The appeal arose from overruling a demurrer on the ground that the cause of action was barred by the statute of limitations. Because of the manner in which the appeal arose, appellant in the case at bar argues that the question of implied warranty was assumed rather than adjudicated; that the question was not in that case and what was said with respect thereto was obiter dictum. It may be true that appellants in that case failed to fully present and argue the point. But it is just as apparent that it was a proper and necessary matter for consideration. If the action was for negligence, it was barred; if for breach of implied warranty, it was not; and so the court had before it whether either or all of the defendants were bound by implied warranty. The court made no extended discussion, but said:
“The implied warranty of each of the defendants was separate and distinct from that of the other defendants. It was a series of warranties by each seller to the immediate purchaser and such as would accumulate and assemble for the protection and benefit of the ultimate purchaser and consumer, but without any indication of unity of interest. The milling company could not know of the arrangement between the broker and the local merchant, nor of that between the local merchant and the plaintiff, nor did it know who these successive purchasers were. The fact that the implied warranty, as alleged, is the same as to each of the three defendants does not make them united in interest any more than if each had made and given a separate express warranty. They are each liable to the plaintiff on their warranties through the succession of sales and purchases, and can be sued together as was held in Malone v. Jones, 91 Kan. 815, 139 Pac. 387, and Parks v. Pie Co., 93 Kan. 334, 144 Pac. 202, but may or may not be united in interest.” (p. 222.)
Thereafter in that case in the trial court defendant filed an answer asserting defenses of the two-year statute of limitations, contributory negligence, estoppel, and negativing any possible carelessness on the part of each defendant. From an adverse ruling on his demurrer thereto, plaintiff appealed to this court, which reversed the trial court (136 Kan. 823, 18 P. 2d 199). In the course of the opinion it was said:
“The theory of the defendants is that although the petition is on its face an action for damages for breach of an implied warranty, yet the breach of a warranty is a wrong done by the defendants to the plaintiff from which he has suffered these damages, that the purchase, sale and handling of flour that is permitted to contain arsenic is necessarily an act of carelessness and. renders the action one in tort in spite of the studied efforts of the plaintiff to avoid it. The defendants earnestly contend it is a tort action and these defenses are proper and applicable, and further that it should be barred by the two-year statute of limitations.” (p. 825.)
and after discussion of other matters, further said:
“In Ryan v. Progressive Grocery Stores, 255 N. Y. 388, 74 A. L. R. 339, an action for breach of implied warranty by a purchaser against a dealer who sold him a loaf of bread for immediate consumption as food, which contained a pin, it was held in an opinion recently written by Judge Cardozo that an implied warranty of the merchantable quality of bread sold is breached by the presence of a pin therein, that dealers as well as manufacturers affirm, as to anything they sell, if purchased by description, that it is of merchantable quality. The burden may be heavy. It is one of the hazards of the business. Concerning the amount recoverable it was claimed there, as here, that it was limited to the difference between a good loaf and a bad one, and the court said, ‘The rule is not so stubborn . . . The measure is more liberal where special circumstances are present with proof of special damages.’ (p. 295.) There the dealer had notice from the nature of the transaction that the bread was to be eaten. Knowledge that it was to be eaten was knowledge that the damage would be greater than the price.
“These views were approved and followed by the supreme court of Connecticut in the case of Burkhardt v. Armour & Co., 115 Conn. 249, in an opinion handed down last July.” (p. 826.)
In the more recent case of Stanfield v. F. W. Woolworth Co., 143 Kan. 117, 53 P. 2d 878, plaintiff had gone to defendant’s store and ordered a sandwich and a glass of Coca-Cola, which were immediately consumed. Shortly after she became violently ill. She recovered in an action for damages. In an exhaustive opinion involving other matters than those now before us, but in which many authorities are examined and classified, it was held:
“Plaintiff went into defendant’s restaurant and ordered and paid for a ham-salad sandwich, which defendant delivered to her. Held, the transaction was a sale.
“One who, for compensation, sells or provides food for immediate consumption to another impliedly warrants the food to be wholesome. This is true whether the transaction is in all of its aspects properly classified as a sale.
‘iOne to whom, for a compensation, food is sold or provided for immediate consumption, and who suffers food poisoning as a result of consuming the food, may maintain an action upon the implied warranty of its wholesomeness without alleging or proving negligence in the selection or preparation of the food by the one who sold or provided it.” (Syl. fíU 1, 2, 3.)
Under these decisions it must be held that in any case where a dealer sells articles of food for immediate human consumption, the purchaser may rely upon an implied warranty that such articles are wholesome and not deleterious, and in the event he sustains injuries from their use, he may waive any tort there may have been and maintain his cause of action upon such implied warranty. We are of the opinion, too, that such warranty is not limited to the immediate seller. While some authorities may be found holding that as between the manufacturer or packer and the ultimate consumer there is no privity of contract, and therefore the injured consumer may not maintain an action, the weight of authority is to the contrary. Assuming that such an action may be maintained, it seems illogical to hold that the injured consumer might maintain an action against the immediate seller or the manufacturer or packer, but not against the intermediate purchasers and sellers of the articles of food. To so hold would mean that if the immediate seller were financially irresponsible, and the packer, for instance, were located in a foreign country, the injured consumer would, from a practical standpoint, be without remedy. And it might be that by the time the articles were finally sold to a consumer, any right of action he might have against the manufacturer or packer would be barred by the statute of limitations. We think the rule of intermediate liability stated in -the Challis case, supra, is that which should be followed.
On the question that a different rule should be applied as to goods in cans and containers than as to bulk goods, it must be recognized that today practically every article of food except green groceries is packaged in some manner. If putting food in packages is to relieve all intermediate handlers and the immediate seller, then the injured consumer is relegated to his action against the manufacturer or packer. While it is true the purchaser has the same opportunity to inspect, prior to opening the package or container, as his immediate seller or the' intermediate handler, he buys, at least in part, relying upon the fact the contents are supposedly wholesome and fit for immediate human consumption. It is also well known that many articles of food are sold by brand or name as the result of extensive advertising, in which purity, wholesomeness, price, etc., are stressed in varying degrees, and that insofar as manufacturers, packers and jobbers are concerned the purpose is to challenge attention to the brand or name and to create a demand therefor. Insofar as the local dealer is concerned, he stocks and sells these advertised goods because of that demand. Although in the case at bar an argument is made that the purchaser, by calling for a particular brand, waived his right to rely on implied warranty, we think it should not be so held. We think that a merchant, in displaying articles of food for sale, impliedly warrants that each and all of the articles are fit, whether of well known or little known brands, or whether packaged or not, and that the fact the purchaser chooses one or the other should not relieve the dealer. And if the dealer is liable, under the circumstances instant in this case, so are the intermediate handlers.
Appellant further contends that appellee failed to establish breach of the implied warranty of fitness for human consumption. It is very properly contended that the burden of proving a breach of the implied warranty was on the plaintiff, and that that burden was not sustained simply by showing she drank the kraut juice and subsequently became ill. Although plaintiff produced proof that the kraut juice not only from the can from which she drank, but from the other cans which she saved, was dark and turbid, and had therein some flaky matter which was precipitated when allowed to stand, there was no proof that any chemical or other analysis was made further than that of her husband and doctor, each of whom stated he rubbed the precipitate between his fingers and it felt metallic. It is insisted there is no proof plaintiff drank any of these metallic particles. Plaintiff testified she drank of the juice and noticed the flakes in it and drank no more. We think it a fair inference she may have taken some of the flakes into her body. During the cross-examination of plaintiff and her physician, an effort was made to show that plaintiff was allergic to sauerkraut juice and that her physical difficulties following her drinking from that particular can were not attributable to any unwholesome quality of the kraut juice. An effort was also made to have plaintiff’s physician say definitely that plaintiff was suffering from metallic poisoning rather than food poisoning. The testimony showed that on the evening the kraut juice was used, plaintiff, her husband and her two children, all partook of the same food with the exception that none except the plaintiff drank any of the kraut juice. The plaintiff, who was the only one to drink the juice, was likewise the only one to become ill. There was also testimony that she had used kraut juice for some years before the particular illness, and on occasions thereafter, always without bad result. Possibly the physician’s statements are contradictory in part as to just what caused plaintiff’s illness, but as against a demurrer she was entitled to every favorable statement and inference therefrom, and was not prejudiced by any unfavorable statement or inference. The doctor on cross-examination testified:
“Q. What kind of poisoning would you say Mrs. Swengel was suffering from? A. As nearly as I can determine it was from drinking kraut juice. Just exactly what caused it I cannot tell you.
“Q. And would you call it metallic poisoning? A. I would call it more of a food poisoning.”
At a later time he testified as follows:
“Q. To come right down to it, what reason do you assign for the conclusion that you have reached here that Mrs. Swengel was suffering from a metallic poisoning, in view of the symptoms which she had? A. I don’t say that it was strictly metallic poisoning; it was probably a food poisoning.
“Q. By food poisoning what do you mean? A. I mean a condition of the intestinal tract; an irritation of the intestinal tract that has been irritated by impure food.”
And still later he stated:
“I made up my mind that this was food poisoning on the first or second call at the Swengel home.”
He consistently stated that plaintiff’s condition was not allergic and was not caused by drinking juice or eating food that produced an allergic condition. In view of the evidence already mentioned and the further proof that the juice had a terrible odor which plaintiff did not immediately detect, and the condition of the cans, we think the plaintiff did more than merely show she drank the kraut juice and subsequently became ill. She made a showing sufficient that the trial court properly overruled the demurrer of her evidence.
And finally, it is insisted the trial court erred in not sustaining certain post-trial motions. The principal complaint is that the answer to special question 4 (c) is not sustained by the evidence. It will be noticed that as framed the answers called for referred to metallic poisonings. There is evidence that the cans when opened contained spots where the metal had come off. Defendant’s own medical witness testified, as abstracted:
“Cans are composed of sheet iron with a thin covering of tin. Iron produces iron oxide. It is not poison in certain quantities. It is possible that if the kraut juice ate through the tin of a can and through the iron and produced an iron oxide, that it might be poison. If the tin was broken on the inside it might eat through into the sheet iron a little bit.”
We cannot say the answer is not supported by the evidence. Neither can it be said the answers are either inconsistent with themselves or with the general verdict. While the fourth question referred to metallic poisoning, the fifth made no such reference. We must interpret the answer to the fifth question in the light of the other questions and answers. As has been shown heretofore, an effort was made to show that plaintiff was suffering from an allergy rather than from food poisoning and the question seems to have been asked with that in view. But, if not, we have some difficulty in saying that a person partaking of food containing iron oxide in poisonous quantities does not suffer from food poisoning. Had the jury answered question 5 (a) “No,” the obvious argument would have been that the kraut juice, even though containing iron, did not cause plaintiff’s illness. We think the trial court properly ruled on the post-trial motions, including the motion for a new trial.
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The opinion of the court was delivered by
HaRvey, J.:
In this case defendant appealed from an order of the court overruling its demurrer to plaintiff’s petition, in which, briefly stated, it was alleged:
That on January 25,1933, one Marie Yestring was duly appointed by the probate court of Marion county as administratrix of the estate of Frank Weik; that she gave bond, conditioned as provided by statute (G. S. 1935, 22-313), in the sum of $13,000, with plaintiff as surety; that there came into her hands as such administratrix a sum in excess of $10,000, which she deposited in a bank at Wichita in her name as administratrix; that on June 14, 1933, she drew a check on this account, signed by her as administratrix, for $1,555.20, payable to the order of defendant’s treasurer, and delivered the check to its livestock agent, a person authorized to act in that behalf; that defendant presented the check to the bank and received the money thereon; that the drawing of the check and payment thereof was a misappropriation, embezzlement, conversion and abstraction of the funds of the estate of Frank Weik not authorized by the probate court and not authorized or permitted by law; that the check was not given, nor the payment thereof made, for any debt, claim, demand, or liability of the estate or the administratrix thereof. On information and belief it was alleged that a partnership composed of Henry Vestring and Louis Vestring, doing business under the name of Vestring Brothers, was engaged in the cattle business, and that the check was given in payment of a freight bill for the shipment of livestock owed by the partnership to defendant. It was alleged that defendant knew, or should have known from the nature of the transaction and the signature on the check, that the giving of the check and the payment thereof was a wrongful appropriation of the funds of the estate, and that the money so received by defendant was not that of its debtor. It w"as further alleged that on May 3, 1934, by orders of the probate court of Marion county, Marie Vestring was removed as administratrix of the estate of Frank Weik (G. S. 1935, 22-323), and John E. Wheeler was appointed administrator de bonis non of that estate; that the condition of the bond upon which plaintiff was surety, having been broken by the action of Marie Vestring, administratrix, the administrator de bonis non made demand upon this plaintiff for payment to him, on behalf of the estate, of all the funds so wrongfully applied, including the sum represented by the check above mentioned; that about May 9,1935, plaintiff paid to such administrator de bonis non the sum of $10,000, which amount represented the wrongful appropriation of Marie Vestring, administratrix, and included the entire amount of the check to defendant, above mentioned ; that thereupon plaintiff became subrogated to the rights of the administrator de bonis non and to all claims, demands, or choses in action arising by reason of the facts stated; that on or about May 9, 1935, the administrator de bonis non, with the permission and ratification of the probate court of Marion county, made, executed and delivered to plaintiff an assignment in writing wherein and whereby he assigned, transferred and set over to this plaintiff all the right, title and interest in the estate of Frank Weik, deceased, and the administrator thereof, in and to all claims, demands, or causes of action arising out of the matters above stated, and that by virtue of the subrogation, and by virtue of the assignment above mentioned, plaintiff is the owner of the cause of action herein asserted against defendant. The prayer was for judgment for plaintiff in the sum of $1,555.20 with interest at six percent since May 9, 1935, and for costs.
Appellant argues that the giving of the check to it by Marie Vestring, administratrix, did not constitute notice to defendant of her wrongdoing. The point is not well taken. The check on its face indicated the money was to be paid out of an estate; the estate was not indebted to appellant. In Bank v. Myers, 65 Kan. 122, 69 Pac. 164, it was held:
“One who through the design or misdirection of another receives money which he knows belongs to a third person, cannot retain it for application on his own debt, due from the one who gave it to him.”
Here the situation is still further removed. Appellant did not apply the check on a debt to it of Marie Vestring; she owed it nothing. The application was made upon the debt of Vestring Brothers to appellant.
In 65 C. J. 992 the rule is thus stated:
“A transferee of trust property is chargeable with constructive notice of the trust where instruments or papers, so connected with the transaction that he is bound to take notice of them, show or indicate upon their face that the property is of a trust character. Thus a transferee is put upon constructive notice where an instrument or paper forming part of the chain of title, ... or other instrument by which the trustee purports to make the transfer, shows upon its face that the property is trust property.”
To the same effect is the American Law Institute, Restatement, Trusts, section 297, and the notes and comments upon the section.
The check by which appellant was paid showed upon its face that the fund out of which it was payable was the property of an estate being administered in a probate court. Appellant cannot be heard to say otherwise. It, of necessity, knew it was receiving funds of an estate which owed it nothing. Other authorities to the same effect are: Loan Co. v. Essex, 66 Kan. 100, 106, 107, 71 Pac. 268; Guernsey v. Davis, 67 Kan. 378, 73 Pac. 101; Hier v. Miller, 68 Kan. 258, 75 Pac. 77; Washbon v. Hixon, 86 Kan. 406, 121 Pac. 518; 87 Kan. 310, 124 Pac. 366; Bank v. Betts’ Estate, 103 Kan. 807, 176 Pac. 660.
See, also, New Georgia Nat. Bank v. Lippmann, 249 N. Y. 307, 164 N. E. 108.
It is argued on behalf of appellant that it had to collect its freight when payment was tendered, otherwise it would have violated federal statutes and regulations prohibiting preferences to shippers. This contention is beside the mark. It had a lien on the shipment for freight; it was under no compulsion to accept money of an estate which owed it nothing.
Appellant argues plaintiff cannot maintain this action upon the subrogation clause in its contract of surety. We see no reason to so hold, but the question .is not material, since plaintiff also predicates its action on an assignment, the validity of which is not assailed.
. It is next argued the equities of appellant are greater than those of appellee. This contention does not seem forceful. Each of the parties is a financial institution operated for profit. We see no reason why each is not' entitled to its rights under the law.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
HutohisoN, J.:
This was a workmen’s compensation case in which the parents of the deceased son are the claimants as dependents, and the employer, for whom the son was working when he was killed by accident, and the insurance carrier are the respondents. A claim for compensation was duly filed with the commissioner of workmen’s compensation, and after a hearing before the commissioner an award was made of $1,367.42 based on a finding of partial dependency. From this award and finding both parties appealed to the district court of Sumner county, where the finding and award was affirmed, from which decision the claimants have appealed to this court.
Three questions of law are involved: (1) Were the claimants actual dependents of the deceased; (2) if they were dependents, were they partial or total dependents; and (3) what was the proper basis upon which the compensation should have been computed? A stipulation covered the usual and vital parts to make it a compensation case, if the parents are dependents. The funeral and kindred expenses were assumed by the defendants.
Robert Edward Baker, the deceased, was a bachelor, 26 years of age at the time of his death, and was at that time in the employ of the respondent, the Western Light and Power Corporation, at Wellington, where he met his death by accident on August 27, 1935. His first earnings were with his parents when living on a ranch near Arlington. He and the family moved from the ranch to Arlington on March 8, 1934, and remained there until July 4, 1934. While there he earned $88, which was used for the support of his father’s family, including himself.
He and the family moved to Hutchinson on July 4, 1934, and on July 20,1934, he commenced to work for the respondent at Hutchinson and continued to work there in the employ of the respondent until January 1, 1935. A statement of the wages earned by him during that time makes a total of $332.53. He lived with his father’s family while at Hutchinson, and substantially all his earnings while there were used in the support of the family. On January 14,1935, he commenced work for'the respondent at Wellington at the stipulated wage of fifty cents per hour in a class of employment that usually worked forty hours per week. A statement of the company was introduced in evidence showing the semimonthly payments made to him from January 14, 1935, to the date of his death, August 27, 1935, in the total sum of $677.50. This was a higher rate of wages during this last portion of his work for the respondent at Wellington and quite a little higher than that paid him while he was working at Hutchinson, but the commission and the court found the earnings of the deceased for the last year to be $1,040, and for the year preceding $25 per month for six months, or $150, which he had earned on the ranch, together with room and board, estimated by the witnesses to be $3.50 per week, or $91, making a total at the ranch of $241. To this the commissioner added the $88 the deceased earned at Arlington, making a total of $329 for the first year’s earnings, which added to $1,040, the possible earnings for the last year at fifty cents per hour and forty hours per week, made a total of $1,369, earnings for the two years, or an average annual earning of $684.50.
As to the proper basis upon which compensation for dependents should be computed, if any is allowed, it is urged by the claimants that the plan used was different from that prescribed by statute and that six days per week should have been counted instead of five, thus making $24 per week earning, instead of $20 as allowed by the commissioner and approved by the court, or $1,248 per year and for three years would have been $3,744 instead of $3,120. This goes back to something that involves quite largely a question of fact which this court cannot consider. As stated above in connection with exhibit A, which showed the earnings of the deceased from January 14, 1935, to August 27, 1935, there was a statement that the rate of compensation was fifty cents per hour and that men in similar classes of employment usually worked forty hours per week. This in itself, by actual calculation, showed a little more than forty hours per week. As modifying this statement of forty hours per week there was introduced exhibit B, which was a calendar kept by the deceased, and upon which was shown the days that he worked during this last period of seven and a half months and the hours which he worked each day. Most of the days showed eight hours per day, but some as low as four. It also showed from five to eleven days each month on which he did not work at all.
Now the claimants contend that the commissioner erred by basing the rate on forty hours per week, or five days a week instead of six, as they contend the statute under the circumstances requires. The following is the portion of the statute which is involved in this particular matter, being a part of G. S. 1935, 44-511:
“. . . Where the rate of wages is fixed by the hour the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of work involved. In any case the weekly wage shall be found by multiplying the daily wage by five or if the employee worked a greater proportion of the week regularly, then by five and one half, six, six and one half, or seven, according to the customary number of working days constituting an ordinary week in the character of work involved. Five days shall constitute a minimum week.”
Claimants refer not only to the statute but to a number of decisions, among which are Cramer v. Railways Co., 112 Kan. 298, 211 Pac. 118; McKinstry v. Coal Co., 116 Kan. 192, 225 Pac. 743; Burgin v. Western Coal & M. Co., 135 Kan. 330, 10 P. 2d 908; and Miles v. Wyatt, 138 Kan. 863, 28 P. 2d 748, all of which, however, were constructions and interpretations of the former statute prior to the one now in force, which was enacted at the special session of 1933 and is chapter 74 of the laws of that special session. The old law did not contain in general or in similar terms the portion of the statute, above quoted, as to the calculation of daily and weekly wages paid to the workman, so although both exhibits A and B may show something more than forty hours per week that the deceased had worked during the last seven and a half months, there is nothing to show “the customary number of working hours constituting an ordinary day in the character of work involved” was more than that stated in exhibit A, or forty hours per week for the class of workmen of which the deceased was one. For instance, one of the cases cited held where a mine was closed part of the time without the fault of the workman, while he received no wages for such time, that part was not deducted from the whole general time in computing the compensation in case of his injury or death.
We are not able to say solely as a matter of law that this computation should have been based on six days a week instead of five days or forty hours per week. It also appears as if it might partially have depended upon the difference in testimony which this court cannot consider in this character of a case. The showing, at most, was concerning the work done by the deceased as being more than five days or forty hours per week, but the statute bases the computation upon the customary number of working hours constituting an ordinary day in the character of the work involved. No showing along the line of customary number of hours constituting an ordinary day or week appears in the record except the reference to forty hours per week as contained in exhibit A as being the usual number per week in similar class of employment. The commission applied the provisions of G. S. 1935, 44-510 (2), to ascertain the amount to be paid dependents, the essential portion of which is as follows:
. “ (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, computed as provided in section eleven (11) of this act . . . (b) If a workman does not leave any such dependents, but leaves dependents in part dependent on his earnings, such percentage of the sum provided in paragraph 2 (a) of this section as the average annual contributions which the deceased made to the support of such dependents during the two years preceding the injury bears to his average annual earnings during such two years.”
By this method the amount for partial dependents was found by the commission to be $1,367.42.' We approve the method followed.
As to the question of dependency, the claimants insist they are total dependents instead of partial as found by the commissioner and approved by the district court. As stated above, the deceased lived with his parents until he went to Wellington about seven and ■one half months before his death, during which time all of his earnings went to the support of the family, but after going to Wellington he on frequent visits purchased supplies for the family and paid some bills and furnished some clothing and shoes, averaging $25 or more per month.
The record shows that the father of the deceased was 56 years of age and the mother 45 years old when this claim was made for compensation, that a daughter 20 years old and a son 15 years of age lived with the parents. The father had been out of regular work since he left the ranch, and one or two attempts failed in remuneration until he applied to the PWA for work, and he has been working for the PWA since November, 1934, at $3.20 per day part time and has been earning about $23 or $24 per month. Claimants insist that they are totally dependent, while the respondents claim that they are not dependents at all or at most only partial dependents. It is argued by the claimants that as this PWA employment is federal money advanced to the county for different work projects, and although it was put in the shape of a wage, it was nothing more or less than governmentally supervised charity, absolutely temporary, liable to be discontinued at any time, and therefore it was nothing more than direct relief.
Claimants cite the case of McCormick et al. v. Coal & Coke Co., 117 Kan. 686, 232 Pac. 1071, which contains the following as to different kinds of dependencies:
“Wholly dependent, means full, complete dependence, that the individual has no consequential source or means of maintenance other than the earnings of the workman. Partial dependence may vary in degree from wholly dependent on the one hand to wholly independent on the other; and may apply to any individual ‘member of the family’ of the workman, who has some substantial source of maintenance other than the wages of the'workman.” (p. 690.)
The case just cited refers to G. S. 1935, 44-508 (j), where the words “dependents” and “family” are defined as follows:
“ ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the .workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means only legal widow or husband, as the case may be, and children; or if no widow, husband, or children, then parents or grandparents.”
Claimants also cite 71 C. J. 531 as follows:
“It is generally held that one is not totally dependent where a substantial part of the support comes from another source; but courts will not deprive applicants of the rights accorded total dependents merely because of minor considerations or benefits which do not substantially affect or modify the status of the applicants toward the deceased employee.”
Claimants quote from 1 Honnold on Workmen’s Compensation, section 72, as follows:
“Persons are not precluded from being totally dependent by the fact that temporary gratuitous services have been rendered for or occasional money sent to them by persons other than the workman, that they hold small savings accounts. . . .”
Claimants also cite the following decisions on this subject from other states: McKesson-Fuller-Morrison Co. v. Industrial Commission, 212 Wis. 507, 250 N. W. 396; Murphy v. Genesee County Road Com., 250 Mich. 457, 230 N. W. 937; McLaughlin v. Road Commission, 266 Mich. 73, 253 N. W. 221; Peterson v. Industrial Acc. Com., 188 Cal. 15, 204 Pac. 390; Blue Diamond Coal Co. v. Frazier, 229 Ky. 450, 17 S. W. 2d 406; and London G. & A. Co. Ltd. v. Indus. Acc. Com., 203 Cal. 12, 263 Pac. 196. They take a liberal view as to dependency. A woman with a bond producing an income of $62.50 per year was held to be totally dependent. A woman owning an unproductive farm of fifty acres, also a cow and fifty chickens, was held to be totally dependent. Another was where the son lived with his mother and younger brother and they had been getting help in the form of clothing, fuel and food from the county and Red Cross when he was out of work, and the mother was held to be totally dependent. Another case was declared to be one of total dependence where a bachelor son lived away from the home of his mother but sent her $40 or $50 a month and she in the summer earned $10 or $15 a month. Another held where one had some slight savings or was able to make something by his own labor that he might be wholly dependent. Another held that dependency does not mean absolute dependency for necessities of life but it is sufficient that contributions of employee are looked to for support and maintenance of dependent’s accustomed mode of living.
The case of Michael v. Jacob Dold Packing Co., 120 Kan. 684, 244 Pac. 1050, was where parents of a deceased son who lived with the family when he was accidentally killed were the claimants, and it was said in the opinion:
“We think within the meaning of the language quoted a person is to be regarded as wholly dependent upon a workman when his support is derived wholly from the workman’s wages, and is partly dependent upon him when his support is derived in part from that source and in part from some other. The circumstance that all the workman’s wages, together with .money they obtain elsewhere, are used for his parent’s support does not in our judgment create a condition of total dependency on their part.” (p. 686.)
In the case of Burgin v. Western Coal & M. Co., 132 Kan. 663, 296 Pac. 373, a judgment of total dependence was reversed, and it was held as a matter of law that the evidence did not show the mother was a total dependent of a workman, a son, who contributed to her support $25 or $30 a month when he was employed, while another son was earning $100 per month and contributed practically nothing. In that case the mother stayed a short time with each of two daughters and earned something by her own work until the death of her son.
We think there was sufficient evidence to sustain the finding of the trial court and to be in harmony with the former rulings of this court as to the dependency as a matter of law, that the claimants in this case earned a substantial part of their living, even if it was earned under a federal relief measure, and they were therefore not totally dependent upon the earnings of the deceased son.
The respondent insists that because the deceased was not an actual member of the family of his parents at the time of his death that they do not come within the definition of a family. The case of Tisdale v. Wilson & Co., 141 Kan. 885, 43 P. 2d 1064, treats of this matter where a wife had deserted and abandoned her husband a short time before the accident, and it was held not to be sufficient to exclude her from partial dependence.
As to the attempted cross-appeal by the respondent, the question was fully settled in the holding in the case of Davis v. Phillips Petroleum Co., 137 Kan. 30, 19 P. 2d 733, where the question as to the time of taking the appeal was the same. It was there held:
“The supreme court does not have jurisdiction of a cross appeal in a workmen’s compensation case where such appeal is not taken and perfected within twenty days after the rendition of judgment by the trial court on the compensation award.” (Syl. IT 2.)
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in mandamus. A motion to quash the writ was filed and the cause was set down for argument and has been submitted on the question of whether or not a peremptory writ should issue. The question in the case is the tax situs of intangible assets owned by certain corporations operating in McPherson county.
The action is brought in the name of the state by the county attorney of McPherson county. The county clerk of McPherson county and the county clerk of Saline county and the county assessor of Sedgwick county, the three corporations involved and the state tax commission are defendants.
After the necessary formal allegations as to the official status of the various officers and the organization of the corporate defendants the application for a writ states first that the Globe Oil and Refining Company is operating a manufactory for the purpose of refining crude petroleum in McPherson county, Kansas; that all the moneys, credits and intangibles of the company arise out of its business of refining crude petroleum at its plant in McPherson county; that the general office of the company is located at Wichita, in Sedgwick county, Kansas; that in June, 1936, the company filed its "personal property statement of merchants and manufacturers” for 1937 with the county clerk of McPherson county; that amongst other items in this statement was one item showing moneys and credits to be assessed in accordance with G. S. 1935, 79-3108, in the amount of $414,424.03.
The application for a writ then sets out correspondence between the company and certain defendants wherein it appears that the company desired to list those moneys and credits in McPherson county and the officials of McPherson county wanted them listed there but the tax commission contended that they should be listed in Sedgwick county; that following this correspondence the county as sessor of Sedgwick county listed this item for taxation in Sedgwick county and the county clerk of McPherson county listed it in McPherson county; that the company appealed to the board of county commissioners of McPherson county, sitting as a board of equalization ; that the board did not grant any relief; that the company appealed to the state tax commission; that this commission held the tax situs of the item in question to be in Sedgwick county; that the plaintiff had demanded of the county clerk of McPherson county that he put this item on the tax rolls of McPherson county, but by reason of the order of the state tax commission just referred to this county clerk had refused to comply with this demand.
The second cause of action stated that the Dickey Refining Company was operating a refinery in McPherson county and maintained its general office at Wichita; that all the moneys and credits owned by this company arose out of its refinery business at McPherson; that the county clerk of McPherson county assessed moneys and credits of this company in the amount of $47,770 in McPherson county; that the county assessor of Sedgwick county placed this item on the rolls of Sedgwick county; that the company appealed to the board of county commissioners of McPherson county, sitting as a board of equalization; that this board denied any relief; that thereafter this company appealed the matter to the state tax commission; that this commission held the situs of the item in question for taxation to be Sedgwick county; that the plaintiff had made demand on the county clerk of McPherson county to place this item on the tax rolls of McPherson county, but that official refused to comply with the demand.
The third cause of action stated that the McPherson Gas Company operated a gas distribution system at McPherson, Kan.; that it was owned solely by the Kansas Power and Light Company; that it returned intangibles in the amount of $20,000; that the McPherson Gas Company became a part of the Kansas Power and Light Company and conducted its business under that name.
The application then set out some correspondence between the company and various officers, whereby it appears that the county clerk of McPherson county contended that the moneys and credits of the Kansas Power and Light Company arising from its distribution system in McPherson should ,be put on the tax rolls of McPherson county, and that the tax commission held that this item should be taxed in Saline county, where a division office of the company was located; that the board of county commissioners of McPherson county appealed the matter to the state tax commission which upheld the action of the board of county commissioners; that plaintiff had demanded that the county clerk of McPherson county put the item on the tax rolls of McPherson, but on account of the matters just recited he had refused to do so.
The prayer was for a writ of mandamus against the county clerk of McPherson county and the state tax commission ordering them to put the items referred to on the tax rolls of McPherson county and ordering the county assessor of Sedgwick county and the county clerk of Saline county to strike the items from the tax rolls of their respective counties, and for interlocutory orders necessary to preserve the status.
An alternative writ was issued. The defendants filed a motion to quash this writ. This brings up the question of whether the application alleged facts sufficient to entitle plaintiff to the relief prayed for or any other question that could be raised by a general demurrer in an ordinary action.
It will be seen that the question is whether the intangibles of a company should be taxed in the county where the plant of the company is located or in the county where its home office is located. The county attorney of one of the interested counties has brought this action in the name of the state to get the question settled. He has made his own county clerk a party and also every other official and every company which has an interest in the question.
The first argument of defendants is that the county attorney of McPherson county has no authority to bring this action in the name of the state. Defendants rely on G. S. 1935, 75-702. That section provides, in part, as follows:
“The attorney general shall appear for the state and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party. . . .”
Defendants argue that under the provisions of this statute the attorney general is the only officer vested with the power to bring an action in which the state as a whole is interested. Martin, Governor, v. The State, ex rel., 39 Kan. 576, 18 Pac. 472, is cited by defendants on this point. That was an action brought by the county attorney of Stevens county against the governor, involving the organization of Grant county. This court held that the county attorney of Stevens county had no right to institute the proceedings in the name of the state in the district court of Shawnee county without the consent and against the objection of the attorney general. It should be noted that this action is not being prosecuted against the wishes of the attorney general. While the state tax commission is a party defendant, it appears that the commission has no interest in the outcome of the action other than to see that the rule finally followed by county clerks in matters of this kind should be uniform throughout the state. On the other hand, McPherson county does have a peculiar interest in the outcome of this action, since if these intangibles should be taxed in McPherson county rather than the other two counties the tax rate on tangible property in McPherson county will be appreciably lowered. The other county officials are made parties, but they are not necessary parties. It appears they were joined as defendants so that the proper interlocutory orders might be made. The question of whether it was the duty of the county clerk of McPherson county to put these intangibles on the tax rolls might have been settled by an action against the official. (See State v. Railway Co., 81 Kan. 430, 105 Pac. 704.) It is better, however, for this court to have the benefit of the ideas of counsel for all parties. The important thing is that the disputed point in the operation of our intangible tax act should be settled rather than the form of the action. On this point we hold that what was said in State, ex rel., v. Bradbury, 123 Kan. 495, points out as the correct procedure that which was followed here. (See, also, State, ex rel., v. Labette County, 114 Kan. 726, 220 Pac. 275.)
For many years the operative interpretation of the various statutes conferring powers and imposing duties upon the county attorney has been to the effect that ordinarily whenever quo warranto or mandamus has been properly invocable at the instance of the state on the relation of the county attorney, this court has entertained such an action as readily when brought by the county attorney, on his compliance with G. S. 1935, 60-3826, rule 3, as if our original jurisdiction in a similar action had been invoked by a private litigant and his private lawyer. (See State, ex rel., v. Wyandotte County Comm’rs, 140 Kan. 744, 746, 747, 39 P. 2d 286.)
Defendants next argue that the state has no such interest in this action as will entitle it to maintain this action. What has just been said on the question considered above answers this argument.
Defendants next argue that it is improper to join so many causes of action. State, ex rel., v. Comm’rs of Reno Co., 38 Kan. 317, 16 Pac. 337, is cited and relied upon. That was an action that involved elections in the various townships of Reno county. This, court held that each township was entitled to have its right to an election considered on its own merits.. The case is not in point here because, as has been said, the legal question involved here could have been settled by a suit against the county clerk of McPherson county. This court has broadened the use to which the ancient writ of mandamus may be put, to the end that there may be a speedy adjudication of legal questions and an orderly administration of the public’s business. (See Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563; also, State, ex rel., v. State Highway Comm., 132 Kan. 327, 295 Pac. 987.)
Defendants next argue that the alternative writ fails to show on its face that the plaintiff is entitled to any relief as directed. The point made is that only a copy of the alternative writ was served. The statute does provide the original writ should have been served rather than a copy, as is the case with a summons. As we have said, however, the important matter is the settlement of the law question. We will not permit a matter of whether the original or a copy of a writ was served to prevent us from settling it. Every once in a while we set an application for a writ down for hearing without issuing any alternative writ at all — just hear the parties on the application for a writ.
Defendants next argue that the alternative writ shows upon its face that the plaintiff is not entitled to a peremptory writ. This argument is based upon the fact that the home office of one of the two companies is shown to be in Wichita and of the other in Salina. They point out that G. S. 1935, 79-304, provides as follows:
. . all personal property shall be listed and taxed each year in the township, school district or city in which the property was located on the first day of March, but all moneys and credits not pertaining to a business located shall be listed in the township or city in which the owner resided on the first day of March. The property of banks ... or other companies . . . shall be listed and taxed in the county, township, city and school district where their business is usually done.”
Defendants argue that the general offices of these companies are their places of residence, and hence, under this statute, these intangibles should have been listed at the places of residence of these companies, that is, Wichita and Salina, respectively.
This argument is given considerable weight by the intangible tax act itself. This act provided a comprehensive plan for the listing of intangibles. G. S. 1935, 79-3112, provides as to who shall list intangibles. Among other provisions is the following:
"Provided, however, That money, notes and other evidence of debt collected or received by any agent or representative of any person, company, or corporation, which is to be transmitted immediately to such person, company or corporation, shall not be listed, but such agent or representative shall, upon request, state under oath the amount of such money or credits then in his hand and to whom the same is to be transmitted.”
The legislature has the authority to fix the place where property shall be taxed. (See Freedom Township v. Douglas, 99 Kan. 176, 160 Pac. 1147.) The above provision of the statute was intended to cover a situation such as the one we are considering. The employees who collect the funds for the company at McPherson are the agents of the company. The residence of the company is the county where the home office is located. These intangibles are collected at the plants in McPherson. If they are sent immediately to the home office of the companies then the items should be listed by the proper officers of the companies at the home offices, as provided in G. S. 1935, 79-3111. Our inquiry then is whether the item of intangibles with which we are dealing was to be sent immediately to the home office in each case.
In considering this question we will assume that funds transmitted to the home office within a reasonable time in the regular course of business are sent immediately in accordance with the requirement of the statute.
After this case was submitted this court suggested that the parties agree as to the. manner in which the business of the companies is carried on. This has been done and statement of facts filed. As to the Globe Oil and Refining Company, the parties have agreed that money is collected at the refinery for the products sold, and deposited in local banks; that the Wichita office of the company draws upon the banks for this money from time to time; that the company keeps $1,000 on deposit in each of the McPherson banks at all times. Such a plan, we have concluded, is the sort of a transaction contemplated by the above section. It follows that the $1,000 kept in each of the McPherson banks should be placed on the tax rolls of McPherson county while the balance of the intangibles reported should be placed on the tax rolls of Sedgwick county. The same situation exists as to the handling of the business of the Dickey Refining Company, except that according to the statement of facts agreed upon, from $500 to $800 is kept on deposit in the McPherson banks. This is a detail that can be adjusted when the company makes the return, since there is no question here as to the details of the return made. As to the Kansas Power and Light Company, the business is handled in about the same way. In the case of that company $2,200 is kept on deposit in the McPherson banks.
Since this action is in the nature of one for declaratory judgment this court holds that the intangibles of these companies should be placed on the tax rolls of the counties interested in accordance with the views herein expressed, that is, the funds deposited in the McPherson banks and transmitted from time to time to the home offices of these companies should be placed on the tax rolls of the counties where the various home offices are located, while those kept on deposit at all times in the McPherson banks should be placed on the tax rolls of that county.
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The opinion of the court was delivered by
DawsoN, C. J.:
The petitioner, J. E. MacLean, presents an application to this court for a writ of habeas corpus to secure his release from the penitentiary in which he is incarcerated pursuant to a judg ment of the district court of Shawnee county which was affirmed by this court on July 6, 1935. (State v. MacLean, 142 Kan. 215, 46 P. 2d 879.)
The facts constituting the offenses for which the petitioner was prosecuted, convicted and sentenced and which involved infractions of the blue-sky law were sufficiently stated when petitioner’s case was here on appeal.
The basis of this application is set forth in the petitioner’s brief thus:
“(1) That he did not violate the provisions of any statute of the state of Kansas.
“(2) That the pretended statute upon which the court permitted him to be prosecuted is illegal and void and in contravention of the provisions of the constitution of the United States, which permits a citizen of the United States to make a fair contract.
“(3) That the punishment imposed, even if an offense had been committed, was cruel and unusual and in violation of the constitution of the United States.
“(4) That no offense was proved as charged in the information filed against your petitioner in the district court of Shawnee county, Kansas, and that said action was tried upon the theory, and a large amount of evidence introduced in an attempt to show that your petitioner had obtained money by false pretenses. By reason thereof, your petitioner did not receive a fair and impartial trial as guaranteed him by the constitution of the United States and the state of Kansas, and by the laws of Kansas.”
Counsel for petitioner, however, are candid enough to follow the foregoing contentions with this observation:
“We believe that most of the questions involved in petitioner’s appeal to the supreme court, in case number 31,945, were presented to the court, but from a careful reading of that opinion, we are impelled to the conclusion that the decision in that case was, as stated in the petition in this case, based upon the ruling of this court in a case where two entirely different propositions were involved (State v. Dobson, 140 Kan. 245).”
Few words are needed to restate the well-known rule of appellate practice that an application for a writ of habeas corpus will not be recognized as a substitute for a regular and timely appeal from a judgment and sentence in a criminal case, nor to serve as a belated motion for a rehearing of a criminal appeal which has been regularly disposed of. (G. S. 1935, 60-2213; Ex parte Nye, 8 Kan. 99; In re Payson, 23 Kan. 757; In re Max Wheatley, Petitioner, 114 Kan. 747, 220 Pac. 213; In re Peters, 124 Kan. 455, 260 Pac. 975; Woolsey v. Best, 299 U. S. 1, 57 S. Ct. 2, 81 L. Ed. 3.)
Under the rule just mentioned it is difficult to discern anything in this application entitled to present consideration. It is suggested that—
“Your petitioner does not believe that the state of Kansas could pass a law interfering with the right of any citizen of the United States to enter into a legitimate contract. The constitutional right of your petitioner was invaded and taken away from him.
“The district court of Shawnee county has sentenced him to be confined in the penitentiary for a period not exceeding twenty-eight years because he borrowed four small amounts of money upon his notes for only six months and agreed to pay interest at the rate of seven percent upon the notes, and in addition thereto, because the money was loaned to him when he needed it, agreed that if and when a holding company was formed to take over the ownership and control of the Pfaff Steam Unit, he would turn over to the lenders a small interest in such holding company, in addition to paying his notes in full with interest. The Constitution of the United States inhibits cruel and unusual punishment. Would any sane person or any right thinking person whether sane or insane, contend seriously that a man who was guilty of the offense of borrowing money upon his promissory note in small amounts should be subjected to a penalty of not exceeding twenty-eight years in the penitentiary of the state of Kansas, when he had already been confined in the county jail of Shawnee county, Kansas, for a period of three years, lacking two months?”
These objections to the validity of the speculative securities act under which defendant was prosecuted have heretofore been fully considered and not sustained by this court in Cities Service Co. v. Koeneke, 137 Kan. 7, 24, 20 P. 2d 460, 87 A. L. R. 16; and similar statutes have been consistently upheld by the United States supreme court. (Hall v. Geiger-Jones Co., 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480; L. R. A. 1917F 514 and annotations 524 et seq.; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 37 S. Ct. 224, 61 L. Ed. 493; Merrick v. Halsey & Co., 242 U. S. 568, 37 S. Ct, 227, 61 L. Ed. 498. See, also, Anno.—Blue-sky Law, 15 A. L. R. 262; 24 A. L. R. 523; 27 A. L. R. 1169; 30 A. L. R. 1331; 40 A. L. R. 1014; 54 A. L. R. 498; 57 A. L. R. 1004; 87 A. L. R. 42 et seq.)
The question whether the acts for which defendant was prosecuted, convicted and sentenced were innocent borrowings of money upon his promissory notes due in six months or were mere camouflage to conceal the perpetration of criminal offenses denounced by the statute is not determinable in this proceeding.
Petitioner’s next point that the judgment imposing consecutive periods of penal servitude on the petitioner for the four specific counts on which he was convicted constitutes cruel and unusual punishment, in violation of the bill of rights, cannot be sustained. It ought to be conceded that a breach of the statute enacted to suppress and punish the unlicensed sale of blue-sky securities is as heinous a public offense as the theft of six dollars’ worth of property from a railway freight car; and in that case a judgment of conviction and a sentence of one to seven years was upheld over the objection that it violated the constitutional guaranty against cruel and unusual punishment. (In re Tutt, Petitioner, 55 Kan. 705, 41 Pac. 957.) The imposition of sentences of imprisonment to be served consecutively rather than concurrently, where the separate counts are charged in a single information and where there is a single verdict of guilty on such counts, is a discretionary responsibility vested in the trial court. (State v. Woodbury, 133 Kan. 1, 298 Pac. 794; In re Skinner, 136 Kan. 879, 883, 18 P. 2d 154; State v. Finney, 139 Kan. 578, 32 P. 2d 517.)
Counsel for petitioner are appalled at the length of imprisonment which their client must serve — twenty-eight years, they say. This calculation is apparently predicated on the assumption that the conduct of the petitioner in prison will be so refractory and impenitent that he will have to serve the maximum time on every count under the statute, whereas if he behaves himself the prison authorities may be depended on to deal with his case in the usual way. That will be their concern, however, not ours. The rule is well settled that the power to define crimes and to prescribe punishment for their violation is the function of the legislature; and instances in modern times are few and far between where reviewing courts have presumed to interfere with the sentence imposed for a crime on the ground of its being cruel or unusual within the meaning of the constitution. Still more rarely will cases be found where such judicial interference has occurred by means of habeas corpus proceedings. In 29 C. J. 60 it is said:
“An oppressive or unduly severe sentence, in view of the circumstances of the particular case, but nevertheless within the legal statutory limits, cannot be relieved against on habeas corpus, even where the claim is that it violates the constitutional prohibition against cruel, unusual, or disproportionate punishments.”
See, also, note to Franklin et al. v. Brown, 73 W. Va. 727, 81 S. E. 405, in L. R. A. 1915C 557.
The writ is denied. | [
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The opinion of the court was delivered by
Dawson, C. J.:
A motion for a rehearing or modification of our judgment and opinion in this appeal has been presented and carefully considered. It does not shake our confidence in the fundamental justice of the order of this court for bringing this interminable litigation to a close. When the last appeal was presented the brief of counsel for appellants concluded thus:
“This litigation has been extremely prolonged, and we think this court ought to make such order as will definitely end the litigation and settle the title of this land.”
Counsel for appellants make a critical analysis of some of the cases cited in our opinion, and argue that they are not sufficiently analogous to govern the case at bar. We cited them not for the closeness of their analogy but as precedents supporting the rule that sometimes justice requires that the burden of protracted litigation must be cast on the estate itself, rather than upon one or more of the rival litigants.
The controlling rule which governed the peremptory order for the disposition of this litigation was the one announced in New v. Smith, 97 Kan. 580,155 Pac. 1080, syl. ¶ 2, and which has been cited and applied in Alexander v. Clarkson, 100 Kan. 294, 297, 164 Pac. 294; Gibson v. Boynton, 112 Kan. 173, 175, 210 Pac. 648: and McCleery v. McCleery Lumber Co., 136 Kan. 484, 493, 16 P. 2d 517. It is now argued that the effect of our decision and directions to the trial court is that the “successful” litigants will pay the costs, which is contrary to the pertinent provisions of the code and the precedents of this court.
The “successful” litigants — who are they? The appellee was successful in protecting the estate from being disposed of under the invalid will of 1919, under which the appellants sought to secure the property to themselves. The principal appellant, Etta M. Rose, has been barred from claiming an interest in the estate by her conduct in respect to the will of 1903. Although the other appellants cooperated with her, as the trial court found, this court in its leniency towards them did not see fit to apply to them the harsh rule of the statute which barred their mother. The acceleration of their interest into present ownership is the result of the operation of a rule of law applied by this court, not invoked by the sons of Etta TvTUose, ant^iY£U-?Mnei1ri2^STr] successful-litigation against her, their codefendant and coappellant. '
Passing now to the second matter presented in the motion of appellants, clarification of our order respecting costs is sought. In a reply to appellants’ motion, counsel for appellees join in this suggestion, and we are advised that the presiding judge has suggested to counsel for the litigants that it would be helpful to him in carrying into effect the mandate of this court if the following questions were answered:
“1. Does the court, by its order, mean that the district court shall go back and determine reasonable attorney fees of these attorneys who are long since deceased and, if so, to whom should such fees be paid?”
Answer: No.
"2. Two or three lawyers, who have been connected with the case and who are still living, have had nothing to do with the case for ten or twelve years. Is the district court required to determine what their fees should be?”
Answer: No.
“3. It is probable that the amount of work actually done is about the same on both sides of the case. If attorney’s fees have been paid to any attorney connected with the case, should that be taken into account?”
Answer: Yes.
“4. If there is not enough money left in the estate to entirely pay reasonable attorneys’ fees, and some attorneys have been paid on the one side, should that be allowed to increase the amount to be paid to the attorneys on the other side?”
Answer: No.
“5. If some of the attorneys have contracts for fees contingent upon success, should the district court take that into consideration in the allowance of fees?”
Answer: We think those contingent-fee contracts should be abrogated; but in any event the district court should ignore them completely.
We do not have sufficient facts on which to advise whether the special services of counsel for Edwin Genthe, a feeble-minded person, should be compensated out of the estate.
Costs in the district court or in this court which have already been paid should be disregarded, as of course.
Appellants make a showing by affidavits that the estate of 400 acres involved is only worth $7,000, and that the receiver’s charges thereon are already considerable, and that adequate compensation for counsel^ogetherjñÜL^^sis^^v 'CoúnsefTór appellees, however, show that the assessed value of the property is $11,920, which is probably a nearer approximation of its market value. It is quite probable that with due regard to the value of the estate and the other burdens it must bear, the lawyers who have borne the heat and burden of this litigation will have to be content with relatively small compensation for their arduous services; but we cannot doubt that the rule of noblesse oblige to which all good lawyers adhere will temper their claims, and the sound judgment of the district court will be its sufficient guide in respect to such details. | [
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The opinion of the court was delivered by
AllbN, J.:
This is an action to foreclose a mortgage on real estate. Judgment was rendered for the plaintiff, foreclosing the mortgage and fixing the period of redemption at six months. Defendants appeal from that part of the judgment fixing the redemption period, contending they are entitled 'to eighteen months in which to redeem.
On April 17, 1928, defendants entered into a written contract with the Suburban Investment Company to purchase a home in the city of Hutchinson on the monthly payment plan. The agreed purchase price was thirty-one hundred fifteen dollars. Three hundred dollars was paid in cash, and the balance, with accruing interest, was to be paid in monthly payments as specified in the contract. The contract further provided:
“And the said party of the second part hereby agrees to purchase lands above described, upon the terms and conditions herein mentioned, and agrees to pay the payments of principal and interest as above specified; also all taxes hereafter to be assessed or levied against said property, including the taxes for the year 1&28.
“It is also further agreed by the said party of the first part, that upon a full compliance with all the terms and conditions of this agreement on the part of the said party of the second part, and said party of the first part will give or cause to be given, to the said party of the second part, her heirs or assigns, a good and sufficient deed of general warranty for the premises aforesaid, together with abstract showing a merchantable title to date of this contract.
“It is also agreed that the said party of the second part shall have immediate possession of said premises, to use and improve in a husbandlike manner.
“It is also mutually agreed between the parties that if the said party of the second part fail or neglect to pay all taxes and assessments levied against said lands, within thirty days from the date when the same shall become due and payable according to law, or if the said party fail to pay any of the payments of principal or interest for thirty days from the date when the same becomes due and payable, as herein stipulated, then this agreement shall be deemed a rental contract at the option of the party of the first part, and all payments made by the second party shall be deemed rental payments for the use and occupation of said premises, and second party shall and will on demand, surrender the possession of said premises to the party of the first part, or its assigns, and second party shall be released thereafter from further liability under this contract.”
The defendants became delinquent in the payments as specified in the contract, and in February, 1934, made application to the plaintiff for a loan “for the purpose of financing said contract.” In March, 1934, the loan was made to the defendants in the sum of $2,289.57, and this money was applied to pay the debt due the Suburban Investment Company, and for taxes, abstracts and other expenses in closing the transaction.
The trial court found that at the time this loan was made by the plaintiff, defendants had paid to the Suburban Investment Company a total amount of $886.10.
Defendants contend “that the mortgage in question cannot be a purchase-money mortgage because, first, the property was purchased and the sale made on April 17, 1928, at which time the contract before referred to was entered into, and, second, that when appellants, over a period of five years, had paid a substantial amount, which was slightly less than one third of the purchase price, that such a contract must be construed to be an equitable mortgage.”
The trial court found that the money advanced by the Home Owners’ Loan Corporation was used for the purchase of this property from the Suburban Investment Company. The court further found that the mortgage to the plaintiff was a purchase-money mortgage, and as less than one third of the purchase price had been paid, the defendants, under the plain language of the statute (G. S. 1935, 60-3466), should have only a period of six months in which to redeem.
We think the conclusion reached by the trial court is correct. The statute, G. S. 1935, 60-3466, provides that whenever a lien shall be given for the purchase price of any real estate, and default shall be made in the conditions of the mortgage or instrument giving such lien before one third of the purchase price shall have been paid, etc., then upon foreclosure and sale the period of. redemption shall be six months. In this case the proceeds of the loan made by the plaintiff to the defendants having been applied to pay the balance due the original vendor, the mortgage given to secure this borrowed money was as definitely and certainly a purchase-money mortgage as if given to the original vendor. (Ruf v. Grimes, 104 Kan. 335, 179 Pac. 378. See, also, Home Owners’ Loan Corp. v. Torrey, 146 Kan. 332, 69 P. 2d 1096, and cases there cited.) We have examined the record and find no equitable considerations that would prevent the application of the rule announced in the Torrey case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
The plaintiff, who alleges that he is a private citizen of African descent and color, invokes the original jurisdiction of this court in mandamus to compel the governing officials of the city of Newton, and one Harold Hunt, to admit him to the privileges of a swimming pool constructed with funds procured by a sale of municipal bonds voted by the electors of Newton in 1934.
The application for the writ sufficiently alleges that the bonds so voted are a charge upon all the taxable property of the city, and that plaintiff is a taxpayer; that when the swimming pool was completed and opened this plaintiff provided himself with a bathing suit for the purpose of enjoying the privileges of the swimming pool; but in the meantime the city government leased the swimming pool to one Harold Hunt; and that the latter denied to plaintiff the right and privilege of using the pool because of his race and color.
The petitioner further alleges that no arrangements have been made by defendants to furnish swimming facilities or privileges for plaintiff, and that neither he nor other citizens of African descent and color are admitted to the municipal swimming pool at any time. The petition continues—
“Plaintiff alleges that the action on the part of all the defendants and each of them was malicious, capricious, arbitrary and in violation of the civil rights law of the state of Kansas made and provided in such cases and also in direct violation of the federal and state constitutions in such cases made and provided. And, that he and all other people of African descent or color are discriminated against because of their race, and that the said defendants and each of them have arbitrarily and intentionally failed and refused to make any provision for their entertainment, amusement or enjoyment of said municipal swimming pool in the city of Newton, Kan., notwithstanding the fact that the plaintiff and people of his group pay their just proportion of the taxes, which will be applied to the liquidation of the indebtedness incurred by the defendant.”
The petition concludes with a prayer for an alternative writ commanding defendants to admit plaintiff and other citizens of Newton of African descent and color to the privileges of the swimming pool, or to show cause why plaintiff and others similarly situated should be denied such privileges.
An alternative writ issued, which counsel for defendants moved to quash on two grounds:
(1) That plaintiff had no legal capacity to maintain the action; and
(2) That the application for the writ did not state sufficient facts to constitute a cause of action.
When the motion to quash was presented, it developed in the oral argument that the possibility of an amicable adjustment of the matters complained of had not been fully explored by counsel for the litigants; and consideration of the cause was deferred until that matter had been considerately examined. Now, however, we are advised that an amicable settlement of the matters alleged in the application for the writ cannot be effected, and each party to the litigation invokes the judgment on the legal issues raised by the pleadings now before the court.
Is this sort of action maintainable by a private citizen having no interest in the matters alleged which differ in any respect from the public in general — particularly those of African color and descent who are citizens of Newton?
Approaching the question from another 'angle, and assuming the matters set out in the application for the writ to be true and well-pleaded, would not the alleged arbitrary or illegal action of the governing body of Newton be subject to correction or redress in an action brought by the state on the relation of the attorney general or county attorney? It would seem so. And if the alleged official delinquency or assumption of unauthorized authority is subject to challenge or correction by any one of the state’s authorized prosecuting attorneys, can this plaintiff, a private citizen, prosecute this action, when he has no interest in the subject matter in anywise different from the group to which he belongs?
Counsel for defendants cite many decisions of this court over a period of more than 60 years which, they argue, require a negative answer to this question.
In Craft v. Jackson Co., 5 Kan. 518, a taxpayer sought to maintain an action against a board of county commissioners to enjoin them from allowing and paying an allegedly illegal claim against the county and to enjoin the county clerk from drawing a warrant therefor. A temporary injunction was first granted and later dissolved by the district court, and on appeal that ruling was affirmed. In its opinion this court said:
“It is well known that the general rule is, that for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character, or by some officer authorized by law to act in its behalf, or by some of those local agencies created by the state for the management of such of the local affairs of the community as may be entrusted to them by law. The individual citizen does not in his own name interfere in behalf of the interests of society, but society acts through and by its properly constituted agencies. The law, as a general principle, has not deemed it proper that offenses or grievances of a public character should be investigated at the suit of a private individual, nor that the officers, to whom important trusts have been confided, should be held liable for their act to any one. When those acts affect every one alike such officers are as amenable as private citizens for any abuse of their authority. If the injury is one that peculiarly affects a person, he has his right of action; if it affects the whole community alike, their remedy is by proceedings by the state through its appointed agencies.” (p. 521.)
Further, in the same opinion, the court continued thus:
“In Putnam, v. Valentine [5 Ohio, 189] the court refused to sustain an injunction obtained by a supervisor of highways to restrain the commission of great and irreparable injuries to a highway, saying: ‘Suits to prevent the infraction of rights purely public are generally commenced and conducted in the name of the state, or the officer entrusted with the conduct of the public suits,’ although it is not certain from the opinion that the case was decided upon this principle, but more likely on the want of power in the supervisor to conduct suits of that character in his official capacity. ... An injunction is likened to a mandamus, without observing that in the latter class of cases the proceedings are in the name of the state, and by the relator in certain cases, by express authority of law, a fair illustration of what we have endeavored to make appear in this opinion, that the private citizen as such cannot sue in his own name for public injuries where his rights and interests are the same as those of every other member of the community.” (p. 524.)
In Bobbett v. State, ex rel. Dresher, 10 Kan. 9, six private citizens of the town of Lindsay, in Ottawa county, made application to the district court for a writ of mandamus to compel the board of county commissioners to cause an election to be held for the relocation of the county seat. The district court held that the writ should issue, but this court held otherwise. Our syllabus reads:
“Mandamus will not lie at the instance of a private citizen to compel the performance of a purely public duty.
“Such a suit must be brought in the name of the state, and the county attorney and the attorney general are the officers authorized to use the name of the state in legal proceedings to enforce the performance of public duties.
“Where a private citizen sues out a mandamus he must show an interest specific and peculiar in himself, and not one that he shares with the community in general.”
In the opinion Mr. Justice Brewer said:
“The question is therefore narrowed down to this: Can a private citizen by mandamus compel the performance of a public duty? To allow any citizen to litigate with public officers the propriety of their acts, exposes them to constant litigation. If one may, so may another. If one act may be litigated, so may all; and so the time, attention and thought of the officer diverted from the duties of his office to the defense of harrassing suits. This topic is pursued at length in the case of Craft v. The Comm'rs of Jackson County, just cited, and needs no further discussion here.” (p. 14.)
In Miller v. Town of Palermo, 12 Kan. 14, five private citizens who were residents and taxpayers of certain lands within the limits of the so-called town of Palermo brought an action in the nature of quo warranto against certain defendants who assumed to act as the official board of trustees of the town, alleging that Palermo was not a municipal corporation nor were the defendants the officers thereof. Plaintiffs prayed judgment of ouster. The defendants interposed a demurrer on three grounds:
" ‘1st, That, said plaintiffs have not legal capacity to sue in this action, it appearing from said petition that in said action the county attorney of said county, or the attorney general of the state of Kansas are the only persons authorized to sue.
“ ‘2d, That there is a defect of parties plaintiff, in this, that said action should have been brought by the county attorney of said county or the attorney general of the state of Kansas.
“ ‘3d, The petition of the said plaintiffs does not state facts sufficient to constitute a cause of action.’ ” (p. 15.)
This demurrer was sustained, and on appeal this court said:
“Private individuals, who have no interest other than as citizens, residents and taxpayers of a municipal corporation, cannot maintain an action of quo warranto against such corporation.
“If the injury is one that particularly affects a person, he has a right to the action. If it affects the whole community alike, their remedy is by proceedings by the state, through its appointed agencies.” (Syl.)
To the same effect was the interesting case of Adkins v. Doolen, 23 Kan. 659.
In Nixon v. School District, 32 Kan. 510, 4 Pac. 1017, a private citizen and taxpayer brought suit to restrain a district school board from erecting a schoolhouse, on various alleged grounds of illegality. He set forth his interest in the subject matter thus:
“ ‘Plaintiff further says that he is a citizen and taxpayer of said school district No. 92, in said county and state; that the question involved in this case is one of common or general interest to many persons; that the parties are very numerous, and it is impracticable to bring them all before the court, and he brings this action for the benefit of all.’ ” (p. 511.)
This court held he could not maintain the action, saying—
“The plaintiff does not allege that he has any interest in the subject matter of the action special or peculiar to himself, nor any interest therein except such as results from his being a citizen and taxpayer. He alleges ‘that the question involved in this case is one of common or general interest to many persons; that the parties are very numerous, and it is impracticable to bring them all before the court,’ intending to bring himself within the provisions of §38 of the civil code; but he does not allege or show that any of the other parties have any more interest in the subject matter of the action than he has, nor indeed as much. They may not even be citizens or taxpayers. But supposing that they are, they have no more right to bring the action than he has. If the school district or its officers are doing anything wrong, it is for some person who has some special interest in the matter, or some public officer, to bring the action.” (p. 512.)
We have taken space to cite and quote from these early cases to show that it became the settled policy of this state many years ago that to secure redress for any official inaction or illegal action, or official delinquency, appropriate proceedings should be begun, and ordinarily can only be begun, by the county attorney or attorney general.
The later cases of this court are to the same effect. In Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 267 Pac. 996, when a taxpayer sought to enjoin the governing officials of Leavenworth from entering into a contract with an electric power company for the purchase of electricity to operate the municipal water plant, this court held that plaintiff could not maintain the action. In the opinion it was said:
“Early in the history of this state it was determined that ‘. . . for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character. . . .’ (Craft v. Jackson Co., 5 Kan. 518, 521; and see Clark v. George, 118 Kan. 667, 669, 236 Pac. 543.) This principle applies not only in injunction, but in mandamus (Bobbett v. State, ex rel. Dresher, 10 Kan. 9; Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556) and other forms of action, many examples of which are found in our reports.” (p. 348.)
To the same effect were Albach v. Fraternal Aid Union, 100 Kan. 511, 164 Pac. 1065; Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651; Clark v. George, 118 Kan. 667, 236 Pac. 643; Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556; Rodenbeck v. Darby, 139 Kan. 759, 32 P. 2d 306; Robertson v. Kansas City, 143 Kan. 726, 56 P. 2d 1032.
It is quite true, however, that alongside of the foregoing decisions, our reports are replete with precedents cited by counsel for plaintiff which recognize the right of an individual plaintiff to invoke injunction, mandamus or quo warranto to secure redress against public officials for denial of his rights where his grievance is peculiar to himself or different in degree from that of the general public, or where no other adequate specific remedy exists. Thus in Board of Education v. Tinnon, 26 Kan. 1, this court affirmed a judgment of the district court which granted a writ of mandamus requiring the board of education of the city of Ottawa (a city of the second class) to admit the plaintiff, a colored boy of school age, to one of the city schools set apart for white pupils, notwithstanding adequate separate schoolrooms and facilities had been set apart for the exclusive usé of colored pupils.
In Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616, mandamus was similarly invoked with success to compel the school board of the city of Independence (a city of the second class) to admit two colored pupils to one of its schools set apart for white pupils, although adequate facilities for the separate instruction of colored pupils had been provided.
In Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274, mandamus was sought to compel the board of education of the city of Topeka to admit a colored pupil to a school maintained for white children. Mandamus was denied, because a special statute authorized the board of education of the city of Topeka to maintain separate schools for white and colored children except in the high school.
In Williams v. Parsons, 79 Kan. 202, 99 Pac. 216, mandamus was granted at the behest of a private colored citizen of Parsons to compel the board of education to provide adequate and convenient school facilities for his children, although the board of education (Parsons being a city of the first class) was authorized to segregate the white and colored school children of that city.
The case of Cartwright v. Board of Education, 73 Kan. 32, 84 Pac. 382, a Coffeyville case, was governed by the rule announced in the early Tinnon and Knox cases, supra.
In Rowles v. Board of Education, 76 Kan. 361, 91 Pac. 88, this court held that although Wichita was a city of the first class, its educational system was governed by a special statute which seemed to forbid, and certainly did not expressly sanction, the maintenance of separate schools for white and colored children in Wichita; consequently the case was governed by the rule of the Tinnon and Knox cases; and we also held that the district court erred in denying mandamus to require the school board to admit plaintiff’s daughter to the ward school where, but for her color, she would have been admitted without question.
Woolridge v. Board of Education, 98 Kan. 397, 157 Pac. 1184, was another mandamus case against the school board of Galena, a city of the second class, where it was again held that the defendant school board had no authority to separate colored pupils from white pupils in the schools under its control — “unless it is expressly given by statute.”
Thurman-Watts v. Board of Education, 115 Kan. 328, 222 Pac. 123, another Coffeyville school case, was to the same general effect— there could be no discrimination on account of color without statutory sanction therefor.
In Wright v. Board of Education, 129 Kan. 852, 284 Pac. 363, injunction to prevent the school board of a city of the first class from transferring a colored pupil from a school for white pupils to another assigned for colored children was denied — but there, again, a statute (R. S. 72-1724) sanctioned the segregation.
In none of the cases cited by plaintiff was the legal question raised as to the petitioner’s right to sue for mandamus or other extraordinary redress; but it is, of course, well settled in this jurisdiction that if plaintiff can show that he has some interest peculiar to himself, and that he is not merely intruding into the role of public prosecutor, he can maintain the action — in certain instances by virtue of some express statute, but elsewhere on broad legal or equitable considerations. Thus in Boylan v. Warren, 39 Kan. 301, 18 Pac. 174, mandamus was invoked by a private citizen to compel the clerk of the district court to permit plaintiff to examine the records in the clerk’s office for the purpose of procuring information to which he was entitled. It was the official duty of the clerk to render such service to the public; but plaintiff, owing to his vocation as an abstracter of titles, had a peculiar interest in having this public duty performed, and thus had an interest measurably different from the public in general, so his right to maintain mandamus was upheld.
In Young v. Regents of State University, 87 Kan. 239, 124 Pac. 150, the action arose following the enactment of a statute to establish a State School of Mines and Metallurgy at the town of Weir, in Cherokee county. The proposed school was to be under the control of the regents of the state university, but the board of regents showed no inclination to establish it. Plaintiff, a citizen of Weir, owner of a home there and the head of a family, brought mandamus proceedings to compel the board of regents to establish the school. He alleged a peculiar interest in having the regents perform their official duty by alleging his desire and intention—
“To attend the school and educate himself in the branches of learning required to be taught there; that he is eligible to enter the school and receive the instruction which it is intended to afford, having already taken much of the courses provided for; that he has a son whom he desires to educate at the school and who is eligible to enter it; and that because of the failure of the board to establish the school the plaintiff and his son are deprived of the benefit of the act.” (p. 242.)
This court held that plaintiff could maintain the action, and judgment was given accordingly. It is to be noted, however, that in Gormley v. School Board, 110 Kan. 600, 204 Pac. 741, where this court dismissed a proceeding in mandamus to compel a rural high-school board to call an election to vote on the disorganization of the district on the ground that the plaintiffs as private citizens had no such peculiar interest in the performance of the school board’s duty as to authorize them to maintain the action, Mr. Chief Justice Johnston said that Young v. Regents of State University, supra, was recognized as a border-line case. Continuing, in the same opinion, it was said:
“Of course, they [the plaintiffs] are interested as taxpayers in the disorganization of the district, and the levies that may be made for the erection of a school building, and the maintenance of a school, but this is an interest common to all the taxpayers of the district, and this under the authorities cited gives them no right to maintain mandamus or assume the functions of the ■county attorney or attorney general. Private citizens having no special interest may not employ mandamus to compel officers to perform what they may deem to be the duties of such officers.” (p. 602.)
In Titus v. Sherwood, 81 Kan. 870, 106 Pac. 1070, mandamus was invoked by the presidents of five local miners’ unions to compel the president of the state association of miners to issue a call to convene delegates in a meeting of the state association for the purpose of ■electing a secretary of that association. The legislature had created the official position of state mine inspector, prescribed his duties and .given him a salary, and had also provided that whoever was chosen secretary of the state association of the miners’ unions should be •ex officio state mine inspector. The validity of the statute was not ■drawn in question, but it was held that the presidents of the five local unions did not have sufficient interest in the matters complained of to maintain mandamus proceedings, and the judgment of the district court, which had ruled to the contrary, was reversed.
In Hawkins v. Gregory, 138 Kan. 477, 26 P. 2d 247, an action was begun by a private citizen to compel the county clerk to extend on the tax rolls a levy ordered by an official board which on proper occasion had authority to impose such a tax levy. This court itself raised a question as to the authority of plaintiff to maintain the .action and ordered that question briefed, following which it was held that plaintiff could not maintain the action. The pertinent paragraph of the syllabus reads:
“Under the rule announced in Bobbett v. State, ex rel., 10 Kan. 9, that mandamus will not lie at the instance of a private citizen to compel the performance of a purely public duty, an application for a writ of mandamus to require the county clerk to spread a tax levy on the tax rolls of a drainage district will be dismissed where the applicant for the writ is a private citizen having no interest peculiar to himself nor different from that of the generality of property owners on whom the tax was levied.” (Syl. If 1.)
In the opinion it was said:
“In the first place it should be obvious that the plaintiff, a private citizen, cannot maintain the action instituted by him in case No. 31,620. He has no special interest apart from the general run of citizens and property owners of the drainage district which would justify his assumption of the functions of a public prosecutor to compel the county clerk to extend this tax levy. As this court has many times observed, this state is adequately provided with officers to attend to matters of this sort, and even neglect of or inattention to such duties by public officials does not warrant their assumption by private litigants except where the statutes so provide.” (p. 481.)
See, also, McDonald v. Rhodes, 140 Kan. 744, 42 P. 2d 46, where it was held that a state treasurer-elect had no greater right of access to the affairs of the state treasurer’s office than any other private citizen, and that the incumbent in lawful possession of the office could not be compelled by mandamus to permit the officer-elect to make an audit of the office before his official bond had been given and approved.
In view of all these precedents from our own reports, what is the correct answer to defendants’ contention that plaintiff has no right to invoke mandamus to redress his alleged grievance in being deprived of the privileges of the municipal swimming pool of the city of Newton? Has he stated any grievance redressable by mandamus which is peculiar to himself and not suffered by the public in general? The answer is not easy. The public in general is not deprived of the privileges of the swimming pool. According to the petition, however, it is alleged that all colored citizens of Newton are similarly deprived of the privileges of the swimming pool. Whether their number be many or few the pleadings do not show. However, the situation stated in the application for the writ would undoubtedly warrant the institution of some sort of action, mandamus, quo warranto, or injunction, by the public prosecutor; and we are not prepared to say that plaintiff can maintain this action on behalf of the group for which he pleads. But we think it clear that in the interests of justice and equity plaintiff is entitled to maintain the action in his own behalf. He is deprived of the privileges of the swimming pool. He is a taxpayer, and as such he and his property are bound to pay the bonds issued to raise the money which built the swimming pool. He has as good a right to its privileges as any other citizen. Deprivation of the privileges of access to municipal recreation grounds established or maintained at the general taxpayers’ expense, on account of race or color, is legally and traditionally offensive to the history of this state; and although this court has repeatedly upheld statutes which sanction reasonable segregation of the racial stocks of this state, white and colored, we have steadfastly held to our oft-repeated rule that the legislature alone can authorize such segregation, as in the many school cases cited above.
The court holds that the plaintiff can maintain the action.
The second point urged in defendant’s motion to quash — that the application for the writ does not state facts sufficient to constitute a cause of action — should take less space for solution. There may be a troublesome question touching the joinder of the city officials and the lessee of the swimming pool in this mandamus proceeding. (Rakestraw v. State Highway Comm., 143 Kan. 87, 53 P. 2d 482, and 5 J. B. K. 267-269.) The terms of the lease are not now before the court. Thus far, its validity is not in question. Ordinarily mandamus is only concerned with the performance of official duty; and of course, Hunt, the lessee, has no official duty in the premises. But he is not improperly impleaded because of his interest in the litigation (Wolf River Drainage Dist. v. Nigus, 133 Kan. 742, 744, 3 P. 2d 650, and citations), although eventually the absolute rights of plaintiff and the extent of Hunt’s liability, if any, may have to be settled in a separate lawsuit. On this last point we venture no opinion; but see 5 R. C. L. 604, 605; 11 C. J. 810 et seq.
On the second point urged in the motion to quash, the court holds that the application for a writ states a cause of action.
It follows that the motion to quash cannot be sustained. Defendants are given thirty days to plead further, as they may be advised.
Defendants’ motion to quash the alternative writ is overruled. | [
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The opinion of the court was delivered by
Thiele, J.:
This matter comes before us on the state’s motion to dismiss defendant’s appeal.
From the record it appears that on April 7, 1936, the defendant was enjoined from maintaining a nuisance under the intoxicating liquor laws, and that in October, 1937, she was charged with being in indirect contempt of court because of her violation of the injunction. Upon a trial had, at which a jury was waived, she was found guilty. Her motion for a new trial was denied, and on October 28, 1937, she was sentenced to be confined at the Kansas Industrial Farm for Women for a period not to exceed six months, and to pay a fine of $100 and costs of the prosecution. On the same day she served notice of appeal to this court. She filed a bond, which was approved by the clerk of the Labette county district court, and has since been at liberty.
The gist of the state’s motion is that appellant was convicted of criminal, as distinguished from civil, contempt, and that her appeal must be governed by the law applicable to criminal actions; that it has not been so perfected because, as required by Laws 1937, chap ter 274, she did not serve on the county attorney notice of her intention to appeal and file the same with the clerk of the (trial) court, order a transcript of so much of the testimony as is needed to present the cause on appeal, see that the journal entry of trial and sentence was filed, and cause copies of the notice of appeal, with proof of service, order for transcript and journal entry to be filed with the clerk of this (supreme) court within ten days after sentence, nor did she cause to be certified to this court that she had given bond in any manner as required by the above statute. We take notice of the fact that she did not apply to this court for any order staying execution of her sentence and fixing amount of her bond. Although a copy of the motion to dismiss was served on appellant’s counsel, she has made no objection to its being allowed or any response otherwise.
It clearly appears that the appellant has not complied with the statute above mentioned, and if it appears the appeal is in a criminal action, it must be dismissed for that failure. The only question is whether the proceeding in contempt was civil or criminal in nature. In consideration of that question, it may be observed that under G. S. 1935, 21-2131, the state may maintain an action to abate and perpetually enjoin a liquor nuisance; that violation of the terms of any injunction may be punished by fine and imprisonment, and that the sentence in the case at bar is within the limits set by that statute.
In Holloway v. Water Co., 100 Kan. 414, 167 Pac. 265, this court had before it the question whether a particular contempt was civil or criminal in its nature, and in that opinion quoted approvingly from the opinion in In re Nevitt, 117 Fed. 448:
“ ‘Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts and the people are interested in their prosecution. The latter are civil, remedial and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce.’ (194 U. S. 328.)
“ ‘It may not be always easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both. A significant and generally determinative feature is that the act is by one party to a suit in disobedience to a special order made in behalf of the other.’ (p. 329.)” (p. 421.)
The distinction between the two kinds of contempt is made in substantially the same language in 13 C. J. 57 and 6 R. C. L. 490.
In State v. Rose, 78 Kan. 600, 97 Pac. 788, it was stated that:
“The law upon the subject of contempt is well defined and well understood, and its penal character cannot plausibly be questioned. Indeed, proceedings in contempt, except in certain special cases, were criminal under the common law (Rapalje, Cont. 25; Oswald, Cont., Com. & Att., 2 ed., 99, 199), and this common-law quality of criminality continues to characterize them to such an extent that general provisions of the code of criminal procedure are frequently applied to them. (The State v. Dent, 29 Kan. 416; In re Simms, Petitioner, 54 Kan. 1, 4, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St. Rep. 261, and cases there cited.)” (p. 602.)
The contempt of which appellant was found guilty was of an order made, not to protect any private right, but to preserve the peace and dignity of the state, to prevent a continuance of a liquor nuisance and to enforce the criminal laws of this state, and that it was treated as a criminal and not a civil proceeding may be inferred from the fact that a jury was waived. Whatever might be said in a borderline case, there can be no doubt that the contempt of which appellant was found guilty was a criminal contempt. If she wished to appeal from the conviction, she should have complied with the statutes governing appeals in criminal cases.
Our statute defining contempt of court (G. S. 1935, 20-1201 to 20-1206), while defining direct and indirect contempts, does not define civil or criminal contempt. It does, by G. S. 1935, 20-1205, grant a right of appeal to the supreme court on a conviction for contempt, but prescribes no procedure other than the fixing of bond for staying execution of the sentence, and in a manner substantially in accord with the provisions of our statute for appeals in criminal cases.
Our conclusion is the appeal was not properly perfected, and it is dismissed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a beneficiary certificate issued by the national council of the Knights and Ladies of Security, predecessor of defendant, the Security Benefit Association. The plaintiff, Augusta Pickens, who had been named as beneficiary, recovered, and defendant appeals.
Dues were payable on the first day of each month. If not paid by the last day of the month, the member was automatically suspended. A member suspended for nonpayment of dues could be reinstated within sixty days from suspension by paying arrearages and dues, provided he was in good health at the time of making payment with the view of reinstatement. Payment for reinstatement constituted a warranty that the member was in good health at the time of making it, and'retention of such payment could not have the effect of reinstating the member unless he was in good health. The beneficiary kept up the member’s dues. It was customary for her to pay dues for the month in which payment was made, and arrearages for the preceding month. Dues for January, 1921, were not paid until February 17, when payment was made for the months of January and February. The member died on March 1. The defense to the action was that the member was not in good health on February 17, and having been suspended for nonpayment of January dues, he was not reinstated by the payment made in February.
The medical testimony gave the origin of the member’s malady, which was multiple neuritis, and progress of the disease until it resulted in death through paralysis of the heart. The member was not well from February, 1920, until he died, March 1, 1921. During the last two months of his life the attacks were more pronounced and closer together. The attending physician’s card showed calls or treatment given nine times in January, 1921, eight times in February, up to and including February 24, and on February 26, 27, 28, and March 1. Another physician testified he examined the member in November, 1920, and found him suffering from multiple neuritis of traumatic origin, a disease from which a patient seldom recovers. The history of the case showed that on an occasion when the member was receiving discipline as an inmate of the penitentiary, he tried to squirm away from infliction of pain and injured one of his spinal vertebrse. The owner of the apartment in which the member lived observed him, and discussed with him the state of his health, within the last month or two of his life. The member would be seen to be groaning and carrying on, and the expression of his face and the movements of his body indicated great pain. He said the pains were unbearable. Plaintiff produced testimony of nonexpert witnesses that on occasions during February, 1921, and up to February 26, they saw the member, that he was bright and lively, ate heartily, made no complaint of illness, seemed to be in the best of health, and was in perfect physical health.
The court instructed the jury as follows, the portion of the instruction which is of special importance being italicised:
“As to the meaning of the words ‘good health’ as used in the laws of the defendant association, I will say that the term does not mean absolute perfection, but it is comparative. The insured member need not be entirely free from infirmity or from all the ills to which flesh is heir. If he enjoys such health and strength as to justify the reasonable belief that he is free from derangement of organic functions, and to ordinary observation and outward appearance his health is reasonably such that he may with ordinary safety be insured and upon ordinary terms, then the requirement of good health is satisfied. Slight troubles, temporary and light illness, infrequent and light attacks of illness, not of such a character as to produce bodily infirmities or serious impairment or derangement of vital organs, do not disprove the claim of good health. In other words, the term ‘good health’ as used in the manner set forth in the laws of the defendant association, means that the insured member has no grave, important or serious disease, and that he is free from any ailment that seriously affects the general soundness and healthfulness of his system.”
The jury returned the following special findings:
“1. Was J. Sidney Pickens in good health on February 17, 1921? A. According to evidence, he was in good health on February 17, 1921.
“12. Had J. Sidney Pickens been subject to attacks of neuritis or multiple neuritis prior to February 17, 1921? A. No.
“13. Was the last illness of J. Sidney Pickens multiple neuritis or neuritis? A. Neither. Paralysis of the heart.”
It will be observed, that the jury accepted the medical testimony to this extent: The fatal illness was paralysis of the heart. The jury did not, however, accept the medical testimony as to the instant cause of paralysis of the heart, namely, multiple neuritis. There was no evidence whatever that multiple neuritis of traumatic origin, manifesting itself in attacks growing more frequent and violent, is not an efficient cause of paralysis of the heart, and the jury may very well have disregarded the expert testimony, and based its finding of good health on the nonexpert testimony, because of the portion of the instruction to which special attention has been directed. The contract did not provide that a member might be reinstated by payment of arrearages and dues provided he appeared to relatives and acquaintances to be in good health, and by hearty eating, display of good spirits, and noncomplaint of illness, induced reasonable belief that he was in good health. The contract was that he should be in good health, and payment of arrearage and dues with the view of reinstatement was a warranty of good health. Since the instruction permitted substitution of appearance to and belief of laymen respecting good health for the fact of good health, the instruction was erroneous, and under the circumstances was prejudicial.
The insti’uction, as applied to a similar state of facts, was condemned in the case of Miller v. Knights and Ladies of Security, 103 Kan. 579, 175 Pac. 397. In that case the full definition of good health was contained in two instructions. In one it was said good health means that a person is free from any disease or ailment which affects general soundness of the body or its organs or parts — substantially the concluding portion of the instruction given in the present case. In the other the appearance-and-belief doctrine was stated, substantially as in the instruction given in the present case. Reading together the two instructions in the Miller case, we have, with only immaterial variation in expression the instruction under review. In the Miller case the court expressly recognized the fact that good health does not mean absence of all infirmity, including absence of slight and temporary indispositions not usually affecting soundness of the system or materially weakening vigor of the constitution or seriously deranging vital functions. Likewise the court expressly recognized that evidence of corporeal appearance and con duct as indicative of good health, or lack of it, is relevant in determining the question of existence of good health. But the court pointed out that, to effect reinstatement under a warranty of good health, existence of good health as a fact is necessary, and that appearance and belief may not be substituted for the fact, because a person may unconsciously and without showing it be the subject of an insiduous disease, at the point of becoming fatal.
It is manifest that the instruction in the Miller case and the instruction in this case were adapted from 3 Joyce on Insurance, second edition, section 2004. The court had this section before it when it decided the Miller case. (Briefs, 103 Kan., volume 17.) The section is contained in a chapter relating to particular representations and warranties intended to be illustrative of principles set forth in preceding chapters. As a matter of fact, the good-health doctrine of section 2004 was developed in section 1849, relating to the opposite of good health — sickness and disease — where the comparative nature of the terms is stated. In discussing the subject of anwers to questions propounded relating to sickness and disease, the circumstances are stated under which answers may be based on such condition of health and strength as warrant a reasonable belief that health is good. The section concludes as follows:
“But, however, although one believes and affirms that he has not a disease, yet if the answers are made warranties, he answers at his peril. Neither his ignorance nor the immateriality of the fact concealed will aid him, and by numerous decisions, if he expressly stipulates that all his statements shall be material, the result would be substantially the same.” (p. 3006.)
In section 1964 it is said:
“The rule is settled that if an affirmative warranty is false the contract is avoided, and the assured is not aided by the fact that there was no fraudulent intent on his part, or that it was not willfully but innocently made; and so it is immaterial whether the assured acted in good or bad faith, or whether he knew the statements to be untrue or not, or whether the answers were intentionally false or in accordance with his belief, or whether he believed them true or not.” (p. 3227.)
In section 2003 it is said:
“In the determination of the effect of the very numerous statements as to health, illness, disease, etc., generally required in life insurance, the principal consideration is whether under the terms of the contract they are representations or warranties ...” (p. 3306.)
The result is, reasonable belief in good health and appearance of good health may satisfy the requirements of good health when the good faith of representations is'under investigation, but not when good health is warranted. This was made clear in the opinion in the Miller case:
“Good health, and not the appearance thereof or the reasonable belief therein, was the essential condition in this case. ... It was not a question of good faith, but one of actual good health, ... In this instance, to entitle her to reinstatement, the member must, aside from slight troubles or infirmities not usually ending in serious consequences, have been in fact free from any disease or ailment which tended seriously or permanently to weaken or impair her constitution.” (Miller v. Knights and Ladies of Security, 103 Kan. 579, 583, 175 Pac. 397.)
After referring to reliance of counsel for defendant on the Miller case, counsel for plaintiff say the instruction given in the present case was correct in point of legality, and follows the form extracted from the unbroken line of legal authorities in this country. The implication is that the instruction condemned in the Miller case was correct. If so, the decision in that case was wrong, something important, if true. Such of the decisions as counsel see fit to cite in support of their assertion may be examined.
In the case of Barnes v. Mutual Life Ass’n, 191 Pa. St. 618, an application for insurance made on October 30 contained a representation that the applicant was in good health. At the foot of the policy was a notation that it should not become binding until the first premium was paid, during the applicant's lifetime, and while he was in good health. The applicant contracted an ordinary cold on November 25, paid the first premium and received the policy on November 28, and died of pneumonia on the night of Thursday, November 30, following a severe chill on Wednesday evening. The trial court instructed the jury that a temporary or slight cold in a man of usual good health would not constitute unsound health. The jury found the applicant was in good health when the policy was delivered, which meant that the fatal disease, pneumonia, did not set in until after the policy was delivered. ' The evidence was conflicting on all material issues of fact. The supreme court said the jury was instructed correctly as to the meaning of the words “good health," and quoted Joyce’s section 2004. The material portions of the syllabus read as follows:
“The term ‘good health,’ when used in a policy of life insurance, means that the applicant has no grave, important or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system. . . . Held, that it was for the jury, under proper instructions of the court as to what constitutes good health, to determine whether he was in insurable good health, within the meaning of the representations contained in the application, at the time the insurance was consummated by payment of the premium.”
The Barnes case was before this court when the Miller case was decided. The instruction given in the Barnes case was correct, and the case was well decided, but it threw no light on the matter in controversy in the Miller case.
The report of the case of Goucher v. Northwestern Traveling Men’s Ass’n, 20 Fed. 596, consists of the charge to the jury in the trial of a case in the federal court. Representations relating to good health and serious illness were involved, and the essence of the long disquisition is well presented in the headnotes, which read as follows:
“A representation by an applicant for insurance that he is in possession of good health, means that he is free from apparent sensible disease and unconscious of any derangement of important organic functions.
“‘Severe illness’ means such as has, or ordinarily does have, a permanent, detrimental effect upon the physical system.
“A false answer, made without qualification, to an inquiry as to a matter of fact, annuls the contract of insurance, whether the reply is designedly untrue or not.”
The opinion of the court in the case of Provident S. L. Assur. Soc. v. Beyer, in 23 Ky. Law Rep. 2460, was withheld from publication in the official reports. Representations as to good health contained in an application for insurance were involved. Because of a statute, the application containing the representations was not legally admissible in evidence. It was, however, admitted without objection, and the court discussed the subject of good health and cited Joyce’s section 2004. The headnote reads as follows:
“The statement that a party was in good health does not import that he was entirely free from infirmity, but simply that he was in reasonably good state of health, and that his life was such as might be insured with ordinary safety and upon common terms.” (p. 2461.)
The case of Hann v. National Union, 97 Mich. 513, involved a warranty relating to good health. The warranty was that, to the best of the applicant’s knowledge and belief, the statements he subscribed to were true. Concerning this warranty the court said:
“It cannot be said under such a statement that the applicant assumed, or attempted to assume, the whole risk of his answer being true. It is a statement that he believed he was in good health, and, to the best of his knowledge, his statement was true. It was therefore .material whether the applicant knew of the existence of the disease or not.” (p. 618.)
The syllabus of the case reads:
“In order to defeat a recovery upon a life insurance policy for the breach of a warranty by the assured that, to the best of his knowledge and belief, he was in good health when the application was made, the defendant must show that the applicant knew or had reason to believe that the warranty was untrue.”
. In this connection it may be observed that, in O’Brien v. American Yeoman, 183 Mich. 86, the court held that when the testimony of medical experts showed deceased was affected with tuberculosis at the time she made application for insurance, a verdict for the insurer should have been directed, when the only testimony disputing the expert testimony was that of lay witnesses who said the applicant was about the house, was doing housework, and looked and acted well.
The case of McDermott v. Modern Woodmen, 97 Mo. App. 636, involved a warranty relating to good health and freedom from disease. The material portions of the decision are well digested in the syllabus, which reads:
“The difference between the legal -effect of a mere representation and a warranty is, that if the representation turns out to be substantially true as to facts material to the risk, the policy of insurance which it induced will be upheld, although the representation was false in unessential particulars; but a warranty must be strictly true, as it defines the limits of the obligations assumed by the insurer, and if it is false in any part, whether that part affects the risk or not, there can be no recovery on the contract.
“In the case at bar, the applicant answered the interrogatory as to whether he was of sound mental and physical health and free from disease or injury at the date of the application for insurance, in the affirmative, and it is asserted by the defendant that this answer was false, and the trial court instructed the jury that the meaning of the inquiry was whether or not the applicant have any grave, important or serious disease, whether he had a state of health free from disease or ailment which affected his general healthfulness and the soundness of his system, and that the inquiry did not embrace a temporary ailment or indisposition having no tendency to undermine or weaken the constitution: Held, that although the applicant had some slight temporary ailment, he could say with literal and exact truth that he was free from disease within the meaning of the interrogatories addressed to him.” (Iff 5, 7.)
The case was well decided, and gives no countenance to the notion that a warranty of good health may be satisfied by anything except good health in fact.
Counsel for plaintiff cite Joyce’s section 2004. It has been sufficiently discussed. Thus endeth counsel’s unbroken line of authorities.
The decision in the Miller case is well sustained by authorities which are precisely pertinent.
In the case of Trafton v. National Council, K. & L. of Security, 198 Ill. App. 347, suspension for nonpayment of dues occurred on August 26. The medical testimony was that on August 28, the insured was suffering from a tumor, with symptoms which made removal necessary. The tumor was removed on August 30. Immediately after the operation the insured’s heart began to fail, and she died on September 2. It was not controverted that the tumor had been growing for a period of at least several months prior to its removal. There was testimony to the effect that the insured appeared to be in good health on August 26. The abstract of the decision reads as follows:
“The words 'good health’ in the rules of a fraternal insurance society with reference to reinstatement of a member mean that a person is in a reasonably good state of health and free from any disease or illness that tends seriously or permanently to weaken or impair the constitution, and such words do not refer to the appearance of good health.” (p. 349.)
In the case of Murphy v. Metropolitan Life Ins. Co., 106 Minn. 112, there was a warranty of good health in the form of a condition in the policy, dated May 7, 1906, that no obligation was assumed unless the insured was in good health on the day the policy was dated. There was medical testimony that on that day the insured was afflcted with sarcoma of the knee. The company’s medical inspector had examined the insured on April 27, and testified he discovered nothing wrong or unsound about the insured, but found him in good health, so far as his examination disclosed. The inspector reported to the company that the health of the insured was good and his constitution was sound, and there was nonexpert testimony that his general health was good when the policy was issued. On this .testimony a verdict was directed for the company. In approving the action of the trial court in directing a verdict, the supreme court said:
“It is clear from the language of the policy that the defendant’s promise of insurance was not absolute, but conditional, and that the existence of life and sound health in the insured on the date of the policy is the condition upon which the promise is made. It is the fact of the sound health of the insured which determines the liability of the defendant, not his apparent health or his -or any one’s opinion or belief that he was in sound health.” (p. 113.)
The court concludes that the Miller case was well decided, and 'that it rules the present case.
The member’s certificate was dated April 11, 1911, and he agreed to abide by amendments of the association’s laws. In 1912 an amendment was adopted that no person should be eligible to membership who had been convicted of felony and had been imprisoned in a penitentiary, reformatory, or other penal institution. Defendant offered evidence that the member had been an inmate of the boys’ reform school at Topeka, and had been confined in the Kansas state penitentiary three times, the first on conviction of burglary committed in Lyon county, the second on conviction of grand larceny committed in Shawnee county, and the last time for a crime committed in Oklahoma. He was discharged from the last confinement on'February 18, 1900. The evidence was rejected, and properly so. The amendment did not undertake to forfeit membership already existing, but looked to the future."
Plaintiff stresses custom of defendant to accept arrearages and dues for purpose of reinstatement within the sixty-day grace period. No custom to accept arrearages and dues when the member was not in good health was shown.
On the day the member died, dues for March became and were payable. As the result of conference with the financier of the local council, plaintiff paid the March dues on April 26. Proofs of death, showing cause of death and bad health on February 17, did not reach defendant’s secretary until May 31. The jury found specially that previous to that time he did not know the state of the member’s health on February 17. Dues were $3.50 per month, 20 cents of which belonged to the local council, and the remainder to defendant. Défendant denied liability on the policy because the member was not in good health, and returned to plaintiff $10 in currency, or 10 cents more than defendant had received of the January, February, and March dues. Plaintiff sent the money back, and defendant deposited in court $10.50 for her benefit. Plaintiff contends that, because defendant did not send or tender to her the full sum of $10.50, it is estopped to deny liability on the certificate. The abstract states the district court did not submit this ground of liability to the jury. So far as the abstract and the counter-abstract show, plaintiff was content, and she is not permitted to mend her hold here. Since, however, the subject maj^ be agitated at another trial, it may be said the district court dealt with it properly. The member contracted that receipt and retention of dues after suspension, when he was not in good health, should not restore him or his beneficiary to any rights under the certificate. The contract protected defendant until it was apprised of the fact the member was in bad health. Having knowledge of the fact the member was in bad health, defendant might, if it chose, waive the requirement of good health. When, however, defendant learned the member was in bad health, it denied liability on that ground, and restored to plaintiff all it had received. Conceding defendant was obliged to see that the 60 cents which the local council had received was repaid, defendant distinctly indicated its purpose not to keep plaintiff’s money, and not to waive the requirement of good health, and plaintiff was neither deceived nor lulled into security by its conduct.
The judgment of the district court is reversed, and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
On October 8,1928, the mayor and council of Marysville, a city of the second class, passed an ordinance forbidding gasoline, kerosene or other inflammable or combustible liquid to be kept or stored within the corporate boundaries otherwise than in tanks, barrels or other containers buried at least three feet underground, exceptions being made in the case of crude oil, distillate or fuel oil in containers of 500 gallons or less, and of gasoline, kerosene or naphtha in quantities of less than 10 gallons. ■ The Cities Service Oil Company brought this action for an injunction against the enforcement of the ordinance with respect to two steel tanks having a capacity of about 10,000 gallons each, owned by it and used for the storage of gasoline and kerosene, upon the ground that it- is unreasonable and violative of the fourteenth amendment to the federal constitution.
The fact that in the absence of any ordinance on the subject a court cannot rightfully enjoin the maintenance of tanks similar in construction, use and location to those of the plaintiff (The State, ex rel., v. Cozad, 113 Kan. 200 213 Pac. 654) does not decide or vitally affect the present question. If a city in the exercise of its power to regulate certain matters could effectively forbid no act except those a court could enjoin without the existence of such regulation, there would be little purpose in passing regulatory ordinances.
If the legislature had expressly authorized the adoption of this specific ordinance it would have practically the standing of a' statute and could be held void only in case it violated some constitutional guaranty. The authority for its enactment, however, is to be found in the grant of power to the council “to enact . . . any and all ordinances not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city” (R. S. 14-401), and “to enact and make all such ordinances, by-laws, rules and regulations not inconsistent with the laws of the state as may be expedient for maintaining the peace, good government and welfare of the city and its trade and commerce” (R. S. 14-439), and perhaps also in the section authorizing the council to “regulate the construction of and order of suppression of . . . any apparatus used in any . . . business which may be dangerous in causing or promoting fires.” (R. S. 14-421.) The ordinance is therefore open to attack not only upon the ground of unconstitutionality, but also upon that of being unreasonable in the circumstances in which its enforcement is undertaken. (28 Cyc. 268-70.) Even in this situation, however, all presumptions are in favor of validity. The court does not substitute its judgment' upon a question of policy for that of the governing body of the city, but denies effect to the ordinance only where its unreasonableness is so manifest as to show bad faith or such arbitrary conduct as to amount to practically the same thing. (See 19 R. C. L. 807-10.)
The ordinance is not invalid on its face. Regulating the storage of kerosene and gasoline in the interest of public safety is clearly an exercise of the police power. (Notes, Ann. Cas. 1918 E 145; 41 L. R. A., n. s., 458.) A requirement that tanks used for that purpose shall be placed underground plainly has substantial relation to the end sought, and is not to be held unavailable merely because a court may think some other plan more economical or effective. An ordinance forbidding the use of light-weight plumbing supplies has been upheld as a public-health regulation, in spite of strong’medical evi dence that there is no relation between the two matters. (Kleinhein v. Bentley, 98 Kan. 431, 157 Pac. 1190.)
The plaintiff’s tanks and those of other oil companies in the same block are situated near a sidetrack of the Union Pacific railroad. .It was shown that five residences were within distances from the plaintiff’s tanks varying from about 100 feet to about 150, and that it was reasonably expected that other residences would be shortly built in the neighborhood.
The tanks in controversy were erected in 1907 and were purchased by. the plaintiff in 1919. Other tanks of other owners have been placed upon the same block, by permission of the city council, 1910 and 1921. The permission to place or maintain these tanks, whether given expressly or by implication, does not disable the city from afterwards requiring their removal. No unfair or oppressive treatment of the plaintiff is shown, such as in Dobbins v. Los Angeles, 195 U. S. 223, resulted in an injunction against the enforcement of an ordinance which forbade the erection of a gas works on ground where one had already been begun m reliance upon another ordinance passed only two months earlier, there having been no -change,of conditions affecting the matter. The question whether the existing or anticipated conditions and surroundings justified a change in restrictions concerning the storage of oil and gasoline in the vicinity of the plaintiff’s plant was a matter for the determination of the city council, and no bad faith or its equivalent was established.
The ordinance does not prohibit the use of the plaintiff’s lot for storing oil and gasoline; it regulates the manner of storage by requiring that the tanks shall be placed underground. It leaves nothing to the discretion or choice of the council. It therefore is not within the rule that even a legislature may not require a permit from some officer, who may refuse or grant it at his pleasure, for the doing of an otherwise lawful act. (Smith v. Hosford, 106 Kan. 363, 187 Pac. 685; Julian v. Oil Co., 112 Kan. 671, 212 Pac. 884.) Even where an ordinance in terms merely says that a certain thing shall not be done without a permit from a designated officer, it is often interpreted as meaning that the officer is to grant the permit unless in his honest judgment reasonably exercised the interest of the public will thereby be put in jeopardy, a construction rendering it unobjectionable on constitutional grounds. (Lieberman v. Van De Car, 199 U. S. 552; see, also, Wilson v. Eureka City, 173 U. S. 32.)
The plaintiff’s tanks are about ten feet in diameter and twenty feet high, resting on concrete foundations about twplve inches aboveground. At the top of each there is a fourteen-inch vent or manhole, with a steel lid on top, not fitting tight, but with an opening an eighth of an inch wide around it. One witness for the plaintiff testified:
“This vent is for the purpose of allowing the escape of vapors that arise from stored gasoline. If the pressure of the vapor in the tank becomes strong enough so that it cannot escape through that permanent vent, the lid or top of the manhole is so arranged that it rises up and enlarges the space for the escape of the vapor. These tanks have been so constructed and arranged ever since they were erected.”
He told of instances in which fires had occurred in and about tanks so equipped, without an explosion. Another of the plaintiff’s witnesses gave similar testimony, and on cross-examination was asked: “No possibility under the sun they [the vents] wouldn’t work?” He answered: “Not if they were fixed right.” The plaintiff’s evidence tended to show that because of this device its tanks are not a menace on the score of fire or explosion and are at least as safe as though placed underground. Its principal contention is that this was conclusively established and therefore the requirement of the ordinance is unnecessary and unreasonable.
In behalf of the defendants the fire chief of Robinson testified to this effect: A fire took place a few days before the trial at an oil station there, having three ordinary storage tanks on top of the ground. “They said the tanks had vents on them.” These tanks “began to explode and blow parts all around there. . . . From one of these tanks something blew out in the air. The upright tank got so hot that it bulged out and spread the seams and got a hole in it, and then they shot holes into it to let the gasoline out.”
A former deputy state fire marshal testified that in October, 1919, he in that capacity investigated and reported upon a fire at Hays the day after it occurred, in which nine people were killed and twenty-six injured by the explosion of a tank of the Standard Oil Company.
It cannot be said that the evidence conclusively established the infallibility of the device used as a preventive of explosions, or its superiority in that regard to the placing of the tanks underground. In a somewhat similar situation it has been said:
“This is a complaint brought by the plaintiff in error to enjoin the city of Hope from enforcing an ordinance that forbids the storing of petroleum, gaso line, etc., within 300 feet of any dwelling, beyond certain small quantities specified. A demurrer to the complaint was sustained by the supreme court of the state '. . . The plaintiff is engaged in the business of selling petroleum oil and gasoline, and has tanks on the right of way of a railroad in the city, which it moved to that place at the city’s request. The mode of construction is set forth, and it is alleged that an explosion is impossible, and that the presence of the tanks in no way endangers any buildings. The tanks are necessary for the business; the present position diminishes the cost of transferring oil from cars, and cannot be changed without considerable expense and a reduction of the plaintiff’s lawful profits. The plaintiff adds that it knows of no available place in the city where the tanks could be put and oil stored without violating the ordinance; that the ordinance is unnecessary and unreasonable, and that the enforcement of it will deprive the plaintiff of its property without due process of law, contrary to the fourteenth amendment of the constitution of the United States.
“A long answer is not necessary. A state may prohibit the sale of dangerous oils, even when manufactured under a patent from the United States, . . . and it may make the place where they are kept or sold a criminal nuisance, notwithstanding the fourteenth amendment. . . . The power ‘is a continuing one, and a business lawful to-day may in the future, because of the changed situation, the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good.’ . . .
“Then as to the allegation that plaintiff’s plant is safe and does not threaten the damages that led to the ordinance being passed, there are limits to the extent to which such an allegation can be accepted, even on demurrer; . . . As was well observed by the court below: ‘We may take judicial notice that disastrous explosions have occurred for which no satisfactory explanations have ever been offered. The unexpected happens.’ ” (Pierce Oil Corp. v. City of Hope, 248 U. S. 498, 499, 500.)
Complaint is made of the admission of testimony of a former deputy state fire marshal concerning details of the Hays fire and explosion of which he did not have personal knowledge. Some matters of this sort were of such character that judicial notice may perhaps be taken of them — for instance, the loss of human life, the precise number of deaths being obviously immaterial. It is not apparent that any prejudice resulted or could result from any hearsay evidence given by the witness. The trial court found that the tanks at Hays which exploded were “equipped similarly to those of the plaintiff.” It is contended that this finding is without support in the evidence and the suggestion appears to be made that it was influenced by the statements of the former deputy fire marshal made upon information only. That can hardly be the case, however, for the witness did not assume to have any information that the Hays tanks had vents, whether from his own observation or from what others told him.
The testimony tended to show that the vent was a common device, and it is doubtless rather to be presumed that the Standard Oil Company employed it than that it failed to do so. The burden of showing the ordinance to be unreasonable rested upon the plaintiff. It offered nothing to show that the Hays tanks did not have vents, and we do not understand it to assert that to be the case. While of course the proceedings in another action would not be competent evidence of a fact here in dispute, it may be mentioned that the report of the decision on appeal from a judgment against the Standard Oil Company for a death caused by the Hays explosion recites that the petition did not allege negligence in reference to the absence of a safety valve, and the evidence showed one had been in use. (Buchholz v. Standard Oil Co., 211 Mo. App. 397.)
One of the plaintiff’s witnesses, a salesman for another company, testified that the objections to burying the tanks is the expense, the difficulty of ascertaining whether there is a leakage, and the danger of a buried tank floating out, or floating off of its foundation, after a heavy rain. He said, however, that his company buried its tanks at service stations and that he had seen tanks buried that were as large as 10,000 gallons. Another company was shown to have three buried tanks in the same block where the plaintiff’s tanks are situated. If the safety of the public, in the honest judgment of the city council, reasonably exercised, requires the burying of tanks, these considerations of expense and convenience to the oil company can interpose no obstacle.
The judgment is affirmed.
Dawson, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
On the defendant’s plea of guilty he was sentenced to the penitentiary for embezzlement of money belonging to J. R. Ely. The petitioner asks his release on the ground that more than two years had elapsed between the time the warrant was issued and the time of his arrest, although he had been within the state during most of that time and the officer having the warrant knew at all times where the petitioner was, and that the latter had requested the officer to arrest, the petitioner in order that he might be brought to trial. As a. further ground for his release the petitioner shows that more than two terms of court had gone by after the issue of the warrant before the term of court at which he pleaded guilty, and that he had not consented to such-postponement. The respondent argues that the petitioner was confined in the penitentiary during most of the time after the issuance of the warrant until the arrest, and that the petitioner had not been out of the penitentiary for two. years after the warrant was issued and before the arrest was made. The respondent also urges that the petitioner cannot in a proceeding in habeas corpus raise the question of the validity of the judgment sentencing him to the penitentiary on his plea of guilty to the charge of embezzlement contained in the information filed against him. If the last proposition urged by the respondent is correct, it is unnecessary to examine any other proposition presented.
The pleas of the statute of limitations and of'former jeopardy in criminal actions are closely analogous and are governed by the same principles of law. Both are defenses, and they are defenses of the same general character. This court has had occasion to pass on the right of one convicted to present the question of former jeopardy in a proceeding in habeas corpus. In In re Gano, 90 Kan. 134, 132 Pac. 999, this court said:
“Ordinarily an error committed in overruling a plea of former jeopardy does not entitle the prisoner to a discharge in habeas corpus, but it must be corrected on appeal.” (Syl. ¶ 1.)
Qn page 135 the court used the following language:
“The petitioner is not entitled to a discharge in habeas corpus, for-two reasons. If a mistake had been made in overruling his plea of former jeopardy it could not be corrected in habeas corpus. It has been decided that if error is committed in overruling such a plea it must be corrected on appeal.”
In In re Terrill, 90 Kan. 138, 49 Pac. 158, the court said:
“Error in overruling a plea of former jeopardy, or in the matter of change of venue, cannot be considered on habeas corpus.” (Syl. ¶ 2.)
In these cases the plea of former jeopardy was interposed but not sustained. Here the plea of the statute of limitations was not interposed, but that does not change the rule; it could have been interposed, and if pleaded and not sustained the error could have been corrected on appeal if error had been committed. That plea was not interposed, and for that reason the statute was not relied on. The principle declared in the two cases cited was followed in In re Terry, 71 Kan. 362, 80 Pac. 586, and in In re Wallace, 75 Kan. 432, 89 Pac. 687. The conclusion to be drawn from these decisions of this court is that a defense in a criminal prosecution must be presented to the court on the trial of the case, and if error is committed therein the matter must be presented to the supreme court on appeal and cannot be raised in this court by habeas corpus.
No analogous case has been cited from this state involving the statute of limitations, but there are authorities to sustain the view that the question is one that must be presented on the trial and cannot be raised in an application for a writ of habeas corpus.
In 12 R. C. L. 1206, it is said that—
“Accordingly it has been held that the operation of a statute of limitations, barring a prosecution for a criminal offense, is not ground for the release of the accused on habeas corpus.”
In 29 C. J. 44- this language is found:
“The existence of a defense, which would have been good if pleaded, is not ground for habeas corpus to secure release from imprisonment under the judgment, whether such defense is in abatement or in bar, and whether the question raised is one of fact dependent upon the evidence or one of law for the court, where such defense does not go to the jurisdiction. The statute of limitations is mere matter of defense and is not a ground for discharge on habeas corpus; but there is authority to the contrary.”
Supporting the rule that the statute of limitations must be presented to the trial court are the following: United States v. Cook, 84 U. S. 168; Biddinger v. Commissioner of Police, 245 U. S. 128, 135, and Ex Parte Blake, 155 Cal. 586. It follows that the defense of the statute of limitations should have been presented to the trial court before the plea of guilty was entered.
The petitioner is remanded to the custody of the respondent to comply with the judgment of the district court. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for injury sustained by the plaintiff when jumping from one of defendant’s trains. A general verdict for plaintiff was returned by the jury; also answers to special questions. The trial court overruled a motion by defendant for a new trial, but sustained its motion for judgment on the special findings. The plaintiff appeals.
The plaintiff at the time of the injury was nineteen years old and resided in Topeka. He had gone to Barton county to work in the harvest fields. About five o’clock in the morning of July 2, 1921, he boarded one of defendant’s freight trains at Great Bend with the intention of going to Dodge City. His claim was that while he was on the train, about a mile from Great Bend, and while the train was running at about twenty miles an hour, one of the brakemen, William Louraine, approached him and demanded that he pay fifty cents or he would put him off; that he refused to pay the brakeman, whereupon the brakeman came toward him in a threatening attitude and manner, waving and motioning his hands and arms, and in a loud, angry, abusive manner ordered the plaintiff off the moving train, etc.; that, being in fear of the brakeman, he attempted to jump off the train, but fell in such manner that his leg and foot were crushed to such an extent that amputation of the foot was necessary. The jury returned a general verdict for plaintiff for $21,000 and answered special questions as follows:
“1. When Bernard Hallock got on top of a freight car and looked west and saw Carl 0. Bjorkman’s head and shoulders above the top of a box car about three cars forward on the train, was William Louraine, defendant’s brakeman, on said box car with a club in his hands? A. Yes.
“2. Did William Louraine, defendant’s brakeman, demand four bits from Carl 0. Bjorkman as he was climbing on the top of a box car about the middle of the freight train, and threaten to strike him with a club and throw him off the train if he refused to pay Louraine fifty cents? A. Yes.
“3. If you answer the foregoing question No. 2 ‘Yes,’ did William Louraine threaten to throw Carl O. Bjorkman off and wave a club at him and order him off the train while it was running fast because Bjorkman refused to pay him said four bits? A. Yes.
“4. If you find in favor of the plaintiff, please state definitely what act or acts of negligence the defendant was guilty of which caused the injury to the plaintiff. A. He, William Louraine, defendant’s brakeman, approached Bjorkman waving his club, and in a loud and abusive language ordered him from the moving train.
“5. If you find in favor of the plaintiff, please state: (a) What act or acts of willful, wanton, reckless or malicious negligence the defendant was guilty of; and (b) who was guilty of such act or acts of negligence which caused the injury to the plaintiff. A. (a) Wantonness on the part of Wm. Louraine, who approached the plaintiff waving his club in a threatening manner, ordering him from the moving train, (b) William Louraine.
“6. Did the brakeman, William Louraine, get on the locomotive as it was crossing Main street, or before it passes the freight depot in Great Bend, and remain on the locomotive until reaching Larned? A. No.
“7. Did conductor Robinson, rear brakeman Little, engineer Arnold and fireman Robohn see William Louraine get on the locomotive as it was moving between Main street and the freight house? A. No.
“8. Did William Louraine, brakeman, after getting on the locomotive at Great Bend, fire the engine for fireman Robohn from about a mile from Great Bend to Larned? A. No.
“9. If the jury find for the plaintiff, state how much actual damages you award him. A. $14,750.
“10. If the jury find for the plaintiff, and further find that he is entitled to punitive damages, state the amount you award him? A. $6,333.”
Judgment was rendered for the defendant on the theory that the brakeman had no authority to demand or collect fifty cents, and that the brakeman compelled the plaintiff to jump from the train in revenge for his refusal to pay; that the brakeman was not acting within the scope of his authority. The defendant admits that it is a part of the brakeman’s duty, on a freight train, to eject trespassers, and that, if in line of his duty in doing so, he compels one to jump from a train that is moving so rapidly as to make the act dangerous, and injuries result, the defendant would be liable. It contends, however, that the plaintiff was not ordered from the train because he was a trespasser, but solely because he would not submit to the “graft” exactions of the brakeman; that, therefore, the brakeman was not acting within the scope of his authority.
On the other hand, the plaintiff contends that it was not the demanding of the fifty cents and the refusal of the plaintiff to pay it that caused the loss of the plaintiff’s leg, but that it was the brakeman’s waving his club, his threat to strike the plaintiff with his club, and the brakeman’s threat to knock the plaintiff off the moving train.
In K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, it was said:
“Where a boy fifteen years old gets upon a freight train wrongfully, and as a trespasser, for the purpose of riding without paying his fare, and is commanded by the brakeman to jump off the train while in dangerous motion, in the night-time, and in obedience to that command, and in fear of being thrown off, jumps off the train and is run over and injured, the company is liable.” (Syl. ¶ 1. See R. R. v. Gants, 38 Kan. 620, 621, 625; R. R. v. Whipple, 39 Kan. 539, 540.)
“It is within the scope of the general authority of a brakeman on a freight train to prevent trespassers from getting on the train, and to remove such persons who wrongfully get thereon; but if in so doing he does not exercise care and caution, but acts wantonly or maliciously, and an injury results, the railroad company is liable.” (Syl. ¶ 2. See City of Wyandotte v. White, 13 Kan. 192; R. R. v. Fitzsimmons, 22 Kan. 686.)
In the opinion it was said:
“The removal of trespassers from the train was within the implied authority and became the duty of the servants in charge of the train; and the fact that in so exercising that right or duty they acted negligently and wantonly, and caused the boy to jump off the train while running at a speed unsafe for him to get off, and he was injured, will not exonerate the defendant. (Ramsden v. Boston & Albany Rld. Co., 104 Mass. 117; Higgins v. Turnpike Co., 46 N. Y. 23; N. W. Rld. Co. v. Hack, 66 Ill. 238; Kline v. C. P. Rld. Co., 37 Cal. 400.) The defendant had the right to put the boy off from its cars, and in doing so could use such force as was necessary to eject him, but in so doing must exercise the right with ordinary care and prudence on its part. And if the train was moving at such a rate of speed as to render it unsafe, and the night was dark, it must stop or slow up the train; and the mere fact that the boy was on the train as a trespasser was not such negligence as to relieve the defendant from this obligation, and gave its servants no license to negligently and wantonly eject him in a manner liable to do him great bodily harm. (Morgan v. Comm’rs of Miami Co., 27 Kan. 89.) And it could make no difference whether he was ejected by actual force or by threats, if he jumped from the train in obedience to a command of the brakeman.” (p. 657.)
Dixon v. Northern Pac. R. Co., 37 Wash. 310, was a case in which a boy of eighteen was beating his way on a freight train from Portland to Tacoma, riding the bumpers six or seven cars back of the engine. The train stopped at Centraba, and when it again was in motion and had gone about two or three hundred yards a brakeman came over the cars and asked Dixon if he had any money. Dixon replied that he had none. The brakeman swore at Dixon and told him to get off. Dixon replied that the train was going too fast to get off. The brakeman cursed Dixon and stepped on the fingers of the hand by which he was holding onto the car, forcing him to release his hold and fall, whereby Dixon’s arm was injured so that it had to be amputated. The court held that the servant was within the scope of his authority, as he did wrongfully an act that he had been authorized to do in a proper manner. In the opinion, among other things, it was said:
“It is well settled, generally, that a railroad company is responsible in damages to a trespasser for torts committed upon him by a servant who, in the commission of the tort, is acting in the line of his employment, and within the scope of his authority — not within the scope of his authority as applied to the commission of the tort, for no authority for such commission could be conferred, but within the scope of his authority to rightfully do the particular thing which he did do in a wrongful manner.” (p. 313.)
Many cases are cited in the briefs which need not be referred to here. They are on the border line or in the twilight zone, where distinctions are difficult and where different conclusions might reasonably be reached. The facts in the Kelly and Dixon cases, supra, are more like those here than are those in any of the other cases cited. In the Kelly case the brakeman asked the boy if he had any money to pay his fare; in the Dixon case the brakeman asked only if he had money. From the record presented in the instant case we are of the opinion that the brakeman did not step aside from his master’s business. He was doing an act, at the time, connected with such business and in furtherance thereof. It was a. part of his duty, in the performance of the defendant’s business, to remove trespassers from the train. The fact that he asked the plaintiff for fifty cents is not conclusive that he had abandoned his master’s business and was acting and continued to act for himself alone. The general verdict of the jury, when viewed in connection with the answers to all the special questions, and especially the fourth and fifth, indicate that at the moment of the injury complained of he was acting within the scope of his employment. The acts of negligence found by the jury to have caused the injury consisted in the brakeman’s approaching the plaintiff waving his club, and in loud, abusive language ordering the plaintiff from the moving train. Under all the circumstances it' was not proper to render judgment for the defendant.
■ The defendant moved for a new trial, among other things because the verdict was excessive, because of erroneous instructions and because of failure to give instructions requested. The defendant tried the case on the theory that the acts of the brakeman in compelling the plaintiff to jump from the train arose solely out of his attempt to exact graft from the plaintiff and in revenge because of plaintiff’s failure to respond thereto. We are of opinion, from the record presented, that the verdict was excessive and that it may have been induced by the failure of the court to give an instruction fairly setting out the defendant’s theory of alleged attempted graft by the brakeman. While the instructions requested by the defendant were not proper because they went further than fairly stating the defendant’s theory, they served to direct the court’s attention to the matter both at the time of trial and on the motion for new trial.
The judgment is reversed and the case remanded with directions to grant a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding to oust Mr. Justus N. Baird from the office of county attorney of Wyandotte county. The petition charged willful neglect of duty in respect to prosecutions for violations of the intoxicating liquor laws. This court appointed a commissioner to take the testimony and to make findings of fact and conclusions of law. The commissioner heard the evidence, concerning which there was but little controversy, and made findings of fact as follows:
“1. That the defendant, Justus N. Baird, is now and ever since the 8th day of January, 1923, has been the duly elected, qualified and acting county attorney of Wyandotte county, Kansas. That said county is one having a population of over 120,000 inhabitants.
“2. That attached to the office of said Justus N. Baird were three deputy county attorneys, styled first deputy, second deputy and criminal investigator, all appointed by him, and all provided for by law. That in addition thereto the said defendant had attached to his office prior to the 1st day of July, 1924, the period covered by this inquiry, one Harry F. Anderson and one Howard C. Anderson, styled ‘prohibition officers.’ That said Andersons carried commissions as deputy sheriffs of said county and as deputy marshals of the two city courts of Kansas City. That said Andersons drew no salary under said appointments, but in lieu of salary received for their work one-fourth each of all fees that should be allowed and paid the county attorney’s office in liquor prosecutions. This arrangement was made with Justus N. Baird and his first deputy, Harry Hayward. That prior to the term of said Baird the enforcement of the liquor laws in said county had been conducted largely, if not entirely, by an assistant attorney-general in said county, and said Andersons had worked under said assistant attorney-general in liquor cases, being paid from out of the attorney’s fees allowed the then assistant attorney-general at that time. They had been engaged as prohibition officers in said county for a number of years.
“3. Cases involving liquor laws were during the term of said Baird almost entirely, if not entirely, attended to by said first deputy, Harry Hayward. It does not appear from the evidence that said Baird ever gave his personal attention to liquor cases or complaints regarding same, or that his attention was ever directed to any actual or claimed neglect or misconduct of his said deputy therein.
“4. That during the term of said Baird and up to the time covered by the complaint, July 1, 1924, there had been 180 convictions or pleas of guilty on liquor charges in said county, and attorney fees were collected in practically all of said cases. That 42 of said cases had been in the district court, 72 in the North Side city court and 66 in the south side city court, and in said cases were collected attorney fees as follows:
42 cases in district court ............................. $1,975.00
72 cases in north side city court...................... 2,325.00
66 cases in south side city court...................... 2,284.20
$6,584.20
These fees were drawn from the respective courts by said Harry Hayward, deputy county attorney, and by said Andersons, and then said Hayward sometimes presenting them first to said Baird to be indorsed by him. Said Andersons each received 25 per cent of all said fees. There is no evidence as to how the other 50 per cent of said fees were divided, if at all, among the force in the county attorney’s office.
“5: Of the 42 district court cases 27 were disposed of prior to July 1, 1923, and 15 thereafter. Practically all of the city court cases were handled after July 1, 1923. In the district court cases a total of 152 months in jail sentences were imposed and a total of $9,000 in fines assessed, and of the fines so assessed $1,415 were paid. I am unable to state from the evidence the total of time served by those sentenced, for the reason that exhibit 6, the jail record, does not check with exhibit 2, the record of district court cases. Some few served their sentences in full, but most of the defendants were paroled on payment of costs, or fine and costs, either at the time of sentence or after having served a part thereof. There is no evidence that the county attorney or his office recommended these paroles.
“6. In the 138 cases in the two city courts a total of 254 months in jail sentences were imposed and a total of $24,000 in fines assessed, and none of these fines were collected and only about five of the defendants actually served time on their sentences. All the other defendants appealed their cases to the district court, but at the time of taking appeal, sometimes shortly thereafter, they would pay into the city court the costs, including the attorney’s fees. None of the cases were tried on appeal, but, the defendants failing to appear in the district court, the appeals would be dismissed, and the clerk of the district court would remand the case to the city cofirt from which the appeals were taken. Nothing was done in the city courts looking to the putting of these sentences into execution, as the law requires, when these cases were remanded. The clerk of the district court did not always send a separate mandate in each case, but often would send one mandate covering a number of cases, and sometimes such mandate would not be under seal. Such irregularities do not appear to have been called to the attention of the county attorney’s office. The conduct of these other officers is not here in question. There is no showing that the defendant, Justus N. Baird, had personal knowledge or actual notice of such irregularities, or of the fact that such sentences were not being put into execution.
“7. There were a number of other charges made in the petition against the defendant, but there was no evidence offered in support of such other charges.”
It was the conclusion of the commissioner that the defendant had not knowingly, intentionally or willfully violated any law of the state of Kansas and that he should not be ousted from his office.
The state moved to substitute findings of fact and conclusions of law, which was in effect a motion to modify the sixth finding of fact by stricking out the last three sentences therein and substituting the following:
“The above action was taken with reference to all of the cases that were brought against violators of the prohibitory statutes of Kansas in Wyandotte county during 1923 and up to July 1, 1924. A large portion of the work of the county attorney’s office consisted of prosecution of violators of the prohibitory statutes of Kansas. This action constituted a general scheme and plan on the part of the county attorney and the attaches of his office to permit violators of the prohibitory law to escape any further punishment than the payment of fees provided by law to the county attorney. This practice was so general that the county attorney is charged with knowledge of it. The county attorney connived and condoned with his deputies and employees to permit the existence and following out of the plan described herein.”
And to substitute conclusions of law (among others) that it is the duty of the county attorney’s office to take charge of each stage of the proceedings in a criminal case until the sentence imposed upon defendant -has been executed by payment of fine imposed and by commitment to the county jail; that the practice described in the above findings in this case is an unlawful manner of handling the prosecution of violators of the criminal statutes of this state; that the defendant willfully neglected to perform his duty as county attorney when he permitted and allowed the practice described herein to exist in Wyandotte county, Kansas, and that the defendant should be ousted from his office.
The proceeding is before us for final decision.
Since the district courts have power to grant paroles in liquor cases which are brought and convictions obtained in .the district courts (R. S. 62-2201, 62-2202), and since the evidence does not disclose that .the defendant had anything to do with the paroles granted by the judges of the district court, there can be no criticism of the defendant because such paroles were granted. Hence, this question need not be further considered.
„ The serious question in this case arises over the cases from the city courts. There is evidence that the judge of one of the city courts questioned the right of a person, convicted of the violation of the liquor law in his court and who had paid the costs, to then appeal his case to the district court, and questioned his own authority to approve an appeal bond under such circumstances, and on December 21, 1923, he wrote the attorney-general as follows:
“In the past sixty or ninety days it has been the practice in the handling of liquor cases in the city courts of Kansas City, Kansas, and particularly the city court, first district, to hear the testimony of the state witness, and of course when the defendant offered no testimony, to find the defendant guilty on the various counts charged in the complaint and warrant, except such counts as are dismissed at the request of the county attorney. I have been permitting the defendant, by and with the consent of his attorney and the county attorney, to pay the costs in the city court, which, as you know, includes $25 attorney’s fee on each count upon which the defendant is convicted, and then approve an appeal bond offered by the defendant, appealing from the fine and sentence. It has been a serious question in my mind as to whether this was permissible ^nd my conduct has been criticised by reason thereof. It is my desire to comply with the law strictly in these matters and for this reason I desire your opinion thereon.”
The attorney-general replied as follows:
“I have your letter of the 21st of December, desiring to know if you as - judge should approve an appeal bond in a case where a defendant has been convicted in your court and has paid the costs assessed against him. I see no reason why a defendant should not appeal even though he has paid the costs assessed against him. The requirements of the appeal must be complied with. Also the appeal must be prosecuted by the defendant in due course. The bond on. appeal should be a sufficient bond and the surety thereon should be good for the amount of the bond beyond any question.”
The evidence does not disclose whether defendant was advised of this correspondence. Without passing on the correctness, from a legal viewpoint, of the advice of the attorney-general, the correspondence did inform him of the practice of taking appeals in that class of cases after the payment of costs and he saw no objection to it. So we pass the question of the appeals being taken, with the consent of the county attorney, after the payment of costs which included his fee. When the cases reached the district court, the defendants did not appear for trial and the county attorney moved to dismiss the appeals, which motions were sustained. There can be no criticism of this defendant for that action; it was a proper procedure on his part. .(17 C. J. 192.)
After that was done, the activity of the county attorney in these cases ceased; he paid no further attention to them. When the appeals were dismissed the clerk of the district court remanded each case to the city court from which the appeal was taken, as the statute requires (R. S. 61-1005). The clerk of the city court did not deliver to the sheriff a transcript of the entry of conviction and sentence, as the statute requires (R. S. 62-1517). The defendants were not called upon to pay their fines nor to serve their jail sentences. No suits were brought upon their appeal bonds. The result is that in 138 cases in which there were convictions of violations of the liquor law in the city courts, and in which costs, including county attorney’s fees aggregating $4,609.20, were paid and in which appeals to the district court were taken and dismissed within the twelve months prior to July 1, 1924, and in which fines aggregating $24,000 were assessed, and jail sentences aggregating 254 months imposed, none of the fines assessed were collected, and not more than five of the defendants served any time in jail. The question presented is: Does the failure of the county attorney to follow these cases up after the appeals were dismissed, and to use reasonable efforts to see that the fines were collected and the jail sentences served, and if that could not be done, to bring proper suits upon the appeal bonds, constitute such willful neglect of duty enjoined upon him by the laws of the state (R. S. 60-1609) as to justify an order of ouster from office? The answer must be in the affirmative.
It is contended by defendant that his duties end when the final judgment of conviction is obtained, and that it is no part of his duty to see that the judgment is carried out; that by statute it is made the duty of the clerk of the court to issue the commitment and of the sheriff to serve it.
The state contends that it is a part of the general duty of the county attorney, as the prosecuting officer of his county, to give attention to a criminal case after judgment to see that the judgment of the court is carried into effect; that this is as much a part of his duty as obtaining the conviction and sentence; that the effect of the prosecution is largely nullified if the sentences imposed are not carried into effect, and that when this duty is neglected uniformly in a large number of cases and covering a long period .of time it shows willful neglect of duty.
In 18 C. J. 1316, the rule is thus stated:
“The duty of prosecuting does not end with judgment. The prosecuting attorney must cause to be issued all process necessary to carry into execution the judgment of the court.”
To the same effect is 32 Cyc. 714, 715, and 22 R. C. L. 102.
This is the rule applied to the duties of a district attorney under the federal procedure. In The Levy Court of Washington v. Ringgold, 5 Pet. 450, it is held:
“The district attorney is specially charged with the prosecution of all delinquents for crimes and offenses; and these duties do not end with the judgment or order of the court. He is bound to provide the marshal with all necessary process to carry into execution the judgment of the court. This falls within his general superintending authority over the prosecution.”
In Matter of Lewis v. Carter, 220 N. Y. 8, it is held:
“It is a part of the prosecution for crime, within the statutory duty of the district attorney, tp institute and enforce in the courts any proceeding or means authorized by law for the restoration and enforcement of a judgment of conviction obtained by him.”
The opinion, after discussing the duty of the attorney-general under the English and Colonial practice and of the district attorney under the state law, says the duties have been incorporated in the statute reading as follows:
“It shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed.” (p. 14.)
The opinion continues:
“A prosecution for crime, within the meaning of this statutory language, includes accomplishing the imposition of the punishment. All. the means provided by the law to bring conviction, sentence and the adjudged punish ment to a criminal offender constitute the prosecution for the crime committed by him. It is a part of the prosecution to effect the delivery of the convicted person to the prison authorities, in accordance with the judgment of conviction. In case the sheriff of Kings county had, in the case here, in violation of the statute (Code of Criminal Procedure, section 489), refused or neglected to enter upon the execution of the judgment, by delivering ‘a copy of the entry of the judgment upon the minutes of the court, together with the body of the defendant, to the keeper of the prison,’ the district attorney would have been bound, by virtue of the statutory duty ‘to conduct all prosecutions for crimes’ to invoke the process of the law commanding and compelling performance on the part of the sheriff. The assertion by the sheriff or defendant that the official interest and jurisdiction of the district attorney were consumed and extinguished by the trial, verdict and final judgment would, apparently, be .ill-founded and factitious. It seems certain and manifest that * a prosecution for a crime includes the induction of the convicted offender into his adjudged punishment.” (p. 15.)
It will be noted that the New York statute construed in the above • case is in effect very much like our statute which reads:
“It shall be the duty of the county attorney to appear in the several courts of their respective counties and prosecute or defend on behalf of the people all suits, applications or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested.” (R. S. 19-702.)
This statute was enacted in the early history of our state and generally speaking it has been the practice of county attorneys in this state to take such, measures as might be necessary in order to have carried into effect the sentences of courts in criminal cases as well as to prosecute actions upon bonds given in criminal cases, when liability has accrued thereon. Their right or duty to do so appears never to have been heretofore questioned in this court, and we regard it as strange that any county attorney in this state should ever conceive it not to be his duty.
By R. S. 21-2125 it is provided that it shall be the duty of the county attorney to diligently prosecute any and all persons violating any provision of the prohibitory liquor law in their respective counties and to bring suit on all bonds or recognizances forfeited, immediately after the happening of such forfeiture.
And by R, S. 62-1225 it is provided, when a defendant gives an appearance bond and fails to appear, the prosecuting attorney may at any time after the adjournment of court proceed by action against the bail upon the recognizance.
And R. S. 62-1707, pertaining to appeal bonds, provides that upon default of any of the conditions of the appeal bond and the failure to pay the amount thereof upon demand, a cause of action shall accrue against the bondsmen and the county attorney shall immediately commence suit against them for the collection of the amount claimed to be due.
So it was clearly the duty of the county attorney under the statute to bring suits upon the appeal bonds after the appeals were dismissed, if the defendant could not be apprehended. No effort was made by the defendant to perform that duty.
It is argued on behalf of defendant that the county attorney is not liable for the action of his deputies, but this argument has no place in this case for the reason that there is no showing made that any deputy of defendant was ever assigned the duty of seeing that the sentences of the court were carried into effect and, if that could not be' done, to bring suit upon the appeal bonds. These duties are imposed by law upon the county attorney and while he might delegate them to some deputy in his office, for it was not possible for him personally to perform all the duties pertaining to his office, he could not neglect them entirely. To say that he could do so with impunity would destroy the machinery which the statutes establish for the effective prosecution of crime.
It necessarily follows that judgment should be entered for the plaintiff ousting the defendant from the office of county attorney of Wyandotte county. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of replevin by a trustee in bankruptcy to recover money and property in the hands of a trustee to whom the bankrupt transferred his property for the benefit of creditors. Plaintiff recovered, and the trustee for creditors appeals.
Klag filed a voluntary petition in bankruptcy. Pursuant to negotiation with some of his creditors, he executed and delivered a deed of assignment of all his property, real and personal, to Koeneke, as trustee for the benefit of creditors. The deed recited acceptance of the trust, was signed by Koeneke, w¡as duly recorded, and the bankruptcy proceeding was dismissed. After the deed was recorded the statute relating to assignment for benefit of creditors was not observed, but Koeneke took steps for protection of the estate, and when the action was commenced had received $1,597.96, had disbursed $1,072.60, and still had in his possession property described in the deed. More than four months after the deed had been recorded a second voluntary bankruptcy proceeding was commenced, in which plaintiff was appointed trustee. The district court found the trust deed was made in good faith, and became operative and binding as a conveyance, but held the trustee in bankruptcy was entitled to recover from the trustee for creditors the unexpended balance and the property in the latter’s hands. The trustee for creditors appeals from the judgment vesting possession of the estate in the trustee in bankruptcy, and the latter notes a cross-appeal from the following conclusion of law stated by the court:
“The bankruptcy proceedings under which plaintiff was appointed as trustee having been instituted more than four months subsequent to the execution and record of the deed of assignment, the assignment was valid and binding, and whatever was done under its provisions down to the date of filing the petition in bankruptcy on the 23d day of December, 1921, was likewise valid and binding. . . .”
The trustee for creditors alleged in his ansjver that the deed did not effect a statutory assignment for benefit of creditors, but was a plain trust deed for the benefit of creditors, and that Klag filed the second petition in bankruptcy in a belated effort to defeat execution of the trust. The deed will be regarded here as the district court seems to have regarded it, and the resúlt is, two questions are presented: Was the assignment for benefit of creditors valid at all as against the trustee in bankruptcy, and if it was valid, is he entitled to possession of the estate now in the hands of the assignee?
The characterstic feature of an assignment for benefit of creditors is that it creates a trust. All the debtor’s property is transferred to a trustee, for benefit of all his creditors. Authority of the district court of the proper county attaches when the trust is created (Blair v. Anderson, 61 Kan. 374, 59 Pac. 644) • and, as in other cases of trust, the court will not permit the trust to fail. Creation of the trust belongs in one category, execution of it in another, and nonobservance of statutory requirements subsequent to valid creation will not defeat the trust.
The trustee in bankruptcy makes much of the fact that the assignee gave no bond. His omission did not defeat the assignment (5 C. J. 1198). If he were not responsible for the amount of the property, the court had authority to appoint a receiver (R. S. 60-1342), and had authority to cite him to show cause why he should not be removed for failure to give bond (R. S. 60-1329). On return of the citation, the court had authority to require him to give bond or suffer dismissal. The same procedure applies for failure to file an inventory. Creditors for whose benefit the trust was created may insist that the trust be administered according to the statute, but the trust itself is not nullified by departing from the statutory procedure.
Plaintiff cites the case of Dudley v. Whiting, 10 Kan. 47, in which the court held a voluntary assignment for benefit of creditors'was void because the assignee did not give bond before he took possession. That case was decided under the act of 1860 (Compiled Laws 1862, ch. XIV), which expressly provided that a voluntary conveyance with a view to insolvency should be void unless the assignee should give bond before taking upon himself execution of the trust.
The distinction between creation and administration of a trust for benefit of creditors may be illustrated by considering the provisions of R. S. 60-1343. The trustee named in a deed of assignment is a temporary appointee only. His authority is limited to control and safe-keeping of the property until the creditors select a permanent assignee. He may do whatever is necessary to protect their interests (Chapin v. Jenkins, 50 Kan. 385, 392, 393, 31 Pac. 1084), but manifestly he could not defeat the trust itself by either omission or misconduct. In this instance, the court found that the assignee has acted in good faith, and that, except for payment of costs of the first bankruptcy proceeding and attorney fees — of which nobody complains — his expenditures have been necessary for protection of the estate. If this were not so, the assingment would not be invalid merely because the assignee transcended or abused his power. As indicated above, the primary test to be applied in determining whether an instrument is an assignment for benefit of creditors is, does it create a trust for creditors? (Dry Goods Co. v. Carson, 59 Kan. 295, 298, 52 Pac. 880) and the following observations of the court are as pertinent to good-faith assignments for benefit of creditors as to ordinary trust deeds for payment of debts:
“In dealing with trusts of this character, courts will not allow the trust to fail or to be defeated, by the refusal or neglect of the trustee to execute the same; nor for any act or omission of the trustee; nor even for want of a trustee. . . . Trust deeds for the payment of debts have always been favorably regarded in equity, and they will be supported, if possible, notwithstanding any informality which might have invalidated them at law. As far as possible the intention of the parties is to be pursued, and the general object and purpose of the trust will be carried out. No technical construction will be permitted to defeat the interests of the beneficiaries, nor can the trustee after having accepted the trust defeat the same by his own act.” Jamison, Trustee, v. Bancroft, 20 Kan. 169, 183, 184.)
The finding of the court that the trust was properly created is not disputed. The trust deed was executed in good faith, and all the formalities of the statute were observed except one. No schedule of liabilities was filed by the assignor on the day the deed was executed, as R. S. 60-1342 requires. In harmony with the weight of authority (5 C. J. 1125), this court has held that the statute is directory, and that omission of the assignor to file the schedule does not impair validity of the assignment itself or affect the passing of title to the trustee.
“The language of the statute plainly shows that the legislature contemplated that the assignment should be first made. Under the common law, a schedule or inventory was not necessary to the validity of the assignment, and for many years no such schedule was required in Kansas, and, in the absence of prohibitory provisions in the statute, it would seem that the- deed would become operative as a transfer of the property when it was made and recorded. That instrument, if made in good faith, gives title to the assignee, who is not affected by the failure of the assignor to perform other duties which the law requires him to do after the assignment is made. The requirement of a schedule is mainly for the benefit of the creditors, and to enable the clerk of the district court to notify them, so that they may meet within thirty days after the making of the assignment and choose a regular assignee. The matter of the assignment is within the control of the district court, and any duty omitted may be enforced.” (Blair v. Anderson, 61 Kan. 374, 376, 59 Pac. 644.)
This being true, the district court’s conclusion that the assignment was valid and binding was correct, and the cross-appeal of the plaintiff is not well grounded.
Under section 70a of the federal bankruptcy act, the trustee in bankruptcy takes the title of the bankrupt as of the date of the adjudication. In this case, legal title of the bankrupt passed from him completely and irrevocably when the assignment for benefit of creditors became operative, and, while execution’ of the deed was an act of bankruptcy, the act was unavailable to the trustee in bankruptcy because the deed was recorded more than four months before the petition was filed. The only interest the bankrupt had in the property after his deed was filed was the remote equitable interest contingent upon existence of a surplus after execution of the trust. This interest the trustee in bankruptcy acquired, but no more. It does not entitle him to possession of assets in the hands of the assignee. (7 C. J. 169 et seq.; In re Shinn, 185 Fed. 990.)
Under section 70e of the bankruptcy act, the trustee in bankruptcy may avoid any transfer made by the bankrupt which creditors might have avoided. The trustee may not, however, avoid a transfer valid as to creditors under the state law, and the transfer under consideration was valid. The trust deed was executed and the first bankruptcy proceeding was dismissed pursuant to negotiation, between Klag and some of his creditors. A list of those creditors was attached to the deed of assignment, and the recording of the trust deed was notice to all creditors. It does not appear that any of them are dissatisfied with the conduct of the trustee for creditors. If any of fhem should become dissatisfied, their sole remedy is by proceedings in the state court to effectuate the assignment for benefit of creditors.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the trustee for creditors. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one in injunction to prevent the sheriff from selling property under an execution. The defendants appeal from an order overruling their demurrer to plaintiff’s petition.
Herman Baumgarten and M. H. Broschinski were partners operating the Golden Belt Garage. They sold a Dodge car to the defendant Harding, taking his note in payment therefor. They later sold and indorsed the note to the Goodland State Bank, which after-wards sued Harding, Baumgarten and Broschinski, against whom it procured judgment. Execution was levied against Harding, who paid the judgment. Harding then sought contribution from Baumgarten. He procured an execution to be issued against Baumgarten in the case in which'the Goodland State Bank was plaintiff. To enjoin the levy of such execution Baumgarten brought this action. His petition sets out that Baumgarten and Broschinski were indorsers on the note and secondarily liable, while Harding was the principal; that judgment was rendered against Harding for the full amount of the note; that a motion for new trial, filed by Harding, was withdrawn; that Harding paid the full amount of the judgment and thereby discharged it; that payment of the judgment was payment and satisfaction of the note sued on, and that Baumgarten was in no wise indebted to defendant Harding. A general demurrer by Harding and the sheriff to the petition was overruled and they bring the case here.
The defendants contend that in the original action filed by the bank there was no showing that Baumgarten and Broschinski-were liable only as indorsers, and that Harding, having paid the judgment, was entitled to contribution; that the original judgment in favor of the bank says nothing definite about the parties being principal and surety, or indorsers, or any other relation, except that of obligors, and that the question as to whether or not one of these parties is a surety is a question not yet judiciously determined. In support of this contention they cite cases where a surety, having paid an obligation, was held entitled to recover from his principal. The authorities cited appear to have no application to the facts in the instant case. The defendants say that the relation of the plaintiff and the defendant Harding has not been judiciously determined; that there was no judicial finding that the plaintiff was secondarily liable. If this contention is correct it appears that there should be a determination of that fact. The plaintiff Baumgarten was entitled to have that matter determined in the original action filed by the bank. Since it was not determined there, the court may determine such action in the present case. The defendants cite Emery v. Bank, 97 Kan. 231, 155 Pac. 34, as supporting their theory that the present action will not lie. In that case one of the defendants sought to have an adjudication that he signed a note as surety only. The plaintiff took issue with him, which issue was decided in favor of the plaintiff, and from which decision the defendant did not appeal. When execution was later levied by the plaintiff against his property he sought, by injunction, to restrain the plaintiff from levying the execution. It was held by this court that the defendant was not entitled to have the matter reconsidered and redetermined in another action. It was said in the opinion:
“When a final judgment is rendered it is ordinarily the end of the litigation as far as the plaintiff is concerned, but, of course, questions may arise between the defendants as to their relations to the obligation and their relative liability.” (p. 233.)
One who is secondarily liable on a note is discharged from liability by a release of the principal debtor by any act which discharges the instrument, whether by payment of the instrument itself of judgment in which the instrument has been merged, unless the holder’s right of recourse against him who is secondarily liable is expressly reserved. (R. S. 52-902.)
The petition in the instant case alleged that the defendant Harding was primarily liable on the note in question; that the plaintiff was secondarily liable; that judgment had been duly rendered against the defendant Harding on the note, and that he had fully paid and satisfied the judgment. 'The petition stated a cause of action and the demurrer was properly overruled.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.;
The action was one to recover possession of a note and mortgage. Plaintiff prevailed and defendants appeal.
The plaintiff and E. A. Hood were executors of the estate of Ellen E. Little, deceased. Hood was the cashier of the Greenleaf State Bank, of Greenleaf, Kan. The plaintiff was a farmer living about thirty miles therefrom. Ellen E. Little at the time-of her death owned a note and mortgage given by Margaret Hoover in the sum of $1,000. This note and mortgage, as a part of the assets of the Ellen E. Little estate., came into the hands of her executors. For convenience it was kept at the Greenleaf State Bank.
The defendants, William Christenson and Sophia Christenson, were brother and sister, residing on a farm near Greenleaf. They conducted their business at the Greenleaf State Bank, where they had a safety-deposit box in which they kept papers and securities. There were two keys to the box, one in the possession of the Christen-sons, the other in the possession of the bank. A note and mortgage in the sum of $1,500, payable to William Christenson, executed by ■ one Mehrman, was kept by the Christensons in their box. On July 14, 1921, Mehrman paid this note, together with $37.50 accrued interest, to Hood. Hood placed $537.50 of the amount to the credit of the Christenson account and made out a deposit slip for $1,000 for the estate of Ellen E. Little. In accordance with such deposit slip, the bookkeeper entered a credit of $1,000 to the account of the Ellen E. Little estate on the books of the bank. In January, 1922, Hood died, and an examination of the affairs of the Ellen E. Little estate disclosed a shortage of over $5,000 in addition to the Hoover note and mortgage. Shortly thereafter the Christensons found in their safety-deposit box the Hoover note and mortgage of $1,000. It bore this indorsement: “Pay to the order of William Christenson without recourse. Estate of Ellen E. Little, by E. A. Hood, executor.” Attached to the mortgage was a purported assignment, which, however, was not acknowledged by Mr. Hood. The finding by the Christensons of the Hoover note and mortgage in their safety-deposit box was their first knowledge of the existence of such instruments.
Rossman, the remaining executor, sought to recover the note and mortgage. The controversy, therefore, involves the right and authority of Hood, as executor, to dispose of them without the knowledge or consent of his coexecutor and without an order of the probate court.
The defendants contend that, from the time the two executors qualified until Hood’s death, Hood had full charge of all the personal property, and full power and authority to sell and dispose of it without consulting his coexecutor. In support of this contention they cite the general rule “That several coadministrators or coexecutors are, in law, but one person representing the testator, and acts done by one in reference to the administration of the testator’s goods are deemed the acts of all, inasmuch as they have a joint and entire authority over the whole property belonging to the estate” (11 R. C. L. 405), and that, “One of two or more executors possess the power of selling and disposing of the personal assets of the estate as fully as if all joined in the act of transfer” (18 Cyc. 1332). They also argue that the presumption of regularity of official acts applies to an executor, and that it must be presumed that Hood’s acts were in all respects regular.
The theory of the defendants must fail. The attempted sale or transfer was not made in conformity with the procedure laid down by the statute. R. S. 22-603 reads:
“The sale of personal property shall be made at public sale, after at least two weeks’ notice having been given in some newspaper in general circulation throughout the county, or by advertisement set up in at least five public places in the county where such sale is to take place. When the interest of the estate requires it, the probate court may order the executor or administrator to dispose of said personal property at private sale at not less than three-fourths of its appraised value.”
The records of the probate court disclosed no order authorizing the sale, transfer or assignment of the note and mortgage in question. The probate judge testified that he had been in office since January, 1921; that the annual report of the executors, Rossman and Hood, was filed June 20,1921; that he (the probate judge) had never made an order authorizing the executor to sell or assign the mortgage. According to the records of the bank, the Mehrman note was paid on July 14,1921. The facts not only fail to disclose a sale, but clearly show that there was no authorized or valid sale. To have made a private sale of the, note and mortgage would have required an order of the probate court. None was made. On the other hand, the evidence not only disclosed no public sale, but dispels any conclusion that there could have been one. The Christensons had no knowledge of the note and mortgage being in their box until after Hood’s death, in January, 1922, six months after the payment of the Mehrman note, and after the date of the alleged assignment of the Hoover mortgage to them. Any attempted sale to them, then, must have been by Hood, acting as their agent. Hood, as executor of the Ellen E. Little estate, was without power to sell the property to himself as agent of the Christensons. He could not act as both seller and buyer either in his personal or representative capacity. (6 R. C. L. 592,13 C. J. 261.)
While the books of the bank showed a deposit of $1,000 to the Ellen E. Little estate on the day the Mehrman note was paid and the alleged assignment was executed, the estate actually got no money. The entry on the books of the bank was a paper entry only. What happened is perfectly apparent. Hood was cashier of the bank. He had a key to the safety-deposit box of the Christensons. He was executor of the estate of Ellen E. Little. When $1,537.50 was paid on the Mehrman note he put $537.50 of the amount to the credit of the Christensons. He made the records of the bank show a payment of the balance of the $1,000 to the estate of Ellen E. Little, but the estate did not receive it. What became of the $1,000 is not shown. Whether he actually put the Hoover note and mortgage in the Christensons’ box at that time, or later, is of no moment. The attempted transfer and assignment, whenever made, was invalid. Under all the circumstances, the plaintiff, who 'is the remaining executor of the Ellen E. Little estate, is entitled to the possession of the note and mortgage.
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The opinion of the court was delivered by
Burch, J.:
The question presented for decision reduces to this: May an appeal from an order denying judgment on findings of fact in a workmen’s compensation case be considered when the findings have been vacated by a final order granting a new trial?
Plaintiffs, as dependents of Lorenzo T. Bowman, deceased, sued defendant for compensation under the workmen’s compensation act. The jury returned findings of fact covering contested issues. On January 29, 1923, and in due time, defendant filed three motions: One to set aside specified findings, one for judgment on the findings and one for a new trial on all the statutory grounds. On the same day plaintiffs filed a motion for judgment in their favor on the findings. On April 7 the court denied the motions for judgment, and sustained, generally, the motion for new trial. The specific findings which defendant attacked necessarily fell when the new trial was granted, and no attention was given to the motion to set aside those findings. On August 31 plaintiffs appealed from the order granting a new trial and from the order denying their motion for judgment on the findings. On October 2 defendant appealed from the order denying its motion for judgment on the findings. Plaintiffs present to this court no assignment of error relating to the order granting a new trial. They simply say they should have had judgment on the findings. Defendant presses its cross-appeal only in the event this court should deem it proper to determine what judgment should be rendered on the findings.
The order granting a new trial vacated the findings, and as the case now stands the facts upon which judgment must rest have not been established. Until that order is demonstrated to be erroneous and the findings of fact are thereby restored to potency, it is immaterial what judgment the court ought to have rendered if it had been satisfied with the findings. Because the court was not satisfied with the findings it set them aside. Nobody complains of the ruling, and there must be a new trial.
Plaintiffs say when defendant appealed it waived benefit of the order granting a new trial, and joined issue with plaintiffs on the subject of what judgment should be rendered on the findings of fact. Defendant could not, by waiver, or even by agreement with plaintiffs, affect the validity or finality of the order awarding a new trial. The district court alone could set aside that order; and so long as the order stands, what judgment might have been proper if the order had not been made may be a subject for mock court mooting, but not for adjudication.
This court has appellate jurisdiction to what end? To correct errors committed by the district court. It does not appear that the district court committed error in setting aside the findings. Yet plaintiffs would have this court reverse the judgment of the district court and direct it to enter judgment on findings of fact which it disapproved, and which, for all purposes of the law, are now nonexistent. This court has emphasized on numerous occasions the duty of a district court to set aside a verdict which it disapproves, or findings which might be the basis of judgment and which it disapproves, and no judgment can be directed upon a verdict or upon findings which the district court has rightfully disapproved. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108; White v. Railway Co., 91 Kan. 526, 138 Pac. 589; Swan v. Salt Co., 86 Kan. 260, 119 Pac. 871; Stanley v. Railway Co., 88 Kan. 84, 91, 127 Pac. 620; Warner v. Snook, 102 Kan. 814, 816, 172 Pac. 521.
In Swan v. Salt Company the court said:
“Regarded as a verdict, the findings are subject to the same rule as a general verdict — if they are challenged as against the evidence, they cannot be made the basis of a judgment until they have been approved by the trial court. Here the plaintiff challenged them upon that ground and the court refused to approve them. Therefore no judgment can be directed upon them.” (p. 262.)
Plaintiffs say they abandoned their appeal from the order granting a new trial because defendant appealed from the order denying judgment in its favor, and so joined issue with plaintiffs on the subject of who should receive judgment on the findings. Presumably, plaintiffs’ appeal from the order granting a new trial was taken with the serious purpose of preventing a new trial. If so, defendant was privileged to protect itself accordingly. Defendant could not complain of an order which it induced. If a new trial were prevented by plaintiffs, and the case should stand for judgment one way or the other on the findings of fact, defendant could still have the benefit of its motion for judgment by appealing from the order denying the motion. When the cross-appeal was filed plaintiffs were at liberty to press or abandon such portion of their own appeal as they chose, and if, in view of the cross-appeal, they chose to abandon their appeal from the order granting a new trial, and so cut the ground from under both the appeal and the cross-appeal, the choice was their own, and blame for it may not be charged upon defendant. Besides that, the counter abstract discloses that plaintiffs lost nothing by abandoning the appeal from the order granting a new trial. The district court was evidently of the opinion the findings did not afford a basis for substantial justice between the parties, and in such cases this court does not interfere.
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The opinion of the court was delivered by
Mason, J.:
In 1918 C. S. and Fred G. Hager entered into a con- - tract with William T. Hale for the purchase from him, for $55,500, of rights with respect to a vulcanizing compound of his invention, for which he had applied for a patent. In payment they gave him $8,500 in cash, and each executed to him his notes, two for $5,000 each and one for $16,000. The notes signed by Fred G. Hager were transferred by indorsement to George H. Burr, and those signed by C. S. Hager to W. E. Bradley.
The Hagers brought this action against Hale for the rescission of the contract on the ground that it was entered into on his part in violation of the statute regulating the sale of patent rights. (R. S. 57-101 to 57-103.) On January 19, 1921, judgment was rendered, which was affirmed on appeal (Hager v. Hale, 110 Kan. 507, 204 Pac. 529), for the recovery by the plaintiffs of the cash paid and also of the amount of the notes (because of their having been transferred) , with a provision that if any of them should be “finally defeated or canceled” in the hands of the new holders, the judgment should be credited and reduced to that extent. Suits on these notes were pending at the time, one brought by Bradley against C. S. Hager for $26,000 and the other by Burr against Fred G. Hager for a like amount. The former resulted in a judgment, from which no appeal was taken, canceling the notes held by Bradley, who was held not to be an innocent holder. The judgment against Hale was in effect credited with the amount of these notes, and no material controversy now exists with respect to them between the parties to this proceeding. After the affirmance of the judgment against Hale it was adjudged in the action brought by Burr that he was not an innocent holder, and cancellation of the notes held by him was decreed. He appealed from that judgment, and his appeal, by virtue of a stipulation between him and the Hagers, made June 27, 1923, was dismissed on the next day. The present controversy is as to the effect of this dismissal. Hale contends that it left in full force the judgment canceling the notes sued on by Burr, and entitled Hale to a further credit of $26,000 upon the judgment rendered against him in favor of the Hagers, reducing his liability to $3,500 (and interest), the amount of cash he had received from them in the patent-right sale. The Hagers contend that because the appeal in the Burr case was dismissed in pursuance of a compromise between Burr and the Hagers, by which Burr was to receive and did receive (by assignment to him of the certificate of purchase of the realty sold in execution as mentioned in the next paragraph hereof) $18,000 in settlement of his claims involved in that litigation, the judgment against Hale was thereby reduced only by the difference between the full amount of the notes held by Burr — $26,000—and the sum received by him in the adjustment that was made.
In May, 1923, an alias execution was issued upon the judgment against Hale, being limited by its recitals to the part based on the $3,500 cash payment and the $26,000 of notes which had been transferred to Burr. On this judgment real estate was levied upon, which was sold June 18, 1923, to the Hagers on their bid of $18,000. This sale was confirmed June 27, 1923, and the present proceeding is an appeal by Hale from the orders of the district court confirming the sale, and overruling motions made by him to set it aside, to direct the Hagers to pay to the sheriff the amount of their bid at the sheriff’s sale, and to credit the judgment against him with the full amount of the.notes that were transferred to Burr.
A sheriff’s sale of the real estate was made March 31, 1923, upon an earlier execution, but as this sale was set aside we do not regard it as affecting the questions under consideration. A stipulation for the dismissal of the Burr appeal upon the payment of $18,000 was entered into before that already referred to, but this is likewise regarded as immaterial because there was evidence that the dismissal was made in pursuance of the second stipulation.
The appellant contends that inasmuch as the judgment rendered against him contained a provision that it should be reduced by the amount of any notes he had received from the Hagers which should be “finally defeated or canceled,” it should have been credited with the full amount of the notes which were transferred to Burr, because in an action between Burr and Fred G. Hager (their maker) a decree had been rendered canceling them; that this judgment was final; that its finality was not affected by the appeal taken from it; that when the appeal was dismissed the situation was the same as though no appeal had ever been taken; and that the appeal being unconditional amounted to an affirmance of the judgment. It is ordinarily true that the force of a judgment so long as it remains unreversed is not lessened by the pendency of an appeal, and that when an appeal is dismissed the condition is the same as though it had never been taken. These considerations may be determinative in some controversies, but we cannot regard them as applicable here.
The provision of the judgment that it should be reduced accordingly if any of the notes should be “finally defeated or canceled” is to be interpreted in view of the situation it was designed to meet. The Hagers had a good defense against all the notes unless they had reached the hands of an innocent purchaser. But no duty was placed on them to contest by litigation the claim of any holder to be an innocent purchaser. They were at liberty to pay them in full without suit or to make such compromise and settlement as they should find expedient, Hale being entitled to a credit on their claim against him only to the extent that they escaped liability for the full face value of the notes. Although a judgment is in a sense final notwithstanding an appeal has been taken from it, the litigation still remains open and is a subject of compromise between the parties. If here the parties, instead of having the appeal dismissed, had agreed to a reversal, and then to the rendition of a judgment for $18,000, it is clear that Hale would have been entitled only to a credit of $8,000 on the judgment against him. The same practical effect was reached by an arrangement that the judgment should stand as it was, provided Burr was paid $18,000. Hale has no standing to question the method adopted to carry out a proper agreement. If by some collusive plan an attempt had been made to deprive him of some substantial benefit to which he was justly entitled a different situation would be presented. The decision of the court, however, implies a finding of good faith in the making and carrying out of the compromise. The notes held by Burr were not “finally defeated or canceled” within the meaning of that phrase as used in the judgment, so long as the litigation over the question whether he was an innocent purchaser was pending. The Hagers owed him no duty to contest to 'a final decision the legal questions involved in an appeal. Nor is the question material here of how the appeal would have resulted had it not been withdrawn, since the trial courts decision, as already suggested, negatives any bad faith.
There was no occasion for the Hagers to make payment to the sheriff of the sum bid at the sale, so long as it did not exceed the amount of their judgment. Nor had Hale any just cause of com-' plaint because the $18,000 payment to Burr was made by transferring to him the sheriff’s certificate of purchase. The appellant urges that the sale should be set aside upon equitable grounds, but no inequity is apparent in the result reached. Because of the invalidity of the notes sued upon by Burr, Hale'is liable to some one for at least the amount he received for them — presumably about their face value. The decision of the trial court does not require him? to make a double restitution. Burr, instead of losing the full amount of the notes, as he would have done if the judgment of cancellation had stood, makes a salvage of $18,000, diminishing to that extent a claim on his part against Hale. Hale suffers no substantial net loss from the compromise, for although his liability on the Hagers’ judgment was $18,000 more, his liability to Burr was that much less than would have been the case if the decree of cancellation had stood.
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The opinion, of the court was delivered by
Harvey, J.:
Appellant was charged in an information containing four counts. The first count charged appellant and Martin Sanders with robbery from the person by putting in fear; the second charged appellant and Sanders with grand larceny; the third charged appellant with being an accessory after the fact of a robbery from the person committed by Sanders; and the fourth charged appellant with being an accessory after the fact of grand larceny committed by Sanders. Appellant was found guilty on the third count and appealed, and contends that his motion to quash the information for misjoinder and his motion to require the state to elect upon which count it would proceed to trial should have been sustained, that improper evidence was admitted and that the evidence is not sufficient to sustain the verdict.
On March 1, 1923, appellant and others were engaged in an out door poker game in the southern part of Chautauqua county. One Martin Sanders was playing for a while, but quit the game, went away and came back in a half hour or so. When he came back, instead of again engaging in the game, he pulled a revolver and told the men engaged in the game to throw up their hands, then told this appellant to pick up the money, which appellant did after some remonstrance and after having been threatened by Sanders, and appellant gave the money, about $125, to Sanders. Sanders then told appellant to go through the pockets of the other men, which he did, but did not take any money therefrom. Sanders then commanded all of the men, “You fellows all get up the hollow.” Appellant started with the others. Appellant had a Ford roadster and it was the only automobile there. Sanders called him back, told him to get in the- car. Sanders got in with him and they drove over into Oklahoma. After they were in Oklahoma a mile or two they stopped the car and Sanders gave appellant part of the . money. Appellant and Sanders stayed in Oklahoma most of the time for two or three days; drove up to Caney, Kan., and got some whisky and went back to Oklahoma to a dance.
The next day after the robbery Sanders was anxious to know whether or not he was likely to be arrested in Kansas. Appellant drove up to the county seat of Chautauqua county, made inquiries, and found a warrant was issued for Sanders; went back to Oklahoma and advised Sanders of that fact. Sanders concluded it was not safe for him to be staying around too close and that he had better get farther away to avoid arrest and prosecution, and at his request, appellant took his car and drove Sanders through Chautauqua county to the station of Hoosier in Cowley county, where Sanders could catch a train and get out of the country. Sanders was later apprehended, pleaded guilty and was sentenced, so at the time of the trial appellant alone stood charged by the information.
Appellant filed a motion to quash the information “for the reason that there is improperly joined in said information separate and distinct felonies.” There was also a motion to require the state to elect upon which count it would proceed to trial. These motions were overruled and appellant complains - of that ruling. The offense defined by R. S. 21-106, of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, is a separate and distinct offense from that committed by the person who is aided or concealed. It does not partake of the nature of the other offense, nor is it a degree of it. (1 R. C. L. 152.) It is an offense which does not depend on whether the offense of the person concealed or aided was murder, arson, larceny or some other offense known to the law, and one court (State v. Christian, 253 Mo. 382) has held specifically that the two offenses cannot be charged in the same information, even in separate counts. The reason given in that case for the holding is not, however, very convincing. It is said that such was the rule at common law and should be followed unless changed by statute.
But this reasoning seems not to be sound. In 2 Hawkins’ Pleas of the Crown, ch. 29, § 47, it is said:
“It seems to be settled at this day, that if the principal and accessory appear together, and the principal plead the general issue, the accessory shall be put to plead also; and that if he likewise plead the general issue, both may be tried by one inquest.”
And in the note it is stated:
“Where the principal and accessory are tried by the same inquest, the accessory may enter into the full defense of the principal, and avail himself of eveiy matter of fact, and of every point of law tending to his acquittal. . . (M’Daniel’s Case, Foster, 121, 10 State Trials, 417.”
In Rex v. Blackson, 8 C. & P. 43, it was held that a defendant may be charged as an accessory before the fact in one count, and as accessory after the fact in another count, to the same felony, without putting the prosecutor to his election, and may be convicted' on both counts.
To the same effect is Rex v. Mitchel, 6 St. Tr., n. s., 599, 620, 621.
In Rex v. Brannon, 14 Cox 394, it was said that where the defendant was charged as principal in one count, and as accessory after the fact in another count, to the same felony, the prosecution was compelled to elect upon which count they would proceed.
But this decision was criticised in Rex v. Tuffin, 19 Times, L. R. 640, where it was held upon a similar indictment that the decision of Rex v. Blackson should be preferred to that in Rex v. Brannon.
In Archbold’s Criminal Pleading, 24th ed., 1452, is given the form of the indictment used in English practice where one person is charged with the principal offense and others are-charged as accessory after the fact in the same count, as follows:
“[After stating the offense of the principal, and immediately before the conclusion of the indictment, charge the accesory after the fact thus:] And the jurors aforesaid, upon their oath aforesaid, do further present, that J. W. [X. Y. and A. B.] well knowing the said J. S. to have done and committed the said felony in form aforesaid, afterwards, to wit, ori the day and year aforesaid, him the same J. S. did feloniously receive, harbour and maintain; against the form, etc.”
In Bulloch v. State, 10 Ga. 47, it was held:
“The principal offender and accessories after the fact may be properly included in the general count in the indictment, and when so charged in the manner prescribed by the penal code of this state the charge against the principal and the charge against the accessories will not be considered as separate and distinct counts, but the accusation against all will be considered as embraced in one count.” (Syl. ff 6.)
In State v. Barbage, 51 S. C. 284, it was held:
“One count in an indictment charging the defendant with murder, and another count charging him as accessory after the fact, are not misjoinders nor are they repugnant.” (Syl. H 2.)
In Tully v. Commonwealth, 74 Ky. 154, 157, in speaking of an accessory after the fact at common law, it was said:
“The mode of proceeding was to indict the principal and accessory jointly, and unless proceeded against in this manner no indictment could be maintained against accessory until the principal had been tried and convicted.”
In Bishop v. The State, 118 Ga. 799, it was held:
“Principals in the first and second degree and accessories before and after the fact may all be joined in the same count.” (Syl. ¶ 5.)
To charge a principal in one count and accessory after the fact in another appears to be a common practice. (State v. Neddo, 92 Maine 71; State v. Butler, 17 Vt. 145, 150; Blakely v. State, 24 Tex. App. 616.)
- The accessory after the fact may, of course, be charged in a separate information (State v. King, 88 Minn. 175), and in this state may be tried whether the principal has been tried or charged. (R. S. 62-1017.)
In view of the above authorities we decline to follow State v. Christian, 253 Mo. 382.
A question very closely akin to the one here presented, though not exactly the same, was decided by this court in The State v. Blakesley, 43 Kan. 250, 23 Pac. 570, where it was held:
“Counts for grand larceny, and for unlawfully and feloniously receiving the stolen property described in the count for larceny, may be properly joined in the same information or indictment.”
There is another rule of criminal proceedings well established and of long standing, that when a prosecutor is uncertain whether thé evidence pertaining to a specific transaction would show the defendant guilty of one offense or of another, he may in the same information charge the two or more offenses in separate counts. This rule applies to this case, for had the defendant been on trial charged only with the first or second count of this information, all of the evidence introduced in this trial would have been competent to show his connection with the transaction, and the same would have been true had he been on trial charged only with the third or fourth count of the information. In this case the court instructed the jury that the defendant could be found guilty only upon one of the counts in the information, and it was for the jury to determine, under all the facts and circumstances as disclosed by the evidence, under which one of the counts, if any, the defendant was guilty. Possibly this was error in favor of the defendant, but the state has not raised the question. The rights of the defendant were fully protected; hence the error, if there was one, was at the most only a technical error which would not justify a reversal. (R. S. 62-1718.)
Appellant complains of the admission of evidence. After he was arrested he made a written statement reciting the manner in which the robbery occurred, and somewhat in detail what he and Sanders did the two or three days following the robbery, most of which occurred in Oklahoma. Appellant’s contention is that the part of the statement describing what took place in Oklahoma was incompetent for the reason that appellant could not be prosecuted for what took place in another state. There is no merit in this contention. Appellant was not convicted for what took place in Oklahoma. What took place in Kansas was ample to justify his conviction. He came to Kansas to ascertain whether or not a warrant had been issued for Sanders and went back to advise him what had been learned. More than that, he took Sanders to the train to enable him to get out of the country to escape arrest and prosecution, and in doing so brought him through Chautauqua county, Kansas. What he did in Kansas to conceal and aid the escape of Sanders is the thing for which he was tried and convicted. The evidence concerning what they did in Oklahoma was competent to show the intent and purpose of the acts which were done in Kansas. Lastly, appellant argues that the evidence was not sufficient to sustain a conviction. From what has been heretofore said, there is no merit in this contention.
The judgment of the court will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.;
The defendants appeal from a judgment against them for damages for the violation of an oral contract entered into between them and the plaintiff.
The plaintiff ran a restaurant in Elkhart, became financially involved, and determined to quit the business. The defendants were his principal creditors. He alleged, and there was evidence which tended to prove, that he entered into an oral contract with them by which he turned his business over to them to be operated by them, they to pay the running expenses out of the proceeds of the business and apply the remainder in payment of the debts of the plain tiff, after which the business or the proceeds of a sale thereof was to be returned to the plaintiff; that defendants took charge of the business, operated the same for ten days, then brought an action to recover from the plaintiff the amount óf the indebtedness due them, and caused a writ of attachment to be issued and levied on the stock of goods, furniture and fixtures in the restaurant; that sale under the attachment was enjoined by the plaintiff; that the defendants refused to carry out the contract, and that the plaintiff was damaged thereby. The answer was a general denial of the allegations of the petition. No affirmative defense was pleaded.
The defendants urge that—
“The court erred in overruling the demurrer to the petition.
“The court erred in overruling the motion to strike the amended petition from the files.
“The court erred in refusing to give instructions one, three and four, asked by defendants.
“The court erred in refusing to submit to the jury questions of fact requested by defendants.
“The court erred in its instructions to the jury.
“The court erred in admitting plaintiff’s exhibit A, and in refusing to withdraw it from the jury, and in permitting it to be taken to the jury room.
“The court erred in overruling the demurrer to plaintiff’s evidence.
“The court erred in overruling the motion for a new trial.”
1. The defendants complain that the following special questions requested by them were not submitted to the jury:
“1. How much, if anything, do you allow plaintiff because of the attachment issued in this case?
“2., What items of damage do you allow plaintiff in this case? State what such items were for.
“3. What was the market value of the plaintiff’s furniture and fixtures in the restaurant on or about the 29th of December, 1920?
“4. Did the plaintiff and the defendants have a settlement at or immediately after the plaintiff sold his property?
“5. Who ran the restaurant from the 29th of December, 1920, until the 10th of January, 1921?”
The court submitted to the jury special questions which were answered as follows:
“1. What was the value of the furniture, fixtures and supplies, together with the good will, if any, of the business on December 30, 1920? Answer: $1,149.50.
“2. What items of damage do you allow plaintiff in this case? Answer: $50 for good will and $100 difference in what Mr. Hines received and what he offered to take.
“3. What was the market value of plaintiff’s furniture and fixtures in the restaurant on or about the 29th day of December, 1920? Answer: $1,100.”
On the statement of the case to the jury the defendants, as a matter of defense, set up a settlement with the plaintiff of all matters in dispute between them. Evidence was introduced tending to prove such a settlement. Instructions requested by the defendants were refused, but no instruction was asked concerning the effect of a settlement between the plaintiff and the defendants.
The matter embraced in the first question requested by the defendants was eliminated by the instructions to the jury. The matters embraced in the second and third questions requested were submitted by the court and answered by the jury. The fifth question requested might have been submitted, but the failure to submit it is not sufficient to warrant reversal or modification of the judgment. This leaves the fourth question for discussion. It embodied a material proposition if a settlement had been pleaded in the answer. Such a settlement had been stated to the jury, and evidence had been introduced thereon. No instruction was requested on that matter. The court may have concluded that because a settlement had not been pleaded as a defense, he would not submit the question to the jury, neither in the instructions nor in the special questions. There had been no request to amend the answer.
In 12 C. J. 362 the following language is used:
“It is better practice to require defendant to plead a compromise agreement relied on to defeat the action, leaving plaintiff to reply by way of confession and avoidance if desired, than to have it alleged in the complaint. The cases are not agreed on the question whether a compromise may be shown under the general issue. In some jurisdictions the defense may be so raised, but in others it must be specifically averred, and evidence thereof is not admissible under the general issue, although if evidence to establish the defense is given under the general issue without objection it may be considered by the court.”
This question has been settled by this court in Roniger v. McIntosh, 91 Kan. 368, 137 Pac. 792, where the court said:
“Settlement of a debt is the same as payment, and where it is relied upon as a defense it must be properly pleaded. Proof of settlement is not admissible under a general denial.”
In the same case, on page 371, the court said:
“We think the court was right in its first ruling that a settlement of the matters could only be shown provided it was properly pleaded. Bouvier defines ‘settlement’ as the same thing as ‘payment.’ [Citations omitted.] It is the general rule that proof of payment can only be made when the issue is presented by proper pleadings, and that it is never admissible under a general denial.”
If it be contended that this 'matter constituted an accord and ■ satisfaction, the rule still prevails that it must be pleaded. 1 Encyc. PI. & Pr. 74 says:
“At common law, accord and satisfaction might have been given in evidence under the plea of nonassumpsit; but by Hilary Rules (4 Will. 4) the matter had to be pleaded specially.
“The American code practice requires that all matter of accord and satisfaction shall be pleaded.”
1 C. J. 573 uses the following language:
“In those states which have adopted the code system of pleading accord and satisfaction must in all cases be pleaded specially.”
We quote further from 1 R. C. L. 202, as follows:
“As a general rule, the defense of accord and satisfaction must be specially pleaded; it cannot be set up under the general issue or plea of not guilty.”
If a request had been made to amend the answer, even at the ■close of the introduction of the evidence, the question presented by the defendants would be difficult of solution, except by reversing the judgment, but that request was not made. If the defendants chose not to ask an amendment of the answer, the judgment should not be reversed by now considering the answer as amended.
2. The defendants requested'the following instruction:
“You are instructed that in order to render the defendants liable to plaintiff upon any promise to pay debts owing by the plaintiff, such promise must have been made in writing, and as in this case the plaintiff admits that the promise in question to pay his debts was merely oral, you are therefore instructed not to consider such promise to pay plaintiff’s debts.’’
It was not given. Was it error to refuse to give that instruction? This, of course, turns on the application of the statute of frauds. Section 33-106 of the Revised Statutes, in part, reads:
“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.”-
In Center v. McQuesten, 18 Kan. 476, the following language was used in the syllabus:
“A promise made to a debtor, for a valuable consideration, to pay his debt to a third person is not a promise to answer for the debt of another person, within the statute of frauds, which applies only to promises made to a creditor; and such a promise made to the debtor need not be in writing.”
That rule is supported by Harrison v. Simpson, 17 Kan. 508; Patton v. Mills, 21 Kan. 163; Mfg. Co. v. Burrows, 40 Kan. 361, 19 Pac. 809; Fisher v. Spillman, 85 Kan. 552, 118 Pac. 65; and Woodburn v. Harvey, 107 Kan. 57, 190 Pac. 620.
27 C. J. 140 uses the following language:
“An oral promise to discharge the debt of another, if made to the debtor himself, is not within the statute of frauds; the statute applies only to oral promises made to a person to whom another is answerable.”
The contract sued on was not within the statute of frauds.
3. The defendants argue that the judgment should be reversed because an unsigned written instrument purporting to be the contract between the plaintiff and the defendants was introduced in evidence and was permitted to be taken to the jury room while the jury was deliberating. There was evidence which tended to show that the written instrument stated the terms of the contract. It was not error to introduce the document in evidence, because it was a memorandum of the purported terms of the contract that was made between the parties to this action. As such memorandum it was admissible, and it was not error to permit the jury to take it to the jury room.
4. The court instructed the jury as follows:
“4. You are further instructed that if you find for the plaintiff the measure of the plaintiff’s recovery will be the difference, if any, between the fair and reasonable market value of the fixtures at the time the same were returned to the plaintiff and sold by him, together, with the good will of the business, if any, at that time, and what the said fixtures, together with such good will, if any, would have been fairly and reasonably worth at that time and place had the restaurant been kept open and running, and if you should find for the plaintiff you should specify in your verdict the amount the plaintiff is entitled to recover.”
The defendants say that the instruction was erroneous because nothing was said in the petition about good will and there was no evidence concerning that matter.
There was evidence which tended to show that after the defendants had operated the business for about ten days they closed the place and it remained idle until after it had been sold by the plaintiff. There was evidence which tended to show that the business-when the plaintiff turned it over to the defendants was worth $1,800, and that the depreciation of the value of the business caused by being left idle would be about 50 per cent.
2 Bouvier’s Law Dictionary 1360, defines good will as follows:
“The benefit which arises from the establishment of a particular trade or occupation.”
2 Words.and Phrases, second series, 762, three times defines good will, in substance, as the probability that old customers will resort to the old place to transact their business.
Webster defines good will as follows:
“The custom of any trade or business; the favor or advantage in the way of custom which a business has acquired beyond the mere value of what it sells, whether due to the personality of those conducting it, the nature of its location, its reputation for skill, promptitude, etc., or any other circumstance incidental to the business and tending to make it permanent.”
Good will, as defined by these authorities, necessarily is damaged when the business with which it is connected stands idle. The evidence to show the damages sustained by the plaintiff included loss occasioned by the restaurant being closed. That was part of the damage which the plaintiff by his petition sought to recover in this action. It cannot be successfully contended — it is not contended — that good will is not a proper element of damages in an action of this character.
The court properly instructed the jury that it might take into consideration the element of good will in estimating the damages. If the defendants had desired a definition of the term, it was incumbent on them to request that such a definition be given. That was not done.
The amount allowed under the head of good will was small. If the plaintiff was entitled to recover, $50, the amount allowed by the jury for damages to good will, was very reasonable. So far as this question is concerned, substantial justice seems to have been done. There was no reversible error in the instruction.
These matters dispose of the principal contentions of the defendants. Responding specifically to other matters complained of, but which do not seem to have sufficient merit to warrant further discussion, the court holds that the petition stated a cause of action good as against a demurrer ; that the amended petition did not set up a different cause of action, for which reason the motion to strike the amended petition from the files was properly denied; that it was not error to. overrule the demurrer to the evidence of the plain tiff; that the court in the instructions given stated in detail the only conditions under which the plaintiff could recover, which instruction impliedly, although not directly, stated that if the conditions contended for by the defendants existed, the plaintiff could not recover, and therefore it was not necessary to give the instructions requested; and that the order overruling the motion for a new trial was not erroneous.
The judgment' is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note and to foreclose a mortgage securing the note. A defense of partial payment of the note was sustained, and plaintiff appeals.
Reynolds executed and delivered the note and mortgage to Petty-john & Company. The note was for $2,000, was dated November 1, 1916, was payable five years after date, and bore interest payable semiannually, on the first day of May and November each year, according to interest coupons attached. Principal and interest were payable at the office of Pettyjohn & Company, in Olathe, Kan., or at such other place as the holder might designate. No other place of payment was ever designated. The mortgage was recorded on November 24, 1916. On December 12, 1916, Pettyjohn & Company negotoated the note and assigned the mortgage in blank to the G. F. Carson Company, of Peoria,.111. On January 8, 1917, the Carson Company negotiated the note to plaintiff, Mary F. Bryner, inserted her name in the blank assignment of mortgage, and delivered the mortgage and assignment to her. The assignment w|as duly recorded on January 10, 1917. Mrs. Bryner placed the note and mortgage in her safety deposit box in a bank in Peoria, where they remained at all times material to this controversy.
In January, 1919, Reynolds sold the land to Whitney, who assumed payment of the mortgage. Whitney received an abstract of title which disclosed assignment of the mortgage to Mrs. Bryner, and from which he learned Mrs. Bryner was owner of the mortgage. He did not know Mrs. Bryner’s address, never had any correspondence with her, and knew nothing of any relations between her and Pettyjohn & Company.
While Reynolds owned the land he sent checks to Pettyjohn & Company to pay his interest, and in due time received the coupons, stamped paid with the stamp of Pettyjohn & Company. After Whitney purchased the land he gave money to Reynolds to make the first two interest payments, and received the coupons, stamped paid, from Reynolds. Whitney remitted money direct to Pettyjohn & Company to pay the coupon due May 1,1920, and within three days after remittance received the coupon, stamped as the others had been.
In January or February, 1920, Whitney had Reynolds write to Pettyjohn & Company and ask if Pettyjohn & Company would ac cept payment of $1,000. on the note. Pettyjohn & Company replied to Reynolds that they would accept such payment. The note provided the makers might make payments of $100 or any multiple thereof at maturity of the coupon due May 1, 1917, or at maturity of any subsequent coupon, on giving thirty days’ notice. In April or May, 1920, Whitney had the Commercial Bank of Waverly send to Pettyjohn & Company for him a draft or check for $1,000, to apply on the principal of the note. Pettyjohn & Company sent Whitney a receipt for $1,000, stating the money was received as payment on the principal of the note. The money did not pass out of the hands of Pettyjohn & Company.
Whitney sent Pettyjohn & Company a check for $27.50, to pay interest due November 1, 1920, computed on the balance of the principal after deducting the payment of $1,000. On November 20, 1920, Pettyjohn & Company wrote Whitney as follows:
“Yours enclosing check for $27.50, balance due on interest on the George M. Reynolds loan, received. We have canceled and are enclosing herewith coupon for $55 due November 1, 1920.”
Mrs. Bryner received $55, the full amount of this coupon.
The G. F. Carson Company was a corporation organized under the laws of Illinois and had its principal place of business at Peoria. When it sold the note and mortgage to Mrs. Bryner it guaranteed prompt payment of principal and interest without cost to the purchaser. About a month before maturity of a coupon the Carson Company would request that the coupon be forwarded to it for collection and remittance. Mrs. Bryner’s brother, E. C. Foster, who looked after her business and had a key to her safety deposit box, would clip the coupon, and take it or send it to the Carson Company, who would give a receipt stating the coupon had been entered for collection and remittance. In due time the Carson Company 'would give its check for the amount of the coupon. In February, 1921, the Carson Company established a branch house in Olathe. Previous to that time it sent coupons to Pettyjohn & Company for collection. In this manner all coupons were collected except those maturing May 1 and November 1, 1921. These coupons, like all others, were for $55 each. The Carson Company received them in the usual way. Whitney tendered to the. Carson Company $27.50 in full payment of each coupon as it fell due, and the tenders were refused. When the note fell due on November 1,1921, Mrs. Bryner delivered it to the Carson Company for collection and remittance. Whitney duly tendered the Carson Company the sum of $1,055 in full payment of principal and interest, and the tender was refused. There was a stipulation that the Carson Company sent to Pettyjohn & Company, for collection for the owners, notes and interest coupons as they became due, which the Carson Company had purchased of Pettyjohn & Company and had resold to customers. The facts embraced in the stipulation were immaterial because there was no evidence that Mrs. Bryner, Foster, Reynolds or Whitney knew about the practice and based conduct upon it. (See Burnham v. Wilson, 207 Mass. 378.)
The district court found Pettyjohn & Company were Mrs. Bryner’s agents to receive payment of the $1,000 made on the principal of the note on May 1, 1920. In his answer Whitney alleged that Pettyjohn & Company were the duly authorized agents of Bryner up to May 1,1921, to receive payments of principal and interest for her. There was no evidence that Mrs. Bryner ever appointed anybody her agent to receive for her the $1,000 paid to Pettyjohn & Company on May 1, 1920. There was no evidence she had any knowledge of the payment previous to May 1, 1920, and there was no evidence that she ever did anything, with knowledge of the facts, to ratify the payment as having been made to one authorized to receive it for her.
The answer alleged that Mrs. Bryner permitted Pettyjohn & Company to represent themselves to Whitney as her agents. To sustain this allegation it was necessary to prove that Pettyjohn & Company did represent to Whitney that they were agents of Mrs. Bryner, and then to prove that Mrs. Bryner knew the representation had been made, bút interposed no objection, and allowed Whitney to act on it. There was no such proof relating to Whitney’s payment of $1,000 to Pettyjohn & Company. In the correspondence between Reynolds and Pettyjohn & Company, as a result of which Whitney sent the money to Pettyjohn & Company, Pettyjohn & Company did not represent they were acting for Mrs. Bryner or anybody else. They were asked if they would take the money, and they said they would. There was no evidence that Mrs. Bryner had any knowledge of the correspondence. No occasion arose when she was called on to speak, or else by silence, to sanction an implication of agency, and a mere showing that one has assumed to act as agent of another is not sufficient to establish existence of the relation. (Richards v. Newstifter, 70 Kan. 350, 78 Pac. 824.)
The answer alleged that Mrs. Bryner estopped herself from denying that Pettyjohn & Company were her agents. The district court did not find estoppel. It found the fact of agency, and consequently the finding must have been made pursuant to an allegation in the answer that Mrs. Bryner “held out” Pettyjohn & Company as her agents. Whitney knew Pettyjohn & Company did not own the note. What ground did he have for believing that, when he delivered $1,000 to Pettyjohn & Company, he delivered it to Mrs. Bryner?
The note and coupons -were payable at the office of Pettyjohn & Company. It is elementary law that naming a place of payment of a negotiable instrument does not make the keeper of the place agent of the holder of the instrument to collect it. In the case of Adams v. Hackensack Improvement Commission, 44 N. J. Law (15 Vroom), 638, the syllabus reads as follows: ' .
“Naming a bank as the place of payment of a promissory note, bill of exchange or other obligation does not make the bank an agent for the collection of the paper or the receipt of the money due on it; and the debtor cannot make the bank the agent of the holder by depositing with it the funds to pay the paper.
“If maturing paper be left at the bank for collection the bank becomes the agent of the holder to receive payment. But unless the bank has been made the agent of the holder by indorsement of the paper or the deposit of it for collection, any money which the bank receives to apply in payment of it will be deemed to be money taken by the bank as the agent of the payor, and the loss sustained by the failure of the bank with the funds so deposited in hand will be the loss of the payor.” (¶¶ 2, 3.)
In the opinion the court said (authorities cited being omitted at places where blanks occur):
“The contract of the maker, acceptor or obligor is to pay the holder of the paper, and the place for payment is designated simply for the convenience of both parties. Making a bill or note payable at a banker’s is authority to the banker to apply the funds of the acceptor or maker on deposit to the payment of the paper. ... If maturing paper be left with the banker for collection, he becomes the agent of the holder to receive payment; but unless the banker is made the holder’s agent by a deposit of the paper with him for collection, he has no authority to act for the holder. The naming of a bank in a promissory note as the place of payment does not make the banking association an agent for the collection of the note or the receipt of the money. No power, authority or duty is thereby conferred upon the banker in reference to the note; and the debtor cannot make the banker the agent of the holder by simply depositing with him the funds to pay it with. Unless the banker has been made the agent of the holder by the indorsement of the paper or the deposit of it for collection, any money which the banker-receives to apply in payment of it will be deemed to have been taken by him as the agent of the payor. . . . Such a deposit, without some act of appropriation by the banker, does not create any privity of contract as between the banker and the holder of the paper. . . . The only effect of the payor having the money at the bank where the paper is payable is that it will enable him to plead a tender in exoneration of interest and costs of suit, provided he makes his tender good by payment of the principal into court. . . .” (p. 646.)
This decision is in full accord with the weight of modern authority. (Case note, 21 L. R. A., n. s., 52.)
The first coupon was due May 1, 1917. Reynolds, the maker, still owned the land. Mrs. Bryner had given him constructive notice that she owned the note and mortgage, by recording the assignment of mortgage, and she had not up to that time held out Petty-john & Company in any way as her agents to collect any money for her. Reynolds remitted to Pettyjohn & Company the amount of the coupon. When Pettyj ohn & Company received the money they did so as agents of Reynolds. It was his money in their hands, and it did not and could not become Mrs. Bryner’s money until it was appropriated to payment of the coupon with her authority. How did Pettyjohn & Company get from Mrs. Bryner authority to accept for her the money placed in their hands to pay this coupon? The answer is, by virtue of possession of the instrument. As soon as the coupon was paid Pettyjohn & Company forwarded it to Reynolds. . This transaction was followed by seven others, three initiated by Reynolds for himself, two initiated by Reynolds for Whitney, and two initiated by Whitney for himself. They were all identical in every respect, and throughout the entire course of dealing nothing was added to or subtracted from the elements involved in payment of the first coupon to change the relations of the parties. In each instance Pettyjohn •& Company were agents of the debtor to-receive his money and to take up the coupon should it be presented at the place of payment. In each instance Pettyjohn & Company were agents of the creditor to receive payment of the coupon placed in their hands, should money to pay it be at the place of payment, and to deliver the coupon, if paid, to the debtor. In every instance this agency for the creditor was conferred by placing the coupon in the hands of Pettyjohn & Company for collection, and in no other way. The evidence tracing possession of the coupons from Mrs. Bryner through the Carson Company to Pettyjohn & Company was produced by Whitney himself. Throughout four years of dealing there was no instance in which Pettyjohn & Company were not put in possession of the paper. They were always in position to deliver the coupons to Reynolds or to Whitney promptly on payment. They had no greater apparent authority when Whitney made his first remittance than they had when Reynolds made his first remittance. There never was any holding out of Pettyjohn & Company by Mrs. Bryner as her agents to receive payment, except by investing them with possession of the maturing coupons, and if the Carson Company had established its branch house at Olathe earlier, and had personally presented the coupons for payment at the office of Petty-john & Company, money sent to Pettyjohn & Company to take up the coupons would have remained at the sender’s risk until the Carson Company brought in the coupons and received the money for them.
From the course of conduct described relating to payment of interest, the court found that Pettyjohn & Company were agents of Mrs. Bryner to receive payment of $1,000 on the principal of the note. The finding necessarily included a finding that Pettyjohn & Company were agents of Mrs. Bryner to receive the notice which had the effect of accelerating maturity of $1,000 of the principal of the note. These findings were made in face of the fact that Mrs. Bryner kept the note in her strong box in Peoria, 111., had no knowledge of the negotiations pursuant to which Whitney sent money to Pettyjohn & Company to apply on the principal of the note, and had no knowledge that Pettyjohn & Company had received money for that purpose.
In the opinion in the case of Best v. Crall, 23 Kan. 482, it was pointed out that the maker of a negotiable note may always protect himself when making a payment by requiring the instrument to be produced, for indorsement of the payment if partial, and for surrender if paid in full; and if the maker pay the payee without requiring production of the note he does so at his peril. The circumstances may be such that the payee is in fact agent of the holder, but there is no presumption to that effect. In cases of this character agency must be proved, and the authorities are in substantial accord that collection of interest does not warrant a finding of agency to collect principal. (2 C. J. 621; 23 L. R. A., n. s., 414, 418; L. R. A. 1916B 860.)
The case of Hoffmaster v. Black, 78 Ohio St. 1, is similar in essential features to the one under decision. Black gave his note for $850, secured by mortgage, to Hood, and the note provided that principal and interest were payable at Hood’s office. Hood nego tiated the note and mortgage to Hoffmaster, but the assignment of the mortgage was not recorded. Interest was payable semiannually, and was paid to Hood at his office, who receipted for it as “ag’t.” After maturity of the note a payment of $350 on the principal was made to Hood. After that the maker paid interest to Hood on the balance of the principal, but Hood remitted interest in full to the holder. The holder knew nothing about the form of Hood’s receipts and knew nothing about the payment made on the principal. A judgment denying recovery for the full amount of the note was reversed. With reference to payment at the place designated in the note the court said:
“The burden, therefore, rests on the party making payment to show that the one receiving payment was authorized. This is particularly so if in the meantime, as in this case, the note has passed into the hands of a bona fide indorsee before maturity. The contract of the maker is to pay to the payee or his order. By the terms of his contract he is bound to take notice of the fact that his obligation is liable to turn up in the hands of another party at maturity. The mere designation of the place at which payment shall be made does not of itself alter the obligation of the maker as to the person to whom, or through whom, payment shall be made. He is still bound to see for himself that payment is made to the legal holder, whether he be the original payee or an indorsee, or to his authorized agent. He cannot safely pay to any person at the designated place who, in the absence of the securities properly indorsed, cannot show authority to receive payment for the party entitled to the money.” (p. 6.)
With reference to the claim that agency to collect principal may be inferred from agency to collect interest the court said:
“To state the proposition in a concrete form, the plaintiff having recognized the course of dealing as to payment of interest through Hood may be presumed to have authorized him to collect interest; but no implied agency to collect the principal, or any part of it, could arise therefrom. These are accepted principles in the law of agency. . . . There was no recognition of the act of Hood in collecting a part of the principal, because the plaintiff did not know that the money had been paid to Hood, nor that the latter was deceiving the defendants', by assuming to act for him. The cases are numerous and directly to the point that an authority to receive interest does not imply an authority to receive payments on the principal.” (p. 8.)
The opinion of the court concludes as follows:
“When the defendants made payments to Hood without requiring the production of the securities it was no more than if they had intrusted such payment to a messenger boy. That which reached the plaintiff was good payment. That which did not. reach the plaintiff was at their own risk.” (p. 9.)
All that Mrs. Bryner ever did which might influence conduct of Whitney was to pursue the natural and reasonable business course of sending maturing coupons to the place of payment for collection. The only inference Whitney was authorized to draw from this course of conduct was that Pettyjohn & Company had authority to collect maturing interest coupons sent to them for collection. Principal could not be matured except on thirty days’ notice given the holder of the note. Acceleration of maturity is a matter of consequence to an investor in mortgage securities. There is no rule of law, ■logic or morals which sanctions conversion of Pettyjohn & Company into agents of Mrs. Bryner to receive such notice merely because Pettyjohn & Company had been intrusted with possession of maturing coupons for collection. The notice which Whitney gave did not reach Mrs. Bryner. Maturity of1 $1,000 of the principal of the note was not accelerated, and the payment of $1,000 was made before maturity to one not in possession of the note and not authorized to receive the payment for the holder.
Whitney contends that the case of Walmer v. Redinger, 116 Kan. 580, 227 Pac. 329, is identical in every respect with this one. In the Walmer case the evidence tending to show that Pettyjohn & Company were .general financial agents of the holder of the note was such that the court held the inference of agency, or estoppel to deny agency, was justified. Other cases relied on by Whitney are sufficiently distinguished in the opinion in the Walmer case.
The judgment of the district court, that Pettyjohn & Company were duly authorized by plaintiff to receive payment of $1,000 made on the principal of the note by defendant Whitney, on May 1, 1920, is reversed, and the cause is remanded, with direction to modify the judgment in favor of plaintiff by including that sum and interest in the amount of her recovery. | [
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The opinion of the court was delivered by
Marshall, J.:
In an information filed in the district court of Trego county the defendant was charged, in three counts, with three violations of the prohibitory liquor law: in the first count, with having in his possession intoxicating liquor; in the second, with unlawfully transporting intoxicating liquor in Trego county; and in the third,‘with having failed to inform the county attorney of Trego county concerning violations of the prohibitory liquor law which had come to the„knowledge of the defendant, he being a constable of one of the townships of that county. This case was numbered 2,207 in the district court of Trego county.
The defendant filed a motion to quash each count of the information, which motion was denied as to the first and second counts and sustained as to the third' count, which was dismissed by the court without prejudice. Plaintiff thereupon filed another and separate information, charging the defendant with the offense contained in the third count of the first information. This case was numbered 2,217 in the district court of Trego county. The defendant then filed pleas in abatement against the charges contained in the two informations. A demurrer to each plea was overruled. The plaintiff then answered, denying generally the allegations of each plea. The pleas were tried together to a jury, and special questions were answered. On the answers to those questions the court sustained the plea as to the first and second counts of the first information and overruled the plea as to the last information. From the order sustaining the plea in abatement to the first and second counts of the first information the plaintiff appeals, and from the order overruling the plea in abatement as to the last information the defendant appeals.
The evidence introduced on the trial of the pleas tended to show .that the defendant was a constable of one of the townships in Trego county; that he with others purchased intoxicating liquor in that county. from another person who was engaged in the manufacture of such liquor; that the liquor was transported to another place in the county; that he did not report his knowledge of those violations of the law to the county attorney; that at an inquisition held by the county attorney of Trego county in conjunction with the county attorney of Ness county, the defendant, without being subpoenaed and without otherwise being compelled to testify, was sworn and testified concerning the purchase and transportation of the intoxicating liquor. There was evidence which tended to show that the county attorney had promised not to prosecute the defendant for any violation of law that might be disclosed by his testimony. There was also evidence which tended to show that the defendant voluntarily testified at the inquisition. Among the special questions were those numbered 1, 2, 3 and 6, which were answered by the jury as follows:
“1. Did W. H. Wagner, as county attorney, on January 30, 1924, hold an inquisition relating to violations of the prohibitory liquor law under section 62-301, Revised Statutes of 1923? A. Yes.
“2. Did the defendant, John Backstrom, testify as a witness in such inquisition? A. Yes.
“3. Did the testimony of John Backstrom in such inquisition concern the transaction, matters or things now charged as crimes against him in: (a) Count 1 in case 2,207? A. Yes. (b) Count 2 in case 2,207? A. Yes. (c) Case 2,217? A. Yes, but not fully.
“6. Was the defendant, John Backstrom, promised immunity from prosecution before making the inquisition affidavit or statement exhibit 1? A. No.”
There was no other verdict. Nowhere does it appear that the defendant objected to testifying before the county attorney.
The defendant contends that he cannot now be prosecuted for any violation of the prohibitory liquor law concerning which he testified at the inquisition. The plaintiff argues that the defendant was not compelled to testify and that his testimony was voluntarily given.
The last sentence of section 62-301 of the Revised Statutes reads:
“No person shall be excused from testifying in any proceeding as above provided on the ground that his testimony may incriminate him; but no person shall be prosecuted or punished on account of any transaction or matter or thing concerning which he shall be compelled to testify, nor shall such testimony be used against him in any prosecution for any crime or misdemeanor under the laws of this state.”
Was the defendant compelled to testify within the meaning of this statute so as to render him immune from prosecution for any offense concerning which he testified? An inquisition before a county attorney is very similar to an inquiry by a grand jury.
In a note in 27 A. L. R. 139-154, this language is found on page 149:
“If a witness, at the time he was required to appear before the grand jury, was not charged with a crime, an indictment found against him has been held not to be invalid on the ground that he gave incriminating testimony against himself without being advised as to his right to refuse to give such testimony.”
And again on the same page is found the following:
“The witness may not be compelled to give incriminating testimony before the grand jury, but, having done so without objection, he will be deemed to have waived his constitutional privilege, and to have testified voluntarily.”
In 40 Cyc. 2547 the following language is used:
“In order to be available the privilege must be claimed by the witness, and accordingly no objection lies to a question on the ground that it calls for incriminating matter; nor should the court exclude a question for such reason where the witness does not object to answering.”
On this subject 4 Wigmore on Evidence, 2d ed., p. 958, says:
“There must be a claim oj privilege. The reason is that the anticipatory legislative pardon or immunity is not authorized absolutely, but only conditionally upon and in exchange for the relinquishment of the privilege. The legislature did not intend to give something for nothing, i.e., to give immunity merely in exchange for a testimonial disclosure which it could in any event have got by ordinary rules or by the witness’ failure to insist on his privilege. The immunity was intended to be given solely as the means of overcoming the obstacle of the privilege; and therefore (irrespective of the precise formality of the judge’s procedure) could not come into effect until that obstacle was explicitly presented and thus needed to be overcome.”
SUPREME COURT OF KANSAS.
The State v. Backstrom.
In State v. Comer, 157 Ind. 611, 613, the court said:
“Being subpoenaed, and appearing before the grand jury and being sworn, was not a violation of appellee’s constitutional rights, and while before the grand jury he could be compelled to testify to any matter which did not criminate him. Under the provision of the constitution of this state above quoted, he could not, however, be compelled to testify before the grand jury to any matter that would criminate him. Whether he should so testify was, therefore, a personal privilege which he could claim or not as he chose. If he gave such criminating evidence voluntarily his constitutional rights were not violated. It is a general rule that when a personal privilege exists for a witness to testify or not as he chooses, if he does testify without objection he will be deemed to have done so voluntarily.”
In State v. Duncan, 78 Vt. 364, the Court said:
“When a witness has the personal privilege to testify or not as he chooses, and he testifies without objection, he will be deemed to have done so voluntarily.” (Syl.)
An able discussion of this question is found in U. S. v. Kimball, 117 Fed. 156, 163, where this language is found:
“What is compulsion? Compulsion is the antithesis of willingness. The provision means that no person shall be forced to be a witness against himself against his free will. This does not mean that he may not be a witness against himself; otherwise an accomplice could not testify. It does not mean that any person may not be called and sworn (barring persons under known legal disability). It is an exception that leaves all persons competent to be witnesses, subject to a call 1;o testify, but enables any of such persons to exempt himself from the whole class by pleading that certain evidence which he is called upon to give will tend to show that he has committed an offense. Hence those competent and free-willed to do so may give evidence against the whole world, themselves included; but those unwilling may not be coerced if it appear that the unwillingness arises from incriminating evidence which they are asked to give. But willingness or unwillingness is subjective, and may be known alone by act, conduct, speech, or perhaps, in extreme cases, by condition. Unless the witness exhibit his unwillingness in some manner it cannot be presumed to exist. This is especially true if his conduct be that of a man untrammeled, if he be free from bodily restraint or physical duress, unterrified by menace, and uninfluenced by cajolery or fraud. Presumptively the person summoned belongs to the general body of citizens, competent to testify, and so he may be considered. If he elect to be excepted from this class he must speak, or his condition or relation to the proceeding must speak for him; for exemptions are allowed only to those who ask for them. Nor is this statement the less true because, as will later appear, he should have a fair opportunity to speak. From this it follows that in a legal sense the doctrine of waiver has no application. The constitution intends that a person shall not give incriminating evidence under compulsion. Immunity from compulsion is the right reserved. This is a qualification of a general duty to testify. It implies that all competent witnesses shall testify when duly summoned to do so, under the usual rules and limitations provided by law, but not against themselves by compulsion. The right of not being compelled’, in its very nature, does not admit of waiver. Compulsion and consent — i. e., waiver — cannot coexist. Conversely, compulsion can only exist when there is something to be overcome, as, for instance, refusal, objection, or an unwillingness of which the jury is apprised. Hence that refusal, objection or unwillingness must affirmatively appear before compulsion is possible, and it has already been shown that it cannot appear from his speaking, until the witness has been sworn.”
For further discussion of this question see People v. Bundy, 168 Cal. 777, 781; State v. Kent, 5 N. D. 516; State v. Ekanger, 8 N. D. 559, 562; People v. Willis, 52 N. Y. Supp. 808; and Druggist Cases, 85 Tenn. 449.
In State v. Taylor, 36 Kan. 329, 13 Pac. 550, it was held' that it was not error to admit the testimony of a defendant taken at a coroner’s inquest, reduced to writing, and signed by the defendant, because it did not appear that the testimony at the coroner’s inquest was not voluntarily given. In discussing this question the court said:
“The question whether the court below erred or not in permitting this testimony to be introduced depends entirely upon the question whether it was voluntarily given before the coroner’s inquest or not. It was admitted in evidence under that rule of evidence which permits a party’s own admissions or confessions, his own declarations, to be introduced in evidence against him; and if it was voluntarily given before the coroner’s inquest no error was committed in receiving it on the trial; but if it was given under duress, if the defendant was compelled by subpoena or otherwise to disclose it before the coroner’s inquest, then of course the court below should not have permitted it to be introduced on the trial. Now from anything appearing in the record we think the testimony was voluntary. There does not appear to have been any subpoena issued. Nor does it appear that any other kind of compulsion was used.’ Nor does it appear that any questions were asked the defendant at the coroner’s inquest; but it would seem from the paper containing this testimony that he voluntarily made his own statement, that it was given in narrative form and reduced to writing, and then that he signed the same.” (p. 333.)
In State v. Finch, 71 Kan. 793, 81 Pac. 494, it was declared that—
“The testimony of a witness subsequently prosecuted for manslaughter, taken at a coroner’s inquest in pursuance of a subpoena, where such witness was not at the time under arrest or accused of the crime, and where there is nothing indicating that the testimony was involuntarily given, is admissible against him when he is put upon trial for the commission of the offense.
“Such testimony is not deemed to be involuntary merely because it was given in response to a subpcena.” (Syl. UK 3, 4.)
In The State v. Harris, 103 Kan. 347, 175 Pac. 153, tire defendant was charged with having burned a barn and its contents .in an attempt to defraud an insurance company. He had testified at an inquisition held by the state fire marshal and the county attorney. At the trial he wjas a witness in his own behalf, and on his cross-examination was compelled to testify concerning his evidence at the inquisition. The court there said:
“A witness subpoenaed to give testimony in a proceeding, who takes the stand and gives testimony without claiming his privilege, waives the right to object to the use of the statements and admissions so made, in a subsequent prosecution, and they are admissible so far as they are relevant to the case, and especially is this so if in the later proceeding he takes the witness stand in his own behalf.” (p. 351.)
Under these authorities and the reasoning contained in them it cannot be said that the defendant is immune from prosecution for any violation of the prohibitory liquor law concerning which he testified at the inquisition. In order to render himself immune from prosecution he should have objected to testifying concerning those violations when he was questioned about them at the inquisition. He did not object; he can be prosecuted.
This case is distinguished from The State v. Sacks, 116 Kan. 148, 225 Pac. 738. There the defendant was not subpoenaed. He went to the office of the county attorney in obedience to the request of the latter; but when questioned he at first declined to answer on the ground that it might incriminate him. He was told to go ahead, and then answered in obedience to that command.
The plea in abatement to the first and second counts of the information first filed was erroneously sustained. The plea in abatement against the information last filed was correctly denied.
The judgment sustaining the plea in abatement to the first and second counts of the information in case numbered 2,207 is reversed, and the cause is remanded with instructions to the trial court to overrule that plea and proceed with the trial. The judgment of the court overruling the plea in abatement as to the information in case numbered 2,217 is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This action involves a construction of the statutes relating to the (so-called) state-aid road fund. It is a friendly suit brought on behalf of the state by the county attorney against the county commissioners to restrain them from transferring certain moneys from such fund to the general road fund and the general bridge fund and then expending it in the construction of federal-aid roads. A demurrer to plaintiff’s petition was sustained, and plaintiff appeals.
On July 1 Rice county had in its treasury approximately $54,000 which had been collected under the provisions of the automobile tax acts (Laws of 1917, ch. 74; Laws of 1919, ch. 74; Laws of 1921, ch. 217; and Laws of 1923, ch. 175). It had no federal-aid road project under construction nor petitions on file for such a project which had been declared a public utility under the benefit-district road-improvement act. The county commissioners desired to construct some hard surfaced roads, and conceived the plan of paying the cost of construction of such roads with such federal aid as they were able to procure and with the $54,000, or such part thereof as might be necessary. They were confronted with the restriction in section 68-608 of the Revised Statutes, limiting the amount that may be expended from the state-aid road fund, where federal aid is used, to 25 per cent, of the cost of the improvement, and not exceeding $10,000 per mile. In order to avoid this restriction they sought to transfer a portion of the $54,000 to the general road fund and a portion to the general bridge fund, with the intention of then using it from those funds to supplement the twenty-five, per cent, allowed by section 68-608. This may not be done.
It is apparent that while the legislature intended to take the control of and distribution of this fund from the highway commission and to place it with the county commissioners, it was not without certain restrictions.
Chapter 175 of the Laws of 1923 (R. S. 68-601, et seq.) should be read in connection with and in the light of the enactment which it repealed (Laws of 1921, ch. 217). The act of 1921 placed the control of the state-aid road fund in the state highway commission. Section 4 of the act provided that a county might avail itself of the use of money from the staté-aid.road fund by the passage of a resolution designating the road sought to be improved by terminal points, etc. This section provided that the commissioners should then notify the state highway commission of such resolution and should advise the state highway commission that they had provided funds to meet the application of state aid upon the improvement, if such application was approved by the state highway commission. The various methods by which the commissioners should raise the funds to meet state aid were specified in section 4. The state highway commission might or might not consent to the application of state aid on such road. Unless they consented the fund was not available. Section 7 required the state highway commission’s approval to all warrants drawn by the commissioners upon the state-aid fund. The commissioners were limited as to the roads upon, which this fund might be applied. Section 4 provided that it could be applied only upon legally established county roads or benefit-district roads, and that no state aid was available for the roads of any county if the population exceeded 7,500 unless the property benefited by such road was assessed 25 per cent of the cost of such improvement. Section 9 provided that upon no road should state aid be applied for more than 25 per cent of the cost thereof, or a maximum of $10,000 per mile.
Under the act of 1923 (R. S. 68-601, et seq.) the control and distribution of the fund was taken from the state highway commission and placed in the boards of county commissioners. Certain limitations were placed upon the use of this fund; among others, that the fund must be used upon roads, not bridges, unless the cost of constructing the bridge is less than $2,000 and is a part of the highway.
In The State, ex rel., v. Franklin County, 115 Kan. 531, it was said:
“The application of it (state-aid road fund) to the building of bridges is contrary to the terms of the act and against the general policy of the state. In providing for the building of bridges, the legislature has drawn a distinct line of demarcation between provisions for bridges and those made for the roads on which they are built. Separate funds are provided for the expense of the construction of each, and different limitations have been prescribed as to the application of the separate funds.” (p. 537.)
That the fund should be used for the permanent construction, improvement or maintenance of such roads; that if used for reimbursement of roads constructed since March 1, 1919, the amount so used for such reimbursement not to exceed 25 per cent of the cost or a maximum of $10,000 per mile. (R. S. 68-607.) If used to meet federal aid the amount of the -fund to be used may not exceed 25 per cent of the cost, or a maximum of $10,000 per mile. (R. S. 68-608.) Section 1, chapter 175, Laws of 1923 (R. S. 68-601), in part, reads:
“The purpose and intent of this act is to enable counties in this state to provide for roads and highways that are eligible to portions of the state-aid road fund raised by this act and the fund called the state-aid road fund created by chapter 217 of the Laws of 1921 and to meet federal aid and for the cost of permanent roads and highways, and also to enable the several counties of the state to establish, construct and maintain other permanent roads and highways and to raise and apply a state-aid fund created by this act, and to apply unexpended portions of the state-aid road fund raised by chapter 217 of the Laws of 1921, for allvof said purposes, in the discretion and judgment of the boards of county commissioners of the several counties, and to provide for the creating, accumulating and distribution 'of the fund. . . . When such funds raised in any county has accumulated, or may hereafter accumulate, to such an amount more than sufficient to care for any federal-road project under construction or for which petitions have been filed and have been declared a road of public utility . . . the board of county commissioners, may from time to time, by resolution, apply such portion of said funds, as in their judgment is deemed proper, to the construction, maintenance and improvement of county roads in such county, and thereupon said state-aid road fund shall become county money to be used within the limitations of this act: Provided, That the county commissioners in any county to which this act may apply shall before using any of said fund herein provided for, adopt a resolution declaring that the conditions described in the foregoing part of this section exist in their county. . . .” (R. S. (68-601.)
R. S. 68-608, in part, reads:
“In counties desiring to use the state-aid road fund to meet federal aid, and such desire is manifested by resolution duly passed by the board of county commissioners of any county, so stating, any such county shall, under the direction of the state highway commission, use such portion of the state-aid road fund described in section 1 of this act that is necessary to meet any federal-aid project, not to exceed twenty-five per cent (25%) of the cost, or a maximum of ten thousand dollars ($10,000) per mile. The remainder of the cost of the improvement may be . . . financed by a benefit-district petition.”
A consideration of the -various provisions of the 1923 act leads to the inevitable conclusion that where federal aid is had for the construction of a road, not more than 25 per cent, or $10,000 per mile of the state-aid road fund may be used. To permit the county commissioners to transfer a portion of the state-aid road fund to the general road fund and a portion to the general bridge fund, and then use the amount.on a federal-aid project, would be to accomplish indirectly what cannot be done directly. There is no authority for such action. The intention of the legislature cannot be circumvented in that way.
It has been suggested that the provisions of section 1 of the act (R. S. 68-601) are broad enough to permit the county to construct and to pay the entire cost of the construction of a hard-surfaced road from the state-aid road fund. While the question is not presented in this case, and while we do not pass expressly on it, we think there is grave doubt whether the legislature intended to permit the construction of hard-surfaced roads in this manner. The general policy of the state has been to construct hard-surfaced roads under the benefit-district plan.
It was suggested on the argument that plaintiff’s petition did not state a cause of action because it failed to allege that any steps or official action had been taken by the defendant board of county commissioners that indicated their determination to transfer the state-aid road fund into the county road and bridge funds to be used in constructing a federal-aid project. It was admitted, however, that the commissioners did intend to so act, and for the purposes of this case the petition may be considered as having been amended.
It may also be observed, in passing, that the transfer of the state-aid road fund, as provided in section 1 of the act (R. S. 68-601) should be predicated upon a resolution by the county commissioners reciting, substantially, first, that there is more than sufficient money in said state-aid road fund to care for federal-aid projects under construction in the county, or for which petitions have been filed and have been declared a road of public utility — the recital,in the resolution that no such projects were under construction, and that no petitions had been presented to the board of county commissioners and declared a road of public utility, will satisfy this condition; second, that there is a necessity in said county for the use of said fund in the construction or maintenance of the designated county roads; third, that such use of said fund will be for the best interests of said county and will result in the permanent improvements of the roads designated to be improved.
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
Mason, J.:
Frank Nichols was convicted of stealing nine automobile casings, and appeals.
Eighteen assignments of error are made, one of which has been withdrawn, and four others of which, not being referred to in the brief, are regarded as abandoned.
1. The stolen property was thus described in the information: “certain personal property belonging to one H. H. Corley, to wit: nine (9) automobile casings, namely Swift, Gates, Fisk and other makes, the same being of the value of more than twenty dollars.” The jury found the casings to be worth $148.50. The defendant urges that the information should have been quashed, an objection to the introduction of evidence under it sustained, and judgment arrested, because of inadequacy of this description, and says in support of this contention: “It did not state if new or old, front or rear, or how many Swift, Gates, etc. . •. . No attempt was made to describe them by any sort of serial number whatever, by wrappers, or names or numbers on or off wrappers, or that they were new, or -wrapped or not.” Complaint is also made that the information did not show the place from which the casings were taken, more than that'the larceny took place in the county, nor whether the crime was committed in the nighttime or daytime.
The statement of value being for the purpose of showing whether grand or petit larceny is charged, the information in that respect was sufficient. The allegation of ownership went far to identify the property for practical purposes. ■ Some of the items suggested by the defendant as essential or desirable are quite beyond the most severe requirements of the earlier practice, and the modern tendency is undoubtedly to be less exacting as to the manner in which the property should be described. Descriptions at least as indefinite as that here involved have been sustained by this court and others. For instance, the overruling of a motion to quash has been affirmed where an information for larceny of several steers described the property merely as “four head of neat cattle.” (The State v. Hoffman, 53 Kan. 700, 37 Pac. 138.) The report of the case cited does not affirmatively show that the information was attacked by a motion to quash or that no additional descriptive words were used, but these facts appear from the original transcript on file. Other cases of like character may be found in a recent note.- (L. R. A. 1915B 71, 76-78.) We hold the indefiniteness of the description not a sufficient ground for reversal.
2. Another complaint is that the court did not instruct “on the defense of an alibi” or on “good moral character as a proper defense.” No instruction on either matter was asked, and nothing in the abstract suggests the need of one. In a supplemental brief, however, it is said that the defendant introduced evidence on both subjects. It is ordinarily not error for the court to omit a special charge concerning alibi, unless a request has been made for one. A recent note gathers decisions on this point. (29 A. L. R. 1200-2; see, also, 16 C. J. 976.) The same principle applies with at least as much force in the matter of instructions concerning character evidence. (16 C. J. 980.) If either subject is specifically treated in the charge the statements made must of course be correct. But a jury may be supposed to know without being told that where the commission of a crime depends upon the personal presence of the defendant at a given time and place he cannot be guilty if he were then somewhere else, and that in case of doubt evidence that the defendant bore a good reputation should weigh in his favor. Where the evidence in behalf of the defendant is directed solely or mainly to the establishment of an alibi or of a good character, an obligation to instruct thereon may perhaps arise without a request. But that situation is not presented here, and no error is shown in the omission to instruct on these matters.
3. The defendant asserts that the verdict is not supported by the evidence, which however is not set out in the abstract. There is ' therefore nothing under this assignment for the court to consider. The abstract does not attempt to give any of the testimony in behalf of the state. It does contain about a page and a half of argumentative matter relating to the instructions, in the course of which it is said that there was not a scintilla of evidence that Corley owned the tires or “that he was other than an agent for same, as he himself testified through and through”; none that they were stolen by the defendant or anyone else; none that they were ever identified or found in the possession of the defendant or anyone else. This is not effective (even if so intended) to cast upon the plaintiff, the burden of abstracting such evidence as is relied upon to sustain the • verdict. Rule number 5 of this court provides: “A party need not include in his abstract all the evidence in order to support a claim on his part that it’ does not show or tend to show a certain fact, but may present such questions by inserting in his abstract a statement that no evidence was introduced tending to show the fact, and if the adverse party desire to controvert this he shall abstract so much of the evidence as he relies upon to support his contention in this regard.” But the appellant cannot “by substantially a blanket charge of a want of support, unload the burden of abstracting the evidence upon his opponent.” (Bank v. Price, 79 Kan. 283, 286, 98 Pac. 222.) We have, however, examined the transcript, and find the evidence not open to this or other attacks upon it.
4. The defendant complains that he was not arraigned. The journal entry of judgment recites that he was, and there is nothing in the record to show the contrary.
A witness for the state died before the trial. His testimony given at a former trial was admitted in evidence, and the defendant complains of this. The practice was regular and constitutional. (The State v. Nelson, 68 Kan. 566, 75 Pac. 505.)
Complaint is made of the admission of evidence not pleaded, referring apparently to matters that might have been included in the description of the stolen property. This is disposed of by our holding that the information was sufficient against the motion to quash. Evidence is objected to because of containing contradictions and as the appellant says, perjury. Upon such matters the decision of the jury and trial court is conclusive. The rejection of evidence is complained of, but the matter objected to is not specified, nor is it shown in the abstract.
The jury was told that in order to convict it was necessary for the state to prove that the defendant stole the casings “on or about the 24th day of May, 1923”- — the date named in the information. The state’s evidence tended to show the theft was committed on May 18, although one witness fixed the time of some of the occurrences relied upon as May 24. The defendant says the insertion of the words “or about” in the instruction took away his defense of alibi. The transcript shows evidence in behalf of the defendant tending to show his presence elsewhere on the 24th, but not on the 18th. In this situation the complaint is not well founded.
The defendant complains because the verdict was returned in the absence of his attorney, although he himself was present in court. His motion that the verdict be not received, accepted, filed or recorded was overruled. In support of the action of the trial court it may doubtless be assumed that good reason existed for the verdict having been received in the absence of the defendant’s attorney, but in any event no prejudice is shown, since the court directed the polling of the jury and each member stated that the verdict was his and that he was satisfied with it.
The judgment-is affirmed. - | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a widow who had executed with her husband what is commonly designated a joint and mutual will, to secure her rights under the law as sole heir of her husband. She prevailed, and those claiming under the will, who will be referred to as defendants, appeal.
The court returned findings of fact and conclusions of law. A copy of the will and a copy of the court’s findings and conclusions are appended to this opinion.
Defendants contend the petition was really one to set aside Menke’s will on the ground of undue influence over him exercised by his attorney, Borman, who drew the will. There were, however, allegations in the petition that Mrs. Menke was of advanced age and hard of hearing, that what knowledge she had of the will she gained from listening while Borman read it, and that her consent to it was given without any comprehension of the fact that she was receiving only a life estate in her husband’s property, and was devising her property to his relatives. Whether or not these allegations were sufficient to warrant proof of the facts stated in the findings, is not now important. The facts were developed in an investigation which, whatever the formal issues, was sure to be searching to the last degree, and if it may be said that the issues were enlarged, the petition may be treated as amended to conform to the proof.
Defendants criticise the findings of fact for inaccuracy in some minor particulars. The argument is not that the inaccuracies are in themselves of consequence, but that they show the court gave slight attention to the testimony. These criticisms may be passed by. It is asserted, however, that certain .findings of fact material to the judgment are not supported by any testimony. Two principal wit nesses related the circumstances under which the will came into existence, and under which Mrs. Menke denied that she was concluded by what was done. They were Borman and Mrs. Menke. Their accounts are irreconcilable in vital particulars. There are seeming inconsistencies and perhaps contradictions in Mrs. Menke’s testimony. If this court were to attempt to analyze it, weigh it, and deduce findings from it, the attempt might occasion some perplexity. That, however, is not a function of this court on appeal. The witnesses were examined and cross-examined orally in the presence of the district court, which chose to reject Borman’s testimony and to accept Mrs. Menke’s testimony respecting all matters concerning which they disagreed. Other witnesses gave testimony relating to occurrences subsequent to execution of the will, and from all the evidence the court deduced the findings of fact. All the material findings are sustained by substantial evidence, and at that point this court’s interest in the basis for the findings ceases.
Two views of the will are proposed by defendants: first, that Mrs. Menke consented to her husband’s Will in writing, executed in presence of two witnesses, conformably to the statute permitting a husband to will more than half his property from his wife, so consenting; second, that at her husband’s death she became bound by the joint will because it is contractual in character.
Mrs. Menke’s consent to her husband’s will is no part of the instrument as a will (Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541), and must be considered on its own merit. Some differences between consent to a will and election to take under a will are noted in Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608. Some analogies between consent and election are noted in Chilson v. Rogers, 91 Kan. 426, 137 Pac. 936, in which it was held that consent expressed conform-ably to the statute is irrevocable. In the Weisner case the syllabus reads:
“In case of an election' by a widow to take under the will of her deceased husband it is essential that the probate court explain to her its provisions and her rights under it and also her rights under the law in the event of her refusal to take under the will. But in case of a written consent by her that the husband dispose of more than one-half of his property to others than his wife, it is only essential that she act freely and understandingly.
“When a widow promptly takes steps to have her written consent to the will of her deceased husband set aside, and the court upon sufficient testimony finds that she did not understand its effect upon her property rights and acted under the strong persuasion and implied threat of her husband in his •last sickness so that such consent was not given freely and understanding^, held, that such finding and determination will not be disturbed.” (ffff 1, 2.)
In the Chilson case the court said:
“It is enough that a writing freely, fairly and legally made shall express the consent of the husband or wife that the other may bequeath or devise more than one-half of his or her property away from the one consenting. ... Of course, a written consent, like other instruments, will not be valid if it is obtained by deception, undue influence or fraud of any kind. . . . The consent provided for is akin to the -provision that a widow may elect to take under the law instead of under the will of her husband. . . . It is held that an election freely and intelligently made is a finality which effectually concludes and estops the widow from setting aside her decision or reclaiming the relinquished right.” (pp. 428, 429, 430.)
In the case of Moore v. Samuelson, 107 Kan. 744, 193 Pac. 369, a wife joined in her husband’s will disposing of his property to their children. Her joinder was held to be surplusage, considering the instrument as a will, but good as expression of assent to her husband’s will. The syllabus reads:
“When a wife joins in the making of her husband’s will devising property to their children, her signature to the will, if made voluntarily and understandingly and in the presence of the requisite witnesses to the will, is sufficient to satisfy the statute requiring the assent of one spouse to the testamentary disposition of property by the other spouse.” (If 3.)
What was the district court to do at the trial of the case when confronted by the expressions of this court, “freely and understandingly,” “freely and fairly,” “voluntarily and under standingly”? What it did do was to admit, over objection, testimony given by Mrs. Menke such as the following:
“He [Borman] went up to find out about the Kansas law after the will was written. When he came back he said it was lawful here for women to sign all documents in writing that the man had, and he said it would be right and lawful for me to sign this will — that Mr. Menke could not make a will unless I did [sign]. He worked around there two or three days on the will. Mr. Borman did not say anything to me. When the will was finally completed, he went outside that evening that he was going away, Wednesday evening. He went outside, and read the will in the twilight, and I was hard of hearing. That was on the back porch of our house. Mr. Menke was there too. He only read it over once. It was the only time I ever heard it. I didn’t understand how it was. I knew Mr. Menke had made a will. I didn’t know I was making a will. ... I didn’t know that in this will I was only getting a life estate in Menke’s property. It was never explained. ... I first learned what the will was from Mr. Borman on the 4th of July. He was sitting in the dining room, and he said to me, ‘You are not in this will,’ and I said, ‘I didn’t understand it that way.’ . . . He said I could take the rent from the farms. ... I could sell that, and that was all. . . . That was the first time I knew that. When I found that out, I got ready to come to Anthony. . . . Mrs. Bradley . . . came over and she read the will to me. We went over it then. She explained it to me.”
Borman’s testimony brought into sharp relief the question whether Mrs. Menke had genuinely consented to the will and was simply trying to repudiate her consent, and in rebuttal the court permitted her to testify, over objection, as follows:
“I supposed that he was willing one-half of his property to his people, and that he wasn’t willing anything that I had. That I would have that for myself. That Mr. Borman said that he went down town to find out about the Kansas law, and that it was necessary for all women to sign documents with the man, and that in order that this will — that my husband could make a will, I would have to sign it. That is what he told me. That at the time she signed the will she thought her husband was disposing of one-half of his property. I thought that he would do what he wanted to with his one-half of the property, and that I had the other one-half for mine. I supposed that I would' have the two quarters that were in my name. I didn’t suppose that was in the will.”
There can be no doubt that it is the policy of the law to give stability to consent to wills. The statute requiring writing, execution and witnessing is in the nature of a statute of frauds and perjuries designed to place expression of assent on a secure footing. This being true, defendants say that if, when the unambiguous writing was read to Mrs. Menke, she did not hear, or did not comprehend, what was read to her, she should have informed herself before signing. It is not disputed that, although she was old and deaf and had certain peculiarities, she was mentally keen, and defendants say that, having signed the instrument, she is not now privileged to declare she did not understand it, or misunderstood it; that aside from her claimed misconception of the nature of the instrument, the only, mistake which induced her to sign was a mistake of law, and not of fact; and that findings of fact based on parol evidence impeaching the instrument should not be allowed to stand.
If the writing were one evidencing an ordinary contract between Mrs. Menke and a stranger, defendants’ position would be impregnable ; but it is not such an instrument. It evidences voluntary relinquishment of a property right secured by the statute that no man while married shall devise or bequeath away from his wife'more than half of his property. (R. S. 22-238.) The relinquishment need not relate to a particular will, and there need be no consideration for the relinquishment, not even a provision for the wife’s benefit in the will. (Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534.) The relinquishment is given to and for the benefit, of a person who occupies a confidential relation to the one making the surrender; and if consent be given, the' right of election, under the strong safeguards with which the statute surrounds election, is surrendered. Therefore, the instrument is not one which defendants may produce and stand upon as conclusive evidence of a transaction which the law presumes to be fair and right. In order that the conclusion of consent may be drawn, there must have been something more than the bare fact of assent expressed in statutory form.
' The statutes of the state of Minnesota relating to consent to a will and election to take under a will are similar in legal effect to the statutes of this state relating to the same subjects. In the case of State ex rel. Minn. L. & T. Co. v. Probate Court, 129 Minn. 442, a wife assented in writing to four codicils of her husband’s will, and the question was whether she was concluded by the writings. In the opinion the court said:
“We take the correct holding to be that when a trust and fiduciary relation exists, as there does between husband and wife, the wife having a legal right in case of the death of her husband to some share in his property and reposing trust and confidence in him, there is cast upon the husband, in taking a consent to the making of his will, or to a codicil to it, the affirmative duty of making to his wife a fair disclosure of his property and her rights, so that her consent will be an actual one, based upon an intelligent knowledge of his property and the effect of her consent, as distinguished from one merely formal. As great a duty of disclosure as that stated is required in antenuptial settlements. If this is not done, and the consent is not fairly and reasonably obtained by putting the wife in possession of the facts which she ought to .know in order to determine her course intelligently, she may, after his death, if she proceeds without laches, renounce her consent and elect to take under the statute. If the provision of the statute relative to descents, giving effect to consent by one spouse to the will of another, without a reserved right of election after the death of the other, does not worik justly under such a rule it should not work at all. We have in mind no other trust or fiduciary relation at all resembling that here involved where the law requires one party to submit to a surrender, at the instance of the other, of valuable rights, though the surrender is made in compliance with all legal forms, if made in ignorance of the existence of such rights or without fair opportunity for investigation, the other party having full knowledge. The rule stated we adopt.” (p. 446.)
It-will be observed the Minnesota court fully appreciated the fact that adaptation of the rule governing gifts and other transactions between living persons in confidential relation, to written consent to a will, might encourage bald attempts to repudiate valid consent. Not being able to foresee all the consequences, this court forbears definite pronouncement respecting the Minnesota rule. There can be no doubt, however, that a wife, making the relinquishment involved in consent to her husband’s will, ought to have sufficient information respecting her rights, and the manner in which the will will affect those rights, to enable her to act intelligently, unless she should indicate willingness to act unintelligently. Likewise, there is no doubt that, because of the confidential relationship, the husband, or those claiming through him, should not be privileged to take advantage of a relinquishment given in ignorance of the facts Concerning which the wife should have been informed. So much being clear, it seems reasonable to say that, to constitute consent, assent, though in statutory form, must be given understanding^; and that being true, a woman may, after her husband’s death, raise the issue of nonconsent to his will, notwithstanding existence of the statutory declaration of consent, and may sustain the issue by parol evidence, including evidence relating to the information she possessed and her own state of mind.
Whether or not Mrs. Menke signed the declaration of consent knowingly was a question of fact, determinable in'precisely the same manner as other questions of fact. Borman spent substantially all his time from Monday morning to Wednesday evening in considering and preparing the will. It is a highly involved instrument, of a not very common kind, couched in technical legal phraseology, and is an excellent example of professional art. When the subject of Mrs. Menke’s election whether she would take under the will or under the law came before the probate court, the court was required to explain to her the provisions of the will, her rights under it, and her rights in the event of her refusal to take under the will. Mrs. Menke testified the probate judge seemingly did not understand the will, and undertook to read it two or three times before he got it read. It could scarcely be a matter of astonishment if Mrs. Menke did not comprehend it, from listening with dull ears while Borman read it to her just once, without comment or explanation, while sitting in the twilight on the back porch of the Menke home. Borman had not been sent for to draw Mrs. Menke’s will. He went to Attica to draw Menke’s will, and his conferences during preparation of the document were with Menke. Borman told Mrs. Menke it was necessary for her to sign in order to validate Menke’s will, and she believed what he said. Aside from mere existence of the confidential relation, and aside from the confidence which Mrs. Menke did repose in her husband, it would have been fair to her if Borman had done something in the nature of what the probate court was required to do when the subject of election was before it.
As indicated above, the court has not, in this instance recognized any presumption of impropriety in procuring execution of the declaration of consent, and has not cast the burden upon defendants of showing affirmatively that Mrs. Menke did have the information to which she was entitled when she signed the declaration. The court does hold, however, that it was proper for her to allege and prove that the declaration was not signed understanding^ with respect to material matters, that the proof offered to that effect was competent, and that the findings to that effect are well sustained.
There remains the question whether the will evidences a contract between the parties which precludes Mrs. Menke from revoking it as her will, and from electing to take under the law instead of under the instrument as her husband’s will. The law upon the subject has been in a'state of confusion since July 18, 1769, when Lord Chancellor Camden pronounced judgment in the case of Dufour v. Pereira, 1 Dickens, 419. The material portions of the blind report of the case, which contains no copy of the will, follow:
“This cause stood this day for judgment. The case on which the principal question arose, stood thus: Mrs. Camilla Rancer, the wife of Rancer, being entitled to a legacy under the will of her aunt, she and her husband agree to make a mutual will, which they do, and both execute it.
“The husband died; the wife proved his will, and afterwards made another will. And the question was, whether it was in the power of the wife, to revoke the mutual will.
“Lord Camden C. — This question arises on a mutual will of the husband and wife; the will is jointly executed by them.
“Consider how far the mutual will is binding, and whether the accepting of the legacies under it by the survivor, is not a confirmation of it.
"I am of opinion it is.
“It might have been revoked by both jointly; it might have been revoked separately, provided the party intending it had given notice to the other of such revocation.
“But I cannot be of opinion that either of them could, during their joint lives, do it secretly; or that after the death of either, it could be done by the survivor by another -will.
"It is a contract between the parties, which cannot be rescinded but by the consent of both. The first that dies carries his part of the contract into execution. Will the court afterwards permit the other to break the contract? Certainly not.
“The defendant, Camilla Rancer, hath taken the benefit of the bequest in her favour by the mutual will; and hath proved it as such; she hath thereby certainly confirmed it; and therefore I am of opinion, the last will of the wife so far as it breaks in upon the mutual will, is void.
“And declare, that Mrs. Camilla Rancer, having proved the mutual will, after her husband’s death; and having possessed all his personal estate, and enjoyed the interest thereof during her life, hath by those acts bound her assets to make good all her bequests in the said mutual will; ...” (pp. 419, 420.)
In the case of Lord Walpole v. Lord Orford, 3 Vesey Jr. 402, decided in 1797, the Lord Chancellor, Loughborough, who had been of counsel in the Dufour case, told what that case was about:
“The bill stated an agreement in writing contained in an instrument conceived in the form of a will of persons not conversant in the laws of this kingdom, made before a notary public; an agreement perfectly defined with minuteness upon all cases, that could be supposed to occur. The bill prayed performance; and in consequence of the agreement it was contended, that all the effects, that existed, were specifically bound; and it prayed a transfer of the specific stocks, that were the subject of it, and not disposed of, according to that mutual agreement. . . ■. In the view of the court therefore the mutual will neither was nor by possibility could be considered as the will of Mrs. Reyne. It was considered purely as the will of her husband. There was no probate of it as her will; but on the contrary the will, she made, was proved. Therefore the court considered it not as her testament, but as a contract with her husband for valuable consideration; under which she acted for sixteen or seventeen years; that she had taken the benefit of it for her whole life. Therefore she had accepted the terms; and had bound herself to the conditions, under which all the property was given by the will of her husband. . . . The effect of the agreement was, that the wife had the enjoyment during life, and limited to that, of all the specific interests: she had a limited power of disposing of part of that property: but all, she had, was upon condition, that she should dispose of her own property, that she might have acquired after his death (and she did increase it), upon the dispositions of that will. . . . It was a most minute, distinct and particular, engagement to each other what shall be done after the death of each and of the survivor. It goes even to the specification of what legacies they might give, and of the disposition of plate, watches, jewels and trinkets.” (pp. 416, 417, 418.)
The result was, Lord Loughborough declined to recognize the Du-four case as authority in the case before him, which involved reciprocal testamentary instruments. Discussing the claimed agreement between Lord Walpole and Lord Orford, the Lord Chancellor said:
“These plaintiffs now insist upon the agreement, which they state. As to the extent of it, it does not exist anywhere so that I can see, what they agreed to; but the fact oí some agreement is to be implied from the cotemporary execution of the two instruments and the other circumstances. From the coexistence of the instruments and the execution at the same time I do infer, that they had agreed to make, the one a codicil, the other a will. I conclude with the bill, that both considered it an honorable engagement. I cannot direct the execution of an honorable engagement; that leaves the party to dispose, as he pleases; which rests upon nicer points than a court of justice can decide upon. I must say, they meant to impose upon each other a legal and binding obligation; that that was their intention, and they meant to do so. . . . For this court to execute an agreement it is always necessary, that the terms should be clear. Here it is uncertain, whether they meant it to amount to a legal obligation. There is no evidence, nothing, upon which I can obtain a clear and defined solution of that; and I lay it down as a general proposition, to which I know no limitation, that all agreements in order to be executed in this court must be certain and defined: secondly, they must be equal and fair; for this court, unless they are fair, will not execute them: and thirdly, they must be proved in such manner as the law requires. Upon a bill properly framed all these points would occur; and upon such a bill the defendant would undoubtedly have the benefit of demurring. It is enough for me to say, I doubt upon every one of these points. There is great uncertainty with regard to the terms and the extent of the agreement; and particularly, whether it was meant to be absolutely binding. . . .” (pp. 419, 420.)
Lord Camden’s two pronouncements, that a mutual will jointly signed by husband and wife is a contract between them which cannot be rescinded except by consent of both, and that such a will— such a contract — is revocable by one alone, provided notice be given une other, cannot both be true, as general statements of principle. A contract irrevocable except by consent of two, may not be revoked upon notice given by one, and a will is not a will unless ambulatory during life of the testator.
Disposition of property by will is a proper subject of contract. If the contract be in substance or effect not to revoke a will, the will as a will is nevertheless revocable, without notice to anybody. It cannot then be probated as the will of the person revoking it and, if the revocation be by means of a second will, the second will is probatable as the will- of the testator. The revocation, however, breaches the contract, and the contract is enforcible in equity against the estate of the testator. A single instrument may have a double aspect — a will contractual in character, or a contract testamentary in character. As will it is revocable. As contract it is enforcible, if broken by revocation as will. Unless there be fraud, or a contract-broken by revocation, there is nothing which equity may use as a basis of redress for revocation, no matter what the form of the re voked will, whether described as joint, or joint and mutual, or otherwise.
Notwithstanding Lord Loughborough’s explanation of the Dufour case, it is now being cited as authority for the proposition that a mutual will jointly signed by a husband and wife, giving to each a life estate with remainder over, is its own convincing proof that it was made in accordance with a contract to dispose of the property in the manner stated in the will.
“If two persons make wills, each devising his property to the other, there is no necessary inference that the wills were the result of any mutual or reciprocal agreement or understanding. Such wills might be executed without either party knowing that the other had executed his will; but where the parties execute their wills by the same instrument, it is not possible that such course could be adopted without some previous understanding or agreement between them.” (Frazier v. Patterson, 243 Ill. 80, 86.)
This assertion lay beyond the boundary of the court’s information. Such a thing is not only possible, but occurred in the case now under decision.
Borman testified to this effect: Menke outlined to Borman the kind of will he desired to make. His plan was that his wife should have a life estate in his property, the division of which was to occur after her death. Borman advised him that his wife’s consent to such a will would be necessary. Menke and Mrs. Menke talked the matter over, and she said she was satisfied with the life estate, and with the disposition of his property which had been worked out. Menke then turned to his wife and said that, since he wanted to know where all the property was going at his death, and was making his will, she ought to have her will prepared, too. She said all right. Menke then asked her how she wanted her will drawn. She said what they had agreed to [with reference to the scheme of Menlce’s will] was entirely satisfactory to her, and told Borman to draw her will, and what disposition to make of her property. In the course of their conferences, Menke told Borman he wanted a joint will. Borman hesitated to employ that form, but Menke insisted, and Borman prepared what he repeatedly called “the wills” of Gottlieb and Annie Menke. The result is, Menke conceived his will without reference to what his wife might do, and procured her consent to the scheme of his will, before the subject of a will of her property was mentioned. When it was suggested to Mrs. Menke that she make a will, when she was asked how she would have her will drawn, and when she directed how her own .property should be disposed of by her will, she was free from any agreement or understanding with her husband relating to any of those subjects, and the wills were prepared, not pursuant to antecedent or contemporaneous contract between the Menkes, but pursuant to the several instructions which each one gave respecting his own desires. Borman testified Mrs. Menke did not say a single word to him about any relatives she might have; and he did not know she had any relatives. Certain persons were suggested as having possible claims to the Menke’s bounty, and Borman was informed they would not be named in the wills. Mrs. Menke was content to have her property go to Menke’s relatives, and so, while the two wills were identical in method of disposing of property, neither was made as a consideration for the other. The court rejected part of Borman’s testimony, and found Mrs. Menke did not understand she was making a will. Therefore, under no theory of the case could the wills be mutual or reciprocal in any contractual sense.
In the case of Bower v. Daniel, 198 Mo. 289, the trial court found a husband and wife, aged and infirm, had given to their children sums of money and articles of property in unequal proportions. Desiring to dispose of the remainder of their property by will, they disagreed about its distribution among their children. In settlement and compromise of their differences, they agreed upon the terms of a will to be jointly executed and, pursuant to the agreement, did execute the will. In its opinion the supreme court said:
“The court found that the mutual will was made between the husband and wife in pursuance of a previous arrangement between them, and this we think is borne out by the will itself, and, there being no evidence to the contaary before us, that finding cannot be questioned.” (p. 320.)
That disposed of the case. The court then went far toward adoption of the rule that the fact of a joint will with reciprocal testimonial provisions, establishes a contract not to revoke, by saying:
“It is evident from the provisions of the mutual or joint will that this aged or infirm couple, each owning property, made said will together for the purpose of disposing of and distributing their property equitably among their children after their death; that the provisions of the will were reciprocal, and that but for these mutual bequests the parties would in all probability have made separate wills. After the death of the testatrix, her husband, William Daniel, accepted the provisions of the will in his favor, and under such circumstances equity will enforce the provisions of the will against him and all persons holding under him who took with notice of its provisions, or without value.” (p. 321.)
It is respectfully submitted that the statement, “but for these mutual bequests the parties would in all probability have made separate wills,” was. derived from the court’s knowledge of the findings of fact, and not from the will.
In the case of Edson v. Parsons, 155 N. Y. 555, the court considered separate mutual wills. Extrinsic evidence had been introduced, and from the evidence and the wills the court concluded they were not executed pursuant to contract. The syllabus reads:
“A mutual agreement to execute mutual wills is not shown by the fact that persons make similar wills with cross-provisions in favor of the survivor.
“To establish an agreement for mutual wills and defeat the right to revoke a will, there must be full and satisfactory proof of the agreement, which cannot be supplied by presumption.” (¶¶ 2, 3.)
In the opinion the court said:
“The wills were similarly made, and hence showed concert of action and similarity of purpose; but not necessarily a binding agreement of such solemnity and far-reaching consequences as the appellant claims. To argue upon the basis that they are mutual wills begs the question. That is a fact to be established by evidence, showing that such was the understanding and the deliberate agreement.” (p. 570.)
In the case of Rastetter v. Hoenninger, 214 N. Y. 66, the court considered the peculiar provisions of a joint will of husband and wife, and held that, unexplained by extrinsic facts, they indicated a contract to make the will as it was made. Notwithstanding Lord Camden’s ruling in the Dufour case, the court declined to hold that the mere fact of a conjoint reciprocal testimonial disposition establishes a contract not to revoke. But the court said, “it may be” such wills “more nearly import a contract than separate mutual wills” such as were involved in Lord Walpole’s case and in Edson v. Parsons. The court further held that a will as a will is revocable, but as a contract is enforceable in equity if supported by adequate consideration. In the later case of Morgan v. Sanborn, 225 N. Y. 454, the court’s position relating to the latter subject was made clear by the following statement:
“If it [the contract] is contained in mutual or joint wills later revoked by the survivor, those wills may be carried out, not as wills but as contracts [citing the Rastetter case].” (p. 462.)
The court approves the New York cases to the extent the nature of the decisions has been indicated herein, and to that extent only.
Turning to the Menke will, it will be observed the document contains two separate and distinct wills, beginning respectively, “I, Gottlieb Menke, give, devise and bequeath,” and “I, Annie Menke, give, devise and bequeath.” The first item is formal. The last two paragraphs contain administrative details common to both wills, one statement of which was sufficient. Except for these matters, and except for the further economy of reference by the second will to the first for description, the body of each will is complete in itself. The devisors joined in nothing. They made separate wills, each as distinct from the other as if written on separate paper. The structure of the instrument indicates expert draftsmanship, and the draftsman inserted one provision evidently intended to apply to the whole instrument, which reads as follows:
“This will was executed after all matters were thoroughly considered, and disposal of all property is herein made exactly as desired.” .
Since care was taken to insert this paragraph in the will, it is fair to assume it tells the whole story. There was thorough consideration and exact expression of intention, but nothing more. If the instrument was the result of contract, under which the making of each will was consideration for making the other, that paragraph was the place in which to state the fact, and there is no such statement. The result is, the instrument itself, although declared to be “our last will and testament,” although containing reciprocal testamentary dispositions, and although jointly executed, does not compel the inference that it was contractual in character. Furthermore, if the paragraph referred to had been omitted, and an inference of contract were strongly indicated, existence of a contract pursuant to which the instrument was executed, would nevertheless be a matter of fact, to be established according to the rules stated by Lord Loughborough, and by the New York court of appeals in Edson v. Parsons, 155 N. Y. 555, and Rastetter v. Hoenninger, 214 N. Y. 66.
Turning to the extrinsic evidence, nonexistence of a contract making revocation by Mrs. Menke after her husband’s death wrongful, was proved both by plaintiff and by defendants, and the case stands as a warning against dogmatic judicial declaration that a certain form necessarily expresses a certain reality.
The judgment of the district court is affirmed.
' APPENDIX.
Will of Gottlieb Menke and Annie Menke.
Know All Men by These Presents:
That we, Gottlieb Menke and Annie Menke, of the county of Harper and state of Kansas, being of full age, sound mind and memory, do make, publish and declare this to be our last will and testament, that is to say:
First. We direct that all our lawful debts, the expense of our last sicknesses and burials and of the administration of our estate, be first paid; and subject thereto.
Second. I, Gottlieb Menke, give, devise and bequeath a life estate in all the property owned by me at the time of my death to my beloved wife, Annie Menke, for the term of her natural life, provided that she survive after my death.
Third. I give, devise and bequeath the rest and residue of my estate after her death, including accumulations if any, as follows, to-wit:
First. Two hundred and no/ioo dollars to each of the children of my half sister, Rose Mahl.
Second. Five thousand and no/ioo dollars to my niece, Mary Streib.
Third. Five thousand and no/ioo dollars to Anna Teel, daughter of Mary Streib.
Fourth. Twenty thousand and n°/ioo dollars to my sister, Leusetta Miller.
Fifth. Five thousand and n°/ioo dollars to my cousin, Sophia Miller.
Sixth. Five thousand and n°/ioo dollars to my niece, Louise C. Duwe, of Guttenberg, Iowa.
Seventh. Five thousand and n°/ioo dollars to Amanda Borman, Guttenberg, Iowa.
Eighth. Three thousand and no/ioo dollars to Nellie Duwe, in trust for the use and benefit of her son, Morris F. Duwe, of Guttenberg, Iowa; interest on same and trust fund may, in the sound discretion of trustee, be used for the education of the said Morris F. Duwe, and to be turned over to him when he attains his majority.
Ninth. Three thousand and n°/ioo dollars to A. H. Borman, in trust for the use and benefit of Maxine L. Borman, daughter of Amanda Borman; interest thereon and trust fund may in the discretion of trustee be used in the discretion of trustee for educational purposes for the said Maxine L. Borman, and the same or balance with accumulations shall be turned over to said Maxine L. Borman when she attains her majority.
Tenth. Three thousand and no/i00 dollars to A. H. Borman, in trust for the use and benefit of Roland A. Borman, son of Amanda Borman; interest thereon and principal may in the discretion of trustee be used to educate the said Roland A. Borman, and the same or balance with accumulations shall be turned over to him after he attains his majority. The words “same or” were interlined in two places before the execution of this will.
Eleventh. Five thousand and n°/ioo dollars to Minnie, daughter of Ernest Menke, of Waseca, Minnesota.
Twelfth. And the balance of my estate with accumulations I give, devise and bequeath to Mary Streib, Anna Teel, Leusetta Miller, Sophia Miller, Louise C. Duwe, Minnie, the oldest daughter of Ernest Menke of Waseca, Minnesota, Nellie Duwe, in trust for the use and benefit of Morris F. Duwe on said terms of foregoing trusteeship to her, to A. H. Borman, in trust for the use and benefit of Maxine L. Borman on same terms of foregoing trusteeship in her favor, to A. H. Borman in trust for the use and benefit of Roland A. Borman under the same terms of the foregoing trusteeship in his favor and Amanda Borman in ten equal shares, share and share alike.
Fourth. If my wife does not survive after my death, in that event I give, devise and bequeath all the property owned by me at the time of my death to the same persons to whom I have bequeathed and devised the same in case my wife first takes a life estate in my property, in the same amounts and same shares as the same would have gone to them after the end of her life estate, the amounts and shares to each being the same in each instance, save that there might be some difference in the amount or value of each of the ten shares.
The life estate to my wife is in lieu of the property that would have gone to her if no will, and she expressly consents to the disposition herein made thereof by me. I nominate my wife, Annie Menke, to be the executrix of my will should she survive me, without bonds.
And I, Annie Menke, give, devise and bequeath all the property owned by me at the time of my death to my beloved husband, Gottlieb Menke, for the term of his natural life, and after his death I give, devise and bequeath that portion of my estate remaining, with accumulations if any, in ten equal shares to the persons named in subdivision twelve of part three of this will, share and share alike, and in the event that my husband does not survive after my death, in that event I give, devise and bequeath the property owned by me at the time of my death direct to Mary Streib, Anna Teel, Leusetta Miller, Sophia Miller, Louise C. Duwe, Nellie Duwe, in trust for Morris F. Duwe under same terms as above, A. H. Borman in trust for Maxine L. Borman under same terms as above, A. H. Borman in trust for Roland A. Borman under the same terms as above, and-also to Amanda Borman, and also to Minnie, the oldest daughter of Ernest Menke, share and share alike, same being ten shares. The disposition made in the first part of this item goes to the persons last named herein but otherwise first referred to. The said Gottlieb Menke expressly consents to the disposition made of her property herein by his wife, and the said Annie Menke nominates her husband, Gottlieb Menke, as the executor of this will without bonds.
This will was executed after all matters were thoroughly considered, and disposal of all property is herein made exactly as desired.
We authorize, direct and empower the executor of this will acting after our deaths to dispose of and convey all the property then belonging to our estates at private sales under the direction and approval of the court, and after the same has been duly appraised, and we direct that all property so sold be sold to the best interests of our estate and at such times as will insure the best interests of our estates.
And the proceeds of said sales shall be divided and distributed under this will instead of the property itself. Abstracts to be furnished buyers. Stocks and bonds may be taken by legatees at actual value at that time, if same can be agreed upon as a part of their legacies, and otherwise to be sold for actual value at the time of sales, and proceeds divided under will.
In witness whereof we have hereunto subscribed our names at Attica Kansas, this 29th day of June, a. d. 1920. (gigned) Gottlieb Menke_
(Signed) Annie Menke.
FINDINGS OF FACTS.
At the request of the defendants, and after the trial of the above-entitled action and the argument and examination of the briefs filed on behalf of the plaintiff and defendants, the court makes the following findings of fact:
I. This action was brought on August 9, 1922, by the plaintiff, Annie Menke, widow of Gottlieb Menke, deceased, who departed this life on June 28, 1922, against the defendant, George L. Simpson, as administrator with the will annexed of the estate of Gottlieb Menke and all the beneficiaries named in the will of Gottlieb Menke as hereinafter set out.
II. That on the 29th day of June, 1920, the said Gottlieb Menke and his wife, the said Annie Menke, signed in form an instrument in writing in words and figures following, to-wit: (Here follows a copy of the will.)
III. That at the time said instrument in writing was signed by the said Annie Menke, she was over the age of eighty years; somewhat hard of hearing, with a predisposition to say, “yes, yes,” to a person addressing her or interrogating her before she could know the purport of the question of the remark made to her, and at such times she had implicit confidence in her husband, Gottlieb Menke.
IV. That said instrument in writing was_ signed by the said Gottlieb Menke and Annie Menke under the following circumstances:
At the request of Mr. Menke, Mrs. Menke wrote to A. H. Borman, of Guttenberg, Iowa, requesting him to come to Attica, Kansas, where the Menkes resided, to do some work for Mr. Menke. Mr. Borman was an attorney at law, and his wife’s mother, Louise C. Duwe, a cousin of Mr. Menke. In response to said letter Mr. Borman went to Attica, and arrived there at the Menke home on Sunday, and remained there until the following Wednesday. While there Borman spent substantially all of his time with Mr. Menke, considering this instrument. At such times Mrs. Menke was doing her housework, and did not to any great extent participate in the conversations between Mr. Borman and Mr. Menke relating to said instrument in writing. After said instrument in writing was prepared to the satisfaction of Mr. Menke and Mr. Borman, Mr. Borman took it out on the back porch of the house where they resided, it then being evening and rather dark in the house, and there on the porch in the twilight read the instrument in writing to Mr. and Mrs. Menke. Mrs. Menke did not fully understand the instrument in writing as it was read to her. After it was read Mrs. Menke went out and called in two neighbors, and Mr. and Mrs. Menke signed the instrument in writing, and the two neighbors signed it as witnesses. It was then placed in an envelope, sealed up, delivered to Mr. Menke, who put it in his safe in his house. Borman left Wednesday night, and took with him the notes or memoranda with reference to said instrument in writing, including several of the first drafts thereof, one of which being almost an exact copy of said instrument itself as signed, leaving no copy with the Menkes. At the time said instrument was signed by Mrs. Menke, she did not know or understand its contents, except that she understood it to be the last will and testament of Gottlieb Menke.
V. On the day after Borman arrived in Attica, and after the will had been written, he left the Menke house and went down to look up the Kansas law, and when he returned to the Menke home he told Mr. and Mrs. Menke that a husband in Kansas could not convey any part of his real estate by will or deed without the written consent of his wife, and that it would be necessary for Mrs. Menke to sign Mr. Menke’s will. At the time that she signed said instrument in writing she did not know that it purported to be her own will, or that it purported to cover the property which she held in her own name.
VI. Mr. Borman attended the fimeral of Gottlieb Menke and, on July 3, 1922, Mrs. Menke, accompanied by Mr. Borman, went to Anthony, Kansas, where, in the office of the probate judge, the said instrument in writing was" opened and offered for probate as the last will and testament of Gottlieb Menke, deceased,' after which the said will was read to Mrs. Menke, and she signed the election to take under the will, although at this time she did not fully understand its provisions. Mrs. Menke and Mr. Borman returned to Attica, and on the same evening Mr. Borman told Mrs. Menke that she did not get anything under the will except the use of the property during her lifetime, whereupon and by reason of said information Mrs. Menke became greatly disturbed, and on her own volition called in a neighbor lady, Mrs. Bradley, and consulted with her about said will. Mrs. Bradley and Mrs. Menke went over the will together, and Mrs. Bradley explained it to Mrs. Menke. The next morning Mrs. Menke returned to the probate court, and applied to have her election set aside, and on the 7th day of July, 1922, the probate court granted her request and set aside said election. At the time said will was opened in the probate court and read to her, Mrs. Menke was still under the impression that the will did not affect any of her own property and that she got one-half of her husband’s property absolutely, and a life estate in the other half.
VII. At all times since the 5th of July, 1922, Mrs. Menke of her own volition and without suggestion on the part of any one sought to repudiate said will in so far as it relates to her own individual property and in so far as it purports to give her written consent that her husband might will away from her more than one-half of his property. Mrs. Menke has done no act inconsistent with such rejection of the will at any time, nor has she accepted any substantial benefits under the will.
VIII. The signature of Mi’s. Menke to the will was given under the impression on her part that it was necessary for her to consent to her husband’s willing away half of his property to his relatives subject to a life estate in the plaintiff and such signature on the part of Mrs. Menke was not given freely or understandingly.
IX. That at the time Mrs. Menke executed said instrument in writing she relied upon her husband and was induced to sign it believing that he would deal fairly with her and that, no advantage would be taken of her by him.
X. That Mrs. Menke did not understand the nature of the instrument at the time she signed it, and did not understand that it affected her property, and did not know that under the terms thereof she was to receive only a life estate in all her husband’s property, and did not know that the. accumulations of the property would go to the beneficiaries in said'will, and that if she had fully understood said will she would not have signed it.
XL That the property of the said Gottlieb Menke and of his wife had been earned by the joint efforts of both of them after their marriage and removal to Kansas. The estate of the said Gottlieb Menke consisted of farms, bonds and securities at the time of the making of said will and also at the time of his death was approximately $129,867.62, yielding an annual income of from $3,000 to $5,000, and that of Mrs. Menke consisting of 320 acres of land was approximately $20,000, yielding an annual income of about $700.
XII. The court further finds that the said Annie Menke has made a new will since the death of Gottlieb Menke.
XIII. That the will of Gottlieb Menke was executed in accordance with the statutes of Kansas, without any undue influence from any one.
CONCLUSIONS OF LAW.
I. That the will of Gottlieb Menke, in so far as it affects the undivided one-half of all the estate left by Gottlieb Menke, is valid and binding and remains in Ml force and effect, except that his widow, not having elected to take under the will, cannot and does not receive any life estate in any part of the property, and the remainder is accelerated so that the beneficiaries under said will will take immediately an undivided one-half of that which the will by its terms gives to them after the death of said plaintiff.
II. That the signature of Annie Menke to the will is null and void, and should be vacated and set aside because her consent was not given freely and understandingly.
III. That the prsaserty held by Annie Menke in her own name, both real and personal, be restored to her, and the administrator with the will annexed be instructed to deliver the same to her forthwith. | [
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The opinion of the court was delivered by
Dawson; J.:
This was an action to recover $600 irregularly received as salary by defendant at the close of his term of office as secretary-treasurer of the plaintiff corporation.
Plaintiff alleged that during the year 1922-’23 defendant was a director of the plaintiff corporation and also served as its secretary-treasurer ; that prior to the incumbency of defendant the salary fixed by order of the board of directors for the secretary-treasurer had been $50 per annum, but on the last day of defendant’s term of office he had procured one Jessen, the plaintiff’s manager, whose term of office was also expiring on the same date, to issue to defendant, without authority from the board of directors, a voucher for $600, which was paid out of funds in defendant’s own hands, the funds of the corporation being kept on deposit in a bank of which defendant was cashier.
Defendant answered with a^general denial, certain admissions and allegations:
“Third. Defendant further admits that he was from the 18th day of February, 1922, to the 17th day of February, 1923, a director and officer of said corporation, as alleged and set forth in plaintiff’s amended petition.
“Fourth. Defendant, further answering, states that he performed certain services as secretary and treasurer of the plaintiff corporation, at the request of the majority of the stockholders of said corporation and with the full knowledge and consent thereof and with the distinct understanding that his compensation for the period aforesaid should be the sum of six hundred ($600) dollars; that said service was performed with full knowledge and consent of the board of directors of said corporation, and that said service was accepted by them.”
The trial court ruled that the burden of proof was on defendant. The evidence developed the fact that the corporation had seven directors, one of whom was defendant; that the president of the corporation knew nothing of any agreement to pay $600 per annum, or $50 per month, to defendant for his services; that the board of directors had not authorized the payment of the $600 salary, nor as a board, did the directors know of any arrangement to pay defendant such sum, although two of the directors, Ross and North, knew personally-that one J. W. Scott, owner of a majority of the corporate stock, and who was also a director, had individually agreed with defendant that he should be paid $50 per month for his services. Defendant testified:
“He [Mr. Scott] said if I would help him and take hold and act as secretary and treasurer for the next year, he would give me a salary of fifty dollars a month. ...
“Q. There seems to be some criticism as to why you took the money out the last day to pay for your services. You may explain that to the jury, Mr. Cory. A. The company was in debt between $2,900 and $3,000 at the time we took charge. During the year we suspended the dividends which had been previously paid. The company was paying eight per cent for this indebtedness, without very much reserve. We decided at our meeting that the policy of the company would be to suspend the dividends until after paying the debts and we had a reserve created. We paid off the indebtedness during the year, interest and all, around $3,100 or $3,200. ...
“The policy of the company was changed; as fast as we could get the money together we paid the company’s debts and saved the interest. I asked for no interest on my salary when I collected it at the end of the year. I was not present at the stockholders’ meeting in 1923, I lost my position about that time. I was elected a director at the stockholders’ meeting and also secretary and treasurer. I was not a stockholder when I was elected secretary and treasurer, but I bought twenty-five shares of stock afterwards. I do not remember the date, but it was some time later on, possibly a month or so later. I remained a director throughout the year, until some one else was elected a director in my place. As a director I did not receive any compensation.”
A demurrer to defendant’s evidence was sustained and plaintiff’s motion for an instructed verdict and for judgment for $550 and interest was allowed, plaintiff having remitted $50 from the amount claimed in its petition.
Defendant assigns various errors, contending first that there was a binding contract of employment between the plaintiff corporation and defendant', because “the other directors [knew] what his contract and agreement with Scott was” prior to his election as secretary and treasurer. The record shows that only Director Ross knew anything of the agreement between Director Scott and defendant prior to defendant’s election as secretary-treasurer, and that one other director, Doctor North, learned of it afterwards. North testified on behalf of defendant:
“Mr. Scott told me that he had made arrangements with Mr. Cory to assume the management and control of the company. He said Mr. Cory had agreed to take the secretaryship and treasurer, and that is about all I can re member.. He did not say what Mr. Cory was to receive or what service he was to perform. I afterwards learned what the arrangement was. I understood we were to pay him fifty dollars a month. Mr. Cory continued to serve after I found out that he was to receive fifty dollars a month. That was satisfactory to me as a director.”
But the board of directors knew nothing of such arrangement, nor indeed was there any evidence that the other individual directors knew of it, so all argument based on the law of ratification of unauthorized acts is beside the point. (National Bank v. Drake, 29 Kan. 311; 14 C. J. 145, 374, et seq.; see, also, National Bank v. Drake, 35 Kan. 564, 11 Pac. 445.)
It is next urged that the services which defendant did perform were unusual and outside of the usual scope of the duties of a secretary-treasurer of such a corporation, under circumstances authorizing an inference that he was to be paid therefor. Defendant’s answer did not plead any unusual services, and there was no evidence that he rendered services unusual to the office of secretary-treasurer. Scott, indeed, did testify that he and defendant had agreed that defendant “should perform services outside the technical duties of secretary and generally look after the affairs of the company . . . the general supervision of the affairs of the company were, during the year 1922, entrusted to Mr. Cory.” But there was no evidence to show that such services were performed; nor did it appear that Mr. Cory did, in fact, exercise general supervision over the affairs of the corporation-during the year 1922. The corporation had a president, a board of directors, and a manager. So far as the record shows, these officials performed the usual functions attaching to their corporate offices, and that fact, of course, precludes the possibility that their supervisory powers could have been exercised by defendant. Certainly no unusual service, no exercise of supervisory power over the corporate affairs by defendant, was brought to the knowledge of the board of directors. In Trust Co. v. Robinson, 89 Kan. 842, 132 Pac. 979, it was said:
“It is well settled that an officer of a corporation, is not entitled to compensation for services rendered by him in an official capacity or as incidental to the office unless such compensation has been agreed upon or its payment authorized in advance by the board of directors. No agreement was made with the appellant that compensation for his services in this respect should be tnade, nor was payment authorized by the governing authority of the company, either before or after the rendering of the services. In National Bank v. Drake, 29 Kan. 311, 44 Am. Rep. 646, this rule was announced by the court, and then it went further and held that it was not within the power of the directors to pay for such services after they had been performed unless there was a previous agreement between the company and the officers that compensation should be made.” (p. 844.)
The case of St. L. Ft. S. & W. Rld. Co. v. Tiernan, 37 Kan. 606, 15 Pac. 544, is not at variance with the general rule. It was there held that a president and general manager of a railroad in its formative stages who served without compensation might thereafter be awarded reasonable compensation by the board of directors, where there had been a prior understanding that such compensation would be paid if and when the corporation grew to be a financial success, but that is a very different proposition from claiming a right to take compensation from the corporation without the sanction of its board of directors. In National Bank v. Drake, supra, the syllabus reads:
“The doctrine that the directors of a bank are conclusively presumed to know the financial condition of the bank, its general business, and its receipts and expenditures, as shown by its regular books, is for the protection of third parties dealing with the bank, and of the bank against the prejudicial action of any directors, and cannot be invoked to uphold a wrongful appropriation of moneys by the cashier or other officer, which appropriation is made and also entered upon the books of the bank without the actual knowledge of the directors.” (If 5.) See, also, extended note to Althouse v. Cobaugh Colliery Co., 227 Pa. 580, in 136 A. S. R. 909-925; also note to Goodin v. Cement Co., 79 W. Va. 83, in L. R. A. 1917 F, 310, et seq.)
Another error is urged in imposing the burden of proof on defendant. Since defendant’s answer admitted that he was a director and secretary-treasurer of the corporation, and admitted that he received the money, of course the burden was on him to prove-a valid contract for compensation, either by resolution of the board of directors, or knowledge of the board of the arrangement between defendant and Director Scott and ratification thereof by the board of directors, or by notice to the board and its acquiescence therein. There was no error on this point. (National Bank v. Drake, supra; Trust Co. v. Robinson, supra.)
Defendant’s fourth assignment of error — taking the case from the jury — is argued on the hypothesis that there was some evidence of acquiescence and ratification by the board of directors, and that defendant performed extraordinary services of which the board of directors had knowledge, but as we have seen there was no such evidence, so there was no issuable fact for a jury to determine, and an instructed verdict was proper.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment convicting him of having knowingly received $1,400 in government bonds that had been stolen from the Benton State bank, in Butler county.
1. The defendant argues that he has been twice put in jeopardy for this offense. On November 28, 1920, an information was filed against him charging him with the commission of the offense, but in the charging part of the information it was not alleged that the offense had been committed in Cowley county. The parts of the information material in the consideration of the question presented were as follows:
“In the District Court of Cowley County, Kansas.
State op Kansas, Plaintiff, v. James L. Stiff, Defendant.
INFORMATION.
“Comes now Ellis Fink, county attorney of Cowley county, Kansas, and gives the court to understand and be informed:
“That on or about the 12th day of September, 1919, the defendant, James L. Stiff, did then and there unlawfully, feloniously and knowingly receive and purchase the following described personal property ... all of the aggregate value of $1,460, the said property then and there having lately before been feloniously stolen, taken and carried away from The Benton State Bank, . . . and he, the said James L. Stiff, then and there, at the time he received and purchased said personal property as aforesaid, well knew said personal property to have been so stolen as aforesaid . . . Ennis Fink, County Attorney.
“State of Kansas, Cowley County, ss:
“Ellis Fink, being first duly sworn, on his oath states that he is the county attorney of Cowley county, Kansas; that he has read the above and foregoing information, and that the statements and allegations therein contained are true as he is informed and verily believes. Ellis'Fink.
“Subscribed and sworn to before me this 26th day of November, 1920.
“Anna L. Tonkinson,
(Seal.) “Clerk of the District Court.”
When the case was first called for trial, on November 29, 1920, the defendant filed a motion to quash the information. The motion alleged “that the information does not state facts sufficient to constitute a public offense under the laws of the state of Kansas.” No defect in the information was called to the attention of the court. That motion was denied on December 1, 1920. On the next day a jury was impaneled and sworn to try the cause. After the jury had been sworn and while making the opening or trial statement to the jury, counsel for the state discovered that the information did not specifically charge that the offense had been committed in Cowley county, and asked leave to amend the information so as to allege that the offense had been committed in that county. The court denied the application, set aside the order denying the motion to quash the information, entered an order sustaining that motion, and discharged the jpry from further consideration of the cause. Afterward another information was filed charging exactly the same offense and charging that it had been committed in Cowley county. To that information the defendant pleaded that he had been tried for the offense charged therein, and set out in his plea the facts as above stated. The court denied the plea of former jeopardy and compelled the defendant to go to trial. The trial resulted in a verdict of guilty, and judgment was pronounced thereon. From that judgment the defendant appeals.
Part of section 10 of the bill of rights of the constitution of this state reads:
“No person shall ... be twice put in jeopardy for the same offense.”
The rule is that, when a person, charged with the commission of a crime, is brought to trial, and a jury is impaneled and sworn to try the cause, jeopardy attaches; and if for any reason other than those mentioned in section 60-2914 of the Revised Statutes, the jury is discharged without reaching a verdict, the defendant cannot again be tried for that offense. Section 60-2914 of the Revised Statutes reads as follows:
“The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.”
In The State v. Reed, 53 Kan. 767, 37 Pac. 174, this court said:
“The discharge of a jury before the completion of a trial, without the consent of the accused, and without sufficient reason, will ordinarily bar a further trial.” (Syl. ¶ 1.)
In The State v. Allen, 59 Kan. 758, 54 Pac. 1060, this court said:
“Wheré a defendant has been placed upon trial on a criminal charge and the jury is duly impaneled and sworn, the court cannot arbitrarily discharge the jury before a verdict is returned; and a discharge in such case unless an absolute necessity, and for reasons which are sufficient in law, will operate as an acquittal.
“The essential facts upon which the discharge is based, and the finding of the court thereon, must be entered of record, and unless the record shows the existence of such facts and the decision of the court thereon, and that they constitute sufficient grounds for discharge, the defendant cannot again be put on trial for the same offense.” (Syl.)
No reason coming within'the provisions of 60-2914-of the Revised Statutes is shown for the discharge of -the jury on the trial of the defendant under the first information.
The following language is found in 16 C. J. 237:
“A defendant in a criminal prosecution is in legal jeopardy when he has been placed upon trial under the following conditions: (1) Upon a valid indictment or information; (2) before a court of competent jurisdiction; (3) after he has been arraigned; (4) after he has pleaded to the indictihent or information; and (5) when a competent jury have been impaneled and sworn.”
All the conditions that constitute jeopardy are found in the present case, unless it be that of a valid information. This subject will be discussed.
As noted in the quotation from 16 C. J.- 237, there is this qualification of the rule concerning former jeopardy — that if the indictment or information on which the person is first tried does not charge an offense sufficiently to sustain a judgment or conviction on a plea of guilty or on a verdict of guilty, jeopardy does not attach because there is no valid information and consequently no offense charged. In 16 C. J. 241 is found the following:
“Subject to the qualifications hereafter stated, the general rule is that, in order that jeopardy may attach, there must be a valid indictment, information, or complaint. ... So where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put defendant in jeopardy and bar another prosecution. But if the indictment is not so defective that it will not be cured by the verdict, then the accused has been in jeopardy, and the plea of autrefois acquit will be good.”
The first information filed against the defendant sufficiently charged the offense unless it be that the information did not state where the offense had been committed. Did the failure of the information to charge specifically, in the charging part thereof, that the offense had been committed in Cowley county render the information so defective that if the defendant had pleaded guilty thereto, judgment could not have been pronounced against him?
In Guy v. The State, 1 Kan. 448, is found a discussion of a question closely analogous to the one now under consideration. This court there said:
“An objection to an indictment commencing as follows: ‘In the second judicial district sitting in and for the county of Doniphan, March term, 1862. The State of Kansas v." Alfred Guy: Indictment. The jurors of the grand jury, selected, empaneled and sworn in and for the body of said county, charged to inquire of offenses committed within the said county, in the name and by the authority of the state of Kansas, upon their oaths do present and find that Alfred Guy,’ etc., on the ground of its omitting to set forth that the grand jury were of the county of Doniphan, is not well taken. Such an omis sion is not one of the causes specified in section 260, criminal code, for the arrest of judgment, and not available in a motion under that section.” (Syl. ¶ 1.)
“The defect alleged in this indictment is, that it does not appear from the face of the indictment that it was found by a grand jury of the county in which the court is held. The omission to set forth that the grand jury were of the county of Doniphan seems not well taken, when the name of the county is correctly laid in the margin, as in this case. At common law it does not seem to have been the practice to repeat the name of the county in the caption, but only to refer to the name in the margin as in the said county.” (p. 452.)
In The State v. Harp, 31 Kan. 496, 500, 3 Pac. 432, the following language is found:
“If the offense charged in the information is stated with such a degree of certainty that the court could pronounce judgment upon conviction according to the right of the case, we are not now to interfere.”
Cases closely analogous and directly parallel to the present one are found in the decisions of the supreme courts of other states. In Lawson and Swinney v. The State, 20 Ala. 65, the following language is used in the headnotes:
“An indictment is good which purports to be found by 'the grand jurors for the said state, sworn and charged to inquire for the said county,’ when the names of the state and proper county are stated in the margin.” (Syl. If 2.)
To the same effect is The State v. Moore, 203 Mo. 624, where the supreme court of that state in its syllabus to the decision said-:
“Where an information correctly lays the venue in the margin, it is not invalid because the venue is not stated in the body of the information.” (Syl. ¶ 3.)
The case of The State of Iowa v. Reid, 20 Iowa 413, is parallel to the present one. We quote from the information in that case as follows:
“The State of Iowa v. William Emerson, George Reid, James Green, and . Charles Fields.
“District Court of the County of Dubuque.
“The grand jury of the county of Dubuque, in the name and by the authority of the state of Iowa, accuse William Emerson, George Reid, James Green, and Charles Fields of the crime of burglary, committed as follows: The said William Emerson, &c., (giving the other names), heretofore, to wit: On the night of the 5th day of March, a. d., 1865, about the hour of eleven of the clock in the night, of said day, the dwelling house of William L. Bradley, there situate, feloniously and burglariously,’ &c.
“After the trial and verdict of guilty, defendant moved in arrest of judg ment and for a new trial, because, among other things, the indictment failed to lay the venue, &c., and the sufficiency of the indictment as against this objection, when urged in arrest, is the first question discussed by counsel.
“It must be admitted that in this respect the indictment is greatly wanting in that clearness and certainty which it is always desirable to find in such pleadings. And yet it seems to us that there need be but little difficulty in determining what was intended by the pleader. The words ‘there situate’ must refer fairly and reasonably to the county of Dubuque, for that is the only place named in the preceding part of the indictment. True, the ‘state’ is named, but rather as indicating the ‘authority’ rather than a place. And in view of the liberal, and we may add just and reasonable provisions of our statute, as to objections of this kind, urged after verdict, we have but little hesitation in holding that the motion as to this cause was properly overruled. (Rev. §§ 4659, 4660.) It is impossible for us to see how defendant was or could be prejudiced in any of his substantial rights by the defect complained of; and if not, then the statute is express that the trial, judgment or proceedings shall not be thereby affected.” (p. 417.)
The Iowa case is directly in point. If the reasoning is good, there is no reason apparent why the rule followed by the Iowa court should not be followed here.
Section 62-1718 of the Revised Statutes reads:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
When we consider that statute and compare it with what the supreme court of Iowa said concerning a similar provision of their statute, the decision of the Iowa supreme court becomes very persuasive.
In Eaves v. The State, 113 Ga. 749, 754, the court said:
“The indictment in this case had not the prescribed caption giving the state and county, but, instead, gave the state and the name of the court. It was contended that the allegation that the offense was committed ‘in the county aforesaid’ had nothing to which to relate, and that, for this reason, the indictment failed to set forth the state and county in which the crime was alleged to have been committed. An examination of the indictment will show that, preceding the expression ‘in the county aforesaid,’ there were recitals that the'grand jurors were selected for the county of Bartow, and that the charge was in the name and behalf of the citizens of Georgia. These recitals, taken in connection with the caption ‘state of Georgia, Bartow superior court,’ were sufficient to show clearly that the words ‘in the county aforesaid’ related to Bartow county, state of Georgia. This state and county had been set out, and no other state or county mentioned or referred to. It was, therefore, proper to overrule the motion to quash the indictment on this ground.”
In Commonwealth v. Edwards, 70 Mass. 1, two of the headnotes are as follows:
“In this commonwealth an indictment, which purports by its caption to have been found at a court of common pleas for the county of Hampshire, and in the body of which ‘the jurors for said commonwealth on their oath present,’ sufficiently shows that it was returned by the grand jury for the county of Hampshire.
“In this commonwealth, an indictment which purports by its caption to have been found at a court of common pleas for the county of Hampshire, and charges an offense at a town named ‘in said county,’ alleges with sufficient certainty the place of the commission of the offense.”
In Vidk v. State, 69 S. W. 156, a case from the Texas court of criminal appeals, the court said:
“The information lays the venue in Schleicher county, as follows: ‘Duke Stone, county attorney of the county of Schleicher, . ' . . presents in the county court of said county . . . that John Vick did . . . unlawfully and fraudulently take, . . . with the intent then and there,’ etc. This information sufficiently lays the venue in Schleicher county. The court properly overruled appellant’s contention in this regard.”
In The State v. S. A. L., 77 Wis. 467, the syllabus reads as follows :
“Where a county is named in the caption of an information by an officer describing himself as the district attorney of that county, an allegation that the offense was ‘then and there’ committed sufficiently shows that it was committed in said county.”
In the present case, the information, after stating the court in which it was ■ filed and that the county attorney was the county attorney of Cowley county, alleged that the defendant “then and there” did the things charged. The information was then signed by the county attorney. The affidavit of the county attorney to the’ information was sworn to in Cowley county before the clerk of the district court. The defendant was not and could not have been misled .by the information. - It completely charged the offense, but it may be that it defectively stated where the offense had been committed. That defect, if it were a defect, was a very technical one. It did not violate any substantial right of 'the defendant. A valid judgment could have been pronounced upon conviction under the first information. The defendant was brought to trial and was placed in jeopardy on that information, and the jury after being sworn was discharged without any of the reasons given in section 60-2914 of the Revised Statutes being named.
2. The state argues that the defendant brought about his discharge through his motion to quash the information. On the hearing of the motion, if attention had been called to the fact that the information did not in the body of it specifically charge that the offense had been committed in Cowley county, the court might very well have required the state to amend the information and then have overruled the motion. The court did not do that. It denied the motion and compelled the defendant to go to trial. The trial was then commenced, and jeopardy attached. When the defect in the information was finally called to the attention of the court, it could have then permitted an amendment and proceeded with the trial, but that was not done. The jury was discharged, and, under the decisions of this court, that amounted to an acquittal. (The State v. Reed, 53 Kan. 767, 37 Pac. 174; The State v. Allen, 59 Kan. 758, 54 Pac. 1060.)
The judgment is reversed, and the defendant is discharged.
Dawson and Hopkins, JJ., dissenting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by the plaintiff to set aside the will of Sarah E. Morse (formerly plaintiff’s wife). A motion by plaintiff for judgment on the pleadings was sustained and judgment rendered thereon for ihe defendants. Plaintiff appeals.
The issues involved here have been adjudicated in the cases of Craig v. Craig, 110 Kan. 13, 202 Pac. 594, and Craig v. Craig, 112 Kan. 472, 212 Pac. 72. The facts are fully set out in those cases. A few pertinent matters, however, may be noted. The plaintiff and Sarah E. Craig were married October 2,1916. She was twelve years his senior. Their marriage resulted unhappily. She left him three times, and in 1919 sued for divorce, which was granted March 27, 1920. He appealed to this court. Pending the appeal she became ill and was taken to a hospital at Atwood, Kan. She became of unsound mind, incapable of transacting business, and while in this condition the plaintiff fraudulently procured her signature to a stipulation providing for reversal of the judgment of divorce. The stipulation was filed in this court and an order of reversal entered thereon. In due time, on motion showing the circumstances, this court set aside its order of reversal and affirmed the original judg ment of divorce entered on March 27, 1920. A commissioner appointed by this court found that when she signed the stipulation for dismissal of the appeal she was of weak and unsound mind. During her illness and while of unsound mind she was taken from the hospital by the plaintiff, and destroyed a will which she had made after the entry of the decree for divorcé in the trial court. This is the will now in controversy. After destroying the will, and before this court had set aside its order of reversal, Sarah Morse died. After her death a copy of the destroyed will was filed in the probate court of Rawlins county. It was there admitted to probate June 9, 1921. The plaintiff, S. J. Craig, appealed from the order of the probate court to the district court. The district court upheld the will and ordered it admitted to probate. Plaintiff appealed from that decision to this court. The decision was here affirmed. (Craig v. Craig, 112 Kan. 472, 212 Pac. 72.)
The plaintiff contends that the will made by Sarah Morse was revoked and destroyed by her and that the copy thereof which was probated, or attempted to be probated, was null and void and of no effect; that the probate court was without power to probate the will because it was destroyed before her death.
Plaintiff’s contention is not sound. At the time of the attempted revocation and destruction of the will Sarah Morse was of unsound mind and not capable of revoking or changing her will in any manner. The probate court was clothed with power to find and determine that the will or copy thereof filed and offered for probate was the will of Sarah Morse, deceased. (Craig v. Craig, supra.) It is next argued that “the judgment in the divorce case was not an adjudication of anything, because after Mrs. Craig’s death in April, 1921, there was no jurisdiction in 1923 to dissolve the marital status reestablished in February, 1921.” Plaintiff overlooks the fact that when this court set aside its order of reversal and affirmed the judgment of divorce the affirmance related back to the entry of the decree by the district court in March, 1920.
Plaintiff contends that all the original proceedings had in .the probate and district courts and in this court were special proceedings which do not prevent him from now contesting the will in the present case. In support of this theory he cites Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537; Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, and other cases.
The rule announced in Hospital Co. v. Hale is not applicable here, because plaintiff fully contested the will in the former proceedings, just as fully and effectively as though a direct proceeding had been filed for that purpose. The action was so treated and considered by the parties, including the plaintiff. A paragraph of the syllabus in Craig v. Craig, 112 Kan. 472, 212 Pac. 72, covers the matters here urged by the plaintiff so fully that reference thereto is proper. It reads:
“Following the reversal of the judgment for divorce and the dismissal of that action in the district court, the former wife of appellant executed a will revoking her former will and leaving her property to be disposed of under the statute of descents and distributions. At the same time she destroyed the former will. The devisees named in the destroyed will brought proceedings in the probate court to establish and probate the destroyed will, alleging that it had been fraudulently and involuntarily destroyed between January 22, 1921, and the death of the testatrix, which occurred on April 17, 1921, and that the testatrix was throughout this period mentally incapable of making or revoking a will. The probate court made an order establishing the will and probating it. An appeal to the district court resulted in a judgment establishing the contents of the destroyed will and ordering it probated. The contention of appellant that because of sections 50 and 53 of the statute of wills, it was necessary for the proponents to show that the will was lost or destroyed subsequent to the death of the testatrix, considered and held to be without merit and that the courts have power to establish a will lost or destroyed before the death of a testator without a statute expressly authorizing the establishment of such a will; and further held, that by reason of the judgment of divorce, the former husband, appellant, has no standing to object to the probate of the will or to prosecute the appeal.” (¶[ 8.)
It was pertinently remarked by the court in the opinion that, “More attention would be paid to them (claims of plaintiff) were it not for the fact that by reason of the decision in the divorce case he (plaintiff) has no standing to raise objections to the probate of the will, or in fact to prosecute this appeal.” (p. 482.)
No useful purpose would be accomplished by further discussion of the facts or authorities. The present appeal is from an order of the district court sustaining plaintiff’s motion for judgment on the pleadings, which was carried back and sustained against plaintiff’s petition. The will in question had been fully contested by the plain7 tiff, in the probate court, in the district court, and in this court, on appeal. The answer of the defendants in the instant case alleged such former adjudication, and the trial court properly carried plaintiff’s motion for judgment on the pleadings back to his petition and sustained it. It was proper for the court to consider the whole record and give judgment to the party who, on the whole, appeared entitled to it. (31 Cyc. 606.)
The record presents no error. The' judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover a real-estate agent’s commission. Plaintiff prevailed, and defendant appeals.
The petition alleged that defendant employed plaintiff to assist in effecting a trade of plaintiff’s land for a stock of goods, and that, pursuant to his employment, plaintiff performed service whereby the trade was consummated. The answer alleged, in effect, that plaintiff lacked capacity to sue because he had not paid a city license tax upon real-estate agencies and agents. The reply alleged that before the action was commenced disability to maintain the action had been removed. Defendant contends plaintiff’s pleadings disclosed departure.
The basis of recovery proposed by the petition was employment of plaintiff as a real-estate agent and rendition of the service he was employed to perform. The portion of the answer under consideration did not touch that subject, and the reply did not touch that subject. The answer introduced new matter. The new matter was existence of a stated disqualification which barred recovery, although plaintiff w,as employed, and although he did render the contemplated service. Plaintiff was obliged to meet the new matter, ■and did so by pleading timely removal of disqualification. The reply was perfectly consistent with the petition. Plaintiff was a real-estate agent, was employed by defendant, and did what he was employed to do, whereby he earned a commission, whether disabled or not disabled to enforce payment of the commission, and that continued to be the basis of the relief which he sought after the reply was filed.
"New matter in the reply which the plaintiff is forced to plead in order to meet the allegations of the answer will not constitute departure if it does not contradict the facts stated in the petition and if it is not adopted as a new basis for relief in place of the cause of action presented by the petition.” (Hunter v. Allen, 74 Kan. 679, 88 Pac. 262, syl.)
By the decision in Hunter v. Allen the court intended to sweep away finical notions of departure which had previously prevailed, and to restrict application of what was left of the doctrine of departure to those instances in which actual prejudice might result from confusion of issues.
Removal of disability consequent upon nonpayment of the license tax, effected before the action was commenced, qualified plaintiff to recover. (Draper v. Miller, 92 Kan. 275, 140 Pac. 890.) Defendant contends that timely removal of disability was not proved.
On October 25,1921, the following action wias taken by the board of commissioners of the city of Wichita:
“On October 4, the board of commissioners considered request of Foulke & Nash to issue a reprieve to their client for failure to pay a certain real-estate license, Miscellaneous 187; same discussed; Hamilton moved that a reprieve be granted. Motion carried.”
Plaintiff’s petition was filed on November 2, 1921. On May 16, 1922, the board of commissioners of the city adopted the following resolution:
“Resolution granting Frank V. Minter a pardon and reprieve for violation of ordinance No. 6782 of the City of Wichita, Kansas.
“Whereas, Frank V. Minter has made application to this board for a pardon and reprieve from the liabilities imposed for violations of ordinance No. 6732 of the city of Wichita, Kansas:
“Be it resolved, therefore, by the board of commissioners of Wichita, Kansas, that said Frank V. Minter be and he is hereby granted a full and complete pardon and reprieve for any offenses which he may have committed in violation of the provisions of said ordinance, and particularly that portion which requires persons pursuing the business of making sales of real estate for others on a commission, to pay a tax as in said ordinance provided, it being the intention of this board to relieve the said Frank V. Minter from the liabilities imposed by said ordinance to the same extent as though he had never violated any of the provisions thereof, and it being the intention of said board of commissioners, in granting said pardon and reprieve, to bring itself under the provisions of section 1530 of the General Statutes of 1915.
“This resolution sjiall take effect as of the 25th day of October, 1921 (Journal M., page 60®, and confirms the action of the board of commissioners as of that date.
“Adopted this 16th day of May, 1922. “George H. Hamilton,
“Attest: H. D. Lester, City Clerk. ' Mayor.”
There was evidence that but one application for pardon was presented to the board of commissioners. It was presented previous to the action taken on October 25, 1921, and the client of Foulke & Nash referred to in the proceeding of October 25, 1921, was the Frank V. Minter who was named in the resolution of May 16, 1922, and who is the plaintiff. The statute under which the board of commissioners acted reads as follows:
“The board of commissioners shall have power to remit fines and forfeitures, to grant reprieves and pardons for all offenses arising under the ordinances of such city, by a majority vote of said board.” (R.S. 13-1901.)
Since a formal resolution, such as the resolution of May 16, 1922, was not necessary to a pardon or reprieve effective against the city, defendant’s contention is not well founded.
The parol evidence identifying plaintiff as the client of Foulke & Nash referred to in the proceeding of October 25, 1921, was supplied by the person who was city clerk in 1921 and 1922. The evidence was offered in response to a request by the court for information on the subject, was not objected to by defendant, and there was not, and is not now, any dispute about the facts. Doubtless because of the production of this testimony, the court left it to the jury to decide whether plaintiff was pardoned before he commenced his action. Defendant contends the question was one of law. If so, the jury .decided it correctly.
The allegations of the petition were well sustained by evidence, and the judgment of the district court is affirmed.
Harvey, J., concurs in the judgment of affirmance. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of bank robbery and appeals, challenging the constitutionality of the statute under which she was prosecuted. . The statute reads:
“That if any person shall enter or attempt to enter the premises of a bank or trust company or any banking association, with intent to hold up or rob any bank or trust company or banking association, or any person or persons therein or thought to be therein, of any money or currency or silver or gold, or nickels or pennies or of anything of value belonging to, or in the custody of, said bank or trust company or banking association, or from any person or persons therein; or shall intimidate, injure, wound or maim any person therein with intent to commit such holdup, ‘stick-up’ or robbery, he shall, upon conviction thereof, be sentenced to be imprisoned in the penitentiary at hard labor for a term of not less than ten years nor more than fifty years.” (R. S: 21-531.)
Defendant invokes familiar principles of constitutional law which declare that inherently innocent and harmless acts having no debatable relationship to general welfare, health, safety or morals cannot be arbitrarily decreed to be criminal by mere legislative fiat. On such broad and indisputable premises defendant argues that this statute makes it a crime to have an evil intention unaccompanied by any act. Her counsel say:
“Can it be said that for one to enter the premises of a bank with an evil intent, but without any evil act, has anything whatever to do with the public welfare, health, safety or morals of the community? Or that it involves any offense or manifest evil? It seems really ridiculous, as well as dangerous, for the legislature to place in the category of the most serious of felonies the mere possession of an evil intention when in the performance of a perfectly harmless act. To enter the premises of a bank is from every aspect innocent and commendable.”
But this proposition begs the question. The statute seeks to denounce and punish the act of entering a bank with the evil intent of robbery. It is analogous to that section of the crimes act which defines burglary in the second degree to be the act of entering a dwelling house with intent to commit a felony or other larceny therein. (R. S. 21-516.) This general theme is discussed at length in The State v. McCarthy, 115 Kan. 583, 223 Pac. 44.
Among other objections to the statute it is contended that it is a banking law, and that no banking law can have any force until it has been submitted to and approved by the electors of the state. (Const, art. 13, § 8.) That constitutional provision pertains to banks having authority to issue their own circulating currency, of which there have been none in this state for fifty years or more. (Pape v. Capitol Bank, 20 Kan. 440.) But the statute in question is not a banking act. Bank property is peculiarly liable to successful invasion by criminals — hence the statute, which is a salutary and highly necessary police regulation for the .protection of bank property and for the protection of persons in charge of bank property.
The other objections urged against the statute have all been noted, but none of them has any merit, nor is anything further suggested on defendant’s behalf which would justify discussion.
Judgment affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The plaintiff installed a heating plant in a district schoolhouse, and brought this action to recover the agreed price. The school district resisted collection on the ground that a guaranty of its operation with respect to heating and ventilation had been broken. On a trial without a jury judgment was rendered for the defendant, and the plaintiff appeals.
The principal contention of the plaintiff is that there was no evidence to sustain a finding of a breach of warranty — that the evidence conclusively showed that the heater complied substantially if not literally with the terms of the contract, and that if at any time it failed to do so the fault lay in the failure of those using it to follow instructions. There was considerable testimony in support of the plaintiff’s view, but there was also some of a contrary tendency. Witnesses for the defendant testified not only that the heater did not give proper results, but that the agent who sold it, upon request of the board, agreed to remove it within ten days; that he said all he wanted was authority to take it out. A review of the evidence in detail is not regarded as necessary to show the basis of the decision we reach, which is that it was sufficient to support the judgment.
Complaint is also made of the admission of evidence tending to contradict the terms of the written contract. We think the evidence was sufficient to sustain a finding of a breach of the warranty as written, and inasmuch as no jury was present a reversal would not be ordered even if the challenged evidence was not competent, the presumption in that case being that it did not influence the decision.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This case involves a contest of priority between C. P. Baxter, as mortgagee of an oil and gas lease, and the Beeler & Campbell Supply Company, claiming a lien under R. S. 55-207 against the lease for material furnished. On a former appeal it was held that in the circumstances presented several invoices of goods sold at different times were to be treated as furnished under so many separate contracts, and the cause was remanded with a direction to find the amount of the company’s superior lien on this theory, unless the parties should agree upon it. (Baxter v. Oil Co., 111 Kan. 621, 208 Pac. 568.) The district court in applying this direction allowed the company a lien for $304.03, being the price of material sold March 25, 1918. The next earlier item was dated March 12 and the next subsequent April 24. The trial court obviously rejected the later items because they were furnished after the mortgage had been given, and the earlier ones because they had been furnished more than four months before July 17, the date the lien statement was filed. On the former appeal the syllabus concluded with the words, “Held, that as each contract was a separate one, the furnishing of material under different contracts after the execution of the mortgage could not be tacked to the prior contract so as to give priority over the mortgage to the liens for additional material.”' Upon the strength of the language quoted, the appellant contends that while the prior decision determined that goods sold after the mortgage had been executed could not form the basis of a superior lien, the question was left open whether a lien could be sustained for items furnished more than four months before the filing of the statement. It having been decided that for the purpose of the case each sale of goods was to be regarded as a separate contract, it followed that no lien could be successfully claimed with respect to any item sold more than four months before a statement was filed. The text quoted in the original opinion in support of the view taken involved that very question, and the circumstance that the syllabus applied the rule expressly to the matter of the date of the mortgage, without mentioning the time of filing the statement, was not intended to suggest a different rule in that connection, nor do we think it fairly open to that interpretation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff sued the Union Stock Yards National Bank, S. C. Tucker and others, to recover $2,000 which he. had paid for preferred stock in the H-Q Hay and Grain Company, alleging that the stock was worthless, and that he had been induced to buy the same because of the fraud and deceit of defendants. The case was tried to a jury, who answered special questions and returned a general verdict for plaintiff. The defendants have appealed.
The Union Stock Yards National Bank was engaged in the banking business with offices in the Live Stock Exchange Building at Wichita. Associated with it was the Wichita Cattle Loan Company, a corporation engaged primarily in making loans on live stock. The two corporations were owned in most part by' the same stockholders, occupied the same rooms, used the same clerical force, and had the same managing officers. Mr. S. C. Tucker was president of both corporations. Mr. Ed. L. Hart, Jr., was cashier of the bank and treasurer of the Cattle Loan Company, and Mr. Chas. Pasche was assistant to the president of both corporations.
The H-Q Hay and Grain Company, hereinafter called the grain company, was a corporation organized in July, 1916, with a capital stock of $2,500, which was paid and owned one-half by Clyde C. Whiteley and one-half by Claude Shaft. The charter was amended in January, 1918, increasing the capital to $10,000, owned three-fourths by Shaft and his two brothers and one-fourth by Whiteley. It was again amended in October, 1919, increasing the capital stock to .$25,000, owned in the same proportions. No new capital was put into, the business because of these increases of capital stock; this was said to have been justified by earnings as shown by the book value of the assets of the company. In December, 1919, the charter was again amended by increasing the capital to $50,000. About this time the Shafts sold out to Whiteley. Of this increase in capital stock $10,000 was issued to Whiteley, for which he gave his note to the company, with the stock as security, which note was never paid. It is not clear what became of the remaining $15,000 of this increased capital.
The principal business of the grain company was the pürchase of alfalfa hay, grinding it into meal and selling the meal. It had a mill for this purpose at Valley Center, which was situated on the right of way of the railway company. The buildings and machinery were purchased in 1919 for $6,500, to be paid in monthly payments, of which about $3,000 was unpaid in July, 1920. Since the purchase some new machinery had been placed upon this property at a cost of $4,000 or more. The company also had two acres of land near the terminal elevator at Wichita. This had been purchased from the elder Mr. Shaft upon a contract, which was placed in escrow in the defendant bank, upon which about $3,000 was to be paid before deed would be delivered. What had been paid on it is not shown. On this tract the company had built of galvanized iron a warehouse for the storage of hay and feed, the cost of which is not shown; there was also situated on this property a small residence. These properties were valued in their statement of July 1, 1920, at about $30,000.
The grain company had offices on the second floor of the Live Stock Exchange Building at Wichita, and did its banking business with the Union Stock Yards National Bank, and borrowed from the bank from tim§ to time large sums of money. When these loans were more than the bank could legally make to one customer, the notes were made to the Wichita Cattle Loan Company, but for the purpose of this suit they are all regarded as loans of the bank.
On January 1, 1920, the grain company owed the bank and loan company $25,000 on unsecured notes. This sum varied from time to time in the months following, running as high as $50,000, and was $31,000 on June 5 and $38,000 on July 15. The deposits of the grain company in its account with the bank were largely made' up of sight drafts with bill of lading attached, for hay and feed that had been sold. Frequently the drafts would not be paid and would be charged back. These deposits varied in the first half of 1920 from about $167,000 in aggregate deposits in January to about $70,500 aggregate deposits in June. The average daily balance of the grain company in its account at the bank- for the months in the first half of 1920 varied from $258.74 in February to $1,980.84 in April, but in March, 1920, there was an average overdraft of $1,587.30. In the first six months of 1920 there were 52 days when the grain company’s account with the bank was overdrawn. These overdrafts ran as high as $8,000, and frequently were from $2,000 to $5,000. The bank charged interest at the rate of 8 or 9 per cent on its loans, also on the overdrafts and sight drafts while in process of collection, and exchange on the drafts.
Some time in June, 1920, the officials of the grain company concluded to endeavor to sell an issue of preferred stock, and for this purpose got in touch with Mr. Ray W. Snyder, a stock broker of Wichita, who had handled several issues of stock of various kinds, and who was in touch with investors of that class of securities. The balance sheet of the grain company on June 1, 1920, showed a loss of about $10,000 since January 1. This was said to have been brought about, in part at least, by the difficulty in getting cars for shipment, and the officials of the grain company thought by moving their mill from Valley Center to the site of their warehouse at Wichita they would be able to get cars more readily and avoid the loss their business was then suffering.
The issue of this preferred stock was talked of by Mr. Whiteley with the officials of the bank and Mr. Snyder. There was prepared an application for the increase of the capital stock to $75,000, $25,000 being preferred stock, which application was made to the charter board on June 25, 1920, and granted on July 5. A prospectus was prepared, showing the picture of the mill at Valley Center, the picture of the warehouse site at Wichita as it was, and also, a picture from a drawing of the Wichita site as it would appear when the mill at Valley Center was moved to that place and in opera-. tion. The prospectus consisted of four pages, the first of which stated, among other things:
“Business: The H-Q Hay and Grain Company is a corporation engaged in the handling of hay and grain and the manufacture of alfalfa hay into alfalfa meal. The business has grown from a small beginning and is therefore well rooted. The company owns a milband complete equipment located at Valley Center, Kan., and a site and warehouse property in the terminal district, Wichita. Offices are in the Live Stock Exchange Building, Wichita.
“Purpose of issue: To provide funds for the erection of buildings on the Wichita site and the removal of the mill equipment to the combined property. Photographs of the mill and site are shown on the next page and a sketch of the combined mill as at present planned.”
■ The second and third pages contained a statement signed by Clyde C. Whiteley, as president, addressed “To whom interested,” and stated, among other things, that the grain company was incorporated in 1916 with a capital of $2,500. “The earnings have been satisfactory, show a gradual growth,” giving figures for the four years. “Practically all of these earnings were put back in the business. These, together with the original paid-in capital, plus $10,000 later paid in, make up the present issued capital stock of $35,000.” It described the mill at Valley Center and said. “This building after the removal of the machinery will be used for warehousing. ... At Wichita the property consists of a warehouse, located on two acres of ground. . . . The funds derived from this issue, it is estimated, will be ample to effect the proposed changes,” which should about double the capacity of the mill. “When removed we intend to operate our mill day and night. This should give us maximum earnings on the invested capital. . . . As to the security, we have done everything we thought might protect the funds invested. . . . The funds derived will be carefully expended for what we believe to be a necessary and conservative betterment of the business. . . . There is no doubt as to our ability to pay the guaranteed dividend of 8 per cent on this issue. Our earnings have always been very ample to do this.”
'The last page of this prospectus contained this letter:
“The Union Stock Yards National Bank.
“Wichita, Kansas, June 25, 1920.
“To Whom it May Concern:
“The H-Q Hay and Grain Company have had their account with this bank from the time their business was started in 1916. The account has always been very satisfactory and well taken care of. The company is efficiently managed, and we have a very high estimate of the personal ability and moral character of the men behind this business.
“We believe that funds invested in the securities of the company would be conservatively placed where there are good possibilities for good profit.
“We shall be glad to give further information relating to this company to any one interested.
The Union Stock Yards National Bank.
(Signed) S. C. Tucker, President
This letter from the bank appears from the evidence to have been given and used under the following circumstances: When Whiteley was preparing to issue the preferred stock he and Snyder talked with Mr. Tucker, Mr. Pasche and Mr. Hart of the defendant bank about the matter, going over the situation thoroughly. At the suggestion of some one, just whom is not clear, the officers of the bank agreed to give the grain company a letter which might be used in the sale of the. stock. Later a letter was prepared, perhaps by Mr. Pasche, and sent to the grain company’s office, which Mr. Snyder describes as “a mere jumble of words.” Snyder then prepared a letter, and he and Whiteley took' it to the bank, but finding none of the officers there except Mr. Tucker, he showed the letter to Mr. Tucker and told him either to sign it or redictate something similar, or he would not handle the issue of preferred stock. Mr. Tucker studied a minute, read the letter over and finally signed it. The letter was then printed on the prospectus, 500 copies of which were issued, one of which was mailed to the bank. Mr. Hart states that he never saw this particular letter until it was shown in court, but he did know in July or August that such a letter had been furnished and was being used. Mr. Pasche was away part of the summer, but on his return to Wichita he learned of such a letter, though perhaps he did not see it until it was shown in court. •
Mr. Whiteley devoted most of his time for the two months in July and August in endeavoring to sell preferred stock and in assisting Mr. Snyder to sell it. In the meantime the business of the grain company was handled largely by Miss Lavone Smith, secretary of the company and its bookkeeper.
About September, 1920, through the suggestion of the officials of the bank, Mr. Whiteley discontinued his connection with the grain company, and Mr. Ed. T. Hart, Jr., was placed on the board of directors in his stead, and Mr. Claude Shaft was employed as manager. About that time Mr. Snyder refused to sell any more of the stock. Soon thereafter, in November, 1920, the grain company executed to the bank mortgages upon all of its property to secure the notes then held. The grain company continued to operate until about April, 1921, when it could no longer do business, and the mortgages which it had given to the bank were foreclosed.
The evidence of the plaintiff was that he bought $2,000 worth of the preferred stock through Snyder and Whiteley, relying upon the statements in the prospectus and the certificate of stock issued to him, and largely relying upon the letter of. the bank. This purchase was made August 30, 1920. A trial balance of the grain company’s business of September 30, 1920, shows losses since January- 1 of $18,499.12.
Preferred stock to the amount of $13,000 was sold. When, the ■money began to be received from the sale of preferred stock there was quite a little talk as to what should be done with it. Mr. Snyder instructed Miss. Smith to be careful how that money was handled. She talked with Mr. Pasche of the bank about it, and there was some talk that it would be placed in another bank in a separate fund, to be used for the purpose for which it had been raised, but Mr. Pasche, on behalf of the bank, agreed with Miss Smith that if the money were paid upon the notes, that the bank would let the grain company have it when it was ready to use it to move the buildings .from Valley Center to Wichita. This arrangement was later approved by Mr. Whiteley, and Mr. Hart was informed of it. All of the deposits of money from the sale of preferred stock were so shown upon the deposit slips, together with the name of the purchaser. The deposits were first made in the bank in the account of the grain company, and the grain company then gave its check for the full amount of the money received from the sale of preferred stock in payment upon its notes. These payments from the sale of preferred stock reduced the notes to the bank and loan company to about $21,000.. Later the bank did increase its loans to the grain company. Just what the increased loans were for is not shown, except that they were not for the purpose of enabling the grain company to move its mill from Valley Center to Wichita.
Plaintiff contends that the preferred stock was worthless when he bought it; that in the various trial balances of the grain company and statement prepared by it to obtain an increase of capital stock, the assets were listed at more than their actual value and the liabilities were listed at less than the real liability; that the real purpose of the bank and its officials was to have the grain company get money to be paid upon notes owed to the bank and the loan company; that the letter of the bank, used on the prospectus and relied upon, in part at least, by the plaintiff when he purchased the stock, contained misrepresentations of fact falsely made for the purpose of inducing persons to purchase stock.
Two quarterly dividends of $40 each were paid to plaintiff, and the bank was willing to furnish the money to pay the third dividend, but checks for that were never issued.
On April 13, 1921, the secretary of the grain company wrote plaintiff, inclosing a financial statement of the company for April 1, and called attention to the fact that the company was in a critical financial condition. The statement showed the losses at that time to be $25,770.75.
Before suit was brought, plaintiff’s attorney presented a copy of the original petition to the president of the bank, advised him of plaintiff’s contention that he had been induced by the letter of the bank, signed by Mr. Tucker, to invest his money; that he claimed the same was a fraud; that the bank had received the money and retained it, and that he asked for its return, which was refused.
The suit was brought against the bank and the loan company and against the principal officers of the bank and the officers and directors of the grain company. At the close of plaintiff’s evidence the court sustained a demurrer on behalf of all of the defendants except the bank and S. C. Tucker. The appellees complain about that ruling in this court sustaining the demurrer as to some of the defendants, but since no cross-appeal was taken, the correctness of that ruling will not be further considered. The appellants, the bank and S. C. Tucker, contend that the demurrer should have been sustained as to them.
It is argued on behalf of appellants that’ the letter contained expressions of opinion only and not representations of fact. It is conceded by appellants that since the representations were in writing it was proper for the court to construe the writing and say whether it contained representations of fact or mere expressions of opinion. (5 Wigmore on Evidence, 2d ed. § 2556; Liggett v. Bank, 233 Mo. 590.) The court did rule upon that matter and held the representations to be of fact. Appellants complain of that ruling and say whether the account had been satisfactory to the bank and to Mr. Tucker was a matter for them to pass upon, and that if they so regarded it no one else can be heard to say it was not satisfactory. In that connection we are cited to cases where by contract one is to perform labor, to furnish evidence of title, or to sell goods or machinery that will be satisfactory to the other party, in which cases it is frequently held that the other party has the option to say whether or not he is satisfied. But this reasoning and this line of cases is not applicable here, for the reason that this statement was not made to influence the bank or Tucker, but was made for the purpose of affording a basis for the action of the investing public. The words, therefore, should be construed in their ordinary meaning.
“Satisfactory” is defined as “giving or producing satisfaction, yielding content, especially relieving the mind from doubt or uncertainty and enabling it to rest with confidence.” (35 Cyc. 794.) “Giving or producing satisfaction, yielding content, especially relieving the mind from doubt or uncertainty, sufficient; as, a satisfactory account.” (Webster’s Dictionary.) And “very” is defined as meaning “in a high degree, to no small extent, exceedingly, extremely.” (Webster’s Dictionary.) Hence these words in this letter mean to the investing public that the account of the grain company with the bank had to a high degree produced satisfaction, relieving the minds of the bank officials and of Mr. Tucker, its president, from doubt or uncertainty.
It is something like the meaning of satisfactory when we speak of satisfactory evidence, which is that evidence which ordinarily produces moral certainty or conviction in an unprejudiced mind, such as ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. (Winston v. Burnell, 44 Kan. 367, 369, 24 Pac. 477; State v. Prosper, 41 Mont. 442; Goltra v. Penland, 45 Ore. 254; Brewer v. Boose, [Tex.] 146 S. W. 323, 325.)
■. This is not an ordinary letter of introduction such as was before the court in Bank v. Allen, 92 Kan. 481, 141 Pac. 553 (and allied cases), which contained no suggestion that the addressee should advance money upon the strength of it. This is a letter prepared, designed and used to influence the investing public; to cause persons with money, to invest the same in the preferred stock of the grain company by reason of the statements therein.
Appellants argue that the statement in the letter, “We believe that funds invested in the securities, of the company would be conservately placed where there are good possibilities for good profits,” is obviously from its form and wording a mere expression of opinion and not a representation of fact. But the form or wording of the statement is not always controlling, especially when the writer professes to have, and does in fact have, knowledge of the condition of which he speaks superior to that of the person to whom it is addressed.
In Reeves v. Corning, 51 Fed. 774, 780, it was said:
"There is no certain rule of law by the application of which it can be determined when false representations constitute matter of opinion or matter of fact. Each ease must, in large measure, be adjudged upon its own circumstances. In reaching its conclusions the court will take into consideration the intelligence and situation of the parties, the general information and experience of the people as to the nature and use of the property, the habits and methods of those dealing in or with it, and then determine, upon all the circumstances of the ease, whether the representations ought to have been understood as affirmations of fact or as matters of opinion or judgment.”
In 26 C. J. 1085 the rule is thus stated:
“Where the parties deal at arm’s length with equal means of knowledge, the general rule that an expression of opinion is not actionable applies. But even an expression of opinion may constitute fraud where the relation of the parties is such that they do not deal upon equal terms and the speaker possesses superior knowledge of the subject, and this is especially true where the speaker expresses an opinion which he does not entertain and states it in positive terms relating to a matter susceptible of knowledge. Under such circumstances it may be said that the statement of opinion amounts to a false affirmation of fact, or to an implied assertion that the speaker knows facts justifying the opinion, and it is immaterial in which way the rule is expressed. In any event there is liability for the false affirmation of the fact that the opinion exists.”
And at page 1086:
“Where the speaker has superior knowledge or means of knowledge and a relation of confidence exists, such that the speaker knows the hearer relies upon his statements as true, the speaker’s expression of an opinion intended to deceive constitutes remediable fraud.” (See, also, Robbins v. Barton, 50 Kan. 120, 126, 31 Pac. 686, and cases collected in the notes 35 L. R. A. 417 and L. R. A. 1915A 100.)
The statement is tantamount to saying that the writer, speaking for himself and other bank officials,. represents as a fact that he believes (i. e., that it is his judgment, based upon his intimate business relations with the grain company since its organization,. a period of about four years, during which time the account of the grain company with the bank and the manner in which it was taken care of had been such as in a high degree to relieve the mind of the writer and other bank officials from doubt and uncertainty concerning it; the efficient management of the company, asserted as being known to the writer, as well as the high estimate of the ability and moral character of the men connected with it) that funds invested in the securities of the company would be conservatively placed (i. e., safely placed, where there would not likely be innovation or radical change) with good possibilities for good profits. Force is added to this by an expression of willingness to give further information to anyone interested, naturally inferring that the more thoroughly one investigated the more thoroughly would he be convinced of the soundness of the company, its efficient management and the conservativeness of an investment in its securities.
It was -not error for the court to hold that the letter contained representations of fact, which, if false and one was injured thereby, would sustain an action for damages, rather than mere expressions of opinion which would not form the basis of an action.
Appellants argue that their demurrer should have been sustained because of the insufficiency of the evidence'to go to the jury in respect to the issues (a) of falsity of representations, (b) scienter, and (c) ratification by the bank of the unauthorized act. With respect to the falsity of representations, without again summarizing the evidence set out in the statement of the case herein, we think there was ample evidence to go to the jury on that question. Scienter, as the term is here used, means such knowledge as charges a man with the consequences of his acts. Generally, to constitute remedial fraud, misrepresentations must be made with scienter; that is, either with knowledge of their falsity or with culpable ignorance of their truth (26 C. J., 1105). Scienter may be established by showing actual knowledge of falsity, an assertion of actual knowledge coupled with ignorance of the truth, or a false statement made under special circumstances imposing a duty to know the truth (26 C. J., 1108). Generally it is held that fraud may be predicated upon a representation whether spoken with actual knowledge of its falsity or in reckless ignorance of the truth. (Bank v. Hart, 82 Kan. 398, 108 Pac. 818; Rucker v. Allendorph, 102 Kan. 771, 172 Pac. 524.) The evidence was sufficient to go to the jury on this question.
The trial court held that the writing of a letter, such as relied upon by plaintiff, is not a banking function and not within the implied authority of a bank president. There is no controversy over this holding. It is argued on behalf of the appellant bank that, even assuming the evidence sufficient to hold Tucker liable, the bank could not be held liable without showing a ratification by the bank of the unauthorized act of Tucker in writing the letter, and that the evidence on that question was not sufficient to go to the jury.. We regard the evidence as sufficient, under the authority of Abmeyer v. Bank, 103 Kan. 356, 179 Pac. 368, and cases there cited.
Appellants complain of the following instruction of the court:
“If you find that the prospectus containing the Tucker letter, or a copy of it, was placed in a stamped envelope addressed to the Union Stock Yards National Bank and deposited in the United States mails, this creates the presumption that the letter was properly transmitted in the due course^ of the mails to the bank, and was there received by the bank and its proper officers, and unless this presumption is rebutted by sufficient evidence to satisfy you that the prospectus containing the letter was not so-received by the bank, this would constitute notice to the bank of the Tucker letter and its contents and the fact that it was being used in connection with the sale of the preferred stock.”
In 22 C. J. 96 the rule is thus stated:
“When a letter or other mail matter is properly addressed and mailed with postage prepaid, there is a rebuttable presumption of fact that it was received by the addressee as soon as it could have been transmitted to him in the ordinary course of the mails.” (See, also, 21 R. C. L. 765, 769; Fleming v. Evans, 9 Kan. App. 858, 860; Vancil v. Hagler, 27 Kan. 407.)
We think the instruction was not misleading under these authorities.
The jury returned a general verdict in favor of plaintiff and against the defendant S. C. Tucker for $1,920 (which was for the $2,000 paid by plaintiff for the preferred stock, less $80 which he had received in dividends), and against the defendant bank for $2,318, being for same sum plus interest at six per cent from the time the bank received the money until the trial.
The appellant bank complains of the court’s instruction on the matter of interest. As to S. C. Tucker, whom the evidence did not show received plaintiff’s money, the court held the action to be an unliquidated claim for damages which would not draw interest before judgment. Complaint arguendo only is made as to that. As to the defendant bank, the court instructed the jury, in substance, that if they found against the bank, and that the bank received the money and knew of and ratified the fraud at the time it received the money, it would be liable for interest on the amount so received and retained from the date it was received. There was no error in this. (Ellsworth v. Trinkle, 96 Kan. 666, 153 Pac. 543.)
Complaint is made of the answers to special questions. It will not be necessary to examine them in detail. The alleged errors pointed out in them are not material.
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The opinion of the court was delivered by
Marshall, J.:
Neander C. Ewing commenced one of these actions to recover from the defendant damages sustained by him in a collision with a train while he was attempting to cross the railroad track of the defendant at a public highway. Neander C. Ewing, as administrator of the estate of Hattie E. Ewing, attempted to recover damages for her death, which occurred 'in the same accident. A verdict was rendered for the defendant in each case, and the plaintiff in each case appeals.
The cases were tried together in the district court, and questions submitted to the jury were answered as follows:
“1. Was the plaintiff, Neander C. Ewing, guilty of contributory negligence? A. Yes.
“2. Was the wife of plaintiff, Hattie E. Ewing, guilty of contributory negligence? A. No.
“3. Was the defendant guilty of negligence? A. Yes.
“4. Did the defendant keep and maintain the railroad crossing and south approach thereto in a reasonably safe condition for persons traveling in an automobile on the highway over said crossing? A. No.
“5. If you answer the last preceding question in the negative, did the defective condition of the railroad crossing kill the engine of plaintiff’s automobile shortly before the accident in question? A. No.
“6. Would plaintiff’s automobile have safely crossed over the railroad crossing if the engine had not been killed on the crossing? A. Yes.
“7. Did the train whistle at the regular whistling post for the crossing where the accident occurred? A. Yes.
“8. Did the railroad company cause boards to be placed well supported by posts or otherwise and constantly maintained with boards elevated so as to be easily seen by travelers coming from the west toward the crossing in question? A. Yes.
“9. Did the defendant railroad company allow unnecessarily high weeds and brush to grow upon its right of way west of said crossing at the time of the accident, which interfered with the view of approaching trains coming from the west? A. Yes.
“10. If you answer the last preceding question in the affirmative, did plaintiff know at the time of the accident that the weeds and brush in the right of way interfered with the view of trains coming from the west? A. No.
“11. When Mr. Ewing first discovered that he was approaching the railroad crossing, did he increase the speed of the automobile? A. Yes.
“12. What was the highest rate of speed at which the automobile traveled as it approached the railroad crossing after Mr. Ewing discovered that this crossing was ahead of him? A. Twelve miles an hour.
“13. If the automobile had approached the railroad crossing at a rate of speed not in excess of eight miles per hour, could its occupants have seen the train as it approached from the west in time to avoid the collision? A. Yes.
“14. From a point in the highway fifty feet south of the track was the view of a train approaching from the west open for a distance of eight hundred feet west of. railroad crossing, under the weather conditions on the date of the accident? A. Yes.
“15. From a point in the highway fifty feet south of the track, for what distance west of the railroad crossing could a train approaching from the west have been seen under the weather conditions on the date of the accident by a person traveling in an automobile? A. Eight hundred feet.
“16. As a traveler on the highway proceeded nearer to the railroad .crossing after passing a point fifty feet south of it, would the distance that a train approaching from the west could be seen steadily increase? A. Yes.
“17. From a point in the highway twenty-five feet south of the track, for what distance west of the railroad crossing could a train approaching from the west have been seen under the weather conditions on the date of the accident by a person traveling in an automobile? A. About 1,300 feet.
“18. How far west of the crossing was the locomotive engine at the time the plaintiff’s automobile went upon the track? A. About 113 feet.
“19. Did the railroad engineer omit to do anything that he could have done to prevent the accident after the automobile got upon the track? A. No.
“20. If you answer the last preceding question in the affirmative, then state fully what the engineer omitted to do?
"21. State fully what, if any, negligence the defendant was guilty of? A. Failing to keep the weeds and brush cut on south side of right of way immediately west of crossing and failure to keep crossing and grade on south side of crossing in proper condition.
“22. As their automobile approached the crossing did Mr. and Mrs. Ewing have an understanding that they would both keep a lookout for approaching trains? A. Yes.”
The answers to the questions submitted to the jury are fully set out in the abstract, but a transcript of only a part of the evidence has been made and only the part transcribed has been abstracted.
1. The plaintiffs complain of instructions numbered 7, 8, 9, and 19% given by the court, and argue that those instructions were not based on evidence. Those instructions were as follows:
“7. You are instructed, gentlemen, that where two or more parties are in pursuit of a mutual purpose and possessed of equal privileges of direction and control of a vehicle in which they are traveling in pursuit of such common object, they are in the law held as agents of each other and the negligent act of one in the furtherance of the common purpose is imputable to the other.
“8. If Mrs. Ewing by agreement or understanding with her husband undertook to keep a lookout for trains as they approached the crossing where the accident occurred, then she had the same duty to ascertain that there was no train approaching before she went upon the track as the driver of the car had; and if she failed to exercise due care in this respect and such failure contributed to cause the accident, as hereinafter explained, then your verdict must be for the defendant in the suit to recover damages for her death.
“9. If you find from the evidence in the case that the plaintiff and his wife were, at the-time of the injuries complained of, in pursuit of a mutual purpose and possessed of equal privileges of direction and control of the automobile in which they were traveling in pursuit of such common object, and either did something or refrained from doing something that amounted to a #want of ordinary care, which act or acts cooperated with act or acts of the defendant to produce the injuries complained of, and that such act or omission to act on the part of plaintiff or his wife was the proximate cause of the injuries complained of, then the plaintiffs were guilty of contributory negligence, and cannot recover.
“19%. The laws of this state provide that upon approaching a railroad crossing outside of any village or city a person operating an automobile shall reduce the speed of his machine to a rate not exceeding eight miles an hour, and shall not exceed such speed until entirely past such crossing. If you find from the evidence in this case that Mr. Ewing, in approaching the crossing where the accident occurred, violated this requirement of the law and that his violation of it contributed to cause the injury, then I instruct you that he cannot recover in this case for his own personal injury or for the damage done to his automobile in the collision; and if Mrs. Ewing was in joint control of said automobile, as elsewhere explained, no recovery can be had for the loss of her life.”
The abstract of the plaintiffs does not purport to be an abstract of all the evidence and does not say that there was no evidence on the propositions concerning which the court instructed the jury in instructions 7, 8, and 9. The abstract does say it “is a true and correct abstract of all proceedings necessary to present the questions raised on appeal,” but that it is not sufficient for this court to determine that the court erred in giving instructions where it is urged that they were erroneous because they were not based on evidence. The abstract should in some way show that there was no evidence on which to base such instructions. The defendant has abstracted a part of the evidence. The abstract of the plaintiffs and the abstract of the defendant show that instructions numbered 7, 8 and 9 were based on evidence.
Instruction 19% merely repeated what the statute declares to be the law. Section 8-122 of the Revised Statutes in part reads:
“Upon approaching a railroad crossing or intersection of highways outside of any village or city, or turning comers, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour, and shall not exceed such speed until entirely past such crossing or intersection.”
No error in the instructions has been shown.
2. Another complaint is that “plaintiffs were denied an opportunity to discuss the special questions of fact as a part of their opening argument to the jury.” The plaintiffs had more than one counsel conducting the trial. One of them made the opening argument and closed it. The defendant then waived argument. The plaintiff then requested permission to argue the special questions of fact. That permission was denied. Of that the plaintiffs complain.*
In Railroad Co. v. Vanzego, 71 Kan. 427, 80 Pac. 944, the syllabus reads as follows:
“Where, on the trial of a case in a district court, the arguments to the jury are limited to one hour on each side, and the attorney for the party on whom rests the burden of the issue announces that he desires to occupy only thirty minutes and requests the court to inform him when the time has expired, which the court does, and he ceases without request for further time, and thereupon the attorney for the opposing party asks that the case be submitted without further argument, it is prejudicial error to permit another attorney to address the jury in behalf of the first party.”
This rule was followed in S. K. Rly. Co. v. Michaels, 49 Kan. 388, 30 Pac. 408, and in Nemaha County v. Allbert, 6 Kan. App. 165.
It was not error to refuse permission to the plaintiffs to again argue the case for the purpose of discussing the special questions of fact.
3. It is contended that the court erred “in overruling plaintiffs’ motion for new trial and to set aside the special findings, because the findings of fact were determined by only a majority vote of the jury.” On the hearing of the motion for a new trial, the plaintiffs introduced the affidavits of a number of jurors which tended to show that in the determination of the answers to the questions some were first agreed to by a majority vote. There is nothing to show that the jury had agreed to adopt the decision of the majority, and there is nothing to show that after the majority had agreed the others did not consent thereto.
The question presented is closely analogous to one presented on a quotient verdict, where the rule is that after a quotient has been reached by each juror marking the amount to which he is willing to agree and the different amounts are added together and the sum divided by the number of jurors and the quotient is then agreed to as the verdict, it will stand as such. (City of Kinsley v. Morse, 40 Kan. 588, 20 Pac. 222; Taylor v. Abbott, 85 Kan. 198, 115 Pac. 979; Campbell v. Brown, 85 Kan. 527, 534, 117 Pac. 1010; Rambo v. Electric Co., 90 Kan. 390, 394, 133 Pac. 553; Sims v. Williamsburg Tp., 92 Kan. 636, 642, 141 Pac. 581; Helms v. Railroad Co., 96 Kan. 568, 572, 152 Pac. 632; Orendorff v. Manufacturing Co., 103 Kan. 183, 184, 173 Pac. 281.)
The verdicts with the answers to the special questions were returned and read in open court and were received as the verdicts and the answers of the jury. If there had been any dissent from any juror, neither verdicts nor answers would have been received.
4. The plaintiffs urge that their motions for a new trial should have been sustained because it was shown by affidavit that some of the jurors did not understand the instructions and that they would not have agreed to the verdicts if they had understood that the verdict in one case could have been different from the verdict in the other case. These are matters that inhered in the verdicts. It has long been settled that affidavits or evidence of jurors will not be received to show any matter which essentially inheres in the verdict, as that they did not assent to the verdict, that they misunderstood the instructions or the evidence, or any other matter resting alone in the jurors’ breasts. (Perry v. Bailey, 12 Kan. 539; Brice-Nash v. Salt Co., 83 Kan. 447, 111 Pac. 462; Ohlson v. Power Co., 105 Kan. 252, 182 Pac. 393; Milling Co. v. Edwards, 108 Kan. 616, 620, 197 Pac. 1113; Mathews v. Langhofer, 110 Kan. 36, 39, 202 Pac. 634.) A large number of other cases might be cited to the same effect. It is not necessary to cite any more.
The verdicts and the answers were agreed to by the jurors, and no juror can be permitted to testify concerning what controlled him in reaching his conclusion. He can testify concerning misconduct of the jury, but he cannot testify concerning the wrong exercise of his judgment nor concerning his misunderstanding of the instructions.
5. The plaintiffs contend that the court erred “in overruling plaintiffs’ motion to set aside the findings of fact because they are inconsistent with one another and inconsistent with the general verdicts, and contradictory to and not supported by the evidence.” When the answers to the questions are examined to ascertain what are the inconsistencies or contradictions between them or between them and the general verdicts, none is apparent except a contradiction between the answer to question No. 1 and the answer to question No. 2. In the answer to question No. 1 the jury found that Neander-C. Ewing was guilty of contributory negligence, while in the answer to question No. 2 the jury found that Hattie E. Ewing was not guilty of contributory negligence. No other inconsistency or contradiction is apparent. Concerning the answer to question No. 2, it must be said that Hattie E. Ewing could have seen the train long enough before going upon the track to have notified her husband two or three times of the approaching danger. She either saw the train in ample time to have avoided the danger or she did not look in time. In either case she cannot recover.
In Grisham v. Traction Co., 104 Kan. 712, 715, 181 Pac. 119, the following language was used:
“This court has often' said that a person who is injured while attempting to cross a railroad track in front of an approaching train, which he sees, Olean see if he looks, is guilty of contributory negligence, and cannot recover for that injury.” (Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742; Bunton v. Railway Co., 100 Kan. 165; 163 Pac. 801; Williams v. Electric Railroad Co., 102 Kan. 268, 271, 170 Pac. 397; Burzio v. Railway Co., 102 Kan. 287, 290, 171 Pac. 351; Schaefer v. Interurban Railway Co., 104 Kan. 394, 179 Pac. 323; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Reader v. Railway Co., 112 Kan. 402, 210 Pac. 1112; and Rathbone v. Railway Co., 113 Kan. 257, 214 Pac. 109.)
What has been said concerning Hattie E. Ewing likewise applies to the plaintiff Neander C. Ewing. The answers to the special questions show that he did not look, or if he looked he saw, and attempted to cross the track ahead of an approaching railroad train. The answers of the jury showed that the plaintiffs cannot recover. If the verdicts and judgments had been in their favor, this court would be compelled to reverse them and render judgments in favor of the defendant.
The plaintiffs, in effect, argue that the answers to the questions which show that the defendant was guilty of negligence are inconsistent with the answer to the question which shows that Neander C. Ewing was guilty of negligence. There is no inconsistency between these answers. Both Neander C. Ewing and the defendant could have been guilty of negligence, as likewise could have been Hattie E. Ewing. There is not such an inconsistency or contradiction between the answers to the special questions or between the answers and the general verdicts which requires this court to say that the district court committed error in refusing to set aside the findings of fact or in refusing to grant a new trial.
The sufficiency of the evidence to support the verdicts and the answers is challenged. The plaintiffs have not sufficiently abstracted the evidence to present the question raised by them. The defendant has also furnished an abstract. From both abstracts it appears that there was sufficient evidence to support the answers and verdicts so far as they are questioned by the brief of the plaintiffs.
This disposes of both cases, and it is not necessary to further consider the fifth assignment of error made by the plaintiffs, which concerns the case of the administrator of the estate of Hattie E. Ewing against the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to obtain a judgment declaring that those licensed to practice osteopathy under the laws of this state cannot under such license practice optometry without a certificate of registration as an optometrist. Judgment-was rendered for the defendant, and the plaintiff appeals.
The action was tried on an agreed statement of facts which showed than on October 15, 1912, the defendant obtained from the State Medical Board of Examination and Registration a certificate authorizing him to practice osteopathy in the state of Kansas. The answer alleged that — -
“The said defendant since the issuance of said certificate has been practicing at Beloit, Kan., as a doctor of osteopathy, and that he has practiced as a doctor of osteopathy ever since the year 1912; that he has also practiced as optician or doctor of optics under the provisions of the laws of the state of Kansas as applied to said.license. . '. . That the science of optometry is included as a portion of the science of osteopathy and is a subdivision of the science of osteopathy. That optometry was taught fully and completely in the schools of osteopathy, and when he graduated as a doctor of osteopathy his graduation included that of doctor of optics, and that his license as a doctor of osteopathy gives him the right to practice optometry thei same as any other branch of. osteopathy.”
The determination of this controversy depends on the construction of. the statutes governing the practice of osteopathy and of optometry.
Sections 65-1201 to 65-1206, inclusive, provide for the examination and registration of those who desire to practice osteopathy in this state, but osteopathy is not defined in the statute. We must look to the law books for the definition of the term. 3 Words and Phrases, 2d series, 803, defines osteopathy as “a method of treating diseases of the human body without the use of drugs, by means of manipulation applied to. various nerve centers, chiefly those along the spine, with a view to inducing free circulation of the blood and lymph, and an equal distribution of the nerve forces. Special attention is given to the readjustment of any bones, muscles or ligaments not in the normal position. It is that method of the healing art accomplished by a system of rubbing or kneading the body.”
Section 65-1501 of the Revised Statutes defines the practice of optometry as follows:
“The examination of the human eye without the use of drugs, medicines or surgery, to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms, or ocular exercises and their adaptation for the aid thereof.” •
Section 65-1502 states who are deemed practitioners of optometry. Section 65-1503 provides for the registration of optometrists. Section 65-1504 defines offenses under the act concerning optometry. The next section gives the qualifications of practitioners. The next two sections prescribe when and the manner in which certificates may be revoked.
Section 65-1508 reads:
“Nothing in this act shall be construed to prevent regular physicians and' surgeons who are registered with the state medical board, as such, from testing eyes and fitting glasses.”
The remaining sections of the act are immaterial so far as this case is concerned.
The defendant contends that under the last section quoted he has the right to practice optometry under his certificate of registration as an osteopath. He supports this contention by arguing that the practice of osteopathy is a part of practicing the healing art, and that so far as the practice of that art is concerned, the statutes providing for the registration of optometrists make nó distinction between those who practice the healing art by the administration of medicines or by surgery and those’who practice that art according to the science known as osteopathy. The defendant cites several cases from the courts of other states. They have been ex amined, but this court is unable to get any assistance from them in the determination of the question under consideration.
Section 65-1001 of the Revised Statutes, in part, reads:
“All persons intending to practice medicine or surgery after the passage of this act, and all persons who shall not have complied with section 2 of this act, shall apply to said board at any regular meeting, or at any other time or place as may be designated by the board for a license.”
Section 65-1005 of the Revised Statutes, in part, reads:
“Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatsoever nature for the cure or relief of any wounds, fracture or bodily injury, infirmity or disease of another person.”
Webster defines the term physician as “a person skilled in physic or the art of healing.” The term surgery is defined by the same writer as “the art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities, or injuries.”
Osteopathy when practiced by a physician or surgeon, as is defined in section 65-1005, may be and probably is a part of the art or science of healing, but the practice of osteopathy, while it may be a part of the art of healing, is not comprehended within the term “practicing medicine,” nor within the term “surgical operation,” as used in section 65-1005 of the Revised Statutes. Section 65-1508 of the Revised Statutes, providing that nothing in the optometry act shall be construed as preventing regular registered physicians and surgeons from practicing optometry, does not include those who are registered to practice osteopathy. This conclusion is supported by In re Rust, 181 Cal. 73, where the supreme court of that state said:
“A person, licensed to practice osteopathy is not a physician within the provision of section 10 of the act regulating the practice of optometry (Stats. 19.13, p. 1093), which declares the provisions of the act shall not be construed to prevent duly licensed physicians and surgeons from treating or fitting glasses to the human eye, since the act of 1913 regulating the practice of medicine and surgery recognizes a distinction between the two professions in providing for the issuance of separate and distinct licenses, which distinction was also recognized in prior repealed acts.” (See, also, State v. Rust, 119 Wash. 480.)
It follows that the defendant, under his certificate of registration as an osteopath, cannot practice optometry as it is defined in the statutes of this state.
The judgment is reversed, and judgment is entered for the plaintiff. | [
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The opinion of the court was delivered by
Mason, J.:
On September 28, 1919, J. R. Zecha, of Ellinwood, began negotiating for the purchase from Sherwood Noll, of Peabody, of stock in the Leeward Petroleum Corporation. Three days later he borrowed $2,000 from the Citizens State Bank, of Ellinwood, giving his note therefor, and signed a check for that amount, payable to Noll, which he left with the bank with directions to deliver it in exchange for the stock. The bank received from some source the designated amount of stock in the Leeward company. It delivered this to Zecha and credited the check to the account of E. A. Mabes, who had some relations with Noll in handling oil stock. The check was not indorsed by any one, and was returned to Zecha with his other paid checks at the end of the month. On February 20, 1922, Zecha sued the bank for the amount of the check, alleg ing that he had not discovered until November 26, 1921, that the check had not been paid to Noll. He recovered judgment for the amount of the check and interest, less $28 which he' had received in 1921 as a dividend on the stock. The defendant appeals.-
In the second amended petition, upon which the case was tried, the plaintiff alleged, by way of showing that the stock he had received was not what he had bargained for, and was worth less to him, that Noll had guaranteed its value and had agreed that if the plaintiff became dissatisfied with the purchase he would refund the price. The plaintiff gave this testimony:
“About the 28th of September, 1919, I went to Peabody and met Mr. Sherwood Noll; he drove us out to the oil field; Mr. Christian Arensdorf and Mr. George Kimpler were with us; we were out there most of the day. Mr. Noll drove us and pointed out different leases, and especially some of the leases of the Leeward Petroleum Corporation. Mr. Noll said that the Leeward company owned 1,500 to 1,800 acres in the heart of the Peabody and Elgin fields; he said: ‘We have over a million dollars worth of property on top of the ground, and six wells, all pumping oil, and more coming in.’ After showing us some leases, which he claimed that he and Mabes owned, he tried to sell me some of the stock; he said that he would try and let me in on this Leeward corporation; he said this is not a speculation, an investment, but it will take 82,000 to get in on it; he said, ‘I personally guarantee this stock to be as represented, and make you some money, and at any time you want your money back from it after' sixty or ninety days, I will give you back every cent of your money.’ I did not buy any stock that day; just before I left the depot I said to Mr. Noll: ‘In case I decide to accept this proposition, and am able to get the money, have you any of those shares for me?’ He said: ‘I am not sure, I have promised several shares to some friends of Mr. Mabes and the Citizens State Bank, where he is employed, and I am not sure whether I have any left or not.’ He said: ‘Where do you do business?’ I said: ‘At the Citizens State Bank.’ He said: ‘I will let some one know at the Citizens State Bank within two days if I have one of these shares left for you or not.’ I returned to Ellinwood and later received a phone call at the bank; this was October 1, 1919; I saw Mr. Knipp first, and he said that Mabes wanted to speak to me; and I then talked to Mabes, and to Mr. Smith, the president of the bank, now dead; and Mr. Knipp, the cashier; Mabes said that he had received word from Mr. Noll that he had one of these certificates for me; he had only three left; one for Mr. Knipp, one for me and one for Chris Arensdorf; he wanted.to know if I wished to accept the proposition; I said: ‘No, I haven’t the money.’ He said: ‘You needn’t worry about the money, .we have' it ready for you here at the bank.’ I finally borrowed the money at the bank. Mr. Smith, the president, and the cashier, were called in to make out the note in favor of the Citizens State Bank for 82,000, and I signed the note. I instructed Mr. Smith to write out a check for 82,000 to the order of Sherwood Noll, and I signed it, and left it with the president, with instructions to see that Mr. Noll gets this check, or this money, and I received my stock from Mr. Noll; I do not feel sure whether the cashier was still present or not. About the middle of November, 1919, I received my stock. That morning I called at the bank and Mr. Knipp said: ‘Your stock certificate has arrived.’ He handed it to me in an open envelope. I said: ‘How does it come that it comes in this kind of condition?’ He said: ‘Mr. Bill Howard came in from Peabody and Mr. Noll sent it by him.’ ”
In the foregoing testimony it appears to be assumed that Mabes was an employee of the bank at the time of the transaction referred to. The direct evidence on the subject however is that his connection with the bank ceased as early as The middle of September,’1919.
Noll testified that he had made no guaranty with respect to the stock, and no promise to return the money received for it, but that through the help of Mabes he had given the money back to a number of purchasers; that so far as he knew he had not received the proceeds of the $2,000 check; that Mabes assisted him in selling some of the Leeward stock to a number of his friends and neighbors at Ellinwood; that he had no book account of the transactions; that Mabes paid him $2,500 by a check dated October 3, 1919. To the question as to how Mabes transacted this business for him he said:
“Well, he would send the money for some of the stock, and occasionally his men out here would give him the money to send for this stock, and he would send it to me, and I would send the stock, which would first go to the Leeward office in Lockport and be transferred, and a new certificate issued. ... I don’t remember receiving any check from Mabes on the Peabody bank, or Florence, bank, but I would not swear that I did not. When I received these stock certificates back from the Leeward Petroleum Company I couldn’t say whether I mailed them direct to the parties or not, possibly to the Citizens Bank of Ellinwood, or to Mabes, I don’t know, I don’t recollect.”
Mabes deposed that he was collecting agent for Noll; that Noll had him use his influence to persuade persons who came down to look over leases to purchase, collecting the money when a sale was made and sending it to Noll; that he turned the $2,000 in to Noll .and told him to send the stock by mail, and presumed he did so. '“I instructed Mr. Noll to have the certificate issued to Doctor 'Zecha; I don’t know whether the certificate of stock had been issued to me and then transferred to Doctor Zecha or not, Mr. Noll had charge of all certificates.” There was evidence that the stock issued to the plaintiff had originally stood in the name of Mabes.
The bank cashier, who credited Mabes with the amount of the $2,000 check, testified that he did not remember whether or not the plaintiff told him to do so. He was unable to tell how it happened that he put it to the credit of Mabes without an indorsement. He said the stock that was delivered to the plaintiff was brought to the bank by W. A. Howard.
1. In the instructions the jury were told in substance that the plaintiff was entitled to a verdict for $2,000 and interest (less the amount of the dividend) unless the defendant had shown by a preponderance of the evidence either that the proceeds of the check were paid to Noll or that Mabes was the agent of Noll with authority to cash the check. The defendant complains of this feature of the charge. It is ordinarily true that a bank by paying a check to the wrong person incurs a liability for the amount to the drawer, because ordinarily his funds are depleted to that extent without any corresponding benefit. Here, however, the payment of the check was but one step in the carrying out by the bank at the request of the plaintiff of a deal he had arranged. His purpose in leaving the check with the bank was to provide means to pay for Leeward company stock to be delivered to the bank for him. By his own testimony his negotiations with Noll for the stock were left open until Noll should notify someone at the bank within two days. On the third day he was called to the bank and told that Mabes wanted to see him. Mabes told him he had word from Noll that he could have the stock and the deal for it was made, the bank obviously having knowledge that it had been consummated through the interposition of Mabes. It cannot be said as a matter of law that the bank was negligent in acting upon the supposition that the shares of stock delivered to it were the identical shares bargained for by the plaintiff, in which case it took no risk in paying the money to Mabes unless an objection should come from Noll. There is nothing to show intentional wrong on the part of the bank in the matter of the payment to Mabes, and the jury found specifically that it received no benefit from the sale of the stock. The plaintiff obtained just what he had bargained for, except that upon his theory it was stock that came from Mabes and not from Noll. In this situation the plaintiff is not entitled to recover more than the actual loss he sustained by reason of the bank’s error in accepting and paying for stock furnished by Mabes instead of stock furnished by Noll. The plaintiff recognized this by pleading and attempting to prove that if the stock had come from Noll he would have had a valid claim against Noll for the return of his money because of Noll’s having promised to return it at any time the plaintiff should want it after sixty or ninety days. As witnesses the plaintiff asserted and Noll denied that such a promise had been made. The issue was a vital one, but the instruction under consideration allowed the jury to return the ■ verdict they did even if they resolved it against the plaintiff. They found in response to questions submitted that Mabes was not the agent of Noll in September and October to collect for oil stock sold by Noll, that Mabes did not pay Noll for the stock purchased by the plaintiff, and that Noll did not sell the stock in controversy to the plaintiff; but they were not asked whether Noll had promised to return the money for stock purchased of him, and the general verdict implies no.finding in that respect, because under the charge the decision could be against the defendant without regard to that question. A new trial must therefore be ordered.
2. If Noll promised that he would, if the plaintiff so requested, return the money paid for the stock after sixty or ninety days, we think a limitation must be implied that the request should be made within a reasonable time, and that whether the time testified to by the plaintiff (“some time after the new year of 1921”) was reasonable was a question for the jury. An instruction to that effect was asked by the defendant and refused.
3. The defendant asserts that the action was barred by the three-year statute of limitation. The first petition, filed February 20, 1922, or a little over' two years and four, months after the transaction complained of, merely set out that the plaintiff had written a check for $2,000 payable to Noll and left it with the bank to be delivered to him; that the proceeds did not reach Noll, but were wrongfully diverted by the bank. An amended petition, filed December 15, 1922, was substantially like that on which the case was tried, so far as concerns the statute of limitation. The defendant’s position is that the allegations with regard to Noll’s promise to refund the purchase price form an essential part of the cause of action and that the statute continued to run until they were inserted, more than three years after the accrual of the right to sue. We think the original petition, liberally construed, stated a cause of action against the bank for having paid a check to the wrong person, presumptively causing a loss of its amount to the drawee. The later petitions showing that the plaintiff had received stock for his money, but that it was not of the value of the stock contracted for because it did not have Noll’s promise of reimbursement behind’ it, we think may rightly be regarded as an amplification of the original cause of action rather than the setting out of a new one. (Culp v. Steere, 47 Kan. 746, 28 Pac. 987.)
4. The defendant also argues that if the action is one for relief on the ground of fraud it is barred by the two-year statute, and that the theory of a delay in discovery cannot save it, because the fact of the check not being indorsed was a sufficient notice to put the plaintiff on inquiry. The action, however, is not one for fraud, and we do not see that the absence of the payee’s indorsement was notice of payment to the wrong person.
5. The plaintiff, over objection, testified to a conversation about this action in which the bank president, among other things,-said, to him: “Well, we may owe you this money, but we are going to make it cost you all you will ever get out of it to get' it. The idea of a poor man trying to sue a bank. We will drag it out and postpone it and delay it until it cost you all you’ve got now.” A motion to strike out was overruled, but the court in its instructions told the jury they had no right to consider any statements made in the conversation except such as tended to show an admission of liability on the part of the bank. The defendant complains of the admission of the evidence and of the refusal to strike it out. The plaintiff argues that it was impossible to segregate the objectionable portions. A direction not to consider irrelevant evidence tending to arouse prejudice against a party is not a complete antidote to its reception, and at another trial precaution should be taken against its reaching the jury.
6. A point is sought to be made of the plaintiff’s failure to tender the stock and the dividend-before bringing the action. An offer to return the stock was made in the amended petition, and the course of the trial indicates that a tender would have been ineffective.
The defendant asserts that three of the special findings had no support in the evidence. The questions involved appear to relate to the credibility of witnesses.
The judgment is reversed and a new trial directed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover for injuries sustained in a collision of William Byrnes’ automobile with the mule-drawn wagon of Cora Watkins, in which she and three of her children were riding at the time. Plaintiff and her family were traveling on a highway in an easterly direction, her son driving the mules. They were proceeding on the left or north side of the road, which appears to have been the beaten portion of it. The defendant’s automobile was following the wagon, and as it approached plaintiff’s vehicle from behind the horn of the automobile was sounded, indicating a desire to pass and a warning for plaintiff to turn to the right so as to give room on the left for the automobile to pass. It appears the signal given was not heard by the plaintiff or driver of the wagon, but the automobile proceeded and as it tried to pass on the left the right fender of the car struck the left wheel of the wagon, throwing the plaintiff out and causing the injuries of which complaint was made. The plaintiff alleged that the collision and resulting injury was due to the negligence of the defendant. In his answer defendant conceded that the automobile struck the plaintiff’s vehicle by reason of which she was thrown to the ground, but .he averred that the collision would not have occurred but for plaintiff’s negligence. He alleged that upon approaching the wagon, which was traveling on the left side of the road, he repeatedly sounded his horn, indicating an intention to pass, but that plaintiff paid no attention to the signals and continued driving on the- left side. That defendant then turned his automobile to the right with a view of passing on that side, but that about that time plaintiff without warning then turned her wagon to the right in front of defendant’s advancing automobile, whereupon defendant then tried to turn to the left and avoid hitting the wagon, but that there was not sufficient time and the distance between the vehicles was then too short to enable defendant to pass without striking plaintiff’s wagon. The jury returned a general verdict in favor of plaintiff, and with it special findings to the effect that the driver of defendant’s car sounded his horn as he approached the wagon and did so within a reasonable distance, but it also found that plaintiff did not hear the signal. It was also found that the driver of the car did not use reasonable care to avoid running into the wagon, and further that there was no negligence on the part of the plaintiff which contributed to the collision. There was a finding too that the defendant’s car could have passed on the right side of plaintiff’s wagon without colliding therewith, that the driver of defendant’s car attempted to pass plaintiff’s wagon on the north side at a time and place when it was not reasonably safe to pass on that side, and that the negligence of defendant consisted of approaching the wagon too close before turning out to pass and should have passed on the right-hand side.
In his appeal defendant contends that the testimony was insuf ficient to uphold plaintiff’s claim, and that his demurrer to plaintiff’s evidence should have been sustained.
It is argued that plaintiff was driving on the wrong side of the road, and that as there was not sufficient room on the left side between the wagon and the ditch for the automobile to pass, it was the duty of plaintiff to turn to the right when the passing signal was given by defendant, and if that had been done the collision might have been avoided. While a signal was given by the defendant, the testimony and the findings of the jury are to the effect that the signal was not heard by the plaintiff or the occupants of the wagon, and her son, who was driving the mules, testified that he did not hear the horn or know that anyone was approaching from behind until the collision occurred. It cannot be said that the driving of the team on the north and traveled side of the road constituted negligence per se. If plaintiff had heard the signal of defendant, indicating a desire to pass, it would have been her duty to turn to the right provided that part of the road was in a fairly passable condition and such a turn was practical, but even if plaintiff had heard the signal her failure to turn to the right would not necessarily defeat a recovery. The law does not prohibit a person from driving on the left side, and ordinarily it is a question for the jury whether under the circumstances, including the condition of the road, there was a favorable opportunity to seasonably turn to the right, and whether the failure to pass was the proximate cause of the collision and constituted culpable negligence. (Pens v. Kreitzer, 98 Kan. 759, 160 Pac. 200; Zinn v. Updegraff, 113 Kan. 25, 213 Pac. 816). The defendant does not contend that he was entitled to hold to his side of the road at the risk of a collision, and he concedes that instruction two given by the trial court correctly states the law, wherein the jury were told:
“2. Public highways are for the equal use of different kinds of vehicles, whether driven or propelled by mules or gasoline, and each has the right to use said highway, providing at the time he or she is acting reasonably and with just regard for the rights of others who may be traveling thereon. It does not constitute negligence for a motorist or one driving a team of mules to be upon the opposite side of the road from where he or she should be under the law of the road, as such person is privileged to use any portion of the traveled part of the highway, except that when one is driving an automobile in the same direction as a team of mules is then being driven he must use reasonable caution in passing such animals, and the operator of such automobile when about to overtake another vehicle traveling in the same direction shall by sound or call indicate to the driver ahead of him his or her desire to pass; it shall then be the duty of the driver of the vehicle in front, if the nature of the ground will permit it, to promptly turn to the right of the center of the road, and the driver of the vehicle behind shall then turn to the left of the center of the road and pass by without interfering or interrupting the vehicle he is passing.”
In view of the general verdict and findings, it may be inferred that the occupants of the wagon did not hear any signals given nor did they know of the approach of the defendant’s automobile from the rear until the wagon was struck. It may also be inferred that the jury determined that the wagon was not turned to the right as the advancing automobile was turned in that direction, but rather that the automobile was driven too close to the wagon before turning aside to pass the wagon on the left, and this was done when the collision could have been avoided by turning the automobile to the right.
There is a complaint of a ruling of the court refusing an application of defendant to amend his answer. The application appears to have been made after the plaintiff’s evidence had been introduced and the demurrer thereto overruled, but what the proposed amendment was is not shown by the record. It may have been such a change of the issues as required the plaintiff to have procured other testimony at that late time in order to meet the new issues. In the condition of the record it cannot be held that an amendment should have been allowed at that time or that the refusal of the one proposed was error.
Complaint is made that instruction three required too high a degree of care of a person driving an automobile. It states:
“3. One driving an automobile upon a public highway must exercise every reasonable caution commensurate with the apparent danger to avoid injury to other persons riding in vehicles on said highway.”
This was no more than the laying down of a very proper and general rule as to the care required of those driving an automobile on a public highway. The court in other instructions made particular applications of the same rule. We find no error in it.
Objection is made to instruction four, which stated at considerable length the duties of the drivers of vehicles traveling in the same direction on a public highway where one driver' desires to pass the vehicle in front of him. It states that when a warning is given of a desire to pass and the person in front does not turn to the right after such warning, having knowledge thereof, the person desiring to pass may if there is not sufficient room in the graded part of the highway to pass on the left side, having due regard for the condition of the road and while driving at a reasonable rate of speed, drive to the right of the front vehicle, and if he does so turn to the right and the vehicle in front also turns to the right ahead of him, or when it appears to the driver of the vehicle behind when proceeding in this way that it is probable a collision will occur, then he may, acting reasonably under the circumstances, turn to the left, if it reasonably appears at the time that in doing so he is less likely to collide with the vehicle in front. On the other hand, the one in charge of the vehicle in front, on hearing the warning should promptly turn to the right if the condition in the road will reasonably permit it, and if such person in the vehicle in front did so turn under the circumstances mentioned, and a collision occurred, the one in charge of the rear vehicle would be responsible for a resulting collision. We are of the opinion that there is no ground for reversal in this instruction. In the first place it seems to fairly state the duty of 'the respective parties, but more than that, it cannot have prejudiced the plaintiff, since the jury found in effect that the signal was not heard and that the wagon was not turned to the right.
A reading of the testimony satisfies us that the evidence is sufficient to support the verdict and findings, and that no error was committed in overruling the motion for a hew trial.
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Swinehart, J.:
This is an action for personal injuries arising out of an automobile accident. The jury returned a verdict in favor of appellee and the court thereafter denied appellant’s motion for a new trial. Appellant alleges on appeal that the court erred (1) in admitting the deposition testimony of a Dr. Lauren Welch; (2) in failing to grant a new trial on grounds that the verdict was contrary to the evidence; and (3) in failing to state the legal principles upon which said motion for new trial was denied.
The accident occurred at approximately noon, January 27, 1973, near the intersection of Hendricks Street and Highway K-96 in Hutchinson, Kansas. It was a windy, snowy day and visibility was considerably reduced. The appellant was traveling southeasterly on Highway K-96, and appellee was traveling south on Hendricks Street toward the intersection of K-96 at a speed of twenty to twenty-five miles per hour. There was a stop sign for southbound traffic on Hendricks Street at K-96. Appellee did not see the stop sign because of the weather conditions, but did first see appellant when said appellee was about forty feet from the intersection. As appellant was in the process of turning left (north) onto Hendricks, the collision occurred. The point of impact was in appellee’s southbound lane, near the center line of Hendricks and slightly north of the intersection.
We first consider appellant’s contention that the admission of Dr. Welch’s deposition into evidence was an erroneous ruling which required a new trial. As this is a procedural problem, we feel it unnecessary to discuss the ramifications of Dr. Welch’s testimony and its effect on appellant’s case. We do note, however, that said testimony was more favorable to appellant than appellee.
The record indicates that neither the appellant nor his attorney was present at the taking of said deposition. Appellant’s attorney received written and oral notice of the deposition, but failed to appear because he was a “solo practitioner” and, consequently, “had no opportunity to get to that deposition.”
The Kansas Code of Civil Procedure does not require that adverse parties be present at depositions. What is required is that the adverse parties have reasonable notice of the deposition so they can be present if they so desire. This is shown by K.S.A. 60-232 (a), which provides in part:
“(a) Use of deposition. At the trial . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof . . .” (Emphasis supplied.)
Thus, the true question presented is whether reasonable notice of the doctor’s deposition was given to appellant’s attorney.
Proper, adequate and reasonable notice is required so that the adverse party will have a right of cross-examination. The general rule is that a deposition should not be read into evidence where proper notice has not been given and the adverse party has thereby been deprived of his right of cross-examination. (26A C.J.S., Depositions, Sec. 93, p. 446; Savings Bank v. Denker, 275 Mo. 607, 205 S.W. 208; Bruske v. Arnold, 100 Ill. App. 2d 428, 241 N.E.2d 191.) In Savings Bank, the court stated:
“The general rule is that where a party is deprived of the benefit of cross-examining a witness, by the act or neglect of the opposite party [ i.e., failing to give notice], . . . the testimony of such witness cannot be read in evidence.” (p. 616.)
And in Bruske, the court affirmed the lower court’s refusal to admit into evidence a question and answer statement, taken by an investigator for plaintiff’s counsel, and recorded by a court reporter, because it was taken without prior notice to anyone.
However, a deposition is not inadmissible as evidence on the ground of lack of opportunity to cross-examine, when the adverse party has reasonable notice of the taking of the deposition.
An examination of the record indicates that notice of Dr. Welch’s deposition was mailed to appellant’s attorney January 15, 1975. The deposition was scheduled for January 17,1975, at 4:30 p.m. (two days after the notice was mailed). The January 17th setting was orally verified between counsel. Counsel for appellee told the trial judge:
“. . . We served and we talked to Mr. Rome [counsel for appellant]. First, served notice on him, Second, reverified that he would be there, Third, waited for him an hour and I tried every way to call him, his office, even at the time of the taking of the deposition. If he had so much as got one word about being unable to appear for the taking of that deposition we would have taken it on Saturday morning [January 18, 1975] or some other time, or if he had made any objection to its use at any time . . . we would have re-taken it and permitted him an opportunity to appear. . . .”
Under these circumstances, we have no trouble in concluding that the trial court was justified in finding the notice to be reasonable.
In addition to reasonable notice, it is necessary that K.S.A. 60-232 (a) (3) be satisfied before the deposition is admitted into evidence. If the conditions of 60-232 (a) (3) are satisfied, evidence by deposition is freely admissible. The existence of at least one of the conditions set out in 60-232 (a) (3) is to be determined by the trial court at the time the deposition is offered into evidence. (See, generally, 8 Wright & Miller, Federal Practice and Procedure, Civil, Sec. 2146.)
Although the trial judge did not specifically state which element of K.S.A. 60-232 (a) (3) existed, we feel the record shows that ground “E” of that statute existed. That ground provides:
“. . . that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”
The witness, Dr. Welch, was in Wichita, Kansas; trial was being held in Hutchinson, Kansas. Further, though Dr. Welch had been subpoenaed by appellant, he was not present. Faced with these circumstances, together with K.S.A. 60-102 which provides for a liberal construction of the code of civil procedure to secure speedy and inexpensive determination of every action, the trial court concluded that the deposition should be read into the evidence. Such a conclusion could easily have been based on K.S.A. 60-232 (a) (3) (E), and thus justified.
We further feel that inasmuch as the contents of said deposition were favorable to appellant in many aspects, the admission thereof was harmless error (K.S.A. 60-261).
We find no reversible error in the admission into evidence of Dr. Welch’s deposition.
We now turn to appellant’s contention that a. new trial should have been awarded because the verdict was contrary to the evidence.
Whether a jury verdict is against the weight of the evidence is a question for the trial court. The trial court found the jury’s verdict to be supported by the evidence. Our only concern is whether the trial court abused its discretion in reaching that determination. In Timmerman v. Schroeder, 203 Kan. 397, 454 P.2d 522, it was said:
“The granting of a motion for new trial on the grounds set out in K.S.A. 60-259 rests in the judicial discretion of the trial court. [Citations omitted.] The order granting or refusing a new trial will not be reversed unless a clear abuse of discretion is shown. (Slocum v. Kansas Power & Light Co., 190 Kan. 747, 378 P.2d 51.)” (p. 400.)
In Grace v. Martin, 182 Kan. 33, 318 P.2d 1007, the court, quoting from Gould v. Robinson, 181 Kan. 66,309 P.2d 405, said:
“ ‘. . . (3) that the granting of the motion for a new trial rests so much in the trial court’s sound discretion that its action will not be held to be reversible error on appellate review unless it can be said the party complaining thereof has clearly established error with respect to some pure, simple and unmixed question of law [citations omitted]; and cannot be upheld.’ ” (p. 38.)
The circumstances surrounding this accident were difficult to reconstruct, and the testimony was contradictory in many respects. Without doubt, hard questions of fact as to how the accident actually happened existed. The trial court properly submitted those questions to the jury. The jury having reached its result, the trial court had no authority to change the jury’s mind. As far back as Backus v. Clark, 1 Kan. 303, 311, the Kansas Court was saying:
. . ‘As the jury are the judges of the facts’, ... ‘if there be any evidence to sustain a verdict, it ought not to be disturbed. . . .’ ”
These sentiments were reaffirmed as recently as Mettee v. Urban Renewal Agency, 219 Kan. 165, 547 P.2d 356.
We think the trial court acted properly in recognizing its bounds and refusing to invade the province of the jury. This case was custom-made for a jury, and the jury reached its conclusion.
Finally, appellant attacks the trial court’s conduct in not stating, for the record, the legal principles upon which it based the denial of a new trial. Appellant asserts that this was a violation of Supreme Court Rule No. 116, 214 Kan. xxxvii (now Rule No. 165, 220 Kan. LXVI). Rule No. 116 provided:
“In all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts . . . briefly state the legal principles controlling the decision. . . .”
Kansas case law indicates that this rule applies to motions to dismiss, motions for summary judgment and trials to the court without jury. (Duffin v. Patrick, 212 Kan. 772, 512 P.2d 442; Brown v. Wichita State University, P.E.C., Inc., 217 Kan. 661, 538 P.2d 713; Griffith v. Stout Remodeling, Inc., 219 Kan. 408, 548 P.2d 1238.)
We find that a motion for new trial does not fall within the purview of Rule No. 116 (now Rule No. 165).
This was a trial to a jury of a contested matter and all questions of facts had been resolved by the jury. Further, the court had set forth the law by instructions to the jury. Those grounds raised by the appellant’s motion for new trial had been previously argued and decided during trial. That being so, the trial court was not required to provide a detailed account of its findings of fact and conclusions of law upon which it based its order on a motion for a new trial.
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Rees, J.:
The board of county commissioners of Clay county terminated a traffic safety program. Plaintiffs sought review by the district court. The lower court upheld the board and plaintiffs have appealed.
In 1973, and in response to an application made by the board, the Kansas Highway Safety Coordinating Office made a federal and state funded grant-in-aid to Clay county for a Selective Traffic Enforcement Program project. The project was implemented by the creation and operation of a traffic safety division in the office of the sheriff. The grant money was furnished to the county on the basis of approximately three dollars for each dollar of local contribution. It does not appear from the record whether the local contribution was made by cash contribution, by in-kind services and materials contribution, or a combination of both. The grant-in-aid was for a two-year period expiring July 31, 1975. The project application appears to have included representations by the board that the traffic safety division would be maintained and that its operations would not be de-emphasized upon the conclusion of the project.
Plaintiff Gonser was the Clay county sheriff. Plaintiff Hohman, a deputy sheriff, was the individual assigned by the sheriff to conduct the program as traffic safety officer. The grant money and local contribution apparently were used for payment of Hohman’s salary and the furnishing of services and equipment for his use.
On June 30, 1975, the board advised the sheriff by letter that the position of traffic safety officer would terminate on July 31, the date of expiration of the grant-in-aid. On July 14, the board sent another letter to the sheriff and in it he was advised that the deputy sheriff position held by Hohman would be terminated effective August 1 because of lack of funds, that law enforcement equipment was to be removed from a certain automobile and that the keys to the automobile were to be returned to the county clerk by that date.
The sheriff and Hohman commenced these proceedings on July 30 by filing notice of appeal in accordance with K.S.A. 19-223. They asked that the board be required to pay reasonable compensation for Hohman’s services and that it be enjoined from interfering with the performance of the sheriff’s duties and responsibilities. The trial court entered a temporary order directing that for a period of thirty days Hohman be continued in his position, that he be paid and that he have use of the automobile. At the conclusion of trial held prior to the expiration of the thirty days, the court held that the board’s refusal to fund and its abolition of the traffic safety program were not arbitrary or capricious actions and it rejected plaintiffs’ claims and sustained the board’s action.
The trial court’s oral statement of findings and its rulings included the following, in part:
“. . . I appreciate the position of both of the parties . . . having known and worked with the Sheriff for the last five or six years, if he were to make a recommendation to me, and it was up to me to make a decision as to whether he would have additional help, I would sure be inclined to go along with the recommendation, . . .
“But, the matter doesn’t really boil down to what I think, ... I think what I might just say generally, that I can’t find that there is any evidence in this case that the County Commissioners acted arbitrarily and capriciously. I might not-agree with their judgment. . . .
“We are talking about a subjective program that really never got off the ground. Whether over a period of time it would have saved some lives and prevented property damage, I don’t know. . . . but, be that as it may, I am just going to, as a general proposition say that the law in this case requires that the plaintiff prove by a preponderance of the evidence, that the action of the Commissioners was an arbitrary act, and that is the abolishing and not funding of the position, that it was an arbitrary and capricious act. I think the evidence, all taken together, one could probably conclude a number of factors went into their ultimate consideration not to fund the program.
“Perhaps one of them — how valid it is, I do not know — is the lack of the Commissioners’ knowledge as to what the program was doing. In other words, they commissioned the Big Lakes Development Commission to tell them about the program, and so we are probably talking about alack of communications. . . . They have to recognize that with the inflation, and that taken with the fact our legislature has built in raises for various county employees, this is a continual problem making the funds that are available in the general fund stretch.
“. . . I am satisfied from their testimony that they were satisfied, premised upon the testimony of the auditor, that they would have to be very cautious as to how they spent any money. Finally, I think the evidence would show that perhaps the report did not give the Commissioners a yes or no answer, but they found it to be informative and perhaps the report was suggestive of the proposition that maybe they weren’t getting their money’s worth. Maybe it wasn’t accomplishing what they had intended, at least, maybe it wasn’t worth what they were paying for it, as Mr. Hays said. These are judgments that these gentlemen have to make and they have indicated they aren’t easy decisions.
“So, that being the case, I am going to find for the defendants in this case, and find from the evidence that the Commissioners have not acted arbitrarily or capriciously; but rather that their judgment is premised upon reasons as I have indicated.”
The plaintiffs complain that they were denied procedural due process in that they were not afforded notice and opportunity to appear before the board in regard to the program termination. They further complain that the board should have made written findings of fact and conclusions of law when it acted to terminate the program.
Procedural due process, that is, notice of hearing and right to be heard, is required when an agency or board performs quasi-judicial acts. Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 205 Kan. 780, 473 P.2d 72.
Findings of fact are not required to be made by agencies and boards, absent their own rules or a statute, even though they would assist judicial review. Creten v. Board of County Commissioners, 204 Kan. 782, 466 P.2d 263; Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1.
Plaintiffs filed a petition setting forth all their objections to the action of the board. The trial court declined the board’s motion to dismiss for lack of jurisdiction under K.S.A. 19-223. The trial to the court was on all issues raised by plaintiffs. The trial court’s ruling that the board’s action not be set aside on the ground that its action was not arbitrary or capricious implicitly reflects that the trial court reviewed the board’s action as being legislative in nature.
It has been held that K.S.A. 19-223 affords jurisdiction only in those instances where a board of county commissioners has engaged in judicial or quasi-judicial action. Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125,1 Pac. 261; In re Petition of McAdam, 181 Kan. 73, 309 P.2d 648. The board urged the corollary rule that the district court had no jurisdiction where the action being questioned was an exercise of legislative, executive, administrative or discretionary power.
The pivotal issue to be resolved is determination of the nature of the board’s action. If the action was legislative or administrative and not judicial or quasi-judicial, the function of the trial court was to decide whether such action was arbitrary or capricious.
The record on appeal contains neither narrative nor verbatim statement of the trial proceedings other than the court’s statement of its findings and rulings. However, from the court’s statements, other parts of the record on appeal and the parties’ briefs, we have made what we believe are correct deductions concerning the evidence presented. The court considered the minutes of the board’s meetings at which it acted, the letters from the board to the sheriff, and testimony of some or all of the members of the board. Further, there were presented to the court a letter request from the board to the county attorney requesting his opinion as to the propriety of board termination of the program and his letter opinion that, under the facts and in light of the program background, the termination of the program by the board would be arbitrary. The minutes recited little other than the decision of the board to transmit the letters to the sheriff.
The Supreme Court has recently considered the tests to be applied to distinguish quasi-judicial and legislative actions. In Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966, a workmen’s compensation action, it was said:
“It is apparent from the cases that a distinction is recognized between ‘legislative’ and ‘judicial’ functions performed by different administrative officers or bodies, and that the scope of judicial review of the actions of administrative agencies does vary with the subject matter of the review or the function of the agency, [pp. 177-178]
“The remaining question is whether the determinations made by the workmen’s compensation director under the Kansas workmen’s compensation act are essentially legislative or administrative or are essentially judicial or quasi-judicial. . . . When courts are confronted with the problem of determining whether an administrative agency performs legislative or judicial functions, they rely on certain tests to aid in classifying the agency’s functions. One such test is whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative agency must make. Another test is whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body, [cases cited] [p. 178]
“The classic statement setting out the abstract test to be applied by courts in distinguishing the judicial power from legislative power when examining administrative agencies was made by Justice Holmes speaking for the court in Prentise v. Atlantic Coast Line, 211 U. S. 210,53 L. Ed. 150,29 S. Ct. 67. He there said:
“ ‘. . . A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. . . .’ (p. 226)
“In applying the tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer, board or agency which performs it, that determines its character.” (pp. 178-179)
In Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259, cert, denied, 409 U. S. 847, 34 L. Ed. 2d 88, 93 S. Ct. 53, it is said:
“It may be added that quasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.” (p. 663)
In Schulze v. Board of Education, 221 Kan. 351, 559 P.2d 367, the foregoing principles again have been approved and applied.
In Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197, it is stated:
“. . . Under what is referred to as the ‘standard scope of review for administrative proceedings’. . . the issues to be determined are simply ‘whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.’ (Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828, Syl. 1. Emphasis added.) Our administrative review cases state and restate that these are the only issues open to the court, [p. 231]
“A distinction must be made, however, between those functions of an administrative agency which are ‘administrative’ in nature and those which are judicial in nature in the sense that they could constitutionally have been entrusted to the courts in the first instance had the legislature so desired. This court had occasion to explore this distinction in depth in Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966. . . . [p. 233]
“Gawith was subsequently applied in Union Quarries, Inc. v. Board of County Commissioners, 206 Kan. 268, 478 P.2d 181. There the issue was whether a determination of abandonment of a non-conforming use in a zoning case was legislative or judicial. Citing Gawith, the court found that ‘abandonment’ was a question traditionally dealt with by courts and that such a determination ‘ “declares and enforces liabilities as they stand on present or past facts” . . . and does not involve the formulation of policy normally classified as a legislative function. Such a determination is not a prospective endeavor, rather it looks back and is made on past facts, and therefore must be deemed a judicial function.’ (Id. at 274.)” (pp. 234-235)
K.S.A. 19-212 is a statement of the general powers of a board of county commissioners. K.S.A. 28-167 provides that a board of county commissioners shall allow reasonable sums for assistants and deputies as may be necessary to properly expedite the business of the office of the sheriff. K.S.A. 28-824 directs that a board of county commissioners allow such reasonable sums for salaries and compensation of assistants and deputies as may be necessary to properly expedite the business of the several offices of the county. K.S.A. 28-168 directs that all salaries shall be paid out of the county general fund.
K.S.A. 1976 Supp. 79-2927 provides that each year the governing body of each taxing subdivision shall prepare a written budget properly itemized and classified by funds for the ensuing year. K.S.A. 1976 Supp. 79-2934 states that:
“The budget as approved and filed with the county clerk for each year shall constitute and shall hereafter be declared to be an appropriation for each fund, and the appropriation thus made shall not be used for any other purpose. . .
“No part of any fund shall be diverted to any other fund. . . .”
The meaning of the word “fund” is found in K.S.A. 1976 Supp. 79-2925(¿) where is is provided that:
“Whenever the word ‘fund’ is used in this act it is intended to have reference to those funds which are authorized by statute to be established. ‘Fund’ is not intended to mean the individual budgeted items of a fund, but is intended to have reference to the tbtal of such individual items.”
There was no diversion of monies to another fund.
We are satisfied that under the powers granted to the board by K.S.A. 19-212, K.S.A. 28-167 and K.S.A. 28-824, the board had authority to order that operation of the traffic safety program be discontinued. Such consequences that may flow from its action, political or by reason of representations made to the project funding authority, were and are to be borne by the board.
Plaintiffs have contended that the substance of the board’s action was the discharge of plaintiff Hohman. We find this to be in error. The board did not fire Hohman. The sheriff remained free to retain Hohman as a deputy sheriff. The board terminated the traffic safety program. There was no declaration and enforcement of liabilities standing on present or past facts. The board’s action was a formulation of policy; looked to the future; and made a change of existing conditions by making a decision to be applied in the future. Thus, the board’s action was legislative or administrative and not judicial or quasi-judiqial.
Plaintiffs have failed to show that the action of the board was arbitrary or capricious or that it was not substantially supported by the evidence. Plaintiffs appear to have been afforded full opportunity in the trial court to make these showings and the record fails to establish that the trial court erred in its determination.
Upon review of the record, we conclude that the trial court correctly found that the defendant board acted neither arbitrarily nor capriciously, that its action is substantially supported by evidence and that its action was within the scope of its authority. On appeal plaintiffs have made no contention that the board’s action was fraudulent.
The judgment is affirmed.
Abbott, J., not participating. | [
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Spencer, J.:
This is an appeal from summary judgment denying the right of a surviving spouse to inherit from her deceased husband’s estate by reason of a decree of separate maintenance rendered June 14, 1972, and filed July 9, 1972.
George and Ludie Linson (hereinafter referred to as George and Ludie, respectively) were married May 18, 1921, at Kansas City, Missouri. The record reveals that on June 14,1972, they had submitted themselves to the jurisdiction of the District Court of Jefferson County, Kansas, in a divorce proceeding initiated by Ludie in which George sought separate maintenance and prevailed. Pertinent portions of the decree of separate maintenance are as follows:
“Thereupon, evidence is presented in support of the petition of plaintiff and the cross-petition of defendant and the defendant moves to amend his cross-petition for divorce to a cross-petition for separate maintenance which is by the court sustained. The court finds that because of the conduct of the plaintiff as set forth in the evidence that her petition for divorce should be denied and the defendant’s petition for separate maintenance should be sustained.
“The court further finds that the parties during the marriage have accumulated real property and personal property and that an equitable division should be made as hereinafter set forth. The court further finds that the plaintiff has income from social security and the defendant has income from social security, Columbia Steel Tank and an army pension and that the defendant should pay to the plaintiff as alimony the sum of $125.00 per month commencing July 3, 1972.
“IT IS THEREFORE ORDERED that the plaintiff’s petition be and the same is hereby denied and the defendant be and he is hereby granted a decree of separate maintenance from the plaintiff herein.
“IT IS FURTHER ORDERED that all right, title and interest in the following described property be and the same is hereby vested in the plaintiff and the defendant as tenants in common:
“The North % of the Southwest Quarter of Section 6, Township 10, Range 19, Jefferson County, Kansas.
“IT IS FURTHER ORDERED that the plaintiff shall pay the real estate taxes on the foregoing described property, shall have the right to occupy said property to the exclusion of the defendant and shall pay all insurance costs and maintenance costs of said property.
“IT IS FURTHER ORDERED that all right, title and interest to the following described property, be and the same is hereby vested in. the plaintiff and the defendant as tenants in common:
“All of Lot 31, MISSION RIDGE, a subdivision in Johnson County, Kansas.
“IT IS FURTHER ORDERED that the defendant shall pay the real estate taxes on the foregoing described property, shall have the right to occupy said property to the exclusion of the plaintiff and shall pay all insurance costs and maintenance costs of said property.
“IT IS FURTHER ORDERED that the defendant shall pay to the plaintiff as alimony the sum of $125.00 per month, which shall be paid to the plaintiff, but shall be sent to the Clerk of the District Court, the Courthouse, Oskaloosa, Kansas, and shall be paid each month thereafter until the further order of the court.”
George died testate on April 28, 1974, and his last will and testament dated July 8, 1972, which named Mary Johnson, his daughter and the appellee herein, as his sole devisee and legatee, was duly admitted to probate in Johnson County, Kansas. Ludie had not consented to her husband’s will and under date of September 10,1974, she filed her election as the surviving spouse to take under the law of intestate succession. Mary Johnson, executrix, filed her written defenses alleging that all of the property owned by the parties was divided under the decree of separate maintenance as rendered on June 14, 1972; that neither of them, and particularly George, had accumulated any additional property since the date of that decree; and asked that the court rule that Ludie is not entitled to any portion of the decedent’s estate by reason thereof. Thereafter, the matter was transferred to the District Court of Johnson County for a determination of the issues of whether Ludie is entitled to share in the estate of the decedent George as his widow; whether she is entitled to homestead rights on the land occupied by her in Jefferson County, Kansas; to have her homestead rights set over as provided by K.S.A. 59-401; and to receive the allowances provided by K.S.A. 59-403. The executrix filed motion for summary judgment. Thereafter, Ludie filed her affidavit in which she stated that on June 14,1972, title to the real estate set apart for her husband’s occupancy was in the name of Ludie E. Linson alone and title to the real estate set apart for her occupancy was in the names of Ludie Linson and George Linson, husband and wife. She also stated that the decree of separate maintenance is still in full force and effect and that no petition for divorce or termination of the marriage was filed by Ludie or George subsequent to the rendition of that decree. It was in this posture that the matter was submitted to the trial court for summary judgment.
The trial court found as a matter of fact that Ludie Linson and the decedent George Linson were husband and wife and that their marriage was terminated by the death of George on April 28, 1974, but concluded that as a matter of law the decree of separate maintenance prevented Ludie from inheriting any portion of her husband’s estate.
The executrix argues in support of the conclusion of the trial court and states that this result is required both by the laws of the state of Kansas governing divorce and separate maintenance and by the probate code. She states that any other result would render the property division in the decree of separate maintenance a nullity and would have the effect of rendering inconclusive the final adjudication of the District Court of Jefferson County. She draws attention to Article 16 of the Code of Civil Procedure and suggests that in most particulars an action for separate maintenance is identical to an action for divorce and the relief available on either action is the same, specifically with respect to division of property as provided by K.S.A. 60-1610 (c). That statement is overbroad, of course, for although the grounds for divorce and separate maintenance are the same, the two are entirely different causes of action. A divorce, if granted, completely dissolves the marriage relation; whereas a decree of separate maintenance permits the continuation of the relation in a legal sense and the granting of a divorce to one party precludes the granting of separate maintenance to the other. (Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; Saint v. Saint, 196 Kan. 330, 411 P. 2d 683.)
Prior to the enactment-of the Code of Civil Procedure (K.S.A. Chapter 60) in 1963, there was no specific statutory authority for an action for separate maintenance, but rather one for “alimony only” which was commonly referred to as separate maintenance. Such action was authorized by the provisions of the statute last found at G.S. 1949, 60-1516. The authority of the court to divide the property of the parties to a divorce action or one for alimony or separate maintenance when the parties appeared to be in equal wrong or in any other case where a divorce was refused was contained in the provisions of the statute last found at G.S. 1949, 60-1506, which provided:
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for . . . the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties, and in such case the order of the court shall vest in the parties afee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other. ” (Emphasis supplied.)
In the case of Osman v. Osman, 86 Kan. 519, 121 Pac. 327, an opinion filed in 1912, our court held that real estate of the husband may be set apart to the wife in actions for alimony alone as well as actions for divorce and alimony under the statutes of this state as they then existed. In that opinion the court noted that the portions of the statute (G.S. 1949, 60-15Q6), supra, to which emphasis has been supplied were added in the code revision of 1909 and stated that the effect of an award in such case to vest the title in fee, if doubtful before, is set at rest by the amendment referred to.
In the case of Wulf v. Fitzpatrick, 124 Kan. 642,261 Pac. 838, an opinion filed in 1927, the question was presented as follows:
“. . . In an action for divorce, when a divorce is not granted and the parties remain husband and wife, but the court for good cause shown decrees that the parties may live separate and apart from each other, and divides the property, setting off specific property to the wife to be hers absolute, can the wife thereafter devise or dispose of by will all the property given her by the decree to persons other than her husband without his consent? ...” (p. 644.)
The court there stated that the decree in question was rendered under the authority of R.S. 60-1506 and “vested the fee-simple title in plaintiff to the property set apart and decreed to her, and specifically decreed in her the right ‘to convey, devise and dispose of the same without the consent’ of her husband,” using the language of the statute as it then existed.
Since enactment of the revised code of civil procedure in 1963, the procedure in an action for divorce and for separate maintenance has been the same. K.S.A. 60-1601 provides that “[t]he district court may grant a decree of divorce or separate maintenance for any of the following causes: . . . .” K.S.A. 60-1610 provides that “[a] decree in an action under this article may include orders on the following matters: ...(c) Division of property. ” It is clear that an action for separate maintenance is “an action under this article” and therefore specific statutory authority now exists for the court to divide property in an action for separate maintenance.
K.S.A. 60-1610 (c) provides:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.”
Thus, the statute under which a division of property may be made in an action for divorce or for separate maintenance no longer contains the language of G.S. 1949, 60-1506 which set apart to the parties a fee-simple title in property with the right to “convey, devise and dispose of the same without the consent of the other.” Neither does the “equal fault” statute, K.S.A. 60-1606, which replaced G.S. 1949, 60-1506, contain that or similar language.
Obviously, a decree of divorce terminates the right of either party to inherit from the estate of the other under the laws of intestate succession, but this is a result of the dissolution of the marriage relationship rather than a division of property incident to a divorce decree under K.S.A. 60-1610 (c).
When a statute is revised and some parts are omitted, the omitted parts are not readily to be supplied by construction but are generally to be considered as annulled. (State, ex rel., v. Richardson, 174 Kan. 382, 256 P. 2d 135.) A change in phraseology or the deletion of a phrase in amending or revising a statute raises a presumption that a change of meaning was intended by the legislature. (Shawnee Township Fire District v. Morgan, 221 Kan. 271, 559 P. 2d 1141.) K.S.A. 60-1610 has been referred to previously by our supreme court as having changed the law with respect to alimony and divorce. (In re Estate of Sweeney, 210 Kan. 216, 500 P. 2d 56; Fiske v. Fiske, 218 Kan. 132, 542 P. 2d 284.) Neither the appellee’s brief nor the findings of the trial court set forth any authority for the position that the right to convey and devise property without the consent of the other spouse is extant in the present statute. We must presume that the legislature, in deleting that portion of the statute providing that “the order of the court shall vest in the parties a fee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other,” intended thereby to effect a change in the law and that it was fully aware of the impact of the change which was made. (State, ex rel., v. Richardson, supra; State v. Beard, 197 Kan. 275, 416 P. 2d 783.)
Clearly therefore, the language of old G.S. 1949, 60-1506 is not available to support the executrix’ position or the ruling of the district court. If Ludie’s right to inherit as a surviving spouse is to be denied, the authority for such must appear in our present law.
It is contended that such a result follows from the fact that a division of property under our present K.S.A. 60-1610 is intended to be final. This contention is entirely correct insofar as it goes. It is clear that a division of property under K.S.A. 60-1610 is to be final in the sense that the court cannot later modify its decree and alter the terms of the division, as on the motion of a party who alleges changed circumstances. (Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846.) However, it is another thing to say that a division of property is final in the sense that property set apart permanently to one spouse cannot be inherited by the surviving spouse under the separate statutes governing intestate succession. Such statutes in parts relevant to this appeal are as follows:
“59-504. If the decedent leaves a spouse and no children nor issue of a previously deceased child, all the decedent’s property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse.”
“59-505. Also, the surviving spouse shall be entitled to receive one-half of all real estate of which the decedent at any time during the marriage was seized or possessed and to the disposition whereof the survivor shall not have consented in writing, or by a will, or by an election as provided by law to take under a will, except such real estate as has been sold on execution or judicial sale, or taken by other legal proceeding: Provided, That the surviving spouse shall not be entitled to any interest under the provisions of this section in any real estate of which such decedent in his or her lifetime made a conveyance, when such spouse at the time of the conveyance was not a resident of this state and never had been during the existence of the marriage relation.”
“59-603. The surviving spouse, who shall not have consented in the lifetime of the testator to the testator’s will as provided by law, may make an election whether he or she will take under the will or take what he or she is entitled to by the laws of intestate succession; but he or she shall not be entitled to both. If the survivor consents to the will or fails to make an election, as provided by law, he or she shall take under the testator’s will.”
Since a divorce, if granted, completely dissolves the marriage relationship, whereas a decree of separate maintenance permits the continuation of the relation in the legal sense (Zeller v. Zeller, supra; Saint v. Saint, suprá), it follows that the surviving husband or wife is a “surviving spouse” within the meaning of the intestacy laws. Does it then also follow that the surviving spouse may inherit from the decedent’s estate, notwithstanding the decree of separate maintenance as rendered June 14, 1972? We have concluded that under the circumstances presented in this appeal, that question must be answered in the affirmative.
The executrix cites the case of In re Estate of Fults, 193 Kan. 491, 394 P. 2d 32, in support of her position and the trial court considered that case as consistent with the present law of this state. That was a case where in 1950 the trial judge denied both separate maintenance and a divorce but approved a stipulation as to a property settlement as set forth in the decree. The question there presented was:
. . . Does the 1950 judgment, which was rendered in accord with the stipulation entered into between Ernest and Minnieola as to a property settlement, bar Minnieola (the surviving spouse) from her rights under the statute of descent and distribution (G.S. 1949, 59-504) as to property acquired by Ernest in the interim between the date of [that] decree and the date of his death?” (193 Kan. at 494.)
The court cited the provisions of G.S. 1949, 60-1506 then in force and concluded that the 1950 judgment did not bar the surviving spouse from her rights under the statutes of descent and distribution as to property acquired by her deceased husband between the date of the rendition of the judgment and the date of his death, citing with approval the case of Hardesty v. Hardesty, 115 Kan. 192, 222 Pac. 102, to the effect that in similar cases a court cannot reach out and appropriate future property. We do not find In re Estate of Fults, supra, to be determinative of the issues here presented.
The executrix argues that the decree in its property division portions is similar to a separation or postnuptial agreement in that when Ludie brought her action for divorce she consented to the adjudication with respect to the division of property resulting in a decree of separate maintenance as binding upon her as any postnuptial agreement which she might have entered into. She suggests also that Ludie thereby consented to the provisions of George’s will wherein he devised his property to his daughter Mary. She cites In re Estate of Bradley, 179 Kan. 539, 297 P. 2d 180, as authority that a postnuptial agreement may defeat the right of a surviving spouse to elect to take against the decedent’s will. We have no argument with that statement of the law except to say that in this instance the decree of the Jefferson County District Court provides no evidence of such an agreement nor is there any showing in the record on appeal of such an agreement made during the lifetime of the parties which in any manner shows the intention of each of them to exclude the other from the right of inheritance to their respective properties. Neither do we find any merit whatsoever in the suggestion that by suing for divorce, Ludie thereby consented to her husband’s will as anticipated by K.S.A. 59-603. All parties seem to agree as to the right of a surviving spouse to inherit his or her interest in property acquired after a decree of separate maintenance as In re Estate of Fults, supra.
Nothing in the decree of separate maintenance indicates any clear intent of the trial court at that time to terminate rights of inheritance by either of these parties in the estate of the other, and we hold that under the circumstances set forth in this appeal, Ludie Linson as the surviving spouse of George Linson, deceased, is entitled under the provisions of K.S.A. 59-603 to make an election to take what she is entitled to by the laws of intestate succession and her right to inherit from the estate of her deceased husband was not barred by the decree of separate maintenance rendered June 14, 1972, by the District Court of Jefferson County, Kansas. Having so determined, any question as to Ludie’s entitlement to rights of homestead and the widow’s allowance remain with the district court to be resolved pursuant to law.
The judgment of the trial court is reversed and this case remanded with instructions to enter judgment in conformity herewith. | [
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Foth, J.:
This is an appeal from an order granting partial summary judgment. Questioning whether the order was appeal-able, we requested the parties to brief the issue of our jurisdiction. Briefs were filed and we heard argument on that issue along with argument on the merits. Despite the fact that both parties urge the appealability of the trial court’s order, we have concluded we have no jurisdiction and therefore dismiss the appeal.
The action was brought by the appellant, James D. Henderson (a real estate broker), and his joint venturer, Kenneth L. Perry, for an accounting under a contract dated April 4, 1969, with the appellee, Richard M. Hassur. The contract provided that Henderson and Perry would locate potential sites in Mexico for Pizza Hut restaurants to be built, leased and operated under Hassur’s franchise. For each site accepted by Hassur they were to be paid $4,000, plus 1% of the gross revenue from the restaurant for the lease term. By January 1, 1970, four sites had been acquired by Hassur, one by purchase and three by lease, for which he paid the plaintiffs the agreed $4,000 commission per site. Plaintiffs sued for an accounting of the restaurants’ revenues and the 1% claimed to be due them.
In his amended answer Hassur alleged that, by reason of their breach of contract and their breach of the fiduciary duties owed him, plaintiffs had forfeited all commissions which they otherwise would have earned under the contract. This defense was based on the fact that Henderson had a secret agreement with a Mexican builder and real estate man to share in a $32,000 profit on the one site purchased by Hassur, and to share in the profits from constructing the buildings at all four sites. Hassur also counterclaimed for the $32,000 profit shared by Henderson and hís Mexican coventurer, for return of the $16,000 previously paid to Henderson and Perry, and for punitive damages. The counterclaim was based on the same secret agreement that constituted the defense.
Perry filed a cross-claim for indemnity against his coplaintiff Henderson, alleging he had no knowledge of and was not privy to Henderson’s dealings with the Mexican entrepreneur.
In ruling on Hassur’s and Perry’s motions for summary judgment the trial court found no material facts in dispute. It found from Henderson’s own testimony that he did have a secret agreement to profit at Hassur’s expense; that the agreement covered dealings at all four sites and therefore permeated their entire relationship; and that Perry had no prior knowledge of it. It also found that Henderson and Perry owed a fiduciary duty to their principal, Hassur, which was breached by the secret profit arrangement. It therefore, by Journal Entry filed July 16, 1975, rendered summary judgment as follows:
(a) For the defendant Hassur on the question of liability.
(b) For Hassur against Henderson and Perry for the $32,000 profit realized by Henderson and his Mexican coventurer on the land sale, plus interest.
(c) For Hassur against Henderson and Perry for return of the $16,000 in commissions already paid, plus interest.
(d) For Perry against Henderson for indemnity on both those judgments.
The court expressly reserved for future trial the issue of punitive damages, and all further claims of Perry against Henderson. (These would include not only indemnity for any punitive damages due Hassur, but also a claim for Perry’s share of the 1% of gross revenues, apparently lost through Henderson’s actions.)
Henderson thereupon took this appeal. It was originally docketed in the Supreme Court, and was transferred to this court pursuant to K.S.A. 1976 Supp. 20-3018 (a). Our jurisdiction depends on whether the Supreme Court had jurisdiction in the first instance.
Appellate jurisdiction is a matter of statute. In civil cases, at the time this appeal was taken, the applicable statutes were K.S.A. 60-2101 and 60-2102 (Corrick 1964). The former defined the powers of the Supreme Court when its appellate jurisdiction was properly invoked, the latter prescribed the instances in which that jurisdiction could be invoked. Appeals as of right were covered by 60-2102 (a); as applied to this case the only relevant provision was subsection (4), covering a “final decision in any action.”
That language was considered by our Supreme Court soon after its adoption in Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637, where it was said:
“No attempt was made to define the word ‘final’ and confuse the issue. The word is to be given its ordinary meaning. A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues. The last sentence of the paragraph quoted above [60-2102 (a) (4)] protects the right to have a review of interlocutor)' or intermediate orders on appeal from the final determination of the case.” (p. 374.)
The order in this case was not “final” under the Connell definition since the trial court retained jurisdiction of several issues. It was not an order by which “all the issues in the case are determined.”
It is suggested, however, that the order is “final” because where multiple claims are involved a final judgment as to less than all such claims was authorized under some circumstances by K.S.A. (then 1974 Supp.) 60-254 (b). That section provided:
“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form or decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” (Emphasis added.)
Construing this section, in Stock v. Nordhus, 216 Kan. 779,533 P. 2d 1324, the court held that an order under 60-254 (b) which dismissed a compulsory counterclaim was not appealable but was interlocutory in nature. Since it arose out of the same transaction as the main claim it could not be finally adjudicated separately from the main claim. And see, Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 548 P. 2d 476, where the appeal was dismissed on the court’s own motion because summary judgments on liability and indemnity did not dispose of the lawsuit and were therefore interlocutory.
In those cases, as in the case at bar, there was no “express determination that there is not just reason for delay” nor any “express direction for the entry of judgment” as authorized by the statute. Such an “express” determination and direction is known in the parlance of the federal court practitioner as a “Rule 54(h) certificate.” The name derives from the rule of federal procedure from which our 60-254 (b) is derived, and federal decisions construing the rule are generally followed in this state. Stock v. Nordhus, supra.
A 54(h) certificate is essential to make a judgment as to one claim or one party appealable. In the absence of such a certificate it was held that a summary judgment in favor of one of several defendants on the issue of liability was interlocutory and not appealable as of right. Fredricks v. Foltz, 221 Kan. 28, 557 P. 2d 1252. That was so even though the practical effect of the order was to release that defendant from further participation in the lawsuit, and to deprive the plaintiff of his choice of venue which was dependent on the released defendant’s continued presence.
At oral argument counsel for appellant stated that the transcript of the hearing at which the partial summary judgment was granted would show that the trial court implicitly made the requisite findings for a 54(h) certificate. From our examination of the transcript we cannot so find. At the hearing counsel initially moved for an interlocutory appeal certificate pursuant to K.S.A. 60-2102 (b), covering orders “not otherwise appealable.” When the trial court suggested that the order might be final counsel added, “I came here anticipating that we would have an interlocutory situation.” After considerable discussion and when all was said and done, the trial court said it would grant the request for an interlocutory appeal certificate, and asked that the journal entry reflect that the court strongly urged the appellate court to accept the appeal. Counsel’s final words on this subject at the hearing reflect his concern over the effective date of the order, since he would have only “ten days in which to file any notice of appeal.” The reference could only be to the time limit for applying for permission to take an interlocutory appeal under 60-2102 (b). Appellant nonetheless chose (by failing to file such an application within ten days) not to treat this appeal as interlocutory but rather as an appeal from a final order. We are therefore precluded from considering it under 2102 (b).
Even assuming that the trial court did implicitly issue the certificate, we are not bound thereby. The claim of Hassur against Henderson, for two elements of actual damages and for punitive damages, presents but one legal right — Henderson’s breach of fiduciary duty. The fact that more than one element of damages is sought does not destroy the unity of the claim.
Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 47 L. Ed. 2d 435, 96 S. Ct. 1202, is the latest construction of Rule 54(b) by the high court of which we are aware. That was a Title VII discrimination action (42 U.S.C. § 2000e, et seq.) seeking injunctive, compensatory and punitive relief as well as attorney’s fees. The trial court granted summary judgment only as to liability and issued a 54(¿) certificate. In finding that it was without jurisdiction the Supreme Court stated:
“Rule 54(b) ‘does not apply to a single claim action .... It is limited expressly to multiple claims actions in which “one or more but less than all” of the multiple claims have been finally decided and are found otherwise to be ready for appeal.’ Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 [100 L. Ed. 1297, 76 S. Ct. 895] (1956). Here, however, respondents set forth but a single claim: that petitioner’s employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964. They prayed for several different types of relief in the event that they sustained the allegations of their complaint . . . but their complaint advanced a single legal theory which was applied to only one set of facts. Thus, despite the fact that the District Court undoubtedly made the findings required under the Rule, had it been applicable, those findings do not in a case such as this make the order appealable pursuant to 28 U.S.C. § 1291. See Mackey, supra, at 437-438.” (pp. 742-4.)
“We need not here attempt any definitive resolution of the meaning of what constitutes a claim for relief within the meaning of the Rules. See 6 J. Moore, Federal Practice ¶¶ 54.24, 54.33 (2d ed. 1975). It is sufficient to recognize that a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief.” {Id. at 743, n. 4.)
The Court also considered other jurisdictional theories and noted that the appeal was not taken within ten days as required by the interlocutory appeal statute, and there was no assurance that the Court of Appeals would have exercised its discretion to hear the appeal even if application had been timely made. The judgment of the Court of Appeals was therefore vacated with directions to dismiss the appeal. The same procedural failure is of course present in the instant case, preventing our consideration of this case as an interlocutory appeal. More importantly, the case demonstrates that there could be no “final” judgment for Hassur’s actual damages while the issue of punitive damages was still undecided.
Cinerama, Inc. v. Sweet Music, S. A., 482 F. 2d 66 (2d Cir. 1973), is closely analogous to the case at bar. The plaintiff, Cinerama, brought an action against Sweet Music and a bank for a declaratory judgment that it was not liable as guarantor of a loan from the bank to Sweet Music. The bank counterclaimed for the amount of the loan plus interest. The trial court by way of summary judgment dismissed Cinerama’s declaratory judgment claim and granted judgment to the bank for the principal amount of the guarantee; the question of interest was reserved, and a 54(b) certificate was issued. The Court of Appeals found itself without jurisdiction:
“Since multiple parties were here involved, there is no doubt that the district court could properly have made the specified direction if it had fully disposed of the separate claim between Cinerama and the Union Bank although it has not determined the controversy between Cinerama and Sweet Music. The propriety of such a disposition, however, does not invest the district court with greater power to characterize a partial disposition of a claim between Cinerama and the Bank as final than if Sweet Music had not been a party. It is settled that, in making the requisite determination and direction under F.R.Civ.P. 54(b), ‘[t]he District Court cannot, in the exercise of its discretion, treat as “final” that which is not “final” within the meaning of [28 U.S.C.] § 129T (emphasis in original), and that ‘any abuse of that discretion remains reviewable by the Court of Appeals.’ Sears, Roebuck & Co. v. Mackey [supra at 437],
“We see no basis for the apparent belief of the district court that it could sever the Bank’s claim for principal from its claim for prejudgment interest and render a ‘final’ judgment only for the former. Since the same operative facts that created the right to recover principal gave rise to the right to recover interest, there was but a single claim, as would be evident if the Bank had counterclaimed only for principal and, after obtaining judgment, had endeavored to sue for prejudgment interest.” (p. 69.)
The Court discussed and relied on its earlier opinion in Aetna Casualty & Surety Company v. Giesow, 412 F. 2d 468 (2d Cir. 1969), wherein it had held that the issues of damages and counsel fees were so inexorably interconnected as to make them a single claim. The court further noted:
“The final judgment rule is designed not merely to prevent an appeal on an issue concerning which the trial court has not yet made up its mind beyond possibility of change but also to eliminate the need for separate appellate consideration of different elements of a single claim. The burgeoning loads of the courts of appeals mandate strict adherence to this salutary policy.” (482 F. 2d at 70.)
Our statute is aimed at precisely this situation, i.e., the practice of “piecemeal appeals.” Connell v. State Highway Commission, supra. To review the' instant case and subsequently review the claim for punitive damages would be a waste of judicial time and energy, and it is for that reason our statutes deny jurisdiction.
Neither does the fact that there is both a claim and a counterclaim present “more than one claim for relief.” Cinerama, Inc. v. Sweet Music, S. A., supra. Appellant asserts in his supplemental brief that “the claim and the counterclaims are so intertwined that a decision on one necessarily involves a decision on the other.” We agree, and for that reason cannot separate them into two distinct claims.
In Seaboard Machinery Corp. v. Seaboard Machinery Corp., 267 F. 2d 178 (2d Cir. 1959), the plaintiffs/purchasers alleged breach of warranty and fraud in the sale of the assets of the defendant corporation, which counterclaimed on the notes given in payment. The Court found the entire action to be but a single claim:
“All the counts — and the counterclaim as well — arise out of a single contract, that of June 12, 1951, whereby the defendant New Jersey corporation sold all of its business and assets to the plaintiff Delaware corporation. The plaintiffs claim fraud and breach of warranty in their purchase, and each count sets forth some aspect of this over-all claim. . . . The counterclaim sought judgment upon the notes given in payment of the purchase price. . . . But this does not qualify or destroy the essential unity of the claim. The appeal must therefore be dismissed.” (267 F. 2d at 179-80.)
Similarly in Carter v. Croswell, 323 F. 2d 696 (5th Cir. 1963), opposing claims of negligence stemming from an auto crash were held to be the same claim, though contained in separate pleadings by opposing parties.
Illustrative of a case where the claim and counterclaim are so distinct as to warrant a 54(b) certificate is Allis-Chalmers Corp. v. Philadelphia Electric Co., 64 F. R. D. 135 (E. D. Pa. 1974). There the plaintiff manufacturer brought suit for the price of transformers purchased by the defendant, and the defendant counterclaimed for damages caused by defective circuit breakers sold by the plaintiff. Though conceding the validity of plaintiffs claim, the electric company argued that its counterclaim was a setoff precluding summary judgment as a final order. The court said:
“PECO asserts that this Court should consider its counterclaim as a factual defense, since it is considered such under State law, and that this characterization alone renders PECO’s claim sufficiently related to the plaintiff’s claim to defeat summary judgment. However, what is essential is not the term used to describe defendant’s counterclaim but whether that claim is a separate and independent cause of action [citation omitted], and whether it is so closely related to the claim on which summary judgment is sought that an issue of fact in one may prone to be important to both [citation omitted]. Since defendant’s counterclaim does state a separate and independent cause of action, and since it presents no issues of fact which may prove important to plaintiff’s claim, the entry of summary judgment on plaintiff’s claim is not only proper but is required under Federal Rule 56.” (64 F. R. D. at 139-40. Emphasis added.)
A 54(b) certificate was issued. While that order was vacated in Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F. 2d 360 (3d Cir. 1975), the Court of Appeals did not hold that a 54(b) certificate had been improper, but only that a more precise statement of reasons was required to permit that determination. Id. at 367, n. 16. There was no disagreement with the trial court’s reasoning that if the counterclaim is in fact a defense to the plaintiff’s claim the two cannot be separately decided or a 54(¿) certificate issued on either one. Only where they are separate and independent causes of action is a 54(b) certificate proper.
Other cases standing for the principle that the relationship of the opposing claims is a primary factor to be considered in granting a 54(b) certificate include Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,100 L. Ed. 1297, 76 S. Ct. 895; Cold Metal Process Co. v. United Co., 351 U.S. 445,100 L. Ed. 1311, 76 S. Ct. 904; Reines Distributors, Inc. v. Admiral Corporation, 31 F. R. D. 187 (S. D. N. Y. 1962); Gaetano Marzotto & Figli, S. P. A. v. G. A. Vedovi & Co., 28 F. R. D. 320 (S. D. N. Y. 1961).
We believe the counterclaim in this case is “so inherently inseparable from, or closely related to” (Sears, Roebuck & Co. v. Mackey, supra at 436) Henderson’s claim that a disposition of both is required for a “final decision.” The same alleged breach is not only the basis for the counterclaim but for the defense to the main claim. As previously indicated, the counterclaim cannot be considered disposed of until the punitive damage issue is adjudicated. Hence there is as yet no “final decision” from which an appeal may be taken as a matter of right.
The cases relied on by the parties do not persuade us otherwise. Henderson cites four federal cases. In two of those {Olympic Junior, Inc. v. David Crystal, Inc., 463 F. 2d 1141 [3d Cir. 1972]; Bushie v. Stenocord Corporation, 460 F. 2d 116 [9th Cir. 1972]), the courts, in footnotes, appear to state that the mere issuance of a 54(b) certificate grants jurisdiction. That is not the rule. Liberty Mutual Ins. Co. v. Wetzel, supra. Further, no certificate was issued here. The third (Travelers Indemnity Company v. Erickson’s, Inc., 396 F. 2d 134 [5th Cir. 1968]), sought to resolve whether there were “multiple claims,” but noted specifically that no 54(b) determination had been made. And in the fourth case (Schroeter v. Ralph Wilson Plastics, Inc., 49 F. R. D. 323 [S. D. N. Y. 1969]), it was held that summary judgment on a counterclaim of an independent nature was interlocutory; the question of finality was left for a 54(b) motion.
Hassur relies on Page v. Hamilton, 329 S. W. 2d 758 (Mo. 1959). That case was decided under a Missouri statute providing that when a new trial is granted any aggrieved party may appeal on all or part of the issues. Beckham v. Hartford Accident & Indemnity Company, 137 So. 2d 99 (La. Ct. App. 1962), involved that state’s unique procedure under which all summary judgments are final. Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P. 2d 1263, was an appeal from an order enforcing an administrative subpoena. Once the order of enforcement was entered the litigation in the district court had run its course, and there were no issues undecided. The order appealed from there was a “final decision” and clearly appeal-able. None of the cases cited are analogous to the case at bar.
In holding that the order here is not final we do not reach the question of whether summary judgment was appropriate under K.S.A. 60-256. The partial summary judgment simply remains interlocutory and is subject to revision (K.S.A. 60-254 [b]) until a final judgment is entered. (Fredricks v. Foltz, supra; Stock v. Nordhus, supra.)
We are not unmindful of the parties’ argument that a dismissal now will result in additional delay and expense. Jurisdiction, however, is not a matter of discretion. It is the duty of an appellate court on its own motion to raise the question of its jurisdiction, and when the record discloses a lack of jurisdiction it must dismiss the appeal. Meddles v. Western Power Div. of Central Tel. & Utilities Corp., supra, Syl. 1; State, v. Thompson, 221 Kan. 165, 558 P. 2d 1079. We can only suggest that should a future appeal be taken in this case from a “final decision,” a motion to utilize the present record and briefs, suitably supplemented, would be favorably received.
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Foth, J.:
This was an action against a Panamanian corporation by some 170 Kansas shareholders of the corporation, seeking primarily a court supervised election of directors and to enjoin a proposed stock issue. The district court of Kingman county sustained the defendant corporation’s motion to dismiss and the plaintiff stockholders have appealed.
The judgment of dismissal was based, among other grounds, on a finding that the court lacked jurisdiction over the person of the defendant. If this was correct, and we find that it was, then dismissal was proper and all other findings of the trial court were unnecessary and constituted mere obiter dicta. Accordingly we shall confine our analysis to the question of personal jurisdiction.
The defendant Twin Americas Agricultural and Industrial Developers, Inc., was incorporated in Panama in 1967 as a subsidiary of Cattlemen’s Foundation Corporation, Inc., a Kansas corporation. Cattlemen’s had been formed in 1964 as essentially an insurance holding company, with its stock sold only to Kansas residents. Twin Americas, the subsidiary, is also a holding company, owning subsidiaries which directly and indirectly operate ranching, construction, motel and other businesses in Brazil. Cattlemen’s and Twin Americas had interlocking boards of directors.
Between 1969 and 1972 a series of corporate financial maneuvers took place which resulted in the elimination from the scene of the parent Cattlemen’s. First, there was a public offering of Twin Americas stock aimed at raising over six million dollars in new capital. The offering was only partially successful, but some of the plaintiffs acquired their stock through subscribing to it. Second, Cattlemen’s sold for cash its insurance company subsidiary, the ownership of which had been its original primary purpose. It also closed down its broker-dealer subsidiary which had handled the Twin Americas offering. Third, Cattlemen’s paid into Twin Americas all its assets, being primarily the proceeds from the sale of the insurance company but also including Twin Americas stock, in return for more Twin Americas stock. Finally, on February 1, 1972, Cattlemen’s dissolved and distributed to its stockholders all its then assets, namely, stock in Twin Americas.
The result was that all those persons who had originally purchased stock in a Kansas insurance holding company (Cattlemen’s) found themselves owning nothing but stock in a Panamanian holding company (Twin Americas) operating in Brazil. A number of the plaintiffs (perhaps most) acquired their stock in the defendant through the exchange route.
It is important to note that plaintiffs’ petition is wholly unrelated to the corporate restructuring which was completed in 1972. The equitable relief now sought is based solely on events which occurred and were threatened in 1975.
This lawsuit was precipitated by a letter to shareholders dated September 19, 1975, from James D. Ratliff, president and chairman of the board of Twin Americas. In it he announced the resignation of four of the company’s five directors, including three who resided in Kansas. They had been replaced by two company employees, residents of Brazil, and the number of directors reduced from five to three by amendment of the by-laws. The new board proposed to issue 1,500,000 additional shares of the company (which would dilute the present stockholders’ ownership from 100% to considerably less than 50%) and to sell at least part of its land holdings in Brazil. The letter also reported that the company was unable to meet its current obligations, including past-due salaries of its employees.
The petition, filed September 30, 1975, alleged the foregoing and incorporated the letter. Named as defendants were the corporation and several individuals, including the three members of the board. The petition also alleged, among other things, that the new composition of the board was in violation of the by-laws and of plaintiffs’ rights as stockholders, and that the proposed stock issue and sale of assets were intended to “ruin the corporation,” to confer control of the corporation on the individual defendants, and to destroy plaintiffs’ rights as stockholders.
The relief prayed for was that the proposed stock issue be declared void; that the 1975 selection of new directors be declared void and they be temporarily and permanently enjoined from managing the affairs of the corporation; and that the corporation be enjoined from disposing of any of its assets until a stockholders meeting could be called and held and new directors elected. Plaintiffs also asked that their attorney be appointed receiver to manage the corporation’s affairs until a stockholders meeting could be held.
The same day the trial court entered an ex parte order granting all the temporary relief prayed for, fixing November 1, 1975, as the date for a stockholders meeting, and fixing October 29, 1975, as the date on which the individual defendants should show cause why they should not be permanently enjoined from further participation in the affairs of the corporation.
On October 30, 1975, the defendant Twin Americas filed a motion to dismiss under K.S.A. 60-212(h), based on the first six statutory grounds (i.e., all but failure to join a necessary party). Attached were a brief in support and voluminous corporate records and other documents. The motion was argued and sustained on November 3, 1975, and this appeal followed.
As previously stated, the threshold question facing the trial court (and now this court) was one of personal jurisdiction. In this case that question turns on the manner in which plaintiffs elected to serve process.
As to the individual defendants service was by mail. Plaintiffs do not contend that such service was good, or that the individuals named ever became parties to this lawsuit. We are therefore concerned only with jurisdiction over the corporate defendant Twin Americas.
Twin Americas was served by delivery of the summons and petition to the secretary of state by the sheriff of Shawnee county. The petition requested that service be effected in this mode based on the allegation, “[t]hat under and by virtue of K.S.A. 17-6702 and K.S.A. 17-6703(e), said defendant, Twin Americas Agricultural and Industrial Developers, Inc., has irrevocably appointed the Secretary of State of the State of Kansas as its agent to accept service of process in any suit or other process arising out of the activities of said corporation.” The first statute referred to deals with mergers of domestic with foreign corporations. Subsection (d) provides that a foreign corporation surviving such a merger shall designate the secretary of state its agent for service of process in two types of cases: suits on obligations of previously existing Kansas corporations which have been merged into the foreign corporation, and suits against the foreign corporation arising out of the merger itself. The present suit is of neither type. The second statute pleaded, 17-6703(e), merely recognizes the right of a Kansas corporation to merge with a parent or subsidiary domiciled outside the United States if permitted by the laws of the country of the foreign corporation’s domicile. Neither of the statutes pleaded authorizes service on the secretary of state under the circumstances existing here, and at the hearing below plaintiffs abandoned their reliance on these “merger” statutes.
Plaintiffs also specifically disclaimed any reliance on the “long-arm” statute, K.S.A. 60-308. It is not contended that the petition alleges a cause of action “arising from” the “transaction of any business within this state” by Twin Americas. (K.S.A. 60-308[¿] [1].)
What they are left with are the statutes requiring foreign corporations wishing to do business in this state to register with the secretary of state and receive a certificate of authority. K.S.A. (now 1976 Supp.) 17-7301 requires the filing of an application for such a certificate and requires the applicant to consent to service upon the secretary of state in any action against it. Twin Americas never applied for or received a certificate of authority to do business in Kansas. However, K.S.A. 17-7307(c) provides:
“Any person having a cause of action against any foreign corporation, whether or not such corporation is qualified to do business in this state, which cause of action arose in Kansas out of such corporation doing business in Kansas, or arose while such corporation was doing business in Kansas, may file suit against the corporation in the proper court of a county in which there is proper venue. Service of process in any action shall be made in the manner prescribed by K.S.A. 1972 Supp. 60-304.” (Emphasis added.)
K.S.A. 60-304(/) would authorize service on the secretary of state, as was done here. However, under 17-7307(c), quoted above, the cause of action must have arisen either “out of such corporation doing business in Kansas,” or “while such corporation was doing business in Kansas.” As noted in our discussion of the long-arm statute, there is no claim that the present cause of action arose “out of” any business done by Twin Americas in Kansas. The primary acts complained of — the selection of new directors and the proposal to sell assets and issue new stock— took place at directors meetings held in Nassau, in the Bahama Islands, on July 19, 1975, and at Brasilia, Brazil, on July 25, 1975.
The remaining question is whether it arose “while” Twin Americas was “doing business” in Kansas. The phrase “doing business in this state,” as used in the foreign corporation registration act, is defined in K.S.A. 17-7303, which provides in pertinent part:
“Every foreign corporation that has an office or place of business within this state, or a distributing point herein, or that delivers its wares or products to resident agents in this state for sale, delivery or distribution, shall be held to be doing business in this state within the meaning of this act . . . .”
Twin Americas, as a holding company, never had a place of business or distributing point in this state and never delivered any wares or products. Plaintiffs therefore rely on a contention that when the events complained of in the petition occurred, in the late summer of 1975, Twin Americas was maintaining an “office” in Kansas. If so, then the cause of action arose “while” it was “doing business” here and the service on the secretary of state was good. If not, then the service obtained was ineffectual and the court never acquired jurisdiction over the defendant. The hearing below was largely devoted to the issue of whether Twin Americas had an “office” in Kansas.
The allegations of the petition on this subject were as follows:
“That at all times herein mentioned, the defendant Twin Americas Agricultural and Industrial Developers, Inc., was and is a corporation organized and existing under the laws of the Country of Panama, but has since its inception maintained an office within the State of Kansas, and has during the course of its existence continued to do business in the State of Kansas by naming a transfer agent and by maintaining a corporate office at 1400 Topeka Boulevard, Topeka, Kansas 66601.”
The Topeka address is that of Twin Americas’ attorney, Charles S. Fisher, Jr., and of its transfer agent, Robert D. Ochs.
The petition had annexed to it the original by-laws of the corporation, presumably adopted when it was incorporated in 1967. They authorized the maintenance of offices anywhere in the world in addition to the registered office in Panama. The article dealing with stock called for a stock register and transfer book to be kept by the company’s transfer agent, if one was appointed, “or in the. absence of such transfer agent at the principle [sic] office of the corporation in Topeka, Kansas.”
From the documents attached to its motion it appears that in its earlier years Twin Americas did maintain an office in Topeka. A prospectus dated April 30, 1970, lists that city as the site of its “United States Office” and points out that by contract an office is to be furnished and operated by its then parent corporation, Cattlemen’s. The address given is 605 Quincy Street, Topeka, Kansas.
Annual stockholders meetings of Twin Americas were held at a Topeka hotel in December of 1972 and of 1973. Notices of those meetings indicated a Topeka office, although no address was given. The annual report for the fiscal year ending June 30, 1973, showed an office in the First National Bank Building in Topeka.
In April, 1974 (according to minutes submitted with the motion), at a directors meeting held in Brasilia, Brazil, it was resolved to close the company offices in Topeka as an economy measure. It was directed “that such action be accomplished as soon as management finds it conveniently possible.” Just when this was done does not appear from anything in the record. However, the notice of the 1974 annual meeting of stockholders, dated October 8, 1974, gave a Panama return address where the 1972 and 1973 notices had indicated Topeka. The meeting itself was to be held in the same Topeka hotel as the previous meetings.
In their brief plaintiffs argue in effect that the failure to show just when the Topeka office was closed leads to an inference that it continued to be open until suit was filed. This argument was not made below, as witness the following exchange:
“THE COURT [addressing plaintiffs’ counsel]: Do you claim Twin Americas had anything else here in the way of an office other than a transfer agent at the time the suit was filed?
“MR. WYLDER [plaintiffs’ counsel]: Counsel tells me they have bank accounts but I think the Court is addressing this to offices.
“THE COURT: I’m thinking about this statute. Every foreign corporation has an office or place of business.
“MR. WYLDER: It says office or place of business, it doesn’t say both. There is an ‘or’ rather than ‘and.’ No, the only office attached to our affidavit, we point out in 1973 on their annual report, they said they have an office here in Kansas but that is not when the case was commenced, in 1973.
“THE COURT: That’s right.
“MR. WYLDER: It was commenced more recently. And so the only office we can successfully contend is where the transfer agent is, which is at Topeka, Kansas.
“MR. FISHER [defendant’s counsel]: May it please the Court, I think it has been conceded, but if it hasn’t, I’d call your Honor’s attention to the exhibits attached to our motion showing that the old Topeka office as such that was maintained was closed about 18 months before this lawsuit was filed.
“THE COURT: According to the minutes, that’s right.
“MR. FISHER: It was. . . .” (Emphasis added.)
There was no response by plaintiffs’ counsel to these statements by defense counsel and the court — no indication of disagreement, no demand for further proof, no request for time to put on evidence. Later at the hearing, when the issue of whether the petition stated a claim was argued, plaintiffs urged the existence of unresolved issues of material fact. However, as to the existence of an office, we think a fair reading of the record shows a concession by plaintiffs that by the time the cause of action arose the regular company office had been long closed. The only “office” being maintained in Kansas was that of the company’s transfer agent, and it was on that office that plaintiffs necessarily relied.
It must be borne in mind that “[t]he party invoking the jurisdiction of a particular forum has the burden of proving existence of that jurisdiction.” (White v. Goldthwaite, 204 Kan. 83, 460 P.2d 578, Syl. 4. See also, Hanson v. Murphy, 208 Kan. 297, 491 P.2d 551; Product Promotions, Inc. v. Cousteau, 495 F.2d483 [5th Cir. 1974].) If plaintiffs intended to rely on some office other than that of the transfer agent it was incumbent on them to establish its existence. Instead they conceded its nonexistence, and do not even now suggest that there is evidence to establish its continuation.
Plaintiffs do not cite and we are unable to find any authority saying that the mere presence of a transfer agent in a state constitutes such a doing of business as to require a foreign corporation to register and qualify. The nearest case we find in Kansas is Lumber Co. v. State Charter Board, 107 Kan. 161, 190 Pac. 601. There the charter board had refused an application of a foreign unincorporated trust company to sell stock in Kansas because it could not qualify as a foreign corporation. The court observed:
“The permission sought, however, was not admission into the state for the purpose of doing business, and was no more than an opportunity to sell shares of stock with a view of raising money on which to do business. The general holding of the courts is that the doing of business is the exercise of some of the functions and the carrying on of the ordinary business for which the company is organized. (3 Words & Phrases, p. 2155; 6 Thompson’s Commentaries on the Law of Corporations, § 7936; Barse Live Stock Co. u. Range V. C. Co., 16 Utah, 59). Single and isolated transactions do not ordinarily constitute the doing of business (Osborne v. Shilling, 74 Kan. 675, 88 Pac. 258) and neither can the sale of shares or the ownership of stock of a nonresident company be regarded as within that term. (Payson v. Withers, Fed. Cas. No. 10, 864, 5 Biss. 269; United States v. American Bell Telephone Co., 29 Fed. 17.)” (p. 162.)
In two federal cases we find that the tortious conduct of a transfer agent, done at the behest of a foreign corporation, rendered the corporation amenable to process in a suit arising out of the conduct of the transfer agent. Thus, in Kanton v. United States Plastics, Inc., 248 F. Supp. 353 (D.N.J. 1965), Plastics directed its New Jersey transfer agent to refuse to transfer plaintiff’s stock, and gáve the agent a hold harmless agreement. The suit was for wrongful failure to transfer. The holding was:
“This Court does not decide that the mere presence in this state of Registrar, without more, is sufficient to subject Plastics to personal jurisdiction. But it does hold that Plastics did have such contacts with New Jersey in relation to activities giving rise to this lawsuit as to make it amenable to a judgment in personam, and that the maintenance of this action in this District does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Hoagland v. Springer, 75 N.J. Super. 560, 183 A.2d 678 (App. Div. 1962).” (p. 359. Emphasis added.)
The same issue arose in Gasarch v. Ormand Industries, Inc., 346 F. Supp. 550 (S.D.N.Y. 1972). Ormand was a Delaware corporation; its transfer agent, Morgan Guaranty Company, resided in New York. Relying on Kanton, supra, the court found jurisdiction over Ormand stating that the agent’s tortious act in refusing the transfer could be imputed to the principal and amounted to a tort committed in New York by Ormand.
Here, of course, there is no claim that Twin Americas’ transfer agent committed any act forming part of the cause of action. His mere presence is all plaintiffs can rely on.
Appellants do cite and rely on a New York trial court decision, Tel-A-Sign v. Weesner, 36 Misc.2d 960, 234 N.Y.S.2d 581 (1962), where service on the president of a nonqualified foreign holding corporation was upheld on the grounds that the corporation was doing business in New York, partly because it had a transfer agent in New York. The evidence there was that the corporation’s secretary maintained an office in New York, and that the corporation’s ledger, cash journal, general journal and correspondence files as well as its stock and stock transfer books, its corporate seal, its minute books, its stock ledger cards, its checkbooks, check stubs, banking records, and its cancelled checks were kept in New York, some in the secretary’s office and some in the offices of a subsidiary in the same building. In addition, the company’s correspondence was all typed in the New York office, originally for remailing from the company’s Florida office but for some six or eight months directly from the New York office. As may be seen, the transfer books were but a small part of the corporate paraphernalia kept in the New York office. Although the New York judge did put some emphasis on the transfer books and their role in the activities of a holding company, their presence alone would in our mind have been wholly inadequate to amount to “doing business.”
The description of the corporate office in Tel-A-Sign might have fit Twin Americas’ Topeka office until 1974. Had such an office continued to exist when this suit was filed we would have no difficulty in saying Twin Americas was “doing business” under 17-7303. It is conceded that it did not exist, however, and a transfer agent alone is quite a different thing.
The function of a transfer agent is simply to keep track of the corporation’s own stockholders, recording transfers of shares and keeping current the list of owners for the company’s own use. Such an agent has no business dealings whatsoever with third parties, and transacts no business of the corporation. At the time of suit the transfer agent was a Topeka attorney, and before that it had been a Topeka bank and trust company. Both were independent contractors performing their functions in their own offices, not an office of the company. As we see it, retaining a Kansas resident to act as transfer agent is much like retaining a Kansas lawyer to act as legal counsel, or a Kansas accountant to act as independent auditor. No one would suggest, we suppose, that a foreign corporation must qualify to do business in this state before retaining a Kansas lawyer or accountant, or that the lawyer’s or accountant’s office would become that of the corporation.
An argument is made that Twin Americas’ character as a holding company makes the role of its transfer agent more significant, because a holding company’s business is the buying, holding and selling of corporate stock. The difficulty there is that the company’s transfer agent, as such, has nothing to do with transactions in the stock of other corporations but only with transfers of the stock of the parent holding company. (To the extent that he may keep stock records for a subsidiary he is its transfer agent, not the parent’s-, there is nothing in this record to show that Twin Americas’ transfer agent fulfilled any such double role.)
The parties discuss at some length the doctrine enunciated in Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154, 161 A.L.R. 1057 (1945), and subsequent cases, dealing with the “minimum contacts” a foreign corporation must have with a state before in personam jurisdiction may be exercised over it consistent with due process of law. The cases and doctrine are discussed at some length in Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 644-5, 438 P.2d 128. The “minimum contacts” doctrine, however, deals with constitutional limitations on a state’s efforts to assert jurisdiction. Before reaching that question in this case it must first be determined whether this state’s statutes purport to give its courts jurisdiction under the circumstances present here.
In this connection it bears repeating that the present cause of action did not arise out of any of Twin Americas’ activities in Kansas. Hence the concepts of “minimum contacts” and “traditional notions of fair play and substantial justice” — integral parts of the long-arm statute, which looks to a cause of action “arising from” doing business in Kansas — are simply not applicable. Jurisdiction in this case must be asserted on the basis that, although the acts complained of took place elsewhere, the defendant was “present” in this state so as to be amenable to service of process on any cause of action arising “while” it was here. (K.S.A. 17-7307[c].) As noted in Tilley, supra:
“Prior to the year 1945 the traditional approach to accessibility of a defendant to in personam jurisdiction was based upon ‘presence or domicile’ in the forum state, (Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Hess v. Pawloski, 274 U.S. 352, 71 L.Ed. 1091, 47 S.Ct. 632; Milliken v. Meyer, 311 U.S. 457, 85 L.Ed. 278, 61 S.Ct. 339,132 A.L.R. 1357) or upon ‘implied consent’ from doing business in the forum state. (Lafayette Ins. Co. v. French, et al., 59 U.S. [18 Howard] 404, 15 L.Ed. 451; People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 62 L.Ed. 587, 38 S.Ct. 233; International Harvester Co. v. Kentucky, 234 U.S. 579, 58 L.Ed. 1479, 34 S.Ct. 944.)
“The more recent approach to accessibility grows out of five decisions of the United States Supreme Court in which that court defined certain concepts of due process in several fact situations to determine if personal service outside a forum state upon a ‘non-domiciliary’ met the substantive due process requirement of the Fourteenth Amendment.
“The term ‘non-domiciliary’ will be used to designate a person or corporation not accessible to in personam jurisdiction on the basis of presence, domicile, residence or doing business as understood prior to 1945.” (200 Kan. at 644.)
Our long-arm statute, the Kansas post-1945 response to Internat. Shoe, is a method for reaching what the court called a “non-domiciliary” corporation. Here plaintiffs had to show that Twin Americas was a domiciliary corporation under pre-1945 concepts of “presence ... or doing business.” Those are the concepts continued in our statutes relating to foreign corporations which are required to register and qualify. See, Land Manufacturing, Inc. v. Highland Park State Bank, 205 Kan. 526, 531, 470 P.2d 782, where the distinction is again made and discussed.
After Twin Americas closed its corporate office here it no longer met the statutory definition of doing business in this state. Although that would seem to be enough to show that it could not thereafter be served here on a new cause of action arising elsewhere, plaintiffs also urge other conduct as justifying the assumption of Kansas jurisdiction.
First, they point out that directors meetings were held here. It is the general rule that the holding of such meetings does not by itself constitute the doing of business. (See, Benson v. Brattleboro Retreat, 103 N.H. 28, 164 A.2d 560, 84 A.L.R.2d 409 [1960], and cases in the accompanying annotation and Later Case Service.) Our statute does not purport to make every foreign corporation whose directors meet in a Kansas hotel room qualify to do business here with all the periodic filings, fees and expense that would entail. The same is true of stockholders meetings and the maintenance of bank accounts. Such activities meet neither the statutory definition nor traditional concepts of doing business. Further, neither stockholders nor directors meetings had been held in Kansas for over a year prior to the actions complained of. Hence even if the meetings did constitute doing business, the cause of action did not arise “while” the company was doing business. (There may have been a bank account still open in Kansas, but we deem that fact of no significance in determining when the company ceased doing business.)
In summary, when this cause of action arose in the Bahamas and Brazil, Twin Americas was not doing business in Kansas, was not required to be registered here, and could not be sued here on such a cause of action.
The result is that the trial court correctly found it had no jurisdiction over the person of the defendant, and correctly dismissed the action. That being so, it was unnecessary to rule on the questions of subject matter jurisdiction and the sufficiency of the petition to state a claim on which relief could be granted. As to those questions we express no opinion, and those portions of the judgment which purport to rule on those and other subsidiary questions will be vacated.
The judgment is modified by striking all grounds for dismissal except lack of jurisdiction over the person of the defendants, and as so modified is affirmed. | [
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Swinehart, J.:
This is an action in which appellants-plaintiffs seek the enforcement of an agreement of compromise and settlement entered into between the representatives of appellants-plaintiffs and representatives of appellees-defendants. For clarity, appellants will be referred to as plaintiffs, and appellees as defendants.
The plaintiffs 'are part of a group of 83 teachers who were terminated by defendants during the year of 1973. Their termination occurred as a result of a walk-out, strike or work-stoppage during a period of time in the spring of 1973. At that time, ja dispute existed between the professional employees (teach\ej>s) and the defendant School District. Their termination led to the filing of a mandamus action, Seaman Dist. Teachers’ Ass’n v. Board of Education, 217 Kan. 233, 535 P. 2d 889. The trial court, in that case, compelled defendants to resume negotiations as it related to the contract for the school year of 1973-1974. All teachers employed by the Seaman, School District were repre sented by a negotiating team appointed as the duly authorized representative of teachers as provided for in K.S.A. 72-5415 to 72-5420.-
The compromise and agreement here involved wrs negotiated by the respective parties in the Seaman action, supra. The facts of the negotiations in that case should be reviewed as they relate to this case.
Two negotiated compromise and settlement agreements were reached by the negotiation representatives of the Teachers’ Association and the School Board. One agreement settled the terms and conditions of professional services of teachers for the school year of 1973-1974. The other agreement settled the conditions for the return of terminated teachers.
Before the agreements were to be binding on the parties, the same had to be ratified by the parties. The terminated teachers did, at a special meeting on the afternoon of May 15, 1973, consider and approve, by a majority vote, the negotiated agreement for their return. That evening, the professional employees met, and by majority vote, approved the negotiated agreement as to terms and conditions for professional services for the school year 1973-1974. Defendant School Board met on May 17, 1973, and by majority vote, rejected the negotiated agreement for terminated teachers and approved the negotiated agreement for professional services for the school year 1973-1974. The question of sufficiency of notice for said meetings is not questioned by either party. The professional employees of defendants and defendants did operate under provisions of this agreement for the year 1973-1974, with the exception of the plaintiffs herein.
The plaintiffs contend the agreements as negotiated, though separate in content, are but one agreement, and that when defendants approved and accepted the benefits of one, they must assume the obligations of the other agreement. Plaintiffs state that the law encourages compromise and settlement rather than litigation. (15A Am. Jur. 2d, Compromise and Settlement, § 5; Sutherland v. Sutherland, 187 Kan. 599, 358 P. 2d 776, Syl. 8; Fieser v. Stinnett, 212 Kan. 26, 509 P. 2d 1156, Syl. 2.) Further, the plaintiffs argue that the two compromise agreements must be construed together as one agreement; because the parties are identical and the negotiations occurred at the same time. (Place v. Place, 207 Kan. 734, 486 P. 2d 1354; Amortibanc Investment Co. v. Jehan, 220 Kan. 33, 551 P. 2d 918, Syl. 1.) Plaintiffs further argue that they are third party beneficiaries of the settlement agreement, even theuglvthey were not, individually or as a group, a party to the action wherein the compromise arose. Finally, they contend that the doctrine of res judicata does not apply to this action because they are not parties in any sense to the Seaman action, supra, which gave rise to the agreements upon which they rely.
Defendants argue that the two negotiated settlement agreements are separate, distinct, not dependent upon each other, and should not be considered as one agreement or contract. To support this argument, they show that the facts indicated that the court in the prior cited case, Seaman Dist. Teachers’ Assn v. Board of Education, supra, did not have jurisdiction over the question of return of the terminated teachers; that the negotiating team did not have authority under K.S.A. 72-5415 to 72-5420 to represent terminated teachers; and that in fact, the Teachers’ Association did not approve or ratify said negotiated agreement relating to return of terminated teachers. Further, the defendants argue that since the compromise and settlement was not valid, the plaintiffs could not rely on the theory that defendants could not accept the benefits of one agreement and reject the burden of its agreement with the terminated teachers.
For further argument, defendants state the plaintiffs could not be third party beneficiaries when the compromise and agreement negotiated was not between the parties hereto, and that the Teachers’ Association was without authority to negotiate for return of terminated teachers.
For further argument, the defendants argue that res judicata is applicable to bar plaintiffs’ claim, and that the trial court did not err in its ruling denying their right to an election of remedies.
The trial court, in its order granting summary judgment, found:
“The plaintiffs, constituting terminated teachers, fail to state a claim upon which relief can be granted on the basis that as a matter of law the agreement entered into by the representatives of the Association and School Board for the return of the terminated teachers was not ratified by the School Board nor ratified by the Association, and therefore did not constitute any valid agreement.”
Upon a review of the record of pleadings and testimony presented at the lower court, it is disclosed that in the prior cited case of Seaman Dist. Teachers’ Ass’n v. Board of Education, supra, at page 246, the supreme court, on appeal, found that the Teachers’ Association had no legal standing to assert claims for reinstatement on behalf of the suspended or terminated teachers; that on May 14, 1973, the representatives of the parties reached an agreement on the 1973-1974 employment contract; that said agreement was ratified by the members of the Teachers’ Association on May 15, 1973, and by the Board on May 17, 1973.
The record further discloses that the representatives of the Teachers’ Association and the Board treated teachers’ employment contracts and return of terminated teachers as separate matters. The record indicates that after the employment contract agreement was reached, the court then recessed the hearing to permit the parties to consider the agreement concerning return of terminated teachers. This occurred after the attorneys agreed that employment contract settlement had been tentatively accepted by the negotiators. This occurred at approximately 6:15 p.m., and after recess at 7:00 p.m., the parties returned to court and indicated that a tentative agreement had been reached pertaining to the terminated teachers, and that the same would be prepared and submitted to proper parties for ratification.
The court then at that time stated as follows:
“Now, with respect to the matters which were first tentatively agreed to before the recess, I want to simply ask what will be the procedure you are going to take? You have got an agreement which now is tentative with respect to return of the teachers. You had the previous agreement wherein there was tentative agreement to accept the board’s negotiated package for the ’73-’74 year with the board’s acceptance of Alternative No. 1. All that is on the record. Now, I think that it would be well to understand exactly how this is going to be submitted for ratification.”
And the attorney for the board said:
“It’s my understanding that the agreement we proposed that was submitted to you on May 11, we will provide on that salary a change to reflect the change that occurred. Then, in reference to this particular agreement of returning teachers, we intend to go to Mr. Martin’s office, and they are going to get secretaries, and we are going to start dictating and get this resolved. Time schedulewise, it’s my understanding that tomorrow afternoon there will be a mass meeting of all the teachers of the district called for the purpose of considering these two items. If they are ratified, then in that event, everything will point to go, and then the board will consider them on Thursday.”
Said statement was not objected to by attorneys for the Teachers’ Association.
The record further indicates that the terminated teachers met individually and ratified the agreement that provided for return of terminated teachers, and later that day, a separate and different meeting of members of the Teachers’ Association ratified the agreement relating to employment contract for the year 1973-1974. On May 17, 1973, the School Board met and ratified the employment contract agreement and rejected the return of terminated teachers’ agreement. In both instances, the parties considered a ratification of the agreements individually, and with regard to the agreement relating to return of terminated teachers, the ratifications took place at different times and by different identifiable groups of teachers.
The record is replete with evidence that during negotiations of the parties, the employment contract and the return of terminated teachers were considered consistently by the negotiating teams and the court as separate and distinct items for negotiation, and that the conditions of each of the agreements were not dependent upon the other.
These facts being considered with all other matters presented, this court finds that upon a motion for summary judgment by defendants, the court had facts sufficient to support its finding that a valid agreement did not exist as to the return or reinstatement of terminated teachers. (73 Am. Jur. 2d, Summary Judgment, §§ 5, 7.) Therefore, the questions of res judicata, election of remedies and third party beneficiaries are not necessary to this decision.
Judgment of the lower court is affirmed. | [
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Harman, C.J.:
James Randall Journey was convicted by a jury of possession of marihuana with intent to sell. He was sentenced and now appeals. The sole issue is whether a search warrant was illegal because the signed statement upon which it was obtained had no jurat. We hold it was not.
During the course of the arrest of defendant Journey by Johnson county detectives for the offense in question the arresting party took custody of a suitcase. Two detectives, a KBI informant and a Johnson county assistant district attorney appeared before a judge pro tem of the Johnson county magistrate court and obtained a search warrant for the suitcase. There the group presented to the judge a typewritten statement on a form entitled AFFIDAVIT FOR SEARCH WARRANT. The statement set out facts constituting probable cause for the search and was signed by the KBI informant. The jurat form following the statement was not signed by the magistrate who issued the warrant.
The search warrant contained this prefatory language:
“Upon written statement given under oath or affirmation which states facts sufficient to show and from which I find that probable cause exists. . .
During the trial the district court entertained defendant’s motion to suppress incriminating evidence seized under the search warrant for the suitcase. Upon the hearing of this motion Detective Soper, one of those who appeared in magistrate court when the warrant was secured, testified that he did not “testify” at that time but that “Allen [the informant] did”; “He was the only party that testified for the search warrant”; that he did not recall seeing Allen “sworn in”.; there was no court reporter present. A deputy district court clerk testified that in the court records she found only the statement signed by Allen which was stapled to the search warrant; there was no separate transcript. Our record on appeal reveals the following in the deputy .clerk’s testimony:
“Q. At the bottom of that Affidavit is ‘Not executed before any judge as shown on the document’?
“A. That’s correct.
“Q. It bears merely the signature of Bob Allen?
“A. That’s correct.”
No other evidence was offered respecting the matter at issue although the informant testified at the trial as a witness to defendant’s activities in connection with marihuana. In oral argument on the motion to suppress it was conceded the informant had signed the affidavit form. In denying suppression the trial court stated:
“With reference to the search warrant problem, the document in question, or Defendant’s Exhibit Number A, does have a document signed by Robert J. Woody, Pro tern of Division III of the Magistrate Court, wherein he states above his signature with the Seal of the Court as follows, and I quote: ‘Upon written statement given under oath or affirmation which states facts sufficient to show,’ et sequens. The Court feels the Magistrate’s signature verifies the document he signed that the document was given under oath and apparently through some type of clerical oversight it was not signed by the Magistrate. Obviously, the Court is concerned with substance. It is not concerned with mere irregularities, Mr. Jarvis. I see no way how this would affect the substantial rights of the defendant in this proceeding to have the Court sustain your position on the search warrant for the reason of the lack of the signature, and the Court would have to conclude that it is one of those cases contemplated by the provisions of K.S.A. 22-2511 as being a mere technical irregularity, it does not affect the substantial rights of the defendant.”
Defendant now renews his contention the search warrant was invalid because the application upon which it was issued was not sworn to.
Our federal and state constitutions provide that no search warrant shall issue but on probable cause, supported by oath or affirmation particularly describing the place to be searched and the persons or property to be seized. Implementing these mandates, K.S.A. 22-2502 (since amended) prescribed:
“(a) A search warrant shall be issued only upon the written statement of any person under oath or affirmation. . . .
“(b) Before ruling on a request for a search warrant, the magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce: Provided, That such proceeding shall be taken down by a court reporter or recording equipment and made part of the application for a search warrant.”
K.S.A. 22-2511 provides:
“No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”
In Kansas an affidavit is a written statement, under oath, sworn to or affirmed by the persons making it before some person who has authority to administer an oath or affirmation (State v. Knight, 219 Kan. 863, 867, 549 P. 2d 1397, 1401). Noteworthy is the fact we have no case law requirement for any written certificate of the officer or person before whom the writing is sworn to, known as a jurat, nor is this required constitutionally or statutorily in connection with the issuance of a search warrant, as is true in some states. The omission is significant here (obviously it is the best practice to have a written record of the oath-taking and had such been done the issue in this appeal would never have arisen). “If a declaration has in fact been made under oath it is an affidavit, although no jurat be attached. The jurat is merely evidence that an oath was duly administered, and in the absence of a jurat the fact may be proved by evidence aliunde” (James v. Logan, 82 Kan. 285, Syl. 2, 108 Pac. 81; see also American Home Life Ins. Co. v. Heide, 199 Kan. 652, 655, 433 P. 2d 454).
Thus omission of a jurat in an affidavit to obtain a search warrant does not invalidate the sworn statement. This rule is an outgrowth of the long-established presumption in favor of a public officer that he has performed the duties of his office faithfully (State v. Emory, 193 Kan. 52, 391 P. 2d 1013). “If the search warrant is regular on its face, it will be presumed that the officer discharged his duty in issuing it, and this raises a prima facie presumption as to the sufficiency of the affidavit; if the accused relies on the insufficiency or invalidity of either the affidavit or the warrant, he has the burden of proving it” (Id. 193 Kan. 54, 391 P. 2d 1015; State v. Yates, 202 Kan. 406, 410, 449 P. 2d 575, 579).
The issue here becomes one of sufficiency of evidence to support the trial court’s action. The search warrant was regular on its face. The only witness who testified as to events when it was obtained couldn’t recall whether the informant who had signed the written statement was sworn; this witness stated the informant “testified for the search warrant”. Aside from the testimony of the deputy district court clerk, to be mentioned later, the only other evidence on the point was the language in the warrant which the magistrate signed that the warrant was issued “upon written statement given under oath”. This was sufficient basis for the trial court to rule as it did upon this factual issue.
Although the doctrine should not be stretched too far, and in no event is actual swearing or affirmation to be dispensed with in securing a search warrant, we think the trial court under the circumstances here could properly take into account the prefatory language in the warrant in determining the matter. This was the viewpoint in People v. McIver, 39 App. Div. 2d 671, 331 N.Y.S. 2d 979, affirmed without opinion, 31 N.Y. 2d 735, 338 N.Y.S. 2d 108, 290 N.E. 2d 147. There the issuing judge had executed the jurat to an affidavit form in support of a search warrant but the affidavit contained no áutographed signature of the purported affiant. At the time no statute specifically required a signature. The appellate court stated the essential element was the oath or affirmation of the applicant before an officer having authority to administer the oath. In concluding that the warrant was properly issued it took into account the fact that the warrant signed by the issuing magistrate contained the recital: “ ‘Proof by affidavit having been made this date before me’, etc.”
The testimony of the deputy district court clerk does not dictate a contrary result from that reached by the trial court and here. The affidavit reproduced in our record on appeal does not have on it any such quotation as that indicated by her testimony. In reply to questioning upon oral argument of this appeal in an effort to clear up this ambiguity, counsel on both sides stated they were not aware that the original affidavit contained any such verbiage; if so neither could explain who did it nor when or under what circumstances it was done. A jurat was obviously lacking but that omission was not fatal. The absence of a court reporter during the time the search warrant was obtained is similarly of no consequence since we have determined that a sworn statement in writing was furnished the magistrate pursuant to section (a) of K.S.A. 22-2502 and he did not require further examination as contemplated in section (b) where recording of oral proceedings would have been in order.
The judgment is affirmed. | [
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Swinehart, J.:
This action was commenced under K.S.A. 39-718a for recovery of monies expended by the State for the care of the defendant’s children.
Defendant and his wife were divorced in 1972. The decree of divorce gave custody of the children to the wife, visitation to the defendant husband, and provided for child support from the defendant husband. In 1974, the defendant’s ex-wife filed contempt against defendant concerning non-payment of support by defendant. The defendant filed a contempt citation to enforce his visitation rights. Both parties were represented by counsel in this stage of the proceedings. Before the matters were presented to the court, said parties entered into an agreement settling their problems. The net result was that the wife would not seek to have the defendant contribute to the support of the children, and the defendant husband would accept limited visitation rights. The parties to the divorce action and their counsel appeared before the court and the court approved their agreement, incorporating it into a journal entry terminating the defendant husband’s obligation to support the children and setting forth limited rights of visitation. The respective contempt citations were dismissed. The wife later received aid for the children from the State of Kansas through the Department of Social and Rehabilitation Services.
The plaintiff, Department of Social and Rehabilitation Services (hereinafter SRS) sued defendant for the monies expended by the State in this action, and the defendant answered. The court found for the defendant, stating that the defendant did not have a duty to support the children because of the agreement made between himself and his ex-wife and approved by the court.
SRS appeals on the grounds that said order was invalid for the reasons that it was not in compliance with K.S.A. 60-1610, was against public policy, was not supported by the facts, and constituted abuse of discretion by the court. The defendant moved that the appeal be dismissed because it was filed out of time.
We first consider the timeliness of the plaintiff’s appeal. The statute which establishes the time within which to file an appeal is K.S.A. 60-2103. The version of K.S.A. 60-2103 in effect on December 5, 1976 (the date on which judgment was entered by the trial court) allowed the State or one of its agencies 60 days within which to file notice of appeal. On January 10, 1977, the current version of K.S.A. 60-2103 became effective. The new statute shortens the filing period for the State and its agencies to 30 days. SRS filed its notice of appeal on February 2, 1977, well within the 60-day period provided by the previous version of the statute, but beyond the 30-day limit imposed by the 1977 version of the statute. The timeliness of the appeal clearly depends on which version of the statute controls: the one in effect on the date judgment was rendered, or the one in effect on the date that notice of appeal was filed.
The statute itself contains no provision regarding its retrospective or prospective effect. Case law, as enunciated in Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539, and Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251, establishes the rule that a statute reducing the time allowed for an appeal applies to an existing judgment even though the entire time allowed for filing the appeal under the new statute has expired when the new act takes effect. The rationale for this rule is that “there is no vested right to an appeal, and that the legislature may take away from the defeated party the privilege before his appeal has been taken.” Bowen, supra, 353.
The Kansas rule is contrary to the majority rule. Regarding the retrospective application of a new statute shortening the time for perfecting an appeal, Am. Jur. states the rule to be as follows:
“Generally, the applicable law in force at the time the determination appealed from took effect governs in determining the time within which appeal must be taken, although the action may have been pending prior to that time, and statutes shortening the time within which appellate review can be taken will ordinarily be construed inapplicable to judgments, decrees, or orders entered before the statute took effect. . . . Statutes shortening the period for appeal have sometimes been applied to prior determinations, where the injured party had a reasonable time after the passage thereof within which to take such proceedings. . . .”4 Am. Jur. 2d, Appeal and Error §300, p. 787. (See cases cited n. 11.)
C.J.S. states the rule in similar terms:
“Unless an intention plainly appears that the statute is to receive a retrospective operation and effect, ordinarily it is held that a statute which curtails or reduces the time does not apply to proceedings in which a judgment, order, or decree has been previously rendered or entered. The new legislation may, however, operate on then pending cases in which judgment has been rendered prior to the taking effect of the statute, provided it does not deprive the litigant of a reasonable time in which to seek a review. . . .” 4A C.J.S., Appeal & Error §430, pp. 74-75.
The Supreme Court of Kansas has spoken on this issue in two cases (Kansas City v. Dore, supra, and Bowen v. Wilson, supra), decided many years ago. In those cases the intent of the legislature as it related to the retrospective or prospective effect of the legislation was not specifically discussed nor was it a basis for the court’s decision. Considering the current majority rule in this area of the law, we feel that the Supreme Court, if called upon to decide the issue today, would say that when the legislature did not express or evidence a clear intent that such legislation is to be retrospective, such legislation does not terminate the rights of appeal of litigants on pending cases whose appeal time has not expired under the prior version of the statute.
We next consider the plaintiff’s contention that the trial court erred in denying its petition to recover monies expended in support of the defendant’s minor children. K.S.A. 39-718a creates a mechanism which enables SRS to sue either or both parents for reimbursement of funds paid out under the aid for dependent children program. The statute specifically exempts collection from parents who are acting in compliance with a court order. The gravamen of the plaintiff’s petition is that the exemption applies only to a valid court order, and, it asserts, the order terminating the defendant father’s duty to provide support for his children is invalid in view of the fact that he is capable of doing so, at least to some degree.
It is unnecessary for this court to consider the merit of the plaintiff’s arguments concerning the validity of the order terminating support payments. The plaintiff’s assertion that the order is invalid represents a collateral attack on a judgment. This is not permissible. Jones v. Jones, 215 Kan. 102, 523 P.2d 743. Neither SRS nor the mother of the children has appealed the order to challenge its validity. An order that is not void (for example, by reason of the court’s lack of jurisdiction over subject matter or a party) is of full force and effect until challenged and changed by appeal. Davis v. Davis, 145 Kan. 282, 287, 65 P.2d 562. This rule, based on the doctrine of res judicatá, essentially means that an erroneous order as opposed to a totally void order must be treated as a finality until it is reversed on appeal. Hoover v. Roberts, 146 Kan. 785, 790, 74 P.2d 152.
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Swinehart, J.:
The plaintiff was the duly appointed, qualified and acting administrator of the estate of Lucy Clardy. Lucy Clardy was the beneficiary of a life and accident insurance policy issued by the defendant herein on the life of one Charles E. Johnson. The pertinent provisions of the policy are:
“(4) Exceptions — No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the Insured by himself, while sane or insane, or by any other person o.ther than an assailant attempting to burglarize the Insured’s household or rob the Insured; . . .”
Trial was to the court, based upon stipulations by the parties as to facts and testimony of various witnesses. The two questions decided by the trial court were:
“1. Whether the insured’s death resulted from accidental means or was intentionally inflicted upon the insured by himself, or by any other person other than an assailant attempting to burglarize the insured’s household or rob the insured.
“2. Should attorney’s fees be awarded to plaintiff’s attorney pursuant to K.S.A. 40-256.”
The trial court found:
“1. That the court has jurisdiction of the parties and the subject matter.
“2. That the plaintiff, Lucy Clardy, is the beneficiary under a policy of insurance on the life of Charles E. Johnson with the National Life and Accident Insurance Company.
“3. That on the 3d day of December, 1968, Charles Johnson was mortally wounded by stabbing.
“4. That the assailant was Helen Jean Slate.
“5. That there is, under the insurance policy, under item numbered (4), ‘Exceptions,’ a statement which reads as follows: ‘No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the insured by himself, while sane or insane, or by any other person than an assailant attempting to burglarize the insured’s household or rob the insured. . . .’
“6. The court finds that said assault was not during a burglary or an attempt to rob the said Charles E. Johnson. The court finds that the obligation to go forward with the evidence and the burden of showing that the death falls within the purview of the policy is upon the plaintiff herein. The court believes that the plaintiff has not sustained said burden from the evidence as presented.
“7. The court specifically finds that said death was not accidental in that the court was presented with no evidence which would sustain such a finding. The court incorporates herein the stipulations and agreed facts as submitted to the court, the same as if they were set forth herein.
“8. Based upon the above findings of fact and conclusions of law, the court must grant judgment to the defendant and tax the costs of this action to the plaintiff.”
This decision of the court was modified as a result of ruling on defendant’s motion for amendment, to the extent that is material to the determination of the questions here involved, as follows:
“The record discloses that death of insured was the result of a murderous assault upon him for which he is in no wise chargeable with blame. Such death is caused by ‘accidental’ means within a policy insuring against disability or death from accidental means, though inflicted intentionally so far as the assailant is concerned. Kascoutas v. Federal Life Insurance Company, 193 Iowa 343, 22 ALR 294.
“The death certificate upon which defendant relies to establish ‘non-accidental’ death, shows ‘murder’ as the circumstance of the fatal stab wound. While the court recognizes that ‘homicide’ would have been a more judicious answer to the question posed, the fact remains that the death certificate substantiates the claim of death by accidental means as above defined.
“Finding No. 7 is amended by striking the word ‘not’ in Line 2; placing a period after the word ‘accidental,’ and striking the remaining words in the first sentence.
“The ‘threshold question’ of accidental death having been determined, the second objection that the Court placed the burden upon plaintiff to negate the exceptions to recovery under the policy is considered. The record discloses evidence adduced by the defendant that the assailant was one Helen Jean Slate and that the assault was not made during a burglary or an attempt to rob the insured, and the Court so found placing the claim squarely within the policy exception, ‘No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the insured by himself, while sane or insane, or by any other person other than an assailant attempting to burglarize the insured’s household or rob the insured.’ ”
Judgment was entered in favor of defendant, and plaintiff-administrator now appeals.
The testimony presented to the trial court by written stipulation was that the deceased, Charles E. Johnson, had been acquainted with Helen Slate for a period of time prior to December 3, 1968, and said acquaintance was more than a mere casual one. On December 3, 1968, at approximately 8:00 a.m., Charles E. Johnson was at the home of Helen Slate, and at the same time, there was another man, Fred Wilson, in the bedroom of the home of Helen Slate. Further testimony revealed that the man in Helen Slate’s bedroom had previously threatened to kill Helen Slate if the victim was'\ever caught in her home again. Charles Johnson, who was in the process of leaving said home, a taxicab having been called for him by Helen Slate, had departed from the residence and was standing near the street. Helen Slate was observed leaving the house thereafter, and in conversation with Charles E. Johnson in the front yard. A passerby noted that Charles E. Johnson and Helen Slate, while in the front yard at this time, appeared to be loving and kissing. Shortly thereafter, Charles E. Johnson was observed lying on the ground, bleeding profusely. A knife with approximately a four-inch blade was found in the grass near the body. An ambulance was called, and Mr. Johnson was taken to the emergency room of the hospital. During the trip, Helen Slate rode in the ambulance and made the following statements in the presence of the ambulance driver and some police officers, to-wit: “I did it, but don’t let him die.” At the emergency room again Mrs. Slate was overheard making the following statement: “I did it, I did it, please don’t let him die.”
Evidence as a result of the autopsy indicates the deceased did die of a stab wound. The autopsy report further shows that the stab wound was in the chest area and that the offending weapon penetrated the heart in a downward direction, and that this wound was approximately three and one-half inches deep. The autopsy report further indicates that the chemical test concerning blood alcohol content was performed, and Charles E. Johnson, shortly after his death, had blood alcohol content of .169.
The evidence further indicates that the victim’s mother, Lucy Clardy, had, in a previous conversation with the victim, warned him about his relationship with Helen Slate.
As has been previously indicated, the parties agreed that the witnesses, if they had testified in person, would have testified as presented to the court and briefly outlined above.
Plaintiff, for his argument on appeal, raises the issue of whether the death, found to be accidental in nature, falls within the exclusionary clause which denies recovery if the assailant was a person other than one attempting to burglarize the insured’s household or to rob him, or whether the accidental death as found by the court falls within the general coverage of the policy. Plaintiff maintains in light of the evidence presented to the court that the court erred when it found that the death of Charles E. Johnson resulted from an intentional wound inflicted upon the insured by persons other than an assailant attempting to burglarize the insured’s household or rob the insured. Plaintiff further contends the lower coiirt erred when it found that the evidence presented by the defendant insurance company was sufficient to show that the death of the deceased fell within the exclusions providing for no indemnity in the insurance policy, and that the plaintiff had the obligation to go forward with the evidence to show that said attack by the assailant did not come within the exclusionary provisions of this particular section of the policy. Plaintiff cites the case of Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P. 2d 763, and Alliance Life Ins. Co. v. Ulysses Volunteer Fireman’s Relief Assn., 215 Kan. 937, 529 P. 2d 171.
The defendant maintains that such cases are inapplicable for the reason that the evidence here presented was sufficient for the court to make the finding that the injuries inflicted upon the deceased, Charles E. Johnson, by Helen Slate were inflicted intentionally and were not inflicted during the commission of a robbery of the deceased or during the course of burglarizing his household.
This court does not feel that the above cited cases are in point in this particular case, for the reason that the trial court did find from the evidence presented that the said Charles E. Johnson met his death by accidental means. This was gleaned by the court from all the stipulated testimony. From the same testimony, the court made the further finding that the death was a result of an intentional assault upon the insured by one Helen Slate and that said assault did not take place during the course of a robbery of the insured or burglary of the insured’s household. Without further testimony, the preponderance of the evidence precluded recovery by the plaintiff-beneficiary.
The recognized rule in Kansas is that one who claims benefits under an insurance policy has the burden of showing that the injury suffered was of a type included in the general provisions of the insurance contract. See Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P. 2d 401. Further, an insurance company, seeking to avoid liability under an exclusionary clause in its policy, has the burden of proving that the loss falls within the exclusion. Baugher v. Hartford Fire Ins. Co., supra; Alliance Life Ins. Co. v. Ulysses Volunteer Fireman’s Relief Assn., 215 Kan. 937, 529 P. 2d 171. The record in this case shows that the evidence was presented to the trial court by agreed stipulation. The court found that, based on this evidence, the defendant had met its burden of proof. This being so, judgment for defendant was proper because plaintiff, by agreeing to the stipulation, waived any rebuttal evidence he might have had.
The findings of fact are attacked for insufficiency of evidence. The duty of the appellate court is to search the record to determine whether there is competent evidence to support the findings. The appellate court will not weigh the evidence. Further, the reviewing court must review the evidence most favorable to the party who prevailed below. Union National Bank and Trust Co. v. Acker, 213 Kan. 491, 516 P. 2d 999.
Applying the foregoing rules, and after review of all of the arguments of counsel and consideration of the facts as presented to the trial court, this court finds that although there was no eyewitness to the actual stabbing, the trial court could have reasonably drawn the inference from all of the circumstances, including but not limited to the relationship of the parties, the depth and direction of the wound, the length of the knife used, and the statements in the nature of. admissions by Helen Slate, “I did it, I did it, don’t let him die,” that the act of stabbing was done intentionally by Helen Slate, and not in an attempt to rob the victim or commit a burglary. This court finds that there was no abuse of discretion, and that there was substantial evidence to support the facts above set forth, and that the court did not shift the burden of proof to the plaintiff to prove that section 4 of the insurance policy was not applicable.
We conclude the order of the lower court, finding in favor of the defendant, was based upon substantial evidence. We further conclude the burden of proof was immaterial for the reason that all of the evidence was presented and considered by the trial court at the same time, and the evidence presented was prepared by plaintiff’s counsel, and acquiesced in by the counsel for defendant.
Judgment of the lower court is affirmed.
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Swinehart, J.:
This appeal involves a foreclosure on a real estate contract. The trial court entered judgment for the Miles, appellees, for the amount due on the escrow contract. The trial court denied recovery on the counterclaim by the Loves, appellants. Appellants now appeal the trial court’s determination that the appellees made no fraudulent misrepresentations nor fraudulent concealments to appellants. They also challenge the court’s determination that there are no implied warranties in the sale of used housing.
Gene Miles, one of the appellees, is an experienced real estate developer and salesman. He first acquired an interest in the house in question in 1973 by foreclosure. It was originally built in 1959 as a three-bedroom, two-bath home, serviced by a private well and septic tank system. The owner from whom Miles acquired title had commenced an addition of three bedrooms and a bath. Miles completed this work before and during the sales negotiations. Evidence was introduced which tended to show that sewer laterals were insufficient for the house as originally built. No sewer laterals were added when the size of the house was increased. Miles was generally aware of the recommended septic tank sizes and length of laterals. However, the trial court found that Miles had no actual knowledge of the defects of the septic tank and water systems.
When appellants were shown the house for the first time, they noted the presence of sand and other matter in the water system. Miles and his sales agent both told the appellants that it was a common problem in houses with private wells that had been vacant for a time, as this one. had, and that the problem could be remedied by letting the water run continually for a couple of weeks.
Appellants purchased the house but soon discovered that the sand problem did not abate, and further that sewage waste backed up into bathtubs and the basement. They therefore decided to discontinue payments. This action is the result of that decision.
The appellants first claim that the trial court erred in finding that Miles was not guilty of fraudulent misrepresentation due to his assurances that the water would clear up if allowed to run. The existence of fraud is ordinarily a question of fact. Goff v. American Savings Association, 1 Kan. App. 2d 75, 79, 561 P.2d 897. As such, the extent of this court’s review is limited to determining whether the trial court’s finding is supported by competent evidence when that evidence is weighed in a manner most favorable to supporting the trial court’s determination. Clardy, Administrator v. National Life & Accident Ins. Co., 1 Kan. App. 2d 1, 5, 561 P.2d 892.
The necessary elements of fraud are: (1) that the representation was made as a statement of a material fact; (2) that the statement was known to be untrue by the party making it, or was made with reckless disregard for the truth; (3) that the party alleging fraud was justified in relying upon the statement; (4) that the party alleging fraud actually did rely upon the statement; and finally, (5) that as a result of this reliance, the party alleging fraud was damaged. Goff v. American Savings Association, supra, p. 78. The trial court found that Miles had no actual knowledge of the defects in the well and sewer systems, and further found that the statements regarding the water system were not made with reckless disregard for the truth, since the symptoms observed and discussed by the parties are present in systems in good working order and without serious defects. An examination of the evidence introduced at trial leads this court to conclude that the trial court’s determination was supported by competent evidence; thus, the trial court’s finding that there was no fraud will not be disturbed.
The appellants also allege that the trial court erred in finding that Miles had not fraudulently concealed the defects in the sewer system. An action for fraudulent concealment is similar to that of fraudulent misrepresentation, but in an action for fraudulent concealment, a vendor’s silence concerning defects is actionable. Jenkins v. McCormick, 184 Kan. 842, Syl. 1, 339 P.2d 8. However, not every silence is actionable. In order for silence regarding a defect to constitute fraud, the seller must have knowledge of a material defect thát is not within the fair and reasonable reach of the buyer and which is not discoverable by reasonable diligence. Jenkins v. McCormick, supra; Griffith v. Byers Construction Co., 212 Kan. 65, 70, 510 P.2d 198.
The Kansas courts have never directly determined whether actual knowledge is required, or whether implied knowledge is sufficient to support an action for fraudulent concealment. Both the Jenkins and Griffith cases, cited supra, involved defects within the actual knowledge of the seller. A survey of cases from other jurisdictions indicates that most courts require actual knowledge as an element of fraudulent concealment. For example, see Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68; Simmons et ux. v. Evans et ux., 185 Tenn. 282, 206 S.W.2d 295; Saporta v. Barbagelata, 220 Cal. App. 2d 463, 33 Cal. Rptr. 661; Williams v. Benson, 3 Mich. App. 9, 141 N.W.2d 650; Lawson v. Citizens & Sou. Nat. Bank of S.C., 259 S.C. 477, 193 S.E.2d 124; Sorrell v. Young, 6 Wash. App. 220, 491 P.2d 1312.
This court now holds that actual knowledge of the defect is required in order to support a claim of fraudulent concealment. The trial court found that Miles had no actual knowledge. An examination of the record discloses no evidence indicating that Miles had ever examined the sewer system. Therefore the trial court’s determination of no actual knowledge will be upheld.
The appellants’ last point on appeal is the trial court’s decision that the doctrine of implied warranty of fitness does not extend to the sale of used housing. Kansas has recognized an implied warranty of fitness in the sale of new housing, at least when the seller built the house. McFeeters v. Renollet, 210 Kan. 158, 165, 500 P.2d 47. However, this protection has never been extended to the sale of used housing; there the doctrine of caveat emptor still prevails.
In this factual situation, where a basically used house has been newly improved by additions, and where the defects existed prior to the additions and are not the result of the additions, this court holds that the doctrine of implied warranty of fitness should not apply. The buyer and seller can deal at arm’s length, and each has access to equal knowledge concerning the house; therefore, absent fraud, the doctrine of caveat emptor should prevail.
Judgment is affirmed. | [
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Rees, J.:
This is an appeal from a ruling by the district court of Wyandotte County denying appellant’s petition under K.S.A. 60-1507 to set aside his sentence. We reverse and remand to the district court for the purpose of granting appellant a new trial.
Appellant was convicted in 1974 of murder under the felony murder rule.
On direct appeal, the Supreme Court affirmed the conviction. State v. Bey, 217 Kan. 251, 535 P.2d 881. In our consideration of this matter, we have included review of the evidence as stated in that opinion and as disclosed in the record filed in that proceeding.
On September 11, 1973, three men robbed the Prolerized Steel Corporation in Kansas City, Kansas. In the course of the robbery two armed men entered the firm’s offices, forced the employees to lie on the floor and took money from at least two of the employees. The third robber remained outside the building. During the robbery, Roy J. Lake was killed, apparently by the robber who was outside the building, as Lake attempted to flee.
Police efforts to apprehend the robbers were unsuccessful until John Lomax voluntarily surrendered and admitted his involvement. Lomax identified his accomplices as Wilbert Etier and Julian Bey, the appellant. Bey was arrested and, along with Lomax, was charged with aggravated robbery and murder. Etier died sometime before he could be apprehended.
Appellant argues that his constitutional rights were violated by the knowing failure of the state to correct false testimony given by Lomax as to the existence of an agreement for leniency in exchange for Lomax’s testimony against appellant. We agree.
Three separate proceedings in the district court of Wyandotte County are crucial to this appeal.
On January. 7, 1974, Lomax appeared before Judge Claflin in division 1. Present at the proceedings, in addition to Lomax and Judge Claflin, were Lomax’s attorney, Mr. Menghini, and assistant district attorney Holbrook. The initial statements to the court disclosed a plea bargained agreement had been concluded between Lomax and the state. The consideration for the agreement was to be Lomax’s testimony at Bey’s trial. The details of the agreement were revealed in the following exchange between the court, Menghini and Holbrook:
“THE COURT: He has been told then, that the murder charge will be dismissed?
“MR. MENGHINI: That’s correct.
“THE COURT: And that he will be given the minimum sentence on the aggravated robbery?
“MR. MENGHINI: That’s correct.
“THE COURT: And that he will not be in the same institution with Mr. Bey?
“MR. MENGHINI: Yes, we told him.
“THE COURT: And that he stands to gain by this?
“MR. MENGHINI: Well, he has one other charge that he is presently on parole on and it’s attempted robbery — a charge he pleaded guilty to — and it’s my understanding that the prosecutor has no objection to that sentence running concurrently with this sentence that your Honor will impose upon him.
“MR. HOLBROOK: That’s correct, Your Honor.” (Emphasis supplied.)
Lomax then pleaded guilty to the charge of aggravated robbery and the murder charge was continued.
A week later on January 14, 1974, Bey’s trial began before Judge Miller in division 3. The state was once again represented by Holbrook, and appellant was represented by a Mr. Boal.
Holbrook, during voir dire and in his closing argument, informed the jury that he and Lomax’s attorney had engaged in plea bargaining and the appearance of Lomax as a witness was part of the plea bargaining process. However, Holbrook did not divulge to the jury the specifics of the bargain nor that it had as a matter of fact been made. The specific statements of the assistant district attorney were as follows:
“Now, Mr. Lomax is [not] going to come in here and testify because he wants to. Mr. Lomax’s attorney and I have engaged in what is called plea bargaining. Very frankly, in layman’s terms, plea bargaining is negotiations. If any of you have been involved in civil litigation, you know negotiating is engaged in. Mr. Lomax will be here as a part of the plea bargaining process.
“Ladies and gentlemen, I want to know from each of you, and this is very important, is there any member of this panel who, just because Mr. Lomax has, through his attorney, engaged in some plea bargaining, who will just totally discount his testimony? What I am asking you is this. I want you to listen to his testimony in the framework of the facts and circumstances of this case and the statement that he gave. And I want you to give his testimony and his statement the weight and credibility that you think it deserves. But I don’t want anybody to have any preconceived notions just because Mr. Lomax, through his attorney, has engaged in some plea bargaining.
“Is there anybody here who will not sit back and wait and listen to Mr. Lomax come in and testify and judge his testimony and give it the weight it deserves at that time when he testifies? Anybody here who will not do that? Is there anybody here who will be so prejudiced by the fact that Mr. Lomax is now a witness for the State that they just would not give his testimony any weight at all?
“We had Mr. Lomax. I told you on voir dire Mr. Lomax is not coming just because he is a nice fellow and wants to come in and testify. He said there was plea bargaining. His attorney was in the courtroom. He was there to protect his rights.”
Lomax testified against Bey and was questioned extensively by Bpal as to the existence of a “deal” for his testimony. Lomax repeatedly denied any such “deal” existed. The following testimony is typical:
“Q. Now, have any promises been made to you by anyone concerning those felony murder charges if you come here and testify against Julian Bey today?
“A. No.
“Q. No promises at all, Mr. Lomax?
“A. No.
“Q. You have not spoken to anybody about whether or not those charges will be dismissed if you testify?
“A. No.
“Q. Have any deals been made with you?
“A. No.
“Q. No deals at all? No deals of any kind?
“A. No.
“MR. HOLBROOK: I object as repetitious.
“Q. You have not talked to your lawyer about a deal?
“A. No.”
At the close of the state’s evidence, during conference with the court in chambers, Boal endeavored to have the court ascertain the details of the plea bargaining negotiations between the state and Lomax, or his counsel. The court stated:
“What information I have indicates that the only consideration of any kind ever given to this defendant was that he was permitted to plead to the charge of aggravated robbery. He has not been promised probation or any other thing that I know of.
“I would ask the District Attorney to advise if there has been any such.”
The assistant district attorney stated:
“Now, I told the jury in the voir dire a plea bargaining process, or through a plea bargaining process, that Mr. Lomax was going to come in here and testify. It is no secret that he entered a plea of guilty to the aggravated robbery charge.
“Now, to my knowledge, nobody has had any conversation personally with Mr. Lomax. I don’t think there has been any perjured testimony.
“Plea bargaining has taken place, and I will tell you that on the record right now. You know that.
“He is saying that this man has made a deal, now, and he is denying it.
“I will tell the Court, to my knowledge, there have been no promises for probation, no promises for anything, anything along that line.”
We find Lomax’s testimony as to the non-existence of an agreement to have been patently false and the state did not correct it. The state failed, both in chambers and in the courtroom, to apprise the court and the jury of the fact and terms of the agreement.
On January 21, 1974, Lomax again appeared before Judge Claflin in division 1 for sentencing. Also appearing were Menghini and assistant district attorney Harris. The state consented to the defense motion for dismissal of the murder charge and Lomax was sentenced on the aggravated robbery charge in accord with the negotiated agreement. There was general agreement among the parties that the agreement included a dismissal of the murder charge in exchange for Lomax’s testimony and that Lomax had performed his part of the agreement.
The constitutional issue here involved is raised for the first time in this action. The motion was heard and overruled by the same judge who had presided at Bey’s trial. He held in substance that the testimony claimed to have been false could not in any reasonable likelihood have affected the judgment of the jury. He further stated that it was his opinion that Bey received a fair trial and was patently guilty.
The failure of the prosecution to correct erroneous testimony by one of its witnesses as to the existence of offers or agreements for lenient treatment in exchange for testimony is a violation of the defendant’s constitutional rights under the due process clause of the Fourteenth Amendment. In Napue v. Illinois, 360 U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct. 1173 (1959), the United States Supreme Court overturned a murder conviction because a witness for the prosecution falsely testified he had received no promise of leniency in return for his testimony, and the prosecuting attorney, knowing the testimony was false, did nothing to correct it. The court said in part:
“The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or Innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N.Y.2d 554, 557, 136 N.E.2d 853, 854-855, 154 N.Y.S.2d 885, 887:
“ ‘It is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. . . . That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.’ ” (pp. 269-270.)
The Napue decision was later fortified by Giglio v. United States, 405 U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763 (1972). There a forgery conviction was overturned because an assistant United States attorney had promised the government’s key witness he would not be prosecuted if he testified and the witness then falsely testified to the contrary. However, Giglio stated that a new trial is not always required where potentially helpful evidence is not revealed by the prosecution to a criminal defendant. The test was stated as follows:
“. . . We do not, however, automatically require a new trial whenever ‘a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. . . .’ United States v. Keogh, 391 F.2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required under Brady, supra, at 87. A new trial is required if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury . . .’ Napue, supra, at 271.” (p. 154.)
We believe the false testimony of Lomax could in reasonable likelihood have affected the judgment of the jury. We have reviewed the record and are convinced Lomax was a key witness for the state at appellant’s trial. He testified extensively about preparations for the robbery, described the firearms and clothing of each of the robbers, described the perpetration of the robbery in some detail and recounted the incriminating conversations of the participants. Lomax testified that he and appellant entered the Prolerized Steel offices armed respectively with a chrome revolver and a shotgun. As the two entered the building, the deceased, Roy Lake, ran out of the building attempting to escape but was fatally wounded by Etier who had remained in the car. After making the four remaining individuals in the office lie on the floor, appellant and Lomax cleaned out the cash drawers and took money from the safe. Lomax described in detail the getaway and the statements of Etier as he discussed the shooting of Lake. The three left the Prolerized Steel offices and went to the Argentine section of Kansas City, Kansas, where they picked up Lomax’s car and split the money.
The district court discounted the importance of Lomax’s testimony because two other eyewitnesses to the robbery were able to identify appellant as one of the robbers. However, of the four men who were in the Prolerized Steel office and were forced by the robbers to lie on the floor, two were unable to identify appellant. One was unable to identify appellant in a first lineup but made an identification at a second lineup five days later. The suggestiveness of the second lineup was a matter of controversy at the appellant’s trial and on the direct appeal. Only one of the four could identify appellant from the start. Under these circumstances, the conclusion that Lomax was an important witness in the state’s case against appellant is inescapable. Therefore, Lomax’s credibility also was of importance and the jury should have been presented with all relevant facts bearing upon his credibility.
The significance of the role played by Lomax is reflected in a letter sent by the district attorney’s office to the state penal director following the sentencing of Lomax.-Contrary to the state’s present contention, it was said in that letter that, “were it not for Mr. Lomax’s cooperation and testimony, the solving of the above mentioned homicide and the conviction of Julian Bey probably would have been impossible.”
The state’s failure to correct the testimony of Lomax was not cured by general reference to plea bargaining during voir dire and closing argument. Such statements were inadequate to properly inform the jury of the agreement that had been made. In Napue v. Illinois, supra, the United States Supreme Court found vague references to plea bargaining were insufficient to apprise the jury of the agreement the prosecution had actually made with the witness.
The state’s failure to correct Lomax’s testimony was not cured by appellant’s counsel’s attacks upon Lomax’s credibility. Statements by appellant’s counsel were argument and not evidence, and the jury was so instructed. In Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976), the argument that defense counsel’s “searing attack” upon the testimony of a witness cured a failure by the prosecution to disclose an agreement for lenient treatment was specifically rejected. The court said, “No matter how good defense counsel’s argument may have been, it was apparent to the jury that it rested upon conjecture . . .” (p. 451.)
Our Supreme Court has held that where error is of a constitutional character, it will not be ground for reversal if it is harmless beyond a reasonable doubt. State v. Arney, 218 Kan. 369, 544 P.2d 334. In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error, the appellate court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and to declare such a belief beyond a reasonable doubt. State v. Thompson, 221 Kan. 176, 558 P.2d 93; State v. Hamilton, 222 Kan. 365, 564 P.2d 536. See also Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967); Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726 (1969); Milton v. Wainwright, 407 U.S. 371, 33 L.Ed.2d 1, 92 S.Ct. 2174 (1972). We cannot declare that we believe beyond a reasonable doubt that the constitutional error had little, if any, likelihood of having changed the result of the trial in this case.
We do not lightly reverse the decision of the district court and are mindful of the additional expense and inconvenience a new trial will require of the state. Further, we fully respect the trial court’s conclusions that the testimony of Lomax had little, if any, likelihood of having changed the result of the trial and that Bey was patently guilty. However, it is our conclusion that there was error and we are unable to make the two requisite declarations necessary to a holding of harmless error. The contentions of the state in its brief and on oral argument have not proved to us beyond a reasonable doubt that the error complained of made little, if any, contribution to the verdict obtained. See Chapman v. California, supra.
In view of our holdings above, it is not necessary that we address the other point raised by appellant.
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Harman, C.J.:
This is an action by a grain company against a farmer for breach of contract for the sale of 60,000 bushels of wheat. Damages were sought in the sum of $74,816.24 for 25,621 bushels not delivered. In trial to the court the farmer prevailed and this appeal ensued.
Many of the facts in the case were not in dispute — a few were. Plaintiff Bartlett and Company, Grain, buys and sells grain. Defendant E. O. Curry is a wheat farmer. On November 26, 1972, these parties entered into two written agreements. Under the first, which is not the subject of this lawsuit, plaintiff agreed to buy and defendant agreed to sell 4,500 bushels of wheat at $1.98 per bushel, delivery to be at plaintiff’s elevator at Levant, Kansas. Date of delivery was specified as “December”. Under the other contract, which is the subject of this action, plaintiff agreed to buy and defendant agreed to sell 60,000 bushels of wheat at plaintiff’s Levant elevator at a price of $2.02. This contract called for delivery in “Mar.” A notation on it stated: “Will start delivery in January and February. Will pay storage on early deliver [sic].” A printed clause in the contract provided: “If for any reason the total number of bushels is not delivered, the seller agrees to pay the buyer the full market difference on any part not delivered”.
Defendant and plaintiff’s elevator manager agreed that, because of bad weather, deliveries under the 4,500 bushel contract need not be made in December, 1972, and defendant could commence deliveries when it was possible for him to do so. He started deliveries on this contract in January, 1973, and completed them February 12, 1973. He made deliveries under the 60,000 bushel contract on February 12, 15 and 21 and on March 2, 6, 7, 12, 13, 15 and 16, 1973. These deliveries totaled 16,312 bushels. Plaintiff’s elevator manager and defendant testified that after defendant commenced he hauled wheat whenever the elevator would take the wheat. Defendant asserts he was unable to deliver the remainder of the wheat because plaintiff made it impossible to do so. Plaintiff’s elevator was shut down on several occasions in February and March and could not take wheat because of a boxcar shortage. Based upon a summary of scale tickets he had received defendant testified that out of thirty-three hauling days between February 8, and March 16, 1973, he was not allowed to haul at all for fifteen days, excluding Sundays. For seven days he was allowed only one or two loads. For eight days, three to seven loads, and for three days, eight to twelve loads were allowed. During February and March defendant and his son had trucks and wheat available so that 3,000 to 3,500 bushels per day could have been delivered.
Plaintiff’s elevator manager testified that on March 16 defendant stated he would like to collect the full anfount from the government for wheat stored on his farm; government storage payments ended April 30 and to permit defendant to make such collection he agreed that defendant could wait until after May 1 to resume deliveries under the contract. Defendant’s testimony was that he never tendered any wheat on the contract after March 17, 1973; that on March 17 the elevator was filled and he was again not allowed to haul; that he asked the manager, “What now?” and was given no answer; further “I’d let the wheat go till the government loan run out and then I’d haul a little more wheat”; he would deliver some more wheat because he needed the money; that nobody mentioned the contract at that time. Defendant asked the manager about wheat bought and sold on the March option (delivery in March) and was told the wheat had to be in Kansas City by March 20 which was the time that option went off the trading board. The price of wheat on March 21, 1973, was $1.80, or 22<* below the contract price.
Defendant did deliver seventy-three loads of wheat to plaintiff’s elevator during May, totaling 18,067 bushels. Defendant’s son took these in at various times in May, the last date being May 21, 1973. Seventy-one of the seventy-three scale tickets delivered to the son contained the abbreviation for the word “contract” upon them. Ledger sheets for these loads were delivered to defendant which indicated the contract price of $2.02. During May, 1973, the market price was “significantly higher”. After his last delivery defendant was paid at the contract rate for the entire amount of wheat delivered in May.
So far as defendant was concerned nothing further happened until he was questioned September 14,1973, by a supervisor for plaintiff as to when he would deliver more wheat. Defendant stated he had no intention of making more wheat deliveries under the contract. Plaintiff served formal demand letters on defendant September 17, 1973. The market price of wheat on the Kansas City board of trade exchange was then around $5.22. Plaintiff’s vice-president testified plaintiff did “buy-in” approximately 25,000 bushels of wheat on the morning of September 18,1973, to cover wheat not delivered by defendant.
Other evidence will be stated in connection with the parties’ contentions.
The trial court made the following findings and conclusions:
“FINDINGS OF FACT
“[1, 2 and 3 relate to the execution of the contract].
“4. The contract itself stated: ‘Date of Delivery Mar.’, which term is indefinite and incomplete as to which day exactly delivery was due; Defendant claims March 17th, and Plaintiff claims March 31. The Court finds March 17th the day of the market futures closing, but finds it immaterial in this case.
“5. That the actual agreement between the parties was that Defendant was to deliver 60,000 bushels of wheat to Plaintiff before the end of March of 1973.
“6. That said 60,000 bushels were not delivered to Plaintiff by Defendant in March 1973.
“7. That Defendant was cut off from delivering wheat to Plaintiff by Plaintiff’s own actions, between February 12, 1973, and March 16, 1973, as follows:
“a. Defendant was not allowed by Plaintiff to haul wheat on February 13, 14, 16, 17, 19, 20, 23, 24, 26, 28, March 1, 8, 9, 10, 14;
“b. Defendant was allowed to only haul 1 or 2 loads on February 22, 27, March 3, 5, 13, 16;
“c. Defendant was allowed to only haul between 3 to 7 loads on February 12, March 2, 7, 15.
“8. Plaintiff, on occasion took ‘cash wheat’ and turned away Defendant’s ‘contract wheat’.
“9. That Defendant was capable of hauling 12 to 14 loads a day, and could have met the terms of the contract if he had not been shut down by Plaintiff, as found above.
“10. That Defendant’s non-performance was excusable by the actions of Plaintiff, which prevented Defendant from full performance.
“11. In March 1973, the contract terminated by its own terms.
“12. That on April 1, 1973, there was no valid contract entered into extending the contract in question.
“13. On March 17,1973, Defendant stopped hauling wheat and Plaintiff was, or should have been, aware on that date that Defendant had breached the contract by not delivering 60,000 bushels of wheat.
“14. Defendant voluntarily hauled additional wheat in May, for the purpose of obtaining needed storage space on his farm and needed money.
“15. The March 1973, delivery date was made a term of the contract for the convenience of both parties.
“16. Plaintiff had the duty to receive Defendant’s wheat at any time during the life of the contract. No legal excuse for the failure of the Plaintiff was shown, and the Court finds there was none.
“Conclusions of Law
“1. Since the Plaintiff was the party privileged to set down in writing the terms of the contract between the parties, said contract should be strictly construed against the Plaintiff and liberally toward the Defendant.
“2. Plaintiff having prevented the Defendant from performing under a contract, cannot then avail himself of the nonperformance which he himself has brought about.
“3. A contract which specifies a period of its duration, terminates on the expiration of such period.
“4. Judgment is hereby entered for the Defendant herein.”
Our consideration of plaintiff’s numerous points on appeal will be limited to those deemed determinative. Plaintiff complains the court erroneously concluded it had the duty to receive defendant’s wheat at any time during the life of the contract. The argument is, it was unreasonable to construe the contract so as to require plaintiff at its country elevator to receive 60,000 bushels of wheat, or any major portion thereof, on any single day. This is not the fair import of the challenged conclusion. Defendant should not have had to anticipate that his deliveries would be shut off as they were after he commenced hauling in February. His testimony was that he could have hauled twelve or fourteen loads or 3,000 to 3,500 bushels of wheat per day when he and his son had time, trucks and wheat available during the period. It is no answer to argue defendant should have started his deliveries six weeks earlier. Aside from his own testimony about being shut off from deliveries, plaintiff’s manager testified he had contracted for more wheat in 1973 than usual; that defendant had cooperated in making deliveries in February and March; that defendant was “limited” from time to time in February and March and was sometimes put on a quota; that during one week when defendant was allowed to deliver only one load of wheat, the elevator took in 799 bushels of wheat either on a cash purchase or storage basis; and that it was impossible for plaintiff to take defendant’s wheat by March 20 because the elevator was shut down at various times in February and March. It appears there was an obligation on plaintiff’s part to take the wheat when it was offered and available.
O. A. Talbott & Co. v. Byler, 217 S.W. 852 (Mo. App. 1920) was an action for damages for the defendant’s alleged failure to deliver corn pursuant to a contract calling for delivery on or before December 10, 1917. Defendant attempted to deliver corn before that date but plaintiff’s agent told defendant he couldn’t take it because he had no room and there were no cars to move it. After December 10 defendant informed the agent the contract was rescinded. Three days later the agent demanded delivery. The court held:
“As to whether time was of the essence of the contract, it will be observed that the contract specified the corn was to be delivered ‘on or before the 10th day of December, 1917.’ Of course, if it was to be delivered by that time, the corresponding obligation was on plaintiff to take it within that period. The phrase ‘on or before’ a certain date in a contract, with reference to the timé it is to be performed, limits the time of performance to the date last mentioned if the subject-matter of the contract and the circumstances are such that time may be deemed as of the essence. [Citations] The contract was for the sale and delivery of a commodity the price of which was subject to change and fluctuation on the market, and the contract fixed the time within which delivery and consequent acceptance were to be had. In such cases time is of the essence of the contract, and if the buyer refuses to accept delivery at or within the time designated, the seller is not obliged to deliver after that date [citations].” (p. 853.)
Similarly in Sharpnack v. Schwertley, 190 Iowa 1037, 181 N.W. 249, the court held that if a contract for sale of corn called for inmediate delivery (distinguishable from three months here) the fact that the plaintiff buyer could not get cars enough to enable him to handle it would not excuse performance on his part, and defendant in such case would not be bound to wait indefinitely for plaintiff to be relieved from his handicap of car shortage.
Plaintiff asserts the court erred in holding that it failed to receive defendant’s wheat at times during the life of the contract. The argument here is that plaintiff’s only so-called failure was to receive every bushel of wheat on every single day defendant might have wanted to deliver it. All the evidence, including plaintiff’s manager’s admission that it was impossible for the elevator to take defendant’s wheat by March 20, supported this finding. Nor did the court err in concluding that generally a contract which specifies the period of its duration terminates on the expiration of such period (17 Am. Jur. 2d, Contracts, Sec. 486, p. 955) and applying that rule here. The contract under any interpretation did not extend beyond March 31, 1973. Its extension is another matter. The court found plaintiff had rendered defendant’s performance impossible. “ . . . [A] party to a contract cannot prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition” (Talbott v. Nibert, 167 Kan. 138, 146, 206 P. 2d 131). The provision for seller’s payment of the full market difference for any wheat not delivered would not be triggered by plaintiff’s actions rendering such delivery impossible.
Plaintiff contends that for a number of reasons the court erred in holding defendant’s performance was excused by plaintiff’s actions. It correctly points out defendant has the burden of proof on this issue. The trial court accepted defendant’s version as to all disputed factual issues.
Plaintiff says its conduct in spacing the receipt of deliveries did not manifest an intention on its part to treat the contract at an end. The import of plaintiff’s contention is not clear but in any event whether plaintiff expected defendant to perform after the time designated in the contract is immaterial since the contract was one where time was of the essence.
Plaintiff argues its conduct in not receiving grain was perfectly acceptable within the context of the custom of the grain industry. Such evidence as there was dealt with conditions during harvest time. Defendant’s testimony was that he did not agree to hold off delivery. K.S.A. 84-1-205 (2) provides:
“A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. . . .”
Here the trial court’s implicit finding was supported by the evidence.
Plaintiff would take advantage of the reasonableness standard prescribed in K.S.A. 84-2-503 (1) for the delivery and acceptance of goods, as follows:
“(1) Tender of delivery requires that the seller put and hold conforming goods at the buyer’s disposition and give the buyer any notification reasonably necessary to enable him to take delivery. The manner, time and place for tender are determined by the agreement and this article, and in particular
“(a) tender must be made at a reasonable hour, and if it is of goods they must be kept available for the period reasonably necessary to enable the buyer to take possession; but
“(b) unless otherwise agreed the buyer must furnish facilities reasonably suited to the receipt of the goods.”
Subparagraph (b) appears to be determinative here. Plaintiff had bought more wheat than usual. There was nothing further in the testimony compelling the conclusion that the period reasonably necessary for it to take possession of defendant’s wheat was the length of time it took plaintiff to accommodate all its sellers at the Levant elevator. Nor was it necessary for defendant to keep his wheat indefinitely when plaintiff lacked facilities to handle all the wheat it undertook to receive.
Plaintiff argues whatever breach that might have occurred on its part must have substantially impaired the value of the entire contract to defendant before he can excuse his default on the balance of the entire contract. The argument is that the contract should be treated as an installment contract under K.S.A. 84-2-612 wherein plaintiff’s inability to receive certain installments would constitute nonconformities and that defendant could have delivered the remainder of his wheat during the last fourteen days in March. The statute relied upon deals with nonconformities in goods received and the buyer’s remedies and is not applicable. Moreover the point does not appear to have been raised in the trial court. Defendant did testify that because plaintiff did not buy all his wheat he was unable fully to redeem his loan and receive a ten percent storage payment which the government otherwise would have paid.
In one of its principal points plaintiff maintains the trial court’s finding that the contract was not validly extended was not supported by substantial evidence. A showing of extension was made out by the testimony of plaintiff’s manager plus the fact defendant delivered wheat during May for which he received scale tickets and ledger sheets referring to the contract and eventually received the contract price by lump sum payment. The trial court could have found an extension from this evidence but did not. Defendant stated he hauled this wheat because he needed money and storage space and that his May deliveries involved separate transactions for no set price. He denied he ever agreed to any extension of the contract. Plaintiff asserts this testimony is not credible. However, it is for the trial court to determine the credibility of the witnesses and the facts. The evidence reflects that neither the manager nor defendant mentioned the contract at the March 16 meeting. Defendant stated he needed to haul more wheat and would do so in May. The testimony was that the market price of wheat was significantly higher in May than the contract price. Defendant’s last deliveries were on May 22, 1973. The record does not reveal the day by day market prices for wheat during May nor when in May they were significantly higher than the contract price. The whole situation is not as clear as it might be but it cannot be said no reasonable person could take the view adopted by the trial court.
Plaintiff contends the court erred in failing to hold that defendant reinstated the contract by continuing to make deliveries in May without seasonably notifying plaintiff of cancellation. Much of that which has been said respecting defendant’s version of events, which the trial court accepted, is applicable. Here again plaintiff relies upon K.S.A. 84-2-612 (3), providing for a buyer’s remedies in connection with receipt of nonconforming goods. A seller’s acceptance of nonconforming performance cannot be equated to a buyer’s acceptance of nonconforming goods as provided therein. Nor are the factual elements requisite to estoppel on defendant’s part present here (see Place v. Place, 207 Kan. 734,486 P.2d 1354). Plaintiff may have changed its position to its detriment because of defendant’s conduct but this is not plainly demonstrated in the record. In passing it appears singular that after March 16 plaintiff made no demand for wheat under the contract until September 17, 1973, when the market price had reached about $5.22 per bushel.
Finally, plaintiff asserts the finding that plaintiff was or should have been aware on March 16,1973, that defendant had breached the contract was not supported by the evidence. Although there was some dispute over the conversation between the elevator manager and defendant on March 16, the former stated he remembered defendant telling him he was not going to haul more wheat. Defendant stopped hauling until his May deliveries. The significance of the finding seems to lie largely in the fact that if defendant breached the contract in March, there was no damage without further special incidental showing because the contract price was then higher than the market price.
The judgment is affirmed. | [
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Parks, J.:
The single question in this case is whether a Kansas probate court has jurisdiction to appoint a special administrator for a nonresident decedent for the sole purpose of enforcing a tort claim against him when the decedent owned no property located in Kansas, but had an automobile liability insurance policy which was physically located in the state of his residence.
The parties stipulated to the following facts: On December 20, 1972, Andrew T. Hicks, a resident of Suffolk County, New York, was killed in a one-car accident when the car he was driving overturned on Interstate Highway 70 in Geary County, Kansas. Shortly thereafter R. A. Kent’s automobile collided with the Hicks automobile while it was lying on the highway. At the time of the accident, Mr. Hicks was insured under a policy of liability insurance covering the car he was operating. The policy was physically located in Wyandanch, Suffolk County, New York. Mr. Hicks did not own any tangible or intangible property with a situs in the state of Kansas within the meaning of K.S.A. 59-805.
On December 19, 1974, Mr. Kent filed a petition in the probate court of Saline County, Kansas, for the appointment of defendant, Harold H. Chase, as special administrator of the estate of Andrew T. Hicks, deceased, pursuant to the provisions of K.S.A. 1973 Supp. 59-710 and59-2239(2) [now K.S.A. 59-710 and 59-2239(2)]. Mr. Chase was so appointed on the same date. Also on this date, and in the same court, Mr. Kent filed a petition for allowance of demand in the amount of $20,000 for bodily injuries and medical expenses sustained in the collision with the decedent’s automobile on December 20, 1972.
On December 19,1974, the plaintiff filed a petition praying for a judgment against the defendant administrator in the district court of Saline County, Kansas.
The trial court entered its order granting the defendant’s motion for summary judgment on December 17,1975. The reason for the decision was that K.S.A. 59-805 provides that the situs of “insurance policies” is in the state in which the policy is located and Mr. Hicks’ policy was located in Wyandanch, Suffolk County, New York, at the time of his death. The trial court ordered that the Saline County probate court and its court did not have jurisdiction of the subject matter or the parties to this action. Plaintiff, R. A. Kent, has appealed from that decision.
Plaintiff contends that the amendment of K.S.A. 59-710 and 59-2239 by the Kansas legislature in 1972 gave our probate courts jurisdiction to appoint a personal representative for a decedent for the purpose of enforcing tort claims against him, even though there were no assets of the decedent within the state of Kansas. In support of his position, the plaintiff asserts that K.S.A. 1973 Supp. 59-710 and 59-2239(2) [now K.S.A. 59-710 and 59-2239(2)] are the controlling statutes in this case and cites In re Estate of Preston, 193 Kan. 145, 392 P. 2d 922 (1964), and In re Estate of Rogers, 164 Kan. 492, 190 P. 2d 857 (1948), for our consideration.
K.S.A. 59-2239 has been held to be a statute of limitation. (In re Estate of Wood, 198 Kan. 313, 424 P. 2d 528, Syl. 2; Gifford v. Saunders, 207 Kan. 360, 362, 485 P. 2d 195.) The amendment enacted by the 1972 legislature merely increased the statute of limitations for tort claims from nine months to two years. Correspondingly, the only effect of the amendment to K.S.A. 59-710 was to permit the appointment of a special administrator pursuant to subsection (2) of K.S.A. 59-2239, as amended by the same act. These amendments did nothing to change the jurisdiction of our courts over estates of nonresidents. Such authority, although limited, is derived from Article 8 of the Probate Code and in particular from the provisions of K.S.A. 59-805.
K.S.A. 59-805 provides:
“The courts of this state have jurisdiction over all tangible and intangible property of a nonresident decedent having a situs in this state. For the purpose of such jurisdiction it is recognized as to other states and countries, and declared with respect to this state, that the situs of debts, rights and choses in action which are embodied in legal instruments such as stock certificates, bonds, negotiable instruments, insurance policies payable to an estate and other similar items is in that state or country in which such legal instruments are located, so that whatever state or country has jurisdiction of such instruments has, and of right ought to have, jurisdiction to administer upon or otherwise direct the disposition of the debts, rights and choses in action which they embody, or voluntarily relinquish such jurisdiction to other states and countries. For such purpose the situs of other debts, rights and choses in action is where the debtor is found.”
Speaking on the subject of jurisdiction of our probate courts over nonresident estates, the court in Barr, Administratrix v. MacHarg, Administrator, 203 Kan. 612, 616, 455 P. 2d 516 said:
“Under the provisions of this statute [59-805] on and after July 1, 1967 the probate jurisdiction of a nonresident decedent’s estate is limited to tangible and intangible property having a situs in Kansas. The liability insurance policy affording William G. MacHarg, Sr., protection, and the rights embodied therein, had a situs in the state of Michigan. The nonresident decedent had no tangible or intangible property upon which the jurisdiction of our probate courts could operate.” (Emphasis added.)
It is interesting to note that the Barr case was decided three years before the 1972 amendments of K.S.A. 59-710 and 59-2239(2). It is obvious that the intent of the legislature was only to extend the statute of limitations for tort claims. No action was taken in 1972 to amend K.S.A. 59-805 which had been in existence since 1967. Therefore, we must conclude that the rule enunciated in Barr, supra, that the. situs of a liability insurance policy is in the state where the policy of insurance is located, is still the law in Kansas.
We hold that K.S.A. 59-805 is a jurisdictional statute and is controlling in this case, and that the situs of the insurance policy was Wyandanch, Suffolk County, New York. Therefore, the trial court properly found that neither the probate court nor the district court of Saline County, Kansas, had jurisdiction of the subject matter or the parties to this action.
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Foth, J.:
In November, 1975, a jury convicted the appellant of the unlawful possession of a firearm; in November, 1976, the Supreme Court affirmed the conviction in an unpublished opinion. In March, 1977, the appellant filed a motion to vacate under K.S.A. 60-1507, asking that he be granted a new trial. The trial court appointed counsel but denied the motion without an evidentiary hearing. This appeal followed.
The Supreme Court summarized the evidence against the appellant when it considered his direct appeal. The court stated:
“A .32 caliber pistol with a barrel less than twelve inches long was found in the glove compartment of an automobile rented by appellant. Appellant was driving the automobile at the time it was stopped by police and he possessed the key to the glove compartment. Two witnesses who had been in appellant’s vehicle during the episode in question testified appellant had threatened to shoot a drug purchaser if he turned out to be a narcotic agent, that appellant stated he always carried a gun and that he then had a .32 pistol in the glove compartment. . .
The present motion is based on allegedly newly discovered evidence from three sources: (1) In an affidavit filed with appellant’s motion his wife says that she is the sole owner of the gun found in the appellant’s car, and that she placed it in the glove compartment without his knowledge. She explains that she did not come forward with the information at the trial because she was fearful of being arrested for owning an unregistered firearm and because she was having marital problems with the appellant. (2) Her story is partly corroborated by a handwritten, unsworn statement of a James R. Simmons that he sold the gun to her the day before the appellant was arrested. (3) An inmate incarcerated with the appellant at Lansing, one James Edwin Pooley, says that he was present during the conversation testified to by the state’s witnesses and that he heard no mention of a gun by the appellant. The appellant claims that not until he met Pooley in prison and talked with him did he become aware that Pooley witnessed the conversation in question.
The trial court was clearly correct in denying the motion under 60-1507. Relief under that section is available only if the conviction or sentence is subject to collateral attack; guilt or innocence is not a justiciable issue. See, e.g., Potts v. State, 214 Kan. 369, 520 P.2d 1259; Davis v. State, 210 Kan. 709, 504 P.2d 617; Wood v. State, 206 Kan. 540, 479 P.2d 889; Wolfe v. State, 201 Kan. 790, 443 P.2d 260.
Newly discovered evidence is, however, grounds for a new trial motion under K.S.A. 22-3501. Appellant’s motion was timely under that section, and liberally construed could be read as requesting the relief provided for therein. Pro se pleadings of laymen are entitled to such a liberal construction so that relief may be granted if warranted by the facts alleged, without regard to the form of the pleading. Compare, e.g., Levier v. State, 209 Kan. 442, 497 P.2d 265. It is the substance of the motion that controls, not the form. Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P.2d 922.
In the order below the court denied both a hearing under 60-1507 and a new trial, thus disposing of the motion in both its aspects. Our Supreme Court recently restated the principles governing motions under 22-3501 in State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993:
' “The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L.Ed.2d 95, 94 S.Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, supra.) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, supra.)”
Tested by those standards the allegedly newly discovered evidence did not compel a new trial. The statements of Simmons and the appellant’s wife regarding ownership of the gun are not material because the appellant was convicted of possession, not ownership, of a firearm. The statements of Pooley that he heard no mention of a gun and of appellant’s wife that she placed the gun in the appellant’s car without his knowledge are relevant to the intent to possess, but are contradicted by the testimony of the two disinterested state’s witnesses. Furthermore, the statements of both Pooley and appellant’s wife are of questionable credibility. Pooley is a newly found friend from the penitentiary, whose testimony is suspect. Compare with State v. Law, 203 Kan. 89, 452 P.2d 862, and State v. Rincones, 209 Kan. 176, 495 P.2d 1019. See, also, State v. Jones, 222 Kan. 56, 63-4, 563 P.2d 1021. It seems highly unlikely that an unidentified third party was standing by appellant’s car in a position to overhear the details of a clandestine drug buy. And appellant’s wife, despite the claimed marital difficulties, came to Goodland from her home in Kansas City and attended court throughout appellant’s original trial. The trial court would have been amply justified in finding both stories to be recent inventions.
Based on the same considerations, there is nothing to show reasonable diligence in discovering the evidence, if true. The alleged bystander, Pooley, should have been obvious to appellant, and the alleged marital difficulties would not have prevented appellant’s trial counsel from at least asking her if she knew anything about the gun which mysteriously appeared in appellant’s glove compartment alongside the 20,000 pills appellant was selling. According to her statement she had borrowed the car while appellant was visiting her home, a fact appellant would obviously have known.
We cannot find an abuse of discretion in denying a new trial on a finding either that the newly discovered evidence was not credible, or that it could have been produced at trial with reasonable diligence.
On appeal appellant also raises two issues relating to the admission of evidence at his trial. Neither was raised in the motion filed below, and both were fully considered by the Supreme Court in his direct appeal. A motion under 60-1507 cannot be used as a second appeal. E.g., Jenkins v. State, 211 Kan. 593, 506 P.2d 1111; Cipolla v. State, 207 Kan. 822, 486 P.2d 1391.
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Rees, J.:
The appellants prosecuted appeals to the district court of Hamilton county from two orders made by the chief engineer of the division of water resources of the Kansas state board of agriculture. The two appeals were consolidated by the district court and then dismissed for lack of subject matter jurisdiction. Appellants duly appealed to the supreme court and the cases are before this court for review upon order of transfer.
The chief engineer issued and mailed his orders on June 10, 1974, and June 21, 1974. On August 8,1974, the appellants filed their notices of appeal with the clerk of the district court of Hamilton county. Copies of the notices had been sent by certified mail to the chief engineer on August 7 and they were received by his office on August 8. There was typed on and made a part of each notice filed with the clerk a certificate of service reciting that a copy had been mailed to the chief engineer on August 7. The certificates were signed by counsel for the appellants. On August 1, 1975, in connection with pretrial proceedings, counsel for appellants filed an affidavit reciting the facts of his mailing of the copies of the notices and the return to him of a receipt showing delivery. On September 30, 1975, the certified mail receipt was filed with the court. The trial court held that there was no subject matter jurisdiction for the reason that service, of the notices of appeal was required to be proved by affidavit filed within sixty days from the dates of the challenged orders. There are no questions raised concerning the contents of the notices of appeal, the timeliness of filing of the notices with the clerk of the district court, or the propriety of service of the notices upon the chief engineer.
K.S.A. 82a-724 was enacted in 1957 and it has governed appeals to district courts from orders and decisions of the chief engineer since that time. Insofar as pertinent to our decision herein, that statute reads:
“. . . Any such appeal must be filed within sixty (60) days after the date of mailing of the notice of the order or decision. . . Such an appeal shall be taken by serving upon the chief engineer a written notice of appeal specifying the order or decision appealed from, with a demand for certified copies of all pertinent papers on file in his office relating to the order or decision appealed from. Such an appeal shall be perfected by filing with the clerk of the district court a copy of the notice of appeal together with proof of service. . . .”
Although requiring that “a copy of the notice of appeal together with proof of service” be filed with the clerk of the district court within sixty days from the date of mailing of the notice or order, the statute does not prescribe what constitutes “proof of service.”
Prior to 1964, G.S. 1949, 60-3308 was in effect, and it provided that:
“Appeals to courts other than the supreme court shall be taken and proceedings therein had in the same manner as is herein provided for appeals to the supreme court, except where special provision with reference to such appeals is made by statute.”
Appeals to the supreme court were required by G.S. 1949, 60-3309 to be perfected within two months from the date of judg ment or order. G.S. 1949, 60-3306 set forth the procedure to be followed and required filing of notice of appeal, service of the notice of appeal on adverse parties, and proof of service, as follows:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, ox theix attorneys of record; . . . Proof of such service shall be made by affidavit; . . .”
Under those statutes, proof of service was required to be made by the filing of an affidavit and there was no subject matter jurisdiction if the copy of notice of appeal and the affidavit were not both filed within the prescribed time. Krehbiel v. Juhnke, 186 Kan. 514, 351 P. 2d 206; Nicolay v. Parker, 185 Kan. 481, 345 P. 2d 1013; Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P. 2d 341.
K.S.A. 82a-724 has not been repealed or amended. G.S. 1949, 60-3308 has been repealed and it was replaced as of January 1, 1964, by K.S.A. 60-2101(d) which, insofar as arguably relevant, reads as follows:
“A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. . . .”
K.S.A. 60-2103(¿), as in effect prior to January 10, 1977, provided that “[t]he appealing party shall cause notice of the appeal [to the supreme court] to be served ... as provided in K.S.A. 60-205.” K.S.A. 60-205 makes no requirements for proof of service. There simply are no proof of service requirements in our code of civil procedure that are applicable to the cases before us.
To hold that K.S.A. 82a-724 requires that proof of service be made by affidavit necessitates incorporation into that statute of provisions of a statute long ago repealed. This we decline to do. When a statute is revised and some parts are omitted, the omitted parts are generally to be considered as annulled. We must presume that the legislature in deleting the statutory requirement of proof of service by affidavit intended thereby to effect a change in the law and that it was fully aware of the impact of the change which was made. (State, ex rel. v. Richardson, 174 Kan. 382, 256 P. 2d 135; State v. Beard, 197 Kan. 275, 416 P. 2d 783.)
There is an additional and more compelling reason for not reading into K.S.A. 82a-724 parts of our code of civil procedure even if relevant provisions might be found. K.S.A. 60-2101(d) expressly makes relevant provisions of the code of civil procedure applicable to an appeal from an administrative decision “[i]f no other means for perfecting such appeal [to the district court] is provided by law.” As to an appeal from an order or decision of the chief engineer under K.S.A. 82a-701, et seq.., K.S.A. 82a-724 provides an “other means for perfecting such appeal.”
What constitutes “proof of service” sufficient to satisfy K.S.A. 82a-724? The question is one of first impression. City of Hesston v. Smrha, 184 Kan. 223, 336 P. 2d 428, is of no assistance for the reason that the appeals to the district court in that and related litigation were taken prior to the enactment of K.S.A. 82a-724. As we have noted, we find no help in our code of civil procedure. K.S.A. 60-312 governs proof of service of process and does not relate to appeals or service of pleadings other than the petition.
In the federal courts, proof of service under Rule 5, Fed. R. Civ. P., is a matter of local rule in a number of district courts. Wright and Miller, Federal Practice and Procedure, Sec. 1150. In Timmons v. U.S., 194 F.2d 357 (4th Cir. 1952), cert. den. 344 U.S. 844, 97 L. Ed. 656, 73 S.Ct. 59, an attorney’s certificate of service of requests for admissions was unsuccessfully attacked as inadequate on the ground that the certificate was not supported by affidavit. The court found that Rule 5, Fed. R. Civ. P. (the federal counterpart of K.S.A. 60-205), includes no requirement of proof of service and stated in part:
“. . . The addition of an affidavit . . . would have added nothing to the effect of the certificate since it would constitute merely a voluntary act of the affiant; and the absence of the affidavit did not absolve the certifier from the criminal sanctions applicable to one who corruptly obstructs the administration of justice in the federal courts.” (p. 361.)
Appellee has provided us with no authority that proof of service must necessarily be made by affidavit in the absence of statutory requirement or court rule. Our research has failed to develop such authority.
We hold that under K.S.A. 82a-724 certificate of counsel is sufficient as proof of service and that the filing of certificate of counsel with the copy of notice of appeal within the statutory period meets the requirement for perfection of appeal and the invocation of the appellate jurisdiction of the district court. Possible requirement for an affidavit or other evidentiary proof of the fact of service upon reasonable challenge of the content of the certificate is another matter and not now before us. K.S.A. 60-211 eliminates the need for verification of pleadings or the furnishing of an accompanying affidavit where there is certification of counsel. Similarly, certificates of service signed by members of the bar of this state should be given such evidentiary effect as would be afforded the same statements if made by affidavit.
In view of our holding that appellants effectively invoked the appellate jurisdiction of the district court by filing both copy of notice of appeal and certificate of counsel as proof of service within sixty days following the chief engineer’s order or decision in each case, it is not necessary for us to discuss other arguments of appellants.
The order dismissing the appeals for lack of jurisdiction of the subject matter is reversed and the cases are remanded to the trial court for further action. | [
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Foth, J.:
This is an action for specific performance, or alternatively for damages for breach, of a written contract under which the plaintiff corporation agreed to sell all its assets to the defendant corporation in return for shares of defendant’s stock. Trial was to the court, which rendered judgment for the defendant on a finding that the defendant’s officers had not been properly authorized by its board of directors to execute the contract on its behalf.
The deficiency found was that only three of the defendant’s six directors voted to authorize the contract, two voted against the contract, while one abstained. Plaintiff has appealed, contending that the vote was sufficient to authorize the contract, and that even if it was not defendant ratified the vote, clothed its officers with apparent authority to execute the contract, and is estopped to deny its validity.
Plaintiff Equity Investors, Inc., is a New Mexico real estate holding and operating company. In 1971 its assets consisted primarily of two motels and a nursing home worth around $4,000,000, subject to outstanding liabilities of around $2,300,000. Victor E. Katt was its president, chairman of the board, and controlling stockholder. The defendant, then known as Liberty Investors, Inc., was a Kansas holding company with real estate and insurance interests. In 1971 James Ford was the chairman of its board of directors and its chief executive officer.
In the spring of 1971 Katt was approached by Ford and by Ray Hodge, another director of Liberty and former chairman of its board, to see if Katt was interested in selling Equity’s assets. Katt’s reaction was cautious, because prior negotiations along the same line in 1970 had been unproductive and Katt felt he had been “jacked around” by the Liberty group. In addition, Equity was having cash flow problems which would be aggravated by lengthy negotiations if they proved unfruitful. Katt was assured that Liberty was serious about the proposition and that a committee of its directors was updating its 1970 investigation, of Equity’s assets. On the strength of these assurances Katt entered into negotiations culminating in a crucial meeting of Liberty’s board of directors on July 13, 1971.
At that meeting all six incumbent members of Liberty’s board were present; a seventh seat was vacant. Also present was Fred Beaty, general counsel for Liberty. Katt, representing Equity, was standing by in a separate room.
The four directors constituting the committee to investigate the proposed purchase of Equity recommended it. The proposal, as tentatively agreed upon with Katt, called for payment through the issuance of 501,200 shares of Liberty’s stock. After some discussion a lesser offer was conveyed to the waiting Katt, who rejected it. Finally a vote was taken on a motion to authorize the officers to carry out the purchase on the original terms. The vote was three in favor and two opposed. One director, although a member of the recommending committee, abstained from voting.
At the conclusion of the vote the chairman announced that the motion had carried. No one took exception to that announcement. The abstaining director then suggested that Mr. Beaty, the company’s counsel, go out and tell Katt that his proposal had been accepted. Before doing so, however, Beaty polled the six members of the board individually to see if there were any objections. All six told him to go ahead.
At this point Beaty ushered in Mr. Katt. He was told in the presence of all directors that the deal was on, and there was a general discussion about their future working relationship (under which, among other things, Katt was to become an employee of Liberty).
There was testimony that Katt was advised at that time of the outcome of the vote, but no suggestion was made that it was insufficient. One of the dissenting directors, Paul Wunsch, indi cated that he wanted to see the written contract before it was signed. He gave no indication, however, that he regarded the proposed contract as unauthorized.
Mr. Beaty announced that drafting of the written contract would begin at his office at 10:00 a.m. the next day, and that all interested individuals were welcome to participate. On this note the meeting broke up.
The next day Ford and Beaty, on behalf of Liberty, met with Katt and Equity’s counsel to formalize the contract. Drafting consumed some two days, and on July 16, 1971, the contract was formally executed by the officers of each corporation. Mr. Wunsch apparently did not avail himself of the opportunity to participate in the drafting process. There is, however, no evidence that he objected to any provision of the contract as finally drawn, or that any provision he would have suggested was omitted.
Two features of the contract become important in this case. First, pending closing rather severe limitations were put on Equity’s right to hire or fire personnel, spend or borrow money, or dispose of property. Second, it was agreed that the contract would be submitted to the Kansas securities commissioner “as provided by Kansas statutes pertaining to exempt transactions.” Closing was to take place “at a time not more than fifteen (15) days after completion of the necessary filings and action required by the Statutes of the State of Kansas governing exempt transactions in securities.”
Accordingly the contract was submitted to the securities commissioner to secure a ruling from him that the proposed issue of Liberty stock was exempt from the registration requirements of the Kansas securities act. The commissioner conducted a hearing on August 12, 1971, at which Liberty appeared by Fred Beaty, Equity appeared by its counsel, and several individual interveners appeared by counsel. Among the latter was one of the two dissenting Liberty directors, Paul Wunsch, who appeared by his son, attorney Robert Wunsch. There is no indication that any question was raised at that time about the validity of the contract.
At the conclusion of the hearing the commissioner took under advisement the question of whether the proposed issue was exempt as an “isolated transaction” under K.S.A. (then 1970 Supp.) 17-1262 (a). Pending his determination he ordered that no offer, sale or transfer of Liberty’s stock be made. There is some dispute over the distribution of that order: certain of Liberty’s directors (including Paul Wunsch) came into possession of it, while neither its counsel nor the chairman of its board of directors saw it until some two weeks later. On the part of Equity, Mr. Katt’s testimony was that he was unaware of the order until after it had been superseded by an order granting the exemption on August 26, 1971.
After the August 12 hearing before the securities commissioner Katt began pressing Ford to close the sale. His demands were both formal and informal. Ford, on behalf of Liberty, was willing and eager to close but was unable to deliver any Liberty stock. This was because Mr. Wunsch, as secretary, would not sign the certificates, and had advised the bank which served as Liberty’s transfer agent not to transfer any stock. (Mr. Wunsch, according to his testimony, was relying on the securities commissioner’s order of August 12.) Ford put Katt off from day to day, hoping to clear matters up within the Liberty circle, but frankly admitted that “it was rather doubtful whether I would be able to get anything done on it in the future.”
Other directors of Liberty were concerned about the delay, and sought independent legal advice. Two opinions were rendered in which counsel found the proposed issue was exempt and outside the jurisdiction of the securities commissioner.
On August 26, 1971, the securities commissioner issued his second order, finding the issue was exempt. The same day Liberty’s board met, and a heated discussion took place over the accuracy of Mr. Wunsch’s minutes of the July 13 meeting. According to his version of the minutes he had made his looking at the contract almost a condition precedent to its execution; Beaty’s invitation to interested parties to participate in the drafting was omitted. Katt and Equity thereafter made further efforts to close. On August 30,1971, Ford wrote Equity’s counsel about the latest controversy on the Liberty board, concluding that:
“Under the circumstances, there is no authority to issue stock to Vic Katt and it apparently is going to be the position of some directors that they did not know when the contract was to be prepared and signed and that no authority to sign the contract existed.
“No instructions were furnished to the officers as to any action to be taken concerning the board’s vote to accept your proposition, but, as you can see, the authority to issue the stock to you is not available to me.”
Katt and Equity were naturally quite distressed at this turn of events, and on the morning of September 2, 1971, Katt appeared at Liberty’s offices with counsel and all closing documents. Ford’s response was, “I can’t close the transaction and I see no way this transaction will ever be closed or can be closed. . . . Every time I try to close it, I have been stopped at the pass.”
That afternoon, after consulting counsel, Katt on behalf of Equity wrote to Liberty withdrawing the offer to close, saying the contract was in breach and that Equity would pursue its legal remedies. Katt nevertheless made further efforts to close, but when they were likewise fruitless this suit followed.
The trial court based its judgment for defendant solely on the invalidity of the 3-2-1 vote of Liberty’s directors; it failed to reach plaintiff’s claims of apparent authority and estoppel, or defendant’s claim of anticipatory breach. We find the judgment was erroneous on all grounds.
In the first place we believe the vote was sufficient to.authorize the contract. At the common law an abstainer was counted as voting with the majority, or at least as acquiescing in their action. The many cases so holding are collected in the annotation at 63 A. L. R. 3d 1072. The question arises most frequently in the case of public bodies, but in Kansas the same rule applies to private corporations as to municipal corporations. Smith v. State, 64 Kan. 730, 733, 68 Pac. 641. A majority of a quorum is all that is required under the common law.
The common law rule may, of course, be altered by statute. We do not believe it has been altered in Kansas. Applicable in 1971, when the Liberty vote was taken, was K.S.A. 17-3101, providing that a majority of the directors should constitute a quorum and that “[t]he act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors unless a greater number is required by the articles of incorporation, the bylaws, or by provisions of law.” In the absence of the statute the act of a majority of those present (if a quorum) would have been the act of the board. The statute does not change this result. We certainly see nothing in the statute indicating an intent to alter the role of an abstainer from acquiescence to opposition — the statute simply does not deal with abstainers. In short, we see nothing more in this statute than a codification of the common law.
In Smith v. State, supra, Kansas adopted the generally accepted principle that a member of a governing body who wishes to defeat a proposal must vote against it. There it was held that a resolution carried when four members of an eight-member council voted for it, while other members present abstained. The court quoted with approval from The Rushville Gas Company v. The City of Rushville et al., 121 Ind. 206, 23 N. E. 72, which had held that a resolution was validly passed by the affirmative vote of three members of a six-man council, with three abstainers:
“The mere presence of inactive members does not impair the right of the majority of the quorum to proceed with the business of the body. If members present desire to defeat a measure they must vote against it, for inaction will not accomplish their purpose. Their silence is acquiescence rather than opposition. Their refusal to vote is, in effect, a declaration that they consent that the majority of the quorum may act for the body of which they are members.” (Smith v. State, supra at 732-33.)
In the case at bar four members of Liberty’s board constituted a quorum. There is no doubt that a vote of three to one would have been good, or three to two, under the statute as well as under the common law. Under the rule of Smith v. State, the presence of an abstainer does not change this result. He may have been physically “present,” but for voting purposes he might as well have been elsewhere.
The one case to the contrary cited to us is Dillon v. Berg, 326 F. Supp. 1214 (D. Del. 1971). The trial judge deciding that case found it to be “established” that an abstainer is counted in the negative, citing treatise authority. As previously stated, the general rule throughout the country puts the abstainer with the majority, and our Supreme Court has so held. Accordingly, we hold that the July 13 vote of Liberty’s board was sufficient to adopt the resolution authorizing the contract.
But even if the resolution was not properly adopted, so that Ford as Liberty’s chief executive officer had no actual authority to sign the contract, it is hard to imagine a clearer case of an agent acting with ostensible or apparent authority. The principles governing such an agency relationship were recently restated in Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66, Syl. 6-8:
“An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third parties to believe to be his agent even though no authority, either express or implied, has been conferred upon him.”
“Ratification is the adoption or confirmation by a principal of an act performed on his behalf by an agent which act was performed without authority.”
“Upon acquiring knowledge of his agent’s unauthorized act, the principal should promptly repudiate the act; otherwise it will be presumed he has ratified and affirmed the act.”
See also, Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 510 P. 2d 1212, Syl. 6; Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803, Syl. 4, 5.
In this case the principal, Liberty, through its board of directors, intentionally led Katt and Equity to believe that Ford had authority to contract. All the conduct of each director at the meeting of July 13 was consistent with such authority — none was even slightly inconsistent. Katt was told by all that he had a deal. It may be that the results of the vote were imparted to Katt; the evidence on that point is conflicting. One thing is clear, however, and that is that no one remotely suggested the proposition had not carried. All were in agreement that it had. If Liberty’s directors thought the vote was good, surely an outsider was not duty bound to challenge it. As to Mr. Wunsch’s desire to see the final contract, that was purely an internal matter with Liberty and was no concern of Katt’s. There appears to us no reason why Katt could not reasonably rely on the assurances of Liberty’s directors and proceed to execute the contract.
Further, Liberty’s directors knew the contract had been executed when they participated in the securities commissioner’s hearing a month later. If the signing was unauthorized they had a duty to “promptly repudiate the act.” (Brown v. Wichita State University, supra, Syl. 8.) Having failed to do so, it must be presumed that they “ratified and affirmed the act.” {Ibid.)
Beyond that there is the element of estoppel. In Maurer v. J. C. Nichols Co., 207 Kan. 315, 320, 485 P. 2d 174, the court observed:
“The doctrine of equitable estoppel is said to be based upon the principle that a person is held to a representation made or a position assumed where otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. [Citations omitted.]”
Here, for almost two months Liberty led Katt and Equity to believe there was a binding contract. Delays were all blamed on internal dissension, and perhaps on the securities commissioner, but never on a claimed invalidity of the contract. Equity, in reliance on the contract, secured its directors and stockholders’ approval and abided by the contract’s restrictions on its activities. The classic elements of an estoppel, or at least quasi-estoppel, were present. See, Bowen, Administrator v. Lewis, 198 Kan. 706, 712-13, 426 P. 2d 244, and cases cited therein. In our view Liberty was estopped from denying the validity of the contract.
Liberty, as a second line of defense, urges that even if the contract was good Equity was guilty of an anticipatory breach. The argument is based on the contract provision calling for closing “not more than fifteen (15) days after completion of the necessary filings and action required by the Statutes of the State of Kansas governing exempt transactions in securities.” Liberty says that this language gave it fifteen days after the commissioner’s exemption order of August 26, 1971, in which to close. Equity’s letter of September 2, it claims, was therefore eight days early.
We agree there was an anticipatory breach, but it seems clear to us the breach was Liberty’s, not Equity’s. The Liberty letter of August 30, quoted above, leaves no doubt in the reader’s mind but that Liberty did not intend to perform and that its officers could not perform. The same idea was convincingly conveyed by Ford to Katt personally on September 2, before Katt wrote his letter of that date. Equity’s rights at that point are concisely stated in Whiteley v. O'Dell, 219 Kan. 314, 317, 548 P. 2d 798:
. “If it is clear that one party to a contract is going to be unable to perform it, the other party need not wait for the date when performance is due. He is entitled to treat the contract at an end and pursue his remedies. (11 Williston on Contracts, sec. 1308, p. 100; 17 Am. Jur. 2d, Contracts, sec. 506, p. 986; Jinnings v. Amend, 101 Kan. 130, 165 Pac. 845; Brady v. Oliver, 125 Tenn. 595, 147 S. W. 1135 [1911].)”
Applying that reasoning to the case at bar, after Liberty had repeatedly said it would not and could not perform Equity was not required to wait eight more days for a possible change of heart.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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Abbott, J.:
This action was brought by the plaintiff-appellee against plaintiff’s own uninsured motorist insurance carrier for injuries he sustained in an automobile accident as a result of the negligence of an uninsured motorist. The jury returned a verdict against the uninsured motorist insurance carrier in the amount of $125,000. The jury verdict was approved by the trial judge and judgment entered against the uninsured motorist insurance carrier for the full amount of the jury verdict.
Appellant, Southwestern Insurance Group, as the uninsured motorist insurance carrier has appealed, and basically raises the question of whether or not the trial judge should have limited the judgment to the amount of uninsured motorist coverage available to plaintiff.
This case arose out of an automobile accident in Wichita on March 1, 1972. The plaintiff, Paul Hammerman, received serious permanent injuries in the accident. The negligent, uninsured driver of the other vehicle involved in the accident had disappeared prior to this lawsuit’s being filed. Plaintiff chose to sue his own uninsured motorist insurance carrier direct, as he is permitted to do in Kansas.
Prior to trial, an issue arose as to whether or not plaintiff was entitled to “stack” or “pyramid” the coverage as a result of a separate premium paid for uninsured motorist coverage. The pretrial order set forth this issue in detail as the only issue of law to be determined by the court. Simply stated, the issue was whether there was $10,000 or $20,000 of coverage available to plaintiff.
The trial judge determined prior to trial that he would not permit stacking. During the trial, the parties were informed by the judge:
“. . . due to the fact that I have made the ruling that there will be no stacking in this case, that irrespective of what verdict the jury brings in, if it is more than $10,000.00,1 will, based on my ruling that there will be no stacking in this case, reduce that jury’s verdict to the sum of $10,000.00. I’ll do it on my own initiative, my own motion due to the fact that I have said there will be no stacking.”
After the trial judge ruled there would be no stacking, defendant offered to pay $10,000 which plaintiff refused and the case proceeded to trial. Prior to trial, defendant withdrew the $10,000 offer. Neither party was permitted to present evidence or argue the amount of insurance available. The jury deliberated less than one hour and delivered a verdict in the full amount of the prayer.
The trial judge commented prior to the verdict that he would not direct a verdict for $10,000, as it would only necessitate a new trial if the Supreme Court should later determine “stacking” was permissible. The trial judge further stated that by permitting a jury verdict the Supreme Court could modify the judgment up to the maximum “stacked” policy limits without having to remand for a new trial. After the jury verdict, the judge reversed his position and ruled the question of “stacking” or “pyramiding” was not before him and set aside his previous order that the policy could not be stacked. He then entered judgment in the full amount of the verdict. The trial judge, on appellant’s motion for a new trial hearing, asked counsel for the plaintiff to stipulate that he did not intend to seek recovery of more than defendant’s policy limits in this case. Counsel for plaintiff so agreed after making it abundantly clear that plaintiff would file a separate action alleging bad faith and other grounds for damages against his uninsured motorist insurance carrier.
Appellant claims error in that the trial judge (1) failed to follow the pretrial order and decide the legal issue of whether plaintiff was entitled to “stack” insurance coverage, (2) failed to reduce the jury’s verdict to $10,000 pursuant to the court’s ruling prior to impanelling the jury that “stacking” would not be allowed, (3) ruled “stacking” was not an issue for decision before the court, (4) entered judgment for $125,000 when the facts of this case would limit recovery to a maximum of $20,000 if stacking is proper, (5) failed to direct a verdict for $10,000 after ruling “stacking” would not be allowed.
Appellee contends deféndant was not prejudiced by entry of judgment against it in the full amount of the verdict because defendant agreed the jury should determine all issues of liability and damage, because plaintiff stipulated he could not collect more than $20,000 in this case, and because plaintiff stated he would file a separate action in an effort to collect the balance. Appellee further contends the trial court’s reversal of its ruling that stacking would not be permitted did not alter the theory on which the case was tried and therefore did not prejudice the defendant.
Kansas allows an injured party seeking recovery for personal injuries under uninsured motorist coverage three options, provided the insured complies with policy provisions consistent with K.S.A. 40-284. First, as in this case, the insured may file an action directly against his uninsured motorist liability carrier; second, the insured may also join the uninsured motorist as an additional party defendant; or third, the insured may choose to sue the uninsured motorist only. (Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606.)
In Winner, supra, the court mentioned that in each of the three options a party could “litigate all of the issues of liability and damages.” This leads appellee to conclude that in all uninsured motorist actions the insured is entitled to a judgment against the insurance carrier in the full amount of the verdict. We cannot agree with appellee.
Uninsured motorist coverage is not issued on, purchased for, or furnished to protect an uninsured motorist. It is a contract benefit for an insured motorist. Uninsured motorist coverage does not, and was never intended to, afford the insured motorist the same amount of potential recovery against the insured’s uninsured motorist insurance carrier as the insured might have against the uninsured tortfeasor personally.
It has been said uninsured motorist insurance is in the nature of a contract of indemnity as opposed to liability insurance. It does not protect the insured against liability but rather it insures him against loss by a limited group of tortfeasors. (7 Blashfield, Automobile Law & Practice, Sec. 274.2.) Uninsured motorist coverage has been described as more closely resembling “limited accident insurance.” (Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173.)
It must be kept in mind that we are dealing with a hybrid case in that the rights and duties as between the injured insured and his uninsured motorist insurance carrier are determined by contract law, and the liability of the uninsured motorist insurance carrier is determined by the legal liability of the uninsured motorist under tort law.
Although Kansas appellate courts have not had the exact question before them as to whether any limitation should be imposed on the size of the judgment to be entered against an uninsured motorist insurance carrier when a verdict is returned fixing the insured’s damages at a sum greater than the total amount of uninsured motorist insurance coverage available to the insured, similar cases have arisen.
An action instituted by an insured against his uninsured motorist insurance carrier for personal injuries sustained as the result of the negligence of an uninsured motorist is clearly an action for damages brought upon a contract of insurance. Kansas has held that where an action for damages was brought on an insurance contract, “the provisions of the contract generally govern the measure of recovery rather than the rules relating to damages in tort cases.” (Venable v. Import Volkswagen, Inc., 214 Kan. 43, 519 P.2d 667.)
In McClellan v. Blasdel, 193 Kan. 410, 393 P.2d 1012, an automobile driver sued a common carrier, its owner, and their insurance carrier. The jury returned a verdict of $58,750 against each of the defendants, and the insurance carrier on a motion for a new trial brought its policy limits of $25,000 to the attention of the trial court for the first time. The trial court entered judgment against the insurance carrier for the full amount of the verdict of $58,750. Notwithstanding the fact the amount of liability insurance available was not raised as an issue in the case, nor was the policy produced until defendant filed a motion for a new trial, the Supreme Court modified the judgment only as to the insurance carrier by reducing the judgment against the insurance carrier to $25,000.
In 45 C.J.S., Insurance § 980.1 (1976 Supp.), it is stated:
“Generally the extent of liability of an insurance company on a policy providing uninsured motorist coverage depends on the provisions of the policy and statutory requirements for such coverage. Ordinarily such liability extends to the full amount of uncompensated damages suffered by insured through the fault of the uninsured motorist up to the limit specified in the policy, or in a statute requiring coverage of at least a certain amount . . .” (Emphasis supplied.)
The subject was also covered in 2 Long, The Law of Liability Insurance, Secs. 24.15 and 24.17, where it is stated:
“The policy provision determines the right of the parties provided the policy grants benefits equal to or greater than those stated in the applicable statute.”
“. . . [Ajnyone who suffers damages may recover up to the limit of liability for one person injured.”
(See, also, Widiss, A Guide to Uninsured Motorist Coverage, Sec. 2.51; and Pretzel, Uninsured Motorists, Sec. 7.1.)
In a direct action by an injured party against his own uninsured motorist carrier in which the injured party seeks damages for personal injuries sustained in an accident caused by a negligent uninsured motorist, the policy provisions providing uninsured motorist coverage determine the amount of the judgment that can be entered against the insurance carrier if the policy limits equal or exceed the coverage required under the applicable statute.
The trial judge erred in entering judgment against the uninsured motorist insurance carrier in excess of the amount of uninsured motorist coverage available to the plaintiff from the appellant, Southwestern Insurance Group.
What was the effect of the trial judge’s ruling that stacking would not be permitted and his subsequent setting aside of that ruling?
Courts have long strived to avoid multiple litigation when it is possible to do so in a fair and workable manner. The trial judge was obviously attempting to do so in this case when he submitted it to the jury to determine the full amount of damages in an effort to avoid a retrial in the event the trial judge was in error on his “stacking” ruling.
The trial court was in error when it ruled stacking was not an issue in the case. Stacking was an issue from the very beginning. Plaintiff prayed for judgment “in the amount of $125,000.00 [or] the coverage provided by the uninsured motorist provision of the policy and for his costs . . .”
A pretrial order, approved by the trial judge, set forth the single issue of law to be determined by the court, as follows:
“Whether or not plaintiff is entitled to ‘stack’ or ‘pyramid’ the coverage provided in the insurance contract so as to recover double the amount of uninsured motorist coverage extended by the terms of the policy; that is, whether plaintiff is entitled to recover an additional $10,000 for uninsured motorist coverage extended to a second automobile owned by plaintiff, making the total liability limits $20,000.”
The trial judge should have determined the stacking issue prior to trial. In fact, the trial judge did determine the stacking issue as a matter of law prior to trial. However, after the jury verdict the trial judge set his conclusion of law aside leaving the stacking issue unresolved. None of the provisions of the policy in question are included in the record before us, but from statements of counsel it would appear the trial judge may well have been incorrect in his ruling, which he subsequently set aside, that stacking did not apply. After the trial of this case, the requirements that must be met to “stack” coverages were clearly set forth in Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 549 P.2d 1354; and Welch v. Hartford Casualty Ins. Co., 221 Kan. 344, 559 P.2d 362.
Although the trial judge should have ruled on the question of stacking as an issue of law prior to trial, we are unable to see where either litigant was prejudiced by the manner in which the trial judge handled the ruling. Only prejudicial error requires reversal, and when a ruling on a question of law or failure to rule on a question of law did not prejudice either litigant, a new trial will not be granted as to questions of fact decided by a jury that are not affected by the trial judge’s erroneous ruling or failure to rule. (Winner, supra; Libel v. Corcoran, 203 Kan. 181, 452 P.2d 832.)
The judgment is set aside, and the case is remanded to the trial court with directions to ascertain whether the uninsured motorist coverage can be stacked and to enter judgment against the uninsured motorist insurance carrier and in favor of the plaintiff in the total amount of uninsured motorist coverage available to the plaintiff through the appellant, Southwestern Insurance Group.
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Parks, J.:
This appeal involves an alleged nuisance maintained by the city of Wichita, Kansas. A jury verdict was rendered in favor of the city of Wichita. The plaintiff appeals.
In the spring of 1966, the plaintiff purchased a home in the Glenn Village area of the city of Wichita, Kansas. During the time Patrick McHugh owned the property, he had problems with backup of fluids into the home through the basement stool and the basement bathtub. On April 23, 1971, Mr. McHugh and others filed a lawsuit against the city based upon the theory of nuisance. The jury returned a verdict in favor of Mr. McHugh in the amount of $539.50. The defendant, city of Wichita, Kansas, did not appeal that decision.
On January 10,1974, plaintiff filed a second lawsuit against the city of Wichita on the legal theory of nuisance based on the overflow of his bathtub and stool in January and March of 1973. On the first two occasions in January, 1973, plaintiff’s residence experienced the overflow problem even though there was no rain. Plaintiff testified this was unusual in that previous sewer backups had always been accompanied by heavy rainstorms. On March 10, 1973, there was rainfall, and the stool and bathtub again filled with liquid.
On January 25, 1973, Irwin L. Penner, an employee of the city of Wichita, Kansas, went to plaintiff’s residence. He discussed the problem with plaintiff, examined the manhole in the yard to the rear of plaintiff’s residence and examined the basement. Mr. Penner found that the manhole had to be elevated because it was 16 inches below fill level. The city of Wichita later raised this manhole to ground level. In examining the interior of the manhole and the city’s sewer, Mr. Penner found that the water was flowing normally into the city’s sewer line and that there was no grease ring or other evidence to indicate any backup problems in the city’s sewer line. Mr. Penner then went into appellant’s basement and found the carpet wet but did not smell any odor of sewage. Mr. Penner stated that in his opinion the overtaxing problems of the area lift station belonging to the city of Wichita, and located near Mr. McHugh’s home, had no relation to plaintiff’s problem.
Plaintiff testified that he had put a shut-off valve in his sewer at the recommendation of the city of Wichita, but that the water system could not be used when the shut-off valve was closed. Plaintiff stated that he did not know what material his sewer line was made of, nor had he ever replaced it or asked anyone to inspect it.
Mr. George Wilton, a civil engineer employed by the city of Wichita as superintendent of Public Works and Maintenance, testified that he had contacts with residents of the Glenn Village area on numerous occasions from 1962 through 1969. He had occasion to confer with the plaintiff about sewage backup problems and recommended to plaintiff the installation of the screw type shut-off valve as he felt it was the best one available at that time. He further testified that the city had smoke bombed the Glenn Village sewer mains to ascertain the reasons for the infil tration of water into the sewer mains; the city hired a consulting firm; television grouting units were purchased at a cost of $20,000 to $30,000 each to repair leaking joints; and, in 1969, a sewage interception line was completed in the Glenn Village area and this relieved much of the city’s backup problems. He claims that the sewer main has never been full since.
In April of 1974, the city televised the city-owned sewer main behind Mr. McHugh’s residence. They found a little bit of tree root in the connection from plaintiff’s house and a steady stream of water was flowing out of the plaintiff’s line. The water table at the plaintiff’s residence is above the plaintiff’s building sewer line and in Mr. Wilton’s opinion, the steady stream of water indicated a break in the plaintiff’s own building line.
All the evidence and witnesses in this case were presented by the plaintiff, except for the testimony of Mr. Bill Hartong, a realtor, who appraised the property and saw no permanent damage to the residence had been caused by the sewage backup problems.
The motion of the defendant for dismissal of the punitive damages count against the city of Wichita, Kansas, was sustained at the close of plaintiff’s case. The plaintiff’s motion that the prior judgment against the city of Wichita, Kansas, is res judicata as to the question of creation of a nuisance by the defendant, was overruled by the court at the close of all the evidence. Following a deliberation of approximately one hour and twenty-five minutes, the jury returned a verdict in favor of the city of Wichita, Kansas.
Plaintiff contends that the trial court erred in ruling that the judgment in the 1971 action was not res judicata as to the creation of a nuisance by the defendant in the present action.
Plaintiff cites in support of his contention a Washington state case where the landowners complained of a continuing interference with the use and enjoyment of their property by the acts of a cement company in emitting cement dust from their plant. In discussing the doctrines of res judicata and collateral estoppel as outlined in Riblet v. Ideal Cement Co., 54 Wash. 2d 779, 345 P. 2d 173 (1959), the plaintiff has set forth in his brief the following statements:
“The rule of estoppel by judgment, sometimes called collateral estoppel, controls here. ludgments in prior actions between the Riblets and appellant’s privy determined the rights and liabilities of the parties and the law applicable thereto. In the absence of a major factual change, the prior judgment binds these parties. Bodeneck v. Caters Motor Freight System, Inc., 198 Wash. 21, 86 P. 2d 766; Hamm v. City of Seattle, 140 Wash. 427, 249 P. 778.
“In the case of a continuing nuisance, the Bodeneck case, supra, controls. We there said:
“ ‘It is well settled that, under the doctrines of res judicata and estoppel by judgment, neither the same facts nor identical facts may be re-litigated. In cases involving continued nuisances, it is the general rule that a plaintiff, having once recovered, may recover for subsequent damage, if his complaint is supported by evidence, and may rely upon the prior judgment in his favor as determining the law of the case. . . .’ ” (54 Wash. 2d at 782.)
We think the following are key words in the above statements: “In the absence of a major factual change,” and “neither the same facts nor identical facts may be re-litigated.”
In Klassen v. Creamery Co., 160 Kan. 697, 165 P. 2d 601, Syl. 1, it is stated:
“In an action for damages against a creamery company for injury to livestock caused by pollution of the underground water supply of a farmer, defendant argued that the cause of action pleaded was res judlcata.on account of a judgment in a former action between the same plaintiff and the city where the creamery plant was located — held, the cause of action stated was for injury to different livestock and during a later period of time —hence one was not res judicata to the other.”
The evidence in the present case indicates that the dates of the alleged nuisance in the instant case and the prior judgment are separated by approximately four years; the damages are for permanent injury and injury to specific personal property, and not personal expenses as was alleged in the first case against the city of Wichita; there were several changes made by the city of Wichita since the 1971 action; there was undisputed evidence that there was a break in plaintiff’s own building sewer line and that at least two backflows were not related to any rainstorm, overflow of the municipal sewer mains, or storm drains.
The trial court was correct in finding that there was a substantial and material change in the facts and circumstances surrounding this case and the prior judgment, and that the doctrines of res judicata and collateral estoppel were not applicable.
Plaintiff argues that the trial court erred in dismissing plaintiff’s claim for punitive damages against the defendant, the city of Wichita.
The majority rule in the United States is that absent legislative pronouncement to the contrary, municipalities are not liable for punitive damages. (Punitive Damages from Municipality, 19 A.L.R. 2d 903.) The underlying justification and purpose of punitive damages, which is punishment of a wrongdoer, is inapplicable to municipal corporations. (Chappell v. City of Springfield, 423 S.W. 2d 810 [Mo. 1968].) Previous decisions, although not directly on point, indicate that Kansas would follow the view that punitive damages may not be awarded against a municipality. (City of Parsons v. Lindsay, 26 Kan. 426 [1881]; Adams v. City of Salina, 58 Kan. 246, 48 Pac. 918.)
In the absence of any statute authorizing the award of punitive damages against a municipality, the trial court correctly sustained the defendant’s motion to strike or dismiss the claim for punitive damages.
In this connection, we hold that it was proper to submit to the jury the factual issue as to the cause of the sewer backflow into plaintiff’s basement. From the record in this case, it is clear that plaintiff did not sustain the burden of showing that the city was at fault.
Plaintiff complains that he was precluded from presenting newly discovered evidence at his hearing on a motion for new trial. At the outset, we would point out that the affidavit, which was signed by Mr. McHugh, was not in compliance with K.S.A. 60-259 (g). This statute requires the affidavit to be signed by the witness himself. (Sims v. Schrepel, 208 Kan. 527, 531, 492 P. 2d 1312; Laughlin Motors v. Universal C.I.T. Credit Corp., 173 Kan. 600, 608, 251 P. 2d 857.)
Furthermore, there was no showing that the proffered evidence was relevant to the issue of whether a nuisance existed or that the evidence could not have been discovered with reasonable'diligence in time to be used at the trial as required by K.S.A. 60-259 (a), Fifth. In State v. Leigh, 166 Kan. 104, 199 P. 2d 504, the court said:
“The granting or denial of a motion for new trial on the ground of newly discovered evidence rests largely in the sound discretion of the trial court. It must first be shown to that court’s satisfaction that such evidence could not with reasonable diligence have been produced at the trial. . . (p. 112.)
Under the facts and circumstances of this case, we find no abuse of discretion on the part of the trial judge. Accordingly, the ruling to deny a new trial will not be disturbed.
Other points raised by plaintiff concern other motions which were overruled by the trial court. We have carefully examined the contentions presented and find them to be without merit.
The judgment is affirmed. | [
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Swinehart, J.:
This is a class action brought on behalf of approximately 1,440 oil and gas royalty owners against the producer, Ashland Oil, Inc., seeking recovery of interest on certain “suspense” monies. The trial court certified the suit as a class action and allowed recovery of interest by each member at the rate of 6%. The trial court also allowed Ashland Oil, Inc. (defendant) recoupment of alleged royalty overpayments to some class members.
Except for the parties involved, the plaintiff’s credentials as a class representative, the recoupment issue, and other minor differences, this suit is identical in legal issues and factual situations to those presented in Gray v. Amoco Production Co., 1 Kan.App.2d 338, 564 P.2d 579 (petition for review granted July 12, 1977); Coffey v. Atlantic Richfield Co., unpub. opinion, No. 48,386, (May 20, 1977) (petition for review granted July 12, 1977); and Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292.
The issues raised by this defendant which were decided in Gray, Coffey and Shutts have to do with (1) the allowance of interest on the “suspense” monies, (2) the validity of the defense of accord and satisfaction, and (3) the commonality requirement of class actions. Summarized, Gray, Coffey and Shutts held that interest was properly granted under principles of equity; accord and satisfaction was not a legitimate defense because there had not been full disclosure, and therefore no meeting of the minds; and the class was properly certified because questions of law or fact existed which were common to the class (K.S.A. 60-223[a] [2]). Those results control here, and we will not attempt to add to Gray, Coffey and Shutts on the issues therein decided.
This action, however, presents several additional issues which were not decided by Gray, Coffey, and Shutts. The first such issue has to do with another aspect of the class action portion of this suit. In essence, defendant urges the class was improperly certified because the claims or defenses of the representative plaintiff were not typical of the claims or defenses of the class, and because the named plaintiff was not a proper representative of the class.
To fully understand defendant’s argument, additional facts must be filled in. Loyd Helmley, the named plaintiff and desig nated class representative, is an Arizona resident. His father, a resident of Barber county, died March 22,1973, and at the time of his death, he was a royalty owner. As a devisee and legatee, Loyd succeeded to and was assigned a one-half interest in his father’s mineral interests. The order of final settlement of his father’s estate was entered August 2, 1974. Loyd was not a royalty owner at the time defendant retained the “suspense” monies for which interest is here claimed. Loyd’s only interest in this case arises out of his succession to his father’s royalty interests.
Defendant’s payment of “suspense” royalties attributable to the land owned by Loyd’s father was made by check dated October 26, 1973, which was endorsed and negotiated by the executor of the father’s estate — not by Loyd.
Further, neither Loyd nor his father was one of those persons to whom defendant made overpayment of royalties in the 1954 to 1958 period. There also is no evidence that Loyd’s father ever received a letter from defendant advising him that by reason of Federal Power Commission proceedings, “suspense” royalties were being held. Many class members received such letters.
Because Loyd Helmley’s position so differs from the average class member, defendant insists that he cannot fairly and adequately protect the interests of the class and that his claims or defenses differ from those claims or defenses of the class.
The controlling Kansas statute, K.S.A. 60-223, provides in pertinent part:
“. . . (a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if . . . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”
Our discussion of K.S.A. 60-223 will, for the most part, be based upon federal cases interpreting the federal rule on class actions, Federal Rule of Civil Procedure No. 23.
The elements to be considered in determining the “typicality” requirement of 60-223(a)(3) are often very similar in nature to those elements considered when determining representative status pursuant to 60-223(a)(4). (7 Wright & Miller, Federal Practice and Procedure, Civil § 1764, pp. 611-612.) In this case, we feel the two requirements of “(a)(3)” and “(a)(4)” overlap, and will treat them accordingly. We are more interested in locating the necessary elements for consideration than we are in labeling those elements as being either “(a)(3)” or “(a)(4).”
What are the elements to be examined when determining whether a named plaintiff can properly represent the class? We first note that this question by its nature is often a difficult one to resolve. Accordingly, a trial judge has to be afforded substantial discretion in the decision-making process.
Perhaps the most cogent and precise statement of what satisfies the representation requirement was provided by the Second Circuit in Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968) as follows:
“What are the ingredients that enable one to be termed ‘an adequate representative of the class?’ To be sure, an essential concomitant of adequate representation is that the party’s attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that plaintiff has interests antagonistic to those of the remainder of the class. . . . Courts, on occasion, have also required that the interest of the representative party be coextensive with the interest of the entire class, but this amounts to little more than an alternative way of stating that the plaintiff’s claim must be typical of those of the entire class. . . . However, we believe that reliance on quantitative elements to determine adequacy of representation, as was done by the District Court, is unwarranted. Language to the effect that a small number of claimants cannot adequately represent an entire class has frequently been cited, . . . but we fail to understand the utility of this approach. If class suits could only be maintained in instances where all or a majority of the class appeared, the usefulness of the procedure would be severely curtailed. As has previously been stated, one of the primary functions of the class suit is to provide ‘a device for vindicating claims which, taken individually, are too small to justify legal action but which are of significant size if taken as a group.’ . . .” (p. 562-563.)
From this, various elements requiring consideration have been gleaned. Summarized, those elements are: (1) adequate, competent counsel; (2) no collusive suit; (3) no conflicting or antagonistic interests between the representative and class members; (4) a coextensiveness of the representative’s interests with those of the class members; (5) quality of the named representative, not quantity; and (6) the extent of the named representative’s interest in the suit’s outcome. (See, generally, 7 Wright & Miller, Federal Practice and Procedure, Civil §§ 1765-1769, pp. 615-657.)
We feel the elements requiring consideration here are (3) and (4) — i.e., the “antagonistic or conflicting interests” and “coextensiveness of interests” requirements.
Defendant seems to suggest that material factual differences exist between the named plaintiff and other class members, thus creating inherently antagonistic and conflicting positions between them. We recognize that some differences exist between Loyd and other members of the class. However, more than that must be shown. Defendant must show that a conflict exists which goes to the very subject matter of the litigation before Loyd’s representative status can be defeated. (Berman v. Narragansett Racing Association, 414 F.2d 311, 317 [1st Cir. 1969]; Davy v. Sullivan, 354 F.Supp. 1320, 1326 [M.D.Ala. 1973].)
Does a conflict exist here which goes to the subject matter of this litigation? We think not. Plaintiff’s claim for interest on the “suspense” royalties is the heart of this action. That is what Loyd seeks, and that is what the class members seek. Whether or not Loyd was a royalty owner when the monies were retained by defendant is irrelevant. He now is a royalty owner seeking interest and representing a class of royalty owners seeking interest. The fact that defendant does not have a recoupment claim against Loyd is a distinction between Loyd and the class members which we feel is insignificant. That distinction does not relate to the general subject matter of this suit, i.e., the claim for interest, and therefore should not defeat Loyd’s representative status.
The other element requiring consideration is that of coextensiveness of interests. As the language from Eisen, supra, indicates, this element has often been viewed as part of the typicality requirement of 60-223(a)(3). This element has also been viewed as the antithesis of the requirement that the interests of the representative and class members not be antagonistic. Simply stated, if the representative’s interests are coextensive with those of the class, they will not be considered as antagonistic.
The coextensiveness requirement does not mandate that the positions of the representative and the class be identical; rather, only that the representative and class members “share common objectives and legal or factual positions.” (7 Wright & Miller, Federal Practice and Procedure, Civil § 1769, p. 655.) The “coextensiveness of interests” element surfaced in the recent case of Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270 (10th Cir. 1977), where the 10th Circuit adopted a liberal approach. There, the named representative’s personal claim for discrimination had failed. Nonetheless, the court allowed him to represent the class of discriminatees because he had a “present, past and future interest in the outcome of the case.” Horn sought injunctive relief halting discrimination, as did the class members. Thus, there was a common objective shared by both the representative and the class. While Horn sought only injunctive relief (here the class seeks monetary relief), we feel the case evidences a philosophy that the coextensiveness of interests requirement is not to be strictly construed.
The primary interests and objectives of this class are to recover interest on the “suspense” monies. Both Loyd and the class members share that interest. The difficulty arises because Loyd does not have a recoupment claim pending against him, as some of the class members do. This fact alone, we feel, does not destroy Loyd’s representative status. We regard this distinction as being insignificant because it does not interfere with the common interest or objective of recovering interest on the “suspense” monies.
The law does not require that a named plaintiff be the perfect class member, or even the best available.
It is our conclusion that the factual position of Loyd Helmley is not sufficiently different from that of the class members so as to warrant the disqualification of Loyd as a proper class representative. The trial court acted properly in naming Loyd the class representative.
The final point on this appeal requiring resolution has to do with defendant’s recoupment claims. Again, a brief factual background is necessary for a full understanding of the problem presented.
During the period 1954 to 1958, many royalty owners (now members of this class) were overpaid because of a Kansas Corporation Commission order requiring royalty payments to be made which were higher than the original royalty contract payments. The K.C.C. order was denounced by the United States Supreme Court in Cities Service v. State Comm’n, 355 U.S. 391, 2 L.Ed.2d 355, 78 S.Ct. 381, decided January 20, 1958. Shortly after Cities Service was decided, the overpaid royalty owners received letters from defendant’s predecessor advising them that “[w]hile we are not at this time requesting a refund of any overpayments which might have been made to you since January 1, 1954, we reserve the right to do so at such time as we deem such action to be warranted.” Refund was never sought until October 16, 1974, when defendant filed its answer herein stating in part that “some, but not all, alleged members of the alleged class, should have any recovery reduced or eliminated by reason of overpayment of royalties for the period 1954 to 1958.” The trial court allowed defendant’s recoupment claims, and the class has cross-appealed that finding.
There is no question but that the defendant’s claims for over-payments are barred by the statute of limitations. However, this does not prevent defendant from using the claims as a recoupment. A recent Kansas Supreme Court decision, addressing this issue, found the oil company entitled to recoupment. See Waechter v. Amoco Production Co., 217 Kan. 489, 537 P.2d 228.
Waechter allowed the oil company to recover overpayments solely on the common law recoupment theory. To so recover, the recoupment claim “must grow out of the identical transaction that furnishes the plaintiff’s cause of action.” (20 Am.Jur.2d, Counterclaim, Recoupment, and Setoff § 11, p. 235.) The “identical transaction” requirement was satisfied in Waechter, and is satisfied here, because all claims stem from the original royalty lease contracts. (Waechter v. Amoco Production Co., supra, p. 520-521.) In other words, plaintiff’s claims for interest on “suspense” monies originate from the royalty agreements, and defendant’s recoupment claims originate from the same royalty agreements; therefore, the “identical transaction” requirement is satisfied.
We therefore conclude that the trial court was correct in allowing defendant’s recoupment claims because the “identical transaction” requirement was satisfied.
Loyd Helmley has cross-appealed, claiming that the trial court’s allowance qf 6% interest was not sufficient. This question was just decided favorably for cross-appellant. See Shutts, Executor v. Phillips Petroleum Co., supra. Based on the holding in Shutts, we find here that cross-appellant and the members of the class he represents should have judgment against the defendant as of January 6, 1976, for such sum as represents 7% per annum simple interest on the “suspense” royalties from the date of their receipt by defendant until October 1, 1970 (the effective date of Federal Power Commission opinion No. 586), plus 8% per annum simple interest on the “suspense” royalties from October 1,1970, to the date of payout in 1973, plus 8% per annum simple interest on the unpaid principal sum (accrued interest on the date of payout) from the date of payout in 1973 to January 6,1976. The class is further entitled to interest upon such judgment sum from January 6, 1976, until paid, pursuant to K.S.A. 16-204.
Accordingly, the judgment of the lower court is affirmed in part and modified as to the rate of interest allowed. The case is remanded for further proceedings consistent with this opinion. | [
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Spencer, J.:
Initially commenced as a class action and a derivative action pursuant to K.S.A. 60-223 et seq., an order of dismissal was entered as to certain original defendants and this case devolved into a suit wherein plaintiffs, as minority shareholders, seek to recover a proportionate share of a premium received by defendants in the sale of capital stock representing the controlling interest in the Boulevard State Bank, Wichita, Kansas. At the trial level, judgment was entered for the defendants and plaintiffs have appealed.
The Boulevard State Bank was organized in 1953. Members of the Ritchie family, plaintiffs herein, and of the Browne and Shawver families, defendants herein, were among the original shareholders. The defendant McGrath was employed April 11, 1968, as president of the bank and chairman of its board of directors and served as such at all times material herein. The defendant Jerry E. Shawver is a director, and the defendant Virgil S. Browne, Jr., who was one of the original incorporators, had served as a director of the bank until 1961, after which time he served only in an advisory capacity to the board. Plaintiff E. D. Ritchie had served on the board of directors until January, 1974, at which time he retired from the board.
At the time of organization, no single individual owned a majority of the bank stock issued and outstanding, but in 1968 the Browne-Shawver interests, including stock held by Stelbar Oil Corporation, Inc. controlled by the Shawver family and that owned by McGrath, collectively held approximately thirty-eight percent of the outstanding shares. Late in 1969 and in 1970, Virgil S. Browne, Jr. and Jerry E. Shawver, who had other business interests together, discussed the possibility of buying control of the bank as each already “had so much stock . . . and there was such a small market for it” at that time. They decided to include the defendant McGrath in their plan because they believed that McGrath would have more “staying power” as the manager of the bank if he was financially tied to the bank by greater stock ownership. McGrath was contacted and it was determined that the group, including all Browne and Shawver family shareholders and McGrath, needed an additional 6,500 shares to obtain a majority of the issued stock. It was then orally agreed that McGrath would purchase enough shares to bring his total holdings to 3,750 shares and that the Browne-Shawver interests would purchase the remainder, after which they would enter into an agreement to pool their interests. There were then 75,000 shares of capital stock issued and outstanding. McGrath acquired his additional stock during the year 1970, his last acquisition of 2,403 shares being on October 14, 1970.
On October 14, 1970, the shares necessary to constitute a majority had been acquired and on that date the defendants, then collectively possessed of 38,142 shares of the stock, executed an instrument in writing entitled “Pooling Agreement” whereby it was agreed that they would thereafter vote their respective stock-holdings in the bank as a unit at any and all meetings of the stockholders for whatever purpose. This agreement was to continue for a period of ten years unless terminated or extended by mutual consent of the parties. It contained an option to purchase the stock of any party to the agreement wishing to sell, and other ordinary provisions. It is to be noted that neither the original oral agreement to purchase additional shares of stock for the purpose of acquiring a controlling interest nor the subsequent written pooling agreement was at any time prior to the sale disclosed to other shareholders or to the other directors. Notwithstanding the pooling agreement, each of the parties to that instrument continued thereafter to vote his stock individually and there is nothing in the record to indicate that any other provision of their written agreement was exercised in any manner.
McGrath testified that perhaps two or three times a year he received inquiries from persons indicating an interest in buying control of the bank, which he would sometimes discuss with Shawver and Browne; but that in 1972, he had been approached by a “local group” interested in buying the controlling interest. This was discussed with Browne and Shawver and, as one result, a price of $80 per share was placed on their stock. That deal did not materialize.
By 1973 the defendants then collectively in control of a majority of the stock of the bank were seriously interested in selling. With McGrath acting for himself and as intermediary for his co-defendants who were parties to the pooling agreement, negotiations were undertaken in response to an earlier inquiry to sell the controlling interest in the bank. This culminated in the execution of a contract under date of June 19, 1974, for the sale of 38,042 shares of stock by the defendants and certain others to James H. Hentzen and Gaylon M. Lawrence at the price of $80 per share. The contract provided for a down payment of $15,000 to be retained by the sellers in full payment of liquidated damages in the event the buyers did not complete the purchase. It also contained the usual representations and warranties by the sellers and provided to the buyers access to the books and records of the bank during normal business hours, with the provision that the buyers pay any expenses incurred by them for services of counsel, accountants or otherwise in connection with the agreement, and that sellers pay any and all such expenses incurred by them in the same connection. As a part of this transaction, the sellers re quested and the buyers agreed that the purchase include 2,956 shares owned collectively by James T. Klepper, a bank director who had been encouraged by Virgil S. Browne, Jr. to buy stock, Bertrand M. Lester, Jr., a longtime Shawver family employee who had been assured that if the Shawvers sold their stock his would be included, the vice president of the bank and his wife, and the Browne and Shawver children. This was accomplished when it was agreed that McGrath would reduce the number of shares to be sold by him in the original agreement by the 1,450 shares owned by James T. Klepper. The sale was finalized on November 27, 1974.
The other bank directors were not informed of the sale until the day before the transaction was closed, and the only one of the plaintiffs who received such notice was E. D. Ritchie, who was orally informed of the sale by Jerry E. Shawver. Following this transaction, each of the defendants paid McGrath the sum of $1 per share of their stock sold for his services in connection with the sale.
Prior to closing and pursuant to the terms of the purchase agreement, Hentzen and Lawrence were given access to the bank’s records for an investigation of its financial condition. An accountant’s bill of $17,500 was incurred in this activity. Following the closing, Hentzen suggested to McGrath that since the audit was generally helpful to the bank, that expense might be paid by the bank. McGrath agreed and the bank made payment of that bill. After this suit was filed, Hentzen and Lawrence reimbursed the bank for that expense.
At the January, 1975, shareholders’ meeting, Hentzen and Lawrence were added to the board of directors. In response to questions about the sale, McGrath refused to reveal the price paid for the controlling block shares or the amount of the gratuity or commission paid to him in connection with the sale of that stock. McGrath was retained as president of the bank at an increase in salary.
Prior to closing under the sale and purchase contract with the defendants, Hentzen and Lawrence formed a one-bank holding company for the purpose of taking advantage of certain provisions of the Internal Revenue Code. Following their purchase of the controlling stock interests, these parties sought to acquire the remaining shares and the result was that plaintiffs sold all of their stock in the bank to Hentzen and Lawrence for the sum of $50.20 per share, which amount then represented the book value of the bank stock.
This action was commenced February 26,1975. In their second amended petition, which was filed September 29, 1975, plaintiffs joined Hentzen, Lawrence, their holding company, and the Boulevard State Bank as defendants, but the action was dismissed as to those defendants on motion of the plaintiff under date of September 30, 1975. Plaintiffs contend that they are entitled to participate in the approximately $30 per share premium paid to the defendants. This case was tried to the court and on December 13, 1975, the court made rather extensive findings of fact and conclusions of law, which are in part as follows:
“The Court finds that the bank has prospered over that time under the president and chairman of the board, Mr. McGrath ....
“There is no competent evidence that the Defendants, any of the Defendants acquired any of this stock subject to the agreement and, specifically the four purchases of stock, other than through fair prices for the stock. The stock was purchased at arm’s length transactions from the four individuals or four transactions and the Court finds from the evidence that there was no misrepresentation or interference or anyone attempting to mislead these people in selling the stock. There is no wrongful ¿onduct.
“The Defendants made reasonable inquiry as to the buyers discovering that they owned two other banks in Kansas and the banks had prospered after they had bought them and that there is no evidence to what extent they must go but a reasonable inquiry which was done and that the people, the buyers were responsible persons of good character and reliability.
“The Court further finds that there is no fraud or misuse of any type or looting or siphoning off for personal gain to the corporation and the stockholders and any wrongful appropriation of corporate assets. To condemn the kind of transaction here would strongly tend to discourage stock investment and be a menace to efficient operations of any corporate business.
“The Court further finds that the Defendants were entitled to pay the Defendant McGrath their gratuity for assisting them in the sale of the stock. No breach of any duty owed either to Plaintiffs, other shareholders of the bank, or to the bank itself, resulted from this voluntary payment to the Defendant McGrath when it was conceived after McGrath had successfully negotiated the stock sale.”
Plaintiffs argue that the trial court erred in failing to find that as officers and directors of the corporation defendants violated their fiduciary obligation to all stockholders. The acts which they claim constitute a breach of fiduciary duty are (1) the acquisition of control, the pooling agreement effecting such control, and failure to disclose each; and (2) failure to disclose the offers to purchase a controlling block of stock. Plaintiffs’ position appears to be that the premium defendants received in the sale of their controlling stock was a result of these alleged breaches of fiduciary duty and that plaintiffs, as minority shareholders, should share proportionately in that premium. As an alternative, plaintiffs argue that sale of controlling stock at a premium was a sale of a corporate asset belonging to all shareholders.
“Corporate directors and officers are under a very strict fiduciary duty in their relations both to the corporation and to its shareholders.” (Sampson v. Hunt, 222 Kan. 268, Syl. 1, 564 P.2d 489.) See also Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P.2d 428. Accordingly, a majority shareholder who is a director or officer may be held accountable in the sale of majority stock if the circumstances surrounding the proposed transfer would alert suspicion in a prudent person that the purchasers are an irresponsible group who will mismanage and loot the corporate assets. McDaniel v. Painter, 418 F.2d 545,547 (10th Cir. 1969); Harman v. Willbern, 520 F.2d 1333, 1334 (10th Cir. 1975). Breaches of duty have also been found in sales involving “fraud, misuse of confidential information . . . siphoning off for personal gain of a business advantage rightfully belonging to the corporation and shareholders in common, or wrongfully appropriating corporate assets.” McDaniel v. Painter, supra, at 548. In addition, where an officer or director negotiates a sale of stock where incumbent directors and officers are to resign so to effect a sale of the entire corporation, acts of the directors or officers compelling minority shareholders to sell their shares on terms which personally benefit the directors or officers, may be breaches of fiduciary duty. See Delano v. Kitch, 542 F.2d 550 (10th Cir. 1976).
In support of their argument that the defendants owed a duty to disclose the acquisition of control, the pooling agreement, and the offers of purchase, plaintiffs point to Hotchkiss v. Fischer, 136 Kan. 530, 16 P.2d 531; Stewart v. Harris, 69 Kan. 498, 77 Pac. 277; and Blazer v. Black, 196 F.2d 139 (10th Cir. 1952). However, as plaintiffs recognize, these cases deal with purchases or sales of. stock by an officer or director from or to a shareholder. Kansas has consistently recognized the fiduciary duty of the corporate officer or director to disclose pertinent information in such a situation. See Sampson v. Hunt, supra. As explained in Blazer v. Black, supra:
. . [T]here are cogent reasons for applying that rule • here the officers and directors of the corporation have peculiar knowledge of. the condition and affairs of the Company — knowledge and information which is not readily available or imparted to the stockholders.” (196 F.2d at 146.)
In this instance, none of the plaintiffs sold their stock to the defendants and those shareholders who did so during the period the defendants were seeking control have not joined in this action. Plaintiffs expressly state that no complaint is made regarding those sales and purchases “except insofar as such secret purchases fit into the overall wrongful conduct of the defendants.” The trial court specifically found that such stock was purchased at “arm’s length transactions,” and there was “no misrepresentation or interference or anyone attempting to mislead these people in selling the stock. There is no wrongful conduct.”
As to the claimed breach of fiduciary duty in the present case, it appears that no such breach can be found in the defendants’ acquisition of control. As just noted, the purchases of stock with which defendants gained control are not questioned, and it has further been said that “[t]here is no rule of law which prevents one or more persons from purchasing a majority of the shares of a corporation for the purpose of acquiring control thereof. . . .” 18 C.J.S. Corporations, § 496, p. 1174. Plaintiffs cite no authority and we find none that such individual purchases of stock, even though motivated by a desire to gain control, are in any way invalid if accomplished in secrecy.
The defendants as a group gained control by their individual purchases of stock and by pooling their shares into a voting block. The provisions of the pooling agreement are not in issue and there is nothing in the record showing the agreement to be an invalid voting trust. The legality of the agreement must be conceded. See K.S.A. 17-6508(c) and the Kansas comment thereto; Wallace v. Southwestern Sanitarium Co., 160 Kan. 331, 161 P.2d 129; Hecker, “Close Corporations and the Kansas General Corporation Code of 1972,” 22 Kan. L. Rev. 489 at 490-499; Annotation, 45 A.L.R.2d 799. We hold that defendants violated no fiduciary duty by acquiring control or entering into a pooling agreement or in failing to disclose such facts to plaintiffs.
As to failure to disclose offers to purchase a majority of the stock, it must be kept in mind that since the defendants had already validly obtained a majority of the stock, any such offer must necessarily have been directed to them by virtue of such ownership. This is so even though the purchaser was willing to accept any combination of sellers to meet his majority offer. The pooling agreement, by containing a purchase-option provision, had preempted any offer to buy a majority of the stock.
In Haberman v. Murchison, 331 F. Supp. 180, 188 (S.D.N.Y. 1971), aff’d 468 F.2d 1305 (2d Cir. 1972), it was said in the context of the federal securities laws:
“. . . The Court rejects the theory, not accepted by the Courts, that knowledge of an offer to buy a dominate shareholder’s stock is ‘inside information’ which must be shared with all other shareholders. . . .”
McDaniel v. Painter, supra, involved a claim of breach of fiduciary duty upon the sale of their shares by two brothers who held majority stock interest in a Chanute, Kansas, bank. The claims of breach were failure to disclose the offer of purchase and the sale at a price not available to minority shareholders. Judge Hill stated:
“. . . The universally accepted rule was stated by this court in Roby v. Dunnett, 88 F.2d 68, 69 (10th Cir. 1937): ‘ ° * * [Ejvery stockholder, including a majority holder, is at liberty to dispose of his shares at any time and for any price to which he may agree without being liable to other stockholders * ” ° as long as he does not dominate, interfere with, or mislead other stockholders in exercising the same rights.’ . . .” (418 F.2d at 547.)
“The fact that controlling stock sells for more than book value, as it did here, is not evidence of fraud since it is generally recognized that majority stock is more valuable than minority stock. Neither is there merit in the argument that appellees, as dominant shareholders, must refrain from receiving a premium which reflects the control potential of the stock. . . .” (418 F.2d at 548.)
Plaintiffs seek to distinguish McDaniel on the basis that in that case there was “no showing that the sellers combined or acted in secret or that the position or office of the president of the bank was used to intercept and control opportunities to sell stock . . . .” The objection that the defendants here combined in secret has been previously dealt with. McDaniel approved the “confidential nature of the transaction” there involved, i.e. nondisclosure of the offer or the sale. The opportunity to sell stock which was intercepted by McGrath in the present case was an offer to buy a majority of the stock, a quantity which the defendants had alreády validly acquired. We hold that defendants violated no duty in not disclosing to the plaintiffs the offer to purchase a majority of the stock.
We adhere to the rule that corporate directors and officers are under a very strict fiduciary duty in their relations both to the corporation and its stockholders, but where is the breach of that duty in this case?
This is not a case where an officer or director, with undisclosed knowledge of information affecting the value of stock, goes about buying up shares from minority shareholders, which he in turn sells at a profit. Here, the shares sold were already owned at the time of the offer to purchase, and those shares were not acquired from any of the plaintiffs. Nor is there any showing that the sale by defendants of their stock or the failure to disclose the sale or the offer therefor in any way coerced plaintiffs into selling their stock or affected the value of that stock. When the plaintiffs sold their shares almost a year after the sale by defendants, they did so at full book value.
As has been noted, the dominant shareholder must not sell his stock if circumstances would put the seller on guard that the purchasers are irresponsible, or likely to mismanage and loot the corporation. Here, the trial court found that the defendants inquired as to Hentzen and Lawrence and found them reputable and that the bank continued to prosper after the sale of stock to them. That finding is not challenged.
We find no evidence here of fraud against the plaintiff minority shareholders. We adopt the rule expressed in McDaniel that the fact that controlling stock sells for more than book value is not per se indicative of fraud since controlling stock is necessarily more valuable than minority stock. The fact that controlling shareholders may stand in a fiduciary position to minority shareholders, either as officers and directors or even as majority shareholders, does not require them to share a premium received in the sale of their stock, if the premium is paid only for the potential for control inherent in the stock, and not by reason of a breach of fiduciary duty by the selling shareholders. See Annotation, 38 A.L.R.3d 738.
After entering into their contract of June 19, 1974, the defendants invited James T. Klepper and certain others who were minority shareholders to join in the sale at the premium price without disclosing the facts of that sale to any of the other minority shareholders. In Stanton v. Schenck, 140 Misc. 621, 251 N.Y.S. 221 (1931), it was specifically held that a majority shareholder could include some minority shareholders in the sale and not others. Generally, there is no obligation in one group of stockholders to invite participation of other stockholders at a price above market value on a theory of share and share alike. Haberman v. Murchison, 468 F.2d 1305 (2d Cir. 1972). See also Tyron et al. v. Smith, 191 Ore. 172, 229 P.2d 251 (1951); Thompson v. Hambrick, 508 S.W.2d 949 (Tex. Civ. App. 1974).
We note that Hentzen and Lawrence were given access to the bank’s records for the purpose of an audit. McGrath later authorized payment of the accounting bill for this from bank funds. That bill was subsequently repaid and the breach of fiduciary duty, if any, would go to the bank and not to the plaintiffs. Here, we take note of evidence to the effect that an independent audit of the affairs of the bank had been recommended and the audit for which the bill was rendered was deemed to have been of benefit to the bank, and conclude that even though payment by the bank may have been improper, no harm resulted to plaintiffs from this action.
We conclude that there was not a breach of fiduciary duty of the defendants as officers, directors, or dominant shareholders in the manner in which they acquired their additional shares, nor in pooling their interests to provide a controlling interest, nor in failing to disclose their objectives in purchasing stock or their pooling agreement, nor by inviting some but not all of the minority shareholders to join with them in a sale at a premium price.
Plaintiffs suggest that the defendants’ sale of their stock at a premium was a sale of a corporate asset belonging to all of the shareholders.
The much debated case of Perlman v. Feldmann, 219 F.2d 173 (2d Cir. 1955), cert. denied 349 U.S. 952, 75 S.Ct. 880, 99 L.Ed. 1277, first established the rule that where a dominant stockholder sells his stock for a price higher than fair market value, and the premium is essentially payment for a corporate asset, the premium should be shared by the minority shareholders. In that case it was clearly established that what the purchasers desired was control over steel, the product of the seller’s corporation, during the Korean War, a time when steel was in scarce supply. The court specifically spoke of the situation as one where, because of market shortage, the company’s product could command a considerable profit and concluded that the majority stockholder and officer could not appropriate that asset by receiving payment for it in the form of a premium for his control stock.
In the present case, the only corporate asset the plaintiffs point to is “the opportunity to sell fifty-two percent (52%) of the outstanding stock . . . .” Plaintiffs cite no authority, however, that such an opportunity is a corporate asset. In Haberman v. Murchison, supra, the same court that decided Perlman stated:
“. . . [W]e are aware of no authority for the proposition that an offer to buy shares from a stockholder is either material inside information or a corporate asset. . . .” (468 F.2d at 1317.)
Some commentators have expressed views supportive of the result desired by plaintiffs. See Berle, “The Price of Power: Sale of Corporate Control,” 50 Cornell L.Q. 628 (1965), which advances the view that when a majority stockholder receives an amount over investment value for his shares, he is receiving a premium for control, and control is a corporate asset. See also, Andrews, “The Stockholder’s Right to Equal Opportunity in the Sale of Shares,” 78 Harvard L. Rev. 505 (1965), arguing that every shareholder is entitled to an equal opportunity on a pro rata basis to sell shares on the same terms as a majority shareholder.
These theories have yet to find judicial support except implicitly in Brown v. Halbert, 271 Cal. App.2d 252, 76 Cal. Rptr. 781 (1969). In that case, the majority shareholder of a savings and loan association, who was also its president, received an inquiry as to whether the association was for sale. He replied that it was not but offered to sell his controlling stock. An agreement was reached to the effect that the defendant was to give the purchaser access to the association’s books, that all directors and officers were to resign, and that no dividends were to be paid. The defendant received some $1,500 per share for his stock and then actively assisted the purchaser in procuring more shares from minority holders at $300 per share, often by statements to the effect that dividends would no longer be paid. The effect was a devaluation of the minority stock. The court found a breach of fiduciary duty and promulgated a rule that when a majority shareholder is to receive a premium for the sale of his stock, he must show that no advantage was taken if the sale is questioned. Specifically, the court held that full disclosure must be made of an offer of purchase in such a situation.
Although we do not follow the requirement of disclosure as set forth in Brown, we do note that the facts of that case would with but little doubt be deemed a breach of fiduciary duty under the laws of this state. Here, we do not have a situation where the majority interests have in any manner sought to interfere with the rights of the minority. There was no attempt by the defendants after the sale to procure the holdings of the minority interests. The tender offer by Hentzen and Lawrence was at a fair price and was not aided by any coercive acts of the defendants. The facts in Brown simply are not applicable in this instance.
We hold that the defendants’ sale of bank stock, which collectively amounted to the controlling interest in the bank, was not the sale of a corporate asset.
Finally, plaintiffs argue that the trial court failed to consider uncontroverted facts in reaching its findings and conclusions, and they list seven statements which they believe to be in that category. An examination of plaintiffs’ suggested facts indicates to this court that the trial judge most certainly must have considered all of the evidence from which he might have made such findings. Furthermore, it does not appear that the suggested findings were necessary for a final determination of the issues in this case or, if they had been made, that they would have resulted in a different conclusion.
Having reached the conclusions herein expressed, there is no need to determine whether there was error in denying the maintenance of this case as a class action.
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Rees, J.:
The nature of this action is stated by plaintiff in his brief to be as follows:
“This is an action for a Declaratory Judgment that the Constitution of the United States and the Constitution of the State of Kansas commands that State officers accept gold and silver coin or paper which is equivalent thereof, and Constitutionally the State is forbidden from accepting any other Thing as Tender in Payment of Debt and,
“Plaintiff-Appellant also is requesting Injunctive relief requiring State or County officials to accept no Thing other than gold and silver Coin or Paper which is equivalent.”
The trial court dismissed for lack of jurisdiction over the subject matter and plaintiff has appealed.
The salient facts may be briefly stated. Plaintiff is a resident and owner of real and personal property situated in Johnson County. He duly received 1974 personal property and real estate tax statements in a total amount of $7,663.24. On February 14, 1975, after an exchange of correspondence with the county treasurer and the county counselor concerning payment of his taxes, he wrote to the county treasurer. In his letter he set forth his computation of his tax obligation for payment of first-half taxes. (The fact that he was then delinquent as to payment of first-half taxes and payment in full was due is not material to the issues raised in this action.) According to his computation, his tax liability, including penalty and automobile license fees, was $3,954.95 ($4,000.00 for the purpose of our consideration). Enclosed with his letter was a personal check drawn by him on a local bank in the amount of $800.00, on which was typed “NOTICE: PAY SILVER DOLLARS ONLY.” In his letter he stated:
“. . . I am submitting payment for my taxes in statutory dollars and in accordance with the United States Constitution.
“As I have stated before, I am quite ready to pay lawful taxes with lawful money. . . .
“My research indicates that the fair market value of a Federal Reserve Note is at a ratio of 5:1 or 5 FRN’s to 1 Silver Dollar.
“My check is payable in silver dollars. I have tendered honest and lawful payment. I will consider my taxes duly paid.”
The presentation of the check had the effect of a tender of 800 silver dollars. The treasurer declined to accept plaintiff’s tender in satisfaction of the $4,000 tax obligation. The check was returned and this litigation began. In addition to the county treasurer and county commissioners, the governor, the state attorney general and the state treasurer were made defendants. The action was dismissed as to the last three defendants; they were made parties to an action in Shawnee County, and they are not parties to this appeal.
Plaintiff contends as matters of fact that present day federal reserve notes have no intrinsic value and essentially are worthless, and that silver dollars have a value to some persons, e.g., collectors, at a multiple of their face value.
No issue is raised as to the lawfulness and amount of tax imposed upon plaintiff. The questions at issue arise out of plain tiff’s contentions that he is constitutionally prohibited from making payment of taxes in federal reserve notes; that the county treasurer has required him to violate the United States Constitution by refusing to accept silver dollars other than on a dollar for dollar basis; that to the extent the county treasurer has required him to pay by the use of federal reserve notes he has been required to violate the United States Constitution; and that the county treasurer’s actions, taken as an officer of a subdivision of the state, constitute violations of Article I, Section 10, of the United States Constitution, and Article 2, Section 7, of the Kansas Constitution. Also, at the heart of plaintiff’s arguments is the delegation of powers to the Congress expressed in Article I, Section 8, of the United States Constitution.
In order that they may be before us, the particular constitutional provisions material to plaintiff’s arguments are as follows:
“The Congress shall have Power ... To coin Money, regulate the Value thereof, . . .” U. S. Const, art. I, sec. 8.
“No State shall . . . emit Bills of Credit; make any Thing but gold and silver a Tender in Payment of Debts;. . U. S. Const, art. I, sec. 10.
“All state officers before entering upon their respective duties shall take and subscribe an oath or affirmation to support the constitution of the United States . . .” Kan. Const, art. 2, sec. 7.
Plaintiff’s argument is multi-faceted and includes a plethora of references. As will be indicated elsewhere in this opinion,, others sharing plaintiff’s beliefs and convictions have raised the same fundamental questions in recent years. Their theses have been universally rejected.
The trial court’s journal entry includes a finding that plaintiff’s petition raises federal questions which are not subject to determination by state courts. However, we are uncertain as to what federal questions were deemed by the trial court to be outside its jurisdiction. Defendants have furnished us little assistance in that they seemingly argue that without limitation there is no state court jurisdiction over federal questions.
We turn first to an examination of what constitutes jurisdiction and then to an examination of whether this litigation meets the requirements imposed for the exercise of jurisdiction by our state courts.
Jurisdiction is defined as the power of a court to hear and decide a matter. The test of jurisdiction is not a correct decision but a right to enter upon inquiry and make a decision. Jurisdiction is not limited to the power to decide a case rightly, but includes the power to decide it wrongly. In re Estate of Johnson, 180 Kan. 740, 308 P. 2d 100; Fincher v. Fincher, 182 Kan. 724, 324 P. 2d 159; McFadden v. McFadden, 187 Kan. 398, 357 P. 2d 751.
The term “federal question” is usually defined by reference to 28 U.S.C. Sec. 1331, one of the statutes prescribing original jurisdiction of the federal district courts. By that definition, a federal question is involved in a civil action wherein the matter in controversy arises under the Constitution, laws or treaties of the United States.
We are satisfied that the courts of this state have subject matter jurisdiction of federal questions, as that term is defined above, absent exclusion of jurisdiction. Representative of federal question litigation in the courts of our state is the virtual flood of cases seeking enforcement of rights asserted under the United States Constitution and the vast number of cases relying upon enforcement of federal statutory law.
Whitmer v. House, 198 Kan. 629, 426 P. 2d 100, and Ritchie v. Johnson, 158 Kan. 103, 144 P. 2d 925, are cases in which our supreme court has held that subject matter jurisdiction of the state courts is excluded.
In Whitmer, one of plaintiffs’ claims was that defendants’ conduct was in conflict with the federal Uniform Time Act of 1966. The opinion noted that the act contains a provision that specifically designates the federal district courts as the proper forum for enforcement of the act and expressly declares the governing procedure in such proceedings. Although there is authority to the contrary (Mich. Farm Bureau v. Secy. of State, 379 Mich. 387, 151 N.W. 2d 797 [1967]), it was stated that it appeared that state courts are excluded from jurisdiction to adjudicate violations of the act. The holding of lack of jurisdiction of the subject matter was based upon a determination that the provisions of the federal law excluded state court jurisdiction.
In Ritchie, the federal Emergency Price Control Act of 1942 was before the court. In regard to a challenge of the administration of that law, it was said:
. . By section 204 (d) it is provided that the Emergency Court of Appeals and the Supreme Court upon review of its judgments and orders shall have exclusive jurisdiction to determine the validity of any regulation or order issued . . . and—
“ ‘Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation [or] order ... or to restrain or enjoin . . . enforcement. . . ” (p. 109.)
“. . . Under [the Act’s] terms our jurisdiction is limited, and we may not consider the validity of any regulation or order issued by the administrator of the Act, nor enjoin the enforcement thereof. If the appellant believes that such regulations or orders are unduly restrictive or arbitrary, his remedy is to follow the procedure for administrative review leading up to a hearing before the Emergency Court of Appeals. . . .” (p. 118.)
The Ritchie case also is authority for holding that the jurisdiction of the courts of our state extends to a constitutional challenge of federal statutes.
“. . . Although congress may have power to withhold from state courts jurisdiction over any matter within the judicial power of the United States (see the classic case of Cohens v. Virginia, 6 Wheat. [19 U.S.] 264, 25 L. Ed. 191) in the present instance it did not do so further than as provided in the portion of the Act as quoted above. It appears the restriction on jurisdiction pertains to regulations or orders made under the Act, and not to the Act itself. ... If the Act is not constitutional, the provision relied on by appellees is not good. In our opinion the trial court had jurisdiction to determine whether the Act was a valid constitutional enactment.” (p. 112.) (Emphasis supplied.)
Further, Ritchie aptly expresses the precedential effect to be given decisions of the federal courts and the binding effect of the Constitution and laws of the United States, in the following language:
“The rule that decisions of the Supreme Court of the United States on federal questions are binding on state courts has been recognized and followed in this state. (See Schaefer v. Lowden, 147 Kan. 520, syl. 2, 78 P. 2d 48.) The decisions generally are in conflict whether a state court is bound by the decisions of the lower federal courts on federal questions. (See 147 A.L.R. 857.) In Krouse v. Lowden, 153 Kan. 181, syl. 6, 109 P. 2d 138, it was held the interpretation placed upon a federal statute by the federal courts, and particularly by the United States Supreme Court is controlling upon state courts. We think that where the decisions of the various federal courts are in accord, the rule might well be followed, and where there is lack of unanimity, the weight of authority should be held very persuasive.
“Under Article VI thereof, the constitution and the laws of the United States made in pursuance thereof are the supreme law of the land, and judges in every state are bound thereby, anything in the laws of the state to the contrary notwithstanding. . . .” (pp. 117-118.)
In Morrison v. Hutchins, 158 Kan. 123, 144 P. 2d 922, a companion case to Ritchie, it is held:
“The constitution and laws of the United States made in pursuance thereof are the supreme law of the land (U. S. Const, art. VI) and are binding upon state as well as federal courts. (Claflin v. Houseman, Assignee, 93 U.S. 130, 23 L. Ed. 833, 838.) . . .” (p. 126.)
By reason of 31 U.S.C. Sec. 463, the treasurer was required to accept plaintiff’s tender of payment in silver dollars only on a dollar for dollar basis. Section 463 provides as follows:
“(a) Every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts. Any such provision contained in any law authorizing obligations to be issued by or under authority of the United States, is hereby repealed, but the repeal of any such provision shall not invalidate any other provision or authority contained in such law.
“(b) As used in this resolution, the term ‘obligation’ means an obligation (including every obligation of and to the United States, excepting currency) payable in money of the United States; and the term ‘coin or currency’ means coin or currency of the United States, including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations. (June 5, 1933, c. 48, Sec. 1, 48 Stat. 113.)”
The refusal of the treasurer to accept plaintiff’s silver dollars on a basis other than dollar for dollar and acceptance by her of federal reserve notes for payment of taxes did not violate Article I, Section 8, of the Constitution of the United States. Such conduct of the treasurer is not state action that makes any thing other than gold and silver coin tender in payment of debts. It is action of the federal government that makes federal reserve notes legal tender.
Legal tender for payment of public and private debts is defined by Title 31 U.S.C. Sec. 392 as follows:
“All coins and currencies of the United States (including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations), regardless of when coined or issued, shall be legal tender for all debts, public and private, public charges, taxes, duties, and dues. (July 23, 1965, P. L. 89-81, Title I, Sec. 102, 79 Stat. 255.)”
In view of the fact that the county treasurer and the courts of this state are bound by the foregoing federal statutes, the remaining issue is the constitutionality of those federal statutes. As we have pointed out above, we are bound by the decisions of the United States Supreme Court.
The power to declare what shall be money and to regulate its value is vested in the Congress. Norman v. B. & O. R. Co., 294 U.S. 240, 79 L. Ed. 885, 55 S. Ct. 407 (1935). It has been decided that the Congress has the constitutional power to make paper money legal tender in payment of debts. Juilliard v. Greenman, 110 U.S. 421, 28 L. Ed. 204, 4 S. Ct. 122 (1884). Therefore, determination of the constitutionality issue would require judicial review of the actions of Congress in the exercise of its powers.
The constitutionality of Title 31, Sec. 392 and Title 31, Sec. 463 was before the United States Supreme Court in Guaranty Trust Co. v. Henwood, 307 U.S. 247, 83 L. Ed. 1266, 59 S. Ct. 847 (1939), where it was held:
“. . . These bonds and their securing mortgage were created subject not only to the exercise by Congress of its constitutional power to ‘coin money, regulate the value thereof, and of foreign coin,’ but also to ‘the full authority of the Congress in relation to the currency.’ The extent of that authority of Congress has been recently pointed out: ‘The broad and comprehensive national authority over the subjects of revenue, finance and currency is derived from the aggregate of the powers granted to the Congress, embracing the powers to lay and collect taxes, to borrow money, to regulate commerce with foreign nations and among the several States, to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures, and the added express power “to make all laws which shall be necessary and proper for carrying into execution” the other enumerated powers.’
“Under these powers, Congress was authorized — as it did in the Resolution — to establish, regulate and control the national currency and to make that currency legal tender money for all purposes, including payment of domestic dollar obligations with options for payment in foreign currencies. Whether it was ‘wise and expedient’ to do so was, under the Constitution, a determination to be made by the Congress. . (p. 259.)
In Juilliard v. Greenman, supra, it also was held:
. . [T]he question whether at any particular time, in war or in peace, the exigency is such, by reason of unusual and pressing demands on the resources of the government, or of the inadequacy of the supply of gold and silver coin to furnish the currency needed for the uses of the government and of the people, that it is, as matter of fact, wise and expedient to resort to this means, is a political question, to be determined by Congress when the question of exigency arises, and not a judicial question, to be afterwards passed upon by the courts. . . (p. 450.)
The wisdom and expediency of the actions of Congress which are the subject of the matter in controversy before us do not constitute a judicial question but rather a political question over which the judiciary has no jurisdiction. Accordingly, the trial court correctly held that it had no jurisdiction over the subject matter.
We noted earlier that there has been litigation in other courts concerning this same general subject matter. All such litigation found in our limited research has been determined contrary to plaintiff’s position. The cases have been disposed of either by judgment on the merits or by dismissal for failure to state a claim upon which relief can be granted. For the benefit of the interested reader, included among such cases are the following: Leitch v. State, Department of Revenue, 16 Or. App. 627, 519 P. 2d 1045 (1974); Radue v. Zanaty, 293 Ala. 585, 308 So. 2d 242 (1975) (a case strikingly similar to the one before us); Chermack v. Bjornson, 223 N.W. 2d 659 (Minn. 1974); Rush v. Casco Bank & Trust Company, 348 A. 2d 237 (Me. 1975); Brubrad Company v. United States Postal Service, 404 F. Supp. 691 (E.D.N.Y. 1975); and United States v. Wangrud, 533 F. 2d 495 (9th Cir. 1976).
Were we to decide plaintiff’s case on the merits, we could well hold the Ninth Circuit decision in the Wangrud case to be controlling. On the issue at hand, the opinion in that case was as follows:
. .[T]he defendant received checks from the State Farm Insurance Company as compensation for his services. He now argues that he did not receive money, since the checks could be cashed only for federal reserve notes and that these are not redeemable in specie. We publish this opinion solely to make it clear that this argument has absolutely no merit. We affirm this conviction.
“By statute it is established that federal reserve notes, on an equal basis with other coins and currencies of the United States, shall be legal tender for all debts, public and private, including taxes. 31 U.S.C. Sec. 392 (Supp. 1976). This statute is well within the constitutional authority of Congress. U.S. Const, art. I, sec. 8. It so completely disposes of appellant’s argument that it is unnecessary for us to invoke other provisions of the Internal Revenue Code which would be equally dispositive, . . .” (pp. 495-496.)
In his brief and at argument, plaintiff has objected that he was wrongfully denied jury trial. The short answer is that since there is no jurisdiction of the subject matter, there is nothing to be tried to a jury.
The trial court dismissal for lack of jurisdiction over the subject matter is affirmed. | [
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Foth, J.:
Sylvester Collazo was convicted by a jury of the sale of heroin in violation of K.S.A. 1976 Supp. 65-4127a. He appeals, primarily alleging that the trial court erred by admitting hearsay testimony in violation of his constitutional right to confront the witnesses against him. We reverse and remand for a new trial.
The state’s case rested almost entirely on the testimony of John Washington, an undercover narcotics agent for the Kansas Bureau of Investigation. Washington testified that he met the appellant through a man named Frank Crosley; that at their first meeting appellant agreed to sell an ounce of heroin for $1,200; and that the next day the appellant, accompanied by two unidentified Mexican males, mét with Washington and Crosley and completed the sale.
Appellant’s hearsay objection went to Washington’s testimony relating conversations in which Crosley described appellant as a known and large scale drug dealer. Specifically, the appellant points to three statements admitted over his objection:
“Q. What did Mr. Crosley say about Mr. Collazo?
“A. He told me that if we ever got in a jam and we needed — and this party in question in Dodge City wouldn’t sell us any crystal, methamphetamines, scheduled for substance, scheduled to substance, we could easily go to Mr. — go to Porky over in Garden City because Porky was the biggest thing in the west, you know.
“Q. Porky is this man here? [The defendant.]
“A. Yes, sir.
“A. In reference to my report Mr. Crosley said, ‘Let’s go see the big man’. I said, ‘Who are they?’, ‘Who is it?’. He says, ‘Porky’. I said, ‘Who is that? Is he cool?’. He said, ‘Yeah, man, you know, he’s the big man; he controls everything’. I said, ‘Okay, let’s go see him’.
“A. Mr. Crosley informed me that Mr. Collazo was a very very rich man and he had sold a whole lot of dope brought in from Mexico along with wetbacks in this part of the country for farmers and ranchers and that he deals heavy in narcotics in this part of the country.”
K.S.A. 60-460 provides that “[e]vidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible,” with certain exceptions. The state urges that introduction of these statements, however, is not prohibited by the hearsay rule because they were repeated merely as background and foundation testimony to explain to the court and the jury the manner in which Washington made contact with the appellant, and not for “the truth of the matter stated.” In several cases out-of-court statements have been held admissible when offered to explain the officer’s conduct, and not for the truth of statements themselves. See State v. Trotter, 203 Kan. 31, 453 P.2d 93; State v. Ritson, 215 Kan. 742, 529 P.2d 90; State v. Lopez, 182 Kan. 46, 318 P.2d 662; State v. Hollaway, 214 Kan. 636, 522 P.2d 364. In none of these cases, however, were the statements as closely related to the defendant’s guilt as they are here. In effect, Washington’s repetition of the out-of-court declarations not only explained his interest in the defendant but also added damaging testimony about defendant’s role as a drug dealer. In its latter aspect the testimony was clearly hearsay. Compare, State v. Thompson, 221 Kan. 176, 558 P.2d 93.
The trial court thought the testimony was hearsay, i.e., offered for the truth of Crosley’s statements, but admissible because the declarant Crosley was “present at the hearing and available for cross-examination.” (K.S.A. 60-460[a].) The state did not call Crosley, but the court concluded that he was present and available because he was in custody pending prosecution on an independent charge and subject to defense summons. However, State v. Fisher, 222 Kan. 76, 563 P.2d 1012, makes it clear that “calling a declarant as a defense witness is no substitute for cross-examining that declarant as a state’s witness.” (p. 81.) In Fisher, the witness was physically present in the courtroom but admission of her out-of-court statements was held to be reversible error, the court saying:
“Admission of a declarant’s out-of-court statement does not violate the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section Ten of the Bill of Rights of the Kansas Constitution as long as the declarant has been called and testifies as a witness and is subject to full and effective cross-examination.”
“In a criminal proceeding, the declarant must testify at trial before hearsay evidence of his out-of-court statements may be admitted under K.S.A. 60-460(a).” (Id., Syl. 4 & 5.)
The state also argues that if there was error it was harmless. In determining whether the erroneous admission of this testimony constitutes harmless or reversible error, an appellate court must weigh the probable impact of the evidence on the jury. Because the error in this case infringed the appellant’s constitutional right to confrontation, to find it harmless we would have to conclude, beyond a reasonable doubt, that “the error had little, if any, likelihood of having changed the result of the trial.” (State v. Hamilton, 222 Kan. 341, 345, 564 P.2d 536. See, also, State v. Thompson, supra.) This we are not able to do. Aside from Washington’s testimony, the only evidence against the appellant was the stipulation by the parties to the chemist’s report that the substance allegedly purchased from the appellant contained heroin. Washington’s supervisor described the activities of an undercover agent and stated that Washington was assigned to the area, but none of his testimony implicated the appellant. Thus the only direct evidence against the appellant was the testimony of Washington. Hence Crosley’s “testimony” as to the appellant’s drug dealings virtually doubled the evidence against him. In this case, the evidence was not so overwhelming that we can say the hearsay testimony could not have influenced the verdict.
Although the conclusion just reached compels reversal, because the appellant may be retried we also will rule on his claim that the judge improperly defined “sale” in the instructions to the jury. The challenged instruction stated:
“To sell heroin means to knowingly and intentionally transfer possession or ownership of the heroin to another for money or other valuable consideration. For a person to make such a sale it is not necessary that he personally handle all of the details of the transaction. It is sufficient if the transaction is arranged by him and handled by persons under his direction and it is sufficient to constitute a sale if the person charged with sale is involved in the transaction by accepting, handling or counting the money and directing the delivery of the heroin. In other words, the person charged with the sale does not have to personally conduct all of the various elements of the delivery of the heroin and of the transfer of the money. It is sufficient if he participates therein to such an extent that it is obvious that he is a part of the making of the sale.”
Appellant objected, and requested an instruction which would have required a finding that he physically delivered the heroin and directly received the $1,200 sale price.
He thus sought to defend on the grounds that he never personally handled the heroin during the sale, but instead completed the transaction through accomplices. Two Kansas cases, however, lead us to conclude that culpability does not turn on such a narrow point. In State v. Woods, 214 Kan. 739, 522 P.2d 967, our court rejected the argument that possession of marijuana is a lesser included offense under sale. Distinguishing possession and sale, the court explained that possession requires “some measure of control over some amount of the drug,” while sale “is construed in a broad sense . . . without regard to questions of the passing of title, the existence of consideration or who possessed the drug sold.” (p. 744.) The court went on to point out that “[u]nder the definitions contained in the Kansas act . . . ‘ “Sale” includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.’ (L. 1957, ch. 338, §1.)” (Ibid.)
Although the Woods decision was controlled by the “Uniform Narcotic Drug Act” (formerly found at K.S.A. 65-2501 et seq.) which was repealed in 1972 (L. 1972, ch. 234, §41), a subsequent decision makes it clear that “sale” under the current “Uniform Controlled Substance Act” (K.S.A. 65-4101 et seq.) should be construed in the same way. State v. Nix, 215 Kan. 880, 529 P.2d 147. We conclude that the judge’s instruction properly required the state to show only that the appellant participated in the sale, and that it was not necessary to show that he personally handled either the drug or the money.
The judgment is reversed and the case is remanded for a new trial. | [
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Rees, J.:
This is an action for property damage arising out of an accident that involved defendants’ tractor and drill and an automobile, the certificate of title to which was registered in the name of plaintiff. The case was tried twice. A jury verdict for defendants was returned on the first trial. A new trial was ordered and the second trial resulted in a verdict for plaintiff. The defendants appeal from the granting of the new trial and the judgment entered on the second trial.
The accident occurred at night on a county highway. Defendant Wilma R. Fisher was driving defendants’ tractor and towing the drill. The automobile was driven by plaintiff’s son, William Hartley, and it rear-ended the drill. Plaintiff contends that defendants were negligent in that the tractor and drill had no lights or reflectors. Defendants’ contentions throughout have been that William Hartley was negligent and that his negligence constitutes contributory negligence barring plaintiff’s right to recover. There was evidence presented at each trial that both William Hartley and the defendants were negligent.
On the first trial, the testimony included statements of plaintiff that the automobile “was really [Billy’s] car” and that “Billy wasn’t of age and I had my insurance all in one company, so we had it put in my name.” William Hartley testified that the automobile was “in fact” his. The trial court submitted the case to the jury on the theory that if it were found that William Hartley was negligent, plaintiff was contributorily negligent.
The trial court granted the new trial upon its determination that under Stebbins v. Heidebrecht, 186 Kan. 484, 350 P.2d 783, he had erred in “permitting the defense of contributory negligence on the part of the driver of the car to enter into the trial of the case.”
At the second trial, plaintiff referred to the automobile as “Billy’s car” but the court refused to allow defense counsel to inquire as to William Hartley’s interest in it. The court also refused to give instructions in regard to contributory negligence.
As stated by defendants in their brief, the basic issue is whether the defense of contributory negligence should be available under the facts of this case. For the purpose of our consideration, we will assume that although the legal title to the automobile, as shown by the certificate of title, was held by plaintiff, the full beneficial interest in the automobile was in his son, the driver.
In Stebbins v. Heidebrecht, supra, the Kansas Supreme Court dealt with a factual situation similar to the present case. The certificate'of title to the damaged automobile was registered in the name of the plaintiff, but his son was the beneficial owner having purchased the car with his own funds and having exclusive control and use. The defendant argued the son, as beneficial owner, was the real party in interest under G.S. 1949, 60-401, and that plaintiff therefore was not entitled to bring the action. In rejecting defendant’s argument, the court said in part:
“• • • [W]e recognize fully the persuasiveness of defendant’s argument as to why, under the stipulated facts, the son should be considered and held to be the actual ‘owner’ of the car and therefore the proper party plaintiff. Nevertheless, we are convinced that under the facts of this case, and narrowed to the question presented, the father, in whose name the car was registered, must, within the meaning of G.S. 1949,60-401, above, be considered to be the real party in interest. To hold otherwise would open the door to all manner of claims under varying situations and circumstances, and result in confusion and uncertainty on the question of ‘proper party plaintiff’ in cases involving damage to automobiles.” (pp. 487-8.)
Under Stebbins it is clear that the plaintiff father in the present case is the real party in interest to bring this action as plaintiff. That settled, the question before us narrows to a consideration as to whether the son’s negligence may be imputed to the father so as to bar the latter’s right to recover.
Defendants ask this court to create a new category of imputed negligence. Defendants maintain that in factual situations similar to the present case, equity requires the negligence of the beneficial owner of an automobile be imputed as contributory negligence of the title owner. Defendants correctly point out that in Stebbins the parties agreed (“conceded”) the negligence of the son was not imputable to the father so as to bar his recovery. We also agree it was not held that the son’s negligence could not be shown in defense of the father’s claim, but we believe such showing of negligence would have been of benefit to the defendant there only if he established to the satisfaction of a jury, or the court sitting without a jury, that the son’s negligence was the sole cause of the accident. We further agree with defendants that the particular question before us was not decided in Stebbins and is not expressly determined in our case or statutory law.
The negligence of plaintiff’s son is not chargeable to plaintiff under any of our recognized statutory and common law bases for the imputation of negligence. There is no evidence that plaintiff’s son was acting as plaintiff’s agent or servant or in the furtherance of plaintiff’s business when the accident occurred so as to give rise to vicarious liability upon the principles of agency or respondeat superior. Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863. There was no evidence that plaintiff and his son were involved in a joint venture. Sizemore v. Hall, 148 Kan. 233, 80 P.2d 1092. The so-called “family purpose doctrine” has been specifically rejected in Kansas. Daily v. Schneider, 118 Kan. 295, 234 Pac. 951; Watkins v. Clark, 103 Kan. 629, 176 Pac. 131. Plaintiff’s son was not under sixteen years of age so as to impose joint and several liability upon plaintiff under K.S.A. 8-222. Furthermore, there was no evidence that plaintiff had reasonable cause to know that his son was an incompetent, careless or reckless driver, and therefore was himself directly negligent in permitting his son to drive. Fogo, Administratrix v. Steele, 180 Kan. 326, 304 P.2d 451.
In Bower v. Railroad Co., 106 Kan. 404, 188 Pac. 420, it was held that the negligence of a carrier is not imputable to a shipper so as to prevent the shipper from recovering damages from another carrier or third party through whose negligence, with that of the first carrier, the shipper’s goods were damaged. It is said in Schmidt v. Martin, 212 Kan. 373, 510 P.2d 1244, that:
“. . . In Bower v. Railroad Co., 106 Kan. 404, 188 Pac. 420, we rejected the application of the doctrine of imputed negligence to a bailor-bailee relationship.” (p. 376.)
It is also stated in Schmidt v. Martin, supra, that:
“. . . We have adopted the rule that liability for an automobile accident does not attach to the owner of the car from the mere fact of ownership so as to impute the negligence of the driver to the owner as a matter of law. . . .” (p. 376.)
In view of the foregoing authorities and in the absence of any settled basis under our law for the imputation of the negligence of plaintiff’s son as contributory negligence of plaintiff, we decline to create the requested new category of imputed negligence. Our holding is in accord with the so-called modern rule which is that a bailee’s contributory negligence is not imputable to the bailor in an action against a third party for damage to the bailed property. 8 Am.Jur.2d, Bailments § 253, p. 1139; 8 C.J.S., Bailments § 56(l)(d), p. 576.
In Stebbins, the Kansas Supreme Court held that to look to someone other than the registered title owner as the real party in interest “. . . would open the door to all manner of claims under varying situations and circumstances, and result in confusion and uncertainty . . .” (p. 488.) To create the requested new category of imputed negligence would result in confusion and uncertainty similar to that the Stebbins decision avoids with regard to the real party in interest issue.
The judgment of the trial court is affirmed. | [
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Rees, J.:
This is an action for personal injuries that arises out of an accident involving an automobile and a Rock Island switch engine at a railroad crossing in Hutchinson on the night of January 17, 1973. The automobile was driven by Edna Miller, and her husband, Lawrence Miller, was riding as a passenger in the right front seat. The Millers were injured and brought this suit against Rock Island and the engineer, Dixon. Trial of the case resulted in judgments in favor of both defendants against Edna Miller, in favor of Dixon against Lawrence Miller, and in favor of Lawrence Miller against Rock Island. Rock Island has appealed from the judgment in favor of Lawrence Miller.
Rock Island’s contentions on appeal are that on the evidence and as a matter of law the railroad was not negligent and Lawrence Miller was contributorily negligent. It also objects to failure to give certain requested instructions and the overruling of its motion for a new trial.
A limited statement of facts will set the scene. The Miller automobile was northbound on Plum Street. The switch engine was moving west pulling seven loaded boxcars. In addition to Dixon, there were three other members of the train crew in the engine cab. About 82 feet south of the Rock Island tracks is a set of Missouri Pacific tracks that also crosses Plum Street. Elmo Pierson’s bargain store is located to the southeast of the crossing. There are stacks of used lumber to the north of Pierson’s building and south of the Missouri Pacific tracks. As a traveler approaches the crossing on Plum Street, there is a slight incline of the roadway to a point a short distance south of the Missouri Pacific tracks. The street then is level to and beyond the Rock Island tracks.
There are two crossing signs and two crossbucks to the south of the crossing and on the east side of the street. The crossing is not protected by automatic flashing lights, bells or gates. There was no flagman.
The Millers had traveled over the crossing on previous occasions and were familiar with it.
Defense witnesses testified that as the engine traveled west its whistle and bell were sounded and the engine headlight and ground lights were illuminated. The Millers testified that they did not hear a whistle or bell and they saw no engine lights.
We have reviewed the record evidence in detail. No useful purpose would be served in its recitation at any greater length. It must be viewed most favorably to Lawrence Miller, the prevailing party below. We are unable to hold that as a matter of law the evidence with respect to the issue of Rock Island’s negligence was insufficient, although there is no question such evidence was weak at best.
Rock Island’s most compelling argument is that Lawrence Miller was contributorily negligent as a matter of law. He testified that as the car neared the crossing he glanced or looked to the east but did not see the train; he saw a light on Pierson’s building and the light and building obstructed his view; he did not recall looking again prior to the accident; he did not know if his view to the east would have been obstructed once the car was within 25 to 50 feet of the crossing; and he gave no warning to his wife. Pierson testified that the light on his building was disconnected and definitely was not on the night of the accident. Photographs of the accident scene and evidence concerning lines of sight measurements were presented by Rock Island to show that Miller’s view was not obstructed when he was to the north of Pierson’s building.
The argument of Rock Island is that Lawrence Miller was contributorily negligent as a matter of law under the rule enunciated in Buchhein v. Atchison, T. & S. F. Rly. Co., 147 Kan. 192, 75 P.2d 280; Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P.2d 748; and similar cases. That rule imposes upon an automobile passenger at a railroad crossing the strict duty to keep a lookout for possible danger, to see what there is to be seen and to warn the driver of every approaching train. Under the rule, the duty of the passenger is equal to that of the driver.
Whatever the reasons may have been for its adoption and application by our courts, the fact of the matter is that our Supreme Court has now held that the rule is no longer the rule in Kansas. Smith v. Union Pacific Railroad Co., 222 Kan. 303, 564 P.2d 514. Smith holds in essence that the duty of a passenger in a vehicle approaching a railroad crossing simply is to exercise reasonable care under the existing circumstances. Thus, in regard to Lawrence Miller’s conduct, we cannot hold that the court erred in overruling Rock Island’s motions for directed verdict or new trial and we cannot reverse with direction to enter judgment against him.
The trial court’s instructions to the jury were in accord with Smith. The requested instructions of Rock Island that were not given _by the trial court and concerning which Rock Island has argued on appeal are all founded upon the rule rejected by Smith. Accordingly, the trial court did not err in its instructions.
Rock Island’s motion for a new trial neither raised issues that have not been dealt with nor involved action by the trial court shown to have been prejudicial.
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Abbott, J.:
This is an appeal from a judgment of a district court denying plaintiffs’ prayer that title to real estate be quieted in them. The court quieted title in the plaintiff-appellant, Howard Renensland, and in the defendants-appellees, who are Howard Renensland’s five brothers, three living sisters, and the three children of a deceased sister. The court also decreed partition.
All of the parties to this appeal, other than plaintiff’s wife, Shirley J. Renensland, are the heirs of George Renensland, deceased. George Renensland died in 1942.
The real estate in question consists of approximately 160 acres and lies to the east of the Missouri Pacific Railroad and abuts the west bank of the Missouri River. Prior to 1954, the quarter section had on occasion been part of the river channel and was overgrown with timber. The property was subject to regular flooding. Plaintiffs reclaimed the land by removing timber, building levees, constructing ditches and flood gates, and leveling the land to provide drainage. None of the witnesses disputed the fact plaintiffs expended a considerable sum of money to improve the land. Plaintiffs leased the farm land to a third party on a sharecrop basis. Rent was never paid to any of the other heirs, nor was an accounting ever requested or given.
In 1972, the heirs (excluding plaintiff) decided to sell the family land and they advertised it for sale. Forty acres not involved in this case were sold, and the proceeds were divided equally. Plaintiffs then filed this quiet-title action naming other parties and the appellees, Addison A. Renensland, Gilbert G. Renensland, Wesley Renensland, and Elaine Nichols, as party defendants. The four named defendants along with Clifford Renensland, Russell Renensland, Bertha Spain Whicker, and Winifred Alfrey filed an answer and “cross-petition” setting out their claim of ownership and requesting that title be quieted in them and that the land be partitioned. The three children of Mabel Ritchie, individually, filed voluntary entries of appearance. The plaintiffs did not file a reply to the cross-petition. A pretrial conference was conducted. However, no record was made and no pretrial order was filed. When the plaintiffs’ attorney made his opening statement, he announced an alternate request for the value of improvements made by plaintiffs. During the course of the trial to the court, plaintiffs presented evidence without objection on the issue of improvements. No request was made at any stage of the proceedings to amend the pleadings.
The trial court found that plaintiffs’ evidence failed to establish they had been in open possession of the real property in question within the meaning of K.S.A. 60-503 and that plaintiffs had not established their possession to be under a belief of ownership. The court then found that any claim plaintiffs may have had for the value of the improvements made to said real property was not properly before the court in this action and denied plaintiffs’ prayer to quiet title in them. Title was then quieted in the names of the heirs of George Renensland, and a decree of partition was entered.
Plaintiffs then filed a motion requesting the trial court to amend its findings, to make additional findings, and, in the alternative, to clarify the judgment. The motion was denied and this appeal followed.
Plaintiffs contend the trial court erred in not making findings of controlling facts and controlling principles of law. Basically, plaintiffs’ objection is twofold: That one cannot ascertain the basis for the court’s conclusion that the plaintiffs’ claim for the value of improvements was not before the court, and that the court disregarded evidence of the value of improvements and failed to make findings concerning the value of improvements made by plaintiffs.
The trial judge is required by statute to state either orally or in writing the controlling facts (K.S.A. 60-252[a]) and the controlling principles of law (Rule No. 165, K.S.A. 60-2702a).
The findings of fact and conclusions of law must be adequate to permit meaningful appellate review and should be sufficient to resolve the issues and advise all concerned of the reasons for the decision and the standards applied by the trial court. (Mies v. Mies, 217 Kan. 269, 535 P.2d 432; Read v. Estate of Davis, 213 Kan. 128, 515 P.2d 1096; Andrews v. Board of County Commissioners, 207 Kan. 548, 555, 485 P.2d 1260.)
The findings and conclusions could have been expanded by the trial court in this case and the decision thus strengthened. However, a general finding in favor of defendants and against the plaintiffs raises a presumption that the trial court found all facts necessary to sustain the decision. (Adventure Line Mfg. Co. Inc. v. Western Casualty & Surety Co., 214 Kan. 820, 822, 522 P.2d 359.) In view of our disposition of this case, the trial court’s findings of fact and conclusions of law are sufficient to resolve the issues and permit meaningful review.
Appellants argue that some of the findings are contrary to the evidence. Some evidence is conflicting, but it is not the function of the appellate court to weigh conflicting evidence or determine the credibility of witnesses. That function properly belongs to the trier of facts. (Schreiner v. Schreiner, 217 Kan. 337, 340, 537 P.2d 165.) There is sufficient evidence in the record to support the trial court’s findings with the exception of the trial court’s ruling that the question of the value of improvements was not properly before the court. That issue will be dealt with hereinafter.
Plaintiffs argue that the trial court erred in finding that the plaintiffs were not in open possession under a belief of ownership within the meaning of K.S.A. 60-503.
Whether or not a possessor acquires title by adverse possession is a question of fact, and the resolution of such a factual question is binding on appeal if based upon substantial competent evidence. (Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P.2d 1004; Ames v. Brooks, 179 Kan. 590, 297 P.2d 195.)
Plaintiffs rely on four cases to support their position that the requirements of K.S.A. 60-503 were satisfied. A review of the cases discloses they are of no help to plaintiffs.
In Morehead v. Parks, 213 Kan. 806, 518 P.2d 544, the defendant asserted adverse possession as a defense to a quiet-title suit. Defendant received title by a quitclaim deed from an aunt who had been in possession for thirty years. The deed erroneously described the real property. The defendant farmed the land, paid the taxes, participated in soil conservation programs, and was in sole possession of the property. The trial court determined defendant had been in open possession for the required fifteen-year period. The only similarity to the case at hand that favors plaintiffs is the fact the adverse possessor raised crops and participated in soil conservation programs. Those two factors were not determinative factors in the court’s decision. There was no fiduciary relationship in Morehead, supra, as we have in the case at bar in which the quiet-title action was instituted by a cotenant. Park was in open possession under belief of ownership for over fifteen years and had paid the taxes on the property.
Plaintiffs cite Armstrong v. Cities Service Gas Co., 210 Kan. 298,502 P.2d 672, for authority that constructive notice of what is imparted by public records is no longer a defense to adverse possession. A divided court in Armstrong, supra, so held and the court has since affirmed its holding. (Moore v. Bayless, 215 Kan. 297, 524 P.2d 721; Wallace v. Magie, 214 Kan. 481, 522 P.2d 989; Morehead, supra.) However, Armstrong dealt largely with the “belief of ownership” concept that the legislature had added to the adverse possession statute. A portion of the case is no comfort to plaintiffs. At page 309, the court stated, “[T]he legislature had in mind an element of good faith, that is, the belief must be in good faith and reasonable under all the facts and circumstances.” The court stated further at pp. 311-312, “The question of what constitutes good faith in one claiming to hold property under a belief of ownership is a question for the trier of the fact.” The trial court in this case specifically found that plaintiffs had failed to establish they had been in possession of the real property under a belief of ownership. In Armstrong, a search of the records would have revealed the defect in title, and the Supreme Court held it was not required as a condition precedent to good faith that one examine the public records. The case does not involve actual knowledge of what the public records would reveal as does the case at bar. Here plaintiffs had actual knowledge of inheriting a share of the property and participated with three of Howard’s brothers in buying other heirs’ interest in the property. Howard Renensland accepted a quitclaim deed to that interest as a cotenant with his three brothers.
Plaintiffs then cite Kalivoda v. Pugh, 170 Kan. 505, 226 P.2d 857, and Stark v. Stanhope, 206 Kan. 428, 480 P.2d 72, as authority that the payment of taxes is not a condition precedent to acquisition of title by adverse possession. In Kalivoda, the plaintiff had acquired title by warranty deed from the defendants. A portion of the land conveyed had been platted into lots and blocks in 1891, and through a mistake in the county treasurer’s office defendants continued to pay taxes on the lots. Plaintiff brought a quiet-title action claiming title under the warranty deed and by adverse possession. The plaintiff offered to do equity and reimburse defendants for the taxes defendants paid. Defendants claimed title, apparently relying on the payment of the real estate taxes. The court held defendants conveyed their title by warranty deed and the treasurer’s error could not destroy the warranty deed. Since plaintiff did not complain about reimbursing defendants for the taxes, the court did not consider whether the payments were voluntarily made with full knowledge on their part and hence a voluntary contribution.
In Stark, supra, one of the defendants alleged the adverse possessor had not paid taxes on the disputed real estate. The court pointed out the defendant had not offered proof that defendant had paid the taxes. Indeed, there was no showing the disputed property had ever been assessed for taxation. It was noted there is no statutory requirement that the payment of taxes is an element of adverse possession.
Although the payment of real estate taxes is not a prerequisite to acquiring title by adverse possession, it is proper to consider the issue of payment of taxes as a factor in determining whether a claim of ownership exists or a claim is knowingly adverse.
Our adverse possession statute (K.S.A. 60-503) provides:
“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.”
Plaintiffs, if they are to recover, must do so on the theory they had open, exclusive and continuous possession of the land in question under either (1) a claim knowingly adverse, or (2) a belief of ownership for a period of fifteen years.
The trial court held plaintiffs failed to establish possession under a belief of ownership. This finding was one of fact (Armstrong, supra), and the evidence in the record supports that finding. The record discloses the real estate taxes were paid by Addison Renensland largely from funds belonging to all of the parties to this suit; easements had been granted by record owners other than plaintiffs; negotiations were carried on with plaintiffs’ knowledge and without objection by plaintiffs concerning the land by members of the family other than plaintiffs; plaintiffs had actual knowledge of the fact that brothers and sisters of Howard individually inherited a share equal to Howard’s; plaintiffs were aware that four brothers contributed to a settlement with other relatives and took a quitclaim deed conveying the interests of the adverse relatives to the four brothers as cotenants; testimony was offered that it was intended that all of the brothers and sisters share in the property conveyed by quitclaim deed; Addison paid other bills on the land in question from funds belonging to all the parties; the two brothers, Addison and Wesley, testified plaintiffs had never claimed ownership of the property; and Howard Renensland testified on one occasion that he never told any of his brothers and sisters that the real property was his and they had no claim to it. Where adverse possession is predicated “under a claim knowingly adverse,” hostility is an essential element. A hostile holding involves an intent normally evidenced by overt acts or statements. (Stark, supra, p. 433.)
When property passes by inheritance to more than one person, the heirs take the property as tenants in common unless a contrary intent is shown (K.S.A. 58-501). Howard Renensland thus became a tenant in common with the other heirs of his father.
A cotenant who has actual knowledge of the existence of other cotenants cannot hold title adversely to the other cotenants until the other cotenants have knowledge or notice of the fact of the adverse holding. (Farmers State Bank v. Lanning, 162 Kan. 95, 174 P.2d 69; Schwab v. Wyss, 136 Kan. 54, 12 P.2d 719. See, also, 82 A.L.R.2d 1 [1962].)
The trial court specifically found Howard Renensland did not advise the defendants he considered the land to be his property. Testimony from Addison and Wesley Renensland supports that finding as does a portion of Howard Renensland’s testimony. Ample and substantial competent evidence exists to support that finding of fact.
No findings of fact were made to support or explain the trial court’s conclusion of law “that any claim plaintiffs may have for the value of the improvements made to said real property is not properly before the court in this action.”
Both a quiet-title action and a partition action are equitable in nature. The prayer of the petitions to quiet title filed by plaintiffs and defendants requested equitable relief in “such other and further relief” as the court deemed just and proper. Defendants’ partition prayer in part requests the real estate be sold and “the proceeds be divided according to the respective rights of the parties . . . and [for] all proper relief in the premises.”
The partition statute gives the trial judge “full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties.” (K.S.A. 60-1003 [d].) The trial judge has the same authority under the statutes as was exercised by chancery courts under equity practice. (Knutson v. Clark, 169 Kan. 205, 217 P.2d 1067; Johnson v. Burns, 160 Kan. 104, 159 P.2d 812.) The Supreme Court held in Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763, that “[a]s a general rule, a court in decreeing partition has power to adjust the equitable rights of all the parties interested in the estate, so far as they relate to and grow out of the relation of the parties to the common property.” (Syl. 1.)
The Supreme Court has extended this proposition and stated that the trial court in an equitable action may render the equitable relief justified by the evidence even though that relief differs from the relief prayed for. (Benton v. Benton, 215 Kan. 875, 879, 528 P.2d 1244; Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691.)
An integral part of a partition action is resolving the question of the value of improvements placed on the realty in good faith by the occupant and offsetting the value of the improvements by the rents and profits received by the occupant. Good practice dictates that the request for reimbursements of the value of improvements and offsets should have been pled and covered by a properly drawn pretrial order. It may well be that the value of the improvements will be offset in part, if not entirely, by rent and profits from the land. Indeed, the record would indicate the plaintiffs had no source of income available to them from which to make the improvements other than from crops grown thereon. Prior decisions have allowed a plaintiff in an action litigating ownership of land to make oral application for the value of improvements after or at substantially the same time as the rendition of judgment against him. (Lemert v. Barnes, 18 Kan. 9; Carlyle v. Pee, 128 Kan. 115, 275 Pac. 1091.) Through the years a practice developed allowing trial courts to try the title questions first and reserve the question of value of improvements and accounting as to rents and profits for a subsequent hearing so long as the issue is finally determined before judgment is entered. (Carlyle, supra.)
Orderly procedure requires the claim for improvements and the offset for rents and profits be presented and heard before the decree for partition is entered. The trial court erred in not determining the value of improvements made on the land in good faith by plaintiffs and offsetting the same by rents and profits received by plaintiffs. Justice and equity require a further consideration of the value of the improvements made on the land by plaintiffs in good faith and an accounting and offset to the cotenants of the rents and profits received by plaintiffs.
Affirmed in part, reversed in part, and remanded with directions that the trial court determine the value of any improvements made by plaintiffs in good faith, being mindful that the value of improvements may be more or less than their cost, and offsetting the value of the improvements by the rents and profits received by plaintiffs. | [
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Foth, J.:
Plaintiff Rodney Bradshaw brought this action for slander and outrage, with both counts arising out of a single verbal encounter with the defendant, Daniel L. Swagerty. On the basis of depositions and answers to interrogatories the trial court rendered summary judgment for the defendant, and plaintiff has appealed. There is no claim that discovery was not complete. The question, therefore, is whether, taking plaintiff’s evidence in the light most favorable to him, he had a submissible case under either of his theories.
The defendant is a lawyer who, in March, 1975, was retained by the Southwest Grain company to collect accounts allegedly owed by plaintiff and his brother Paul. Defendant was also Hodgeman county attorney. On March 19 plaintiff appeared at defendant’s office in response to a collection letter inviting a discussion of the accounts. Plaintiff asserted the defense of infancy, and threatened countersuit if sued. He also helped himself to candy from a dish in defendant’s office, much to defendant’s irritation. The discussion grew heated, and descended to the name-calling which forms the basis of plaintiff’s suit.
At some point during the discussion plaintiff’s brother Paul appeared. Although Paul apparently took no active part in the encounter, it was to him that the allegedly slanderous words were first published. According to plaintiff’s deposition, in the course of the argument defendant at one time or another called him a “nigger” and a “bastard.” Plaintiff is a young black man, of concededly legitimate birth. (The term “knot-headed boy” was also pleaded, but its use does not appear in the depositions.)
Defendant admitted using the term “bastard,” but denied that he “directly” called plaintiff a “nigger.” In any event, when the two brothers refused to leave defendant summoned a deputy sheriff, who escorted them out. The deputy returned to defendant’s office and asked what had happened. Defendant’s recounting of the events resulted in the second publication of the alleged slander.
Do the terms used (assuming all of them were) constitute actionable slander? We note first that plaintiff pleaded only that he had suffered “humiliation, embarrassment and loss of reputation.” He testified that “the incident in the defendant’s office had not affected his employment, but had affected his relations with others in the community.” Thus he neither pleaded nor offered to prove special damages. Barring special damages plaintiff has no cause of action for slander unless the words spoken are slanderous per se. Bennett v. Seimiller, 175 Kan. 764, 267 P. 2d 926.
At common law slander per se was limited to four categories: imputation of a crime; imputation of a loathsome disease; words reflecting on plaintiffs fitness for his office, profession or trade; and the imputation of unchastity in a woman. Prosser, Law of Torts (4th ed.), pp. 754-760; 50 Am. Jur. 2d, Libel and Slander, sec. 10; 53 C. J. S., Libel and Slander, sec. 14. And cf., Restatement (Second), Torts, sec. 569 (Tent. Draft No. 11).
No single Kansas case has adopted the common law categories in toto, but each of the four has been recognized: Sweaney v. United Loan & Finance Co., 205 Kan. 66, 468 P. 2d 124 (imputation of a felony); Bennett v. Seimiller, supra (criminal offense, loathsome disease, prejudice to trade or business); Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P. 2d 1063 (unfitness for employment); Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509 (unchastity).
Plaintiff offers no authority from this jurisdiction or any other holding the epithets in question here to be slanderous per se. The annotation appearing at 53 A. L. R. 548 indicates that an imputation of bastardy or illegitimacy is generally held not slanderous per se, although it might be actionable where it affected property rights acquired through inheritance. As to the closely allied epithet “son of a bitch,” Connecticut’s highest court, after finding that a charge of police brutality was not actionable, went on to say:
“Other words uttered in the presence of those assembled, ‘clown,’ ‘big fat ape,’ ‘smart aleck,’ ‘big fat oaf,’ and ‘stupid son of a bitch,’ were here merely gross and vulgar expressions of abuse. The general rule has long been that such words of general abuse, regardless of how rude, uncouth or vexatious are not slanderous per se and cannot support recovery in a slander action in the absence of a showing of special damages. Notes, 13 A. L. R. 3d 1286, 1290, 37 A. L. R. 883, 885.” (Moriarty v. Lippe, 162 Conn. 371, 385, 294 A. 2d 326 [1972].)
See, also, Sampson v. Rumsey, 1 Kan. App. 2d 191, 563 P.2d 506.
The term “nigger” is one of insult, abuse and belittlement harking back to slavery days. Its use is resented, and rightly so. It nevertheless is not within any category recognized as slanderous per se. “Knot-headed boy,” if that expression was used, can only be construed to be the same type of general verbal abuse.
We hold that none of the alleged terms was slanderous per se. Since there was no plea or evidence of special damages, the trial court correctly entered its summary judgment for defendant on this count.
The remaining issue is whether the facts may be construed to make out the tort of “outrage.” Kansas has adopted the Restatement rule:
“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional, distress, and if bodily harm to the other results from it, for such bodily harm.” (Restatement [Second], Torts, sec. 46, p. 71.)
See, Vespa v. Safety Fed. Savings & Loan Ass'n, 219 Kan. 578, 549 P. 2d 878; Dotson v. McLaughlin, 216 Kan. 201, 531 P. 2d 1; Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P. 2d 104.
In Dotson the court noted that liability attaches only to extreme and outrageous conduct, and quoted with approval from the Restatement notes:
“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.” (216 Kan. at 210.)
It is for the court in the first instance to determine whether the defendant’s conduct was so outrageous as to permit recovery. Dotson v. McLaughlin, supra. It appears to us that the trial court was fully justified in regarding the epithets complained of here as “mere insults” of the kind which must be tolerated in our rough-edged society. Summary judgment for the defendant was therefore proper on the “outrage” count as well as the slander count.
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Knudson, J.:
Mark Nistler appeals the Workers Compensation Board’s (Board) determination that he is not entitled to permanent partial disability benefits in excess of functional impairment. The issue presented on appeal is whether the Board erred in its determination that Nistler’s post-injury wages are equal to or more than 90% of his average gross weekly wage earned at the time of the accident. We reverse the Board’s decision and remand for a re-determination of Nistler’s wage loss and permanent partial general disability benefits.
The Underlying Circumstances
The basic facts supporting the award are not in material dispute, including the fact Nistler is making substantially less than he did before his injury. The parties stipulated Nistler’s injury, which occurred on November 9, 2004, arose out of and in the course of his employment with Footlocker Retail, Inc. (Footlocker), and coverage was afforded under the Workers Compensation Act (Act), K.S.A. 44-501 et seq.
Prior to the injury, Nistler was employed by Footlocker as a Material Handler II and received an hourly wage of $13.19 based on a 40-hour workweek. He was paid overtime at one and one-half times his hourly rate for work in excess of 40 hours a week. The parties stipulated Nistler’s preinjury average weekly wage was $652.47. This stipulation means Nistler would have averaged more than 6 hours a week in overtime wages. Nistler testified that after his injury his fellow Material Handler II’s continued to work generally 50 hours a week with an increase in base wages to $14.49 per hour. Unfortunately for Nistler, based on physical limitations imposed by his physician, he could not continue as a Material Handler II and was eventually given an accommodated position as a Material Handler I.
Footlocker’s records reveal Nistler’s actual wages were dramatically reduced after he was able to return to work. For the first 32 weeks, relegated to light duty, he averaged 32.55 hours per week and $444.17 in weekly wages. In late spring of 2005, Nistler was reclassified from Material Handler II to Material Handler I to ac commodate his permanent physical limitations that resulted from the injuiy. His reclassification resulted in less physical wear and tear but also moved him into a job with significantly fewer hours of work than would have been available as a Material Handler II. Parenthetically, there was no evidence Nistler's loss of hours and wages due to the reassignment from Material Handler II to Material Handler I was due to any business downturn or other intervening economic circumstances. In other words, Nistler s actual wage loss appears directly related to the accident and the resulting physical restrictions imposed by his doctor. We note the Board in its final order acknowledged the expert testimony that Nistler could no longer perform 17 of the 23 work tasks for a Material Handler II and that he retained the ability to earn at least $7 per hour.
From June 28, 2005, to June 17, 2006, Nistler’s average weekly wages were $468 and he averaged 32.48 hours per week. From June 18, 2006, until February 10, 2007 (1 month after the regular hearing), he averaged 33.20 hours and $481.85 per week.
In summary, the wage records reveal that from the date of the injury until shortly after the regular hearing before the administrative law judge (ALJ), Nisder worked 116.4 weeks, with weekly averages of 32.71 work hours and $465.41 in wages. Again, this compares to his stipulated average weekly wage immediately before the injury of $652.47.
Jamie Hill, employee relations manager for Foodocker, testified that prior to the injury Nisder was occasionally required to work more than 40 hours per week. She also testified that after his injury, Nistler has, on occasion, been required to work more than 40 hours per week. However, on cross-examination, she admitted that for the 16 weeks ending April 8, 2006, all of Nisder s workweeks consisted of less than 40 hours of work; only in a 2-week pay period ending December 17, 2005, did Nisder’s workweek average 40 hours a week. According to Hill, Foodocker considers an employee to be full time if the employee averages more than 32 to 34 hours per week. She also testified that Foodocker expects employees to work more than 40 hours per week if there is sufficient company need.
After considering the evidence presented, the ALJ awarded work disability, reasoning:
“The Respondent argues that the Claimant should be considered a full time employee, and that his wages should be calculated based upon the 40 hour work week the respondent is not willing to provide to dre Claimant. Citing K.S.A. 44-511 and 44-510(e), the essence of the Respondent’s argument is that as a preinjuiy average weeldy wage is usually based upon a 40 hour workweek where the employee is considered to be a full time employee, the post-injury wages should be calculated in the same manner.
“The testimony of the Claimant and Ms. Hill demonstrate the Claimant is still expected to work 40 hours a week if those hours are required.
“The Court finds that to accept the argument of the Respondent would defeat one of the primary purposes of the Workers Compensation Act. Tt can be very properly stated that the purpose of the [workers] compensation law is not to pay the workman for the injury, but to compensate him in away for his loss of earning power.’ Blythe v. State Highway Comm., 148 Kan. 598, 601[, 83 P.2d 678] (1938).”
The ALJ determined Nistler had sustained a 17.6% wage loss and a 80.8% task loss, resulting in a 49.2% work disability and an award of $88,818.30.
The Board’s approach was strikingly dissimilar from that of the ALJ. Applying K.S.A. 2005 Supp. 44-511(a)(4) and (5), the Board found that because Footlocker expected Nistler to be available to work 40 hours or more, he met the statutory definition of a full-time employee. In the alternative, the Board found Nistler was a full-time employee because the evidence showed he was employed in a trade or employment where employees are considered full-time by custom of such employment regardless of the hours worked per day or per week. The Board held that K.S.A. 2005 Supp. 44-511(b)(4) was applicable, imputed a 40-hour workweek, and determined claimant’s post-injuiy average weeldy wage was 90 percent or more of his preinjury average weekly wage. Consequently, the Board concluded Nistler was not entitled to work disability benefits and reduced his permanent partial disability award to $18,052.50.
Issues on Appeal
The fundamental issue before us is whether the Board erred in its determination of Nistler’s post-injury average weeldy wage. This issue requires interpretation of K.S.A. 44-510e; K.S.A. 2005 Supp. 44-511(a)(4) and (5); and K.S.A. 2005 Supp. 44-511(b)(4). Nistler contends the Board incorrectly applied 44-511(b)(4) in determining his post-injury wage. Alternatively, Nistler contends there was insufficient evidence to support the Board’s finding he was a full-time employee in the accommodated position he was given after the injury.
Standard of Review
Undisputed evidence
A critical issue is whether K.S.A. 2005 Supp. 44-511(b)(4) should be applied to determine Nistler’s post-injury average weekly wage. The underlying facts from which the Board reached its determination are not disputed. Our standard of review as to this issue is de novo. See Martinez v. Excel Corp., 32 Kan. App. 2d 139, 142, 79 P.3d 230 (2003).
Statutory Interpretation
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). “When a statute is plain and unambiguous, we must give effect to the legislature’s intention as expressed, rather than determine what the law should or should not be. A statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute.” Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007).
When issues of interpretation do arise, however, the court is presented with a question of law over which it has unlimited review. Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666 (2001). Nonetheless, under the doctrine of operative construction, an administrative agency’s legal interpretation of the statutes that agency is authorized to enforce is generally entitled to great judicial deference. Denning v. KPERS, 285 Kan. 1045, 1048, 180 P.3d 564 (2008). However, the Kansas Supremé Court has tempered the doctrine of operative construction if the' issue of law is based on undisputed facts. Under such a circumstance, the Supreme Court has held the agency’s interpretation to be persuasive but not binding on the reviewing court. Graham v. Dokter Trucking Group, 284 Kan. 547, Syl. ¶ 2, 161 P.3d 695 (2007).
Sufficiency of Evidence
An appellate court’s review of questions of fact in a workers compensation case is limited to whether, when reviewing the record as a whole, the Board’s findings of fact are supported by substantial evidence, which is a question of law. Casco, 283 Kan. at 514.
Discussion of Issue
Before addressing the substantive issue that has been raised, we note Nistler’s argument that the Board failed to liberally construe the Workers Compensation Act in determining his post-injury wage. We conclude his argument is based on an erroneous premise. The Act is to be “liberally construed for the purpose of bring employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.” (Emphasis added). K.S.A. 2005 Supp. 44-501(g). In this appeal, coverage under the Act has been afforded to Nistler and Footlocker. We know of no statute or canon that would require liberal interpretation of statutory provisions within the Act once coverage has attached. We conclude the Board did as the law provides, acting fairly and impartially toward both parties in interpreting the act and reaching its decision. The issue is whether tire Board’s findings and conclusions are supported by the record and specific provisions of the Act.
K.S.A. 44-510e(a) reads in relevant part:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury. ... An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.” (Emphasis added).
The above-excerpts from 44-510e(a) make it clear that permanent partial disability has two components: functional disability and wage loss. In this appeal, Nistler s functional disability equal to an 82.8% task loss is not in issue. Likewise, his average weekly wage of $652.42 on the date of the injury is not disputed. What is in dispute is how to calculate Nistler s average weekly wage after the injury.
Nistler emphasizes the phrase “engaging in any work for wages” in 44-510e(a). He contends that phrase implies actual wages being currently earned is the proper measure for determining his post-injury average weekly earnings. He further contends whether he returned to his accommodated work part-time or full-time is not relevant to the issue of determining his post-injury wage. Conversely, Footlocker adopts the reasoning of the Board, applying K.S.A. 2005 Supp. 44-511(a)(5) and (b)(4) to calculate Nistler’s post-injury wage. In tangentially addressing Nistler s argument, the Board concluded:
“As claimant was a full-time employee, even though he may have frequently worked less than a 40-hour week the average weekly wage is calculated using tire base hourly wage times 40 and then adding the average overtime. This was the manner dre parties apparendy utilized to determine claimant’s pre-injury average gross weekly wage and the statute requires calculation of the average gross weekly wage in the foregoing manner without distinction between pre-injury or post-injury average gross weekly wage. Although the result may appear harsh nonetheless that is what the statute requires in order to compare ‘apples to apples.’ ” (Emphasis added.)
K.S.A. 2005 Supp. 44-511(a)(4) and (a)(5) define full- and part-time hourly employment in the following terms:
“(4) The term ‘part-time hourly employee’ shall mean and include any employee paid on an hourly basis: (A) Who by custom and practice or under the verbal or written employment contract in force at the time of the accident is employed to work, agrees to work, or is expected to work on a regular basis less than 40 hours per week; and (B) who at the time of the accident is working in any type of trade or employment where there is no customary number of hours constituting an ordinaiy day in the character of the work involved or performed by the employee.
“(5) The term ‘full-time hourly employee’ shall mean and include only those employees paid on an hourly basis who are not part-time hourly employees, as defined in this section, and who are employed in any trade or employment where the customary number of hours constituting an ordinary working week is 40 or more hours per week, or those employees who are employed in any trade or employment where such employees are considered to be full-time employees by tire industrial customs of such trade or employment, regardless of the number of hours worked per day or per week.”
K.S.A. 2005 Supp. 44-511(b) reads:
“The employee’s average gross weekly wage for the purpose of computing any compensation benefits provided by the workers compensation act shall be determined as follows:
“(4) If at the time of the accident the employee’s money rate was fixed by the hour, the employee’s average gross weekly wage shall be determined as follows: (A)- If the employee was a part-time hourly employee, as defined in this section, the average gross weekly wage shall be determined in the same manner as provided in paragraph (5) of this subsection; (B) if the employee is a full-time hourly employee, as defined in this section, the average gross weekly wage shall be determined as follows: (i) A daily money rate shall first be found by multiplying the straight-time hourly rate applicable at the time of the accident, by the customary number of working hours constituting an ordinary day in the character of work involved; (ii) the straight-time weekly rate shall be found by multiplying the daily money rate by the number of days and half days that the employee usually and regularly worked, or was expected to work, but 40 hours shall constitute the minimum hours for computing the wage of a full-time hourly employee, unless the employer’s regular and customary workweek is less than 40 hours, in which case, the number of hours in such employer’s regular and .customary workweek shall govern; (iii) the average weekly overtime of the employee shall be the total amount earned by the employee in excess of the amount of straight-time money earned by the employee during the 26 calendar weeks immediately preceding the date of the accident, or during the actual number of such weeks the employee was employed if less than 26 weeks, divided by the number of such weeks; and (iv) the average gross weekly wage of a full-time hourly employee shall be the total of the straight-time weekly rate, the average weekly overtime and the weekly average of any additional compensation.” (Emphasis added.)
As we have previously indicated, the Board applied the provisions of K.S.A. 2005 Supp. 44-511(a)(4) and (5) and K.S.A. 2005 Supp. 44-511(b)(4), determined Nistler was a full-time employee, and then imputed a base wage based on 40 hours per week under the belief an “apples to apples” analysis is mandated by the statute.
We have serious problems with the Board’s decision. K.S.A. 2005 Supp. 44-511(a)(4) and (5) explicitly apply to employee status at the time of the accident, not to part-time or full-time status after the accident. It is contrary to a plain reading of these provisions to conclude the legislature meant for them to be considered in determining an entirely different issue — post-injury wage. Second, K.S.A. 2005 Supp. 44-511(b) explicitly provides for computation of the average weekly wage at the time of the accident. Once again, from a plain reading of this provision, it cannot be read as an expression of legislative intent drat this statute applies in determining the post-injury average weeldy wage. In both instances, if that would have been the intent of the legislature, tire statutory language would not have been explicitly limited to preinjury wages. We hold these provisions of K.S.A. 2005 Supp. 44-511 to be unambiguous and not applicable to calculation of the post-injury wage.
There is an additional reason we do not believe the Board’s determination of Nisder’s post-injury wage was correct. In reaching its decision, the Board seemingly did not consider the explicit and unambiguous provision within K.S.A. 44-510e that pertains to the issue of post-injury wage. When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008).
We believe the phrase within K.S.A. 44-510e(a) “engaging in any work for wages equal to 90% or more of the average gross weeldy wage that tire employee was earning at the time of the injury,” is an unambiguous statement of legislative policy that a worker’s post-injury wage is to be based on actual hours worked and not determined by imputation of a hypothetical 40-hour work week. Read together with K.S.A. 2005 Supp. 44-511(b)(4), which is explicitiy limited to the manner in which a worker’s preinjury average gross weekly wage is to be determined, it is apparent the legislature did not intend imputation of a wholly fictional 40 hour- work week to determine a worker’s post-injury wage. We hold 44-511(b)(4) is plain and unambiguous as to its reach, and we will not read the statute to add something not readily found in it. See Casco, 283 Kan. at 521.
As a separate issue, Nistler challenges the sufficiency of the evidence to support the Board’s finding he was a full-time employee within the meaning of K.S.A. 2005 Supp. 44-511(b)(5). The Board in deciding Nistler was a full-time employee relied on the testimonies of Nistler and Hill, the employee relations manager for Footlocker. Notwithstanding our conclusion that it is irrelevant whether Nistler was a part-time or full-time employee in determining his post-injury wage, we will briefly address this issue.
Hill testified, “[W]e tell all employees here, hourly employees here, that they work, on average, 40 hours a week. We work as many hours as business needs dictate. Some weeks it could be less than 40, some weeks it could be substantially more than 40, it just depends on the time of year and the work volume that we have, because we tend to peak when our retail stores, just before our retail stores peak, so we have a lot of seasonal variation in the work we do.”
Nistler acknowledged in his testimony that he was expected to work as long as business needs dictated and that both before and after his injury he worked some weeks more than 40 hours and some weeks less than 40 hours. The Board concluded, “[Nistler] was expected regularly to work 40 or more hours per week, depending, of course, upon whether respondent had sufficient work.”
Based on the testimony of Nistler and Hill, the Board concluded:
“Although claimant agreed to work on a regular basis for some weeks less than and some weeks more than 40 hours per week that does not preclude a finding that he was a full-time hourly employee. Claimant was expected to work or be available to work 40 hours a week. In addition, a determination that claimant is a full-time hourly employee under the second alternative definition provided by K.S.A. 2005 Supp. 44-511(a)(5) may be made without finding the claimant was outside both definitions of a part-time hourly employee provided by K.S.A. 2005 Supp. 44-511(a)(4). It simply must be established that claimant was employed in a trade or employment where employees are considered full-time by custom of such employment regardless of the number of hours worked per day or per week.”
We do not believe the evidence supports the Board’s use of the second alternative definition in K.S.A. 2005 Supp. 44-511(a)(5). There was no evidence of industrial customs of the trade or employment, which is required before that alternative definition would be applicable. However, based on Hill’s and Nistler’s testimonies, we do conclude there is substantial evidence Nistler was employed to work and agreed to work on a regular basis 40 or more hours per week. Accordingly, the Board did not err in concluding Nistler is a full-time hourly employee.
Conclusion
The Board erred in applying K.S.A. 2005 Supp. 44-511(a)(4) and (5), together with K.S.A. 2005 Supp. 44-511(b)(4), to determine Nistler’s post-injury average weekly wage. Under K.S.A. 44-510e Nistler’s actual wages should be used to determine his post-injury average weekly wage. Although we generally agree with the ALJ’s general approach to determine Nistler’s post-injury wage, a remand is necessary because the initial award does not provide sufficient facts to support the ALJ’s finding of a 17.6% wage loss.
We do not presume to give further direction to the Board as to what formula or guidelines should be followed to determine Nistler’s actual post-injury wage. The appropriate method should be left to the Board, whose members have the expertise and experience to formulate a sound approach. The Board’s order is reversed, and the cause is remanded for further proceedings to determine Nistler’s post-injury average weekly wage, his resulting wage loss, and permanent partial disability benefits.
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Marquardt, J.:
Terry Collins, a county commissioner in Mitchell County, appeals the district court’s grant of summary judgment to the recall committee and sponsors (the Committee), and the dismissal of his case upon remand from this court. We affirm.
The underlying facts in this case are discussed in Collins v. Ludwig, No. 94,689 unpublished opinion filed March 31, 2006 (Collins I), and will not be recited here.
While Collins I was pending before this court, an election to recall Collins from public office was held, and the voters voted in favor of recall. The district court entered a stay on canvassing the votes pending a decision on Collins’ appeal. On appeal, this court determined that the district court had incorrectly interpreted K.S.A. 2005 Supp. 25-4322(d). The case was remanded to the district court for a hearing on the merits of Collins’ petition. Collins I, slip op. at 6-8.
Prior to the hearing on remand, the Committee moved for summary judgment. The Committee sought to dismiss the recall petition, claiming that the Kansas Recall of Elected Officials Act (Recall Act), K.S.A. 25-4301 et seq., makes no provision for monetary damages, and Collins’ only recourse would be to request the denial of the recall petition. Ron Ludwig was dismissed as a party defendant, and Jess W. Hoeme, Ludwig’s successor as county attorney, was substituted as a party defendant. Hoeme and Chris Treaster, the Mitchell County election officer, moved to dismiss the action for similar reasons.
In response, Collins argued that our courts have implicitly held that damages are available under the Recall Act and the mandamus statutes, K.S.A. 60-801 et seq.
Following a hearing, the district court held that seven of the eight grounds listed in the recall petition were sufficient for recall because they alleged violations of the Kansas Open Meetings Act, K.S.A. 75-4317 et seq., and misconduct in office. However, one ground, which alleged that Collins used profanity at a county commission meeting, was not a sufficient ground for recall. The district court determined that because the recall petition that had been posted at the polls sought removal of Collins for all of the grounds stated, it meant that all of the grounds were required for the recall to be valid. Accordingly, because one ground was insufficient, the recall election was invalid. The district court issued a permanent injunction prohibiting the canvassing of the ballots.
Notwithstanding its finding that the recall election was invalid, the district court dismissed Collins’ case with prejudice because (1) it lacked jurisdiction to award damages against the Committee, as the Committee is not authorized by statute to sue or be sued; (2) Hoeme and Treaster are immune from monetary liability under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.; and (3) the case is not a mandamus action and there is no statutory provision authorizing the award of damages. Collins timely appeals.
Collins argues that the district court erred in dismissing his case without awarding him attorney fees, costs, or damages. At the hearing on the summary judgment motion, Collins’ counsel was asked what monetary damages Collins was claiming. Counsel stated that Collins had been slandered “and by purposes of putting into a Recall Petition in writing has been liable.” She also stated that if the district court granted summary judgment to the Committee, Collins would claim abuse of process. On appeal, Collins claims that discovery was not complete; therefore, summary judgment should not have been granted.
Collins’ amended petition has no facts to support a damage claim. The only place in the amended petition where “monetary damages” is mentioned is in the second from the last line of the prayer. Collins does not specify who caused him damage, what type of damages he incurred, or the amount of damages he is seeking.
“ ‘ “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” ’ [Citation omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
Ordinarily, summaiy judgment should not be granted until discovery is complete. Montoy v. State, 275 Kan. 145, 149, 62 P.3d 228 (2003). However, if the facts pertinent to the material issues are not controverted, summary judgment maybe appropriate even when discovery is unfinished. Med James, Inc. v. Barnes, 31 Kan. App. 2d 89, 96, 61 P.3d 86, rev. denied 275 Kan. 965 (2003).
Resolution of this issue involves statutory interpretation. The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the district court’s interpretation. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
“The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).
Capacity of the Committee to be Sued
Collins claims that members of the Committee have the capacity to be sued because they are a group of private individuals, rather than employees under the KTCA.
Collins’ argument is without merit. The Committee members were sued as a committee; they were not sued in their individual capacities. There are no provisions in the Recall Act which give an individual the authority to sue a recall committee for damages. See K.S.A. 25-4301 et seq. In the absence of statutory authority, the Committee does not have the capacity to sue or be sued. See Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 666-67, 889 P.2d 1127 (1994).
The district court properly determined that the Committee lacks the capacity to be sued. Accordingly, the Committee cannot be held hable for monetary damages.
Liability of Hoeme and Treaster under the KTCA
Collins also argues the district court incorrectly determined that Hoeme and Treaster were immune from liability under the KTCA.
The general rule of liability under the KTCA is:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be hable, under the laws of this state.” K.S.A. 2007 Supp. 75-6103(a).
K.S.A. 2007 Supp. 75-6104 identifies exceptions from liability:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
“(e) any claim based upon the exercise or performance . . . [of] a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
The word “discretion” involves the exercise of judgment, wisdom, and skill, as distinguished from unthinking folly, heady violence, and rash injustice. Hopkins v. State, 237 Kan. 601, 612, 702 P.2d 311 (1985). Collins infers in his claims against Hoeme and Treaster that they should have determined that the recall petition was legally insufficient and moved to withdraw the petition. The duties each county official performed with regard to the recall process involved exercising discretion. There is no indication, and Collins does not allege, the county officials acted needlessly, maliciously, or wantonly. Under the KTCA, Hoeme and Treaster are immune from liability.
Monetary Damages Under the Recall Act
All elected public officials in the state, except judicial officers, are subject to recall by voters of the state or political subdivision from which they are elected. Procedures and grounds for recall shall be prescribed by law. Kan. Const. art. 4, § 3. The Recall Act governs the procedure required for voters to exercise their right to recall public officials. K.S.A. 25-4331 provides:
“Any person aggrieved by a determination made by the county election officer or county attorney of the county where petitions are required to be filed may bring an action to have the determination reviewed within thirty (30) days of the date on which notice of determination was given by action in the district court of such county.”
In Jack v. City of Olathe, 245 Kan. 458, 781 P.2d 1069 (1989), our Supreme Court determined that the plaintiffs were not entitled to monetary damages in the absence of clear statutory authority. In Jack, the plaintiffs brought a lawsuit against the City of Olathe pursuant to K.S.A. 12-712 (repealed January 1, 1992). Our Supreme Court noted that the statute did not set forth a remedy for a successful challenge of a zoning action, and there was no precedent for awarding monetary damages against the city for an unreasonable zoning action. The court found that the legislature intended to provide only a mechanism for setting aside an unreasonable zoning ordinance. 245 Kan. at 467.
Both K.S.A. 12-712 and K.S.A. 25-4331 provide a mechanism for reviewing a decision of a governmental body or official. Like the zoning ordinance, the recall statutes do not specify a remedy arising from a successful challenge of county officials’ determinations. There is no authority to support the argument that monetary damages may be awarded against county officials for making an invalid determination under the Recall Act.
Collins argues that our appellate courts “contemplate the recovery of damages in actions brought under the recall election statutes, since both look to whether or not damages are sought in determining whether an actual issue or controversy is present.” Collins cites Randall v. Seemann, 228 Kan. 395, 398, 613 P.2d 1376 (1980), where our Supreme Court, quoting Burnett v. Doyen, 220 Kan. 400, 403, 552 P.2d 928 (1976), stated: “ ‘Here the plaintiff did not seek damages, but rather sought a declaratory judgment and a restraining order. Since this court could grant no further or additional relief under the facts and circumstances involved, the matter is moot.’ ” Collins also claims that in Collins I, this court could have found his case was moot by simply determining that damages were not recoverable.
Neither Randall nor Burnett supports Collins’ claim that monetary damages are available under the Recall Act. At issue in Burnett was whether the Kansas Open Meeting Act required the Republican Caucus to be open to the public. The court ruled that the case was moot because the plaintiff had not sought damages; however, Burnett does not hold that damages would have been recoverable if the case had not been moot. Further, this court in Collins I did not rely solely on the fact that damages were sought in finding that the case was not moot. The Collins I court also distinguished Randall on the basis that Randall had been removed from office at the time the appeal was heard. Slip op. at 5. Collins was still in office at the time of his appeal. This court did not hold, or even imply, that damages were an available remedy for Collins.
K.S.A. 25-4331 merely authorizes the court to review decisions of the county attorney and county election officer, but does not allow monetary damages as a remedy for their failure to act, or for decisions rendered. Collins is not entitled to damages under the Recall Act.
Damages Under a Mandamus Action
Collins also argues that he is entitled to damages under the mandamus statutes. “Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” K.S.A. 60-801. K.S.A. 60-802(c) provides that “[i]f judgment be given for the plaintiff, he or she may also recover such damages as he or she may have sustained by reason of the failure of the defendant to perform the specified duty, together with costs.”
Collins argues that mandamus is the proper remedy here, as the present petition was filed, in large part, to compel tbe county attorney and the county election officer to fulfill their statutorily mandated duties.
However, the remedy of mandamus is available only for the purpose of compelling performance of a “clearly defined official duty.” Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 872, 518 P.2d 410 (1974). The plaintiff in Gaslight Villa, like the plaintiffs in Jack, brought an action pursuant to K.S.A. 12-712 to review a determination made by a governing body. Specifically, the City had refused to issue a special permit to construct and operate a mobile home park. The district court ordered the City to issue the permit, but denied the plaintiff s request for attorney fees. The plaintiff s basis for its request for attorney fees was that the lawsuit was a mandamus action. Our Supreme Court disagreed, holding:
“The remedy of mandamus is available for the purpose of compelling the performance of a clearly defined official duty. Its purpose is to compel the performance of an act which the law specifically enjoins as a duty resulting from the office or trust. This remedy may not be invoked to control discretion, or to enforce a right which is in substantial dispute. [Citations omitted.]
“The present action is one for review of the discretionary action of the city governing body pursuant to K.S.A. 12-712. There is no provision in this statute which authorizes the allowance of attorney fees. It is generally recognized in this state that attorney fees are not allowed in the absence of statutory authority or agreement. [Citations omitted.]” 213 Kan. at 872-73.
This court in Collins I incorrecdy referred to this case as a mandamus action. However, under the Recall Act, a mandamus action could be brought to compel a recall election. See K.S.A. 2005 Supp. 25-4322(d). Collins did not file his lawsuit to demand a recall election; his lawsuit challenged the sufficiency of the grounds for his recall. The fact that Collins requested damages does not transform his case into a mandamus action. Collins’ attempt to characterize the present case as a mandamus action is without merit.
The district court did not err in granting summary judgment to the Committee and in determining that Collins is not entitled to monetary damages.
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Greene, J.:
This appeal frames for our consideration the construction of a revocable trust and requires that we determine whether the district court erred in validating trust amendments executed after the death of one of the grantors/setdors, which amendments changed the trustees and significantly changed the distribution of income to successor beneficiaries. Appellants Darrel and Carl Mangels, adopted sons of deceased settlor C.L. “Bud” Helwig, challenge the amendments made by their adoptive mother Thelma Helwig after Bud died, arguing the trust unambiguously does not permit amendment or revocation of the trust after the death of one of the settlors. Appellee Judith Cornell argues the district court properly construed the trust as permitting amendment or revocation by either settlor at any time. We construe the trust as joint, mutual, and contractual in nature and not subject to revocation or amendment by a surviving settlor, thus requiring that we reverse the district court and remand for further proceedings.
Factual and Procedural Background
In March 1996, Bud and Thelma Helwig, husband and wife, executed a revocable trust agreement designated “The Helwig Revocable Trust.” The trust was funded with five ^-sections of farmland and “mineral and royalty interests” in another two and ^-sections, all in Grant County. The trust provided that net income would be distributed to the settlors or survivor and thereafter in one-third shares to each of the Helwig’s adopted children, Darrel Mangels, Carl Mangels, and Judith Cornell; and upon the death of such adopted children, their share was to be paid per stirpes to the children of each.
Bud died in March 2004, and in September 2004, Thelma amended the trust to change the successor trustees from Darrel’s and Carl’s children to Darrel, Carl, and Judith. Then in December 2004, Thelma again amended the trust to provide that after her death, the first $1 million of net income should be paid to Judith, with the remaining net income divided in one-third shares as originally provided. Both of these amendments were challenged in a declaratory judgment action filed by Darrel and Carl in August 2005.
In deciding a motion for summary judgment adverse to Darrel and Carl, the district court held that the trust did not prohibit amendment by Thelma after the death of Bud.
“From a reading of the revocable trust agreement executed by C. L. and Thelma on March 19, 1996, there is absolutely no indication that there was any intention that the trust agreement was a joint, mutual and contractual agreement by the settlors.
“Furthermore, this Court finds that the trust as established by C. L. and Thelma aEows them or either of them to alter, amend, revoke or terminate the trust.”
Following a trial in January 2007, the district court addressed other issues but reaffirmed its summary judgment decision, thus validating the challenged amendments. Darrel and Carl appeal.
Standards of Review
The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). The construction of a trust, like that of other writings, “ ‘may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court.’ ” In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996) (quot ing Galindo v. City of Coffeyville, 256 Kan. 455, Syl. 2, 885 P.2d 1246 [1994]). Whether a written instrument is ambiguous is a question of law which we review de novo. Zukel v. Great West Managers, LLC, 31 Kan. App. 2d 1098, 1101, 78 P.3d 480 (2003), rev. denied 277 Kan. 928 (2004).
Did the District Court Err in Construing the Trust to Permit the Amendments by Thelma After the Death of Bud?
Generally, if a written instrument has clear language and can be carried out as written, rules of construction are not necessary. City of Arkansas City v. Bruton, 284 Kan. 815, 829, 166 P.3d 992 (2007). When ambiguity exists, however, parol evidence is admissible to ascertain the meaning of the words used in the written instrument. In re Hjersted Revocable Trust, 35 Kan. App. 2d 799, 804, 135 P.3d 192, rev. denied 282 Kan. 789 (2006).
“ ‘[T]he primary objective of trust law is to carry out the settlor’s intent. [Citation omitted.] Consequently, “[i]f the text of the trust indenture is plain and unambiguous, the intent of the trustor (setdor) can be ascertained from the language used. [Citation omitted.] Where construction is necessary [however] the court must put itself in the situation of the trustor when the trustor made the trust instrument and, from consideration of the language used in the entire instrument determine the intention of the trustor. [Citations omitted.] The cardinal rule is that the intention of the trustor as gathered from the whole instrument must control unless contrary to settled principles of law.” [Citation omitted.]’ ” In re Hjersted Revocable Trust, 35 Kan. App. 2d at 805 (quoting Godley v. Valley View State Bank, 277 Kan. 736, 741-42, 89 P.3d 595 [2004]).
In construing a trust instrument, we approach the issues and apply the same rules of construction as applicable to the construction of wills. K.S.A. 58a-112.
Language of the Disputed ‘Revocability” Provision
At the heart of this dispute is the proper construction of a provision of the trust entitled “Revocability.” It provides:
“13. REVOCABILITY. This trust shall be revocable, and the Grantors expressly acknowledges that they shall have the right or power, whether alone or in conjunction with others, and in whatever capacity, to alter, amend, revoke, or terminate this trust, or any of the terms of this Agreement, in whole or in part.” (Emphasis added.)
Remarkably, each of the respective sides of this dispute argues the language of paragraph 13 is clear and unambiguous, but each has quite divergent views of language’s meaning. The Mangels contend the language permits the grantors acting together to amend or revoke the trust; Judith contends the language permits either grantor acting alone to amend or revoke the trust. Obviously, the puzzle is determining the settlors’ intent in the use of the terms “grantors,” “they,” and “alone.”
Examining the language of paragraph 13, we note that “alone” refers to “they,” which refers to “grantors” in the plural. Although not precisely drafted, we believe the language was intended to mean that grantors collectively may amend or revoke the trust and that they may do so acting alone as grantors or in conjunction with others such as guardians or conservators. If the intent had been for either of the grantors to have the power to amend or revoke individually, the preferred language would have employed such terms or would have expressly permitted each of the grantors, whether acting alone, with the other grantor, or with others, to amend or revoke the trust. Cornell’s argument, as adopted by the district court, requires the term “alone” to be construed in an isolated manner rather than in its context; here, we must ask: who is it that may “alone” amend or revoke? Clearly, it is the grantors (plural) — and they alone who may do so.
We conclude that the language of paragraph 13 clearly and unambiguously permits amendment and revocation by both grantors.
Language Elsewhere in the Instrument Bearins. on Intent
We must not rely exclusively on the isolated language of the disputed paragraph, however, but rather examine the instrument as a whole. See In re Estate of Sauder, 283 Kan. 694, 708, 156 P.3d 1204 (2007). The cardinal rule is that the intention of the trustor as gathered from the whole instrument must control unless contrary to settled principles of law. Godley, 277 Kan. at 741-42.
Although the parties failed to argue, either in district court or on appeal, that other terminology in the instrument demonstrated joint, mutual, and contractual intent, we note that the consideration paragraph in the instrument clearly provides that funding the trust was “in consideration of the foregoing and mutual covenants and agreements hereinafter contained.” (Emphasis added.) In construing similar language, our court has held that such language “appears to qualify as joinder and consent language” and thus contractual in nature. Bell v. Brittain, 19 Kan. App. 2d 1073, 1079, 880 P.2d 289 (1994), aff'd 257 Kan. 407, 893 P.2d 251 (1995) (language “in consideration of the mutual testamentary provisions” was joinder and consent language). Here, the language is actually stronger than the language in Bell, as it provides that the trust was funded in consideration of “mutual covenants and agreements.”
Beyond the language of the consideration paragraph, other aspects of the trust instrument indicate the intent to create a joint, mutual, and contractual trust. Notably, the trust carefully guards against unilateral decisions of either Thelma or Bud as trustees, providing in paragraph 9 that “[a]ll decisions of the Trustees shall be taken unanimously” and requiring a successor trustee be appointed upon the death or other incapacity of either trustee. We believe this provision demonstrates both mutuality and clear agreement that decisions regarding the trust were to be made by both Thelma and Bud.
Judith argues on appeal that the use of the phrase “either of them” in paragraph 4 of the trust indicates that the “settlors intended that either of them, acting together or alone, would be empowered to amend or revoke the trust.” We disagree. The provision states:
“4. LIMITATION ON POWERS. Notwithstanding anything herein contained to the contrary, no powers enumerated herein or accorded to the trustees generally pursuant to law shall be construed or enable the Grantor, or the Trustees, or either of them, or any other person to purchase, exchange, or otherwise deal with or dispose of the principle or income of the trust estate for less than the adequate and full consideration of money . . . .”
This provision is a limitation on the powers of the trustees and is clearly intended to prohibit any dealing by anyone with trust property at less than arm’s length. The fact that such limitation employs and applies to each grantor (singular) merely restricts the power of a singular grantor and does not have significance on the more general intent to create a joint, mutual, and contractual trust. In fact, the provision is consistent with a contractual instrument in that it prohibits each grantor from taking action detrimental to the interests of the trust at large. Contrary to Judith’s contention, we believe the use of the phrase “or either of them” in paragraph 4 demonstrates that the settlors and their counsel were fully capable of phraseology that could have been used in paragraph 13 if the intent was to permit amendment or revocation by each settlor; that provision could have stated “the grantors or either of them shall have the right or power ... to alter, amend, revoke, or terminate . . . any of the terms of this [trust] Agreement.”
Finally, we examine the instrument as a whole for indications of contractual intent. We are guided in this examination by the seven factors generally indicating the intent to be contractually bound by a joint and mutual will:
“ ‘(1) A provision in the will for a distribution of property on the death of the survivor;
“ ‘(2) a carefully drawn provision for the disposition of any share in case of a lapsed residuary bequest;
“ ‘(3) the use of plural pronouns;
“ ‘(4) joinder and consent language;
“ ‘(5) the identical distribution of property upon the death of the survivor;
" ‘(6) joint revocation of former wills; and
“ ‘(7) consideration, such as mutual promises.’ [Citation omitted.]” Bell, 19 Kan. App. 2d at 1077.
As to the first factor, the trust clearly provides for the distribution of property upon the death of the survivor. That provision, as amended after the death of Bud, is the subject of this appeal.
As to the second factor, a carefully drawn provision in case of a lapsed bequest, is not present.
As to the third factor, we note that the trust generally employs the plural in referring to “Grantors.” We count 10 such plural references in the trust and only 2 mentions of “Grantor” in the singular.
As to the fourth and seventh factor, we have already emphasized the reference in the consideration provision to “mutual covenants and agreements,” which is both joinder and consent language and a clear exchange of mutual promises.
As to the fifth factor, the trust provides for an identical distribution of property upon the death of the survivor.
As to the sixth factor, there is no joint revocation of former wills, but we do not find this significant where, as here, the instrument is one establishing a trust.
Our application of the seven factors supports our conclusion that the trust is contractual in nature, with five factors supporting contractual intent, one factor to the contrary, and one factor of no application. Examination of the instrument as a whole results in our conclusion that the intent of the grantors/settlors was to create a joint, mutual, and contractual revocable trust.
Rules of Construction
Having concluded the language of the instrument is not ambiguous and demonstrates an intent to create a joint, mutual, and contractual revocable trust, resort to the rules of construction is not necessary. In re Hjersted Revocable Trust, 35 Kan. App. 2d at 804. Even if we were to conclude, however, that the language of the instrument is ambiguous, an application of the rules of construction supports our conclusion.
First, we note that the grantors amended the trust on one occasion prior to the death of Bud, and both grantors joined in this amendment. Even though the amendment was intended to effect a straightforward change in successor trustees and could have been executed by either of the grantors if permitted, the execution by both grantors demonstrates an understanding that amendments required the consent and participation of both grantors. Subsequent conduct of parties to a contract or written instrument may aid in the interpretation of controversial provisions. If parties to a contract, subsequent to its execution;, have shown by their conduct that they placed a common interpretation on contract, this interpretation will be given great weight’in determining meaning to be attributed to provisions in question. See Heyen v. Hartnett, 235 Kan. 117, 123, 679 P.2d 1152 (1984); Reznik v. McKee, Trustee, 216 Kan. 659, 675, 534 P.2d 243 (1975).
Second, we note that the scrivener of the instrument was not permitted to testify, but the Mangels’ counsel proffered his testi mony. He would have testified, absent the pretrial order, that “his intent as scrivener of the trust was that it would take both of the trustees to [e]ffect any amendment to the trust and not just one of the trustees either before or after the death of anyone.” If the trust language is found to be unclear and ambiguous, any extrinsic evidence relative to the grantors’ settlors’ intent at the time the initial trust instrument was prepared would be of particular interest, including the scrivener’s testimony. Testimony of the scrivener of a written instrument of devise may be admissible to show that the instrument was executed pursuant to an agreement. See In re Estate of Tompkins, 195 Kan. 467, 474, 407 P.2d 545 (1965).
We have not attempted an exhaustive application of the rules of construction here, and we recognize that the parties may not have been permitted to introduce evidence that may have been relevant to a comprehensive application. We simply note that based on the record on appeal, any application of the rules of construction would support our conclusion that the intent of the settlors was to create a joint, mutual, and contractual revocable trust.
It is tempting to conclude that the disparate views of opposing parties as to the meaning of the disputed language drive a conclusion of ambiguity, but we have resisted this temptation. Instead, we conclude that when the disputed language is examined in context and within the instrument as a whole, the clear intent is the creation of a joint, mutual, and contractual trust instrument. Notwithstanding that conclusion, if we had concluded there was ambiguity, application of the rules of construction would lead us to the same conclusion.
The district court erred in its construction of the trust. Summary judgment should have been entered for the Mangels, thus invalidating the amendments after the death of Bud. We express no opinion as to other issues that may require adjudication on remand. We remand with directions to enter summary judgment for the Mangels and for such other proceedings as may be consistent with our opinion.
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] |
Hill, J.:
When discovery revealed the man who struck Danielle Rhoten’s car was not aware a Topeka police officer was chasing him, the federal court dismissed Danielle Rhoten’s civil rights complaint against the City of Topeka and one of its police officers. The federal judge found no causal connection between the police officer’s acts and Rhoten’s injury. After that ruling, the federal court declined to hear Rhoten’s state negligence claims, and she filed a lawsuit against the City and the officer in Shawnee District Court. Now, we must decide whether the legal doctrines of res judicata, sometimes called claim preclusion, and collateral estoppel, also known as issue preclusion, prevent Rhoten from continuing with her state lawsuit. Because our Supreme Court has ruled that claim preclusion forbids a party from asserting in a second lawsuit any matter that might have been asserted in the first lawsuit, we hold Rhoten cannot advance her claims. We affirm the Shawnee District Court’s grant of summary judgment dismissing her state negligence claims.
The federal court decided the facts of the car accident.
On February 5, 2004, Bruce Dickson, IV, was driving southbound on Topeka Boulevard in his four-wheel-drive pickup. Dickson was driving too fast for the snowy road conditions and collided with Marco Conley’s van. Danielle Rhoten, expecting her child within 2 weeks, was riding in Conley’s van. The collision caused serious injuries to Rhoten and the loss of her unborn child.
Before the collision, Lieutenant Frank Pase, a police officer for Topeka, had been following Dickson from a distance because of Dickson’s driving fast in the snow, weaving in and out of lanes, and following too close to cars. While following Dickson, Pase did not activate his emergency lights or siren in his unmarked police car.
Rhoten seeks redress in federal district court.
On November 30, 2004, Rhoten filed a civil complaint against Lt. Pase, Topeka, and Dickson, asserting both federal and state law claims in the federal district court of Kansas. In her complaint, Rhoten asserted three claims. First, she made substantive due pro cess claims under 42 U.S.C. § 1983 (2000) against Pase and Topeka. Next, Rhoten made negligence, or in the alternative, negligence per se claims under the Kansas Tort Claims Act against Pase and Topeka (through the doctrine of respondeat superior). Finally, she raised a negligence, or in the alternative, negligence per se claim against Dickson.
The parties filed several competing motions seeking judgment or dismissal of the claims. They were all disposed of in a summary judgment order issued in August 2006. The federal district court made findings the state district judgé later incorporated in his ruling on summary judgment motions in this case.
“On the evening of Februaiy 5, 2004, a little before 7:00 p.m., defendant Bruce Dickson, IV, was driving a Ford F-150 pickup truck with its four-wheel drive engaged. Dickson was in north Topeka, southbound on Topeka Boulevard. Several inches of snow had fallen, producing an accumulation of up to ten inches in places. Some roads had been plowed and some places were wet, slushy or slick. Dickson felt comfortable driving the speed limit in the existing road conditions.
“Defendant Pase, a Lieutenant with the Topeka Police Department, was on duty that evening, driving an unmarked dark blue patrol car. He too was southbound on Topeka Boulevard when he noticed defendant Dickson’s pickup approximately one block away. His attention was drawn to the pickup by its quick lane changes and its speed, as he saw it weave in and out of traffic, passing two or three of the seven or eight vehicles, in both lanes at the north end of the bridge. Pase also noticed a dark colored car closely following the pickup as it wove in and out of traffic. Pase accelerated from approximately 35 m.p.h. to approximately 55 m.p.h., intending to stop the pickup and get a better description and possibly a tag number from the pickup and the car, both of which preceded him southbound on the Topeka Boulevard bridge.
“Pase did not activate his lights or siren or contact his dispatcher at any time during his pursuit of the vehicles. Pase’s unmarked police car was equipped with a rear-facing red and blue flashing light mounted on the inside of the car in the rear window, a red and blue flashing strobe on the passenger sun visor, ‘wig-wag’ headlights, a siren, all season tires, and a chrome spotlight mounted on the front driver’s side windshield pillar. Pase intended to activate his lights and siren when he got closer to the pickup.
“The bridge inclines as one proceeds southbound and rises to a crest, after which there is a flat expanse of bridge across the river. Pase accelerated to 65 m.p.h. in a 35 m.p.h. zone as he approached the crest on the north end of the bridge and reached its flat expanse, but could not see Dickson’s pickup. Pase saw the dark-colored car which had been following the pickup reduce its speed, discontinue passing, and move into the right lane. Pase passed it as well as other vehicles in his attempt to follow Dickson’s pickup, which was by then out of sight over the southern crest of the bridge.
“As Pase passed the southern crest of the bridge, he could see some traffic in both lanes at the south end of the bridge. As Pase approached the south end of the bridge, he spotted Dickson’s pickup off the bridge near Third Street and Topeka Boulevard, approximately two blocks from him. Pase believed Dickson’s pickup had been slowed by traffic at the south end of tire bridge. He saw Dickson’s pickup accelerate and drive through green lights at Third, Fourth, and Fifth Streets. Dickson’s pickup then collided with a northbound van which was attempting to turn west at Sixth Street and Topeka Blvd. Pase was approximately two blocks north at the time of the collision, still attempting to follow Dickson.
“Plaintiff was a passenger in the van which collided with Dickson’s pickup. The van’s driver, Marco Conley, never saw Pase’s vehicle prior to tire accident. Pase immediately drove to die scene of the accident and activated his emergency lights. Pase told Dickson he had clocked his speed and drat he was ‘following and/or chasing’ him. Pase commented to a passenger in the same vehicle as plaintiff that he had ‘been trying to catch this guy since North Topeka.’
“Plaintiff sustained serious injuries from the accident, including the loss of her unborn son, whose birth was expected in two weeks. . . .
“Factual disputes exist regarding whether the light facing Dickson at Sixth Street was green or red, regarding the speed at which parties were traveling at various times including immediately prior to impact, and other matters not at issue in these motions.”
Looking first at Rhoten’s claim under § 1983, the federal district court noted the municipality may not be hable where there is no underlying constitutional violation by its officer. But before examining any defenses against § 1983 substantive due process claims, the federal district court stated its primary task was to decide whether Rhoten had asserted a violation of a constitutional right at all. Specifically the judge stated that a plaintiff must raise a genuine issue of material fact about the causal connection between a defendant’s actions or inaction and the plaintiff s injury to prove that defendant’s conduct deprived plaintiff of a federally protectible interest. As recognized by the federal district court, § 1983 contains a causation requirement, which is satisfied if the defendant’s conduct was “ ‘a substantial factor in bringing [the injuiy] about.’ ”
Unfortunately for Rhoten, Dickson’s deposition revealed that Lt. Pase’s actions had no influence on Dickson’s driving behavior before the accident:
“Q. Okay. All right. Mr. Dickson, if -if I understand your testimony — and just land of capsulize what I believe you -you’ve said is from the — your vehicle being in North Topeka and before you even got on the bridge all the way up until the accident site there was no vehicle behind you, whether it be a police car or a civilian car that influenced the way you drove, would that be correct?
“(Objection as to form by counsel.)
“A. That’s correct.
“Q. Okay. In other words, there wasn’t anybody that was behind you that was doing something that caused you to change your manner of driving in the least bit, is that true?
“A. No.
“Q. Is that correct?
“A. That’s correct.”
Next, using a danger creation theory, the federal district court determined whether Lt. Pases failure to use his emergency lights or siren created a causal connection with Rhoten’s injuries. Under this theory, the federal district court declined to find Pase liable for Dickson’s actions.
“Under the facts of this case, although defendant Pase may have been aware of the dangers faced by the public by virtue of defendant Dickson’s driving, he neither played any part in the creation of that danger nor did anything to render plaintiff or anyone else any more vulnerable to them than they otherwise would have been. Because defendant Dickson’s speed and other manner of driving was totally unaffected by Pase’s acts and inactions, any danger posed to plaintiff by virtue of Dickson’s driving already existed. Because Pace [sic] did not alter the status quo by following Dickson at a high rate of speed without lights or siren, and placed plaintiff in no worse position than that in which plaintiff would have been had Pase never followed Dickson at all, no § 1983 liability exists.”
Based on both of these findings, the federal district court decided there was a “lack of material question of fact on the causal connection between defendant Pase’s actions or inactions and plaintiffs injuries.” Therefore, the federal district court granted summary judgment in favor of Pase on Rhoten’s § 1983 claim. Also, because Pase had not caused Rhoten’s injuries to subject himself to personal liability, the federal district court held Topeka was also not hable under § 1983 and granted summary judgment in favor of Topeka.
Because of its decision on Rhoten’s federal claim, the federal district court declined to exercise supplemental jurisdiction over Rhoten’s state claims against Pase and Topeka and dismissed them without prejudice.
"Defendants contend that a finding of lack of causation in plaintiff s substantive due process claims is dispositive of the element of causation in plaintiffs state law negligence claims against defendants Pase and Topeka. The court notes only that this may or may not be so, as causation in the context of a negligence claim may differ somewhat from causation in the context of a substantive due process claim. The court declines to exercise supplemental jurisdiction over plaintiffs claims of negligence and negligence per se against Pase and the City.”
The federal district court also granted Dickson’s motion to dismiss.
Rhoten appealed this matter to the 10th Circuit Court of Appeals. On October 23, 2007, that court affirmed the federal district court’s grant of summaiy judgment in favor of Topeka and Pase on her claim under § 1983. See Rhoten v. Pase, 2007 WL 3088226 (10th Cir. 2007) (unpublished order and judgment). Applying a de novo standard of review, the 10th Circuit agreed with the district court that Rhoten failed to raise a genuine issue of material fact that Pase caused the accident, created a danger that resulted in her injuries, or acted in a conscience-shocking manner.
We turn now to state court.
On September 28, 2006, Rhoten filed her state claims against the defendants in Shawnee District Court. She claimed negligence, or in the alternative, negligence per se under the Kansas Tort Claims Act against Pase and Topeka (through the doctrine of respondeat superior) and negligence, or in the alternative, negligence per se against Dickson. In her petition, Rhoten asserted substantially similar factual allegations that were in her federal civil complaint.
In disposing of the case, the district court applied the rule in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 396, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998). The district court examined whether Rhoten’s negligence claim arose out of the same transaction as her civil rights lawsuit in federal court. Adopting the facts from the federal district court’s decision, the district court determined that both of Rhoten’s claims arose out of the same common nucleus of important facts — the traffic accident and Pase’s conduct in that accident. In addition, the district court noted that proof of cause was essential in both claims. Finally, the district court noted the witnesses and facts needed in the state lawsuit overlapped the same evidence used in the federal action. Therefore, the district court applied res judicata to bar Rhoteris state claims.
Basing its decision on the federal district court’s conclusion there was no causal connection between Pase’s actions or inactions and plaintiffs injuries, the district court also found that collateral estoppel applied. The district court held: “If Plaintiff was allowed to proceed on her negligence claims, a relitigation of that issue would be inevitable because causation is an element of negligence. The relitigating of causation, which Plaintiff has already failed to prove, is strictly prohibited by issue preclusion.”
Rhoten appeals, arguing the district court erred because Lt. Pase and Topeka failed to comply with Rule 141 (2007 Kan. Ct. R. Annot. 218) that regulates summary judgment motions and erred when it followed the ruling in Stanfield. We look first at the Rule 141 arguments and then the preclusion doctrines.
We find substantial compliance with Rule 141.
Rhoten first argues that Pase and Topeka failed to comply with Supreme Court Rule 141(a) when they filed their motions because their motions did not set forth the facts in separately numbered paragraphs. Rhoten claims this was prejudicial.
But our courts have found a technical violation of Rule 141 does not automatically result in judgment for the opposing party. See City of Arkansas City v. Bruton, 284 Kan. 815, 836-37, 166 P.3d 992 (2007); Kelley v. Barnett, 23 Kan. App. 2d 564, 566, 932 P.2d 471, rev. denied 262 Kan. 961 (1997) (viewing disputes over this technical compliance as superfluous when the major dispute between the parties is a legal one rather than a factual one). As noted in Calver v. Hinson, 267 Kan. 369, 377-78, 982 P.2d 970 (1999), substantial compliance with Rule 141 can be enough.
Here, clearly Pase and Topeka’s motions substantially complied with Rule 141. In their motions, both Pase and Topeka identified the federal district court’s decision as the basis for supporting ap plying res judicata and collateral estoppel. In fact, Topeka attached a certified copy of the federal district court’s decision as well as Rhoten’s federal civil complaint to their motions. Also, after filing these motions, the district court made all parties file proposed findings of fact and conclusions of law over this issue. And in those documents, both Pase and Topeka set forth their findings of fact in separately numbered paragraphs, which detailed the federal district court’s decision and stated the relevant facts of the collision. They filed these before oral arguments.
As recognized in McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984) (superseded by statute on other grounds), the purpose of Rule 141 is to identify “what facts are or are not controverted” or “on what evidence the parties rely.” Ry identifying Rhoten’s federal civil lawsuit and the federal district court’s decision in their motions and further providing facts in separately numbered paragraphs in later documents which were filed before oral arguments, Pase and Topeka substantially complied with Rule 141. For these reasons we hold that any Rule 141 violations here did not prevent tire district court from granting summary judgment. We turn now to the preclusion doctrines.
We look first at claim preclusion.
Our Supreme Court has recognized that our courts are bound to apply federal rules in deciding the preclusive effect of federal court decisions on law. Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 396, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998).
In federal court, die doctrine of claim preclusion prevents a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment. According to the 10th Circuit, claim preclusion applies when three elements exist. Those three elements are:
“(1) a final judgment on the merits in an earlier action; (2) identity of the parties in the two suits; and (3) identity of the cause of action in both suits. [Citation omitted.] If these requirements are met, res judicata is appropriate unless the party seeking to avoid preclusion did not have a ‘full and fair opportunity’ to litigate the claim in the prior suit. [Citation omitted.]” MACTEC, Inc. v. Gorelick, 437 F.3d 821, 831 (10th Cir. 2005), cert. denied 547 U.S. 1040 (2006).
Because the 10th Circuit affirmed the federal district court’s rulings, we discount Rhoten’s claim the federal district court’s decision here is not a final judgment.
Rhoten challenges the holding in Stanfield, which the district court found controlling. Specifically, Rhoten challenges Stanfield’s reliance on Mattson v. City of Costa Mesa, 106 Cal. App. 3d 441, 164 Cal. Rptr. 913 (1980). See 263 Kan. at 403. For support, Rhoten cites Harris v. Grimes, 104 Cal. App. 4th 180, 188-89, 127 Cal. Rptr. 2d 791(2002), where the California Court of Appeals declined to follow Mattson. Rhoten questions the current weight of Stanfield and requests this court to overturn that decision.
Obviously, Rhoten fails to recognize that this court is duty bound to follow Kansas Supreme Court precedent, unless there is some suggestion the court is leaving its previous position. See Noone v. Chalet of Wichita, 32 Kan. App. 2d 1230, 1236, 96 P.3d 674, rev. denied 278 Kan. 846 (2004). In fact, in the case State v. Flores, 283 Kan. 380, 384, 153 P.3d 506 (2007), the Supreme Court recently cited Stanfield for the proposition that res judicata requires a prior final judgment on the merits. That holding is no suggestion of an intent to depart from its prior ruling.
In Stanfield, the plaintiff filed an action in the federal district court of Kansas to end the unauthorized use of his name and trademark rights. Under federal question and supplemental jurisdiction, the petition asserted two federal Lanham Act claims and a state law claim for misappropriation of his name and false light. The defendants responded by fifing a motion for summary judgment. The federal district court agreed and granted summary judgment in favor of the defendants. For the plaintiff s state common-law claim, the federal district court declined to exercise supplemental jurisdiction. The plaintiff appealed this decision, and the 10th Circuit affirmed the federal district court’s grant of summary judgment. The United States Supreme Court denied certiorari.
Meanwhile, the plaintiff filed the state claims in state court. In response, the defendants moved for summary judgment, claiming the doctrine of issue preclusion (collateral estoppel) barred the trial court from addressing plaintiffs claims. The trial court granted defendants’ motion for summary judgment but used both the doc trines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) to support its decision. The plaintiff timely appealed and the Kansas Supreme Court transferred the case to its court under K.S.A. 20-3018(c).
The Supreme Court addressed only the doctrine of claim preclusion in deciding plaintiff s appeal. In Stanfield, the plaintiff argued the claims he raised in the state court action were not the same claims which the federal court had previously resolved. In support of his argument, plaintiff cited several federal cases that recognized the distinction between federal trademark claims and state privacy claims.
In rejecting this argument, our Supreme Court focused on the third element of claim preclusion. The Supreme Court explained the term “claim” is defined in factual terms so the same factual transactions or series of connected transactions are one “claim,” regardless of the number of substantive legal theories available to the plaintiff based on those facts. The court cited the Comments to Restatement (Second) of Judgments §§ 24 and 25 (1980). Using this definition, the court ruled “the question under the third factor of claim preclusion is whether the plaintiff s current lawsuit in state court for misappropriation and false light arises out of the same ‘transaction as his lawsuit in federal court for Lanham Act violations.” (Emphasis added.) 263 Kan. at 402.
Applying this rule to the facts in the case, the Supreme Court determined that both the plaintiff s state and federal actions arose out of a common nucleus of active fact — the defendants’ labeling of certain products with the term “Stanfield” after 1990. The Supreme Court further found the facts necessary to prove all the plaintiff s theories were related in time and in origin. Finally, the Supreme Court ascertained the witnesses and proof needed in the state action overlapped the witnesses and proof which would have been utilized in the federal action had summaiy judgment not been granted. The court decided this way because each allegation in the state court petition was almost identical with each allegation in the federal court complaint. Thus, the Supreme Court decided the facts in both the federal and state actions made up a single transaction or “claim,” and the federal court’s determination of the claim against the plaintiff precluded him from relitigating the same claim in the state court action. 263 Kan. at 402. In summary, the Supreme Court stated:
“A judgment has previously been determined on this ‘claim’ in federal court against the plaintiff. Having been defeated on the merits in federal court, the plaintiff attempts to bring another action in state court utilizing a different legal theory. Despite the differences in legal theories, this state lawsuit does not raise a new ‘claim.’ Thus, this second action in state court is based on a ‘claim’ which has been previously litigated in a competent federal court adverse to the plaintiff. As such, all three factors of claim preclusion are satisfied, and this state court action is barred by that doctrine.” 263 Kan. at 402.
Not giving up, the plaintiff in Stanfield argued the federal court’s discretionaiy refusal to exercise its supplemental jurisdiction over the remaining state law claims should qualify as an exception to claim preclusion. In reply, the Supreme Court relied on Mattson. In Mattson, the California Court of Appeals rejected a similar argument made by the plaintiff, reasoning:
“ ‘A contrary rule would invite manipulation. It would permit a plaintiff halfheartedly to request the federal court to exercise pendent jurisdiction, offer little resistance to any argument by the defendant against its exercise, and hope that the federal court would decline to exercise pendent jurisdiction and therefore reserve the plaintiff a second chance to prevail in a state court action .... Judicious utilization of judicial and litigant resources become ever more essential in the wake of the law explosion. The efficient administration of justice would not be advanced by a rule resulting in or encouraging multiple litigation of a single cause of action.’ 106 Cal. App. 3d at 455.” Stanfield, 263 Kan. at 403-04 (quoting Mattson).
The court agreed with Mattsons reasoning. It held the federal court’s refusal to consider the plaintiff s state law theories did not prevent claim preclusion from applying to theories in a state lawsuit “since the theories arose out of the same claim or factual transaction which the federal court did determine.” (Emphasis added.) 263 Kan. at 404.
To apply the ruling in Stanfield to this case, we must first decide if Rhoten’s state lawsuit for negligence arises out of the same transaction as her lawsuit in federal court for § 1983 violation. Obviously, both of Rhoten’s claims arose out of the traffic accident between Dickson and Conley and Lt. Pase’s conduct in that accident. Further, similar to Stanfield, the facts necessary to prove Rhoten’s federal and state law theories relate in time and origin. Also, Rhoten’s statement of facts in her federal complaint and state petition discloses the witnesses and proof needed in both actions are identical. Thus, because Rhoten’s state claim arose out of the same transaction as her federal lawsuit, we find that res judicata applies. The district court was correct.
The doctrine of issue preclusion is more problematic.
A new view is forming in this field about whether an exercise of discretion forces a plaintiff to split his or her cause of action. Stan-field relies on Mattson, a 1980 decision about res judicata in cases where a federal district court declines to exercise jurisdiction over state claims. In Harris, the California Court of Appeals declined to follow Mattson for that reason, stating:
“Lucas [v. County of Los Angeles, 47 Cal. App. 4th 277, 287, 54 Cal. Rptr. 2d 655 (1996),] squarely addresses respondent’s contention when, as here, a federal court, instead of a party, splits a cause of action. It explained, California’s prohibition on splitting causes of action ‘does not aid [a defendant when] it was not [the plaintiff] who made the decision to “split” causes of action between state and federal court. [The plaintiff] tendered the entire case to tire federal court, which had pendent jurisdiction to determine the state causes of action but declined to exercise it. [Citations.] A federal court’s discretionary refusal to exercise pendent jurisdiction over a state claim does not bar further litigation of the state claim in state court.’
“Lucas is consistent with the Restatement Second of Judgments’ expression of widely held legal principles, which distinguishes between a party’s splitting of its causes of action and a court’s doing the same thing. The Restatement observes, ‘A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action . . . declined to exercise [its jurisdiction] as a matter of discretion, then a second action in a convpetent court presenting the omitted theory or ground should he held not precluded.’ (Rest.2d Judgments, § 25, com. e.)
“We acknowledge a two-decade old decision, Mattson, 106 Cal. App. 3d at 441 supports respondent’s contention. . . .
‘We decline to follow Mattson, however, because Lucas is a more recent and, as reflected by the Restatement, widely endorsed pronouncement of the law. Moreover, Mattson’s holding was partly based upon its concern that a different rule would invite gamesmanship by plaintiffs. . . . There is no evidence of a similar worry here.” 104 Cal. App. 4th at 187-189.
Since Harris, however, the California Court of Appeals in City of Simi Valley v. Superior Court, 111 Cal. App. 4th 1077, 1084, 4 Cal. Rptr. 3d 468 (2003), distinguished its case from both Harris and Lucas because its federal court had factually determined the police officers’ conduct objectively reasonable when it granted summary judgment and the state negligence action was premised on a violation of the same primary right.
However, clearly in federal court the doctrine of issue preclusion bars the adjudication of a particular claim in a later proceeding when four elements are met. According to the 10th Circuit, those four elements are:
“(1) the issue previously decided is identical with the one presented in the action in question; (2) the prior action has been finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. [Citation omitted.]” Smith v. Dinwiddie, 510 F.3d 1180, 1188 (10th Cir. 2007), cert. denied 553 U.S. 1035 (2008).
Fundamentally, to prove a claim of negligence under Kansas law, especially one for wrongful death, the plaintiff must prove a causal connection between the breach of duty and tire injury suffered. See Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187 (2007). Here, the federal district court determined that no such causal connection existed. In support of its finding that Pase’s pursuit of Dickson did not cause the collision between Dickson and Conley, the federal district court relied on Dickson’s deposition where he repeatedly testified that Pase’s actions had no influence on his driving. The 10th Circuit later affirmed this finding. Therefore, because Rhoten is trying to relitigate this same factual issue in her state claim, which has been decided in her federal claim, we conclude that issue preclusion applies to this issue.
Turning to the failure to use emergency lights and siren we look to K.S.A. 8-1738(d). This statute states a siren shall not be used
“except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which said latter events the driver of such vehicle shall sound said siren when reasonably necessary to warn pedestrians and other drivers of the approach thereof ” (Emphasis added.)
Here, the federal district court determined that Pase’s failure to activate his emergency equipment did not create or increase the danger that existed by Dickson’s driving behavior. To support this finding, the federal district court used the danger creation theory, which focuses on the affirmative actions of the state in placing the plaintiff in harm’s way: See Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008) (stating the six elements). The underlying elements of this theory, however, differ from K.S.A. 8-1738(d).
Applying K.S.A. 8-1738(d), clearly no prior determination has been made that Pase’s pursuit of Dickson was not “immediate,” or that it was not “reasonably necessary” for Pase to sound his siren to warn pedestrians and other drivers. In addition, as noted by the federal district court and adopted by the state district court, factual disputes remain. First, the parties do not agree whether the light facing Dickson at Sixth Street was green or red. Next they disagree about the speed at which parties were traveling at various times. Finally, tire parties do not agree about the speed at which the parties were traveling immediately before impact. This means the parties have not litigated tire causation issue in light of K.S.A. 8-1738(d). If Stanfield is ignored, then this issue may be litigated.
But the language in Stanfield is clear, “[t]hus, a legal theory does not even need to be raised in the first action, more or less considered by the court, in order for it to be precluded in a later action under the claim preclusion doctrine, if it arose out of the same claim or factual transaction which the first action determined.” Stanfield, 263 Kan. at 612-13. Rhoten asks us to overturn Stanfield on this point. We are powerless to do that. There is no hint that our Supreme Court wants to depart from the ruling in Stanfield.
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Greene, J.:
This appeal frames for our determination the interpretation and application of K.S.A. 59-618, which specifies circumstances for the belated admission of a will to probate by an innocent beneficiary after it has been knowingly withheld from probate during the 6 months following testator s death. The district court held that Laryl E. Seth, a beneficiary under tire will of Marvel M. Seth, deceased, was an innocent beneficiary under the statute and permitted the belated admission of the will to probate. Some of the heirs at law, grandchildren of the testator, contend the statute does not permit such admission where the beneficiary had both knowledge and access to the will within 6 months after death of the testator but the failure of timely admission was caused by inaction of that beneficiary’s attorney. We affirm the district court.
Factual and Procedural Background
Marvel M. Seth executed a valid will on May 13, 1984, leaving her 320-acre family farm to one of her sons, Laryl. At the time of her death on December 4, 2005, Marvel was survived by Laryl, daughter Loyola, and three children of her second son, Lowell, deceased. In February 2006, Laryl and Loyola found the will and took it to an attorney, Kenneth McClintock, instructing him to admit it to probate.
After the initial meeting with McClintock, Laryl tried repeatedly to contact him to ask about the will. On two occasions between April and May 2006, McClintock assured Laryl on the phone and in person that he was “taking care of’ the will. The 6-month period for probate under K.S.A. 59-617 expired in early June 2006. In late June 2006, however, the will had not been admitted to probate, and McClintock admitted he failed to meet the statutory deadline. McClintock possessed no assets or insurance to respond to a judgment, and he ultimately relinquished his law license in connection with disciplinary proceedings that resulted from his inaction on Laryfs behalf.
Laryl promptly retrieved the will from McClintock, took it to a different attorney, and filed a petition to probate the will in late August 2006. The grandchildren filed an answer and defense, challenging the belated admission of the will to probate. After a bench trial, the district court held that Laryl was an innocent beneficiary under K.S.A. 59-618 and entitled to belated admission of the will to probate. Key findings of fact of the district court included:
“Laryl did manage to find McClintock on two occasions during April and May of 2006, once by phone and once in McClintock’s office. On both occasions, Laryl asked McClintock, “What’s happening with the will?’ McClintock falsely assured Laryl, in both instances that he was taking care of the will.
“Laryl relied on McClintock’s statements, to his detriment, and had no reason to regain possession of the will and try to probate it himself.
“Laryl Seth did not intentionally withhold the will for probate.”
Key conclusions of law included:
“McClintock acted in a grossly negligent manner in his handling of this matter. The question here is whether Laryl Seth should be held responsible for his attorney’s failings and as a result have only his attorney to look to for remuneration. If equity should ever govern a situation, this is the case.
“Laryl’s actions establish that he is an innocent beneficiary and therefore meets that requirement of [K.S.A. 59-] 618.
“The failure of McClintock to talk to Laryl or to answer his calls constitutes a legal and equitable reason to invoke the provisions of K.S.A. 59-618. Laryl Seth had knowledge of the will but did not have access to it and therefore could not file the will within 6 months from the date of the death of Marvel.”
The grandchildren appeal.
Standards of Review
Where the district court has made findings of fact and conclusions of law, we review the findings to determine if they are supported by substantial competent evidence and are sufficient to support the conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Appellate courts have unlimited review of conclusions of law. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). The construction and application of statutoiy law are also subject to unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
Did the District Court Err in Constrains and Appluins K.S.A. 59-618?
K.S.A. 59-617 provides that no will is effective unless a petition is filed for probate of such will within 6 months of the death of the testator. An exception to this rule is found in K.S.A. 59-618, which provides:
“Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than six months after the death of the testator shall be hable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it. Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiaiy has knowledge of such will and access to it.”
We note that this statute does not provide an express definition of “innocent beneficiaiy,” but it is clear that a will that has been knowingly withheld from probate “may be admitted to probate as to any innocent beneficiaiy on petition . . . filed within 90 days after [the innocent] beneficiary has knowledge of [the withheld] will and access to it.” K.S.A. 59-618. “Innocent beneficiary” under the statute means a beneficiary without fault for the knowing withholding of a will from probate during the 6-month period following the death pf the testator. The district court concluded that K.S.A. 59-618 saved the Marvel Seth will because
"[i]t is clear from the evidence that Laryl did not have both knowledge and access to the will simultaneously, as the statute mandates, until late June, 2006, when McClintock finally told him it was too late to file the will. Laryl then took the will back into his possession and the requirements of the statute, knowledge and access, came together at that instant.”
The grandchildren argue on appeal that Laryl first had both knowledge and access to the will within 6 months of Marvel’s death when the will was initially found and taken to McClintock in February 2006. Because Marvel’s petition was not filed within 90 days thereafter, the grandchildren argue the statute cannot save the belated filing in August 2006. Laiyl argues that he was an “innocent beneficiary” and filed his petition within 90 days after retrieval from McClintock, when he regained access to the will.
We do not precisely agree with either party’s position as to the interpretation and application of the statute. The first sentence of K.S.A. 59-618 serves to make a person who “knowingly withholds” a will from probate during the 6 months after the testator’s death hable for fees, costs, and damages to beneficiaries “who do not have possession of the will and are without knowledge of it and access to it.” Here, the person who “knowingly withheld” the will from probate was McClintock, but there has been no claim under this provision for fees, costs, or damages because McClintock had no malpractice insurance or other ability to respond to a judgment.
The second sentence of K.S.A. 59-618 is the savings provision and allows for the belated probate of “such will.” This reference must be to a will described by the first sentence, i.e., a will that has been knowingly withheld from probate. Here, the Marvel Seth will was indeed knowingly withheld from probate, thus triggering the potential allowance for a belated filing. Moreover, Laryl was “innocent” inasmuch as he did not knowingly withhold the will from probate; in fact, he sought to probate the will and engaged counsel to effect the filing. The district court specifically found Laryl without fault, finding that he did not withhold the will from probate and had no reason to regain possession of the will prior to the 6-month deadline based upon McClintock’s false assurances. These findings appear to be supported by substantial competent evidence and will not be disturbed on appeal. See Owen Lumber, 283 Kan. at 915. Accordingly, Laryl was an innocent beneficiaiy for purposes of the savings clause of K.S.A. 59-618.
The grandchildren argue, however, that Laryl did not file his petition within 90 days after he had knowledge of and access to the will because he had both such attributes back in February after initially finding the will. This coalescence of knowledge and access, however, occurred before the second sentence had been triggered by McClintock’s withholding of the will from probate. In other words, in applying the saving provision of the second sentence, we believe the terms “such will” as employed twice within the savings provision can only mean a will that has been knowingly withheld from probate. When Laryl first had both knowledge and access to the will, it had not yet been knowingly withheld from probate, and the savings provision had no application. When Laiyl gained both knowledge and access to the will knowingly withheld from probate, he filed his petition for probate “within 90 days after such beneficiaiy has knowledge of such [withheld] will and access to it” under K.S.A. 59-618. (Emphasis added.)
As we have explained, Laryl indeed had knowledge and possession of the will during the 6-month period under K.S.A. 59-617, but the savings clause under K.S.A. 59-618 is not triggered until a beneficiaiy innocent of the withholding has knowledge and access to “such will,” i.e., a will knowingly withheld from probate. This event cannot occur at periods prior to the knowing withholding; in fact, if there has been no knowing withholding, there would be no need for the savings clause. The knowledge and access referred to in the savings clause can only occur after the withholding and with reference to a will knowingly withheld.
Our conclusion is entirely consistent with the ultimate conclusion of the district court, which held:
“It is clear from the evidence that Laiyl did not have both knowledge and access to the will simultaneously, as the statute mandates, until late June, 2006, when McClintock finally told him it was too late to file the will. Laryl then took the will back into his possession and the requirements of the statute, knowledge and access, came together at that instant.”
Our conclusion is also consistent with public policy in Kansas that favors probating every legally executed will and does not favor suppressing a will or withholding it from probate by narrow and technical applications of the statutes governing probate. See In re Estate of Harper, 202 Kan. 150, 158, 446 P.2d 738 (1968).
Affirmed. | [
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Leben, J.:
While on a conditional release under the extended jurisdiction of juvenile court, Sherrick Sims committed two adult felonies when he sold cocaine and obstructed official duty. The State persuaded the district court to run the sentence for his adult convictions consecutive to the underlying sentence for the juvenile adjudication because (1) his adjudication would classify as a felony if he had been an adult when he committed the crime and (2) K.S.A. 21-4603d(f)(1) mandates that a new felony committed while on “conditional release ... for a felony” shall be made consecutive to the sentence for the prior felony. But that statute doesn’t explicitly refer to juvenile adjudications, and the State’s interpretation of the statute is contrary to established Kansas caselaw that the legislature tells us explicitly when juvenile adjudications should count the same as adult convictions. We must vacate Sims’ sentence and remand the case for resentencing.
Sims was obviously unsuccessful on his conditional release for his juvenile adjudication as he committed two new felonies. He is now subject to the 27-month sentence in that juvenile adjudication, and the district judge sentenced him to 40 months in prison for the new felonies, to be run consecutive to the juvenile adjudication. If those two sentences must be served consecutively, he faces a total sentence of 67 months. On the other hand, if there is no authority to make the sentences consecutive, they must run concurrently, which would malee his total sentence the longer of the two concurrent sentences, i.e., 40 months.
For authority to make the sentences consecutive, the State relies upon K.S.A. 21-4603d(f)(1). That statute requires a consecutive sentence “[w]hen a new felony is committed while the offender is incarcerated and serving a sentence for a felony, or while the offender is on probation, assignment to community correctional services program, parole, conditional release, or postrelease supervision for a felony.” In the statute, the series of terms from probation to postrelease supervision all share the same relationship to the phrase “for a felony” conviction.
Our court previously addressed the meaning of “on probation ... for a felony” as used in this series. In State v. Fischer, 22 Kan. App. 2d 568, Syl. ¶ 2, 919 P.2d 368 (1996), we held that the phrase “on probation . . . for a felony” referred only to felony convictions and did hot include juvenile adjudications as they “are not criminal convictions.” Unless Fischer was wrongly decided, the same rule should apply to the rest of the terms in this series, including the part of the statute potentially applicable to Sims.
But we do not believe Fischer was wrongly decided. Indeed, it is in line with other cases. In In re W.H., 274 Kan. 813, 823, 57 P.3d 1 (2002), the Kansas Supreme Court found that the Kansas Juvenile Justice Code did not authorize consecutive sentences but that the sentencing guidelines for adult proceedings did authorize them. In In re J.E.M., 20 Kan. App. 2d 596, 600-01, 890 P.2d 364 (1995), our court noted that the severity-level-enhancement provisions of the Kansas Sentencing Guidelines Act did not reference juvenile adjudications but that the criminal-histoiy provisions of the Act explicitly did so. From this, our court concluded that the legislature had not meant to include juvenile adjudications as a basis for increasing the severity level of the sentence.
Two other rules of statutory interpretation guide us here, too. First, the expression of one thing in a statute implies the exclusion of all others. We recognize that this rule is one of negative implication and thus is sometimes unreliable as it is an inference based on the absence of something. See Eskridge, Frickey & Garrett, Legislation and Statutory Interpretation, pp. 263-64 (2d ed. 2006). But the juvenile-and adult-sentencing statutes are interrelated and have been carefully crafted. Juvenile adjudications are clearly referenced in several other adult sentencing statutes so we find the lack of explicit reference to them in K.S.A. 21-4603d(f) significant. It is unlikely that this exclusion was an accident. See In re J.E.M., 20 Kan. App. 2d at 600-01 (relying upon this rule of statutory construction to support the conclusion that juvenile adjudications were not a basis for applying adult severity-level-enhancement statutes). Second, under the rule of lenity, penal statutes are narrowly construed in favor of the defendant. State v. Zeit, 39 Kan. App. 2d 364, Syl. ¶ 3, 180 P.3d 1068 (2008); see also In re J.E.M., 20 Kan. App. 2d at 600 (relying upon this rule to support the conclusion that juvenile adjudications were not a basis for applying adult severity-level-enhancement statutes). To the extent that K.S.A. 21-4603d(f) is ambiguous about whether juvenile adjudications may serve as a trigger for the application of consecutive sentences, we should construe this statute in the defendant’s favor since consecutive sentences can have serious impact. It is surely within the legislature’s authority to provide for — or even to require — consecutive sentences. But such authority should be clearly granted, not implied from ambiguous language.
The State attempts to avoid the reach of the Fischer decision by arguing that Sims was subject to the extended jurisdiction of the juvenile court under K.S.A. 2007 Supp. 38-2364 (formerly K.S.A. 38-16,126), but Fischer was not. The State notes that K.S.A. 2007 Supp. 38-2364(2) provides that a juvenile receive “an adult criminal sentence” when the court is acting under its extended-jurisdiction provision. This is not is a distinction that makes a difference. The series of words, including “on probation” and “on conditional release,” still should be interpreted the same. In addition, even though Sims received an adult sentence in the juvenile proceeding, his juvenile “adjudication” did not turn into a “sentence.” And the State’s argument doesn’t impact the rules of statutory interpretation we have just discussed. The legislature has not explicitly provided in K.S.A. 21-4603d(f) that juvenile adjudications are in- eluded, and the rule of lenity argues against implying a serious penalty from ambiguous language.
Another panel of our court has recently concluded that none of the statutes authorizing consecutive sentences in adult criminal cases include probations or incarcerations arising from juvenile adjudications as a triggering mechanism for a consecutive sentence. State v. Crawford, 39 Kan. App. 2d 897, 185 P.3d 315 (2008). The panel in Crawford considered K.S.A. 21-4603d(f) and other statutes. We agree with that panel: K.S.A. 21-4603d(f) does not provide for consecutive sentences based upon previous juvenile adjudications. We also note, as the Crawford panel did, that we have addressed only the statutes that were in effect when the defendant in our case committed the crimes, which was in June 2006.
The State has raised one other argument that we must address; the State suggests that this case is moot because our record does not show that Sims’ conditional release in the juvenile case was revoked and that he was ordered to serve that sentence. But the party contending that an issue is moot has the obligation to provide some evidence in the record to establish that claim. See State v. McIntyre, 30 Kan. App. 2d 705, 706-07, 46 P.3d 1212 (2002). The State has not referenced any facts within the appellate record from which we can conclude that the case is moot. See State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.d 844 (2007).
Because K.S.A. 21-4603d(f) did not authorize consecutive sentences against Sims, the sentence entered against him is vacated. The case is remanded to the district court for resentencing. | [
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Per Curiam:
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The opinion of the court was delivered by
Fatzer, C. J.:
This appeal arises from a dispute over a lease with option to purchase agreement entered into by the appellant as lessee and the appellees as lessors. The subject matter of the agreement was approximately one-half section of farm land in Pawnee County, Kansas.
In 1944, the land in question was conveyed to “Clifford T. Russell and Ellen Russell, husband and wife, or the survivor of them for the period of their natural lives, and at the death of the survivor, their then living children . . . On June 27, 1972, Mr. and Mrs. Russell, for themselves and as attorneys in fact for their five children and their spouses, executed a “Farm Lease and Option to Purchase” agreement with the appellant. Under the terms of the agreement, the appellant had four months to exercise her option to purchase.
Within the four-month period, the appellant advised the appellees she wished to exercise her option to purchase the land. However, because of title defects, no lending institution would advance the appellant the required purchase price. Consequently, she suggested to the appellees that the sale be made on an installment contract basis. The parties discussed, the terms of an installment contract, but no final agreement was reached.
On June 29,1973, the appellant filed suit to specifically enforce the option contract and compel the lessors to deliver á warranty deed with marketable title, or in the alternative to proceed according to the terms of an installment contract. The appellees counterclaimed for possession of the land contending the option had not been properly exercised and the lease forfeited for nonpayment of rent.
Trial to the court commenced on October 21, 1975. Judgment was entered December 31, 1975. The district court held, inter alia, that the plaintiff had failed to properly exercise her option, that the lease was not extinguished, and that the parties should assume the same standing in relation to the premises as though there had never been an attempted exercise of the option.
The appellant filed a “motion for rehearing” on January 28, 1976. It was heard on February 26, 1976, and denied on March 5, 1976. On April 2, 1976, the appellant filed her notice of appeal from the district court’s order denying her motion for rehearing and relief from judgment under K.S.A. 60-260, and from that portion of the judgment of the district court denying specific performance of the option contract.
Before reaching the merits of the appeal from the district court’s judgment denying specific performance of the option contract, we must address a preliminary matter. After the appeal was docketed in the Supreme Court, the appellees filed a motion to dismiss. The motion was denied with leave to renew at the hearing on the merits. Appellees renewed their motion to dismiss in their brief and at oral argument.
The appellees contend the appeal from the district court’s judgment denying specific performance should be dismissed because the notice of appeal was not timely filed. We agree.
K.S.A. 60-2103(a) governs the time within which an appeal may be taken:
“When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.” (Emphasis added.)
K.S.A. 60-2103(o) parallels Federal Rule of Appellate Procedure 4(a). In 9 Moore’s Federal Practice, Par. 204.12[1], page 950 (2d ed. 1975), it is said:
“There are two points of critical importance with respect to the effect of post-decisional motions on the time for appeal: (1) only a motion of the kind enumerated in the second paragraph of Rule 4(a) will terminate the running of the time for appeal; and (2) such a motion will terminate the running of the time for appeal only if it is timely made.”
By the express terms of K.S.A. 60-2103(o), only a timely motion pursuant to K.S.A. 60-250(fc), K.S.A. 60-252(b) or K.S.A. 60-259 will terminate the running of the time for appeal. To be timely, such motions must be made within ten days after the entry of judgment.
Neither the “motion for rehearing” filed by the appellant nor the district court’s order denying the motion indicates under what statute the motion was filed. It was filed twenty-eight days after the entry of judgment. The record on appeal indicates that at the hearing on the motion, the appellant adopted the position that her motion was brought under K.S.A. 60-260. Her notice of appeal so states.
K.S.A. 60-260(h) was patterned after and is virtually identical to Rule 60(b) of the Federal Rules of Civil Procedure. Neagle v. Brooks, 203 Kan. 323, 454 P.2d 544. Rule 60(b) and K.S.A. 60-260(b) expressly provide that a motion under subsection (b) does not affect the finality of a judgment or suspend its operation. The Committee Note that accompanied original Rule 60(b) explained that application to the court under subsection (b) does not extend the time for taking an appeal, as distinguished from a motion for a new trial. See 9 Moore’s Federal Practice, par. 204.12[1], page 953 (2d ed. 1975).
Federal courts are in accord that filing a motion for relief from a judgment pursuant to Civil Rule 60(b) does not terminate the running of the time for appeal. Hodgson v. United Mine Workers of America, 473 F.2d 118 (D.C. Cir. 1972) is illustrative of the federal cases:
“. . . [Mjotions filed under Rule 60(b) for relief from a judgment or order do not toll the time for filing a notice of appeal from such judgment or order. Nor can Rule 60(b) be used to circumvent time requirements by the simple expedient of vacating a judgment and reinstating it in order to start anew the running of the appeal period.” (p. 124.)
The Supreme Court has only such appellate jurisdiction as is conferred by statute. This court has no jurisdiction to hear appeals not filed within the time limits set by K.S.A. 60-2103. Absent compliance with the statutory rule, this court has the duty to dismiss the appeal. Brown v. Brown, 218 Kan. 34, 542 P.2d 332. In the instant case, no timely motion as enumerated in K.S.A. 60-2103(a) was filed to toll the time for filing a notice of appeal, and the notice of appeal was not filed within thirty days of the entry of judgment. We therefore hold that the appeal from the judgment of the district court denying specific performance of the option contract should be and is dismissed.
The appellant also appealed from the denial of her motion pursuant to K.S.A. 60-260(b). Appeal from an order denying a motion under K.S.A. 60-260(b) brings up for review only the order of denial itself and not the underlying judgment. Neagle v. Brooks, supra; see 11 Wright & Miller, Federal Practice and Procedure, Civil § 2871 (1973). A motion for relief from a final judgment under K.S.A. 60-260(h) is addressed to the sound discretion of the district court. The scope of appellate review of the district court’s decision is limited to whether the court abused its discretion. Neagle v. Brooks, supra.
The appellant advances three grounds on which she contends the district court erred in not granting a rehearing on her K.S.A. 60-260(b) motion. She first contends the appellees’ contract of employment with attorney Morgan Wright made Wright and a Larned bank “indispensible parties” to the litigation, and it was error not to join them. The appellant states she learned of the provisions of the employment contract only after the time had passed for a motion for new trial. In her motion for rehearing, the appellant asked that the suit be retried with the “indispensible parties” joined.
K.S.A. 60-219 provides that a “contingently necessary person” subject to service of process shall be joined as a party in the action. Subsection (a) says a person is contingently necessary if:
“. . . (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may . . . (it) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”
In the “Employment Agreement and Power of Attorney,” the clients (Mr. and Mrs. Russell for themselves and as attorney in fact for their children) confirmed their employment of Morgan Wright as their attorney in handling events of the instant suit waged by the appellant and in prosecuting counterclaims in that action. The clients agreed to pay Wright a contingent fee for his services on any recovery, and, in addition, agreed to reimburse him for expenses properly incurred. The clients would owe Wright nothing for his services if no recovery were made. To secure Wright’s compensation, the clients authorized him to appoint a Larned bank as managing agent of the subject real estate. The bank was to serve as the client’s attorney in fact. The clients agreed that the powers granted to the bank as attorney in fact were irrevocable until Wright was fully compensated for his services and fully reimbursed for his expenses. The agreement expressly stated it created an attorney’s lien on the subject real estate as additional security for compensation and reimbursement under the agreement.
The appellant reads this agreement as placing the control and management of both the litigation and the real estate in the hands of Wright and an unnamed Lamed bank. The appellee contends no bank was ever appointed. A managing agent was not necessary until possession of the land was regained, and the district court ruled the appellant’s ten-year lease was still in effect.
The record on appeal shows no appointment, acceptance or act by anyone acting as managing agent of the land. The district court did not abuse its discretion in failing to vacate a judgment on the ground an unappointed attorney in fact was not joined as a party to the action.
Nor do we think the district court erred in refusing to vacate its judgment so attorney Morgan Wright could be joined as a party. Generally speaking, an attorney is not a party to a suit for which he is retained (7 C.J.S. Attorney and Client, Sec. 66 [1937]), and a contingent fee does not give an attorney such an interest in the litigation so as to make him a party (7 Am.Jur.2d Attorney at Law, Sec. 218 [1963]). To be sure, Wright did have an interest in the subject matter of litigation because of his contingent fee contract. However, this interest did not, in our view, make him a contingently necessary person under K.S.A. 60-219.
The appellant next contends the district court erred in not granting a rehearing on her 60-260 motion because Morgan Wright, while acting as counsel for the appellees, acquired an interest in the subject matter of the litigation contrary to Canon 5, DR 5-103. The express terms of Disciplinary Rule 5-103 refute this contention:
“Avoiding acquisition of interest in litigation. (A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may: (1) Acquire a lien granted by law to secure his fee or expenses. (2) Contract with a client for a reasonable contingent fee in a civil case.”
Finally, the appellant contends the district court erred in not granting a rehearing on the 60-260 motion because Morgan Wright as counsel for the appellees wrongly refused to permit his clients to settle this case in accordance with their agreement with the appellant, contrary to the rights of the litigants to exercise exclusive control over the subject matter of their lawsuits. The appellant makes the bald assertion that Wright advised his clients they could not settle their case without his consent and approval so as to further the litigation and increase his legal fees. The record does not bear this out.
It is generally recognized that while the attorney has exclusive control over procedural matters incident to litigation, the client has exclusive control over the subject matter of litigation. 7 Am.Jur.2d Attorney at Law, Sec. 149 (1963). For this reason, the client may, in good faith, settle or compromise his litigation or claims with the opposing party at any stage of the suit without the knowledge or consent of the attorney, and such settlements are favored by the law where they are honestly made for the simple purpose of ending the litigation with no intention of taking advantage of the attorneys. 7 C.J.S. Attorney and Client, Sec. 105 (1937). Neither a valid contingent fee contract nor an attorney’s lien can interfere with a client’s right to settle. 7 C.J.S. Attorney and Client, Sec. 187b (3), 231a. An employment contract which prevents the client from settling without the consent of the attorney is void as against public policy. Dannenberg v. Dannenberg, 151 Kan. 600, 100 P.2d 667; Railway Co. v. Service, 77 Kan. 316, 94 Pac. 262.
In the case at bar, the employment contract contained no provisions forbidding settlement by the client. Before suit was filed, the parties discussed terms of an installment contract as an alternative to purchase under the option contract. The appellant’s proposal was finally rejected by a letter from Wright on behalf of his clients. At trial, the parties were in favor of settling, but Wright opposed settlement on terms not in line with the actual value of the property. The record indicates that the value of the property in question was increasing throughout the period of this controversy. After trial, the parties again discussed terms of settlement, but the appellees “decided against accepting this settlement offer.” The appellees made a subsequent offer through Wright which the appellant did not accept.
The record leaves little doubt that Wright actively opposed settlement on terms he thought were out of line with the actual value of the property involved. It is possible he was overzealous in this respect. However, Wright’s clients make no complaint about his counsel regarding settlement. We note the record indicates the land was sold to a third party after the district court’s denial of the motion for rehearing. We cannot say the district court abused its discretion in denying a rehearing on the ground Wright improperly interfered with his clients’ efforts to settle.
The judgment is affirmed.
Schraeder, J., discents from Syllabus No. 5 (2). | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant-appellant (hereafter referred to as KG&E) appeals from a judgment entered on a jury’s verdict in the amount of $9,000.00 for damages to land and crops owned or leased by plaintiffs-appellees (Isemans). The damages stem from a core drilling operation by KG&E in connection with the planned construction of a major power plant in the area. On motion for a new trial the trial court ordered that a new trial be granted unless Isemans accepted a remittitur in the amount of $3,500.00. Isemans accepted the remittitur, but, nevertheless, have cross-appealed from the trial court’s order in this regard.
The land involved consisted of 400 acres owned by Isemans and 160 acres leased by them which was separated from their own land by a road.
On February 5, 1974, the Isemans and KG&E executed a written agreement which granted KG&E the right to enter upon the land and drill a series of exploratory bore holes, including the installation of casement pipe in the holes. It was agreed that when the holes were no longer needed for testing purposes all pipe and other installations above the ground would be removed by KG&E and the holes plugged in accordance with state laws and regulations. The portions of the agreement directly involved in this litigation read as follows:
“IT IS HEREBY AGREED that the KG&E shall pay to the grantors the sum of $750.00, or $25.00 per hole, whichever sum is greater, for the privilege of drilling said holes, and the same to be paid forthwith, or within fifteen days from the date of drilling holes.
“IT IS FURTHER UNDERSTOOD that KG&E shall pay the fair value of any damages caused to the land and crops caused by the installation, reading, testing, removal of equipment or plugging of said holes, said damage to be in addition to the sums paid for the privilege of drilling.”
On or about March 15,1974, employees of KG&E entered upon the land with core drilling equipment, which included a drilling rig or derrick mounted on a two-ton truck, another rig mounted on a D-3 caterpillar, two water tank trucks, a D-7 caterpillar dozer, and several smaller trucks. At the time of the drilling operation the ground was very wet and muddy. As a result, KG&E’s heavy equipment made deep ruts and depressions and tore up the soil when traveling to and from the core drilling sites. Isemans filed a petition in three counts, in the first of which they alleged damages in the amount of $25,000.00 to their own land; the second count alleged $7,000.00 damages to their interest in the leased land; and for their third count they claimed $35,000.00 in punitive damages.
The evidence discloses that there were twelve to fifteen such sites on the Iseman land and fourteen to seventeen sites on the leased land. Isemans took numerous photographs of the ruts and conditions of the ground during the drilling operations. The original colored photographs, which were received in evidence at trial, have been submitted with the record on appeal. There was evidence that the Isemans had to do extensive work to restore their cultivated farm land to permit the planting of row crops for the ensuing year. There was evidence of damages to the wheat crop and also to the pasture land. The evidence of damages consisted of the testimony of Iseman and several neighboring farmers. There was further evidence that KG&E requested permission to later enter upon the land with a bulldozer and attempt to smooth out or level off the damaged areas. Isemans refused this request and did not allow KG&E access to the land.
The following year, on April 14,1975, the land was condemned for a permanent easement by KG&E. We were informed on oral argument that Isemans are still farming their own and the leased land and that actual possession will probably not be taken by KG&E prior to 1980.
KG&E specifies four points of error on appeal. Its first point includes five subpoints which go to various rulings of the trial court during the course of the proceedings. Subpoints 1(b), 1(c) and 1(e) have been abandoned. Points two, three and four all go to the sufficiency of the evidence and arguments in support thereof have been merged by KG&E in its brief.
In subpoint 1(a) KG&E contends the trial court erred in not allowing it to present evidence which would have shown that it offered to return to the Isemans’ property and restore and repair it which, it is claimed, would have greatly reduced the damages. Our search of the record fails to reveal any reproduction of the proceedings in this connection or any proffer of evidence by KG&E as to precisely what it would have done to restore the premises and to what extent such restoration would have lessened the damages. It is, of course, incumbent upon an appellant to include in the record on appeal any matter upon which it intends to base a claim for relief on appeal. (State v. Farris, 218 Kan. 136, 542 P.2d 725, and cases cited therein.) However, it was conceded by counsel at oral argument that the matter was considered by the trial court at trial and that the court first ruled such evidence would be admitted as relevant to count III of plaintiffs’ amended petition, which contained plaintiffs’ claim for punitive damages. According to counsel, after plaintiffs dismissed their claim for punitive damages, the trial court ruled that evidence of KG&E’s offer would be excluded. Plaintiffs’ counsel argued that if plaintiffs had permitted KG&E to reenter the property with their heavy bulldozers and tractors, the result would have been to cause even more damage due to the wet condition of the soil at the time and that, therefore, plaintiffs’ refusal was reasonable.
The general rule is that only reasonable attempts to mitigate damage need be made by an injured party in order to escape a reduction from full recovery. (Cain v. Grosshans & Petersen, Inc., 196 Kan. 497, 413 P.2d 98; In re Estate of Stannard, 179 Kan. 394, 295 P.2d 610; and Fritz v. Western Light & Power Corp., 140 Kan. 250, 36 P.2d 90.) Plaintiffs’ cause of action herein stemmed from the contract in which KG&E agreed to pay “the fair value of any damages caused to the land and crops”; it was not necessary for plaintiffs to make a further agreement permitting KG&E to reenter. In this connection in Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 510 P.2d 1212, we held:
“In mitigating damages it is not necessary for the plaintiff to make another contract with the defendant who has repudiated, even though he offers terms that would result in avoiding loss.” (Syl. 9.)
On the record presented, at best, it would appear highly uncertain whether a reentry by KG&E with its heavy equipment would have actually lessened the damages. This statement of pertinent rules appears in 25 C.J.S., Damages, § 96:
“Uncertain and contingent possibilities cannot be taken into consideration in mitigation of damages. An offer to plaintiff of something other than that which he is entitled to as compensation is not admissible in mitigation; nor can defendant who is bound to make compensation in money compel plaintiff to accept it in another medium. . . .” (pp. 1001-1002.)
KG&E cites In re Estate of Stannard, supra, for the proposition that if offered an unqualified opportunity to mitigate damages, the aggrieved party must accept the opportunity. In the case at bar the contract only provided for damages if the crops and land were damaged by the drilling. There was no provision allowing KG&E to come back upon the land to do any further work. Under the circumstances, KG&E’s offer cannot be said to amount to any unqualified opportunity to mitigate damages.
KG&E also cites Creten v. Chicago, Rock Island & Pac. Rld. Co., 184 Kan. 387, 337 P.2d 1033, wherein plaintiff Creten’s irrigation pump was destroyed in a crossing accident. Creten made no effort to secure alternative irrigation and his crops died as a result. Creten sued for damages for the loss of his crops in addition to the loss of his pump. It was held that since Creten had made no effort whatsoever to save his crops he was not entitled to damages therefor.' This court applied the rule that one whose property is injured by another is bound to exercise reasonable care and diligence to avoid loss and minimize resulting damages. In the case at bar, Mr. Iseman did not sit back, do nothing, and then sue for total loss of crops. There was evidence that he made special efforts to minimize his crop loss. He chiseled the cultivated land four times and disked it twice in order to rehabilitate it as much as possible before planting his crops. There was also testimony that leveling and reseeding the damaged pasture would have been impractical since there was no way to fence off the damaged areas from the rest of the pasture because to do so would have cut off access to the stock watering ponds, the only water available in the pasture. The only thing plaintiffs were asked to do by KG&E was to enter into an additional agreement permitting reentry upon the land; under the circumstances shown such was not required to meet the test of reasonableness. We find no abuse of discretion in the trial court’s action in this regard.
KG&E states its second contention (l[d]) under point one in these words:
“The trial Court erred in its pre-trial, trial and post-trial rulings, decisions and orders in refusing to allow defendant to present evidence showing that plaintiffs did not own the damaged property at the time of the trial, and therefore, that no permanent damages had accrued to plaintiffs.”
We find no evidentiary ruling in the record upon which the point as stated could be based. From the argument on the point in the brief of KG&E, it appears the complaint is directed at the instructions on damages submitted by the court. The argument is that since Isemans were paid in May of 1975 for their 400 acres of land in a condemnation proceeding, which was prior to trial in September of 1975, their possessory interest in the land had terminated. KG&E says that the Isemans were in a situation analogous to that of a tenant and as such they were no longer the proper parties to be compensated for restoring land which was not theirs. KG&E cites Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012, wherein we held that evidence of damages to a tenant’s alfalfa field was only admissible as to damages suffered during the term of the tenant’s lease.
The contention of KG&E is without merit for several reasons. First, the record discloses no objection to the instruction given on damages; thus, under K.S.A. 60-251(fe), it became the law of the case unless clearly erroneous. (Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211.) The trial court gave the following instruction on damages:
“The damages claimed to growing annual crops should be determined by the amount shown by the evidence to have been lost due to the damage or destruction of said crops.
“As to the damage claimed to the land including damage to vegetation other than annual crops, you are instructed that such damage is of a temporary nature and is of such a character that the property can be restored to its original condition. The measure of damages is the reasonable cost of repair necessary to restore it plus a reasonable amount to compensate for loss of use of the property while repairs are being made with reasonable diligence, not to exceed the fair and reasonable market value of the real estate before the damage occurred.
“As to Count II, plaintiffs do not claim and are not entitled to the cost of restoring the 160 rented acres inasmuch as the tract is not owned by plaintiffs.
“In fixing the amount of damage to plaintiff, you should not include any loss which plaintiff could have prevented by reasonable care and diligence.”
A second fault in the position taken by KG&E, in this regard, is the fact that Isemans retained fee title to the land and, thus, had a possessory interest therein insofar as it did not conflict with the use of the easement obtained by KG&E in the condemnation proceedings. Isemans, likewise, retained a possessory interest in the leased land. Third, the condemnation of the land was clearly within the contemplation of the parties at the time the agreement was executed; nevertheless, KG&E agreed to pay the fair value of any damages caused to the land and crops as a result of its core drilling. The land in question will ultimately be used by KG&E as a site for a cooling lake for its proposed nuclear generating facility, but from the record, it appears the project will not be completed for several years. It is clear the agreement contemplated payment by KG&E to compensate Isemans for losses to their crops and the use of their land during the interim period.
The existence of a contract for the payment of damages distinguishes the case at bar from those cases in which a condemnation award is held to preclude an action for damages stemming from prior trespasses upon the same land. (See 33 A.L.R. 3d, Anno., AWARD OF, OR PENDING PROCEEDINGS FOR, COMPENSATION FOR PROPERTY CONDEMNED, AS PRE CLUDING ACTION FOR DAMAGES ARISING FROM PRIOR TRESPASSES UPON IT, p. 1132.)
We hold the subsequent condemnation of the land gave KG&E no immunity from liability for the damages which it had contracted to pay since the use damaged was wholly separate from the easement taken in the condemnation action.
As previously indicated, KG&E has combined its arguments with respect to points 2, 3 and 4 and states its contention in these words:
“The Court abused its discretion in refusing to grant a new trial in that there was no substantial evidence to support an award for loss of crops and all evidence of damages was based on speculative and conjectural testimony, and that there was no substantial evidence to support the jury’s award.”
The argument is premised primarily on the fact that no precise measurements were made as to the exact acreages damaged and that loss in yield from crops rested only on testimony given in the form of estimates. Isemans respond by first pointing out that no objections were lodged at trial to testimony of any of their witnesses concerning loss of crops or other evidence of damages and, therefore, the alleged error is not before us for review under the provisions of K.S.A. 60-404. By way of further response, Isemans point out that John Iseman and all of his witnesses were farmers with years of experience in tilling the land, planting and growing of pasture grasses and they disclosed sufficient knowledge to testify as experts which entitled their opinions to go to the jury; the degree of knowledge of the witnesses going to the weight of the evidence rather than to its admissibility. (Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P.2d 518.) The record is not clear as to whether the testimony of the Isemans’ witnesses was admitted as expert testimony, but as we have previously indicated, no objection was lodged on this or any other ground.
KG&E cites McCracken v. Stewart, 170 Kan. 129, 223 P.2d 963, wherein it was said:
“. . . This court has consistently held that damages cannot be established by statements of a witness based on mere opinion without regard to specific facts or knowledge upon which their opinions were based. Damages cannot be based on mere conjecture and speculation. . . .” (p. 136.)
While the damaged areas of the crop land were not actually measured, Mr. Iseman and other witnesses testified as to their ability to determine acreage by looking at a field. They specifi cally described how the deep ruts fanning out from the entrance gates and drilling sites because the ruts were too deep to be used again by the heavy equipment, thus, causing damage to a wide area. This is clearly reflected by the photographs which were employed to corroborate the testimony of the witnesses.
There was specific dollar amount testimony as to the cost of the additional disking, chiseling and harrowing necessitated by the damages. Mr. Iseman testified as to the price of wheat per bushel and that his loss was thirty-five bushels per acre for the 8.5 acres lost. He also fixed his loss of soybeans in bushels. There was testimony fixing the pasture damage on a pasture rental basis. This testimony was not objected to nor disputed.
In ruling on KG&E’s motion for a new trial, the trial court carefully reviewed the evidence on damages. The court found the verdict of $600.00 as to leased land in count II to be supported by the evidence. The court also found the evidence sufficient as to damages to the pasture land, but as to the crop land on the Iseman tract the court found the verdict to be excessive in the amount of $3,500.00. In arriving at the amount of remittitur the court considered the evidence of the acreage damaged and the proof of crop loss. The trial court heard and saw the witnesses and was in a far better position to evaluate the evidence than this court.
In considering the requirement of reasonable certainty with respect to proof of damages, this court has recognized that the evidence necessary is dependent upon the facts and circumstances of the particular case. (Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512.) Absolute certainty is not required in establishing damages suffered in a farming operation. (Rockey v. Bacon, 205 Kan. 578, 470 P.2d 804; Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513; Brown v. Hadley, 43 Kan. 267, 23 Pac. 492; and Hoge v. Norton, 22 Kan. [2d ed.] 374.)
In Vickers, which involved the loss of future profits resulting from a breach of contract, we held:
“The fact damages cannot be calculated with absolute exactness will not render them so uncertain as to preclude an assessment.” (Syl. 2.)
In the case at bar, KG&E specifically contracted to pay “the fair value of any damages caused to the land and crops” as a result of its operation. The damages suffered were clearly within the contemplation of the parties and we find the evidence thereof not so remote or speculative as to preclude assessment.
Isemans have perfected a cross-appeal from the trial court’s order granting a remittitur or in the alternative a new trial. They contend the trial court was without jurisdiction to grant a new trial on the ground of an excessive verdict, citing Mettee v. Urban Renewal Agency, 219 Kan. 165, 547 P.2d 356. The trouble with their position is that they accepted the remittitur, thus, acquiescing in the judgment. We have long followed the rule that anything which savors of acquiescence in a judgment cuts off the right of appellate review. (Haberer v. Newman, 219 Kan. 562, 549 P.2d 975; Seaman Dist. Teachers’ Ass’n v. Board of Education, 217 Kan. 233, 535 P.2d 889; Barnes v. Carroll, 207 Kan. 545, 485 P.2d 1293.) In Hawkins v. Wilson, 174 Kan. 602, 257 P.2d 1110, it was specifically held that a party loses his right to appeal where he consents to a trial court’s action in reducing a verdict.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workmen’s compensation case wherein Leonard J. Lentz died after suffering a heart attack while mowing grass at the power plant for the City of Marion, Kansas. The claimants, his widow and minor children, were denied compensation by the Workmen’s Compensation Examiner and Director, but were awarded compensation by the district court on favorable findings pursuant to the “heart amendment” of the Kansas Workmen’s Compensation Act. (K.S.A. 1976 Supp. 44-501.)
The underlying question on appeal is whether the findings of the trial court are supported by substantial competent evidence.
On April 24,1947, Leonard J. Lentz married the claimant, Vera M. Lentz. Six children were born to this marriage, two of whom remained in the home in September of 1974.
In 1971 Mr. Lentz began working as a light plant operator for the City of Marion, Kansas. Mr. Lentz normally worked from midnight to 8:00 a.m. Most of the duties of a light plant operator involved checking water pumps, taking hourly readings from engine temperature gauges, checking engines every fifteen to thirty minutes, mopping floors and keeping an engine cleaned and painted. To perform this work an operator must climb up and down stairs and must also put oil into the engines from 55 gallon barrels. Plant operators must also oversee the equipment during storms and emergencies. Occasionally it was necessary for off-duty plant operators to do repair and overhaul work on the engine and other equipment, and to mow the grass around the power plant. Overtime was paid the off-duty operators for both of these jobs.
On the afternoon of September 17, 1974, Mr. Lentz voluntarily returned to work to help Mr. Matz, another power plant operator, mow the grass. Both men clocked in and began mowing; Mr. Lentz with a push-type power mower cutting the grass around plumbing pipes and other obstructions, and Mr. Matz with a riding mower in the bigger areas. The day was warm, about 80 degrees Fahrenheit. The grass was bermuda and had grown fairly tall because it hadn’t been mowed for about three weeks, so it required considerable effort and exertion to push the power mower. The wind was from the south, and Mr. Lentz was mowing on the north side of the power plant where there was no breeze. Mr. Lentz worked for more than an hour, then stopped to smoke a cigarette and drink some water. He then resumed mowing until he ran out of gas. He refilled the gas tank but a short time later told Mr. Matz he was not feeling well. Mr. Lentz then went into the plant and collapsed. Efforts to revive him were unsuccessful. Death was attributed to a myocardial infarction.
A claim was timely filed by the decedent’s widow. Stipulations were agreed upon as to the place of the accident, the average weekly wage and prior payments. The examiner found the claimants established the grounds necessary for recovery except the claimants failed to maintain the burden of proof in establishing that the decedent’s coronary was the result of exertion beyond the usual work in the course of his regular employment. No review by the Workmen’s Compensation Director was requested, and on October 17, 1975, the examiner’s award was approved.
On appeal to the district court of Marion County the Director was reversed and the district court awarded compensation. In pertinent part, the district court found:
“8. Decedent had not ever before done the identical work that he was doing on the date of his death.
“9. The Court finds as a mixed issue of fact and conclusion of law that claimants have sustained their burden of proof by establishing the decedent’s death was the result of a coronary, that the coronary was a result in exertion beyond the usual work in the course of his regular employment, that the operators of the power plant did on some occasions mow the grass, and that the foreman of the power plant did on some occasions mow the grass, but that this particular employee had not on any past occasions mowed the grass. Therefore, an award in favor of the claimants and against the respondent and insurance carrier should be and it is allowed in this case.”
The employer and insurance carrier have duly perfected an appeal from that judgment.
In 1967 the legislature amended K.S.A. 44-501 by adding the “heart amendment” which reads:
“. . . Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment.”
A number of cases have arisen under this amendment. Two recent “heart amendment” cases which review the applicable principles are Suhm v. Volks Homes, Inc., 219 Kan. 800, 549 P. 2d 944, and Woods v. Peerless Plastics, Inc., 220 Kan. 786, 556 P. 2d 455.
The appellants first contend “the trial court erred in its finding that the employee had never performed one of his regular employment duties prior to his death.” This contention focuses upon finding No. 8 and the portion of finding No. 9, which reads:
. . [TJhis particular employee had not on any past occasions mowed the grass. . . .”
All the testimony in the record indicates Mr. Lentz had mowed the power plant lawn on prior occasions. Mr. Lentz had not mowed the grass in 1974, but he had mowed it previously. However, the record does not disclose that Mr. Lentz had used the push-type power mower in tall bermuda grass in the past. This is apparently what the district court meant by its eighth and ninth findings of fact.
The appellants’ quibble over the district court’s findings on the record here presented is immaterial. Whether the deceased workman had done “identical work” does not supply an answer to the crucial inquiry: whether the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of the workman’s regular employment under K.S.A. 1976 Supp. 44-501.
On this point the appellants contend the trial court erred in finding that the decedent’s death was the result of exertion beyond the usual work in the course of his regular employment. The issue is whether the exertion required to mow the grass was more than the workman’s usual work in the course of the workman’s regular employment.
Whether the exertion of the work necessary to precipitate the disability was more than the workman’s usual work in the course of his regular employment presents a question of fact to be determined by the trial court. (Nichols v. State Highway Commission, 211 Kan. 919, 508 P. 2d 856; Suhm v. Volks Homes, Inc., supra at 805; and Woods v. Peerless Plastics, Inc., supra at 788.) Findings of the trial court in this regard will be upheld on appeal where supported by substantial competent evidence. (Calvert v. Darby Corporation, 207 Kan. 198, 483 P. 2d 491; Nichols v. State Highway Commission, supra at 926; and Woods v. Peerless Plastics, Inc., supra at 788.)
The appellants rely on the testimony of Orl Stage, the plant foreman, and Leslie Ford, another power plant operator, to support their position. However, Mr. Bredemeier, the superintendent of utilities for the City of Marion, Kansas, testified:
“Q. All right. Now, would you give the Examiner the benefit of your best judgment as to whether it would take more energy or less to mow the grass as compared to the duties of the operator?
“A. It would take more energy to mow the grass.
“Q. All right. Do you have an opinion as to whether it would be slightly more energy or a good deal more energy, or what, to mow the grass as compared to carrying out the duties of the operator, generally?
“A. Why, I would say it would be quite a bit more energy than that.”
Although Mr. Bredemeier admitted a light plant operator would best know the amount of exertion required to do that work, Mr. Bredemeier testified he was familiar with the work by his inspections or supervision of the power plant. Therefore, Mr. Bredemeier’s opinion is relevant and material. (See Deines v. Greer, 216 Kan. 548, 550, 532 P. 2d 1257; Vocke v. Eagle Picher Co., 168 Kan. 708, 215 P. 2d 185; and 81 Am. Jur. 2d, Witnesses, Sec. 139, pp. 179-180.)
Here the record reveals the decedent mowed (1) for the first time in September of 1974, (2) tall bermuda grass, (3) with a push-type power mower, (4) on an afternoon of a hot day where there was no breeze, (5) after working his regular eight hour shift at night. What is usual exertion, usual work and regular employment as those terms are used within the meaning in the “heart amendment” will generally depend upon a number of facts and circumstances among which the daily activities of the workman may be one, but only one, among many factors. (Nichols v. State Highway Commission, supra at 925; and Suhm v. Volks Homes, Inc., supra at 805.) The record here discloses substantial competent evidence to support the district court’s finding that the decedent performed more than his usual work in the course of his regular employment.
Testimony of Dr. Thomas C. Ensey, Mr. Lentz’ family doctor who examined Mr. Lentz shortly after the fatal heart attack, is sufficient to establish that the physical exertion of mowing the grass on September 17, 1974, was greater than the exertion of his usual work and precipitated the myocardial infarction. We distinguish Muntzert v. A.B.C. Drug Co., 206 Kan. 331, 478 P. 2d 198 and Dolan v. Steele, 207 Kan. 640, 485 P. 2d 1318, because there causation was not established ánd the usualness of the exertion became irrelevant.
Here the decedent, a regular employee of the respondent, volunteered to work overtime for the purpose of mowing the grass on his employer’s premises.
Although the heart amendment refers to “regular employment,” other workmen’s compensation cases in this jurisdiction refer to accidents arising “out of his employment.” The phrase “out of employment” points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. (Carney v. Hellar, 155 Kan. 674, 677, 127 P. 2d 496; and Pinkston v. Rice Motor Co., 180 Kan. 295, 302, 303 P. 2d 197.) The phrase “in the course of employment” simply means that the injury happened while the workman was at work in his employer’s service. The phrase relates to the time, place and circumstances under which the accident occurred. (Carney v. Hellar, supra at 677.) Stated another way, personal injury by accident befalls a workman if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time. (Pinkston v. Rice Motor Co., supra at 301.)
Here the parties do not challenge the trial court’s finding that the decedent met with personal injury resulting in his death by an accident on the date of his death, which arose out of and in the course of his employment.
An off-duty regular employee who volunteered to do work for his employer to fulfill a rush order was held to be covered by the Workmen’s Compensation Act when he suffered a fatal heart attack while unloading the order at the customer’s address in Bituminous Casualty Corporation v. Ligon, 290 F. 2d 694 (5th Cir. 1961). The court there rejected a contention that the workman was either a casual employee or a “volunteer.” The court said an employment contract was implied from the special delivery request or implied from a continuation of his previous active employment. The workman was said to be no casual stranger seeking work or offering to do a favor. (See 1A Larson, Workmen’s Compensation Law, Sec. 47.41 [1973] pertaining to “volunteers.”)
The record contains passing references to the heat encountered by the decedent on the day of his death. However, the parties made no attempt to show that heat, as an external force, was a precipitating cause of death. (Woods v. Peerless Plastics, Inc., supra at 790; compare Dial v. C. V. Dome Co., 213 Kan. 262, 515 P. 2d 1046.
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