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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a declaratory judgment action from an order of the trial court construing a garagekeepers’ legal liability endorsement to an insurance policy, which insured against loss to an automobile caused by “malicious mischief or vandalism,” to cover theft of three magnesium wheels and racing tires from an automobile entrusted to the garagekeeper and stored on his premises for repair.
On May 26, 1975, the trial court found the insurance policy ambiguous and ruled for the insured. The trial court’s memorandum opinion, filed May 27, 1975, set forth the conflicting case authorities (Thomas v. Pennsylvania Fire Insurance Company, 163 So. 2d 202 [La. Ct. App. 1964], writ denied, 246 La. 583, 165 So. 2d 481 [1964]; and Parnell v. Rohrer Chevrolet Co., 95 N.J. Super. 471, 231 A. 2d 824 [1967]) and concluded:
“In view of the foregoing, the Court finds that it is foremost in law and public policy that the ruling and philosophy of the New Jersey Court be adopted and that this court adopts such an interpretation in this particular case.”
The memorandum opinion further directed:
“Counsel for the defendant will please draw a journal entry reflecting the foregoing.”
(See K.S.A. 60-258[b] [Corrick]; and Brown v. Brown, 218 Kan. 34, 542 P. 2d 332.)
The record on appeal presented to this court does not reflect any further action by the parties. On October 7, 1975, a notice of appeal, dated October 3,1975, was filed by the plaintiff, Hartford Accident & Indemnity Company. This notice of appeal provided:
“NOTICE OF APPEAL
“(Filed October 7, 1975)
“TO: NANCY J. FAULKNER and John Fierro, her attorney
“Take notice that the under signed, Hartford Accident & Indemnity Co., does and has appealed from the decision rendered and made in the above entitled action on the 27th day of May, 1975, whereby it was by said court decided, ordered and adjudged that the petition for Declaratory Judgment of plaintiff herein was denied.
“Dated: 3 Oct. 75.”
Since this notice of appeal purports to appeal from the May 27, 1975, decision of the trial court, it is out of time.
Pursuant to Article 3, Sec. 3, of the Kansas Constitution this court has only such appellate jurisdiction as is conferred by statute. K.S.A. 60-2103 (a) provides specifically that when an appeal is permitted by law the time within which it may be taken shall be 30 days from the entry of judgment. Since the present appeal was not filed within the prescribed 30 days, this court has no jurisdiction to consider the merits of the issues raised. (Fildes v. Fildes, 215 Kan. 622, 527 P. 2d 1007; and St. Francis Mercantile Equity Exchange, Inc. v. Walter, 211 Kan. 76, 505 P. 2d 775.)
A review of the district court’s records reveals that on August 4, 1975, an order was filed stating the defendant should have declaratory judgment against the plaintiff as set forth in the trial court’s memorandum opinion. No request was made to the district court for an extension of time for the filing of the appeal under K.S.A. 60-2103(a). Even if the order filed August 4, 1975, should be construed as the requested journal entry, the appeal is still out of time. (Brown v. Brown, supra.)
Accordingly, the appeal is dismissed. | [
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Per Curiam.:
Affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction for the offense of unlawfully possessing a firearm with a barrel less than twelve inches in length within five years of a felony conviction, contrary to the provisions of K.S.A. 21-4204(l)(b).
The facts may be briefly stated. Gary Dean Hoskins, the defendant, and his wife Kathy owned a camper-trailer. In late November of 1974, the defendant asked for and received permission from his brother-in-law, Charles Payne, to park his camper on Payne’s property near his house in Colwich, Kansas. On November 30, 1974, the defendant and his wife walked to the Payne house. The defendant was carrying a .38 Special R. G. revolver having a two-inch barrel that had been in his camper and showed it to Payne. At approximately 6:00 p.m., the defendant used Payne’s telephone to call Robert Kyle, his father-in-law. An angry conversation ensued. After the telephone conversation, the defendant went to his camper.
The defendant later returned to the Payne house. He had been drinking heavily. He again telephoned Kyle. In the second conversation, Hoskins threatened to kill Kyle. After the telephone call was ended, Mrs. Payne telephoned Kyle and asked him to apologize to the defendant to calm him. Kyle agreed and the defendant took the telephone. After he hung up, he turned to Mrs. Payne and said, “I am still going to kill him.” The defendant went to the living room; Charles Payne followed. Payne put his arm around the defendant and felt the shape of a gun in his right front pocket. The defendant approached his wife, Kathy, who was sitting on the divan in the living room. When he was a few feet from her, he said, “Get up. You are going with me.” Kathy refused. The defendant put his hand into his pocket and said, “Get up ... I am going to count — 1, 2, 3.” Charles Payne then wrapped his arms around the defendant, preventing him from taking his hand and gun from his pocket. The defendant swiveled the gun inside his pocket. The gun fired; the bullet went through his pocket, through the divan and lodged in the floor.
Pamela Payne ran to a nearby house and called the Sedgwick County Sheriff. Sheriff’s officers arrived at the Payne house at 9:15 p.m. Gary Hoskins walked out of the house, and officers apprehended him. They found the .38 revolver in his right front pocket.
The defendant was charged with unlawful possession of a firearm within five years of a felony conviction (K.S.A. 21-4204). The information stated he had been convicted of the crime of robbery by fear in Oregon in 1971 and had been imprisoned in the Oregon State Penitentiary as a result of such felony conviction.
Trial to a jury commenced on April 16, 1975. Conflicting evidence was presented as to the defendant’s possession of the gun. The defendant relied on the defense of voluntary intoxication. On April 18, the jury returned a verdict of guilty, and this appeal followed.
The appellant first contends the district court erred in its instructions to the jury. The contention is based on the theory the district court “confused the jury by not relating its instruction on the effect of intoxication ... on the knowing possession as a state of mind, a critical element in the firearm charge. . . .”
The defendant neither objected to the instructions given nor requested any additional instructions. Hence, our review is limited to determining if the instructions were “clearly erroneous.” K.S.A. 22-3414(3); State v. Wright, 219 Kan. 808, 549 P.2d 958; State v. Suing, 210 Kan. 363, 502 P.2d 718.
The appellant conceded at oral argument that the instructions were not clearly erroneous, and we agree. The district court instructed the jury on voluntary intoxication and defined the terms “knowingly” and “possession.” These instructions were standard instructions which covered the appellant’s theory of the case. We cannot say they were clearly erroneous. If the appellant wanted the instructions qualified or expanded in some particular, he should have so informed the district court.
The appellant next contends the district court improperly took judicial notice that the prior Oregon offense of robbery by fear is a felony. The point is not well taken.
K.S.A.60-409(a) commands that:
“Judicial notice shall be taken without request by a party, of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States. . . .”
In 1971, the appellant was convicted of the crime of robbery by fear in the State of Oregon. A certified copy of the journal entry of judgment showing the appellant’s Oregon conviction was introduced in the state’s case in chief. That crime was a felony. Or. Rev. Stat. 1969 Supp. 163.290, 161.030.
At trial, the appellant never contended the Oregon offense was not a felony. In fact, defense counsel stipulated it was. The fact that the district court did not have the Oregon statutes before it does not render erroneous its taking judicial notice that the Oregon offense was a felony.
The appellant’s final contention is that the district court erred in failing to instruct on the lesser included offenses of carrying a concealed firearm (K.S.A. 21-4201[l][d]) and aggravated weapons violation (K.S.A. 21-4202).
The appellant was charged with unlawful possession of a firearm. The offense is defined in K.S.A. 21-4204(1)(¿>):
“(1) Unlawful possession of a firearm is
“(b) Possession of a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.”
Unlawful possession of a firearm is a class D felony.
K.S.A.21-4201(l)(d) provides:
“(1) Unlawful use of weapons is knowingly:
(d) Carrying any pistol, revolver or other firearm concealed on the person except when on his land or in his abode or fixed place of business; . . .”
Unlawful use of weapons is a class B misdemeanor.
K.S.A. 21-4202 converts the offense into a class E felony if the accused has a prior felony conviction within a certain time period. The section provides:
“An aggravated weapons violation is a violation of any of the provisions of K.S.A. 1969 Supp. 21-4201 by a person who within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.”
K.S.A. 21-3107 governs the definition of and instruction on lesser included offenses:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: (a) A lesser degree of the same crime; [b) An attempt to commit the crime charged; (c) An attempt to commit a lesser degree of the crime charged; or (d) A crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, ndt only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
Our first inquiry must be whether the offenses of carrying a concealed firearm or aggravated weapons violation are lesser included offenses of unlawful possession of a firearm. If they are, we must then decide if instructions on the lesser included offenses were required under the instant information and evidence.
In State v. Woods, 214 Kan. 739, 744, 522 P.2d 967, 971, it was said:
“. . . If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense.” (Accord, State v. Evans, 219 Kan. 515, 548 P.2d 772.)
In Note, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L.J. 40, 43-44 (1976) it was said:
“In several jurisdictions, including Kansas, a lesser included offense must not require any element not required by the crime charged. In other words, there must be ‘identity of elements.’
“The identity of elements requirement is also found in the Kansas statute covering lesser included offenses. Under (a), ‘a lesser degree of the same crime,’ the crime charged will always include all the elements of the lesser degree of that crime. . . . Under (d), ‘a crime necessarily proved if the crime charged were proved,’ the lesser will require no elements not in the greater.”
The elements required to prove unlawful possession of a firearm (K.S.A. 21-4204[l][b] are not the same as the elements required to prove either carrying a concealed weapon (K.S.A. 21-4201[l][d]) or aggravated weapons violation (K.S.A. 21-4202). The former requires proof that a defendant knowingly had possession of a firearm with a barrel- less than twelve inches long. (See PIK Crim. 64.06) The latter, that a defendant knowingly carried a firearm concealed on his person. (See PIK Crim. 64.02) The “knowing” element satisfies the requirement of criminal intent which is an essential element of all crimes defined by the Kansas Criminal Code unless specifically excepted. See K.S.A. 21-3201; State v. Lassley, 218 Kan. 752, 545 P.2d 379.
The possession of a firearm proscribed by K.S.A. 21-4204 is not the innocent handling of the weapon but a willful or knowing possession of a firearm with the intent to control the use and management thereof. State v. Neal, 215 Kan. 737, 529 P.2d 114. Possession is defined as having control over a place or thing with knowledge of and the intent to have such control. Id. This possession does not have to be actual physical possession on one’s person. For example, unlawful possession may be proven even if the pistol is inside a toolbox in the trunk of the accused’s car. State v. Atkinson, 215 Kan. 139, 523 P.2d 737. “Possession” does not require either “carrying” or “concealment.”
Because carrying a concealed weapon (K.S.A. 21-4201[l][<i]) requires proof of an element not required for proof of unlawful possession of a firearm (K.S.A. 21-4204[ 1 ][¿>]), the former cannot be a lesser included offense of the latter. It follows that aggravated weapons violation cannot be a lesser included offense of possession of a firearm either, because conviction of carrying a concealed weapon is necessary to trigger the aggravated weapons conviction. Hence, the district court committed no error in failing to instruct on lesser included offenses.
The judgment is affirmed.
Fromme, Owsley and Prager, JJ.: Concur in results. | [
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The opinion of the court was delivered by
Fromme, J.:
Wayne E. Johnson was convicted of first degree murder in the death of Mary Ann Moore. He appeals the conviction and raises various trial errors including errors based on the alleged insufficiency of circumstantial evidence.
The body of Mary Ann Moore, age 26, was discovered in the back seat of her automobile between 11:30 and 12:00 midnight on August 22,1975. The car was on 18th Street just north of Merriam Lane in Kansas City, Wyandotte County, Kansas. Police officers were called to the scene. When they arrived the body of the victim was still warm but they found no vital signs. They arrived about midnight. The victim died of multiple stab wounds in her back. She was fully clothed.
An autopsy was performed and the coroner testified he located a tampax pad in the vagina which was fully inserted, that he removed the tampax pad and made certain tests but found no evidence of recent sexual intercourse.
The police located Victoria Lombardo, a friend of the victim, who had been with Mary Ann Moore that evening. She informed the police that the victim had been drinking with her in various clubs in Missouri where they met two men, Wayne E. Johnson and Billy Greenfield. She advised the police that Mary Ann Moore was last seen by her in the company of Wayne E. Johnson at approximately 11:10 p.m. when the two drove off together in an automobile owned by Miss Moore — ostensibly to go to a club in Sugar Creek, Missouri.
Billy Greenfield was located by the police and accompanied the officers to 210 N. Clinton, Kansas City, Missouri, where the defendant-appellant lived. Greenfield testified at the trial and corroborated the testimony of Victoria Lombardo with one minor exception. He fixed the time when the defendant and Mary Ann Moore left the group at 10:30 or 10:45 p.m.
When the officers and Mr. Greenfield arrived at 210 N. Clinton, in Kansas City, Missouri, to talk with the defendant, he attempted to elude the officers by fleeing out the back door. The defendant was captured and transported to the Kansas City, Kansas, police department. The officers testified he voluntarily accompanied them to Kansas and expressed a desire to help them complete the investigation into the death of Mary Ann Moore.
The defendant gave three different versions of what happened to Mary Ann Moore. He told Billy Greenfield that Miss Moore was picked up by an unknown male at a bar in Kansas City, Missouri, and that he did not see her thereafter. He gave a second version to the police officers immediately on his return to Kansas. In a signed statement he said that he and Miss Moore had sexual intercourse in her car, that they later picked up a man by the name of John Taylor and that John Taylor killed Miss Moore when she refused to have sexual intercourse with him. Defendant stated that he was driving the car, that Miss Moore was killed in the back seat, that he became afraid of John Taylor and that he abandoned the couple and left the car on foot.
After a diligent search the police were unable to locate the man defendant had described and named as John Taylor. When they advised the defendant of this he gave a third version of what happened. The statement was taken in writing and introduced at the trial. A Jackson-Denno hearing was held on the voluntariness of the statement. In this statement the name of John Taylor was changed to Tony Ross. Defendant stated that Miss Moore and he had sexual intercourse twice during the evening and that he offered to perform oral sex on her. Other details of the incident were about the same as in his second version.
Several days after the body was found the police made a complete search of the murder scene. Defendant had told the police that when he abandoned the car and fled from Taylor, or Ross, that he fled in a southeasterly direction on Merriam Drive and eventually arrived at a private club some distance from where the car was located. A knife was found lying in the grass seven feet from the curb on Merriam Lane and about 90 feet east of 18th Street. A search warrant was obtained for defendant’s residence and the police seized four steak knives in the kitchen which were identical to the knife found near the murder scene. The patholo gist testified concerning traces of blood which were found on both the knife and on the sole of one of defendant’s shoes. This testimony was inconclusive because the pathologist could not identify the type or kind of blood from the minute samples available. The testimony of the pathologist did indicate that the stab wounds in the victim were not more than three inches deep and appeared to have been made with a small knife.
There was further evidence of a prior crime committed by defendant which was admitted pursuant to K.S.A. 60-455. Kathy Flakes, a young married woman, testified at the trial that a year earlier defendant had assaulted her with a steak knife after gaining unauthorized entry into her apartment, that he forced her to perform oral sex on him and that he threatened to kill her if she screamed. She originally filed charges against defendant but later dismissed them because of fear and worry over a public trial. This evidence was admitted as bearing on proof of identity.
The defendant on appeal first points to certain conflicts in the evidence and argues the state’s circumstantial evidence failed to exclude every reasonable hypothesis of innocence. He states the trial court erred in refusing to sustain his motion for a directed verdict of acquittal and in failing to set aside the verdict.
In State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374, the rule which governs is stated as follows:
“It is the prerogative of the jury to determine the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences of fact which may be drawn from the evidence; so, a trial judge in passing on a motion for directed verdict of acquittal should consider the evidence, keeping in mind the prerogative of the jury, and if he concludes a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt of the crime charged, he must submit the case to the jury.” (Syl. 2.)
When considering the sufficiency of circumstantial evidence to sustain a conviction of a crime on appeal the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and the trial court. The appellate court’s function is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt. (State v. Rincones, 209 Kan. 176, 178, 495 P.2d 1019; State v. Ritson, 215 Kan. 742, 529 P.2d 90; State v. Duncan, 221 Kan. 714, 562 P.2d 84.)
Applying these time honored rules to the evidence in this case the appellant’s claims of error based upon the insufficiency of the evidence are without merit.
The appellant next contends that identity of the murderer was not an issue in the case, that the testimony of Kathy Flakes was not admissible under K.S.A. 60-455 and that prejudicial error resulted.
The testimony was offered and admitted for proof of identity. The jury was given a proper limiting instruction. Appellant contends identity was not an issue for he admitted being at the scene and saw another man attacking the victim. In State v. Henson, 221 Kan. 635, 562 P.2d 51, this court considered the same issue. In Henson defendant admitted being in the apartment where the young woman was murdered and testified he went to the apartment to sell some drugs to a man by the name of Larry Workman. Henson further testified that when he arrived Workman was not there and the naked body of the young woman was lying on a bed in the apartment. Our holding in Henson would seem to control the instant case where defendant identified Taylor, or Ross, as the murderer and denied the charges by the state. Identity was held to be a substantial issue in Henson.
In State v. Faulkner, 220 Kan. 153, 551 P.2d 1247, the court set forth guidelines for evidence of prior crimes, saying:
“In ruling on the admissibility of evidence of a prior conviction under 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact — i.e. that it is substantially in issue and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.” (p. 155.)
See also State v. Watkins, 219 Kan. 81, Syl. 10, 547 P.2d 810, and State v. Henson, supra, Syl. 2.
When the trial court determines there is a similarity of offenses, which similarity has relevance in proving specific matters in issue, the prior offense may then be admitted. See State v. Gunzelman, 210 Kan. 481, 488, 502 P.2d 705, 58 A.L.R. 3rd 522, State v. O’Neal, 204 Kan. 226, 231, 461 P.2d 801, and State v. Henson, supra. Both offenses in the present case involved assaults on young women with steak knives and included sexual relations either before or during the assaults. Both assaults allegedly took place while defendant was present. There was testimony concerning an act or offer of oral sex between the defendant and the victims. The testimony was relevant in this case on the issue of identity and was properly admitted. The identity of the murderer of Mary Ann Moore was substantially in issue and applying the balancing procedure referred to in State v. Bly, 215 Kan. 168, 523 P.2d 397, there was no undue prejudicial effect in admitting the evidence of the prior offense.
Appellant next contends that the trial court erred in refusing to grant a new trial for newly discovered evidence.
The evidence bearing upon this question surfaced almost four months after the trial and after a motion for new trial had been denied. A sixty year old housewife, Anna Swaffar, got in touch with the attorney who defended the accused after reading about the trial in the local paper. At a hearing on a second motion for new trial she testified she saw a car pass her house on Highway 24 on the evening of August 22. She stated that a woman was standing in such a way that her head and shoulders were outside and above the roof of the car. The woman was screaming and the car door was open. The car was traveling from 10 to 35 miles per hour and was on the highway 50 or 60 feet from the Swaffar house. Mrs. Swaffar testified that it appeared that someone in the back seat of the car pulled the woman back into the car and closed the door. She gave a general description of the driver of the car as having long hair, a long face and irregular features. She established the time at exactly 10:00 by reason of a television newscast which her husband turned on just before the incident. She stated she had a floodlight in her yard and the only obstructions between her house and the highway were some trees and maybe some cars. She lives in Independence, Missouri, and she said a car going to Kansas on Highway 24 would have been traveling west. Her house was north of this four lane highway. The car she saw was traveling east in the outside lane on the south side of the highway. She testified that she could plainly see the man that was driving and he was looking straight ahead while the woman was screaming and the other man in the back seat pulled the woman back into the car. She described the car as having four doors and being dark in color. She testified that she did not report the incident to the police because she thought it was just a family quarrel and did not connect it with the newspaper account of the death which appeared the next morning: It was not until six months later when she read about the trial of Wayne E. Johnson that she connected the two incidents. Two months later she called the defendant’s attorney. She testified she did not know Wayne E. Johnson but had seen his picture. It is not clear in the record whether she saw his picture in the newspapers before she was shown his picture in court and identified him as the driver. She gave no reason for calling the attorney rather than the police department.
The rules for granting of a new trial for newly discovered evidence have often been stated. 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.)
The trial court after taking the matter under advisement denied the motion because of discrepancies which raised serious questions as to the credibility of the evidence. The evidence appeared insufficient to produce a different result on re-trial.
Mrs. Swaffar lived in Independence, Missouri. Her residence was seven or eight blocks from Captain John’s Club where Johnson and Greenfield first met Miss Moore and Miss Lombardo. Defendant testified that he and Miss Moore had left Independence before they picked up Taylor, or Ross. Taylor was picked up in Kansas City, Missouri, after they had visited several other clubs and had had sexual intercourse. According to defendant’s testimony the first assault on Miss Moore took place in Kansas City, Missouri, and immediately thereafter defendant drove the car across the bridge and into Kansas going west. The car which Mrs. Swaffar described as being dark in color and going east in front of her house in Independence, Missouri, could hardly be the victim’s car which had a white top and was proceeding west into Kansas when the attack first occurred. The time of the incident which Mrs. Swaffar described was definitely fixed at 10:00 p.m. by the television newscast. All the witnesses testified that Miss Moore was in good health when she left in the company of the defendant sometime after 10:30 and possibly as late as 11:10 p.m. There were other physical factors where the incident was alleged to have occurred which did not lend credibility to Mrs. Swaffar’s testimony.
Considering the function of this- court on appellate review, the burden on the defendant in such cases and the trial court’s discretion as to the credibility and materiality of newly discovered evidence, it cannot be said the trial court abused its discretion. We determine that the motion was properly denied.
The appellant’s next point concerns the written statements given to the officers. He contends these statements were rendered involuntary by an illegal arrest in Missouri, a denial of counsel in Missouri and inordinate delay in bringing him before a magistrate in Kansas.
The testimony bearing on the alleged illegal arrest and denial of counsel in Missouri was in sharp conflict. The appellant’s testimony was that when the officers knocked on the door of his residence in Missouri he ran out the back door, was captured, handcuffed and brought back to Kansas after being refused permission to talk with an attorney in Missouri.
The officers testified appellant was initially handcuffed by a Missouri officer, who had a warrant for appellant’s arrest on another matter, but that appellant was later released by the Missouri authorities. The Kansas officers testified that when he was released by the Missouri authorities they advised the appellant of the death of Mary Ann Moore and asked him to come to their office in Kansas and make a statement. The officers testified the appellant at that time advised them he would return to the Kansas office in order to get the matter straightened out. An officer, when testifying at the hearing on the admissibility of the statement, said appellant was not under arrest at that time and did not object to coming back to Kansas.
Appellant’s friend, Billy Greenfield, testified appellant returned to Kansas without objection. Appellant testified that after he was released by the Missouri officers he voluntarily got into the car with the Kansas officers to talk to them but that they then brought him to Kansas.
Assuming that appellant was illegally arrested in Missouri and unlawfully returned to Kansas against his will, no formal charges had then been filed and no warrant was outstanding. In State v. Shienle, 218 Kan. 637, 545 P.2d 1129, this court reviewed the United States Supreme Court cases bearing upon the question of suppression of statements made by an accused after an illegal arrest. Although the arrest in Shienle was found to be legal, it was pointed out in the opinion that an illegal arrest per se does not require the suppression of all subsequent statements made by the accused. See State v. Shienle, supra, at 639. See also Brown v. Illinois, 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254, and Boag v. State, 21 Ariz. App. 404, 520 P.2d 317. Unless the facts establish that an unlawful arrest or detention in and of itself constituted duress which would render a statement by the accused involuntary, the same rules as to admissibility of the statement are applicable as if the arrest and detention were lawful.
Appellant further contends that the statement given by him in Kansas was rendered involuntary because he was denied the right to consult with counsel in Missouri. Assuming that appellant was not given the right to consult with counsel in Missouri, it is difficult to see how that would render a later statement made by the appellant in Kansas involuntary under the facts of this case. The case was in an investigatory stage and no charges had been filed at that time. An accused is entitled to counsel at every critical stage of a criminal proceeding. This right is so well established we need not give supporting citations. However, in Missouri at the time in question appellant was wanted as a possible witness in Kansas because he was the last person seen by the witnesses in the company of the victim before her death. The investigation by the officers at that time had not focused upon appellant any more than it had focused upon Victoria Lombardo or Billy Greenfield. No statement was taken from appellant in Missouri. Under these facts and circumstances it cannot be said he was deprived of a constitutional right to counsel. See State v. Bethea, 196 Kan. 188, 410 P.2d 272; State v. Anderson, supra; and State v. McCorgary, 218 Kan. 358, 543 P.2d 952.
The final argument made against the statement is that of inordinate delay in bringing appellant before a magistrate. The appellant was picked up in Missouri on August 25. Both statements were obtained on August 26. Charges were filed on August 27, and the return of the warrant indicates appellant was brought before the court that same day. There was no delay in this case, but even so delay in bringing a prisoner before a magistrate after arrest is not in and of itself a denial of due process unless it in some way prejudices his right to a fair trial. See State v. Taylor, 217 Kan. 706, 538 P.2d 1375; State v. Law, 214 Kan. 643, 522 P.2d 320; and Underwood v. State, 214 Kan. 633, 522 P.2d 457. No prejudice is shown here.
To be admissible, a confession must have been freely and voluntarily made. (State v. Kanive, 221 Kan. 34, Syl. 1, 558 P. 2d 1075.) In determining the voluntariness of a confession the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. (State v. Kanive, supra, Syl. 2.) The burden is on the prosecution to prove the voluntariness. (State v. Kanive, supra; K.S.A. 22-3215 [4].) When a trial court conducts a full pre-trial hearing on the admissibility of an extra judicial statement by an accused, determines the statement was freely, voluntarily and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. (State v. Kanive, supra, Syl. 5. See also State v. Soverns, 215 Kan. 775, 529 P.2d 181.)
Appellant admits that he was advised of his rights, that he signed a waiver of rights, and that he was not threatened or mistreated prior to giving the statements. There was no evidence before the court that he requested and was refused an attorney between the time the waiver was signed and the time he finished giving the statements. The facts and circumstances as shown by the record support the trial court’s decision that the statements were voluntarily given. The point is without substantial merit.
Appellant’s final point is that the court failed to properly instruct the court as to jurisdiction and venue. He argues that the court should have instructed the jury that if it found that Mary Ann Moore was killed in the state of Missouri it must find the defendant not guilty. The court’s Instruction No. 3 was as follows:
“Under the law of the State of Kansas, if the cause of death is inflicted in one county and the death ensues in another county, the prosecution may be in either of the counties. Death shall be presumed to have occurred in the county where the body of the victim is found.”
The instruction is based on K.S.A. 22-2611. Defense counsel at trial objected to the instruction on two grounds: (1) Since the case did not involve counties but rather states, Kansas should not presume to prosecute for a murder which may have occurred in the state of Missouri; and (2) the instruction as to the presumption placed an unfair burden on the defendant to prove that the death occurred somewhere else when appellant had no knowledge of where death did occur. Appellant further asserts the court should have instructed that the presumption could be overcome by other competent evidence. However, appellant did not request this additional instruction during the proceedings below.
Taking the instructions as a whole, they adequately covered the matter. In Instruction No. 2, the court set out the material elements of the crime. The instruction reads:
“The material elements of the crime of murder in the first degree, insofar as this case is concerned, are as follows:
“a. That in this County, on or about August 22, 1975,
“b. The defendant killed Mary Ann Moore by stabbing her with a knife,
“c. That such killing was done maliciously;
“d. That it was done wilfully, and
“e. That it was done deliberately and with premeditation.
“In order to convict the defendant of murder in the first degree, the burden of proof is upon the State to prove each of the above elements beyond a reasonable doubt. If the State fails to prove any element of the crime charged, then you should return a verdict of not guilty.”
This instruction required the jury to find the murder occurred in Wyandotte County.
Instruction No. 3, which included a statement that death shall be presumed to have occurred in the county where the body of the victim is found, is a correct statement of the law. K.S.A. 21-3104 provides in part:
“(1) A person is subject to prosecution and punishment under the law of this state if:
“(a) He commits a crime wholly or partly within this state: . . .
“(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within the state, the death is presumed to have occurred within the state. ” (Emphasis supplied.)
As noted, appellant did not specifically request an instruction as to the effect of the presumption. The only evidence of the murder occurring in Missouri is found in the testimony of defendant and that was to the effect that a John Taylor stabbed the victim while the car was in Missouri. The jury obviously rejected defendant’s version of the events. There is no other evidence the murder occurred in Missouri. There was strong circumstantial evidence which would reasonably lead a person to believe the murder did occur in Kansas. The body was found in Kansas not long after the victim was seen alive. When found the body was still warm.
This court has held that venue is a question of fact to be determined by the jury and like any other fact it may be proved by circumstantial evidence. (State v. Joseph Little, 201 Kan. 101, 439 P.2d 383; State v. Fleury, 203 Kan. 888, 457 P.2d 44; State v. Addington, 205 Kan. 640, 472 P.2d 225; State v. Pyle, 216 Kan. 423, 433, 532 P.2d 1309.)
The appellant contends that his theory that Miss Moore was killed in Missouri was not presented to the jury. This court has held:
“Generally the theory of the accused is adequately set forth [covered] in the instructions by including a converse charge under which the jury may find the accused not guilty if any essential element of the crime is not proven, provided such converse charge is preceded in the instruction by a recitation of all essential elements required to be proven, in language the ordinary layman on a jury can understand.” (State v. Runnels, 203 Kan. 513, Syl. 2, 456 P.2d 16.)
See also State v. Potts, 205 Kan. 42, 468 P.2d 74; State v. Reed, 213 Kan. 557, 516 P.2d 913.
The essential elements required to be proven were set forth in the instructions and the jury was adequately instructed if the state failed to prove that the crime was committed in Wyandotte County, Kansas, it should return a verdict of not guilty.
We have carefully considered each point raised on appeal and have found no reversible error; the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an appeal by defendant from an order overruling his demurrer to plaintiff’s petition, the pertinent portions of which may be stated or summarized as follows:
That on July 10, 1937, plaintiff entered into a verbal contract with defendant to purchase all of the merchantable walnut timber standing upon a certain tract of ground just south of and near the south line of the town of Centropolis, Franklin county, Kansas, which land was commonly known as “Powers’ Grove,” and which land the defendant claimed to own; that defendant then agreed to sell all of such walnut timber to plaintiff for the sum of $1,500, of which $100 was to be paid on that day and the balance not later than October 1, 1937, and the parties executed the following instrument:
“Contract for sale of walnut timber from J. F. Powers to Clarence Nauman, whereby J. F. Powers agrees to sell all merchantable walnut timber located near Centropolis, Kansas, to Clarence Nauman for the sum of $1,500 (fifteen hundred dollars), $100 to be paid July 10, 1937, and the balance to be paid not later than October 1, 1937. It is also agreed that no timber is to be cut until fully paid for.”
This was dated July 10,1937, was signed by the parties, and witnessed. That on the same date, and as a part of the same transaction, plaintiff executed and delivered to defendant his check for the $100 to be paid that day, upon which check these words were written: “For first payment on all walnut timber in his grove South Centropolis, Kansas.” It is alleged that at the time the parties did not know the exact legal description of the land on which the walnut timber was located, but that it was definitely pointed out and understood by the parties. That thereafter defendant entered into negotiations with another dealer in walnut timber, and as plaintiff is informed, secured a somewhat better offer; that between July 10 and August 3,1937, there had been an increase in the market price of such timber, and that on August 3, 1937, defendant wrote plaintiff a letter, the pertinent portions of which are as follows:
“After due consideration. I find it impossible to fulfill tbe contract for the sale of walnut timber to you. You will note the contract states I am to sell you all merchantable walnut timber located near Centropolis. I do not own all the merchantable walnut timber located near Centropolis. Therefore I cannot comply with the contract, hence I am asking you to cancel said contract, and I am return— you your check by this mail, as I have not cashed it.
“I state, further, that the walnut timber that I laid any claim to was owned jointly by Mrs. Powers and myself and she refuses to sell at this time, hence places me in an embarrassing position. (See recorded deed.) That farm in sec. (3) original deed from Mrs. Earls, to J. F. and Catharine B. Powers. I state further that Mrs. Powers furnished part of the money to buy all of the farm land and therefore to satisfy her claim I have given her a quitclaim deed to all of it.”
Plaintiff received this letter, with the check which he had delivered to defendant July 10 enclosed. Thereupon plaintiff brought this action for damages for the breach of their agreement by defendant.
Appellant first contends the standing timber is real estate, and that is conceded.
Appellant next contends that the memorandum of the agreement executed by the parties is so indefinite and uncertain as regards the description of the property sold that an action cannot be maintained upon it under our statute (G. S. 1935, 33-106), which, so far as here pertinent, reads:
“No action shall be brought whereby to charge a party upon . . . any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; . . . 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.”
Appellant cites Reid v. Kenworthy, 25 Kan. 701; Fry v. Platt, 32 Kan. 62, 3 Pac. 781; Wing v. Mollett, 115 Kan. 116, 222 Pac. 88; 27 C. J. 269, and other authorities, to the effect that the memorandum to be within the statute must state the contract between the parties with reasonable certainty, so that it can be understood from the writing itself, or by reference to some extrinsic instrument, without having recourse to parol proof. It is conceded that under our former decisions, if the land had been referred to in the memorandum as the “Powers’ Grove” (Hollis v. Burgess, 37 Kan. 487, 494, 15 Pac. 536), or as “the land owned by defendant,” or as “his land near Centropolis,” it would have been a sufficient memorandum under the statute. (Hampe v. Sage, 82 Kan. 728, 109 Pac. 406; 87 Kan. 536, 125 Pac. 53.) From the petition it is clear that on the same day the memorandum denominated “Contract for sale of walnut timber” was executed, and as a part of the same transaction, plaintiff executed and delivered to defendant his check for $100, which the memorandum recites was to be paid that day. This check was made payable to defendant and recites that it is the first payment on all walnut timber “in his grove south [of] Centropolis.” It is well settled that the memorandum, to be sufficient under the statute, may consist of two or more papers, and it is not essential that each of them be signed by the party to be charged, if the one signed refers to the other. (Restatement, Contracts, § 208 [b] [ii].) This is in accord with the authorities relied upon by appellant, above cited. There are many other authorities to the same effect. By signing the contract for the sale of walnut timber near Cen-tropolis, Powers represented that he owned walnut timber so situated. Hence, standing alone, that contract would seem to be sufficient under the statute, upon the authority of Restatement, Contracts, § 207, clause (b), comment 9. See, also, to the same effect, 2 Williston on Contracts, revised ed., § 578. In any event, the memorandum on the check executed by plaintiff and delivered to defendant on the same day, and as a part of the same transaction, made sufficiently definite the location of the walnut timber sold.
The location of the walnut timber sold was also made definite by defendant’s letter to plaintiff of August 3, 1937, particularly in the second paragraph, quoted above. The question whether a letter written by one of the parties to be bound by the agreement makes definite that which was indefinite in the previous writing has been considered by the courts. Earlier English authorities are collected in Bailey v. Sweeting, 9 C. B. R. (J. Scott, N. S.) (1861) 842. From these the rule developed may be fairly stated to be that if the letter in question, in some part of it, repudiates the contract, other things contained in the letter will not be regarded as perfecting it, for it has to be construed as a whole. However, if the letter does not repudiate the contract, and does contain matter which makes definite that which previously was indefinite, and is signed by a party to be bound, it will be regarded as a part of the memorandum for the purpose of determining if it is sufficient under the statute. (See, also, 2 Williston on Contracts, revised ed., § 584.) Examining this letter, we find no repudiation of the contract. The first sentence of it concedes that a contract had been made. The writer simply declined to attempt to comply with it, for reasons stated, and in the next paragraph makes definite the location of the walnut trees he agreed to sell.
The demurrer to the petition was properly overruled. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a partition suit. Defendants appeal from an order sustaining a demurrer to a certain paragraph of their answer.
The two plaintiffs claim title through a quitclaim deed and contend they are together the owners of an equal undivided one-sixth remainder interest. Defendants represent the remaining five-sixths interest in the land, and urge the interest of plaintiffs is subject to an equitable lien created by an oral agreement.
The answer admitted the following facts contained in plaintiffs’ first cause of action, to wit: J. R. Cassity died testate in 1915 and his will was duly probated. Under that will his widow, S. J. Cassity, received a life estate, and she elected to take under the will. The remainder vested in six sons, share and share alike. Four of the defendants are his sons, and the fifth defendant, Helen Cassity McDonald, obtained the interest of a son, Henry Cassity, who died testate on April 26, 1930. The sixth son, Herman Cassity, died testate on February 19, 1930, and devised all his property to his wife, Anne Cassity. On June 7, 1930, Anne Cassity conveyed her one-sixth interest in the land to the two plaintiffs by quitclaim deed which was recorded on the date of its execution. The widow and life tenant under the will of J. R. Cassity died on April 9,1936.
The second cause of action incorporated, by reference, the aver-ments contained in the first cause of action, and further alleged:
“Plaintiffs further state and allege that they are entitled as such tenants in common with the defendants herein to the possession of said real estate; but the defendants have denied plaintiffs’ rights to possession thereof, and the defendants have at all times held possession of said property, and collected the rents and profits therefrom, and refused to account to plaintiffs or recognize their rights in any way.”
Plaintiffs prayed for judgment quieting their title to an equal undivided one-sixth interest in the land, and for an accounting of the rents and profits.
In addition to the admissions above mentioned, the answer, in substance, alleged the title of plaintiffs was subject to a lien, and then proceeded to relate the oral agreement upon which the purported lien was based, as follows:
“Further answering the petition of plaintiffs, these answering defendants especially deny that plaintiffs are entitled to a judgment directing partition of the real estate described in the petition or any other relief prayed for therein by reason of the following facts, in addition to the facts alleged in the petition and admitted by this answer, which admitted facts are hereby incorporated herein by reference to save repetition, to wit: A short time after the death of J. R. Cassity, the exact time and place of which these answering defendants cannot state with any more definiteness, the answering defendants, A. B. Cassity, B. R. Cassity and Ben A. Cassity, and the defendant Robert Otis Cassity, and Henry B. Cassity and Herman Cassity above mentioned, who were then the owners of all the real estate described in the petition under the terms of the will of J. R. Cassity, deceased, subject only to the life estate of the above-mentioned S. J. Cassity, therein entered into an oral agreement with and between one another and with the said S. J. Cassity, that because of the inexperience of the said S. J. Cassity and her inability successfully to manage and control the said real estate, and for the purpose of providing for careful management of said real estate so that the same might produce the best possible income for said life tenant during her lifetime and that same might be preserved without waste or depreciation in value for the owners of the remainder interests therein, all of said real estate should be kept intact and should be managed and controlled by the defendant A. B. Cassity as agent for all the said owners thereof, and that as such agent the said A. B. Cassity should manage, control, rent and look after all of said real estate, except the part thereof which the said S. J. Cassity should occupy, collect the rents and income from the same, pay the taxes on all of said real estate, keep the buildings thereon insured, make needed repairs and improvements thereon and pay over to the said S. J. Cassity annually during her lifetime the net proceeds therefrom; and that the said A. B. Cassity as such agent, he having been appointed and qualified as executor of the estate of J: R. Cassity, deceased, should make and file in the probate court of Anderson county, Kansas, together with and as a part of his annual account as such executor, a full account each year of all his receipts and expenditures connected with his handling of said real estate. At the same time, and as part of the same agreement, it was further orally agreed between said parties that at the time of the death of the said S. J. Cassity, if she left no property of her own out of which to pay the same, all her debts, expenses of last sickness and burial should be paid out of the proceeds of said real estate; that none of said real estate nor the interest of any of the said owners therein should be by them sold or conveyed to others or otherwise voluntarily alienated during the lifetime of said S. J. Cassity nor for such reasonable time thereafter as might be necessary to make an advantageous sale of the same and that said real estate should not be divided nor partitioned among said joint owners thereof during the lifetime of the said S. J. Cassity nor for such reasonable time thereafter as might be necessary to make an advantageous sale thereof; and that upon the death of the said S. J. Cassity, the said A. B. Cassity should continue to manage and control all of said real estate until such time as same could be sold to advantage; and that upon the sale of said real estate all unpaid expenses of administration upon the estate of J. R. Cassity, deceased, and all debts of the said S. J. Cassity, expenses of her last sickness and burial should be paid out of the proceeds of the sale of said real estate and the balance of the proceeds from the sale thereof be divided equally among said owners thereof according to their respective interests therein.
“These answering defendants say that in accordance with said oral agreement said real estate has been kept intact since the death of said J. R. Cassity, the said A. B. Cassity as agent for all the owners thereof has managed and controlled the same, collected the rents and income therefrom, paid the taxes thereon, kept the buildings thereon insured, made necessary repairs and improvements thereon, preserved the same from waste and depreciation in value, annually filed his account of receipts from and expenditures on the same in the probate court of Anderson county, Kansas, together with his account as executor of the estate of J. R. Cassity, deceased; has annually paid to S. J. Cassity, during her lifetime, the net proceeds therefrom, and has generally and substantially carried out the terms of said agreement; and since the death of the said S. J. Cassity has made diligent effort to make sale of said real estate at a fair and reasonable price in order that said agreement might be completed and fulfilled according to the terms thereof; but these answering defendants say that a reasonable time has not elapsed since the death of S. J. Cassity on April 20, 1936, in which to make an advantageous sale of said real estate in accordance with said agreement, and that to allow, adjudge and decree partition of said real estate at this time would be in contravention of the terms of said agreement and would subject these answering defendants and the other defendants to unnecessary additional costs, charges and expenses.”
A demurrer had been sustained to paragraph five of the original answer, and defendants filed an amendment in lieu thereof, which reads:
“Further answering the petition of plaintiffs, these answering defendants say that about the year 1919 Herman Cassity, above mentioned, who was then one of the owners of said real estate, under the terms of the will of J. R. Cassity, deceased, as heretofore alleged and admitted, desired to use a portion of the real estate belonging to said estate for farming purposes, and it was then orally agreed by and between said Herman Cassity and the defendant A. B. Cassity as agent for all the other owners of said real estate under the agreement above set forth, that said Herman Cassity might use a portion of said land and* that he should thereupon become obligated and indebted to the other owners of said land for the reasonable value of the use thereof. That under said agreement said Herman Cassity did occupy and use a portion of said land during the years 1919, 1920, 1921 and 1922 and thereby became obligated and indebted to the other owners of said land in the sum of $987. That on or about the 12th day of September, 1922, for the purpose of settling and determining the amount of said indebtedness and of providing for the payment of the same and of providing for security of the same, it was further orally understood and agreed by and between the said Herman Cassity and all the other owners of said land by and through their agent A. B. Cassity that said amount of $987 should be considered as a loan and advancement to said Herman Cassity, and should become and be a charge and lien upon his said interest in said land. That said amount should draw interest at the rate of six percent per annum; that the said Herman Cassity might pay the same and accrued interest thereon at any time but that the same should not become due so that payment thereof could be demanded until said real estate was finally sold after the death of S. J. Cassity in accordance with the agreement between all the owners of said real estate as hereinbefore set forth; and that upon sale of said real estate after the death of S. J. Cassity, the amount then due for principal and interest should be charged against and deducted from the share of Herman Cassity in the proceeds of said sale and should then be distributed and paid to the other owners of said land according to their respective interests therein. That at the time of said last-mentioned agreement, to wit: September 12, 1922, as a memorandum of the amount due under said agreement, said Herman Cassity executed and delivered to the said A. B. Cassity, as agent of all the other owners of said real estate, a written instrument in the general form of a promissory note without any maturity date, reciting in substance that the said Herman Cassity promised to pay to the order of J. R. Cassity estate the said sum of $987 and interest. A true copy of said mem orandum is attached to the original answer filed herein, is marked exhibit 1, and is made a part hereof by reference. No part of the principal amount of said indebtedness or any of the interest thereon has ever been paid, and the amount due thereunder at the date of filing the answer herein is the sum of $1,833.76. The above-mentioned Arme Cassity, widow and sole devisee of the said Herman Cassity, under his will as set forth in plaintiffs’ petition, knew at the time of the making of said agreement all the facts and circumstances concerning the same as herein set forth and that the amount of said indebtedness and the interest thereon was a charge or lien upon the interest of said Herman Cassity in said real estate payable out of his share of the proceeds of the sale of said land whenever the same was sold. Whatever interest said Anne Cassity acquired in said real estate under the will of said Herman Cassity was subject to the payment of said indebtedness and interest. The plaintiffs, having acquired their interest in said land by quitclaim deed from the said Anne Cassity, have no greater interest in said land than the said Anne Cassity had and no greater interest therein than the said Herman Cassity had at the time of his death, and whatever interest said plaintiffs have in said real estate is subject to a charge or lien for the payment of said indebtedness and interest in said sum of $1,833.76.”
Exhibit 1, being the note referred to, reads:
“Gaenett, Kansas, Sept. 12, 1922.
“...after date, for value received, I, we, or either of us, promise to pay to the order of the J. R. Cassity estate nine hundred and eighty-seven dollars, at the Citizens State Bank, Garnett, Kansas, with interest at the rate of 6 percent per annum, from date until maturity. Interest after maturity at the rate of 10 percent per annum.
“The makers, endorsers and guarantors of this note hereby waive all and any notice of any extensions, demands or protests. H. Cassity.”
The trial court sustained plaintiffs’ general demurrer to paragraph five of the answer as amended, and that ruling is here for review. The record is silent as to the ground or grounds upon which the demurrer was sustained. Plaintiffs urge various theories in support of the ruling, including the statute of frauds. The case was submitted without oral argument, and the subject of the statute of frauds is not treated in defendants’ brief. Plaintiffs direct our attention to the provisions of G. S. 1935, 33-106, relating to oral agreements which are not to be performed within the space of one year. Careful analysis of the answer discloses not only one but several oral agreements between the years 1915 and 1922. The last agreement in 1922 pertains to the purported lien on the real estate in question. While these combined agreements as pleaded appear to have been operative over the period of the entire life tenancy from 1915 to 1936, and are not yet concluded, for the reason that the land has not been sold, yet in view of the particular aver- merits contained in the answer it is doubtful whether we could properly conclude that the agreements could not have been wholly matured within one year. Unless an oral agreement discloses it cannot be performed within the space of one year, we cannot say the agreement violates the provisions of the statute. (Stahl v. Stevenson, 102 Kan. 447, 451, 171 Pac. 1164; Henshaw v. Smith, 102 Kan. 599, 602, 171 Pac. 616; Duhbs v. Haworth, 102 Kan. 603, 171 Pac. 624.) We need, however, not rule the case on that particular issue.
The answer clearly discloses it was attempted by oral agreement to create a lien on'a particular interest in land. Only the amount of the debt was reduced to writing, and it was evidenced by a note executed in 1922. The maker died testate in 1930, which was eight years after he executed the note. No claim on the note was presented against his estate. His wife conveyed the title to her daughters, the plaintiffs, in 1930. The deed was not concealed, but was promptly recorded. Fraud in the conveyance is not charged. No action was instituted to set aside the conveyance or to assert a lien on the interest conveyed. The note was a demand note. The answer in substance alleges that at the time the note was executed it was orally agreed the amount thereof, together with interest, should constitute a charge or lien on the interest of the remainder-man. The note contains no such provision. We thus have an alleged agreement partly in writing and partly in parol, made simultaneously, but without the slightest reference, in the written portion thereof, to a charge or lien on real estate. The note was not made payable to defendants, but to the “J. R. Cassity estate.” S. J. Cassity was the widow of J. R. Cassity and was the life tenant. If we assume the note was intended for the benefit of the life tenant or to ultimately inure to the benefit of the other five remaindermen, it still remained only a naked note and without the slightest indication it was intended to create a lien. In 27 C. J., Frauds, Statute of, § 197, the rule is stated thus:
“An oral agreement purporting to create, or providing for the creation in future, of a lien on real property is unenforceable; a lien on land can be created only by a writing complying with the statute of frauds or by operation or implication of law.”
In Reid v. Kenworthy, 25 Kan. 701, it was held:
“While the form of the memorandum is not material, it must state the contract with reasonable certainty, so that the substance can be made to appear and be understood from the writing itself, or by direct reference to some extrinsic instrument or writing, without having recourse to parol proof.” (Syl. If 2.)
See, also, Wing v. Mollett, 115 Kan. 116, 222 Pac. 88, and the numerous cases therein cited. In the Wing case this court quoted with approval from 27 C. J. 267, 268:
“ ‘To be sufficient as a note or a memorandum under the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. The entire agreement must be expressed in the writing. The contract cannot rest partly in writing and partly in parol. The general rule that a contract which is not entirely in writing is to bé treated as a parol or verbal contract is applicable in determining whether the contract is within the inhibition of the statute of frauds. The memorandum must contain all the essential elements or material parts of the contract.’” (p. 118.)
In the instant case the writing was not only entirely silent on the general subject of a charge or lien on land, but it made no attempt to designate the particular property owned by the deceased remain-derman on which such indebtedness should constitute a lien. It is unnecessary to discuss the further complication arising by reason of the fact the note'was not made payable to the defendant remain-derman now asserting the lien. Nor is it necessary to discuss the question of consideration for the note, as between the defendants and the maker of the note. The only memorandum of the agreement was in the form of a note and it was clearly insufficient to create a lien.
Plaintiffs further urge the demurrer was properly sustained for the reason the claim of defendants was barred by the five-year statute of limitations. (G. S. 1935, 60-306.) The note was dated September 12,1922. The note was made payable, “-after date.” No intention was evidenced by the note except that it was payable “after date.” It was a demand note. (8 C. J., Bills and Notes, §§ 599, 600; Douglass v. Sargent & Bro., 32 Kan. 413, 4 Pac. 861; Wooster v. National Bank of America, 139 Kan. 429, 430, 32 P. 2d 235.) Demand for payment was expressly waived. The general rule is that the obligation to pay was due at once and that the statute of limitations began to run on the note from the date of its execution. (8 C. J., Bills and Notes, § 602 ; 37 C. J., Limitation of Actions, § 200; Douglass v. Sargent & Bro., supra; Bank v. Lightner, 74 Kan. 736, 739, 88 Pac. 59; Wooster v. National Bank of America. supra.) The facts pleaded in defendants’ answer, relative to the oral agreement, varied and contradicted the legal tenor of the note, the only portion of the agreement which was in writing. Moreover, the note in the instant case was barred under any doctrine of reasonable time for payment. A reasonable time for payment obviously could not extend beyond the statutory period of limitation, which is five years. The rights of the defendant remaindermen on the note, if they had any, were not asserted until over fourteen years after the execution of the note. Clearly the claim was barred.
Defendants urge the district court had full power to make any order which might be necessary to make a just and equitable partition between the parties and to secure their respective interests. (G. S. 1935, 60-2114; 7 R. C. L., Cotenancy, § 32; Thresher Co. v. Judd, 104 Kan. 757, 176 Pac. 110.)
That a court of equity is vested with authority to adjust existing interests and equitable rights between the parties to an agreement is, of course, conceded. Such authority, however, does not confer power to create equities based on claims long since barred.
Defendants further urge that since plaintiffs took under a quitclaim deed they were not bona fide purchasers and took subject to all equitable claims against the interest acquired which could have been discovered in the exercise of reasonable diligence. (Johnson v. Williams, 37 Kan. 179, 14 Pac. 537; Knight v. Dalton, 72 Kan. 131, 83 Pac. 124.) The Johnson case dealt with adverse and outstanding equities and interests which were discoverable from records in the office of the register of deeds. The principal issues in the Knight case were whether a grantee in a quitclaim deed obtained a contingent interest subsequently acquired by the grantor and whether the deed was intended only as security for a debt which in fact had been paid.
In the instant case, search of the records or other inquiry by plaintiffs would have disclosed no enforceable equities or claims against the land. The note was executed about eight years before plaintiffs obtained their deed. No claim the note constituted a lien on any real estate owned by the deceased grantor was ever recorded. The note, if discovered by plaintiffs, would have disclosed no semblance of a lien. The terms of the oral contract remained latent, hidden and concealed insofar as plaintiffs were concerned. In the Johnson case, supra, cited by defendants, it was said:
“It may be that with reference to some equities or interests in real estate, the purchaser who holds only under a quitclaim deed may be deemed to be a bona fide purchaser; for equities and interests in real estate may sometimes be latent, hidden, secret and concealed, and not only unknown to the pur chaser, but undiscoverable by the exercise of any ordinary or reasonable degree of diligence. It is possible also that a purchaser taking a quitclaim deed may under the registry laws be considered a bona fide purchaser with reference to a prior unrecorded deed with respect to which he has no notice nor any reasonable means of obtaining notice.” (p. 181.)
Inquiry by plaintiffs at the time they received the deed in 1930 would have disclosed that the obligation now asserted as a lien had been barred about three years before the delivery of their deed.
In view of what has been said it will be unnecessary to discuss other grounds urged by plaintiffs in support of the order sustaining the demurrer. The ruling must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to recover taxes paid under protest. Judgment was for defendants. Plaintiffs appeal.
After the formal allegations the petition alleged that a levy was made by school district 73 of 17% mills; that the total valuation in the district was $941,812; that such a levy applied to this valuation would produce $16,481.71. The petition then alleged that the maximum levy authorized by law for the district was 14 mills; that this levy was fixed by G. S. 1935, 79-1956; that provision was made by G. S. 1935, 79-1964, for an increase in this levy of 25 percent over that authorized by statute by a three-fourths vote of the electors of the district at the annual school meeting; that this increased levy, if so authorized, would amount to 17% mills; that no election on this question was held at the meeting; that the only question submitted was the adoption of the budget of $15,000 for the ensuing school year; that the increased levy of 3% mills was void; that this void levy upon the property of plaintiffs in the district produced $757.52; that this amount was paid under protest; that application for relief had been made to the state tax commission and denied.
The second cause of action contained like allegations for the taxes for the second half of the year.
Defendants for answer filed a general denial, then alleged that more than ten days previous to May 25, 1934, the clerk of the district posted in three places in the district a notice of the annual school meeting, and with the notice posted a copy of an itemized budget.
The answer further alleged that on May 25, 1934, the electors of the district held the meeting, and in relation to the levying taxes for the ensuing year, had the following proceedings:
“Moved and seconded to have a nine months school for ensuing year. Motion carried.”
The answer alleged further that the budget was read to the meeting; that this budget called for the expenditure of $15,000; that the school board announced to the meeting that the adoption of the-budget would require a levy of 17% mills on the property in the district; that the budget of $15,000 was adopted by a vote of 69 for and none against. The reply was a general denial.
At the trial the essential facts were agreed upon. It was agreed that a levy of 17% mills was made; that the taxable property in the district was $941,812; that a levy of 17% mills applied to this valuation would produce $16,481.71; that the taxable property of the plaintiffs in the district was $216,437 and that the levy of 3% mills applied to this valuation would produce $757.52. It was also agreed that the taxes were paid under protest and that the plaintiffs had applied to the state tax commission for relief, and relief was denied. The defendants did not agree as to the sufficiency of the protest. It was agreed that the notice of the meeting of May 25, 1934, was posted; that the minutes of the meeting showed, among other things, that a budget of $15,000 was discussed and approved by a standing vote of 69 for and none against; and that a levy of 17% mills was extended over all the taxable property in the district; and that this exceeded the legal levy of 14 mills by 3% mills.
It was further agreed that a true copy of the budget discussed at the meeting was attached to the notice of the meeting. The written protest filed with the county treasurer when the taxes were paid was admitted in evidence. The protest was based upon the ground that the meeting did not comply with the requirements of G. S. 1935, 79-1964. That is the section which provides that the legal levy may be increased by 25 percent by a vote of 75 percent of the electors of the district. After an examination of the stipulation as to the facts the trial court held that the levy was regular in every way and gave judgment for the defendants. Plaintiffs appeal from that judgment.
Plaintiffs argue that the action of the electors at the meeting in voting upon the budget of $15,000 did not satisfy the requirement that the increased levy must be voted on. In this connection plaintiffs point out that 25 percent of 14 mills is 3% mills, and that a levy of 17% mills upon the district valuation of $941,812 would produce a tax of $16,481.81, provided all the taxes were paid. Plaintiffs argue from this that the levy upon its face was excessive and therefore void. The trial court met this argument by pointing out that judicial notice would be taken that not all the taxes levied in the district would be paid. G. S. 1935,10-1120, provides as follows:
“The levying of a tax by any municipality which raises more money than is used or needed for the tax year shall not be the basis of a protest by any taxpayer and all such protests shall be of no force or effect.”
See, also, Voshell v. Peterson, 142 Kan. 448, 50 P. 2d 941. It is well established that the mere fact that a levy by the district would raise more money than was actually needed for the tax year does not give a taxpayer the right to pay his taxes under protest and bring an action to recover them.
Plaintiffs next argue that the proposition voted upon at the meeting was not a vote upon an increased levy, but merely the adoption of a budget. An examination of the record discloses that at the beginning of the meeting the notice calling it was read. This notice provided that in order to raise the amount of money provided for in the budget it would be necessary to have a levy of more than 14 mills, but not exceeding 17% mills. The notice contained the following statement:
“The district meeting is to designate the amount of money to be raised by taxation and not the number of mills to be levied. The county commissioners will fix a levy that will raise the amount of money voted.”
All parties agree that this is a correct statement. (See G. S. 1935, 79-2931.) Since this is true there is nothing upon which the electors could vote other than to approve the amount of money to be used in carrying on the business of the district for the ensuing year. When they voted on this question and a budget of $15,000 was approved this action gave the county clerk authority to make the levy necessary to raise this amount. In a case of this sort all reasonable presumptions will be indulged in favor of the validity of the proceedings. (See 61 C. J. 573.)
Plaintiffs next argue that in holding the election to vote upon the question of the increased levy, the voting should have been by ballot pursuant to section 1 of article 4 of the constitution of the state. The question is whether the election provided for in G. S. 1935, 79-1964, is such an election as the constitutional provision contemplated.
In Martin v. School District, 57 S. C. 125, 35 S. E. 517, the court said:
“Voting for a school tax in a special school district viva voce is not in violation of the constitutional provisions as to elections.” (Syl. ff 4.)
See, also, Seaman v. Baughman, 82 Ia. 216, 47 N. W. 1091. In Began v. School District No. 25, 44 Wash. 523, 87 Pac. 828, the court, in considering a similar question, said:
“But the meeting provided for by section 2442 is not an election, and we do not think that there is anything in the statute requiring a vote by ballot, a ballot box or the keeping open or closing of polls. It was a meeting of the voters, of the district for conference and consultation, fashioned after the town meetings of the New England and other older states of the union. That it was not intended to be an election is evidenced by the fact that no provision is made by the statute for an inspector, judges, or other election officers; but provision is thereby made for a chairman and a clerk of such meeting and for a record of the proceedings to be kept, certified and filed by said clerk. It is possible that ballots and ballot boxes might be used, but there is nothing in the statute requiring them, and nothing prescribing any particular form of voting at such a meeting. This being true, it would seem that those participating might themselves adopt and carry out any method of procedure and manner of voting which they might desire.” (p. 524.)
The proceedings were conducted pursuant to the provisions of G. S. 1935, 79-1964. That section is a general one dealing with increased levies in any taxing district. The first proviso is as follows:
“That under the provisions of this section a vote may be had upon the question of an increased levy at the annual meeting of any school district.”
Provision is then made for the publication of notice of the election. We find the following exceptions, however, as to school districts :
“. . . except school districts, but in school districts by posting a notice in the manner provided by law for other elections or meetings.”
The notice required by law for school districts provides for the posting of a budget along with the notice. (See G. S. 1935, 79-2931.) This requirement was complied with in this ease.. These statutory provisions are of interest to us here because they indicate that the business of a school district is carried on in a different manner than that of other taxing districts. While G. S. 1935, 79-1964, uses terms that ordinarily apply to an election as it is commonly referred to, where the voting is done by means of a printed ballot and after a notice published in a newspaper, still, in the case of a school district, it was intended clearly that its business should be transacted at the annual school meeting just as it .always has been in this state.
We have concluded that the provisions of G. S. 1935, 79-1964, providing for the submission of the question of increasing the tax levy, contemplated the usual and ordinary election as is conducted at a district school meeting, and not a vote by ballot. Our attention has been called to the holding in Lathen v. Campbell, 7 Kan. App. 388. That case holds that an election of officers at a school-district meeting constituted an election under the terms of section 1 of article 4 of the constitution. We are not disposed to follow that authority here.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was a workmen’s compensation case. The claimants are dependents of the workman, Roscoe Floro, whose death resulted from an accident. The principal question in the case was whether the accident arose out of and in the course of his employment with the respondent, Bert Ticehurst. All other questions entitling the claimants to compensation as against him were stipulated at the hearing. The trial court denied compensation, and the claimants have appealed.
Except as deductions and conclusions might be drawn from them, the facts are not seriously controverted, and may be stated as follows: Bert Ticehurst, doing business as the Kaw Valley Oil Company, is engaged in the business, among other things, of transporting gasoline by truck. The Aetna Casualty and Surety Company car ried his compensation insurance. He planned to keep his trucks, transporting gasoline, moving as much of the time as possible, and always sent two drivers with the truck, each to drive a part of the time. As between themselves, neither of the men with the truck was the boss of the other; each had as much authority as the other. They had been instructed to assist other truck drivers temporarily in trouble on the road, but not to go off the road to do it, nor to spend a lot of time, such as half a day. On the evening of August 1,1936, he sent Floro and P. N. Riley, as drivers, with one of his trucks to get a load of gasoline at the Russell Refining Company, located a few miles west of the city of Russell. The loading dock of the /Russell Refining Company is situated about 200 feet south of a state highway, known as U. S. 40, and is connected with it by a semicircular drive, so laid out that a truck can pull up to either side of the loading dock to be loaded. The ends of this semicircular drive where it is connected with U. S. 40 are about 225.feet apart. Floro and Riley reached this loading dock on the morning of August 2 and pulled up to the south side of the loading dock, their truck facing east, to be loaded, and both went to the office to sleep while the truck was being loaded. About the time they drove in for their load Clifford Hines, driving a truck for the Kent Oil Company, pulled up on the north side of the loading dock, his truck headed west, to be loaded. Floro and Riley were wakened when their truck was loaded, and Riley, whose turn it was to drive, went out and got in the Kaw truck and drove it to the filling station of the refining company to have gas put in the gas tank. Floro stayed in the office to sign the receipt for their load. By this time the Kent truck was loaded and Hines had tried to start his engine and found the battery too weak. He came to the office of the refining company and asked its manager about getting a truck to pull his truck to get it started. He either asked Riley to use the Kaw truck to pull his truck to start it, or Riley, hearing him talk about it, offered to do so, which offer Hines was glad to accept. It is not clear that Floro took any part in the conversation at that time. Riley got into the cab of the Kaw truck, turned it around, and drove in front of the Kent truck and stopped for Hines to connect the two trucks with a chain. While he was doing that Floro came up and suggested or directed where the chain should be attached to the Kaw truck. The trucks having been attached together, and Riley and Kent in the cabs of their respective trucks, Riley started forward on the driveway towards its west entrance to U. S. 40. The engine of the Kent truck started, but stopped before the Kaw truck had reached U. S. 40. It was then agreed between Riley and Hines to pull the trucks out on U. S. 40 and turn east. Whether Floro was consulted about that and agreed to it is not clear, but it is not contended that he objected. The two trucks connected together had a total length of about 80 feet. To make the turn from the driveway east on U. S. 40 it was necessary for the Kaw truck driven by Riley to get north of the center of U. S. 40. That highway carries a heavy vehicular traffic. As the trucks moved forward Floro walked at the side and ahead of the Kaw truck to direct traffic. Riley testified that was a necessary, or at least a prudent, thing to do. After the trucks had moved out on U. S. 40 and turned east the engine of the Kent truck started. Floro then was near the north side of the pavement on U. S. 40. He noticed that the engine on the Kent truck had started and signalled to Riley to stop, which he did, and Floro started across the pavement of U. S. 40 to the trucks, perhaps for the purpose of disconnecting the chains which attached them. As he did so he was struck by a passing automobile and killed.
In addition to finding the facts substantially as above stated, the court found that Floro was engaged with Riley and Hines in starting the Kent truck; that they were under no obligations to the driver of the Kent truck or to the Kent Oil Company to assist in the starting of their truck, and what they did in this connection was done gratuitously, as mere volunteers, and without any expectation of compensation; that in attempting to start the Kent truck they turned their own truck completely around and went in an opposite direction from that in which they naturally would have traveled in the performance of their duties to their employer, and that in performance of their duties to their employer it was not necessary for either of them to leave their truck and go on foot upon highway U. S. 40. The court concluded, as a matter of law, that at the time of the fatal injury to Floro he was outside the course of his employment with the Kaw Valley Oil Company.
It is conceded that neither Riley nor Floro expected compensation for what they did in helping to start the Kent truck, and that they were under no contract or other financial obligation to do anything about starting that truck. They were, however, permitted by their employer to give assistance on the road to another trucker temporarily in need. The finding that Floro was engaged with Riley and Hines in starting the Kent truck must be interpreted in harmony with findings previously made that Floro was not Riley’s boss; that it was Riley’s turn to drive, and that Riley is the one who told Hines he would use the Kaw truck to help him get his started, and that Riley is the one who turned the Kaw truck around and who drove it out onto U. S. 40. If in doing these things Riley was going outside of the course of his employment — which appellants do not concede —Floro had no authority to tell him not to do it. Hence, these findings, if true, do not constitute reasons for denying claimants compensation.
Appellees stress the fact that by turning the truck around and driving onto U. S.' 40 at the west end of the driveway Riley drove some 200 feet out of the most direct course to the east, the direction he wished to go with his load. This fact should not bar claimants, for two reasons: There is no finding, nor is there any evidence, that the drivers of the Kaw truck were forbidden by their employer from driving a few feet out of their direct course under any and all circumstances. Had the Kent truck not been there, and Riley, using his judgment as the driver of the Kaw truck, had driven onto U. S. 40 from the west entrance instead of from the east, there is nothing in this record to show that he would have violated any specific instruction of his employer, or that he would not have been in the employment of respondent while he was doing so. More than that, Riley was then in charge of the truck as its driver; Floro was not. If there is any criticism on this point it should not be charged to Floro.
The finding that in discharging their duties to their employer it was not necessary for either Floro or Riley to leave their truck and go on foot on U. S. 40 is more in the nature of a general conclusion than a finding of fact, as applied to this case. With respect to this, appellees argue if Riley had driven out of the driveway at the east entrance, with no other truck attached, he could have negotiated the turn onto U. S. 40 with safety without the necessity of anyone to direct traffic; and, furthermore, that these men were hired as truck drivers, not as traffic directors. Findings of fact should be made with respect to the evidence received in the case before the court. They should not be based on some other state of facts not shown by the evidence. Here the evidence disclosed that the two trucks, connected by a chain, and having a combined length of about 80 feet, were moving onto U. S. 40 at the west driveway entrance and turning east; that to negotiate the turn the forward truck had to go far enough north to be past the center of the pavement on U. S. 40; that this is a much-traveled highway; that it was deemed necessary, or at least prudent, by all of the parties there, including the manager of the loading dock, that someone direct the traffic, for a collision between a motor vehicle on the highway and a Kaw truck might have resulted in serious damage to respondent. These are elements which should have been taken into account in making a finding on this point. The finding made is not predicated on the evidence in this case and must be disregarded in determining the right of claimants to compensation.
In support of the decision of the trial court it is argued on behalf of appellees that the accident did not arise “out of the . . . employment” (G. S. 1935, 44-501), citing and relying largely on Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, and Finck v. Galloway, 139 Kan. 173, 29 P. 2d 1091. The argument and the authorities cited are beside the point. Whether the accident arose “out of” the employment appears never to have been a controverted question in this case; or if so at all, as not being the controlling question in the case, and the trial court did not base its decision on that point. At the hearing before the compensation commissioner the point specifically in issue was whether the accident arose “in the course” of the workman’s employment; and that was the specific point ruled upon by the district court. The record indicates that the entire trial, both before the compensation commissioner and in the district court, proceeded upon the view that if Floro was “in the course” of his employment at the time he was on the highway and started to cross the pavement to the trucks, then his accidental injury arose “out of” his employment. We consider that the correct view. Under our compensation act (G. S. 1935, 44-501) an accidental injury, to be compensable, must be one “arising out of and in the course of employment.” This clause has been construed many times. It has become the settled law in this state that the phrase consists of two parts, each having a distinct meaning; they are not to be confused. (Bevard v. Coal Co., 101 Kan. 207, 208, 165 Pac. 657.) In Cox v. Refining Co., 108 Kan. 320, 322, 195 Pac. 863, it was said:
“ ‘In the course of his employment,’ as a phrase, simply means that it happened while he was at work in his employer’s service. The phrase relates to the time, place, and circumstances under which the accident occurred.”
Our later cases are to the same effect. (Stringer v. Mining Co., 114 Kan. 716, 718, 220 Pac. 168; Bush v. Empire Oil & Refining Co., 140 Kan. 198, 200, 34 P. 2d 542.)
The phrase “out of . . . the employment” requires a showing of some connection between the work that was being done and the accident which caused the injury; that the accident was in some reasonable sense one of the hazards of the work that was being done. (See cases above cited.) Here, if the accident occurred “in the course” of Floro’s employment, that is at a time and place and under circumstances within the scope of his duties as an employee, there is no question but that it arose “out of” the employment.
Respondents centered their defense on the contention that at the time of the accident Floro was not at a place where his employment took him, nor was he doing work for which he was employed. That was the conclusion of law of the trial court. We think that conclusion is erroneous. Assisting to start the Kent truck was permissible under the employment of Floro and Riley, and was incidental to the principal purpose for which they were employed. (See Fairchild v. Prairie Oil & Gas Co., 138 Kan. 651; 27 P. 2d 209; Wetlaufer v. Howse, 146 Kan. 500, 71 P. 2d 879, and authorities there cited.) More than that, since Riley was rightfully driving the Kaw truck, and had driven it to where it was entering U. S. 40, any criticism because he had done so should not be imputed to Floro, who was not Riley’s superior. Floro was entitled to act for the best interests of his employer in the situation which then existed. Directing the traffic on U. S. 40 as the Kaw truck moved out into the highway was in the interest of his employer to prevent damage to his truck and cargo. Had he not done so, and had the Kaw truck and cargo been damaged or destroyed by reason of that fact, he would have been subject to censure by his employer. After the trucks had moved onto U. S. 40, and the Kent engine started, Floro gave a signal to Riley to stop, and started across the highway to his employer’s truck to do whatever was necessary to be done about disconnecting the Kent truck and to go with Riley and his employer’s truck. We think it cannot be said that what he was doing at the time of the accident was outside of the scope of his duties to his employer, or outside of the course of his employment, as that phrase is used in our statute. (G. S. 1935, 44-501.)
Appellees refer to the privilege, or direction, the employer of Floro and Riley gave them about helping other truckers on the road temporarily in need of help, and point out that the loading dock of the refinery was some 200 feet from U. S. 40, and argue the parties were not on the road, hence outside of the place where they were authorized to help another trucker. This argument lacks force. The driveway from and to U. S. 40 by the loading dock was a part of the road necessary for respondent’s truck to travel; the trucks had to' go over it to get to and from the loading dock, and when Floro or Riley were there they were not off the road they were expected to travel.
When claimants filed their claim for compensation they named also as respondents the Kent Oil Company and its insurance carrier. Both the compensation commissioner and the trial court held they were not liable to claimants for compensation. With this holding we agree. Neither Floro nor Riley was an employee of the Kent Oil Company. There was no contractual relation between them essential to the applicability of the workmen’s compensation act. (See Workman v. Kansas City Bridge Co., 144 Kan. 139, 141, 58 P. 2d 90, and cases there cited.) They were not “workmen” of the Kent Oil Company, as that term is defined in our statute. (G. S. 1935, 44-508.) Counsel for the Kaw Valley Oil Company and its insurance carrier argue that in common fairness as between them and the Kent Oil Company the latter, if either, should pay. We are not dealing here with the equities between these parties. Our problem is to determine if claimants can recover compensation from the Kent Oil Company. We are confident they cannot do so, since Floro had no contractual relations with the Kent Oil Company.
The result is, the judgment of the trial court must be reversed as to Ticehurst and his insurance carrier, with directions to allow claimants compensation against them, and must be affirmed as to the Kent Oil Company and its insurance carrier. It is so ordered. | [
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The opinion of the court was delivered by
HaRvey, J.:
This was an action for damages for personal injuries alleged to have been sustained by plaintiff because of the negligence of defendant’s motorman in closing the doors of a streetcar upon her as she was boarding the ear. The jury answered special questions and returned a verdict for plaintiff for $1,000. Defendant has appealed, and contends: (1) there is no evidence to support the answer to the sixth special question; (2) that the verdict is'excessive, and (3) that the court erred in refusing to permit the jury to inspect the streetcar.
The streetcar in question is of standard size, operated by one man, whose station is in the front of the car near the door. The door space is four feet wide, divided into two parts, one for entrance, the other for exit. An iron railing divides the two aisles, and in the center of the opening, a few inches inside the door, this railing fits into an iron pole extending from the floor of the car to the roof and serving. as a handhold to assist passengers boarding or leaving the car. There are two doors, one covering the entrance half of the door space, the other the exit half. Each door consists of two 12-inch panels, and these are joined together with hinges. The doors fasten to the edge of the opening with hinges, and the inside edge of the door is fastened to the car at the top by rollers, which fit in a runway. The inner edge of each door is covered with a soft rubber bumper three inches in width. When each door starts to open, the front end thereof, guided by the rollers in the runway, moves toward the side of the car. The center pushes out, and when the door is completely open the panels are folded together at right angles to the side of the car. Both doors move at the same time and are connected with a step in such a manner that as the doors open the step moves down into a horizontal position to permit entrance or exit, and as the doors close the step folds up against the side of the car. The doors and the step are under the control of the motorman, who by means of a lever sets in motion the operating machinery. The force moving the doors is air, operating on a six-pound air pressure.
As to how the injury occurred, plaintiff’s evidence was to this effect: She is a colored woman, was thirty-one years old, weighed 110 pounds, and was employed in the sewing room of the WPA. On the morning in question, October 29,1935, she and others boarded defendant’s streetcar at Third and Minnesota avenues, she being the last one to get on, and as she was boarding the car the operator negligently closed the doors, catching her between them, crushing her and inflicting serious injuries to her chest, back and arms.
Special questions asked the jury as to the manner in which plaintiff was injured, and their answers, are as follows:
“4. Can the front doors of defendant’s streetcar No. 619 be closed while a person is standing on the front step? A. No.
“6. Was the plaintiff caught between the front doors of the defendant’s streetcar while she was standing with both feet on the front step? A. No.
“6. If you answer the foregoing question ‘No,’ but find she was injured, state where she was standing or what she was doing at the time she was hurt. A. While she was in act of stepping from the step to the platform, she was caught between the doors.
“9. If you find a verdict in favor of the plaintiff, state each act of negligence of which you find the defendant’s operator guilty. A. He closed the door before plaintiff was in safely.”
We now look at the record to see if there is evidence to sustain the jury’s answer to question No. 6. Plaintiff testified that as she entered the streetcar—
“The door closed on me; and I dropped my arm; and I stand until he say, ‘Oh, I liked to close the door on you.’ And I said, ‘You did close it on me.’ And he released it and continued to talk to somebody behind him.”
On cross-examination the witness testified: “You makes two steps to get in the car.” Counsel for defendant brought out that there was but one step and then the platform, and sought to illustrate by the steps in the courtroom to the witness stand. The witness stated she did not understand. She did say, in a part of her cross-examination, that at the time she was caught by the doors of the car she was standing on the step with her heels near the edge of it, tilting back. Since the witness repeatedly spoke of there being two steps, the jury might very well have concluded that she was referring to the second step as the place she was standing when the doors caught her, which place was referred to by counsel for defendant as the platform, although perhaps the specific questions and answers would bear or require the interpretation that she was standing on what she called the first step and which defendant’s counsel spoke of as “the step.” If her answers were in conflict as to just where she was standing at the time the door closed on her, there is other evidence which justified, even required, the jury to find that she was standing on what she called the second step, or what defendant’s counsel referred to as the platform, or at least that she had stepped on to that step or platform so that her weight was not on the step which raises and lowers as the doors are closed or opened. There was evidence that the step could not be raised with a person standing on it, and the jury so found. A witness, called by plaintiff, testified:
“I was seated on the long seat near the front door on the right side. I was looking out the window, and I saw these people come running towards the streetcar. . . . And I hollered,‘Look out — you’re going to hurt that lady!’ When I seen them all get on only her, and he went to shut the door just as she dumb up. He didn’t shut it good, until she got in. It kind of crushed her, up that way. I hollered just as she was in it. It scared me.”
We think it cannot be said there was no evidence to sustain the jury’s answer to special question No. 6. It is consistent with the answer to question No. 9, and with the general verdict.
Was the verdict excessive? Plaintiff testified that when she walked to her seat, after being released from the doors of the car, there was a numbness in her arm and hand. It appears she went to the sewing room that morning, but did not work. At noon she consulted a doctor. He testified that she complained of a hurting and soreness throughout the chest and back, with more or less in the right arm. He examined her and found no bruises. She did have muscular spasms, indicative of some injury. There was considerable tension throughout the chest and back. She had what the doctor described as an uncontrolled rigidity or tension. He strapped her back to control the muscles, and strapped her arms down, and gave her infra-red radiation treatment; also some ointment to use. She went home and went to bed and called the doctor again that evening. He found her spitting blood and complaining of excruciating pain in her chest, which was extremely tender. The condition in which he saw her was not one which would clear up quickly. It might take six or eight weeks, depending on the type of treatment she had. The next day he treated her at his office. On November 2 he saw her and treated her twice, once at his office, and was called to her home in the evening. She consulted Doctor Faust first on October 31. He found she had a numbness in her right arm, pain in her chest, and was spitting blood, and was quite nervous. For some reason, which he was unable to explain, he was unable to get blood pressure reading from her right arm. He gave her some treatment. She came back November 12 and was still spitting blood and having pain in her chest. The chest was strapped. The gripping power of her right hand was below normal. He treated her again on November 21. The trouble had not cleared up. He next examined her on January 20,1937, shortly before the trial of this case. She had not then recovered from her injuries. She had pain in her back and right arm. At defendant’s request three physicians were appointed by the court to examine plaintiff at the time of the trial. They made a thorough examination of her, which included X rays of the chest. They found the entire right upper extremity had a partial anesthesia for pain; that is, a pin could be stuck into the skin on her hand, forearm, arm, shoulder, side of her neck down to the level of the upper part of her breast, and she could not tell whether it was the point of the pin or the head of the pin. In addition to that she had a slight fever. The motor nerves seemed to be in very good shape. She had a very good grip in her hand, but the sensory nerves were not functioning. In the opinion of the physicians this resulted from trauma, and, answering hypothetical questions, that resulted from her being struck or squeezed by the doors of the streetcar. From this testimony we cannot say the verdict is excessive. It is true, as pointed out by appellant, that plaintiff’s testimony in some respects was not consistent. Some of it the jury obviously did not believe. It is also true that her health was not good in other respects, but perhaps this did not affect the condition of her shoulder and chest. It was the function of the jury and the trial court to consider all this evidence, the credibility of the witnesses, and the weight to be given to their testimony. There is nothing in the record to indicate this was not fairly done. Certainly the verdict is not so large that this court should disturb it as a matter of law.
Early in the trial defendant’s counsel advised the court that it wanted permission to have the jury inspect the streetcar. After some discussion the court indicated that it might be an advantage to the jury in understanding the testimony to see how the doors of the car operate. At the close of the taking of testimony defendant’s counsel called the court’s attention to this and asked that the jury be permitted to inspect the streetcar. The court stated in substance that he thought the evidence was sufficient to give the jury a clear idea of the structure of the car, and the request was denied. Appellant contends this ruling was erroneous. Our statute (G. S. 1935, 60-2910) in substance provides that whenever, in the opinion of the court, it is proper for the jury to have a view of the property in controversy, or the premises where a material fact occurred, it may order the jury to be conducted to the place. It is the rule that whether a request for such a view should be complied with rests in the sound discretion of the court. (Rudy v. Headley, 103 Kan. 417, 173 Pac. 913; Gartner v. Williams Oil & Gas Co., 125 Kan. 199, 263 Pac. 778; Fitch v. State Highway Comm., 137 Kan. 584, 21 P. 2d 318.) After the request was first made in this case defendant called as a witness its motorman who was operating the car at the time in question, and he described fully the car, the doors thereon, and how they were operated. The answers of the jury to special questions indicated the jury thoroughly understood the structure of the car, the doors and step, and how they operated. It is not now pointed out that the jury could have learned anything more by an inspection of the streetcar than they did learn from the evidence offered. We see no reason to say that the trial court abused its discretion in this respect.
We find no error in the case. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from a judgment sustaining a demurrer to a petition in an action wherein plaintiff sought an adjudication of his alleged partnership rights in certain oil and gas property, the legal title to which is now held by defendant.
Plaintiff’s petition alleged that in 1928 plaintiff and one E. E. Boyle agreed to embark on a joint adventure whose purpose was to procure oil and gas leases and royalty interests in Ellis and other western Kansas counties and to hold and later dispose of them at a profit to their mutual advantage. Plaintiff’s contribution to this joint adventure was to be that of locating and procuring such oil and gas interests, and Boyle’s contribution was to be that of advancing the requisite funds to pay for them. Boyle was to take title in his own name, and when any property so acquired should be sold at a profit, Boyle was to be recouped for his cash outlay and the net profit divided between them.
On November 17,1928, pursuant to this agreement plaintiff found a 200-acre tract of land in Ellis county on which one Scanlon held both the lease and royalty rights. Scanlon was willing to sell one fourth of the royalty interest for $1,000, and also to sell the lease itself for $160. Plaintiff submitted Scanlon’s offer to Boyle, and a contract for the acquisition of these interests was closed, and Boyle furnished the money according to the oral arrangement between him and plaintiff. Scanlon executed a conveyance of the royalty interest on November 17, 1928, to Boyle, and the same was recorded on- December 3, 1928. The petition further alleged that some two months later, on January 24,1929, Boyle executed to his brother, L. S. Boyle, defendant herein, a deed conveying to him the royalty interest which had been acquired by the joint adventurers as set out above.
The petition continued:
“Eighth: That the conveyance as aforesaid from the defendant, E. E. Boyle, to his codefendant, L. S. Boyle, was made without any consideration whatsoever, was purely for the purpose of convenience, was not intended to convey anything except the naked legal title to said property to the said defendant, L. S. Boyle, and the said defendant, E. E. Boyle, so advised the plaintiff herein.
“That the defendant, L. S. Boyle, received title to said royalty above described as trustee for his brother, E. E. Boyle, well knowing and intending to hold as trustee only, and well knowing that the plaintiff herein had an interest in any profits which might be realized from the same', as more particularly set out in the oral contract above set forth, and that he received said conveyance and has held title to the same since the date of receipt thereof, as trustee for the codefendant, E. E. Boyle, as above set out.”
The petition further alleged that oil and gas development in Ellis county has progressed since the acquisition of the aforesaid royalty interest; that it has eventually become of value far in excess of the purchase price; that plaintiff is entitled to half the profits thereof; but that defendant has refused to sell or authorize its sale and has refused to account to plaintiff for his share thereof.
Plaintiff prayed for an adjudication of his interest, and for judgment that defendant holds the legal title for his benefit and that of E. E. Boyle; that the joint adventure between plaintiff and E. E. Boyle be dissolved; and that the property be sold and the net profits be'divided as agreed between plaintiff and E. E. Boyle. Plaintiff also prayed for whatever other equitable relief may be appropriate under the allegations of his petition.
Against plaintiff’s petition summarized as above, defendant L. S. Boyle lodged a demurrer on two grounds — first, that it failed to state facts sufficient to entitle plaintiff to relief against him; and 'second, that the cause of action was barred by the statute of limitations.
The demurrer was sustained and the cause comes before us for review.
At the outset it should be observed that as against a demurrer a liberal construction should be given to plaintiff’s petition. (Ball v. Oil & Gas Co., 113 Kan. 763, 216 Pac. 422; Downey v. Phillips, 137 Kan. 362, 20 P. 2d 453.) The facts alleged in the petition and conceded to be true for the purposes of the demurrer show that the arrangement between plaintiff and E. E. Boyle whereby the royalty interest was acquired by them was in the nature of a joint adventure which is essentially that of a partnership. (Tenney v. Simpson, 37 Kan. 579, 15 Pac. 512; Crawford v. Forrester, 108 Kan. 222, 194 Pac. 635; Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043.) In 1 Beach on Trusts and Trustees, section 91, it is said:
“Where two or more persons are conducting business as partners, and the business is managed by one of the partners with the consent of the others, and having entire control, his relations to the other members of the firm become fiduciary. He may be required to render an account of the business as trustee for his copartners, and he cannot refuse to account for the profits of the business, or to make an equitable division with the other partners on the ground of the illegal character of the original contract between the parties. Where there was an agreement to purchase lands as a speculation, the lands to be sold within five years and the net proceeds to be equally divided between the party furnishing the money and the one who purchased the land, it was held that the partner who furnished the money and held the title held it as trustee, and was accountable to his partner for a division of the profits according to the contract.”
Between the parties to such a contract the statute of limitations would not begin to run until some breach of trust or of other fiduciary duty owed by one of the joint adventurers to the other had been committed, nor until the latter had been apprised of it or of facts which prudently should have put him on inquiry. In Cooley v. Gilliam, 80 Kan. 278, 102 Pac. 1091, it was said:
“Ordinarily the period of time limited for the commencement of an action against a trustee does not begin until he repudiates the trust or denies his liability, and it should appear that the beneficiary had, or ought to have had, knowledge of such repudiation or denial before the statutory period begins to run.” (Syl. f 3.)
To the same effect was Mayse v. Minneola Coöp. Exchange, 139 Kan. 24, 30, 30 P. 2d 120. See, also, Miller v. Cloney, 123 Kan. 538, 541, 256 Pac. 159, and citations.
The petition alleges and the demurrer admits that defendant knew of plaintiff’s interest at the time the title was transferred to him; that it had been so placed in his name to serve some convenience of his brother, E. E. Boyle, and that he paid no consideration for it. Is he then in any stronger or better position than his brother, in whose name the title had been taken by agreement of the joint adventurers?
Here the matter of actual fraud may be ruled out as nonexistent. Nevertheless, the pleaded facts that defendant merely took title to serve his brother’s interest, that he paid no consideration, and that he was fully apprised of plaintiff’s interest, make it apparent in equity and good conscience that defendant holds the title precisely as E. E. Boyle held it — for the benefit of plaintiff and E. E. Boyle in accordance with their agreement pursuant to which that property was acquired in 1928.
In Holmes v. Culver, 89 Kan. 698, 133 Pac. 164, plaintiff Holmes and defendant Culver made an agreement to purchase land at a foreclosure sale, and that Culver should furnish the purchase price and that the title should be taken in his name; that the land should be held as partnership property; that the parties should share revenues and expenses jointly; that the land should be sold when a satisfactory price could be obtained; and that Culver should then be reimbursed for the purchase price, and the profits divided. Five years after this arrangement was made, without plaintiff’s knowledge or consent, Culver sold the land to one Waymire, but the latter was aware of plaintiff’s interest in the property. In the action which ensued to establish plaintiff’s interest, Waymire’s heirs were im-pleaded, and separately answered with a general denial. (Files of State Library.) A demurrer to plaintiff’s evidence was sustained, but that ruling was reversed by this court, where we held that it was error to dispose of the case on a demurrer; it should have been adjudicated on the merits; and that the evidence was “sufficient to warrant the inference that Waymire took title with knowledge of the plaintiff’s rights”; and was also sufficient “to sustain a conclusion that Waymire was not an innocent purchaser.” (pp. 699, 700.)
The lawbooks are laden with cases holding that one who acquires title to property with knowledge of a third party’s interest therein takes it subject to such third party’s interest, and he can be compelled to convey the legal title to the party entitled thereto. (Winkfield v. Brinkman, 21 Kan. 682; Bank v. Woodrum, 60 Kan. 34, 55 Pac. 330.) In Kaufman v. Catzen, 81 W. Va. 1, 94 S. E. 388, L. R. A. 1918B 672, it was held:
“A purchaser of social property and business from one partner or adventurer, with knowledge of the right and title of the other who has been excluded from the enjoyment thereof, or of facts sufficient to put him upon inquiry as to the rights of the excluded party, takes it subject to such rights.” (Syl. If 7.)
In United States v. Dunn, 268 U. S. 121, 45 S. Ct. 451, 69 L. Ed. 876, 882, Mr. Justice Stone quoted from the old English case of Pennell v. Deffell, 4 De G. M. & G. 372, 388, 43 Eng. Reprint, 551, thus:
“It is ... an undoubted principle of this court that, as between cestui que trust and trustee and all parties claiming under the trustee, otherwise than by purchase for valuable consideration without notice, all property belonging to a trust, however much it may be changed or altered in its nature or character, and all the fruit of such property, whether in its original or in its altered state, continues to be subject to or affected by the trust.”
In 33 O. J. 873-874 it is said:
“One who buys land from the holder of the legal title with knowledge that the property is the subject of a joint adventure, or with knowledge of facts which puts him upon inquiry as to the seller’s power to convey, takes the property subject to the rights of the seller’s associates therein; and for their benefit equity will impress a trust upon the property and enforce the same against the purchaser.”
Without appropriate allegations in the pleadings, there might be room for an inference that E. E. Boyle breached his trust as title-holding partner of plaintiff the moment he transferred the royalty interest to this defendant, so as to set the statute of limitations in motion. Under the pleadings in this case — the petition and the demurrer — no such inference is permissible. (4 Bogert on Trusts and Trustees, p. 2760.)
The judgment is reversed and the cause remanded to the district court with instructions to set aside its ruling on the demurrer and for further proceedings consistent therewith. | [
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The opinion of the court was delivered by
Wedell, J.:
It was sought in this action to obtain a mandatory injunction for the removal of an alleged obstruction to the drainage of surface water on agricultural land outside the limits of an incorporated city. John Heitman was merely joined as a party defendant by reason of the fact he was the tenant of the principal defendant. The parties will be referred to as plaintiff and defendant.
It is contended the findings of fact made by the trial court do not support the judgment. The findings read:
“1. The plaintiff is and has been since the year 1932, the owner of the south three quarters (S%) of the west half (W%) of the southwest quarter (SW%) of section thirty-two (32), township twenty-nine (29) range one (1) west, Sedgwick county, Kansas. From the period of 1924 to 1932, the said plaintiff was in charge of said land as agent for his father’s estate. That the said land was a part of the original government homestead of his father and the plaintiff was born and raised on said homestead.
“2. That the defendant, Maude Stahlhut, is at the present time and has been for some nineteen years, the owner of the east half (EVz) of the southwest quarter (SW%) of section thirty-two (32), township twenty-nine (29), range one (1) west, in Sedgwick county, Kansas, which land adjoins on the east the land of the plaintiff described in finding No. 1. The defendant, John Heitman, is at the present time, and has been since 1921, a tenant of the defendant Maude Stahlhut on the said land.
“3. There is now and has been for a number of years prior to the- events set out in these findings, a hedge fence running north and south along the boundary line between the real property of the plaintiff and defendant, above described, which hedge fence was planted by the father of the plaintiff in the early eighties and has been used and maintained by the Dyer family since this planting.
“4. The general slope of the plaintiff’s and defendant’s land, described herein, is from the west toward the east. A swale, or depression, appears on the east part of the Dyer land just about as shown by the map, plaintiff’s exhibit 1. The low part of this swale drops from an established elevation of ninety-five feet at the west boundary of the Dyer land to ninety-two feet just to the west of the hedge fence on the east of said land.
“5. In the past and up to 1935, the Dyer land has been a productive, level piece of rich farming land, fairly well drained. In times of excessive rainfall water collected northwest of the Dyer land and drained through the swale across the Dyer land to the east, and on to and across the Stahlhut land. In the month of June, 1935, there was excessive rainfall and water flowed down to the east line of the Dyer land, part of which crossed on to the Stahlhut land and part of 'which collected over an area of about 6.39 acres west of the hedge. The plaintiff made an opening through the hedge just east of the swale' by digging a ditch approximately fourteen to sixteen inches deep.in an easterly direction through and on to the Stahlhut land, for a distance of ten or eleven feet. Upon the digging of said ditch the water immediately flowed to the east on to the Stahlhut land. Thereafter and on the same day, the defendant Heitman found the drain thus opened by plaintiff Dyer and filled it up. On the following day the plaintiff Dyer again opened up the drain and the'water flowed on to and across the Stahlhut land. A few days thereafter Heitman again filled in said ditch.
“6. In October or November, 1935, the plaintiff Dyer had a section of about sixty feet of said hedge pulled out at a point immediately east of the swale' leaving a gap in said hedge. The plaintiff used a fresno and a slip and pulled the loose dirt from where the hedge was pulled, back to the west, leaving a low place or hole where the hedge was pulled, which again opened the drainage through the hedge. Thereafter, in the spring of 1936, the defendant Heitman with the use of horses and fresno filled in the opening and the holes made by the pulling of the hedge as herein described, raising the land to approximately its original level.
“7. At the present time just to the west of the hedge on the Dyer land there is a depression or hole approximately one and a half feet deep running parallel to the hedge, caused by the pulling of about sixty feet of said’ hedge from north to south; the hole was made to appear more pronounced by the use of a fresno1 by the defendant John Heitman, as aforesaid.
“8. Dirt and leaves have accumulated around the butts of the hedge trees and have caused a natural raise of the elevation of the property line of about two tenths of a foot. The defendant in preparing the land for planting immediately east of the hedge has plowed it in such manner as to throw the dirt-one way, or to the west, which has, to some extent, caused a slight raise in the elevation of the west boundary line of the defendant’s property.
“9. The ground on plaintiff’s property immediately west of the boundary line where the hedge was pulled is lower than the property of the defendant immediately east thereof, and the same cannot be drained unless a ditch were dug through defendant’s property for some distance. If this were done, the water that normally would remain on the plaintiff’s property would flow on to and accumulate farther east on defendant’s property and remain in a depression similar, but not nearly so pronounced, as the swale or depression on plaintiff’s land.”
The conclusions of law were:
“1. That the actions of the defendant in filling the ditch dug by the plaintiff and restoring the elevation in the hedge fence did not constitute a private nuisance, and the plaintiff had no right to dig the ditch on to and through the defendant’s land, or tear out the hedge and thereby create a ditch on to defendant’s land.
“2. .(This conclusion simply denied the injunction and rendered judgment in favor of the defendant.)”
It is well to observe no natural watercourse was here involved. There existed only a slight natural depression or natural course of drainage. The drainage was from plaintiff’s land by reason of its slightly higher elevation towards defendant’s land. This condition, of course, did not constitute what is properly termed a natural watercourse. (Wood v. Brown, 98 Kan. 597, 159 Pac. 396; Evans v. Diehl, 102 Kan. 728, 172 Pac. 17; Tompkins v. Brown, 134 Kan. 111, 4 Pac. 454.) Surface water under the common law was a common enemy which a proprietor could fight as he deemed best. He could obstruct or divert its flow without regard to resulting damages to the upper owner. (67 C. J., Waters, § 289 [2]; Martin v. Lown, 111 Kan. 752, 754, 208 Pac. 565.) As to the treatment of such water on agricultural land we have substituted the civil law for the common law. An owner of lower land is therefore not now permitted, to construct a dam or levee which will obstruct the flow of surface water on agricultural land lying outside of an incorporated city, to the damage of an upper owner. (G. S. 1935, 24-105; Martin v. Lown, supra; Skinner v. Wolf, 126 Kan. 158, 266 Pac. 926; Gentry v. Weaver, 130 Kan. 691, 288 Pac. 745.) In the instant case, the trial court was confronted with the question of whether defendant had obstructed the natural drainage of surface water. Between the tracts of land there stood an old hedge. Around the bottom of the trees the elevation of the land was slightly higher than the land on each side of the hedge. Plaintiff had removed not only that elevation, caused by natural processes, but had removed the hedge for some distance and also the roots which left holes into which the water drained from his land. He pulled the loose dirt from where the hedge had stood farther to the west onto his own land, thereby leaving a low place where the hedge had been pulled and to the west thereof. He had cut ditches, not only on his own land but onto defendant’s land, which caused the water to immediately flow from his land onto defendant’s land. He thus diverted by artificial means the surface water from his own land to the land of the defendant by accelerating the natural volume and force of such drainage. This he was, of course, not permitted to do. In LeBurn v. Richards, 210 Cal. 308, 291 Pac. 825, it was held:
“The upper proprietor may not divert by artificial means the surface waters upon his own lands to the lands of the lower proprietor, nor may he accelerate by means of ditches or increase the drainage of his own land to the injury of the lower owner. His right is limited to the disposition of the water through the chosen channels of nature.” (Syl. f 5.) See, also, Horton v. Sullivan, 97 Mich. 282, 56 N. W. 552.
The findings disclose defendant filled the holes made by plaintiff and thus raised his own land to approximately its original level.
Plaintiff insists that water now stands on his land, whereas prior to 1935 it did not do so, but drained onto defendant’s land. It is perfectly natural since plaintiff lowered the elevation of the east portion of his own land that water should accumulate there and not drain off as readily as previously.
Plaintiff also contends defendant so farmed his land as to raise the embankment. The record discloses that in preparing his land for planting defendant plowed it so as to throw the ground to the west, which caused a slight raise in the elevation of the west boundary line. There is no evidence which would have compelled a finding that such plowing did not constitute good husbandry. The slight raising of the west boundary line resulting from ordinary plowing cannot well be classed as erecting a dam or levee against the flow of surface water. For an instructive treatise on the subject of prudent husbandry as related to obstruction of surface waters, see the early case of Martin v. Jett, 32 Am. Dec. 120, and note; Horton v. Sullivan, supra; Gregory v. Bush, 64 Mich. 37, 31 N. W. 90.
Plaintiff urges if he actually lowered the level of his land west of the hedge, the court had authority to order him to reestablish the original level. There is no appeal from a refusal of the court to enter such a judgment against him. We, however, know of nothing to prevent plaintiff from replacing the former contour of his land without a court order.
Plaintiff suggests the trial court should have sustained his motion for additional findings, at least to the extent of making fuller findings. A review of the evidence discloses that while a few additional facts might have been included in the findings, the material facts were included and the findings made justify the conclusion reached.
We have noted the decisions cited by plaintiff, but they in no wise conflict with the views herein expressed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
The defendant, the Equitable Life Assurance Society, issued and delivered in Ohio to Franklin H. Bott, who lived in that state, two policies of life insurance, with disability benefits. One policy for $1,000 was dated August 6, 1913; the second policy for $2,500 was dated November 13, 1924. The insured died April 15, 1934, and the death benefits were duly paid to the plaintiff, who was the beneficiary under the policies. The present action was brought to recover the permanent disability benefits under the two policies. This is an appeal from an order sustaining a demurrer to the plaintiff’s second amended petition.
In plaintiff’s petition it was alleged that the insured, Franklin H. Bott, had been ill for a good many years prior to his death; that, three years and four months before his death the insured suffered a complete nervous breakdown, which was caused by a combination of diseases; that he collapsed at that time and was totally disabled until his death. It was further alleged:
“. . . Plaintiff did not know the terms of the policies and did not know where the policies were during the last three and one half years of his life, except that plaintiff had been advised by the agent of the company, one G. W. Durham, to whom she paid premiums, that the policies were with the defendant company. Plaintiff was ignorant of the provisions in said policies for the payment of disability on the larger one, and the waiver of premiums in both policies, and her husband, during the entire period of his illness, was not mentally competent to describe said policies or their terms to plaintiff. Plaintiff was informed by the said defendant company as to the amounts of premiums due and she paid said premiums from the time of her husband’s collapse until the date of his death to said G. W. Durham, agent of the defendant company. . . . Since her husband had been unable, because of his illness and mental condition, as aforesaid, even to inform plaintiff that he had such a policy and that it contained such provisions, plaintiff was unable to make such proof during his lifetime, and because of the impossibility of making proof during the lifetime of her husband and of the further fact that the company took up the policies and had them in its possession at the time of her husband’s death and only paid her the amount that she then thought to be due and was represented to be due, it was physically impossible for this plaintiff to make any proof of claim. . . .”
The policy for $1,000 provided:
“If the insured, before attaining the age of sixty years and after payment of premiums for at least one full year and before default in the payment of any subsequent premium, shall furnish due proof to the society that he has become wholly and permanently disabled by bodily injury or by disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, or from following any gainful occupation, and that such disability has then existed for not less than sixty days, the society will waive payment of the premiums thereafter becoming due under this policy.”
The secord ~po1i~y for ~2,5OO provided:
"(I) DISAaL1J'y j~~j~F1T~ before age sixty shall be effective upon receipt of due proof, bcfo~~ ~• ult ii the paymeut of premium, that the insured became totally and porn;~ni~ntly disabled by bodily injury or disease after this policy becani3 cifective and before its anniversary upon which the insured's age atnearr~I 1~~jicIay is sixty years, in which event the society will grant the following ben~,
"(a) Waive at of all premiums payable upon this policy falling due after the receip~ and permanent di&i1 ~nd "(b) Pay to un insured a monthly disability-annuity as
stated on the face hereof; the th~st ~avment to be uavable unon recejot of due uroof of such disability an4 sub ~quc'nt payments monthly thereafter during the continu- ance of such total md permanent disability." Plaintiff 4sks j ~idgmm~ for the premiums paid on
the $1~OOO policy during the ~lisabiIity o~ Ilie insured amounting to $118.16; also, for the premiu~s p~ ~1 e ¶~i,5OO policy during the same period amounting ~to $2 ~o~or the monthly beneftt~ of $25 per month on t1~e to $1,000, with intere~t o~~i if ns. Both policies Were kept i~ ~nll force and effect until the death of the
insured. A1th~ugh the i~ d lived three years and four months after his a11~ged C4~11apse i~ i~ adnitted that neither the insured nor any person for hi~~ furnish~I proof to the defendant company of such total disability. The chief quest~oii p c~ented is whether the provisions in the policies above (iUot~d
as to furnishing of proof of disability are con- ditions preceden~ t4 LIie w, iiver ~f t1~ payment of the premiums on both policies, larger policy. It is asserted that there was responsibility of performance on the part of the insu~ed, not univ ~~`c ause of his disability,
but be- cause the policies weire in the po~e~ion of the defendant company. it is alleged that pl4intiff never say the policies while the insured was living and was\ unable to obt.~ii~ copies thereof until about June 1, 1936, which Iwas nearly i~ years after the death of th.e insured. It is not ela\imed, however, ~hat the plaintiff was unaware of the existence of thie policies. In i~c~t, as alleged in the petition, she paid the premium~ on the po1ieie~ a~ter the date of insured's dis&emdash; ability. Neither is there any a1Iegt~ti\n in the petition that the plaintiff, who wa~ the benefii~u'y ui~ IC policies, made any effort 43&emdash;147 Kan. is there any a1Iegation in the petition that the plaintiff who wa~ the benefii~u'y ui~ IC policies made any effort or used any diligence during the period of disability) -(0 obtain the policies or secure copies thereof. The insurance ccmt/act imposed no duty on the defendant company to inform the phiinUff as to the provisions in the policies. The insured lived three jye^i’S and four months after his alleged disability, thus affording hmple time for investigation by those in interest as to the content^ of the policies and for proof according to their terms. (Eagan v. New York Life Ins. Co., 60 F. 2d 268; Chambers v. Franklin Life Ins. Co., 80 F. 2d 339.)
The $1,000 policy provides that if the insured “shall! furnish due proof” of disability the defendant company would waive payment of the premiums “thereafter becoming due under, the policy.” In the larger policy the condition is that “upon receipt ol due proof” of disability the insurer will waive payment of premiums “falling due after the receipt of such proof”; and that insurer will pay the monthly benefits “upon receipt of due proof.”
These provisions are free from ambiguity. 'The receipt by the company of the proof of the disability.is._d.efinitely made a condition precedent to the waiver of the paymént of the premiums in the two policies, or the payment of the monthly annuities in the larger policy. (Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230, 76 L. Ed. 416.)
We think the question as to whether the conditions in the policies were precedent or subsequent was settled by tihe decision of this court in Smith v. Missouri State Life Ins. Co., (134 Kan. 426, 7 P. 2d 65. The condition in the policy as ;io waiverjwas as follows:
“ ‘After one full annual premium shall haye been pai'd and before default in payment of any subsequent premium, if the insured,/ prior to attaining age sixty, shall furnish evidence satisfactory to the company, that he has been wholly disabled from bodily injury or disease and thatjhe will foe permanently, continuously and wholly prevented thereby for life from pursuing any and every gainful occupation, the company, .during the continuance of such disability, will waive payment of any/premium payable under this policy as it becomes due. . . (p. 426.) : ¡
In that case it was said:
“Touching the contention that insanity should excuse the furnishing of proof, it will be noted that the law is) settled beyond any gestión that insanity does not excuse the payment of premium, a'nd if it does not excuse the payment of premium there/is no /reason why it! should excuse the failure to furnish proof of disability, j On ité face the rulq may seem harsh, but an examination into the basic principles of the insurance contract is convincing that it is sound and reasonable. The payment of premium is the life of the contract. All actuarial calculations are based upon the payment of premium at the time specified in the contract, and by reason thereof the state is able to determine whether the company can make good its contracts. If the beneficiary may wait until more than a year after the claimed disability and the death of the insured to make the claim of total disability, which is generally a question of fact, then the certainty of liability of insurance companies cannot be established nor the amount of their reserve definitely determined. Anything that destroys the certainty of contracts necessarily affects the whole structure, and the sacredness of contracts should not be unnecessarily invaded or impaired by judicial interpretation.
“We are persuaded that when the contract in question is considered in its entirety that it must be held that it was the intent of the parties to provide a means by which the insured might be relieved from the payment of premium, and to entitle him to this benefit he must not only be totally disabled, but must furnish proof of disability to the company while the policy is in force.” (p. 435.)
In the Smith case the authorities were carefully considered, and we see no reason to depart from the doctrine there announced. (See, also, New England Mut. Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151; Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445, 145 So. 887; Eagan v. New York Life Ins. Co., 60 F. 2d 268; Chambers v. Franklin Life Ins. Co., 80 F. 2d 339.)
In Courson v. New York L. Ins. Co., 295 Pa. 518, 145 Atl. 530, the plaintiff sued to recover seven annual premiums which had been paid on a life insurance policy while the insured was insane. The action was brought after the death of the insured. The policy contained the following provision:
“The company, by endorsement hereon, will waive payment of the premiums thereafter becoming due, if the insured, before attaining the age of sixty years and after paying at least one full annual premium and before default in the payment of any subsequent premium, shall furnish proof satisfactory to the company that he has become wholly and permanently disabled by bodily injury or by disease so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for remuneration or profit, or from following any gainful occupation.” (p. 520.)
The petition alleged that after the payment of one annual premium the insured became mentally deranged and disordered and continued so until his death, and because of his mental condition he was totally and permanently disabled. It was further alleged that because of the insured’s insanity he did not know or realize that he was wholly and permanently disabled or that the policy provided for a waiver of premiums in such event. The plaintiff argued that making proof of disability was a condition subsequent, but the court said:
“The company was only to waive the premiums and endorse the waiver on the policy if the policyholder had furnished proof satisfactory to the company of his disability. It was the judge of the proof. The requirement of notice of. the disability before the company acted was a salutary one. It enabled the company to investigate before waiving payment of the premiums and guarded it against malingerers and frauds. We are not here concerned with a lapsing of the policy; it was in full force when death came, and the insured’s beneficiary is now receiving the sums which the policy provides. What is being tried is to recover back the premiums paid without having given the company opportunity to look into the matter, while its insured was alive, as to whether his actual disability was such as to lead the company to waive then-payment. It is true, as appellant points out, that the supreme court of South Carolina, in Levan v. Metropolitan Life Ins. Co., 138 S. C. 253, 136 S. E. 304, under a somewhat similar provision in a policy, held that a delay in paying the premium because the insured was insane did not forfeit it because of the waiver provision. Here we are not dealing with the lapsing of a policy because the premium was not paid as a result of insanity with a disability clause in effect, but with an endeavor to take back the premiums paid where the insured had not met the requirements of the contract. Pfeiffer v. Missouri State Life Ins. Co., 174 Ark. 783, 297 S. W. 847, [54 A. L. R. 600], is likewise a case where it was sought to forfeit the policy. We are not required to state what our judgment would be under such a state of facts. The conclusion to which we have come, that the furnishing of proof of disability was a condition precedent to a waiver of the premiums, was reached by the supreme court of Alabama in New England Mutual Life Ins. Co. v. Reynolds, [217 Ala. 307], 116 So. 151.” (522.)
In New England Mut. Life Ins. Co. v. Reynolds, supra, the court-said:
“It is further of importance that any issue as to the fact of disability be adjusted while the insured is living, not postponed until an issue must be made with the beneficiary after his death. In cases of insanity as the result of chronic disease, great difficulty may often arise in fixing the date when the border line is passed between mental capacity and incapacity to contract.” (p. 310.)
In Berry v. Lamar Life Ins. Co., supra, the court used similar language:
“There is, in our opinion, sound reason why insurance companies should be permitted in-their policies a provision requiring proof to be made before the waiver of the policy becomes effective. It is, of course, necessary for the success of the life insurance business that unmerited or fraudulent claims should be rejected, and, in order to determine whether a claim is just and bona fide, it should have opportunity to investigate the facts at the time the disability occurs or accrues upon which the waiver of premiums depends.” (p. 415.)
In the case at bar the suit was brought two years, lacking one day, after the death of the insured. The action is to recover disability benefits and premiums for a period of three years and four months prior to the death of the insured. To exonerate itself from liability the defendant must go back more than five years and show that the insured was not physically or mentally disabled. Statutes of limitations are enacted to prevent fraudulent and stale claims from springing up at great intervals of time and surprising the parties or their representatives when all the proper vouchers and evidences are lost or the facts have become obscure from the lapse of time or defective memory, death or removal of witnesses. Such statutes apply with full force to meritorious claims. (37 C. J. 685.) To deny to an insurance company the opportunity to protect itself against stale and fraudulent claims, by requiring proof of disability to be timely made, would not only put a heavy burden on the company, but would disregard the sanctity of contracts.
Finally, it is contended that we must apply the law of Ohio where the policy was delivered. Assuming this to be true, our attention is directed to the case of W. & S. Life Ins. Co. v. Smith, 41 Ohio App. 197, 180 N. E. 749. The syllabus in that case reads:
“Where an insurance company by a rider on a policy agrees to waive the premiums fixed by the policy, if the insured becomes wholly disabled and such disability continues for ninety days prior to proof of such disability, such waiver cannot be invoked unless it be shown that both of these conditions have been satisfied.”
We do not construe that case as supporting the contention of plaintiff. (See Mutual Life Co. v. Johnson, 293 U. S. 335, 55 S. Ct. 154, 79 L. Ed. 398.)
We think the demurrer to plaintiff’s petition was properly sustained. The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This is an action under the federal employers’ liability act (45 U. S. C. A., §§ 51-59) to recover damages for personal injuries sustained by the plaintiff while in the service of defendants. Plaintiff recovered judgment and defendants appeal.
Plaintiff alleged that on April 20, 1936, he was in the employ of defendants as car inspector, and at about 9:30 o’clock, p. m., on that date was assisting in the making up and breaking up of cars at the Cline yard, working on a night shift; that a crew with a foreman at the Cline yard was engaged in cutting out freight cars, and that it was the duty of the plaintiff, together with the crew, to inspect such cars and to cut out such cars from trains and transport the cars along the tracks at Cline yard. At the above-stated time plaintiff was employed on track No. 1; that it was dark and rainy; that after putting his packing iron in the material box, about sixteen feet from track No. 1, he started to go across track No. 1 to track No. 4; that at the time a car on track No. 1 was moving in a southerly direction toward plaintiff under its own momentum, which car had “carelessly and negligently been cut loose without any warning.” It was alleged that as plaintiff proceeded across track No. 1 he was struck by the approaching car and sustained serious injuries. The negligence charged in the petition is as fóllows:
“10. Plaintiff further alleges that said defendants were guilty of negligence which was a direct and proximate cause of plaintiff’s injuries and that but for such negligence the plaintiff would not have been injured in this:
“(a) That said defendants were guilty of negligence in not providing this plaintiff a safe place to work and by reason of cutting off said car in the direct path of the cars upon which the defendants, their servants, agents and employees knew plaintiff had been working.
“(b) That said defendants were guilty of further negligence in not having said moving car lighted so as to show its position on said track and in not informing this plaintiff that said car was cut off in his direction, the defendants, their agents, servants and employees well knowing it to be dark and rainy and well knowing said car to fuse with the darkness of nighttime and well knowing that said car could not be seen by this plaintiff.”
Defendants answered, denying all the material allegations of plaintiff’s petition; alleged that the plaintiff "voluntarily assumed the risk and danger of all injuries and damages by him alleged and suffered”; alleged that if the plaintiff was injured, such injuries were not caused by any fault, negligence or wrongful act of defendants, but were caused by the inattention, lack of care and negligence of the plaintiff.
Defendants’ demurrer to plaintiff’s evidence was overruled. The jury answered special questions and returned a verdict for plaintiff in the sum of $16,000.
The various specifications of error are thus summarized in appellants’ brief:
“1. The court erred in overruling defendants’ demurrer to plaintiff’s evidence presented at the conclusion of the plaintiff’s evidence.
“2. The court erred in instructing the jury on the law of assumption of risk under the federal employers’ liability act, and
“In erroneously instructing the jury generally on the law of contributory negligence, and on the custom and manner of handling cars in the Cline yard, wherein no liability would be created from the happening of the accident involved.
“3. The court erred in overruling defendants’ motion to set aside special findings of the jury numbers 5 and 6, and in overruling defendants’ motion for judgment on the special findings of the jury, and in overruling defendants’ motion for a new trial.”
At the outset it may be well to observe that in actions arising under the federal employers’ liability act certain propositions are well settled and are binding on this court.
First: By the federal employers’ liability act, congress took possession of the field of employers’ liability to employees in interstate transportation by rail; and all state laws upon that subject were superseded. (C. M. & St. P. R. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; Second Employers’ Liability Cases [Mondou v. New York, N. H. & H. R. Co.], 223 U. S. 1, 55, 32 S. Ct. 167, 56 L. Ed. 327, 348, 38 L. R. A., n. s., 44, 1 N. C. C. A. 875; Seaboard Air Line v. Horton, 233 U. S. 492, 501, 34 S. Ct. 635, 58 L. Ed. 1062, 1068, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834.)
In Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177, this court said: '
“When a state of facts is set up which come fairly within the federal act, and the proof sustains the averments, the liability must be determined by the provisions of that act. When congress acts upon the subject of interstate commerce and regulates the relations of employer and employee engaged in that kind of commerce, its action is, of course, supreme and exclusive, and any state statute in conflict with the congressional act must give way. (Nashville &c. Railway v. Alabama, 128 U. S. 96, 9 Sup. Ct. Rep. 28, 32 L. Ed. 352; Mississippi R. R. Com. v. Illinois Cent. R. R., 203 U. S. 335, 27 Sup. Ct. Rep. 90, 51 L. Ed. 209; The Employers’ Liability Cases, 207 U. S. 463, 28 Sup. Ct. Rep. 141, 52 L. Ed. 297.)” (p. 134.)
Second: Under the federal employers’ liability act, negligence is the foundation of liability, and without negligence there can be no recovery. Under the act, the mere happening of the accident will not warrant a recovery; there must be negligence on the part of the railroad company or on the part of some employee, and this is the basis of liability. (New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367, 38 S. Ct. 535, 62 L. Ed. 1167; San Antonio Ry. v. Wagner, 241 U. S. 476, 36 S. Ct. 626, 60 L. Ed. 1110; Southern Ry. v. Gray, 241 U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030.)
In Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153, L. R. A. 1917 E, 741, it was said:
“Plaintiff’s intestate, however, was an employee, and the action is brought against the employer to recover for death alleged to have been caused by the employer’s negligence; and since it is brought under the federal employers’ liability act, it can be maintained only upon the ground that the negligence consisted of the employer’s failure to perform some duty or obligation owing to the employee under the law which applies to master and servant; not necessarily as this court would determine that question in a common-law action here, but as the federal courts would determine it.” (p. 554.)
Third: Under the federal employers’ liability act, the employee assumes the ordinary risks and dangers of his employment and the extraordinary risks and dangers which are obvious and which he fully knows and appreciates; he also assumes the risks due to the negligence of his employer and fellow employees which are obvious and which he fully knows and appreciates. (Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103; Harper v. Chicago, R. I. & P. Rly. Co., 138 Kan. 782, 228 P. 2d 972; Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153, L. R. A. 1917E, 741; Boldt v. Pennsylvania R. R. Co., 245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385; Seaboard Air Line v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062.)
In Delaware &c. R. R. v. Koske, 279 U. S. 7, 10, 49 S. Ct. 202, 73 L. Ed. 578, the court said:
“The federal employers’ liability act permits recovery upon the basis of negligence only. The carrier is not liable to its employees because of any defect or insufficiency in plant or equipment that is not attributable to negligence. The burden was on plaintiff to adduce reasonable evidence to show a breach of duty owed by defendant to him in respect of the place' where he was injured and that in whole or in part his injuries resulted proximately therefrom. And, except as provided in section 4- of the act, the employee assumes the ordinary risks of his employment; and, when obvious or fully known and appreciated, he assumes the extraordinary risks and those due to negligence of his employer and fellow employees. (Seaboard Air Line v. Horton, 233 U. S. 492, 501; St. Louis, etc., Ry. v. Mills, 271 U. S. 344; Northern Ry. Co. v. Page, 274 U. S. 65, 75.)” (Italics inserted.)
With these general principles in mind, we proceed to the examination of the various assignments of error.
Defendants contend the court erred in instructing the jury on the law of assumption of risk under the federal employers’ liability act. The court gave the following instruction:
“8. You are further instructed that one engaged in the work of car inspector, as was the plaintiff in this case, is beset with a certain amount of personal risk and hazard ordinarily incident thereto and that through no fault of anyone unforeseen accidents are likely to occur with resultant personal injury. Plaintiff herein assumed the ordinary and usual risks incident to and inherent to his employment as car inspector and to the work in which he was engaged. He did not, however, assume the risk of negligence on the part of his fellow employees, if you find that his fellow employees were negligent and that such negligence was the proximate' and procuring cause of his injuries. There has been some testimony in this case with reference to the custom of handling cars in the Cline yard. Such evidence is to be considered by you on the questions of negligence and contributory negligence as alleged in this case. If the plaintiff knew that it was the custom to shift cars without giving any notice and he had been accustomed to work under those conditions this would be a matter to be considered by you in determining what amount of care should be exercised on his part to protect himself from injury and also as to whether or not there was negligence on the part of the employees in so shifting the cars. The mere fact that it was customary and known to be customary by both the plaintiff and the employee's of the company to so shift cars is not a conclusive or controlling factor on the question of negligence, but it is to be considered along with all the other evidence in determining whether or not there was negligence or contributory negligence.”
The court refused the following instruction as requested by defendants :
“4. You are instructed that the plaintiff by virtue' of his employment assumed all usual and ordinary risks incident to his employment as car inspector and to the work in which he was engaged. You are further instructed that the plaintiff also assumed such extraordinary risks and those due to negligence of his employer and fellow employees, as were open and obvious or fully known and appreciated, or by the exercise of due and proper care could and should have' been known to and appreciated by him; and if you find from the evidence in this ease that the accident resulted from such ordinary or extraordinary risks as above defined, plaintiff cannot recover herein and it will be your duty to return a verdict for the defendants.”
By instruction No. 8, above quoted, the court instructed the jury that while the plaintiff assumed the ordinary and usual risks incident to and inherent to his employment as car inspector, yet he did not assume the risk of negligence on the part of his fellow employees, if it was found that his fellow employees were negligent and that„such negligence was the proximate and procuring cause of the injuries. The jury was not instructed as to extraordinary risks.
In Harper v. Chicago, R. I. & P. Rly. Co., 138 Kan. 782, 28 P. 2d 972, it was said :
“Under the federal act an employee ordinarily assumes the usual and obvious risks incidental to his employment, and the assumption of the usual risks of his employment is ordinarily not a jury question. It is a matter of law. (Lively v. Railway Co., 115 Kan. 784, 788, 225 Pac. 103.) . . . This case having been brought under the federal employers’ liability act, the federal rule as to the assumption of risk must be applied. In such a case the defense of assumed risk is permissible, and under that rule the plaintiff assumes the risks ordinarily incident to his employment, and where the risks are open and obvious and can be seen at a glance or are fully known he assumes the extraordinary risks as well. (Delaware, &c., R. R. Co. v. Koske, 279 U. S. 7, and cases cited.) Where the facts are disclosed by the evidence of plaintiff, it is ordinarily not a jury question, but is one of law for the determination of the court.” (pp. 784, 785.)
In Quilantan v. Railroad Co., 109 Kan. 111, 197 Pac. 1095, the plaintiff was employed as a track man at Topeka, cleaning and repairing tracks in the yard, when one of defendant’s freight .trains ran against him, knocking him down and seriously injuring him. In that case it was said:
“The federal rule as to assumption of risk is the one we must follow in this case. (Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153; Rask v. Railway Co., 103 Kan. 440, 173 Pac. 1066.) The federal rule is to follow the common law. (Southern Ry. v. Gray, 241 U. S. 333.) In Aerkfetz v. Humphreys, 145 U. S. 418, the employee was familiar with the movements of the cars and of the switch engines and knew that the switch engine was busy making up trains and that cars were liable to be moved along the track where he was working at any time. He placed himself with his face away from the direction from which the cars were to be expected. Abundance of time elapsed between the moment the cars entered upon the track and the moment they struck him. The court said:
“ ‘There could have been no thought or expectation on the part of the engineer, or of any other employee, that he, thus at work in a place of danger, would pay no attention to his own safety. . . . They were not bound to assume that any employee, familiar with the manner of doing business, would be wholly indifferent to the going and coming of the cars.’ (p. 420.)” (p. 115.)
For about twenty-three years plaintiff had been employed as a car inspector, a considerable part of that period in the Cline yard at night. He was thoroughly familiar with the yard and its surroundings. He knew the location of every track comprising the yard; he had worked with this same switching or engine crew night after night; he was provided with and used the usual type of car inspector’s lantern; he had polished and trimmed it at four o’clock when his tour of duties began; he knew of the custom and practice followed in switching and handling cars in the yard; he knew that outbound cars were to be assembled on tracks Nos. 1 and 4 and later to be placed in their respective trains for movement to points without and beyond the state; he knew that the switching crew with the engine were at the north of the yard on the lead track and had dropped or kicked four cars on track No. 4 and three cars on track No. 1 and that others were likely to follow until the work of placing cars upon those two tracks was completed; he knew the night was dank; he knew that the cars were switched, kicked or dropped by the switching crew so that they would move toward or against the other standing cars previously dropped upon tracks Nos. 1 and 4; he knew that ordinarily no switchman rode the cars down the tracks and that the cars were not lighted; he knew also that it was not the custom or practice, nor had it ever been the custom or practice to give warning of any kind of the movement or the switching, kicking, or dropping of cars along the various tracks in that yard; he also knew, and so testified, that the work on that occasion was being done in the usual and customary manner — that same manner with which he was familiar by reason of his years of service in the yard; he also knew that a car or cars might be encountered upon tracks Nos. 1 and 4 at any time without any warning whatsoever.
The plaintiff had worked in the same yards at night for many jrnars, and through all kinds of weather. In the performance of his duties the risks arising from darkness, wind, dust and rain were known and appreciated by him. These risks were assumed by the plaintiff. He also assumed the risks arising from the negligence of his employer and fellow employees which were obvious and which were fully known and appreciated, as announced in Delaware &c. R. R. v. Koske, supra, and other cases cited. Under instruction No. 8 given by the court these defenses were denied the defendants, and may well have been of controlling importance to the jury. We conclude the instruction requested by defendants correctly stated the law as announced in the foregoing cases, was applicable to the facts in evidence, and should have been given by the trial court.
Defendants assert the court erred in overruling defendants’ motion to set aside special findings of the jury, Nos. 5 and 6, and in overruling defendants’ motion for judgment on the special findings of the jury.
The jury returned the following answers to special questions:
“1. Do you find from the evidence that Mr. Schaefer knew that cars for outgoing trains were to be assembled by the switch crew on tracks 1 and 4? A. Yes.
“2. Do you find from the evidence it was the custom of switch crews in the Cline yard to warn car inspectors of the dropping or switching of cars as they were being dropped or kicked along various tracks? A. No.
“3. Do you find from the evidence it was the custom or practice in the Cline yard for a switchman to ride each car along the track as it was being pushed, dropped or kicked? A. No.
“4. Do you find from the evidence it was the custom or practice in the Cline yard for a switchman or other person to ride at night with a lighted lantern each car pushed, kicked, or dropped along the tracks? A. No.
“5. Do you find from the evidence the defendants were negligent, at the time plaintiff was injured? A. Yes.
“6. If in answer to question number 5 you find the defendants were negligent, state fully of what the negligence consisted. A. The car kicked in on No. 1 was not properly watched. Extra precaution should have been taken due to weather conditions.
“7. At what distance could the car have been seen by Mr. Schaefer if he had turned his lantern to the north just before he stepped between the rails of track No. 1? A. Twenty feet.
“8. Did Mr. Schaefer turn the lantern to the north and toward the approaching car as he stood at track No. 1 before entering upon it? A. Mr. Schaefer turned his lantern to the north as he approached track No. 1.
“9. If you find from the evidence that Mr. Schaefer turned the lantern toward the north along track No. 1, state where he stood and the distance from the track when he did so. A. Approximately six to ten feet.”
In answer to question No. 5 the jury found the defendants were negligent, and in answer to question No. 6 the jury answered that the negligence consisted of the following:
“The car kicked in on No. 1 was not properly watched. Extra precaution should have been taken due to weather conditions.”
In answer to question No. 1 the jury found that the plaintiff knew the outgoing trains were to be assembled on tracks Nos. 1 and 4. In answer to question No. 2 the jury found that it was not the custom of the switch crew in the Cline yard to warn inspectors of the dropping or switching of cars as they were being dropped or kicked along various tracks.
The negligence charged in the petition was: (1) That a car had been carelessly and negligently cut loose without warning. The jury in answer to question No. 6 did not find that the car that injured plaintiff was carelessly or negligently cut loose without warning. On the contrary, the jury found it was not the custom to warn the inspectors when dropping or switching cars. (2) Negligence is charged in not providing the plaintiff a safe place to work. No specific defect was alleged as to the condition of the track, roadbed, surroundings or conditions in the yard. The answer to question No. 6 is silent on this point, and we find nothing in the record to support the charge. (3) Negligence is charged in the petition “by reason of cutting off said car in the direct path of the cars upon which the defendants, their servants, agents and employees knew plaintiff had been working.” No negligence in this regard was found by the jury. On the contrary, the answer to question No. 2 would seem to negative this allegation. (4) Negligence is charged in “not having said moving car lighted . . . and in not informing this plaintiff that said car was cut off in his direction, the defendants, their agents, servants and employees well knowing it to be dark and rainy.” Was it the duty of defendants to have lights on the cars as they were kicked or dropped along the track? The jury did not so find, and we find no support of this charge in the evidence. (5) Negligence is charged in not informing plaintiff that the car was cut off in his direction, the .defendants knowing it to be dark and rainy, and knowing the car to fuse with the darkness and could not be seen by the plaintiff. In answer to question No. 2, the jury found it was not the custom to give warning as the cars were dropped or kicked along the track.
It is thus difficult to perceive that the acts of negligence found in answer to question No. 6 are responsive to any allegation of negligence in plaintiff’s petition. Counsel for plaintiff stress the speed of the car that caused plaintiff’s injury, also the wind and the dust. Confessedly these were not in the issues as formulated in the pleadings. Counsel assert, however, evidence as to these conditions was admitted without objection and that the issues were enlarged by tacit consent of the litigants. (Corson v. Oakley, 138 Kan. 520, 530, 27 P. 2d 290; Watson v. Watson, 110 Kan. 326, 203 Pac. 714.)
As to the speed of the car the plaintiff testified:
“Q. Now, at what rate of speed, if you know, do those — are those cars ordinarily kicked into the track? A. Well, they are not kicked in very fast, but the further they go, the faster they run, and this car was running fast.
“Q. How do you know; you didn’t see it; what makes you think it ran fast? A. Why, when it hjt me I felt it.
“Q. So you cannot — you are not able to say at what rate 'of speed the car was traveling? A. It was traveling around ten or twelve mile an hour.”
As plaintiff’s case is bottomed on the proposition that he could not see the car, the probative value of this testimony of the plaintiff as to the excessive speed of the car is doubtful. Taylor, the yard foreman, who gave the signal to the engineer to kick the car on track No. 1, stated the car “just barely was moving and I stood there and watched the car, saw then it was going to go in the clear, thought maybe we would have to throw it again, but didn’t, and I went’ on down the lead and went into number 8 track.” The testimony showed that at the time the car struck the plaintiff the engine was almost due east on track No. 8. The distance from the lead to the point on track No. 1 where the plaintiff was injured was 469 feet. After kicking the car on track No. 1, the engine traveled down the lead to track No. 8, then on to that track, traveling at a speed of three to five miles an hour. At that speed the engine had traveled a greater distance than the car. So the testimony of the foreman Taylor, and the undisputed fact as to the speed of the engine in going a greater distance, shows the car moving toward plaintiff on track No. 1 was traveling at a slower speed than the engine. The wind was blowing and there was dust in the air, but the record does not disclose there was a violent storm.
The conclusion is inevitable that the negligence found by the jury was outside the issues in the pleadings. Admitting that the issues were enlarged by consent to cover speed of the car and weather conditions, the evidence fails to disclose any negligence of defendants as to the speed of the car, or arising out of the weather conditions.
As shown above, the mere happening of an accident will not warrant a recovery. Under the federal employers’ liability act negligence must be shown on the part of the railroad company or on the part of some employee, and this is the basis of liability.
In C. & O. R. Co. v. Mihas, 280 U. S. 102, 50 S. Ct. 42, 74 L. Ed. 207, the plaintiff was employed by the defendant company to care for switch lights and lamps along the right of way and had been so employed for four years. He lived near the tracks and was familiar with the switching operations and the time when the switching was carried on in the yards. At such time he attempted to climb over a coal car standing with other cars on the switch tracks. He testified that he looked to one side and the other, but did not see or hear any train or car approaching. While on the coal car a string of nine cars was forcibly propelled by means of a flying switch against the car on which plaintiff was standing with such violence that plaintiff was thrown between the cars and seriously injured. The court said:
“There is nothing in the record to show that employees engaged in the switching operation knew or had reason to believe that Mihas was in any position of danger. In the absence of such knowledge or ground for belief, they were not required to warn him of the impending switching operation or take other steps to protect him. (Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 173.)
“The evidence failing to show negligence on the part of the company, the motion for a directed verdict in favor of the petitioner should have been granted.” (p. 108.)
The above statement is applicable here. The record fails to show the switching crew knew or had reason to believe that Schaefer was in a position of danger. Under the rule in the Mihas case, unless the crew had such knowledge or ground for belief, they were not required to warn him of the approach of the car.
In Ryan v. Atchison, T. & S. F. Rly. Co., 131 Kan. 706, 293 Pac. 763, the court said:
“The deceased in this case was not only accustomed to the yards, having worked in them for ten years, but his business was to run and move switch engines just as this engine was being moved.
“Under the federal employers’ liability act it has never been the duty of the employer to place an employee on the lookout to observe and warn other employees of approaching danger.” (p. 712.)
The case of Caples v. Atchison, T. & S. F. Rly. Co., 129 Kan. 341, 283 Pac. 53, is directly in point. As the facts in this case are so similar to the facts in the case at bar, we think the Capíes case is of controlling importance here. In that case'the court said:
“While the jury found that defendant was negligent in not having lights'on the east end of the string of cars that were being switched, it appears that there was no evidence that it was the rule or custom of this defendant or of any other company to have lights or lookout men on the ends of switching cars in the yards, and it may also be said that this ground of negligence was not submitted to the jury. There is the further finding that the foreman in charge of the switching string was negligent to some degree in not giving previous warning to Capíes, as well as one that Capíes was negligent to a degree in failing to stop and examine the track before crossing it. . . .
“It is to be noted that the accident occurred in the yards of the company, a busy place, where switching was going on almost continuously over a web of tracks. It was necessarily a place of danger, a fact which experienced employees understood and where each of them in crossing tracks was required to look out for his own safety. Familiar as Capíes was with the situation, and the custom or practice in carrying on switching in the yard, he knew that cars would be shunted back and forth without lights and lookouts on the ends of the moving cars and without warning to employees working in the yard. The foreman who was directing the switching movement had a right to expect that other employees would look out for their own safety in crossing tracks upon which cars were being moved. It was not incumbent on him to be on the lookout for unobserving or careless employees who might undertake to cross a track in front of moving cars. He had his own duties to perform in signaling and throwing switches and had a right to assume that the plaintiff, familiar with the yard and the practice therein, would not negligently cross tracks in front of advancing cars without taking care to stop and examine the situation and the danger before crossing. . . . The switching, it appears, was being done in the customary way, and as the foreman was naturally giving attention to his own affairs in signaling and switching, it cannot be regarded as his duty to leave them in order to exercise care to an employee whose duty it was to care for himself.” (pp. 345-347.)
The special findings acquit the defendants of the negligence pleaded, and thus nullify the general verdict. (Balandran v. Compton, 141 Kan. 321, 41 P. 2d 720.) If we consider the issues enlarged during the trial to cover the excessive speed of the car, the evidence fails to show excessive speed, or negligence in the movement of the car.
As stated above, the plaintiff assumed the risk of the weather conditions. (Indianapolis Traction, Etc., Co. v. Mathews, 177 Ind. 88, 97 N. E. 320.) In the performance of his duties as car inspector in the yards, the plaintiff was bound to anticipate that when the wind was blowing, dust would be in the air. This was a risk which plaintiff must be held to have assumed. (Martin v. C. R. I. & P. Rly. Co., 118 Ia. 148, 91 N. W. 1034.)
In A. T. & S. F. Rld. Co. v. Plunkett, Adm’r, 25 Kan. 188, a yard switchman was killed while attempting to couple two cars in the railroad company’s yard, then loaded with projecting timbers. The jury, in answer to a special question whether there was any obstacle to prevent his seeing the car and the manner in which it was loaded, answered: “Yes, it was raining hard at the time.” This court, in reversing a judgment in favor of plaintiff, said:
“It is admitted that the deceased knew the condition of the weather, the condition of the ground, the condition of the track, the condition of the cars (not including the manner in which they were loaded), and the manner in which the cars were to be coupled, as well as the defendant or any of its other servants or agents did; . . . The deceased knew that it was raining, and knew that he was to couple the cars without an engine being attached to either of them, . . . Indeed, the deceased was master of the situation. Almost every act (if not every one) that directly contributed to bring about the injury was the sole act of the deceased.” (p. 1990
In the case at bar, defendants could not have anticipated that Schaefer would fail to see the car switched in on track No. 1, or that he would be injured in crossing the track, as he had done for many years in the performance of his duties. In answer to the special questions the jury found that the plaintiff knew the outgoing trains were to be assembled on tracks Nos. 1 and 4, and that it was not the custom for the switch crews to warn the car inspectors as the cars were dropped or kicked along the various tracks; that it was not the custom or practice for the switchmen to ride each car, and at night it was not the custom or practice to ride each car with a lighted lantern, as the cars were being pushed, kicked or dropped along the tracks. Such findings are contrary to the general verdict. It follows that the motions to set aside the findings Nos. 5 and 6 and the motion for judgment on the special findings should have been sustained. (G. S. 1935, 60-2918; Smith v. T. & S. F. Rly. Co., 145 Kan. 615, 66 P. 2d 562; Maris v. Street Railway Co., 98 Kan. 205, 158 Pac. 6; Dye v. Rule, 138 Kan. 808, 28 P. 2d 758.)
In this view of the case it becomes unnecessary to consider the other assignments of error. For the reasons stated, the judgment must be reversed with the direction to enter judgment in favor of defendants. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from a conviction on a charge of unlawful and felonious possession of intoxicating liquor. Defendant contends the trial court erred in the admission of a former record of conviction on the charge of unlawful possession, before- a justice of the peace, and that the evidence was also insufficient to sustain the charge of possession on the date stated in the instant information.
The first alleged error pertains to what defendant claims to have been an improper authentication of the docket of a justice of the peace, concerning the former conviction. It is urged the record was not certified as required by G. S. 1935, 60-2860, where the proof of former conviction is attempted to be made by the records of a former justice of the peace before whom the original conviction was had. The trouble with that contention is the proof of former conviction was not attempted to be made by means of a certified copy, as permitted by that statute. The proof of former conviction was made by introducing the original docket, as authorized by G. S. 1935, 60-2854. The statute first mentioned was enacted for the purpose of facilitating the proof by making competent a properly certified record. The fact a party doés not see fit to avail himself of the more convenient method furnished under the provisions of G. S. 1935, 60-2860, does not mean that he will not be permitted to employ the more cumbersome method provided by G. S. 1935, 60-2854. (See State v. Merriweather, 136 Kan. 337, 339, 15 P. 2d 425.) The present justice of the peace produced and identified the criminal docket which contained the former conviction. He testified in effect that he had the custody and control of the criminal docket and that he knew of his own personal knowledge that Jim Jones, the name under which defendant was charged in the first case, and J. H. Jones, the name under which defendant was charged in the instant case, was one and the same person. The defendant testified in his own behalf and admitted having served a previous sentence for violation of the prohibitory liquor law. The proof of former conviction was clearly sufficient.
Was the evidence sufficient to establish unlawful possession of intoxicating liquors on the 28th day of September, 1936, the date set forth in the instant information? The defendant directs our attention to defense evidence, which if believed by the jury would have resulted in his acquittal. We need, of course, consider only the evidence which supports or reasonably tends to support the verdict. Such evidence was in substance as follows: The liquor was found on premises occupied by the defendant; Miller, the chief of police of the city of Parsons, and former sheriff of Labette county, had been acquainted with the defendant about twenty years; on the 28th day of September he, together with Glenn Starrett and Art Malsed, federal prohibition agents, went to defendant’s residence at about twelve o’clock noon; Starrett went to the front door, and Malsed and Miller went to the back door of the house; when they reached the southwest corner of the house the defendant was in the yard, but Malsed got by him and kept on going; defendant spoke to Miller and then turned and went to the house and ran up to Malsed at the back door; Miller stepped onto the porch and took hold of the defendant because the defendant had taken hold of Malsed; Miller said to the defendant, “Jim, you better lay off of him”; Jim said, “All right, Bill”; Malsed went into the house; the defendant and Miller were on the porch, and defendant said, “I am caught again”; Miller said,'“Well, you haven’t got anyone to blame but yourself”; and the defendant said “No,” and the defendant further said, “I was just going to sell a little more and then I was quitting.” The officers found bootleg whisky in bottles and jugs on the floor of the bathroom ; there was a lid on an old well or cistern which was underneath the floor, and bottles of liquor had been placed on some iron bars over the top of the well and below the level of the floor; there was a sack and a half full- of these bottles; the sacks were sugar gunny sacks; defendant had lived at this place at two different times; the reputation of the place was bad and its reputation was that of being a place where liquors were kept and sold; the chief of police had been out there on numerous raids and had found intoxicating liquor there; four one-gallon jugs of unstamped liquor were on the floor, in addition to bottles; there was a hammer lying by them; there were four one-gallon jugs of colored whisky without stamps, seven pints of Old Quaker, three pints of State Fair whisky, four pints of Se-gram’s whisky, five pints of Quaker gin, eleven pints of Gold Feather gin, nine 4-5th quarts of White Swan gin, and two 4-5th quarts of Cocktail Hour gin, and there were one or two bottles of sloe gin.
After Starrett unhooked the back screen door the defendant came to the kitchen and Starrett asked him “if that was all the liquor he had in that room,” and the defendant said, “That is all I got.” On the way to Fort Scott defendant said, “I never hauled a drop of liquor in my life,” and Starrett said, “Well, did somebody bring it in?” and the defendant said, “Yes.” On cross-examination Starrett testified, in effect, the defendant might have said “that is all there is there,” or “here,” instead of “that was all he had.”
Defendant insists the uncontradicted evidence was that others, whose names he did not know, had brought the whisky to his home, and hence the conviction cannot stand. He insists that at most the evidence discloses defendant permitted others to have liquor on his premises and that such facts constitute an entirely separate and distinct offense from the offense with which he was charged. We need not dwell long on that contention. It is true defendant was not charged with permitting another or others to have, keep or use intoxicating liquors on his premises. It is also true he was not convicted of that offense. The jury believed defendant was guilty of the crime with which he was charged, to wit, that of having posses sion of the liquor, and it disbelieved the story the liquor was owned by and was in the possession of some unknown persons who had simply brought it to defendant’s home. The jury was not obliged to believe uncontradicted testimony of the defendant or that of any other witness or witnesses. (State v. Stephens, 146 Kan. 660, 72 P. 2d 975.) Moreover, the testimony of the officers concerning what the defendant had told them clearly tended to show the defendant was in possession of the liquor and that he intended to sell it. It is therefore obvious the evidence on which defendant relies was in fact contradicted. There was abundant evidence to support the charge of possession by defendant. The record discloses no complaint that the instructions did not fully and properly state the law applicable to the facts under the contention of both the state and the defendant. Under these circumstances defendant had a fair trial and is in no .position to complain.
It is further suggested the introduction of the record of former conviction prejudiced the defendant before the jury. We find no objection to the record of former conviction on that ground. Such objection, if it had been made, would have been futile. In this state the second infraction of the prohibitory liquor law constitutes a distinct crime, a felony. (G. S. 1935, 21-2146.) The formalities of the felonious charge are required to be pleaded in the information and of necessity proved to the satisfaction of the jury. The former conviction under .the prohibitory liquor law is an element of the felony and is based on an entirely different principle than the proof of a former conviction under our habitual-criminal act. Under the latter act the former conviction is not an element of the offense and need be considered only by the trial court, in order to determine the sentence to be imposed. The sentence to be imposed under that act is solely a question of law and does not concern the jury. For an analysis of this distinction and the reasons underlying the same, see Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372, and Glover v. Simpson, 144 Kan. 153, 58 P. 2d 73.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
The motion of the appellees for a rehearing in this case was granted. (See Meyer v. Meyer, 146 Kan. 907, 73 P. 2d 1007.) Supplemental briefs have been filed, and the case has been reargued. We have studied with attention the very able briefs of counsel and have examined the authorities cited.
Where the limitation in a deed or will appears in the simple form as “to A and the heirs of his body,” or “to A for life, remainder to the heirs of his body” or, “to A for life, remainder to his issue,” estates tail have been sustained without question. But where the gift to “heirs of the body” or to “issue” is accompanied by additional words, it becomes necessary to determine whether the author of the instrument used those words in their technical sense. For centuries the words “heirs of the body” have been the appropriate words to create an estate tail. However, the context may show these words are used in the sense of children. Thus, in the important case of Jordan v. Adams, 9 C. B. (J. Scott) N. S. 483, the testator devised land to William Jordan for life and after his death to the heirs male of his body in such parts and proportions “as the said William Jordan their father” should direct, limit and appoint. Here the words “their father” showed that the words “heirs male of his body” were used in the sense of children.
In Brown v. Boone, 129 Kan. 786, 789, 284 Pac. 436, it was said:
“Normally, the devise to Nellie for life and at her death to her body heirs, would indicate an estate tail. But just as the word ‘children’ may sometimes be a word of limitation, the words ‘body heirs’ may sometimes be words of purchase. (Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280.)” (p. 789.)
The provision in the will before us reads:
“I give, bequeath and devise to my beloved son, Henry Meyer, a life estate in and to the following-described real estate (description) and at the death of my son, Henry Meyer, I give, bequeath and devise the aforesaid described real estate in fee simple to the heirs of his body.”
The problems presented by a remainder “in fee simple to the heirs of his body” and by a remainder “to the heirs of his body, their heirs and assigns” are similar and may be considered together.
In our recent case of Brann v. Hall, 141 Kan. 749, 43 P. 2d 229, the testator devised land to his son, H. R. Rathbun, for life, and upon his death “unto the lawfully begotten issue of my son, H. R. Rath-bun then living, all of the said real estate, to take share and share alike,' and to their heirs and assigns forever.” After reviewing our former decisions, it was said:
“The testator did, in part, select a fixed line of inheritable succession limited to the issue of the body of his devisee, but by express inclusion, he then provided that the heirs and assigns of the devisee were to take, and thus the regular and general succession of the statutory heirs at, law was not cut off. Under the terms of the devise, the line of inheritable succession in the selected line could not continue so long as posterity endures in the regular course of descent, for the testator has provided otherwise, and for that reason no estate tail in the first taker was created. The result is that the devisees named as taking life estates took life estates and no more, the remainder's going to the issue and the heirs and assigns of such issue of the respectively named devisee's of the life estates. . . .” (p. 752.)
In Aetna Life Ins. Co. v. Hoppin, 214 Fed. 928, 131 C. C. A. 224, the United States Circuit Court of Appeals construed a deed to “Franklin Hoppin and Sarah Hoppin his wife, during their natural lives and the life of the survivor of them, and at the death of the survivor to the heirs of the body of said Sarah, their heirs and assigns.” In holding this limitation created a life estate with a contingent remainder, the court said:
“In the present deed, however, the context displays the sense in which the grantor used the words, ‘heirs of the body of Sarah.’ The context is ‘Sarah for life, then the heirs of her body, their heirs and assigns.’ He did not intend that Sarah should have a fee simple, for there is no limitation to her general heirs in unending succession. He did not intend that she should have- a fee tail, for the words of limitation are not restricted merely to the stream of her blood so long as it shall continue. He intended, what he plainly said, that Sarah should have only a life estate; and since, therefore, the heirs of the body of Sarah were not to take from her by descent, he intended that they should take by purchase; and since the description of the purchasers is followed by the words of limitation ‘their heirs and assigns,’ he intended that those purchasers should take the remainder in fee simple. . . .” (p. 931.)
(Mr. Kales was of counsel in the case.)
Consider next the c°ases where the remainder is limited to the heirs of the body in fee simple. In this group of cases the most recent is Phoenix Mutual Life Ins. Co. v. Nevitt, post, p. 772, 78 P. 2d 913 (this day decided). Testator devised certain land and personal property to his brothers and sister for life, and upon the death of the last survivor, remainder “to the bodily heirs of all of my brothers and sister in equal shares, in fee simple, per capita, and not per stirpes.” Following Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884, it was determined that limitation did not create an estate tail.
Likewise in Coleman v. Shoemaker, post, p. 689, 78 P. 2d 905 (this day decided), after a life estate the remainder was “in fee simple, to the living issues of the body of the said Mamie Jordan Taylor, if any there be.” This was held not to create an estate tail in the first taker.
A similar result was reached in Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904, where after a life estate to testator’s granddaughter the remainder was to “such of the issue of said Lottie Naylor as may be living at the time of her death, in equal proportions, share and share alike, and in fee simple.” In that case the court said:
“It has been ruled that in cases of this kind effect should be given to the manifest intention of the testator. (Brown v. Boone, 129 Kan. 786, 284 Pac. 436.)” (p. 636.)
In Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433, the testator devised property “in trust for the heirs of the body of said Nathana Corbin.” By a later clause, a life estate was given to Nathana Corbin. There was a gift over if Nathana Corbin should die without any child or children of her body, or any grandchild or children of her body surviving her. It was held that this language did not create an estate tail.
In Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682, the testator devised land to his daughter and his two sons. The limitation to the sons was in effect as follows: To my sons A and B for life, at their death to their widows for life, or until they marry again, and upon the death of said widows, to the heirs of the body of said sons in fee simple. It was held the sons took a life estate.
Again in Miller v. Miller, 91 Kan. 1, 136 Pac. 953, an owner of land conveyed the same “to George W. Miller for his life, remainder to Nettie J. Miller for her life, should she survive her husband, or so long as she remains his widow, remainder in fee to the heirs of the body of George W. Miller, and in default of such heirs, reversion to the grantor.” It was held George W. Miller took only a life estate.
Counsel for appellees direct our attention to Davis v. Davis, 121 Kan. 312, 246 Pac. 982; Somers v. O’Brien, 129 Kan. 24, 281 Pac. 888; Houck v. Merritt, 131 Kan. 151, 289 Pac. 431. In each of these cases it was held that an estate tail was created, although the words “fee title,” “fee simple” and “fee simple forever” appear in the remainder clause.
It is not contended, however, that the question now raised was presented to or considered by the court in the cases relied upon by appellees. We are therefore confronted with a series of cases where after a life estate to a person a remainder was given to the heirs of the body in fee simple of such life tenant. In a majority of these cases it was held that a fee tail estate was not created. In this state of the authorities it cannot be urged that a rule of property has been established in favor of either doctrine.
Appellees in their brief state:
“Suppose in this case that the will of Margretha Meyer had omitted the words ‘in fee simple,’ what would have been the nature of the title of the heirs of her body on the death of Henry Meyer had the entailment not been broken by the deed in this case? Certainly it would have been a fee simple title.”
With deference to counsel we must state that the question is not new, and the answer is not sound. The statute DeDonis was passed in the year 1285. The various theories as to the nature of an estate tail as debated by the courts after the passage of the statute are stated in Plucknett’s History of the Common Law. At page 356 of that work it is stated:
“Shortly afterwards in 1314 we get a formal theory of the entail announced by Serjeant Toudeby in these words: ‘In the ease where tenements are granted in fee tail and the grantee has issue, the fee is severed from the freehold, and the fee is in the issue while the freehold only is in the father.’ If this remarkable theory had prevailed long enough to combine with the development of the idea that an entail endured indefinitely as long as there were heirs, the law would have had a very different aspect, for a tenant in tail in possession would always be a life tenant only, while his heir apparent held a fee — the books do not venture to say, however, that this would be a fee simple. By the middle of the fourteenth century this doctrine is extinct. Perhaps it was felt that if even the issue in tail had a fee, it would be difficult to describe what the reversioner had.”
In the construction of wills the rule is that technical words shall have their legal effect, unless from inconsistent words in the context, it is very clear the testator meant otherwise. The meaning expressed by the language employed is to be derived from reading the will in its entirety. The explanatory words “in fee simple” are words of known legal import, and have a direct and immediate bearing on the words “heirs of his body.” Construed together, it is clear the words “heirs of his body” are used- as words of purchase and not as words of limitation.
Cases in other jurisdictions on the question here involved are arrayed in opposing camps, and we do not think it necessary to review ' them. For the reasons stated, we adhere to our former decision, and the judgment there announced. | [
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The opinion of the court was delivered by
Harvey, J.:
John Ellison Scott, charged with the murder of his wife on June 19, 1923, was found guilty of murder in the second degree, and he has appealed. The story disclosed by the record is substantially as follows:
Ellison Scott, as appellant is commonly known, was reared on a farm, and when nineteen years of age was married to Ella (Holt) Scott in 1911. No children were born to them. They lived on the farm a few years, then moved to La Cygne, where Ellison Scott worked in a store for about three years, and during this time his wife, Ella Scott, worked in a store for about a year and a half. Then with $3,000 which his father let him have and money he and his wife had saved they bought a grocery store and meat market, which they operated about four years and were operating at the time Mrs. Scott was killed. Both worked in the store, and they employed some help; Mr. Clyde McCullough worked for them some time; then Mr. T. R. Peters was employed in the meat department. He quit early in 1923, and McCullough was again employed. In the spring of 1923 Ellison Scott and McCullough formed a partnership to conduct a retail ice business, with McCullough as manager, at a place away from the store, and this was continued until the tragedy. Perhaps they employed other help at the store at times.
Nearly four years prior to the tragedy, Arlene Scott came to live with Mr. and Mrs. Ellison Scott while attending high school. Her mother is a sister to Ella Scott, but her father, Clarence Scott, is not related to appellant, though having the same surname. Arlene’s parents lived in the country some twenty-five miles from La Cygne, where there was no high school. Arlene spent the summer months at home and the school year at the home of her aunt and uncle, Ella and Ellison Scott. While there she attended school, helped Ella Scott with the housework and helped in the store on Saturdays, She graduated from the high school in May, 1923, and went to Pitts- burg to attend a summer session of the State Teachers College, and was there at the time of the tragedy.
The Scott home was in the residence part of La Cygne, several blocks from their store, which was in the business part of town, and is situated on the southwest comer of the block. The main part of the house is a story and a half; it faces south, where there is a front porch and door; the west room downstairs was used for a bedroom, and in it was a cedar chest; the east room was the living room, into which the front door opened, and having a window east of the front door on the south; from the main part of the house there is a one-story extension north, which is fourteen feet wide and possibly twenty-four feet long, making the foundation for the entire house in the form of a T. This extension was divided by a partition so as to make a narrow room on the north which was used for a kitchen, and the remainder fourteen by seventeen feet was used as a dining room. Along the east side of this extension is a cement porch, seven feet wide. There is a door on the west of the dining room, where there is just a step and then the lawn; there is a door on the east of the dining room onto the porch, also a door from the kitchen onto the porch, a door between the kitchen and the dining room, and a door from the dining room into the living room. The dining room is lighted by two drop electric lights which turn on by pulling a cord near the lights. One of these was north and east of the central part of the ceiling. The dining table was set against the east side of the dining room north of the door leading to the porch, and a couch was on the west side of the room. On the east side of the cement porch vines were growing so as to cover the side of the porch from the ground to the ceiling, except directly in front of the door from the dining room. Just to the northeast of the north .end of the porch is the cistern; there is a cement walk from the north end of the cement porch north to a toilet and coal house near the alley, and from this walk a few feet south of the outbuildings a walk extends at right angles west to the garage, which is on the rear of the lot near the west side and' is entered with a car from the street on the west. The Scotts had a seven-passenger Studebaker touring car, which both of them drove and which was kept in the garage when not in use. There is lawn south and west of the house and extending around north to about ten feet east of the cement walk. There were several large maple trees in the yard to the south and west of the house. Northeast of the house is the garden with flowers and shrubbery about it and along the alley east of the outbuildings.
Directly across the street south of the Scott home lived Reverend Molesworth, the Methodist minister, and his wife.- Reverend Hanson, the district superintendent, was there the evening of the tragedy. East of them in the same block P. D. Leivy and wife lived, their house facing north. Directly across the street west of the Scott home in a house facing to the east and south lived Mr. Carnagey and wife and two grown daughters, teachers, one an instructor in the State Teachers College at Pittsburg, a son-in-law, Herschel Helms, his wife, and a grand-daughter, Wilma Strahl. West of Carnageys’ in the same block, their house facing south, lived Clyde McCullough and wife, and directly west of McCulloughs’, across the street, Doctor Morrison and wife lived. West of Reverend Molesworth across the street, the house facing north and east, I. N. Rowley lived with his wife and daughter, Laura Rowley, who is a stenographer in one of the banks at La Cygne; and west of Rowleys’ in the same block, the house facing north, L. P. Bishop, president of the other bank in La Cygne, lived with his wife. There was a street light on the Scott corner which was not at the middle of the intersection but on a pole near the southwest corner of the intersection. Some of these people had retired for the night at the time of the tragedy, others had not, but all of them heard the shots and Scott’s calls for help. All of these people had lived in their respective homes several years and were well acquainted with the Scott family.
Barring two instances, which will be later mentioned, there is no evidence of any discord or lack of harmony between Ellison Scott and his wife. They worked together in the store and usually went together back and forth from their home to the store. When Ellison Scott worked about the yard, garden or garage, his wife was frequently with him; they took trips together with other married people; to the Ozarks for a summer outing; to the Free fair at Topeka ; to visit relatives and other places, and they went together to church and to other public meetings and entertainments. He usually spent his evenings at home or in her company. In short, generally speaking, the evidence of all of their neighbors is that they were respected, industrious, and exceptionally congenial people. The relationship between them and Arlene appeared like that of parents and daughter. Arlene took private lessons in reading from a neighbor, Mrs. Leivy, and the last year she was with the Scotts she joined the Methodist church. About ten days before the tragedy she spent the week end with her aunt and uncle, and some of the neighbors were in for a Sunday dinner.
On the night of the tragedy, June 19, 1923, there was a tent show at .La Cygne which was attended by many people from the town and country about. It was a fun-making entertainment; Ellison Scott and his wife were there and appeared to enjoy it as others did. The show was out about 10:30; Scott and his wife went to their car which was parked near the tent and there visited a few minutes with friends whose car was near theirs. They then drove by the restaurant where they stopped and ate ice cream and drove home. Neighbors saw them drive east to the Carnagey corner where they turned north and into their garage. A few minutes later, some estimate the time at ten minutes, two shots were heard by people in that neighborhood, perhaps a second apart, and a dog was heard to bark about the time of the second shot or a little later. Some witnesses living a block or more from the Scott home heard the scream of a woman between the shots; some said the scream was “cut off” by the second shot; other witnesses nearer by did not hear that. About a minute after the shots Mr. Leivy, who by that time had gone to his north door to look about to see if he could discover what caused the shots and the dog to bark, looked across to the Scott home. The blind on the south window of the sitting room of the Scott house was down only about half way. Through this window he could see through the sitting room into the dining room of the Scott home, where there was a light, and there saw Ellison Scott rush across the dining room to the west side, then back in a stooped position; heard him helloa or call; thought he distinguished the words “My God, Ella help me”; then Scott moved quickly to the west side of the room. Leivy turned and spoke to his wife about what he saw and hurried across toward the Scott home, and heard a commotion west of the Scott house. The Carnageys heard his call for help while Scott was in the house, but heard it more distinctly after he went out the west door. Scott was then running west, calling loudly, “Folks, come quick, Ella is shot.” “My God, help,” and similar expressions. He ran west south of the Carnagey house, and Scott said, “Herschel, come quick.” Helms asked if he had a gun; Scott said, “No, but go over anyway.” Scott kept running west. He called to Clyde McCullough and told him Ella was shot, and repeated calls for help and to come quick. At some time while running west along that block, either in answer to a question from Helms or McCullough as to where he was, or from his own volition, he stated he was in the garage. About the time he got south of the McCullough house he called for the doctor, “Oh, Doc, Ella is shot; come quick.” Dr. Morrison heard his call, jumped into his Ford sedan and drove rapidly to the Scott home. Scott saw him go and turned and ran back toward his home, but continued to make exclamations not addressed to anyone in particular, one being “I don’t think she will ever speak again.” Doctor Morrison saw a light in the Scott garage and first went there; seeing no one, he hurried to the house and went into the dining room from the west door. Leivy, Helms and Reverend Molesworth were there, and other neighbors came soon. Leivy and Helms were the first to get to the house. They went to the south front door; the screen was hooked; one ran around the house to the west, the other to the' east, and they entered the dining room about the same time. Mrs. Scott was lying in the dining room on the floor almost directly under the north light which was burning, her head to the south, almost on her back, slightly on her right side. Doctor Morrison went to her, felt her pulse, which was very weak, observed her countenance, pulled the dress down from the neck and saw a bullet wound in her right breast, which he thought would not cause death, and hastily gave her a hypodermic. He examined more closely and found a bullet wound in the left breast. While he was working with her Scott came in, went to his wife, and was making exclamations asking the doctor to help. Either of his own volition, or at the suggestion of someone, he took a chair and sat near the east dining room door, facing the doorway. He had his face in his hands, and made exclamations as to himself. Some of them were: “0, if I had only come in with her”; “My God, what will I do”; “0, if I had only come in the house first.” At one time he asked, “Has Doc come yet?” Someone said, “Yes, the doctor is here.” He said, “What did Doc say?” Someone told him the doctor had not said yet. Ella Scott did not speak after any of the neighbors or the doctor reached there, and died in about five or seven minutes. The doctor went over to Ellison Scott, put his hand on his shoulder and said, “Ellison, Ella is gone.” Scott replied, “My God, Doc, don’t tell me that.” The doctor told him, yes, she is gone, and asked him to brace up and .tell what he knew about it. He did compose himself somewhat, and said in substance that when they drove into the garage the clutch on the car had been giving some trouble by sticking. His wife had called his attention to it, and he had noticed it. It was a trouble that had happened before to the car. His method of treating it was to block the clutch open, pour a light oil, gasoline or coaloil, on it, let it stand over night" or several hours, then put neat’s-foot oil on it; that he had two short pieces of 2 x 4 in the garage for the purpose of propping the clutch open; that-after driving into the garage that night he stayed in the garage for the purpose of doing that, and his wife had gone into the house; that he had propped the clutch open, raised the hood of the car, got the oil can and was stooped over with his head partially under the hood pouring oil on the clutch, when he heard the shots; that he was not sure of the direction -from which they came; that he set the oil can down on the sill of the car and went to the west door of the garage and looked up and down the street, but saw nothing; that his wife usually went to the door at any disturbance; that he looked towards the house and did not see her come to the door; that he then walked back through the garage and along the cement walk into the kitchen and then into the dining room and saw her lying on the floor; that he spoke to her, tried to raise her; that she did not speak; that he noticed the bullet wound and realized his wife had been shot; went to the west door and called for help; went back to his wife, spoke to her; she did not answer, but he noticed that she breathed; he then went out the west door, having to take time to unhook the screen, called for help and ran for the doctor. (And.this was his testimony on the witness stand.) Ellison Scott appeared to be greatly depressed and exhausted, and continued to sit in the chair by the door for some minutes. Mr. Carnagey then took him by the arm and said he better go over to his house, and as they went out of the house McCullough took him by the other arm and together they took him over to Carnagey’s house, where he lay on a bed and continued to moan and cry and to make exclamations as to himself. After Mrs. Scott was pronounced dead she was taken up and laid on the couch. Mr. Bishop, Mr. Helms and others present immediately started an investigation of the premises. The mayor and county officials were notified. In the bedroom down stairs on a chair near the cedar chest was found a pile of boxes of silverware, such as a berry spoon, knives and forks, etc. It was not noticed that any of the bureau drawers had been pulled out or ransacked. The screens were examined, but no holes were found in them. Mrs. Scott’s nose glasses, which she usually wore, and her purse were on the dining table. The cement porch east of the dining room was lighted by an electric light in the ceiling which was switched on by a switch in the wall, and while Mr. Bishop and Mr. Helms were investigating about the porch, one of them snapped the switch but the light did not turn on; then he snapped it again and it did not turn on. He reached up and screwed the light bulb in and it lighted. Someone asked Mr. Scott if he knew who had screwed the bulb out, and he said “No.” In the dining room on the floor ■near the threshold of the door from the kitchen was found an empty .32 automatic shell. Another shell was found on. the floor of the dining- room near the east wall under the dining table. Near the north end of the cement porch and near the cistern was found a loaded shell, and between the cistern and garden a second loaded shell was found; all were .32' automatic Peters shells. At the garage they found the garage lights on, the car clutch propped open with 2 x 4’s, the hood raised on the right side, and an oil can containing coal oil sitting on the frame of the car. In the garden were found tracks of a man, also of a woman, and nearby weeds pulled recently but long enough for the dirt on the roots to dry. The tin spout or pipe leading from the guttering on the porch to the cistern was dented or marked as though some one had struck it with his foot, or stepped on it. The gun or pistol with which the shots were fired was not found, though a thorough search of the premises was made that night and the next day. Even the cistern was drained. The coroner reached there about five o’clock in the morning. An examination of the body disclosed two bullet wounds, one in the left breast directly to the right of the left nipple; this went directly through the body; the bullet was taken out on the back from just under the skin. This wound passed close to the base of the heart and caused death. The other bullet wound was in the right breast directly above the right nipple an inch and a half; it ranged upward; the bullet was not located. This wound would not have caused death unless infection developed. There was also a bullet wound through the fleshy part of the left hand, near the base of the thumb, entering from the back of the hand and coming out through the palm. There were no powder burns on the clothing or flesh. The sheriff and other officers arrived early the next morning, and the sheriff talked to Scott. Earl Cox, a brother-in-law to Ella Scott, talked to Ellison Scott the next morning, and to Cox Scott told the story about being in the garage oiling the clutch of his car, but said after he heard the shots he went to the west door of the garage and after looking about he went to the house across the lawn to the north end of the cement porch. The. night of the tragedy one of the Carnagey girls telephoned to Arlene, at Pittsburg, and she came to the Carnagey home, reaching there at five o’clock in the morning. Ellison Scott and Arlene Scott stayed at the Carnagey home till after the funeral on Friday. The tragedy attracted many who came to the Carnagey home, which seemed to be rather a headquarters for the curious as well as the officials inquiring about the matter. After the funeral Scott was arrested, charged with the murder of his wife.
In addition to his plea of not guilty, the defendant offered evidence which, as he claims, tends to show that the homicide was committed by an intruder possibly fearing identification who was in the house when Mrs. Scott went in and turned the electric light on. In support of that theory attention is called to the evidence of the congenial relations between Scott and his wife; that the searchers that night found the garage light on, the car clutch propped open, the hood raised on one side and the can of coal oil sitting on the frame of the car, indicating the correctness of Scott’s statement that he was in the garage oiling the clutch when he heard the shots; that the gun or pistol with which the homicide was committed was never found, though a thorough search was made for it, and under the evidence it was practically impossible for Scott to have hidden it successfully after the shots were fired; that the best silver, in boxes, was found piled on a chair in the bedroom; that the screen on the east dining room door, usually kept hooked, was unhooked when Leivy entered that door; that the electric-light bulb on the porch had been screwed out while the light was snapped on; the two loaded cartridges found, one near the cistern and one between the cistern and the garden, indicating that the murderer either entered or left the house by way of the garden; the indentation in the spout to the cistern indicated that some one not familiar with the premises had struck his foot against it or stepped on it in a hasty exit; the garden is in the shade of the house from the street light, and the shrubbery about the garden would enable one to get away from the house in that direction without being observed from the street or any neighboring house. Defendant offered to show that the house had been burglarized a short time before; that on the night of the tragedy and within a short time, not more than five minutes, after the shots were fired Laura Rowley at her home saw a man going west on the sidewalk just north of her house. She had a good view and description of him; it was not Mr. Bishop, whom she knew. She asked this man what was the trouble, and he pointed over to the house and said a woman had been killed over there. Her father, I. N. Rowley, saw this man and heard the conversation. A few minutes later about four blocks from the Scott home and in the direction of the stockyards a Mrs. Enloe had stepped out on her porch, which was near an open but unused street, and turned on the porch light and saw a man running past her house in the direction of the stockyards. She was able to get a fair description of him. A little later in the evening a freight train passing through the town slowed down near the stockyards. A man was seen on the train directly afterwards, was ordered off by the trainmen, whom he threatened, and he was told to get off at the next stop. The trainmen got a good view and description of him. The next stop was Pleasanton, and he did get off there. That each of these witnesses reported the matter promptly to the county officials, and were later shown a picture of Fred Slavens, whom each of them recognized as the man they saw. Fred Slavens’ home was at Pleasanton; he was notorious in that "he had been several times prosecuted and convicted and served time in the penal institutions both of Kansas and Missouri for burglary, larceny and similar offenses. The court excluded all of this offered evidence, and complaint is made of that ruling. The evidence should have been admitted.
When one is charged with a crime, and the prosecution relies upon circumstantial evidence for his conviction, the defendant is entitled to show as a part of his defense circumstances reasonably tending to show that another committed the crime.
Wigmore on Evidence, vol. 1, 2d ed., discusses the matter thus:
“§ 139. If X is charged with homicide, committed by himself alone, and it is shown in disproof that Y did the killing, X is clearly exonerated for the fact that Y has done it is inconsistent with and exclusive of X’s guilt: There are, of course, cases in which X is by hypothesis in some way an accomplice of Y, either at a distance or as a personal sharer; and there is even the rare case of independent and double felonious acts upon the same object. To such cases the argument cannot apply. Apart from them, it is as cogent as an alibi. If the Man with the Iron Mask was the Due de Vermandois, he could not have been the General de Bulonde; and if the Tichborne claimant was Arthur Orton, he could not have been Roger Tichborne. The question that arises, from the point of view of the rules of evidence, is whether, in evidencing this doing by a third person as a fact of disproof, any unusual requirements should be made as to the strength of the evidence before it can be admitted. Thus, to prove A guilty of murder, evidence of his threats (i. e., a design) to commit it are always admissible; now, if the fact to be proved is that B committed the murder (as inconsistent with A’s guilt), why should not B’s threats be admitted, without further restriction, as A’s are? It is true that evidence of B’s threats alone would not go far towards proving B’s commission; but it is not a question of absolute proof nor even of strong probability, but only of raising a reasonable doubt as to A’s commission; and for this purpose the slightest likelihood of B’s commission may suffice or at least assist. The evidence of B’s threats, to be sure, may, in a given instance, be too slight to be worth considering but it seems unsound as a general rule to hold that mere threats, or mere evidentiary facts of any one sort, are to be rejected if unaccompanied by additional facts pointing towards B as the doer. Nevertheless, most courts have shown an inclination to make some such restriction, and to insist that two or more kinds of evidentiary facts pointing towards B must be offered, and that one kind alone will not be received. It is difficult to see the object of this restriction, because if the evidence is really of no appreciable value, no harm is done in admitting it while if it is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt. A contrary rule is unfair to a really innocent accused.
Ҥ 140. Threats are perhaps the commonest kind of evidence offered for this purpose. The rulings differ widely in their effect; but in general a wholly unnecessary strictness is shown, and the illiberal attitude of some courts in this respect towards accused persons is in singular contrast with the maudlin tenderness otherwise often exhibited.
“§ 141. A motive as evidence is perhaps not of such value as a threat yet courts seem more inclined to receive it. There is no reason for requiring that it be coupled with other evidence in order to be admissible.”
Turning to the case we find quite a variety of holdings.
In Taylor v. The State, 81 Tex. Crim. Rep. 359,364, it was said:
“In cases depending upon circumstantial evidence, ‘the mind having nothing to rest upon seeks knowledge and light from every source.’ (Dubois v. State, 10 Texas Crim. App., 250.) Every reasonable hypothesis should be explored, and evidence which tends to show that another and not the accused committed the offense, or which may create in the minds of the jury a reasonable doubt as to the identity of the slayer, or which presents a hypothesis which is inconsistent with the guilt of the accused or consistent with his innocence, should not be rejected by the court because the circumstances pointing to the accused on trial are more numerous or more cogent than those pointing to others.” (p. 364.)
In Ballou v. Humphrey, 8 Kan. 219, it was held:
“Where a plaintiff attempts to prove a material fact by circumstantial evidence, it is competent for the defendant to disprove the same by circumstantial evidence; and it is not necessary that the evidence of the defendant be of as high an order or as conclusive as that of the plaintiff. If it tends to disprove such fact, it is competent if otherwise sufficient.” (Syl.)
Many of the courts hold that where one is charged with, murder committed by one person, and the defendant denies the killing and offers evidence tending to show that the crime was or might have been committed by another, it is not'sufficient to show that the other was present in the neighborhood or that he fled from the community or that he made- an unsworn confession, or to show that he made threats, or that he had a motive, but that when any of these is shown together with other evidence which tends to connect him directly with the homicide itself, then the evidence is competent. (Walker v. The State, 139 Ala. 56; McElroy v. State, 100 Ark. 301; Tillman v. State, 112 Ark. 236; People v. Mitchell, 100 Cal. 328; Synon v. The People, 188 Ill. 609; Green v. State, 154 Ind. 655; The State v. Beck, 73 Iowa, 616; Etly v. Commonwealth, 130 Ky. 723; State v. Dyer, 154 La. 379; Commonwealth v. Abbott, 130 Mass. 472, 473, 475; Irvin v. State, 11 Okla. Crim. 301; State v. Myers, 12 Wash. 77; 30 C. J. 159, 166, 167, 168.)
And in such a prosecution where the state relies upon circumstantial evidence to convict the accused, the courts as a rule are much more liberal in receiving evidence of threats, motive, presence in the vicinity, flight, or confession, and circumstances tending to connect the third person with the offense, than in cases where there is direct evidence against the accused. It seems sound reasoning to say that in a case where the state relies upon circumstantial evidence to connect the accused with the crime, that the defendant who contends that the crime was committed by a third party and shows threats, motive, presence in the immediate vicinity at the time of the homicide, flight, or confession of such third person, might also rely upon circumstances tending to connect- such third person with the crime. In other words, the defendant ought not to be made in a given case to make a higher degree of showing with respect to the third person than the state is required to make with respect to the accused. But in this case we need not resort to refinements of reasoning to determine the admissibility of defendant’s evidence. If the rule is followed as stated by Wigmore, supra, and Taylor v. The State, supra, there is no doubt of the admissibility of this evidence. If tested by the rule that there must be two kinds of evidence instead of one, we think it admissible. The third party was so near the scene of the homicide so soon thereafter, his identification and his previous history tend to show motive, his flight was shown, and the evidence admitted would bear the interpretation that one unfamiliar with the premises entered or left the place by way of the cistern and garden. So if two or more kinds of evidence are necessary to be produced, that offered comes within that rule.
Counsel for the state after discussing this matter and citing authorities say:
“The decisions which hold that a defendant may introduce proof pointing to the guilt of a third person all say that it must be legal evidence, which undoubtedly must mean that the evidence must be evidence which would be admissible against the third person in case he were on trial.”
Tested by that rule the evidence was unquestionably admissible, for had Fred Slavens been on trial charged with this crime there is no doubt of the admissibility of this evidence.
The conclusion reached requires a reversal of the case, but it will be necessary to discuss some of the other questions presented that may again arise on another trial.
In addition to evidence pertaining directly to the homicide the prosecution undertook to show a motive of defendant to murder his wife. Much of the time of the trial was taken up with this branch of the case.
It is the theory of the prosecution that Ellison Scott had fallen in love with Arlene, that he had been unduly intimate with her, and that he murdered his wife to get her out of the way. As tending to support that, it was brought out that Arlene had developed into a handsome, capable young woman. A few incidents prior to the tragedy were relied upon. The earliest of them was testified to by Gus Clark and his wife, which in substance is this: About eleven months before the tragedy there was a social gathering at the home of Mr. Rogers (Mrs. Rogers and Ella Scott were sisters), about twenty miles from La Cygne one Sunday afternoon, at which several married couples were invited; the refreshments were ice cream and cake; Ellison Scott and his wife and Arlene were there; Gus Clark and his wife were there. All the people there were well acquainted. They were visiting, cutting up and having a good time; some of them in the dining room eating refreshments, some in the sitting room with the door open between. Clark and his wife were in the sitting room; Ellison Scott and Arlene were there sitting on the floor near the window. “They were scuffling and tickling one another and he was grabbing ahold of her knees,” and a little later they were scuffling and he had his arms part way around her.
•Another incident as testified to by Mr. Peters. About six or seven months before the tragedy, Peters was then working for Ellison Scott as a meat cutter; for some reason Ella Scott had acquired a dislike for Peters, and for a week or more had not spoken to him. On a Sunday morning Mrs. Scott came to Peters’ home; she was crying. Peters went with her to the Scott home; there were Ellison Scott and Arlene; Arlene took no part in the conversation but was crying. The witness described what took place:
“Well, we went in the house, and Mrs. Scott said, ‘Are you still mad,’ and something and I don’t know the exact words, but I will give it as near as I can, and so he says, ‘Well, how are you feeling,’ and she said, ‘Ellison, you are-not treating me right,’ and Ellison said, ‘Ella, I have done all I could for you and bought you everything I can! and that he bought her dresses and such as that, and he said, T went as far as I could, everything you asked for’; and she said, ‘I know that is true, Ellison,’ but she said ‘you crush me down and I can’t do nothing,’ and she also showed a blue place on her here and on her arm where he crushed her, and that is about all that I paid much attention to.”
“Q. Refreshing your recollection, was there anything said about ‘If you had caught me in the shape I caught you, you would kill me’?
“A. Yes, sir, she did say that — let’s see how was that, ‘If you caught me in the position I caught you in, you would kill me.’ ”
Another incident as testified to by Leona Rogers, a niece of Ella Scott’s: A short time before Arlene’s graduation in May, 1923, Scott, his wife, and Arlene were visiting at the home of Arlene’s parents one Sunday. After dinner, Arlene, whose father did not have an automobile, asked Ellison Scott if he would take her to see the members of the school board to try to engage a school. Ella Scott looked rather angry. Ellison Scott went over and had a private talk with her a few minutes. After that Ella Scott was not jovial as usual, but they did get in the car and all of them went to look for a school for Arlene. Ella Scott rode in the front seat with her husband. In the back seat were Arlene, her father, brother and Leona Rogers. Arlene stated to Leona while they were riding, re ferring to Mr. and Mrs. Scott, that they had a little trouble between them at this time, and further stated it was just like living in hell over there. The witness thought that both Ellison Scott and his wife turned and looked back as though they had heard the remark.
Another, as testified to by Sarah Holt, mother of Ella Scott: After Arlene graduated Ellison and Ella Scott took her to the house of her parents, and went by and took Mrs. Holt. As they started home that evening “Ellison asked Arlene back, but Ella didn’t ask her back to La Cygne.”
The state offered in evidence a letter known in the record as “Exhibit G,” written by Ella Scott to her mother, Mrs. Holt. It is not dated, but is evidently before school was out in May, 1923. For the most part the letter was a chatty letter such as a daughter would write to her mother, but contained the following paragraph:
“Well school will soon, be out, and I’ll be glad. Aviene is getting homesick; don’t know how she will stand it to go to school. But I won’t have to worry about her anyway. Believe me, she sure gets on .our nerves sometimes. Don’t say anything about it to anyone. But she sure won’t mind a thing hardly we want her to do. But thank goodness it will soon be over.
“Well, I’ll quit and get to work. Write when you can.
“We will be down some time next summer ha ha.
“Burn this up. “Love to all,
Ella.”
The state also relied upon some instances which occurred after the tragedy which will be now noted. There was some evidence tending to show familiarity or jocularity between Ellison Scott and Arlene on a few occasions during the days they were at the Carnagey home before the funeral. And on the day of the funeral, when the relatives were getting ready to go home, Ellison Scott called Arlene and her mother and Mrs. Stephens, a sister to Arlene’s mother, into the parlor, and asked Arlene to stay in La Cygne, but her mother objected.
On July 18, 1923, Ellison Scott stopped off the train at Pittsburg, where Arlene was attending school, called her by telephone, had her go with him to a hotel where he registered for both of them as “James Bowman and wife, Kansas City.” They were assigned a room which they occupied for two or three hours in the afternoon. After they left the bed in the room showed it had been occupied on one side only and one pillow had been used; the towel in the room was damp at one end and there was a soiled handkerchief on the floor.
A witness, Ed S. Lee, a prisoner in the county jail, where Ellison Scott was incarcerated on July 29, 1923, testified that he had a conversation with Scott in the jail a day or two later, in which Scott told him, in substance, that he, Scott, had sexual intercourse with Arlene at Pittsburg, and that he had previously had sexual intercourse with Arlene at La Cygne.
Timely and proper objections were made on behalf of defendant to the evidence concerning each of the incidents and transactions above mentioned and relied upon by the state. The objections were overruled, and these several rulings are assigned as error.
When a husband is being prosecuted for the murder of his wife and the prosecution undertakes to show that the accused’s motive was his intimacy with and infatuation for another woman to the extent that it destroyed his natural love for his wife and created within him a desire to get rid of her, the well established rule is that trouble between the husband and wife prior to the homieide and continuing up to that time, and any evidence which legitimately tends to show improper relations with the other woman, either before or soon after the homicide, is competent, but incidents which do not legitimately tend to show such facts, and which could not be construed to do so except by pure speculation, should not be admitted. (The State v. Reed, 53 Kan. 767, 773, 37 Pac. 174; Weyrick v. The People, 89 Ill. 90; State v. Sprouse, 177 S. W. 338 (Mo.); State v. Shoemaker, 183 S. W. 322 (Mo.); St. Louis v. The State, 8 Neb. 405; People v. Harris, 209 N. Y. 70; 30 C. J. 184, 185.)
Without discussing in detail the several incidents above mentioned, but applying to them the rule just stated, we hold that the evidence concerning the incident testified to by Gus Clark and wife, and that testified to by Sarah Holt, and plaintiff’s exhibit “G” should not have been admitted; as to the other incidents, the court’s rulings admitting the evidence were correct. Appellant calls our attention to explanations of some of those incidents, and to evidence tending to discredit others, but these are questions which go to the weight of the evidence and must be passed on by the jury. We purposely refrain from expressing any view as to the weight which should be given to the evidence pertaining to these incidents.
As tending to disprove the intimation that Arlene was intimate with Ellison Scott, the defendant offered to prove that Arlene Scott-kept company regularly with a young man during the last two years Arlene lived at the Ellison Scott home, and that on the occasion of the week-end visit of Arlene to the Ellison Scott home, about ten days before the homicide, this young man spent Friday and Saturday evening with Arlene at the Ellison Scott home. This offer was refused. The evidence should have been admitted.
A witness called by defendant, Mrs. Leivy, testified that on the evening after the homicide she was at the Carnagey home in the sitting room where several were, that Ellison Scott and Arlene were sitting on the couch and both were crying; that Arlene put her arms about Mr. Scott’s shoulders and they both cried. The state objected to this as self serving, and the court struck it out. The ruling was erroneous; the state had undertaken to show familiarity or jocularity on the part of Ellison Scott and Arlene while at the Carnagey home, and defendant was entitled to rebut such showing.
The defendant offered in evidence certain letters that were written either to or by Arlene Scott. The writing was properly identified by a witness then on the stand. They were objected to because Arlene Scott was then in the court room, and the objection was sustained. It should have been overruled. If an instrument competent to be received in evidence is properly identified by one witness,” it is no objection to its' introduction that another person who might be called as a witness could also identify it.
Appellant complains that on several occasions during the progress of the trial counsel for the prosecution, and on one or two occasions the court, called attention in the presence of the jury to the fact that Arlene Scott was in the court room, and commented on what would or would not be competent evidence if the defense called her as a witness. These references should not have been made; they smack-too much of a stage play as distinct from a judicial inquiry. She had been subpoenaed by the state but was not used as a witness by the prosecution. An information charging her with the murder of Ella Scott was then pending in the same court. Under those circumstances there may have been valid reasons why the defense could not call her as a witness other than that which the state assumes to deduce from that fact. Then the state should rely for conviction upon evidence produced in court, and not depend upon deductions which it presumes to draw from what a witness, subpoenaed but not used by it, might or might not have testified to if put on the witness stand by the defendant.
Appellant complains that the court excluded evidence of grief. By many witnesses it was attempted to be shown that the nature of defendant’s calls for help and for the doctor were from their tone, volume and the manner in which they were given, genuine calls for help which were calculated to and did arouse the entire neighborhood, and that his exclamations addressed to no one in particular, his manner, countenance, general appearance and demeanor indicated grief and extreme sorrow to the extent that overcame and incapacitated him for the time being and practically throughout the night. Questions designed to elicit the facts relative to this matter were objected to as calling for conclusions. These objections were sustained and the witnesses were asked to state what they saw and heard that the jury might form its own conclusions. This ruling was erroneous. The witnesses should describe what they saw and heard as accurately as possible, but these matters can be described in part-only by the witnesses stating what they saw and heard; they must be described by statements somewhat in the nature of conclusions.
In The State v. Baldwin, 36 Kan. 1, 10, 12 Pac. 318, it was said:
“Facts which are made up of a great variety of circumstances and a combination of appearances, which, from the infirmity of languages, cannot be properly described, may be shown by witnesses who observed them; and where their observation is such as to justify it, they may state the conclusions of their own minds. In this category may be placed matters involving magnitude or quantities, portions of time, space, motion, gravitation, value, and such as relate to the condition or appearance of persons and things (City of Parsons v. Lindsay, 26 Kan. 426; The State v. Folwell, 14 id. 105.) On the same principle, the emotions or feelings of persons, such as grief, joy, hope, despondency, anger, fear, and excitement, may be likewise shown; and hence the testimony objected to was properly admitted. (Lawson’s Expert and Opinion Evidence, rule 64; 2 Best on Ev., § 517.)”
Ed S. Lee was not present at the trial, and his testimony given at a former trial was read. To this the defendant objected for the reason that diligence had not been shown to subpoena him for this trial. At the time of trial he was residing and working in Missouri and refused to accept service and appear as a witness. The state could not compel his attendance, and it was entitled to use his former testimony. (The State v. Nelson, 68 Kan. 566, 75 Pac. 505; The State v. McClellan, 79 Kan. 11, 13, 98 Pac. 209; The State v. Stewart, 85 Kan. 404, 413, 116 Pac. 489.)
The defendant undertook to impeach Lee. The first witness called for that purpose, after testifying that he knew the general reputation of Lee for truth and veracity in the vicinity in which he lived and that it was bad, was asked if he would believe Lee under oath. The court sustained an objection to this question. This ruling was erroneous. (The State v. Johnson, 40 Kan. 266, 19 Pac. 749.) When the defendant called its sixth witness on the impeachment of Lee, the court stopped the examination with the ruling that defendant had exhausted the number of witnesses on that question. No rule had been previously announced on .that question. The defendant complains of this ruling; it was erroneous. The number of impeaching witnesses that may be called by a party - rests in the sound discretion of the trial court and his ruling thereon will not be disturbed unless it is clear that discretion has been abused. What number should be permitted depends upon the nature of the case on trial and the importance of the testimony of the witness sought to be impeached. In a murder case, where general previous good character of defendant was sought to be established, a question not seriously contested, a rule announced at the beginning of the trial limiting the number of witnesses on that question to ten was approved as being within the discretion of the court in The State v. Elftman, 116 Kan. 214, 230, 226 Pac. 795. But here the testimony of Lee was the most .important evidence the state produced on the motive branch of the case; the only direct evidence of sexual intercourse between defendant and Arlene, either before or after the homicide. It was the testimony which makes competent evidence concerning the Pittsburg incident, and generally speaking it is the key to all the evidence of any consequence on the motive branch of the case. Lee’s testimony contained within it matter which defendant claims tends to weaken it. It was denied by defendant. Considering the testimony itself, its importance, and all the circumstances in connection with it, the defendant should have had practically an unrestricted opportunity to discredit it. It was error to limit the impeaching'witnesses to five.
Some questions are raised about the instructions. The court should have defined the word “motive,” since he was requested to do so. As the instructions stood, they were open to the interpretation that if the -jury believed the defendant was intimate with Arlene that would constitute a motive for the homicide. But that is not necessarily true; a man might be intimate with another woman and still have no desire to kill his wife.
Complaint is made of giving instruction No. 20, which reads:
“The court further instructs you, that positive testimony of witnesses that they heard certain sounds will outweigh the negative testimony of witnesses that they did not hear such sounds, provided the witnesses are equally credible, but in connection with this instruction should be considered the relative means or opportunity of the several witnesses to hear such sounds.”
It may be doubted if this is a good instruction to give in any case (1 Wigmore on Evidence, 2d ed. § 664, note p. 1070; 23 C. J. 40-45; 16 Cr. App. Rep. 49), but we shall not determine that now. Its application in this case, as argued by counsel on both sides, is to the question of whether there was a scream of a woman between the two shots. The state argues that five witnesses for the state, who were a block or more from the Scott home, heard the scream of a woman between the two shots; hence Ellison Scott must have heard it, but he testified that he did not; hence his testimony was false, and the jury were justified in disbelieving his testimony about being in the garage when the shots were fired. This argument is fallacious. The five witnesses referred to are Mrs. Bishop, who lived a block west and across the street from the Scott house, Mrs. Rhynerson and her two daughters, who lived a block east and across the street, two of whom said they heard the scream between the two shots, and one said she heard, soon after the second shot, what she thought was a scream; and Rosie Wilkerson, who was three blocks north of the Scott home. Now, assuming that these witnesses did not mistake the barking of the dog for a scream, and assuming that what they heard was the scream of a woman, then it necessarily follows that there was a scream of a woman at that time; but it does not necessarily follow that the defendant testified falsely when he said he did not hear it. Mr. Bishop, who was at the house with Mrs. Bishop at the time, Mr. McCullough, Doctor Morrison, and Mr. Leivy, all _ called as witnesses for the state, and Mrs. Leivy, Reverend Molseworth and wife, Mr. and Mrs. Carnagey, and perhaps others, did not hear such a scream; all were as near or nearer to the Scott home than any of the witnesses who say they heard the scream; no intimation is made that these witnesses were testifying falsely about the matter. Then why should the defendant be said to be testifying falsely when he said he did not hear the scream? There is, of course, no reason. (Weir v. Railways Co., 108 Kan. 610, 612, 196 Pac. 442; K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702, 7 Pac. 587.) If the design or effect of giving this instruction was to assist the state in having the jury adopt a fallacious reasoning on this question, it was erroneous and prejudicial to defendant. Considering all the testimony relating to the matter, the question whether there was a scream of a woman between the shots is of little or no consequence as bearing upon the guilt or innocence of the defendant.
In instructions 15 and 16 the court, after properly defining circumstantial evidence, added this paragraph:
“And I further instruct you that, when the evidence in a case consists of a chain of well authenticated and proven circumstances, it is often more convincing and satisfactory and gives a stronger ground of the assurance of the defendant’s guilt than the direct testimony of witnesses, unconfirmed by circumstances.”
This paragraph is objected to, first, because it places circumstantial evidence upon a higher plane than positive evidence, and second, because it deals with circumstantial evidence only as it applies to guilt, when in fact it may be as potent to prove innocence as it is to prove guilt. Both points are well taken. The paragraph should not have been included in the instructions. An instruction in the same language was held nonprejudicial in The State v. Evans, 115 Kan. 538, 540, 224 Pac. 492, where is was construed as meaning that “well authenticated and proven circumstances” might be more convincing than the testimony of witness who might not be telling the truth. But when jurors must be informed of the circumstances by the testimony of witnesses, there may be false testimony concerning circumstantial evidence as well as positive evidence. (See, 1 Wigmore on Evidence, 2d ed., § 26, and authorities diere cited; also 16 .C. J. 763.)
During the trial the state had shown that about eight or nine months before her death, Ella Scott had taken out a life insurance policy for $3,000, payable to her estate in the event of her death. The defendant requested an instruction that in the event of his conviction he could not inherit that life insurance, but the same would be inherited by her parents. That is the statute. (R. S. 22-133.) This was refused. It should have been given; it had a direct bearing upon the interest in the result of the trial of the witness Sarah Holt, and an indirect bearing upon such interest of the witnesses Mrs. Stephens, Mrs. Rogers, Leona Rogers, and Earl Cox.
Other questions are argued. Some of them have no merit, others have; but we think it unnecessary to discuss them. Perhaps they will not arise again.
The judgment will be reversed, with directions to grant a new trial. | [
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The decision of the court was announced by
Hopkins, J.:
On application, a rehearing was granted. Additional briefs were filed, and the case again submitted. After a further and careful consideration of the whole case, the court is of the opinion that the original judgment and opinion of affirmance should be adhered to. It is accordingly so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover on a promissory note. The defenses were that the note had been executed by the defendant to the plaintiff for the accommodation of the latter, that there was no consideration for the signature of the defendant, and that the defendant had not sufficient mental capacity at the time the note was signed to execute a binding obligation. The plaintiff did not introduce any evidence.
The jury returned a verdict in favor of the defendant and answered special questions as follows:
“1. Was there any consideration for the execution of the note sued on in this action? A. No.
“2. If you answer the preceding question in the affirmative, then state what the consideration was. A.-.
"3. Did the State Bank of Peck accept the note of H. 0. Pickens sued on in this action because it was signed by Mrs. Pickens? A. No.
“4. Was the note dated March 1, 1922, for $2,653.77, signed by Bessie Pickens, sued on in this action, signed by Bessie Pickens before or after said note was delivered to and accepted by the bank? A. After.
“5. Was the defendant mentally incompetent to sign the note sued on in this action at the time when she signed it? A. Yes.”
Judgment w,as rendered for the defendant, and the plaintiff appeals.
Was there a consideration for the signature of Bessie Pickens to the note? There was evidence which tended to show that H. 0. Pickens, a stepson of the defendant, owed the plaintiff an amount of money; that he had given to /the plaintiff promissory notes evidencing the amounts of the indebtedness; that defendant Bessie Pickens had signed some or all'of those notes with H. 0. Pickens; that the note sued on was a renewal note whi9h had been signed by H. 0. Pickens, but not by Bessie Pickens, and in that condition had been left with the plaintiff, whose representative afterward went to the defendant and secured her signature to the note upon requesting that she sign it for the accommodation of the plaintiff, and by stating that she would not be liable thereon and would not have to pay it; and that no consideration whatever was given to the defendant Bessie Pickens for her signature. There was no evidence to show any detriment to the plaintiff, nor that any change was made in the relations between it and H. 0. Pickens concerning the payment of the indebtedness. There was sufficient evidence to establish that the note had been executed by Bessie Pickens without consideration and for the .accommodation of the plaintiff.
The question of consideration for the note is the foundation for a number of errors claimed by the plaintiff. It is not necessary to discuss each of them specifically.
Complaint is made of the admission of the evidence of a physician who was permitted to testify that he was a doctor, had been for nearly twenty years, had known the defendant, and had attended her as .a physician; that she was under his care during 1920, 1921 and 1922; that he observed her mental condition in 1921 and 1920, and that she was not competent to transact any business such as signing a promissory note. Even if there were error in the admission of that evidence, it did not affect the defense that the note was signed by Bessie Pickens without consideration.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This action is brought by the state, on the relation of the attorney-general, against W. E. Anderson, the clerk of the district court of Shawnee county, seeking to have him ousted from that office for willful misconduct. Mr. Gilbert H. Frith was appointed as commissioner to take the evidence and make findings of fact and law. On June 16, 1924, the commissioner filed his report, finding the facts in detail, his conclusion being against the removal of the defendant. On July 1 the case was set for hearing at the October session, and was then submitted to the court.
The charge which the commissioner reports as giving him the greatest concern relates to the defendant’s receiving from the bank in which the money in his official custody was deposited interest at the rate of two per cent per annum on daily balances, which he kept for his own use. Of this matter the commissioner says:
“The funds which came into his hands as clerk of the district court did not, of course, belong to him. They were paid in as fines in criminal cases, deposits for costs made by plaintiffs, judgments, and in other ways, and he was merely the custodian of such funds; and, as such, it seems clear that the accumulated interest would belong to the owners of the funds and not to the defendant. His act in using this fund for his own gain cannot be justified from either a moral or legal standpoint, and yet I do not believe that the circumstances justify his removal from office on that account, because the willful doing of any wrong was not shown. On the contrary, it appears that the defendant was merely continuing a practice which had been in vogue for several years prior to his ¡taking office.”
1. In the brief for the defendant it is said:
“Unless exceptions are taken to the findings of fact, the court will not only presume, but is compelled by every rule of procedure to hold that the evidence fully sustained the findings of fact.”
The findings of a commissioner acting under an order directing him to find upon the issues of fact and law have not the full force of those made by a jury or referee. They are merely advisory and do not require to be formally adopted or set aside as a basis for a judgment. So far as pure questions of fact are concerned, weight is given to the consideration that the commissioner is in a better position to pass upon conflicting testimony than the court. (Hunt v. Gibson, 99 Kan. 371, 375, 161 Pac. 666; The State, ex rel., v. Foley, 107 Kan. 608, 613, 193 Pac. 361; The State, ex rel., v. Deichler, 108 Kan. 145, 146, 194 Pac. 322.) In order that a commissioner’s findings of fact may be challenged it is not necessary that an exception be taken or objection made by any prescribed method. Here the plaintiff does not in terms attack any finding of evidential or ultimate fact, but asserts that the finding which exculpates the de fendant is a conclusion of law which is subject to reexamination by the court, and that upon the facts found a judgment of ouster should be rendered. The plaintiff contends that the facts found show willful misconduct as a matter of law, and that the statute makes the receiving and retention of the interest a misdemeanor involving turpitude, which under the ouster statute constitutes a ground for forfeiture of office in and of itself. If either of these contentions is correct the judgment should be against the defendant.
2. The statutes invoked by the plaintiff in support of the second contention read:
“That no officer, state or county, or deputy, or clerk of the state officers, or staff officers of the governor, shall retain, under color of his office, any fee, compensation or reward for the performance or doing any service or thing appertaining to the duties of said office, other than is expressly allowed by law.” (R. S. 21-1607.)
“Any state or city treasurer or any deputy or clerk of any such treasurer, or any county officer or any deputy or clerk of any such officer, who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in the sum not less than fifty dollars nor more than five hundred dollars.” (R. S. 21-1609.)
“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, who shall . . . commit any act constituting a violation of any penal statute involving moral turpitude shall forfeit his office and shall be ousted from such office in the manner hereinafter provided.” (R. S. 60-1609.)
Two questions of unmixed law are involved: Is the collection and retention by a clerk of a district court of interest on funds in his official custody a violation of section 21-1607? and if so, is the misdemeanor there defined one involving turpitude? More concretely, the first question is: Does the money received by the clerk as interest constitute a “fee, compensation or reward for the performance or doing any service or thing appertaining to the duties of said office”? The language quoted appears to have been purposely selected with exceptional care to make it cover a wide field. The prohibition is directed not merely against the acceptance of a fee as compensation for performing an official duty, but is expressly extended to the retention of any reward for doing anything appertaining to such duty. A natural and lawful method for a clerk of the district court to use in caring for funds in his official custody is to deposit them in a bank. (Phillips v. Bank, 98 Kan. 383, 388, 158 Pac. 23.) In making such a deposit he is doing something apper taining to the duties of his office. In receiving for his own benefit interest on such deposit he is retaining a reward for doing something appertaining to his duty — for placing the money with the bank selected rather than with some other. He is accepting compensation from a private source for the way in which he elects to perform his duty with regard to the safe-keeping of the funds. We think such conduct is within the letter and the spirit of the statute under consideration.
3. On this phase of the case it remains to determine whether the misdemeanor defined by the statute is one “involving moral turpitude.” It is doubtful whether any attempt to define it can serve to make the meaning of the quoted phrase any clearer. One definition in common use is:
“ 'Moral turpitude’ is defined as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” (5 Words and Phrases, 4580.)
Another frequently invoked is contained in this quotation:
“Turpitude in its ordinary sense involves the idea of inherent baseness or vileness; shameful wickedness; depravity. (Webster’s International Diet.) In its legal sense it includes everything done contrary to justice, honesty, modesty, or good morals. (Black’s Law Diet.; Bouvier’s Law Diet.)” (Holloway v. Holloway, 126 Ga. 459, 460.)
The weight of authority, although there is some difference of opinion on the subject, is to the efect that interest paid by a bank on money in the custody of an officer does not belong to him, but to the beneficial owner of the fund. (29 Cyc. 1425; 22 R. C. L. 465.) Various reasons are given for this view, some of them more or less technical, involving the question of where the title is vested and the character of the trust. Regardless of analogies and of the words that may be used to describe the relations of the persons concerned, we think the right of the real owner of the fund to whatever interest is paid upon it may be best sustained on the ground that it is against good conscience that one under a public duty to care for money intrusted to him by virtue of his office shall receive and keep for his own benefit what it has earned during his custody. That the practice may have been tolerated and condoned does' not affect the matter. We do not believe that enlightened public sentiment has countenanced it. We hold that the law forbidding a public officer to retain any reward other than that allowed by law for doing anything appertaining to his duties as such, both in its general scope and as applied to the situation here presented, involves turpitude within the meaning of the phrase as used in the statute quoted. This does not imply that the conduct condemned is of unusual heinousness, but that the condemnation is justified on grounds of morality as well as of public policy. The circumstance that the legislature has made express provision with respect to interest on public money in the hands of treasurers, while omitting to do so in the case of clerks of the court, does not impress us as indicating a purpose to exempt such clerks from the obligations otherwise cast upon them in that regard.
The statute we are interpreting (R. S. 21-1609) was not brought to the attention of the commissioner, and his findings and conclusions were consequently made without any reference to it. The only effect of this omission is to deprive the court of the benefit it might otherwise have had of the commissioner’s judgment upon the matters just discussed. It is the duty of the court to apply the law to the facts as established by the evidence and findings. The reliance of the plaintiff upon this statute was brought to the notice of the defendant long enough before the hearing to allow sufficient time to present arguments against the new contention.
4. What has already been said requires a judgment for the plaintiff. Another feature of the case, however, deserves comment. With reference to charges of neglect and delay in the performance of his official duties, including the filing of reports, the commissioner finds that ill health of the defendant, while not sufficient wholly'to excuse his shortcomings, serves to explain them and to acquit him of willful misconduct. The statute requires the clerk of the district court, on the first day of the regular session of the board of county commissioners in the months of January, April, July and October, to present to that board an itemized account of all money collected during the preceding quarter, a penalty of $10 a day being imposed for delay, with a provision that “if such failure continue for fifteen days he shall forfeit his office.” (R. S. 28-123.) The commissioner finds that “the defendant’s first quarterly report was due on April 1 and was not filed until the latter part of August, and his report which was due on July 1 was not filed until early in September.” In an action under the clause of the ouster statute directing the removal of an officer “who shall willfully misconduct himself in office” (R. S. 60-1609), the clerk of a city court was ousted for his failure to comply with the law requiring the payment at stated times of money collected by him. It was held that his conduct could not be excused by a misunderstanding of the operation of two possibly conflicting statutes on the subject. (The State, ex rel., v. Fishback, 102 Kan. 178, 171 Pac. 348.) The analogy between that case and this is strong, but a decision on this point is unnecessary.
Judgment is rendered for the removal of the defendant from office. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for injuries sustained by plaintiff to his eye caused by a hot cinder from one of defendant’s engines. The plaintiff recovered and defendant appeals.
The facts were substantially as follows: Fifth street, in Arkansas City, runs north and south. The defendant’s track crosses it from a northwesterly to a southeasterly direction. The plaintiff, with one Williams, was riding in an automobile going south on Fifth street. Williams was driving. As they came near the defendant’s' track they saw a train approach from the south and stop near Fifth street. They did not attempt to cross the track until they saw the train start to back. Observing that the train was going to back, they crossed and turned to go in a southeasterly direction on the street next south of defendant’s track. When they were about 75 or 100 feet from defendant’s engine a hot cinder struck the plaintiff in the left eye. The injury was such that he eventually lost its sight.
The jury returned a general verdict in favor of the plaintiff for $2,500, and answered special questions as follows:
“Q. 1. Do you find the defendant guilty of any negligence? If so, state what act or acts constituted such negligence. A. Yes. The act of spinning the locomotive wheels in starting train.
“Q. 2. Do you find that a railroad locomotive can be operated in the handling of cars without emitting sparks and cinders? A. No.
“Q. 3. Do you find that defendant’s locomotive was in good repair and equipped with proper spark arresters? If not, state in what respect it was out of repair and in what respect the spark arresters were not proper. A. No evidence to show the condition of repair on May 2, 1921. Last report as of April 27 or 26 showed spark arresters in good condition.
“Q. 4. Situated as the defendant’s engineer was at the time of the transaction in controversy, would an ordinary engineer usually have anticipated danger to the person of those about to use the crossing arising out of the manner he managed the engine at the time the plaintiff claims to have received an injury to his eye? A. No. However, an engineer should know that the spinning of drive-wheels in the city might cause damage to persons or property.
“Q. 5. How long after the alleged injury before plaintiff had his eye treated by a doctor? A. Five days.
“Q. 6. Would plaintiff have suffered any permanent injury to his eye from the alleged injury had he gone immediately to a competent eye doctor for treatment, and if so state what? A. We feel he. would. As to what extent it is impossible to determine.
“Q. 7. If you find for the plaintiff, state how much you allow for permanent injury. A. $2,000; $500 for pain and suffering.
“Q. 8. Did plaintiff see and know that cinders were being exhausted before and at the time he drove upon and over the street crossing? A. We think not.
“Q. 9. Under all the circumstances shown by the evidence, would a cautious and prudent man in the position of the plaintiff, at the time plaintiff drove upon and over the crossing, seeing the locomotive as it was then being operated, have anticipated an injury to plaintiff. A. No.
“Q. 10. Is the present condition of plaintiff’s eye due to an infection, as testified to by Doctor Spain? A. We think it is due to the original injury.”
It is first contended by the defendant that the act of negligence found by the jury was not the negligence charged in the plaintiff’s petition. No copy of the petition appears in the abstract, but the plaintiff, in a counter-abstract, sets out a charge of. negligence:
“The plaintiff claims that the ‘defendant, although it knew that this plaintiff was . . . near to said locomotive, and knew the danger to this plaintiff of emitting large sparks and live coals and cinders from said locomotive, carelessly and negligently and without any regard to the- right of this plaintiff, applied steam to said locomotive and started the same, and carelessly and negligently, and without any regard to the right of this plaintiff, caused, permitted and allowed said locomotive to throw out a great quantity of large live sparks, cinders and coals, causing said live sparks, cinders and coals to strike and fall beyond the right of way of the defendant, and on the highway aforesaid, to the damage of this plaintiff and the traveling public on said highway, and causing one thereof to fall in the left eye of this plaintiff, burning the same so that the sight thereof was entirely lost and destroyed, and causing this plaintiff to suffer great and intense pain, etc.’ ”
There appears to have been no motion by the defendant attacking the charge of negligence, and under the circumstances it was sufficient. (Kirkland v. Railway Co., 104 Kan. 388, 179 Pac. 362; 29 Cyc. 570.)
On the question of the -spinning of the wheels, and as to whether the negligence found by the jury supported the charge, there was substantial evidence that the engineer reversed his engine and opened the throttle — he said, “enough to move the train.” There was substantial evidence that the engineer “started up fast,” that the wheels were spinning and the engine made “loud puffs” . . . “the slipping of the wheels make the draft sharper, . . . this has a tendency to throw out sparks; that . . . when the wheels spin the exhaust is more rapid and greater draft created; . . . the more rapid the exhaust the more suction there is.” The defendant says, “When boiled down the testimony simply amounts to this: that the wheels of the engine slipped and this causes more cinders to be thrown out on the start.”
Even at the risk of repetition, it may not be amiss to detail some of the evidence. Some of it was: “We could see cinders falling and hear them. The cinders were as big as peas or bigger, just a fog of them . . . Could hear them light above the sound of our running motor.”
The defendant’s engineer in charge of the engine testified th&t he “had 10 cars — 8 loads and 2 empties; . . . the track was down grade towards the depot (the direction in which he was backing); . . . there was nothing in the track condition to warrant the spinning wheels; . . . the track was straight; . . it was not necessary to slip the wheels in backing. ... I don’t.know whether I let the wheels slip or not. I might have done it, but there was no occasion for it. It is possible to operate an engine, properly-equipped, so that it will not throw out live coals and cinders as big as these grains of corn and peas here which will travel with the wind something like 70 to 100 feet, and light while they are red hot.”
Williams testified: “A sluice of cinders came out of the engine. They were hot; could hear the cinders drop on top of the automobile and see them bounce off the radiator. . . . The cinders were red, bright red, fresh hot cinders. ... Q. As you -started to cross the track what did the engine or engineer do? A. He started to back up and the wheels started to spin. Q. Just when did the wheels start to spin? A. When he started to back up. . . . The engine puffed and wheels spun a little bit, then ceased a little bit, then started again. The puffing was loud and continued. . . . The engineer could see us. There was nothing to obstruct his view as we approached the crossing.”
A witness for defendant identified the spark arrester on the engine in question, and testified that “A cinder will,go through there (the spark arrester) as big as a dollar, and that a.piece of wood exhibited to the witness three-sixteenth of an inch thick and one and one-half inches wide would go through, the spark arrester. . . . The opening in the spark arrester is a little under a quarter of ,an inch wide, just a shade under, and one and a. half inches- long.” The same witness testified that “The openings on a standard spark arrester would be three-sixteenths by three-quarters of an inch.”
. Gibson testified that when he threw his hand to- his eye he got the cinder, “something came out in my fingers, felt it. . . .1 held-it -(my eyelid) down. -. - -. - finally, let it loose and my eyeball went back up, thrust the cinder up to the top and burned another place. There were two -burned-places on my eyeball and one on the- lid. The blister was 'about ,fhe size of my .thumb nail. Covered greater portion of pupil.” -
The plaintiff’s wife1 testified: “I washed the particles out with' a cloth, and one of them was a little larger than the other four. I took it’between my finger and thumb and rolled it. I could tell it was a piece of cinder.. A blister about the size of my finger nail covered dark part of eye and part of white. I applied treatments through the -day and part of the night. Mr. Gibson suffered intense- pain. He sat by the stove and wrung towels out and put them on his eye himself. The greater part of the time he could not sleep. He moaned and groaned. For about two or three weeks he slept very little. He kept me awake most of the night. He was sitting up bathing his eye.”
The defendant contends that the plaintiff was guilty of contributory negligence because of failure and neglect to promptly procure the services of a doctor. Among other things there was this evidence: “I expect my wife telephoned twenty times for a doctor. Mr. Baird tried to get a doctor at Wichita and went over to the hospital. I tried to get a doctor the day of the accident. I could not get him; the next day I tried to get a doctor there; there was a Shriner’s— they had something doing — and could not get him.”
Doctor Spain testified: “Gibson used the ordinary common remedy. I told Mr. and Mrs. Gibson after they told me what they had done that they were doing the right thing and that they should continue using hot applications along with the medicine. . . . I think it was a burn there on his eye. I think he can’t much more than distinguish light, probably count the fingers. I think he had practically no vision. In my judgment it was a wound caused by a hot cinder.”
The failure to sooner procure medical assistance was not contributory negligence. It could have been and was properly considered by the jury in mitigation of plaintiff’s damages.
Further detailing of the evidence would serve no useful purpose. It was abundant to support the general verdict and special findings of the jury.
The defendant complains of the failure of the court to sustain its motion for judgment on the special findings. The general verdict and special findings were not inconsistent nor did the special findings warrant a judgment in favor of the defendant.
It is contended that the verdict was excessive and was based on conjecture. We cannot concur in that view. The evidence showed that the track was straight and down grade; that there was no necessity for spinning the wheels; that the train load was "only approximately one-third of the locomotive’s capacity; that the track was not wet or slippery; that to apply sufficient power to cause the spinning of the wheels was dangerous, had a tendency to draw live coals and cinders from the fire-box and throw them out in larger quantities and to a greater distance.
Various other complaints that the trial court erred in overruling defendant’s demurrer to the evidence, in refusing to instruct the jury to return a verdict for the defendant, in misdirecting the jury, in rendering judgment for the plaintiff and overruling defendant’s motion for new trial, have all been carefully considered, but we are unable to find any error which would warrant a reversal of the judgment. Many cases cited by the defendant have been examined, but are not applicable to the facts here. (See Culp v. A. & N. Rld. Co., 17 Kan. 475; Crecelius v. Railway Co., 92 Kan. 91, 139 Pac. 1177; Root v. Street Railway Co., 96 Kan. 694, 153 Pac. 550; I. C. R. R. Co. v. Bailey, 222 Ill. 480; McMullen v. Chicago & N. W. Ry. Co., 101 Fed. 66; 2 Thompson on Negligence, 2d ed. §2293; Field v. N. Y. C., 32 N. Y. 339; L. & N. Ry. Co. v. Taylor, 17 S. W. 198; Philadelphia & R. Ry. Co. v. Young, 90 Fed. 709; Lehigh Valley Railroad Co. v. McKeen, 90 Pa. St. 122; Arey v. Railway Co., 170 S. W. 802; L. & N. R. v. Haggard, 170 S. W. 956; Brusberg v. M. L. S. & W. Ry. Co., 12 N. W. 416; Sherrell v. L. & N. R. Co., 148 Ala. 1; L. & N. R. Co. v. Samuels, 57 S. W. 235; Burke v. Manhattan R. Co., 13 Daly [N. Y.] 75.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.;
This was an action by F. F. Swinson to recover an automobile from the Atchison, Topeka & Santa Fe Railway Company, in which the plaintiff prevailed, and on this appeal the company is contending that the judgment is erroneous.
It appears that on March 20, 1919, P. G. Parker, of Pratt county, was the owner of the automobile, and on that date executed a mortgage thereon to F. F. Swinson to secure an indebtedness- to him of $300, and upon the same day the mortgage was duly filed for record. It contained the ordinary stipulation giving the mortgagee the right to take and sell the property for defaults or breaches of the condition written in the mortgage. Without the permission or knowledge of Swinson, Parker removed the car from Pratt, Kan., to Springer, N. M., and left it at a garage operated by one Stubblefield. When Swinson learned of the removal he ordered Parker to hold the car in New Mexico until he could send a man theré to drive it back to Pratt. Without any orders from Swinson to do so Stubblefield delivered the car to the railway company at Springer and caused it to be billed through to Swinson at Pratt, Kan. It was transported to Pratt, and the freight chax’ges thereon were $205.85, which were the legal and usual rates. The railway company notified plaintiff of the arrival of the shipment, whereupon he demanded possession of the car, but the company refused to yield possession until the freight and charges were paid. The railway company accepted the shipment from Stubblefield without knowledge of the chattel mortgage and without notice or knowledge that Stubblefield had no authority to ship the car. The return of the car was of some benefit to the plaintiff. On the default of the mortgagor which is not contested the plaintiff was entitled to the possession of the car, and in that respect had the rights of an owner. Ordinarily a carrier acquires a lien on property delivered to it for transportation and is entitled to hold the property until the charges for carriage are paid. However, if the property is delivered by one who has no authority or right to consign or ship it, the carrier acquires no lien which it can assert against the owner and no right to retain the property as against his demand. (Railway Co. v. Jordon, 67 Kan. 86, 72 Pac. 533.) It is fundamental that an owner cannot be deprived of his property without his consent and cannot be divested of his right to possession by the fact that the earner to which it was wrongfully delivered was innocent of the wrong. The carrier like any other party takes the hazard that the shipper may have gained possession of the property through theft or from one who had no authority to deliver or ship it, and must surrender possession to the owner upon demand, although it may have acted in the best of faith in the acceptance and transportation of the property. The carrier cannot through the giving of a bill of lading or a shipment made by one who stole the goods or otherwise tortiously shipped them, obtain a right superior to that of the owner. (Robinson v. Baker, 5 Cush. 137; Fitch v. Newberry, 1 Douglass 1.) The rule applicable to a shipment of goods by a wrongdoer without the authority or consent of the owner has been stated as follows:
“The universal and fundamental principle of the law of personal property is that no man can be divested of his property without his own consent; and that even an honest purchaser under a defective title cannot hold against the true proprietor. A carrier, therefore, acquires no right by virtue of his em ployment as such to hold goods delivered to him by a wrongdoer, to whom they do not belong, until his charges are paid, against the claim of the owner, and so he has no lien on them for the transportation charges, irrespective of the question whether the carrier acted in good faith and was not in fault. Nor can this be said to be a harsh rule as applied to common carriers, since the carrier has the right to demand of the consignor the transportation charges in advance.” (4 R. C. L. 870; see, also, note in Hill v. Denver & Rio Grande R. Co., 4 L. R. A. 376; Engine & Boiler Co. v. Railroad Co., 95 Miss. 817; Pingree v. Detroit, Lansing & N. R. R. Co., 66 Mich. 143; Bassett v. Spofford, 45 N. Y. 387; Savannah, Florida & W. R. Co., v. Talbot, 123 Ga. 378.)
The rule may seem to have a harsh application to a carrier in depriving it of a lien for services rendered in a shipment which it accepted and transported without notice of the wrong of the shipper. It however may avail itself of the privilege-of insisting on the prepayment of freight charges before the performance of the service. It would be a harsher rule if the proprietor of property stolen or wrongfully obtained from him and shipped long distances at great expense should be denied possession of his property whenever he came up with it, or that to gain possession of the property thus wrongfully taken from him he should be required to pay a freight charge which in some instances would almost or quite equal its value. While the defendant did -not have actual notice of the mortgage it did have constructive notice of the plaintiff’s rights under the mortgage, as it had been duly placed on record. However, whether or not it had any notice of the mortgage, it could not acquire a lien for transporting the car at the instance of one who had no right to ship , it nor to detain it from the owner who had not given either express or implied consent to the shipment.
Nothing is found in the record to warrant an inference that plaintiff had waived his right to reclaim the car without the payment of the freight charge.
The judgment is affirmed. | [
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MEMORANDUM DECISION.
The decision of the court was announced by
Burch, J.:
The purpose of the action of quo warranto was to remove defendant from the office of probate judge. Certain of the grounds for removal were also grounds for disbarment of defendant as an attorney at law. Both proceedings were commenced originally in this court, and the court appointed Honorable C. A. Smart commissioner to take the testimony and report findings of fact and conclusions of law. The commissioner found for defendant, and recommended that judgment be rendered in his favor in each proceeding. Exceptions were taken to the commissioner’s report, the contention being that the charges were fully proved. The questions involved are questions of fact. No useful purpose would be sub-served by stating and debating the evidence. The commissioner’s findings of fact and conclusions of law are approved, and judgment is rendered in favor of defendant in each case. | [
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The opinion of the court was delivered by
Burch, J.:
The state compensation board appeals from a judgment of the district court allowing compensation under the statute relating to compensation for veterans of the World War.
Helwig, a student in a veterinary school, enlisted in the medical reserve corps on January 5, 1918, and was discharged on January 4, 1919. His discharge bore the notation, under head of remarks, “This soldier never called active. No final statement given.” He was issued a uniform, which he wore, but he was not in fact called to active duty, and received no pay. He said he was “subject to orders.” While the facts are slightly different from the facts involved in the case of Winkler v. Board (In re Soldiers’ Compensation Appeals, 116 Kan. 677, 680, 227 Pac. 1117), the principle there applied is controlling. Wearing the uniform of a soldier was not service. The orders to which Helwig was subject were orders similar to those to which men enrolled in the naval or army reserves were subject (Parrish v. Soldiers’ Compensation Board, 117 Kan. 301, 231 Pac. 332), and his claim falls “outside the letter, the spirit, the purpose, and the constitutional justification of the compensation act.” (Winkler v. Board, supra.)
The judgment of the district court is reversed, and the cause is remanded with direction to disallow compensation. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of statutory rape on three counts. He assigns error in overruling his motion to quash two of the three counts charged in the information against him, which motion was based on the pretense that at his preliminary examination before the justice of the peace he had only been bound over to the district court to answer on one count. The motion to quash was properly overruled, because such motion would only reach some defect apparent on the face of the information; it would not raise an issue on the want or insufficiency of a preliminary examination. That point would have to be raised by a plea in abatement. (The State v. Finley, 6 Kan. 366; The State v. Blakesley, 43 Kan. 250, 23 Pac. 570; The State v. Woods, 49 Kan. 237, 243, 31 Pac. 786.)
Moreover, the question of the sufficiency of the preliminary examination was inquired into by the trial court on the hearing of the motion for a new trial, at which time it clearly appeared that the preliminary complaint and warrant charged defendant in three counts with the crime of statutory rape, giving specific instances and dates. Evidence in support of these three distinct counts was introduced, which culminated in defendant being bound over to answer therefor in the district court. The information covered the same specific offenses which had been inquired into by the justice of the peace and no others; and the only basis for the claim that plaintiff was bound over to answer on only one count lay in the fact that the justice, in making up his record, recited that from the evidence it appeared that the offense of rape as charged in the complaint and warrant had been committed and that there were reasonable grounds for believing the defendant guilty, etc. But it was clearly shown that this recital was merely defective in grammatical construction, the singular being erroneously used for the plural, and that there had been no material want of conformity with the rules of procedure in criminal cases.
It follows that the judgment cannot be disturbed. (R. S. 62-1718; The State v. Seidel, 113 Kan. 390, 392, 214 Pac. 565.)
Affirmed.
Buech, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff recovered judgment on two appeal bonds signed by defendant, and the case is here for review.
The facts were these: Perkins brought two actions before a-justice of the peace, Ed H. Wilson, against A. K. Sellers and garnisheed certain moneys of Sellers in the hands of an oil company. The garnishee paid the money into court. Judgment was entered in both actions against Sellers and he appealed. This defendant Peterson signed appeal bonds for Sellers. Afterwards, but while the money paid into justice court by the garnishee was still in the hands of Wilson, the justice of the peace, it was garnisheed in another action against Sellers on process issued by another justice of the peace, J. C. Williford, and Wilson paid the money into Williford’s court, where it presumably was subjected to the payment of other liabilities of Sellers.
In due time judgment in the cases appealed was entered in the district court in plaintiff’s favor, and an execution issued pursuant thereto was returned “nulla bona ” and this action followed to realize on the appeal bonds.
Defendant moved for an order requiring Sellers to be made a party. This was denied. Defendant then answered, alleging that Sellers’ attorney induced him to sign the bonds on the representation and assurance that they were merely cost bonds, and that the money garnished would remain in the hands of the court, and that the costs would not be more than $110. Defendant’s answer also contained a lengthy narrative to the effect that Sellers’ attorney and plaintiff’s attorney and Ed H. Wilson and other attorneys in the other garnishment proceedings before the other justice of the peace, J. C. Williford, and other garnishing creditors of Sellers, and this plaintiff, John Perkins—
“Purposely, designedly and fraudulently entered into an agreement; understanding, relation of confidence and conspirary in relation to the said garnisheed fund, the property of the said A. K. Sellers, to wit — the sum of $450 as aforesaid paid into said justice court of Ed H. Wilson — by the terms of which said understanding and agreement, the said plaintiff Perkins and the said Sellers . . . should, in pursuance of said agreement, procure an order of this court, by virtue of which said order the said fund of $450 should be paid to the defendant in said actions, A. K. Sellers, in order and to the end that the said fund should by reason of said court order be thereby withdrawn from the custody of said court, and become subject to garnishment under writs of garnishment issued out of other courts, in action therein pending, in which actions, said parties and their said attorneys were interested, intending thereby, that the said garnisheed fund might in this manner and by this means be taken and removed from the custody and control of this court and subjected to the payment of the claims of the said Nellie Sellers and Margaret Atkinson [creditors of Sellers], and this defendant be thereby deprived of the protection and benefit of the retention of said garnisheed fund in the custody and control of this court, and in the hands of responsible parties as security for the matter in controversy in said Perkins-Sellers litigation, and to abide the result of the same, in accordance with the statements, representations and agreement between this defendant and the said [Sellers and his attorney] at the date of the execution of said bonds by defendant as aforesaid.”
Jury waived; evidence adduced at length; general findings and judgment in favor of plaintiff, and appeal by defendant.
The argument for defendant is largely based upon the assumption that the matter of the alleged conspiracy on the part of plaintiff and various attorneys and other garnishing creditors and other persons to get hold of the money paid into the justice court of Ed H. Wilson is still an open question. Such assumption is erroneous. That matter, like all other mere issues of fact, was tried out and decided adversely to defendant in the district court. Its finding and judgment was in effect a determination. that no such conspiracy existed. So that phase of the controversy is ended.
Passing to the errors assigned and urged on our attention, defendant complains of the ruling of the trial court denying his motion that Sellers, the principal obligor on the appeal bonds, should be made a party. Where several parties are obligors in a written undertaking, the plaintiff has the option of selecting which of them he will sue — one, several, or all of them (R. S. 60-414) — and a motion to bring in other parties to the litigation is largely addressed to the trial court’s discretion. (Insurance Co. v. Etchen, 111 Kan. 545, 207 Pac. 782. And see, also, Nuzman v. Bennett, 115 Kan. 766, 224 Pac. 900.) The denial of this motion was not error.
Several errors are assigned in this case based upon the ruling of the trial court in another action, wherein the trial court sustained a motion of Sellers’ attorney requiring the justice of the peace, Ed H. Wilson, to pay over the money, which had been delivered into his hands by a garnishee, to the clerk of the district court or to Sellers. It is impossible to see how that order, even if it were erroneous, could be reviewed in this action. But the order was not erroneous. It was superfluous; and so, too, was the motion itself. When the appeal bonds here sued on, and which are the basis of this judgment, were executed and approved, the legal effect was to discharge the garnishment and release the money in the hands of the justice of the peace.
The other matters argued by defendant have had patient perusal and careful attention, but present nothing of sufficient gravity to disturb the judgment nor to justify discussion.
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The opinion of the court was delivered by
Dawson, J.:
This was a suit by private citizens to enjoin the maintenance of an undertaking establishment in a residential section of the city of El Dorado.
For many years the defendants had pursued the occupation of embalmers and undertakers in El Dorado. Their establishment was conducted in the business section.of the city, but the defendant, W. E. Turner, owned a tract of ground at a corner of Pine and Washington streets, on which was situated a barn and garage where defendants kept their hearses, ambulances, and other funeral equipment. Defendants removed the barn and garage, and applied to the city government for a permit to erect thereon a funeral home and morgue. A city ordinance of questioned validity forbade the establishment of “undertaking establishments, morgue or dead houses,” etc., in the residential districts of the city. Defendants’ application for a permit was refused, and they brought an action in mandamus to compel the city to issue it. That cause proceeded to judgment in favor of the city. Later defendants applied for and received a permit to erect a private residence of two stories and a basement on the same premises. A building which to all outward appearance was a typical private residence of the better sort was erected pursuant to such permit; its true character was kept secret by defendants while it was being constructed; but upon completion it was revealed that it was specially designed for the business of undertaking — an embalming workroom.in the basement and a chapel for funeral services on the main floor, and for a private residence on the second floor only. Defendants set about the prosecution of their business of embalming, undertaking and funeral conducting at this new establishment, and this lawsuit followed.
Issues were joined, testimony was heard at length, and judgment was entered for plaintiffs. The trial court’s findings and judgment read:
“That while an undertaking establishment of the character proposed to be operated by the defendants is not a nuisance per se, its maintenance at the intersection of two principal residence streets in a residential district of a city is a nuisance as to owners of nearby property, whose property will be reduced in value by the maintenance and conduct of such business and whose comfort, repose and enjoyment of their homes will be materially diminished by the mental depression and distress caused by the constant going and coming of hearses, the not infrequent taking in and out of dead bodies, the frequent funerals, thoughts of the unknown dead in the morgue, the thought of autopsies, embalming and other matters commonly associated in the mind of the average person with a morgue, including a conspicuous sign, all of which to the extent that one’s power of resistance to disease is lowered by mental depression and distress, render such persons, including the plaintiffs, more susceptible to disease and deprive the plaintiffs and their homes of the comfort, repose and enjoyment to which they are entitled, and that by reason of the foregoing the plaintiffs are entitled to a permanent injunction.
“It is therefore by the court ordered and adjudged and decreed, that the defendants and each of them and their agents, servants and employees are hereby permanently enjoined and restrained from equipping or in any way operating or maintaining a funeral home or morgue or mortuary or undertaking establishment on the [premises] described.”
Defendants assign various errors, first urging that plaintiffs, as private citizens, had no right to maintain this acti'on. The argument is made that the maintenance of a funeral home and morgue on defendants’ premises would not cause plaintiffs to suffer any annoyance different in kind from that sustained by the general public, and consequently under familiar precedents they could not maintain this action. Under the evidence the court is disinclined to sustain this contention. The maintehance of an undertaking establishment and funeral home at the corner of Pine and Washington streets is no annoyance to the entire community of El Dorado. The business is not a nuisance per se. Such an institution serves an invaluable need in modern life. But it may well be that an institution, notwithstanding its existence is a necessity, may be of such a disagreeable character that it should not be located in a residential quarter of a city. The people of the city at large may have no grievance, actual or theoretical, at its establishment in a particular locality, but the people who reside in the immediate vicinity may have just ground of complaint at its existence. This proposition has been frequently noted in our own cases and those of other jurisdictions. In Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788, it was held that the establishment of a cancer hospital in a residential neighborhood, in the near proximity of dwellings, might be enjoined at the instance of a private citizen owning and occupying adjacent property. In the opinion it was said:
“Whether in a given case the obligation so to use one’s own property as not to injure another’s has been or is about to be so far transgressed as to justify the interference of a court is a question to be determined as a matter of reason, fairness and justice under all the circumstances. The injury need not extend beyond annoyance, if in view of all the facts it is unreasonable. . . .
“The question is not whether the establishment of the hospital would place the occupants of the adjacent dwellings in actual danger of infection, but whether they would have reasonable ground to fear such a result, and whether, in view of the general dread inspired by the disease, the reasonable enjoyment * of their property would not be materially interfered with by the bringing together of a considerable number of cancer patients in this place. However carefully the hospital might be conducted, and however worthy the institution might be, its mere presence, which would necessarily be manifested in .various ways, would make the neighborhood less desirable for residence purposes, not to the over-sensitive alone, but to persons of normal sensibilities.” (pp. 88, 91. See, also, Winbigler v. Clift, 102 Kan. 858, 172 Pac. 537; Densmore v. Evergreen Camp No. 147, 61 Wash. 230, 31 L. R. A., n. s., 608.)
In 20 R. C. L. 455, it is said:
“Whether the business of preparing dead bodies for burial is to be deemed a nuisance depends on the locality in which it is carried on and the methods employed by the proprietor thereof. Without doubt an undertaking establishment is not a nuisance per se, even when located in a residence section of a city. But it has been held that the maintenance of an undertaking establishment in a residence part of a city within a few feet of neighboring residences may be enjoined by their owners as a nuisance, in view of the probable interference with the comfortable enjoyment of their property by the depressing effect of the reminders of mortality, and the escape of noxious odors and gases from the chemicals used in the business; and according to this view it is immaterial that the owner of the business intends to reside in the upper stories of the building. Upon a somewhat similar principle it has been held that an undertaking establishment in which human dead bodies are prepared for burial or other sepulture, and sometimes subjected to embalming and post-mortem examination, is a business ‘injurious or offensive to the neighboring inhabitants,’ within the terms of a restrictive agreement, although it may not constitute a legal nuisance.”
It stands to reason that such should be the law. While equity does not concern itself with any and every petty annoyance incident to the congested life of a modern community (Ross v. Butler, 19 N. J. Eq. 294), yet equitable relief will be granted at the instigation of a private individual upon a sufficient showing that the persistent misconduct of another or the use to which another has devoted his property is such as to cause the aggrieved party positive and serious annoyance, mental or physical; and it hardly needs evidence or argument (although neither is wanting in this case) to demonstrate that people of ordinary sensibilities whose homes are in close proximity to a place where dead bodies are received at all hours of the day or night, where the awesome business of embalming is conducted, where hearses come and go, where funeral processions assemble, where funeral sermons are preached and dirges sung, would be sub jected to annoyances of a peculiarly depressing and aggravating character. Persons subjected to such constantly recurring incidents and dismal circumstances could not enjoy their homes in peace and . quietude; the laughter and play of their children about their own dooryards would seem heathenish and unfeeling in such a doleful environment. Social and family gatherings in residences so placed would be a pathetic caricature of happiness and enjoyment. (Saier v. Joy, 198 Mich. 295, L. R. A. 1918A, 825, and annotations; Cunningham v. Miller, 178 Wis. 22, 23 A. L. R. 739 and annotations; Tureman v. Ketterlin, [Mo.] 263 S. W. 202 and citations.)
In Ross v. Butler, supra, it was said:
“The law takes care that lawful and useful business shall not be put a stop to on account of every trifling or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or over-refined person. But, on the other hand, it does not allow anyone, whatever his circumstances or condition may be, to be driven from his home, or to be compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity. The maxim, sic utere tuo ut alienum, non Icedas, expresses' the well-established doctrine of the law.” (p. 298.)
In Saier v. Joy, supra, the supreme court of Michigan said:
“We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person. Cheerful surroundings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person. Mental depression, horror and dread lower the vitality, rendering one more susceptible to disease', and reduce the power of resistance. There is an abundance of testimony in this record confirmatory of this, and it is a matter of common knowledge. The constant going and coming of the hearse . . . the not infrequent taking in and out of dead bodies; the occasional funeral with its mourners and funeral airs, held in the part of the house designed for a chapel; the unknown dead in the morgue, and the visits of relatives seeking to identify them; the thought of autopsies, of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal layman — all of these are conducive to depression of the normal person; each of these is a constant reminder of mortality. These constant reminders, this depression of mind, deprive the home of that comfort and repose to which the owner is entitled.” (p. 300.)
The court is bound to hold that plaintiffs, as private citizens, being specially and peculiarly affected and concerned, had a right to maintain this action.
Defendants also contend that defendants’ business establishment was not located in a strictly residential district. That point in volves a question of fact determinable on the evidence, and was mainly for the trial court to decide. It cannot be denied that there was some evidence to that effect — a good deal of it, indeed. Among the plaintiffs were all defendants’ closest neighbors on the north, south, east and west; except at a short distance to the eastward where the business district begins, the only edifices in the immediate vicinity of defendants’ premises are domestic residences and churches. We think the trial court’s finding of fact on this point will have to stand. (Wood v. Davis, 12 Kan. 575, syl. ¶ 2; Farney v. Hauser, 109 Kan. 75, 83, 198 Pac. 178.)
Counsel for defendants make a painstaking analysis of most of the recorded “funeral home” cases, and argue therefrom that where injunctions have been granted they were chiefly based on a showing of physical discomforts to the complaining parties, such as unwholesome odors during embalming and the liability of sickness and disease to result therefrom, or the proved impossibility of keeping the premises free from flies, and that offensive odors did or would arise from the dissection of- bodies. We note that an injunction was denied in Westcott v. Middleton, 43 N. J. Eq. 478, where it was held that to constitute a nuisance the injury must be physical as distinguished from one purely imaginative.
In that case, however, the controlling facts are apparently summarized in the following excerpt from the court’s opinion:
“What has been disclosed by the proofs? These facts: Mr. Westcott and the defendant have lived side by side, in these same houses, for about eleven years. During all this time the latter has carried on this business of burying the dead in about the same open and unpretentious manner that he now does. There is no evidence that Mr. Westcott or any other person has ever been afflicted by reason of the defendant’s occupation. Indeed, nothing has been attempted in that direction. Yet it is admitted that this trade has been and is carried on by the defendant in the midst of the most populous part of the city of Camden.” (p. 486.)
Although the opinion in that case contains some views with which this court does not agree, yet starting with the potent fact 'that the situation of the parties had continued unchanged and unchallenged for eleven years, we might well have reached the same conclusion as the New Jersey court.
We have also noted that the California court of appeals, in Dean v. Powell Undertaking Co., 55 Cal. App. 545, disapproved a judgment granting an injunction in a case somewhat similar to the one at bar, except that in addition to plaintiffs’ residences there were also in the neighborhood some business establishments. There may also be a basis for distinction in the cases because of a general policy on the part of the California legislature to write into express statutes the whole body of substantive law, and in the opinion the court says that the doctrine announced in such cases as our own cancer hospital case, Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788, 29 L. R. A., n. s., 49, is regulated by statute, and section 3479 of the civil code of California is cited. (Kerr’s Cyclopedic Codes of California, 1920, Civil Code, Part Two.) But we must adhere to the principles announced in our own cases like Stotler v. Rochelle, supra, even if they cannot always be reconciled with the conclusions of some of the learned courts of other jurisdictions. On the present question we think we go with the greater weight of authority and the better reasoning. The recent Missouri case of Tureman v. Ketterlin, supra, was identical in all substantial respects with the one at bar. There, as here, the action was brought by private citizens owning residences near to the proposed undertaking establishment. There,' as here,there was a city ordinance of questioned but undetermined validity. There, as here, it was shown that—
“While the communication of disease and the emission of noisome odors from an undertaking establishment in which proper methods of sanitation are employed are possible, the probabilities of such eventualities are extremely remote. On the other hand, there was evidence equally conclusive that constant reminders of death, such as are furnished by the" presence of an undertaking establishment and its visible activities, have, a depressing effect on the mind of the average person, weakening his physical resistance and rendering him more susceptible to contagion and disease, and that the values of homes in a residence district, -both sales and rental, immediately depreciate whenever an undertaking establishment makes its appearance therein, because there is such a general aversion to a continuing atmosphere of death and mourning that people will not live in it if they can avoid it. . . .
“Plaintiffs’ evidence tended to show that, if the relief they sought was denied them, their financial loss, and that of several of them individually, would greatly exceed in value the sum of $7,500. There is no question, therefore, but that we have jurisdiction of this appeal.” (pp. 203, 205.)
The Missouri supreme court cited all the principal cases which hold that an undertaking establishment is or may be a private nuisance to the resident owners of adjacent property, and ignored the New Jersey and California cases which we have noted above; and the judgment of the trial court granting plaintiffs the relief prayed for was sustained.
There is no error in this record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
G. R. Gage sued^J. H. Leslie and his wife, asking the specific performance of a written contract for the exchange of real estate. He recovered judgment and the defendants appeal.
The property which by the terms of the contract the defendants were to convey was their homestead. They contend that although Mrs. Leslie signed the contract, after doing so she placed it in the hands of a real-estate broker, who was acting for all the parties, with instructions not to deliver it unless a specified clause was stricken out; that in violation of his instructions he delivered it without any change having been made, and therefore no valid delivery took place and in legal contemplation she did not execute it. The plaintiff’s version of- this episode was that the objection made by Mrs. Leslie to the clause in question was due to her giving it a meaning which its language did not justify and which the other parties agreed was not intended. He also asserted that Mrs. Leslie after learning of the delivery without change of the contract bearing her signature acquiesced in further proceedings in carrying out the exchange of properties.
The clause referred to reads: “It is further agreed that the shades for windows and fixtures shall go with each of the respective properties.” There is some conflict in the evidence as to just what took place with reference to the proposition to strike it out. The real-estate agent testified: “Mrs. Leslie did not say the contract was not to be delivered until the clause was stricken out; nothing of that kind.” There was testimony that Mrs. Leslie objected to the clause through fear it would be interpreted as covering the curtains as well as the shades and shade fixtures, and that she was assured it did not mean that. The findings of the court on the subject, which being supported by the evidence, are controlling, read:
“The court further finds that after said contract had been signed by J. H. Leslie, G. R. Gage and Grace M. Gage, the same was presented to Mrs. Leslie for signature by A. N. Glancy, who was acting as agent for all the parties, and her husband, J. H. Leslie; that she demurred and objected to signing the same unless the clause, ‘It is further agreed that the shades for windows and fixtures shall go with each of the respective properties,’ was removed, and the question of what the clause covered was debated, and she was told by her husband that the window shades and the shade fixtures were to go with the house and for her to sign the contract, and thereupon without further objection she signed the same, and it was delivered to Glancy for delivery with the understanding that he would get the clause removed so that the contract did not include any curtains or fixtures not intended to go with the place. That said Glancy saw Doctor Gage and the attorneys who prepared the contract and explained the objection that Mrs. Leslie made to the contract and asked to have it stricken out or changed, but they refused and explained that the contract only intended to and did cover the window shades and fixtures as the agreement was, and thereupon by instructions from Mr. Leslie the contract was delivered to Doctor Gage.
“The court further finds that within an hour after the signing of said contract by Mrs. Leslie and its delivery, she was informed of its delivery and the refusal to remove the clause or change it in any manner, and that she made no objections thereto, and with knowledge of such delivery of said contract with said clause remaining in it she, with her husband, went out to the farm and looked it over, at which time her husband informed the tenants of his purchase and that he was their landlord, made arrangements for the division of the alfalfa crop, and entered into negotiations with the tenant, Mr. Alber, for his remaining upon the property and leasing it for the coming year.
“The court finds that the clause in said contract objected to by Mrs. Leslie simply covered the window shades and the fixtures pertaining to said window shades in her house and did not cover any other fixtures or curtains, the fear of which caused Mrs. Leslie’s objection, and that as thus limited she made no objection to said clause after her husband’s statement that the shades and the fixtures of each of the houses were to go in the trade, and that the delivery of the contract with said clause becomes immaterial as a defense to the plaintiff’s action for specific performance.”
The findings do not show that Mrs. Leslie forbade the delivery of the contract with her signature attached unless the clause in question was removed. They do show that what she desired was that she was to be protected against entering into an engagement to turn over curtains or other fixtures than those of the window shades, and this protection was given. While her course after learning of the delivery of the contract without change may not have created what in strictness is called an estoppel, it was such as to preclude her from denying her execution of the contract. Of a situation similar in principle it has been said:
“The plaintiff contends that by his conduct at this time the defendant was precluded from afterwards denying its claim. The defendant maintains that no estoppel could have resulted, because the plaintiff’s position was in no way changed for the worse by reason of anything that had been said. In order for the conversation narrated to operate as a bar to a subsequent denial of the plaintiff’s interest it is not necessary that there should have been a concurrence of all the elements of an estoppel, as the term is usually defined. ‘Whether the principle is described as equitable estoppel, gwasi-estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very important.’ (Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099.) ‘The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced.’ (10 R. C. L. 694.)” (Blank v. Jesch, 99 Kan. 797, 799, 163 Pac. 150. See, also, Hardware Co. v. Leasing Co., 104 Kan. 729, 730, 180 Pac. 734; Stark v. Meriwether, 99 Kan. 650, 657, 163 Pac. 152; Lillard v. Johnson County, 102 Kan. 822, 825, 172 Pac. 518.
The defendants resisted the enforcement of the contract on the additional ground that the plaintiff had falsely represented that the dwelling house on the land he was trading, and the water system therein, were in first-class condition. The court found that in the course of the negotiations the plaintiff had said the water system was in working order and the house in good condition, while in fact the water system was not in working order and the east basement foundation was cracked and had sagged in several inches, necessitating reinforcement. There were also findings, however, that Leslie, immediately after the execution of the contract, visited and examined the house with Mrs. Leslie, and with full knowledge of the defects referred to told the occupant he was his new landlord and “arranged with him for his share of the crop as provided by the contract” and made a proposition, which was taken under consideration by the tenant, for a new lease. Further findings affecting the matter were:
“The court finds that the quarter section of land in question and its being clear of incumbrance was the controlling cause and the material consideration for the trade, and that the house and other improvements as such were a mere incident and only material as they might enhance the value of the land.
“The court finds that the statement of Doctor Gage that the house on the farm was in good condition took place in a conversation under such conditions as imported merely an opinion and was not the affirmation of any particular quality. There is no evidence that any particular quality was meant by the term, and Mrs. Alber, wife of the tenant occupying the premises, testified that the house was in good or fairly good condition, so that the court must necessarily find there was no false or fraudulent statements or misrepresentations as to the condition of the house and no fraud or deception was intended to be practiced by Doctor Gage in making said statement.
“The court further finds that the action of the defendant J. H. Leslie, in notifying the tenant of the purchase and seeking to lease the property for the coming year, etc., after full knowledge of all the defects complained of, is conclusive to my mind that the attempted repudiation of the contract was an after consideration, and that the reasons set out in the answer of the defendants are not the operating and controlling causes of the attempted repudiation, but are an after consideration and are resurrected for the purpose of attempting to sustain their refusal to carry out their contract.”
The judgment is attacked by the defendants as in excess of the powers of the court, and as inequitable. ■ It required that the plain tiff should have the water system put in good working order and deposit with the clerk an affidavit of this having been done. That requirement is challenged as not sufficiently guaranteeing to the defendants the performance of the condition, and as not providing for sufficient proof of its having been met. The decree seems to us a fair exercise of the power of a court of equity to see that substantial justice is done. Nor do we consider that the court’s power in that respect is exhausted by the order for the filing of an affidavit of compliance. No reason is apparent why there should be any practical difficulty in the adoption of other appropriate means of requiring obedience to the order.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of mandamus, commenced by landowners against the city of Wichita and its officers, to compel restoration and maintenance of a bridge across a drainage canal constructed by the city. Plaintiffs recovered, and defendants appeal.
Desiring to provide an outlet for storm waters, the city proceeded, under chapter 92 of the Laws of 1911 (R. S. 13-1055), to acquire right of way for a drainage canal and to construct a drainage canal extending from the city limits to a stream less than five miles distant. Under the statute, the city may cause plans and specifications and an estimate of cost to be made by an engineer. On approval by the city, the plans, specifications and estimate are submitted to the board of county commissioners. On approval by the board of county commissioners, the city may make the improvement. The right of eminent domain is granted to enable the city to procure the necessary land. Funds to meet cost of obtaining necessary land and cost of constructing drain may be provided by equal bond issues of the city and county, the city’s bonds to be paid by taxes levied on all property in the city, and the county’s bonds to be paid by taxes levied on all property in the county.
The canal divided land of plaintiffs’ ancestor, William Mathewson. Right of way for the canal, consisting of 4.7 acres, was deeded to the city by Mathewson, in consideration of the sum of $3,000 and an obligation stated in the deed, as follows:
“Party of the second part is to maintain a private bridge across the drainage canal, to be constructed on the above-described premises by said second party. Said private bridge for use of. grantors to be constructed within ninety days after the excavation for said drainage canal through the above-described premises is made, and said bridge to be constructed at such points as parties of the first part, their heirs, successors or assigns shall designate.”
In the year 1912, and pursuant to the deed, the city built a •bridge over the canal, which became unsafe early in 1923, and which was destroyed by flood later in that year.
The bridge was built upon land lying outside the boundaries of the city, and constituted no part of the canal. The canal was complete without the bridge, and fully satisfied the public duty to provide an outlet for storm water falling and collecting within the city. The bridge was not built pursuant to any public duty resting on the city to keep highways free from obstruction occasioned by construction of the canal. On the other hand, the bridge itself constituted a private viaduct whereby the landowner might pass from one side to the other of a tract of his land severed by the canal. The result is, the only relation the bridge could have to discharge of a public duty by the municipality lay in the fact that its erection and maintenance were designed to stand in lieu of statutory compensation for appropriation of the land.
Being a natural person, the landowner was free to act as he pleased with reference to appropriation of his land for construction of the canal. He could acquiesce in the appropriation, he could waive statutory ascertainment and payment of compensation, and he could accept whatever satisfied him by way of compensation. The city possessed no such capacity. It is a public corporation, and was obliged to find in the statute book a grant of power for whatever it did in reference to establishing the canal. Assuming that the city had the capacity of a private corporation to contract generally with a landowner respecting compensation for appropriation of land, the landowner would have an adequate remedy at law for breach of the contract. (K. P. Rly. Co. v. Hopkins, 18 Kan. 494.) It is not permissible, however, to make the assumption. The city was authorized to procure land upon which to construct the canal. The landowner was entitled to compensation, and nothing else. To give him more would be to make a gift of public money for private benefit. The elements of the transaction were simple, definite, and certain, and it was the city’s business to close it up by discharging its liability to pay compensation. It lacked capacity to create a new contract liability, uncertain in extent and indefinite in duration.
The principle involved was stated and applied in the case of Haucke v. Morris County, 115 Kan. 659, 224 Pac. 64. In that case land was taken for a public road which divided a pasture in such a way that water for stock was wholly on one side of the road. In satisfaction of the landowner’s damages, the county board agreed to build and maintain a passageway for stock across the road. A passageway was installed which failed to serve the purpose intended, and the landowner sued for damages for breach of contract. It was held the contract was ultra vires. In the opinion the court said:
“While the board of county commissioners represent the county and are entrusted with the control of all its business and financial affairs, their powers are limited by statute. The enumerated powers do not authorize boards to enter into contracts to build and maintain runways for the convenience or benefit of landowners. (R. S. 19-212.) ' When a road is opened claims for damages may be considered and determined, and if the awards made are not satisfactory appeals may be taken to the district court. (R. S. 68-106, 68-107.) In the absence, of express authority the damages sustained by a landowner cannot be adjusted or allowed in any manner other than is prescribed by statute. Every landowner is bound to take notice of the powers conferred on the board, and cannot insist on the fulfillment of promises or agreements which the board was without authority to make.” (p. 660.)
In this instance the city did not possess, either by express grant or by necessary implication, power to build and maintain a bridge over the canal for private usé of the owner whose land was appropriated.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendants. | [
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The opinion of the court was delivered by
Harvey, J.:
In an action to recover the value of crops reserved in deeds, the plaintiff recovered a judgment for $6,709. Defendant’s motion for a new trial was overruled December 26, 1923, and on that date he asked for a stay of execution for six months pending an appeal. The court granted the stay upon condition that defendant “pay into court $100 on or before January 1, 1924; (2) he shall pay $400 within thirty days from the date hereof; (3) that he shall pay $2,000 in installments, as follows: $500 on or before March 1, 1924; $500 on or before April 1, 1924; $500 on or before June 1, 1924; $500 on or before July 1, 1924.” On December 28, 1923, defendant paid into court $2,000 and later perfected his appeal from the judgment to this court.
Appellee contends that this payment by defendant is such a recognition of the judgment as precludes him from contesting the validity of the judgment on appeal. The point is well taken. When a money judgment is rendered against a party to an action, he cannot pay the judgment and thereafter question its validity on appeal. See Bank v. Bracey, 112 Kan. 677, 212 Pac. 675, where the rule is fully discussed and the earlier cases are reviewed.
Appellant contends he is contesting only a part of the judgment rendered against him and that the sum paid represents the uncontested portion of plaintiff’s recovery. The record does not sustain this contention. The defendant contested plaintiff’s claim in its entirety and every element composing it, and denied that he owed plaintiff any sum.
The appeal will be dismissed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit to enjoin the rebuilding of a sidewalk, and from recurbing and reguttering in front of plaintiff’s lots on Main street in Pleasanton, a city of the third class. At the trial the court denied the injunction as to rebuilding the sidewalk, from which the plaintiff has appealed, and allowed the injunction as to recurbing and reguttering, from which the defendant has appealed.
The controversy arises as follows: The mayor and council passed an ordinance, published May 12, 1921,' condemning the old sidewalk, curb and gutter in front of plaintiff’s lots, and requiring new ones of certain dimensions be built, and provided “the depth of such sidewalk and curb and gutter shall be constructed according to the grade and plan of survey on file in the ofii.ce of the city clerk.” It further provided that “such sidewalk, bringing to grade, curb and gutter” should be constructed under the supervision of the street committee, and if the old sidewalk, curb and gutter be not removed and the “sidewalk brought to grade” and the new sidewalk, curb and gutter constructed within sixty days the same would be done by the city and cost thereof assessed against the respective' lots. Nothing further was done about the matter until July 13, 1922, when the city published a notice that it would receive bids on or before July 25, 1922, at 8 o’clock p. m. for the construction of about 775 square yards of sidewalk and about 1,925 feet of curb and guttering, on Main street, under the supervision of the street committee, “the depth of same according to plan and survey on file in the office of the city clerk,” and specifying materials and finish to be used. On July 29, 1922, plaintiff served a written notice on defendant that if it undertook to remove the sidewalk or curb then in front of his lots it would be enjoined from so doing. On August 7, 1922, A. F. Corby, a contractor, filed with the city clerk a “bid on walk and curb and gutter according to plans and survey. Walk per yd. $1.74 — curb and gutter per running ft., .87 — excavating per yd., .28 — tile per lot, $1.00; special bid if lime rock is used, per yd., .50.” On August 14, 1922, this bid was accepted by the mayor and council. No bond was given by the contractor. Before any work was done in front of plaintiff’s lots this suit was brought. On the trial it developed that the city never had established a grade for the construction of sidewalks, curbs or gutters, and that there never were any plans or surveys for such construction on file with the city clerk. There was parol testimony that some time before the passage of the ordinance the city constructed a “white way” along Main street for which posts, with a cement base two feet square, were set fifty feet apart along the street. At some places along the street the cement base of the post was a few inches above the sidewalk and at other places a few inches below it. At the time the posts were set, the city employed a civil engineer "who made a survey of the street and prepared a plat and presumably had the bases of the “white way” posts on a grade, but the plat, or other record of' the survey, was not filed with the city clerk, and no grade used by the engineer, if he used one, was made a matter of record. However, the chainman of the street committee in supervising the construction of the new sidewalk, curb and gutter provided for by the ordinance, in front of lots other than plaintiff’s, a part of which had been constructed at the time of the trial, used the top of the bases of the “white way” posts as a grade for the top of the sidewalk.
The statute applicable to recurbing and reguttering along streets in cities of the third class, at the time of the passage of the ordinance in question, was Laws of 1921, chapter 143 (since revised as R. S. 12-602). This requires the proceedings to be initiated by a resolution of the mayor and council, which shall be published four weeks, with timé for protests, as for a pavement. There was no attempt to follow this statute. Hence, the court properly enjoined the building of the curb and gutter under the ordinance, and defendant’s cross-appeal on that question is without merit.
As to the sidewalk, the plaintiff contends (a) since no grade had been established by the city, and there were no plans of survey on file, it was impossible for him to comply with the ordinance which required him to construct the sidewalk “according to the grade and plan of survey on file in the office of the city clerk”;' (6) that the contractor, whose “bid on walk and curb and gutter according to plans and survey” was accepted, would not know where to put the sidewalk, and (c) the ordinance taxes both the sidewalk and the grading to his lots, whereas the grading should be paid for by the city at large, and the cost of the sidewalk only should be taxed to the lots.
The statute contemplates that the grade for sidewalk ordered to be constructed be established by ordinance, that when established it be changed only by a three-fourth vote of the mayor and council, and that the city pay lot owners damages, if any is sustained by them, by reason of the change of the grade. (Gen. Stat. 1915, §§ 887 to 889, R. S. 12-632 to 12-634.) While possibly a grade might be established in some other manner (Smith v. City of Courtland, 103 Kan. 142, 144, 172 Pac. 1027), there is no showing here that a grade had been established in any manner. It is, of course, important that when a grade is established something in the nature of a permanent record be made of it, not only that the city officials, but property owners may be able to know their rights relating thereto. The statute in force at the time the ordinance in question was passed (Gen. Stat. 1915, § 1909) required that the cost of the grading be paid for by the city at large, while the cost of constructing the sidewalk itself be taxed to the lots. (Keys v. Neodesha, 64 Kan. 681, 68 Pac. 625; Kindley v. Rogers, 85 Kan. 645, 647, 118 Pac. 1037; Smith v. City of Courtland, supra.) The defendant calls our attention to the last paragraph of Laws of 1921, chapter 143, section 1 (since revised as R. S. 12-611), but this does not purport to change the rule as to who shall pay for grading. And by the cases above cited it has been determined that when the cost both of the grading and of the construction of the sidewalk is attempted to be taxed to the lot, it should be enjoined, and especially is this true where the grading is an unascertainable amount, as it is here. It follows that the judgment enjoining the construction of the curb and gutter should be affirmed, and the judgment refusing to enjoin the construction of the sidewalk be reversed with directions to grant the injunction. | [
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The opinion of the court was delivered by
Mason, J.:
John H. Elward died in 1909, leaving a widow, a son and two daughters. He left all his property, which included a considerable body of land in Reno county, in trust, distribution to be made on the death of the last of his children among the then living grandchildren. His son, Rodney A. Elward, was named as trustee, 'being given a broad discretion in the handling of the estate. The duty was imposed upon him of furnishing each of his sisters “a comfortable maintenance and support in keeping with their habits and condition in life, providing nurses and physicians in case of sickness, so long as they remain single and unmarried.” This action was brought against the trustee by one of his sisters, Mary Dorothy Elward, to require him to pay her $200 a month for her support and maintenance, the prior allowance having been $100. By an amendment to the petition his discharge as trustee was asked. The trial court refused to grant the later prayer, but ordered the trustee to pay the plaintiff $150 on the first of each month for her support and maintenance. The defendant appeals.
The will authorized the trustee to sell and dispose of any of the property on such terms as in his judgment might be advisable. It contained this paragraph:
“I do not know whether the income and profits arising from the estate will be sufficient to provide fund for all the purposes hereinbefore specified, nor do I wish to in any way limit the trustee in such matters. However, I express the hope that no incroachment will have to be made upon the principal or original estate, but rather that it may grow and increase, and while I charge the trustee that he shall not deal stingily with those dependent upon the estate, I also request them to be moderate in their demands and to live economically.”
The trial court found that “the physical condition of the plaintiff is such that she is unable to manage and earn for herself,” and that “in the exercise of the discretion of the trustee, she has been given an allowance which has from time to time been changed and increased, ranging from $25 per month in the beginning to $100 per month at the present time.”
The accepted rule is that where the instrument creating a trust gives the trustee discretion as to its execution, a cou'rt may not control its exercise merely upon a difference of opinion as to matters of policy, and is authorized to interfere only where he acts in bad faith or his conduct is so arbitrary and unreasonable as to amount to practically the same thing. (28 A. & E. Encyc. 991, 992; 26 R. C. L. 1373, 1374; 39 Cyc. 316, 317.) In the text last cited it is said that a court will not “at the instance of interested parties, interfere with the performance of his duties by the trustee and the exercise of the discretionary powers conferred upon him, unless there is shown bad faith on his part, or a gross and arbitrary abuse of discretion.” Another text reads:
“If a trustee has been iavested with a discretionary power in the trust deed, the court will closely scrutinize his acts, and interfere to control his conduct whenever necessary to prevent him from so exercising his discretion as to oppress the beneficiary or cause loss to the trust property.” (26 R. C. L. 1282.)
This language was quoted from a case where the trustee had no discretion (Cuthbert v. Chauvet, 136 N. Y. 326), and was obviously intended as a statement of the general rule and not as a modification of it. The mere fact that a course pursued by the trustee may result in a disadvantage to the beneficiary, or cause loss to the property, will not necessarily warrant the interference of a court.
The judgment of the district court directing an increase in the allowance to the plaintiff implies a finding that the former provision made for her by the defendant was so inadequate as to show bad faith or its equivalent. If the evidence were before us an affirmance would be required unless we could say it contained nothing having any substantial tendency to support the decision. The evidence, however, has not been brought here, and the judgment must stand unless it is affirmatively shown to have been brought about by an erroneous view of the law or is necessarily inconsistent with some fact specifically found.
The journal entry of judgment was accompanied by a written opinion setting out the conditions which warrant control by the court of the conduct of the trustee, substantially in accordance with the texts above quoted. The journal entry contained this, among other findings of fact: “The trustee has not acted in bad faith, nor has he acted with gross or arbitrary abuse of discretion, except as to the allowance to said Dorothy Elward, nor has he completely failed to' act, but on the contrary has acted diligently and faithfully for the interest of the estate.” The exception made clearly shows that the court did not find that the trustee acted in good faith and not arbitrarily in fixing the allowance, and if it does not by implication show a finding to the contrary, that is supplied by the judgment itself. In the trial court’s written opinion it is said:
“In this case there is no evidence to show any act of fraud, misconduct, bad faith or arbitrary abuse of discretion on the part of the trustee, and so there is absolutely no grounds for his removal; and in accordance with the rule laid down that the court of equity has power to prevent him from exercising his discretionary power so as to oppress the beneficiary, I hereby assume authority to fix the amount necessary for her support and maintenance in accordance with the terms and conditions of said testamentary trust.”
This language must be interpreted to harmonize with the finding of fact and the judgment, so far as it is reasonably open to such construction. It cannot be regarded as showing a departure from the accepted rule, or as intended to nullify the exception made in the finding quoted. Consequently the order increasing the allowance to the plaintiff must be affirmed.
The trial court also expressed the opinion that a claim of $340 for hospital bills, doctor bills and other expenses due to the plaintiff’s physical condition should be paid by the trustee, but held that it had no authority to order it. The plaintiff asks a modification so that such payment shall be made obligatory. This part of the judgment is likewise unassailable, because it must be regarded as implying a finding that so far as relates to this feature of the case the defendant acted in good faith.
The plaintiff asks that her attorneys’ fee for services in the presentation of this appeal be allowed as a charge against the estate. The allowance is made, the fee being fixed at $150.
The judgment is affirmed.
Hopkins, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff questions the validity of an act of the legislature of 1925 which provides for the payment of five dollars a day for expense money to each member of the legislature and to the lieutenant governor for each day of any regular or special session of the legislature. The act has been approved by the governor; it has been published as required by law, and is now a part of the law of this state unless it violates some provision of the constitution.
The act is as follows:
“House Bill No. 46.
“An Act providing for the expenses of the lieutenant governor and members of the state legislature, and providing for payment thereof.
"Be it enacted by the Legislature of the State of Kansas:
“Section 1. The lieutenant governor and each member of the state legislature shall receive five dollars ($5) per day expense money for each day of any regular or special session of the legislature.
“Sec. 2. The auditor of state is hereby authorized to pay the expense money provided for in section 1 of this act out of any money appropriated for legislative purposes.
“Sec. 3. This act shall take effect from and after its publication in the official state paper.”
The plaintiff contends that the act violates section 3 of article 2 and section 15 of article 1 of the constitution. Section 3 of article 2 reads:
“The members of the legislature shall receive as compensation for their services the sum of three dollars for each day’s actual service at any regular or special session, and fifteen cents for each mile traveled by the usual route in going to and returning from the place of meeting; but such compensation shall not in the aggregate exceed the sum of two hundred and forty dollars for each member as per diem allowance for the first session held under this constitution, nor more than one hundred and fifty dollars for each session thereafter, nor more than ninety dollars for any special session.”
Section 15 of article 1 reads:
“The officers mentioned in this article [§ 1, art. 1] shall, at stated times, receive for their services a compensation to be established by law, which shall neither be increased nor diminished during the period for which they shall have been elected.”
Section 1 of article 1 names the lieutenant governor as one of the officers whose compensation shall not be increased nor diminished during the term for which he shall have been elected.
An examination of section 3 of article 2 of the constitution is necessary. It makes provision for the payment of expenses in going to and returning from the place at which the legislature meets. No other expenses are provided for. The principle of statutory construction, expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), will be of some assistance in reaching a correct conclusion.
In 12 C. J. 707, this language is found:
“Under the maxim, expressio unius est exclusio alterius, the enumeration of certain specified things in a constitutional provision will usually be construed to exclude all things not thus enumerated; but this is a rule to be used merely in ascertaining the true meaning, and is not a rigid rule of universal application, and should never be applied to obscure the meaning or thwart the purpose of a constitutional provision.”
6 R. C. L. 49 says:
“In construing a constitution, resort may be had to the well-recognized rule of construction contained in the maxim expressio unius est exclusio alterius, and the expression of one thing in a constitution may necessarily involve the exclusion of other things not expressed; but this rule, like all other mere rules of construction applied to ambiguous words, must yield to proof of surrounding facts and circumstances which satisfactorily demonstrates that the meaning intended by the parties was different.”
If the maxim expressio unius est exclusio alterius applies, all personal expenses of legislators other than mileage are excluded by the constitutional provision.
All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a member of the legislature because he is at the capital city; they are those that are incurred by him in the performance of his duties. They are legislative expenses, not personal expenses. The distinction between expenses that are legislative and those that are personal is that legislative expenses are those that are necessary to enable the legislature to properly perform its functions, while those that are personal are those that must be incurred by a member of the legislature in order to be present at the place of meeting — expenses for his personal comfort and convenience, which have nothing to do with the performance of his duty as a member of the legislature. Personal expenses are those incurred for rooms, meals, laundry, communications with their homes, and other things of like character. Under Bailey v. Kelly, 70 Kan. 869, 79 Pac. 735, personal expenses cannot be paid. In that case this court said:
“The act of 1903, appropriating money for maintaining the executive residence, does not authorize the employment of any part of the sum so appropriated for the purchase of provisions to be used there. If given such construction the act would, to that extent, be in contravention of the constitutional prohibition against increasing the compensation of the governor during his term of office, and therefore void.” (Syl.)
If an appropriation for living expenses for the governor increases his compensation, an appropriation intended to cover hotel expenses of the members of the legislature likewise increases their compensation.
The constitution fixes the compensation of members of the legislature at $3 per day and provides that such compensation shall not be more than $150 each for each regular session, nor more than $90 each for each special session. This compensation, fixed by the constitution, cannot be increased. Any law which in any way, either directly or indirectly, increases the compensation of any member of the legislature must be held invalid.
The constitution provides that the per diem allowance for each member shall not be more than $150 for each regular session, nor more than $90 for any special session. Stronger language to limit the amount of compensation could not have been used. The constitution could very well have left the pay of legislators to the judgment of each legislature, but that has not been done. The salary or compensation of no other officer is fixed by the constitution. Why was this provision placed in the constitution? There is but one answer — that the members of the legislature should’ not have the power to increase their own compensation.
Few, if any, of the members of the legislature will use as much as five dollars a day as expenses incidental to the performance of their duties. What will be done with the remainder of the five dollars a day after each member pays all expenses incident to his duties? If he keeps the money — and it is presumed that he will— it adds to his compensation; it cannot do otherwise. The constitution says $150 and no more; one dollar more violates the constitution.
In the brief of the defendant, it is said:
“It is conceded that if an appropriation were made of an amount which would be manifestly unreasonable, and would thereby actually increase the compensation of members of the legislature, it would be void.”
No case has been cited holding a law invalid because it appropriated an amount of money larger than the courts thought reasonable. Probably none can be cited except where the amount appropriated has exceeded the amount authorized. It is a part of constitutional law that the legislature while acting within the constitutional field of its operation cannot be controlled by the courts. The judgment of the courts cannot be substituted for the judgment of the legislature. If the legislature desires to appropriate an excessive or unreasonable amount for constitutional purposes, the courts cannot interfere. There is no restriction in our constitution on the power of the legislature to appropriate any amount for any public purpose, and there is no power given the courts to substitute their judgment for that of the legislature.
The State, ex rel., v. Raine, 49 Ohio St. 580, is directly in point. The syllabus reads:
“A statute, whatever terms it may employ, the only effect of which is to increase the salary attached to a public office, contravenes section 20 of article II of the constitution of this state, in so far as it may affect the salary of an incumbent of the office during the term he was serving when the statute was enacted.”
The law there in question reads as follows:
“In counties in which, by the last federal census, the population amounted to two hundred and fifty thousand or upwards, each commissioner shall be allowed for expenses incurred by said commissioner, in the proper discharge of his duties within said county, the sum of ($1,000) one thousand dollars per annum. Said sum to be paid out of the county treasury on the warrant of the county auditor.” (p. 581.)
We quote from the opinion as follows:
“The constitutionality of this statute is assailed upon the ground that it increases the salary of the county commissioners of Hamilton county during the terms for which they had been elected, and for that reason contravenes section 20 of article 2 of the constitution of 1851, which reads as follows:
“ ‘Sec. 20. The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.’
“This section of the constitution, as will be observed, denies to the general assembly power to affect the ‘salary’ of any officer during his existing term. In terms the statute in controversy allows a thousand dollars per annum to each county commissioner for expenses incurred in the discharge of his duties within the county, the word salary not being used at all, and from this wording of the statute it is contended that it creates no increase of salary, but merely allows compensation for expenses. Constitutional guarantees would afford but slight barriera to encroachments by any of the departments of the government if the forbidden object could be accomplished by simply using a form of words that did not name it in express terms. If the effect of the statute under consideration is to increase the salary of those county commissioners who were serving current terms of office it is unconstitutional to that extent. The county commissioners of Hamilton county before the adoption of this statute were each entitled to two thousand dollars per annum and necessary traveling expenses when traveling outside of the county on official business. (83 Ohio Laws 71.) This was the full extent of the compensation allowed them by law and whatever personal expenses they should incur while discharging their official duties within the county was not a charge upon the public treasury. The act in question neither imposed new duties nor created additional expenses. It simply allowed each commissioner of Hamilton county to draw from the public treasury the sum of three thousand dollars, wherea* before the act was passed his compensation was limited to two thousand dollars. . . .
“It necessarily follows, from the view of the statute we have taken, that to the extent that it sought to affect the salaries of officers during the terms which they were serving, when it was enacted, it is unconstitutional and void.”
The defendant cites McCoy v. Handlin, 35 S. D. 487; State, ex rel., v. Thomason, 142 Tenn. 527; Kirkwood v. Soto, 87 Cal. 394; and Milwaukee County v. Halsey, 149 Wis. 82. Each of these cases will be noticed.
In McCoy v. Handlin, 35 S. D. 487, the legislature of South Dakota had provided:
“That whenever a judge of the supreme court whose legal residence shall be at some place other than the state capital shall have changed his place of actual residence to the capital, there shall be paid to such judge in consideration of expenses incident to removal to the capital, the increased expenses of living at a place other than his legal residence, the expenses of traveling to and from such legal residence, the fixed sum of fifty dollars for each month, payable upon the certified vouchers of such judge filed in the office of the state auditor.”
There payment was refused by the proper officer, and the chief justice commenced an action in his coui’t to enforce payment of the amount appropriated. The court held the law valid. We cannot follow a decision of a court in which each member is financially interested and upholds his side of the controversy.
In State, ex rel., v. Thomason, 142 Tenn. 527, the legislature appropriated “$150 for stenographic work and other necessary expenses to each member of the general assembly.” The constitution of Tennessee provides:
“The sum of four dollars per day, and four dollars for every twenty-five miles traveling to and from the seat of government, shall be allowed to the members of each general assembly elected', after the ratification of this constitution, as a compensation for their services. But no member shall be paid for more than seventy-five days of a regular session, or for more than twenty days of any extra or called session, or for any day when absent from his seat in the legislature, unless physically unable to attend. The senators, when sitting as' a court of impeachment, shall each receive four dollars per day of actual attendance.”
The case was tried on an agreed statement of facts which stated that the law provided for “stenographic hire, postage, stationery, attendance upon committees other than recess committees, and for personal and living expenses.” No constitutional prohibition against such a law is cited by the defendant except what is contained in the quoted language of the constitution. The court held the law valid, but called attention to the difference between the law and the agreed statement of facts, and in effect said that if the appropriation had been for living expenses it would be held invalid. This court cannot adopt the reasoning of the supreme court of Tennessee in holding the law valid.
In Kirkwood v. Soto, 87 Cal. 394, a county superintendent filed his itemized claim for expenses incurred, and payment was enforced under a law authorizing their payment. There was no question about the nature of the expenses.
Milwaukee County v. Halsey, 149 Wis. 82, was an action by the county to recover part of the salary that had been paid to the circuit judges of that county. The law provided that they should receive more than the other circuit judges of the state, the difference to be paid by Milwaukee county. In tracing the history of legislation concerning the salaries of circuit judges in that state, a statement was made concerning $400 expenses that had been allowed to circuit judges. What was said was by way of argument and was not necessary to a decision of the question pending in the court. In the observation made by the court it was said that if the $400 was considered compensation the law would be invalid.
The cases cited by the defendant do not assist the court in reaching a conclusion in the present controversy. The other cases cited by the defendant concern the power of the legislature to provide for the payment of the expenses of an officer incurred by him in the performance of his duties as such. There is no question about that.
The act in question provides for the payment of five dollars a day expense money to the lieutenant governor. His salary is not fixed by the constitution, but section 15 of article 1 provides that his compensation shall neither be increased nor diminished during the period for which he shall have been elected.. The effect of the act is to increase the compensation of the lieutenant governor during his present term of office. That cannot be done. Of course, the legislature may increase the compensation of future lieutenant governors in any way or to whatever extent may be thought best.
The act violates section 3 of article 2 and section 15 of article 1 of the constitution of this state and is therefore invalid. That part of the act providing for five dollars a day to the lieutenant governor is so connected with the remainder that no part of the act can be upheld.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from an automobile accident occasioned by negligence of the defendants. Charles Horchem’s motion for judgment on the opening statement of counsel for plaintiff was sustained, and Harold Horchem’s objection to the introduction of evidence in support of the petition was sustained. Plaintiff appeals.
Issues are made by pleadings, not by opening statements, and a trial may not be ended on plaintiff’s opening statement unless some fact be stated or some admission be made which precludes recovery. (Brashear v. Rabenstein, 71 Kan. 455, 457, 80 Pac. 950.) An objection to introduction of evidence is merely a mode of testing sufficiency of the petition. (Water-Supply Co. v. Dodge City, 55 Kan. 60, 39 Pac. 219.) When attack on the sufficiency of a petition is delayed until commencement of trial, facts not stated in terms may frequently be inferred from other facts which are well pleaded (Bailey v. Dodge, 28 Kan. 72), and if, upon any fair construction of the petition, a cause of action be stated, the objection should be overruled. (Glenn v. Railway Co., 87 Kan. 391, 393, 124 Pac. 420.) In this instance the opening statement was consistent with the petition and, while the petition might have been improved, it fairly presented facts now to be summarized.
Charles Horchem was the owner of a Buick automobile equipped with headlights and with a spotlight carried at the left side of the windshield. Harold Horchem is Charles Horchem’s son. At the time of the accident Harold Horchem was twelve years of age, and was inexperienced in handling an automobile equipped with a spotlight, of which fact Charles Horchem was aware. Charles Horchem sent Harold Horchem on a trip in the automobile on business for Charles Horchem. Harold Horchem drove the automobile at a rapid rate of speed southward on a highway, with the spotlight shining down the road in front of the automobile, in the same direction as the headlights. While plaintiff was driving northward in his automobile on the same highway, the bright lights of the Buick automobile blinded him, and caused him to drive his automobile into a cement culvert, wrecking the automobile. It may be inferred that the trip on which Harold Horchem was sent was made in the night, and that the blinding of plaintiff occurred because the rays of the spotlight fell .upon him as the automobiles approached each other to pass.
The accident occurred on March 18, 1921. At that time sections 6 and 10 of chapter 65 of the Laws of 1913 were in force. They read as follows:
“Sec. 6. It shall be unlawful for any person under fourteen years'of age or for any intoxicated person to operate a motor vehicle, and any owner, dealer or manufacturer of motor vehicles who permits a person under fourteen years of age or an intoxicated person to operate a motor vehicle shall be deemed guilty of a misdemeanor and shall be punished as hereinafter provided for violation of the provisions of this act.
“Sec. 10. The violation of any o'f the provisions of this act shall be deemed a misdemeanor punishable by a fine not exceeding fifty dollars for the first offense, and punishable by a fine of not less than fifty dollars nor more than one hundred dollars, or imprisonment not exceeding sixty days in the county jail, or by both such fine and imprisonment for each subsequent offense.”
Section 6 now appears as R. S. 8-121. Section 10 was repealed by the revision of 1923, and R. S. 8-121 is now merely a regulation without penal sanction.
The purpose of the statute was, of course, general protection of persons and property from danger consequent upon operation of motor vehicles by persons incompetent to manage them. Included within this general purpose was the purpose to make travel on the public highways safer. Indeed, that was the chief purpose, because the danger sought to be avoided was more frequently encountered on public highways than elsewhere. This being true, plaintiff, as .a traveler on the highway, .was a member of a class which the statute was designed to protect, and may recover damages which resulted proximately from violation of the statute. (Harrod v. Latham, 77 Kan. 466, 470, 95 Pac. 11; Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558; Note, L. R. A. 1915-E, 500.) R. S. 8-122 contains the following provision:
“It is hereby made unlawful for the driver of any automobile or other motor vehicle to direct the rays of a light known as a spotlight upon an approaching vehicle upon any public highway in this state.”
It can make no difference in application of this statute whether rays of a spotlight be directed upon an approaching vehicle by manipulation of the light itself as an attachment to the automobile, or by the manner in which the automobile with light attached is operated. It is sufficient that the rays be directed upon the approaching vehicle.
It is customary to classify a breach of statutory duty resulting in injury to one to whom the duty is owed as actionable negligence. (Gibson v. Packing Box Co., 85 Kan. 346, 349, 116 Pac. 502; Note, L. R. A. 1915 E, 506.) In stating a cause of action for such negligence it is not necessary to plead the statute, or to make specific reference to it. It is sufficient if facts pleaded bring plaintiff within protection of the statute. (Fowler v. Enzenperger, 77 Kan. 406, 409, 94 Pac. 995.)
. It results from the foregoing that Harold Horehem was negligent in that he directed the rays of the spotlight attached to the passing side of the Buick automobile upon plaintiff’s automobile as it approached to pass, contrary to the provisions of R. S. 8-122. Charles Horehem was negligent in that he permitted Harold Horehem to operate the Buick car contrary to the provisions of R. S. 8-121. The negligence of the defendants resulted proximately in injury to plaintiff. Since the petition alleged that Harold Horehem was driving the Buick automobile on business for Charles Horehem, Charles Horehem is also liable to plaintiff under the doctrine of respondent superior.
The judgment of the district court is reversed, and the cause is remanded for trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This action is to require the bank commissioner to issue a certificate on the guaranty fund for $460.43, which was the amount of plaintiff’s savings account in the guaranteed Farmers State Bank of Washington, which became insolvent on April 24,1922.
Plaintiff’s deposit was evidenced by a savings pass-book in which his account with the bank had been kept for several years. It showed that every three months since 1915 the earned interest had been entered as a credit augmenting the account. At various times the bank commissioner issued rules regulating the rates of interest payable on such accounts, none of which will need present attention except the rule promulgated on September 1, 1921. It provided:
“(3) On savings deposits represented by entries made in a book which substantially conforms to the standard form of savings pass-book in use by savings banks, a rate of interest not exceeding four per cent, compounded semiannually, may be paid: Provided, Interest payments on such deposits shall not be paid or credited except on July 1 and January 1- next following the date of deposit, and no interest shall be paid or accredited on any amount withdrawn after an'interest-paying date and before the next semiannual date for computing interest: And provided further, That such savings account must not be used in any sense or to any extent as a checking account.”
The bank and the plaintiff ignored this order, .and the interest earned on the savings deposit at the rate of 4 per cent per annum was regularly entered as a credit augmenting the sum total of the savings account every three months just as had always been done by that bank before such details had been deemed needful of regulation by the bank commissioner. On the quarterly dates of October 1, 1921, January 1,1922, and April 1,1922, the items of earned interest were thus credited in violation of the order of September 1, 1921. The bank failed about three weeks after the last breach of the order of the bank commissioner. Can plaintiff recover?
The legislature, after experimenting for two years with statutory maximum rates of interest for protected .deposits (Laws 1909, ch. 61, § 6), altered the law so as to authorize the bank commissioner to prescribe maximum rates of interest on guaranteed deposits. (R. S. 9-207.) The fixing of the frequency of such payments was a proper and logical incident to the complete and efficient exercise of the commissioner’s regulatory authority. There is nothing arbitrary or unreasonable in a rule that the interest earned on guaranteed savings deposits shall not be entered oftener than every six months. A more frequent entering of credits for interest earned has the very obvious effect of increasing the maximum rate of annual or semiannual interest which the bank commissioner authorized the banks to pay.
The point is urged that the bank commissioner had knowingly permitted this, bank to pay interest on deposits at other rates and on 'different terms than those authorized by statute or regulatory orders of the bank commissioner. But the effect of notice to the bank commissioner, of his knowledge, informal assent or acquiescence in such infractions of law, departmental orders, or of sound banking practices, has been thoroughly threshed out in previous decisions, and held to be unavailing to validate irregular claims upon the bank guaranty fund. The general rule is that negligence or other wrongful conduct of public officers does not alter or modify the effect of positive statutes or the principles of substantive law. In State Bank v. Bank Commissioner, 110 Kan. 520, 204 Pac. 709, it was said:
“It is urged, that the bank commissioner is precluded by the conduct of his predecessor from contesting the validity of the certificates as claims against the guaranty fund. Bank Commissioner Wilson did undertake to assure Crammer that the certificates of deposit would be within its protection, but that was merely an expression of opinion on a question of law. The bank commissioner could not by contract make the fund liable; the matter of liability was determined by the statute. . . . Moreover, the guaranty fund is created for the benefit of the public, and the public although not its owner is interested in it. Public rights are not ordinarily subject to loss by estoppel through the conduct of officers.” (pp. 530, 531. See, also, Koelling v. Bank Commissioner, 114 Kan. 109, 216 Pac. 1099.)
It is also urged that the difference between the maximum authorized rate of interest and that received by plaintiff was so trivial— less than nine cents per annum — that the breach of the order of the bank commissioner was no more than technical, and that it carried no badge of fraud or collusion to frustrate the bank commissioner’s orders designed to prevent reckless banking by the payment of unduly high rates of interest to procure deposits. If the case were one of purely equitable cognizance and affecting only the relative rights of private litigants, this argument might make a strong appeal. But this is mandamus. And it affects a trust fund of great importance and of a quasi public character. We are asked to compel the bank commissioner to disregard the breach of his own regulatory order because in this instance the result of the breach was negligible in dollars and cents. In effect, also, we are asked to ignore the statute, R. S. 9-206. The court cannot do that. Because the plaintiff’s savings deposit was only a few hundred dollars, the result of paying interest quarterly instead of semiannually was but a few cents more than the lawful maximum. But another depositor in this same bank may have had a deposit of a few thousand dollars under a similar arrangement. The difference in that case would have been substantial. This court could not issue its writ in favor of the owner of the small deposit and deny it to the owner of a large deposit held under identical circumstances. Since the legislature has authorized the bank commissioner to make rules governing the subject of deposits and the rule itself is reasonable, the court is bound to uphold that officer’s reasonable orders. At all events it must not compel him to disregard them. See the analogous cases of National Bank v. Bank Commissioner, 110 Kan. 380, 214 Pac. 715; Barber County v. Bank Commissioner, 113 Kan. 180, 213 Pac. 1054; Bank v. Bank Commissioner, 114 Kan. 1, 216 Pac. 1093; Barrett v. Bank Commissioner, 114 Kan. 804, 223 Pac. 1091; id., 115 Kan. 557, 223 Pac. 1091.
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Harman, C.J.:
This is an appeal in a probate proceeding wherein a district court ruled that a spendthrift trust had not been created and it enforced assignments which a legatee son had made of his interest in his father’s estate. The issues are two-fold: (1) Was the assignee bank a proper party to appeal from the probate court’s order of final settlement, and (2) was the beneficiary improperly denied a trial de novo in the district court? We answer the first question in the affirmative and the second in the negative and affirm.
The case had its inception in 1965 with the execution of a joint will by Clarence R. Sowers and his wife, Ruby C. Sowers. Primary beneficiaries under the will were the wife Ruby and two sons of Clarence R. Sowers, namely, John W. Sowers, appellant herein, and Clarence Richard Sowers. The elder Mr. Sowers died July 4, 1971, and the will was admitted to probate August 10, 1971, in the probate court of Sedgwick County, Kansas. For present purposes we need narrate only the following provisions of the will:
“2. It is our desire that in event Ruby C. Sowers survives Clarence R. Sowers, a trust estate shall be created in all the property standing in our names at the time of our death, and said trust estate shall be in full force and effect for a period of twenty (20) years from the date of the death of the survivor of us.
“3. [Appoints John W. Sowers and the ‘survivor of us’ as trustees.]
“5. That in the event Ruby C. Sowers survives Clarence R. Sowers, she shall have the use and occupancy of the home of the undersigned at 3844 East Second Street, Wichita, Kansas, for the period of her natural life-time; but in the event she shall remarry, she shall be entitled to all of the household furnishings and effects. That in the event she shall remarry, the home will be sold and the net proceeds will be paid into the trust estate for the payment of the taxes.
“7. That if the said Clarence R. Sowers shall precede the said Ruby C. Sowers in death, the said Ruby C. Sowers shall receive an undivided one-half (Vh) of the net earnings of the trust estate, taking into consideration taxes, insurance, income taxes, and other necessary expenses, and taking into consideration that a reserve shall be held in said trust estate at all times in the amount of Three Thousand ($3,000.00) Dollars for emergencies.
“8. That in the event Ruby C. Sowers survives Clarence R. Sowers, upon her death, we hereby devise and bequeath unto John W. Sowers and Clarence Richard Sowers, the entire trust estate; share and share alike.
“10. In the event Ruby C. Sowers precedes Clarence R. Sowers in death, all her property; real, personal and mixed shall go to and vest in Clarence R. Sowers, and the trust estate shall not exist.” ~
Other provisions of the will made specific bequests if Clarence R. preceded Ruby in death or in event both died in a common accident.
November 12, 1971, John W. Sowers assigned appellee Southwest National Bank of Wichita, Kansas, all his right, title, interest and distributive share in Clarence R. Sowers’ estate, which written assignment was filed in the probate court the same day.
On December 29, 1971, Ruby as administratrix filed a petition for construction of the joint will. An order of construction was filed February 17, 1972. Addressing itself to the asserted ambiguities, the probate court found that the trust should be in force for a period of twenty years after Ruby’s death, and thereafter the corpus of the trust should be distributed to John W. Sowers and Clarence Richard Sowers equally. The court further found that the trustees should keep $3,000 in income in reserve at all times for emergencies, and one-half of the income should be distributed to Ruby and one-fourth each to John and Clarence Richard. Direction was given respecting payment of bequests and estate tax, John’s request to withdraw as a trustee was granted, and the Southwest National Bank was appointed to act as trustee in place of John. This order, which was approved by John, substantially followed the recommendations of Lyle P. Baker, attorney for Ruby and member of the law firm which had included the senior Sowers and his son John. No appeal was taken from this order.
John W. Sowers then made four more assignments of his interest in the Clarence R. Sowers estate: June 9, 1972 to Morris Plan, filed in probate court the same day; November 7, 1972 to Morris Plan, filed in probate court the same day; June 8, 1973 to Morris £lan, filed in probate court June 18, 1973; and June 14, 1973 to Seneca State Bank of Wichita, filed June 15, 1973.
On September 10, 1973, Ruby, John and Clarence Richard Sowers entered into a family settlement agreement which contained the following in paragraph 5:
“(e) To the extent that same is permitted by law, none of the beneficiaries of this trust shall have any power to dispose of or to change by way of anticipation the interest, or any part of the interest, of any such beneficiary, except that the interests in the trust corpus of JOHN W. SOWERS and CLARENCE RICHARD SOWERS are subject to proper testamentary disposition by Last Will and Testament by said corpus beneficiaries, JOHN W. SOWERS and CLARENCE RICHARD SOWERS; and all sums payable to any of the three (3) such beneficiaries under the trust heretofore created shall be free and clear of the debts, contracts, alienations and anticipations of the beneficiaries, and of all liabilities for levies and attachments and proceedings of whatsoever kind at law or in equity, and in the case of a married woman or man, free from the control of her husband or his wife.”
On September 17, 1973, petition for final settlement in the Clarence R. Sowers estate was filed in probate court along with the family settlement agreement. No notice of this was given appellee Southwest bank. On October 25, 1973, John filed his petition in bankruptcy in the U. S. District Court for the District of Kansas. On November 12, 1973, a journal entry of final settlement was filed which recited the following:
“Under the Will of Clarence R. Sowers, deceased the rest and residue of the estate both real and personal should be assigned to and delivered into Trust, pursuant to the terms and limitations spelled out in the Will of the deceased and the before mentioned Family Settlement Agreement.”
Appellee Southwest promptly filed notice of appeal to the district court from the foregoing order. When the matter came before the administrative judge for hearing, and after inquiry into the nature of the appeal, the proceeding was turned over to the judge of division five of the district court for determination of two questions of law: (1) Whether or not an assignee of the interest of a beneficiary of this estate was a proper person to bring this appeal, and (2) whether or not a beneficiary of this estate who has assigned his interest therein for valuable consideration may, through the subsequent execution of a family settlement agreement purporting to place limitations upon the inheritance under the will of the decedent through the establishment of a spendthrift trust, defeat the interests of the assignees in said beneficiary’s interest in the estate.
The judge of division five, after reviewing the complete probate court file, answered the first question in the affirmative and the second in the negative and returned the matter to the administrative judge, who then established priorities among John’s creditors and ordered enforcement of their claims, giving first priority to appellee Southwest’s assignment. That court also denied John’s request to offer extrinsic evidence to show that Clarence R. Sowers intended by his will to create spendthrift trusts. John has appealed to this court.
Our statute governing appeals from probate court at the time in question here was K.S.A. 1973 Supp. 59-2404, which provided:
“Such appeal may be taken by any person aggrieved within thirty (30) days after the making of such order, judgment, decree, or decision . . . .” (emphasis supplied)
Appellant John W. Sowers’ assertion that appellee Southwest bank was not a proper party to appeal from the probate court’s order is based on cases wherein assignees attempted to appeal from orders contesting or construing a will. Those cases are not controlling here where the appeal is from an order of final settlement. The quoted statute and pertinent case law govern. Appellant had borrowed over $100,000 from appellee and had assigned his full share in his father’s estate as security. The assignment was filed in the estate proceedings in the probate court. Certainly appellee, as a creditor having a secured claim against the legatee’s share of a testator’s estate, was an aggrieved party within the meaning of K.S.A. 1973 Supp. 59-2404 so as to be able to appeal from an order of final settlement in the estate which had the effect of invalidating his security interest.
Case law would reach the same result. Instructive is Sarbach v. Deposit Co., 99 Kan. 29, 160 Pac. 990, which involved an insolvent individual estate which had no assets except those which might accrue to it from the decedent’s share of a partnership estate after partnership debts were paid. There it was held that a creditor of the individual estate had such interest in the accounting and settlement of the partnership estate as would entitle him to appear in the probate court and resist the allowance of questionable claims against the partnership estate and to appeal from the decision of the probate court.
Appellant’s second point on appeal is that the trial court erred in denying him a trial de novo pursuant to K.S.A. 1975 Supp. 59-2408. The argument is that the Sowers will was ambiguous, and the family settlement agreement so recited; hence appellant should have had the opportunity to present evidence which would have shown that the decedent’s intent was to create a spendthrift trust. It is further asserted the trial court ignored this aspect of the case. We cannot agree.
Certainly the will was imperfectly drawn in several respects, including some in connection with the trust established therein. These gaps and obscurities were the subject of the construction action and were apparently remedied to everyone’s satisfaction without any mention of a spendthrift trust. None of the asserted ambiguities related to a spendthrift trust and none tí those now urged point to the fact a spendthrift trust was intended.
A spendthrift trust is a trust created to provide a fund for the maintenance of a beneficiary and at the same time to secure the fund against his improvidence or incapacity. Provisions against alienation of the trust fund by the voluntary act of the beneficiary or by his creditors are its usual incidents (see Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030).
A requisite to the creation of such a trust is that the trustor clearly manifest the intention not only to create a trust, but to create it with the spendthrift effect (76 Am. Jur. 2d, Trusts, § 150). The intent need not be stated in express terms but may come from construction of the trust instrument as a whole (Sherman v. Havens, supra). Inference of intent to create such a trust must be made with reasonable certainty and cannot come from loose and vague declarations ,(76 Am. Jur. 2d, supra, -§ 38). Here the trust was one created by will and principles applicable to will construction come into play. The intent of the testator as expressed in the entire will is paramount. Where a will is not ambiguous and can be carried into effect without extrinsic evidence of intention, such evidence is inadmissible (Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769).
Here the will contained no language indicating or suggesting that the beneficiaries of the trust could not alienate their shares or that their shares were not subject to the claims of their creditors. Absent any semblance of these indicia of a spendthrift trust, receipt of evidence indicating such an intent was inadmissible and the trial court properly excluded it. Were the rule otherwise, a will could be completely rewritten without any such direction appearing in the will.
In the cases relied on by appellant to open up the proceedings for the taking of further evidence, there was some language in the written instrument suggesting some intent to create a spendthrift trust. No such suggestions nor any restraints or restrictions on alienation, either voluntary or involuntary, were in the Sowers will.
The trial court made no express ruling declaring a want of the requisite factors before extrinsic evidence could be adduced in support of a spendthrift trust, but such a finding seems implicit in the ruling made. It had before it the will and the complete probate court file. It had all the material facts before it concerning the testator’s intent with respect to the creation of a spendthrift trust.
Where otherwise appropriate, summary judgment procedure under K.S.A. 60-256 is applicable when a district court exercises its de novo jurisdiction on an appeal from probate court (In re Estate of Mullin, 201 Kan. 756, 443 P.2d 331). Motion for summary judgment was not made in this case (a prior motion made by appellee was denied as premature), but a district court has inherent power to enter summary judgment on its own motion when no genuine issue of any material fact remains and one of the parties is entitled to judgment as a matter of law (Mater v. Boese, 213 Kan. 711, 716, 518 P.2d 482, 487-488). The trial court here did not err in granting summary judgment in trial de novo of the issues before it.
The family settlement agreement is of no moment. A person may not create a spendthrift trust for himself; that is, he may not place his own property in trust for his own benefit and provide that the funds shall not be subject to the claims of his creditors. (Utley v. Graves, 258 F. Supp. 959 [D.D.C. 1966].)
In Herd v. Chambers, 158 Kan. 614, 149 P.2d 583, this was said:
. . [T]he American doctrine supported by the great weight of federal and state authorities is, that irrespective of statute an individual cannot create out of his own property for his own benefit a trust for himself and thereby defeat his creditors of their lawful demands.” (p. 623)
The judgment is affirmed. | [
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Harman, C.J.:
A jury found Verlie Arnold, Jr. guilty of attempted rape. He appeals from that conviction and sentence, raising four points.
His complaint that the evidence is insufficient to show an intent to rape requires brief review of the prosecution’s evidence. About 5:25 a.m. on September 25, 1976, the victim, a female student at Wichita State University, left her dormitory to walk to the music building to join a group for a trip to Pittsburg State University. She observed a car with only one person in it approaching from the west, which turned left on the same street on which she was traveling and passed her going in the same direction. She was able to identify the car by color, make and dents. As she walked between two buildings on the campus she sensed someone’s presence, turned around and saw a man in a crouched position behind her. The man wore no shirt or shoes. She felt he was up to no good and started to hurry faster. She did not remember what happened until she was on the ground screaming and the man was on top of her. By means of street lights she was able positively to identify the man as defendant Arnold. She.was sure he had to have forced her to the ground somehow and that she didn’t fall on her own accord. The defendant did not touch her purse nor was there any tugging on it. Defendant told her to be quiet or he would kill her. He had one hand on her neck and mouth, trying to close her mouth and choke her. She was in a curled position on her side and he was trying to force her over on her back. The victim, a deeply religious person, spoke the name of Jesus several times and finally said, “I command you to leave in the name of Jesus.” Defendant got up and left. While he was still on top of her he placed one hand on the center of her lower abdomen. As he was leaving, the victim saw the lights of a security car, to which she ran and reported the type of car she had seen and a description of her assailant. The security officer had heard screaming. There was a scratch on the victim’s face.
Defendant was apprehended shortly thereafter east of the university driving a car similar to that which the victim had previously seen. He was perspiring heavily, had no shoes on and was wearing a shirt which was not tucked in. His shoes were in the car. His trousers had grass stains and dampness on one knee. His socks were damp. There had been dew on the grass where defendant lay on the victim.
Defendant testified in his own behalf that he had been at neighborhood clubs that morning and was on his way to get gas for his car when he was apprehended; he had not been on the Wichita State campus that morning and did not do any of the acts testified to by the victim; he was wearing shoes when arrested.
Defendant argues the evidence on intent to rape amounted to no more than mere suspicion or probability — it could as well have been robbery, theft or battery. We think the evidence was such— the stealth, the physical actions including the threats, the relative positions of the parties and the like — that the jury could properly have drawn the inference that defendant was bent on rape. This meets the test on appellate review (State v. Humbolt, 1 Kan. App. 2d 137, 138, 562 P.2d 123). The issue was one for jury resolution, which settles the matter on appeal.
Defendant contends his stained trousers were improperly admitted in evidence. His complaint that they were a part of a number of exhibits offered en masse was not voiced at trial, as well should have been the case for want of merit in the objection. They were shown to have been the trousers he was wearing when arrested and their relevance is obvious.
Defendant’s assertion of error in the trial court’s failure to give a requested instruction on circumstantial evidence was answered contrary to his position in State v. Wilkins, 215 Kan. 145, Syl. 4, 5 and 6, 523 P.2d 728. Such an instruction is unnecessary when proper instructions on reasonable doubt are given.
More serious is defendant’s charge of error in the trial court’s failure to give a requested instruction on the lesser offense of battery.
The starting point is K.S.A. 21-3107(3) which provides:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
The duty under the foregoing to instruct on lesser crimes is mandatory but it arises only when there is evidence upon which the accused might reasonably and properly be convicted of the lesser offense (State v. Seelke, 221 Kan. 672, 561 P.2d 869).
The subject of lesser crimes is now codified in K.S.A. 21-3107(2), as follows:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) An attempt to commit the crime charged;
“(c) An attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.”
In many cases the Kansas Supreme Court has dealt with the foregoing provision, particularly subparagraph (d) with which we are presently concerned, and the entire subject has received scholarly attention (Note, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L.J. 40). The court’s recent decisions under subparagraph (d) have considered the question of lesser included offenses by looking at the elements of the crime charged in the abstract; that is, the issue has not been raised and the court has not had occasion to examine the information and consider whether or not some less serious crime may have been factually charged in the information and shown in the evidence as well. (Under K.S.A. 1976 Supp. 22-3201 an offense may be charged in considerable factual detail or it may be drawn simply in the language of the statute defining the offense.) Taking the approach mentioned, the court, for example, in State v. Hoskins, 222 Kan. 436, 439, 565 P.2d 608, quoted approvingly from State v. Woods, 214 Kan. 739, 744, 522 P.2d 967, as follows;
“ . . If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense.’ . . .”
Thus under what has been termed the “identity of elements” doctrine where factual allegations in the information have not been brought into play, the conclusion has been that under subparagraph (d) the lesser offense must require no elements not in the greater.
So far as pertinent here, K.S.A. 21-3502 defines rape as follows:
“(1) Rape is the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when committed under any of the following circumstances:
“(a) When a woman’s resistance is overcome by force or fear; . . . .”
K.S.A. 21-3301 defines an attempt:
“(1) An attempt is an overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
K.S.A. 21-3412 defines a battery as the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.
Our Supreme Court in earlier cases has had occasion to look at the factual allegations in an information in determining the propriety of an instruction on a lesser crime. In State v. Way, 76 Kan. 928, 93 Pac. 159, the defendant was prosecuted upon a charge of setting up and keeping a gambling device. He was convicted of the inferior offense of betting upon a game of chance at a gambling resort. Defendant asserted error in the trial court’s instruction that the information charged a violation of the statute upon which the verdict was based. In affirming the conviction the court held:
“A conviction for an offense less than that defined in the statute upon which a prosecution is primarily based may be sustained if the information alleges the existence of all the essential facts constituting such less offense; and under such circumstances a more liberal construction is allowed than is ordinarily applied to criminal pleadings.” (Syl. 1)
Later, in State v. Gibler, 182 Kan. 578, 322 P.2d 829, the court took the same approach. There defendant was tried on an information charging him with manslaughter in the fourth degree. He was convicted of driving a vehicle while under the. influence of intoxicating liquor. The information charged among other things that the defendant at the time and place in question drove an automobile upon a public highway while under the influence of intoxicating liquor. The Supreme Court sustained the conviction over defendant’s objection, ruling that the information charged the essential elements of the offense and the evidence at trial in support was unquestioned.
Under K.S.A. 21-3107(2)(a) a defendant may be convicted of a lesser degree of the same generic crime (see e.g., State v. Gregory, 218 Kan. 180, 542 P.2d 1051). Under subparagraph (d) a defendant may be convicted of a lesser crime, not one of a lesser degree of the principal crime, if it is one factually charged in the information and reasonably proven by the evidence and if it is an element of the crime under the facts of the case. Examples might be: The constituent misdemeanor in involuntary manslaughter; the aggravated assault in aggravated robbery; the assault, or as here, the battery in attempted rape. The subparagraph does not, however, permit the charging of an extraneous crime, such as carrying a concealed weapon, in the same count as a robbery, attempted rape or the like.
The information in the case at bar included the following allegations:
“. . . VERLIE ARNOLD, JR., did then and there unlawfully, wilfully toward the perpetration of the crime of Rape, as defined by K.S.A. 21-3502, commit the following overt act, to-wit: knocked [the victim] to the ground and got on top of her, with the intention to commit said crime, and the said VERLIE ARNOLD, JR. failed in the perpretation (sic) thereof and was prevented and intercepted in executing said crime by a Security Officer of Wichita State University; . . . .”
The statement that the defendant unlawfully and wilfully knocked the victim to the ground and got on top of her sufficiently charges a battery. Taking the approach of “identity of elements” in the abstract the result would have to be that battery is not a lesser included crime to the offense of attempted rape because, although a battery is included in the offense of rape committed by force, attempted rape may be committed without the touching or force requisite to a battery.
However, as stated, the information does charge a battery and the evidence at trial revealed that offense without question. In denying the requested instruction the trial court commented, and the state renews the theory in its argument here, that it would be incongruous and improper for a defendant to rely on the defense of mistaken identity and at the same time take the position that if he was the culprit he didn’t have the requisite intent. This kind of argument may be valid in cases where the evidence negates or excludes any theory of guilt of any lesser offense (see e.g., State v. Stafford, 213 Kan. 152, 515 P.2d 769; State v. Hollaway, 214 Kan. 636, 522 P.2d 364; and State v. Duckworth, 219 Kan. 619, 549 P.2d 554) but it does not seem appropriate here. It is not wholly accurate to say defendant relied solely on the defense of mistaken identity or alibi. His cross-examination of the victim was lengthy and probing, aimed in part at negating evidence of intent to commit rape. The prosecutor’s evidence, while sufficient for the jury to infer an intent to rape therefrom, was not so conclusive as to negate or exclude any other purpose as contended by the state. If a defendant is denied the benefit of any weakness or doubt in the state’s case, he is in effect being denied the standard of proof of guilt beyond a reasonable doubt before being convicted.
It is the duty of a trial court to instruct the jury as to all lesser included offenses of the crime charged that the evidence may justify, even though the evidence of the lesser offense is weak and inconclusive, as long as the evidence presents circumstances from which such lesser offense might reasonably be inferred. (State v. Severns, 158 Kan. 453, 148 P.2d 488; State v. Clark, 218 Kan. 18, 542 P.2d 291.)
An instruction on a lesser crime is appropriate where, as here, it is factually charged in the information and the state’s evidence is not so conclusive as to negate or exclude guilt on any lesser crime. Here conceivably the jury might have entertained reasonable doubt as to defendant’s intent (as indicated, this was jury work), yet had it done so the only alternative was outright acquittal despite the fact defendant was charged with and shown to be guilty of a battery. Everything considered, we think defendant was entitled to an instruction on battery and was prejudiced by the trial court’s refusal to grant it.
The judgment is reversed and the cause is remanded with directions to grant new trial. | [
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Parks, J.:
Plaintiff, Sherman H. Sampson, has filed separate appeals from orders of the district court of Sedgwick County, Kansas, sustaining the motions of the defendants, James Rumsey and Keith Sanborn, to dismiss plaintiff’s actions for failure to state a claim upon which relief can be granted. The petition was framed in slander, conspiracy to slander, abuse of process, invasion of privacy, and intrusion on seclusion.
The plaintiff’s alleged causes of action arose out of the same trial, State of Kansas v. James Baker, et al., Sedgwick County District Court Case No. CR 10346. In his appeals plaintiff has raised substantially identical claims of error. The appeals were consolidated for oral argument and are consolidated for decision.
The facts may be summarized as follows: On July 15, 1974, the Sedgwick County district attorney’s office prepared a criminal complaint and issued a warrant charging James Baker and his wife with four counts of conspiracy to sell and the sale of heroin. The appellees-defendants (Keith Sanborn, the then Sedgwick County district attorney, and James Rumsey, an assistant district attorney) prosecuted the action. During the trial, the plaintiff Sampson was called as a witness for the state. The trial was before a jury which returned a verdict of “not guilty” for the Bakers.
The following statements were made by defendant Rumsey in his closing argument to the Baker jury. “If anybody ever smacks of public corruption, Sherman Sampson certainly did. . . . Sherman Sampson’s son got up here and testified and he told us Sherman Sampson was a liar. ... I went to great lengths to show he was a liar. He didn’t say what he was a liar about. He just said he lied. . . . Oh Sherman Sampson, see what a son of a bitch he is. . . .”
Plaintiff filed two four-count petitions (both petitions were later amended) to which each of the defendants filed a motion to dismiss. All four counts of the petition applied to defendant Sanborn, while only Counts II and III applied to defendant Rumsey.
Plaintiff next filed an affidavit of prejudice in the trial court seeking removal of all judges in the 18th Judicial District. It was plaintiff’s opinion that he could not get a fair and impartial trial because of the close relationship that had existed over the years between the judges and the district attorney. The affidavit was assigned to the Honorable William P. Meek of the 11th Judicial District for a determination of its legal sufficiency. Judge Meek ruled that the affidavit of prejudice was insufficient because K.S.A. 20-311f (a) does not allow the disqualification of more than one judge in any affidavit filed pursuant to K.S.A. 20-31 Id. Following this ruling, the case was reassigned to Judge Kline. The refusal to disqualify all the judges in the district is assigned as plaintiff’s first claim of error.
A primary rule for the construction of a statute is to find the legislative intent from the language, and where the language used is plain and unambiguous and also appropriate to an obvious purpose, the court should follow the intent as expressed by the words used. (State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P. 2d 1020; City of Overland Park v. Nikias, 209 Kan. 643, 498 P. 2d 56.)
K.S.A. 20-311f (a) provides:
“No party shall be granted more than one change of judge in any action, but each party shall be heard to urge his objections to a judge in the first instance: Provided, however, That a party shall have seven (7) days after pretrial, or after written notice of the judge to which the case is assigned or before whom the case is to be heard, whichever is later, in which the affidavit may be filed.”
We are unable to give the effect to the statute in question sought by plaintiff on the theory advanced that it applies to all judges in a multi-judge district. It is clear that the legislature used the word “judge” in a singular form to restrict the use of the affidavit of prejudice to the disqualification of only one judge.
Following a hearing on defendants’ motions to dismiss, the trial court sustained the motion of defendant Sanborn on Counts II, III, and IV and further sustained the defendant Rumsey’s motion on all counts. In dismissing these counts, the trial court found that the plaintiff had failed to state a cause of action against the defendants.
On December 10, 1975, Count I of plaintiff’s petition, which survived defendant Sanborn’s motion to dismiss, was dismissed without prejudice by the plaintiff with the approval of the defendant and the trial court, and is not part of this appeal.
Plaintiff argues that the trial court erred in dismissing Counts II, III, and IV of his amended petition. Counts II and III alleged slander, conspiracy to commit slander and abuse of process as to both Sanborn and Rumsey. Count IV alleged invasion of privacy and intrusion upon plaintiff’s seclusion against Sanborn only.
We consider first the dismissal of Counts II and III. In con sidering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff’s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept as true conclusory allegations as to the legal effect of events the plaintiff has set out, if these allegations do not reasonably follow from the description of what happened or if these allegations are contradicted by the description itself. (Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P. 2d 875, Syl. 3.)
The standards to be applied in establishing absolute immunity for prosecuting attorneys may be summarized by the following statements and authorities: In Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 142-143, 519 P. 2d 682, the court cited with approval the following rule of absolute privilege in judicial proceedings referred to in Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993:
". . . Judicial proceedings are absolutely privileged communications, and statements in the course of litigation otherwise constituting an action for slander, libel, or one of the invasion of privacy torts involving publication, are immune from such actions. They are privileged communications because of the overriding public interest in a free and independent court system. This absolute privilege extends immunity to parties to private litigation and to anything published in relation to a matter at issue in court, whether said in pleadings, affidavits, depositions or open court. (Weil v. Lynds, 105 Kan. 440, 185 Pac. 51.)”
Absolute privilege is founded on public policy and provides immunity for those engaged in the public service and in the enactment and administration of law. It is not intended so much for the protection of those engaged in that service as it is for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for recovery of damages. (Marney v. Joseph, 94 Kan. 18, 20, 145 Pac. 822.)
The rule is settled by our former decisions that a defamatory statement uttered by an attorney in the trial of a case is not actionable if it has reference to the cause under consideration, although false and malicious. (Latimer v. Oyler, 108 Kan. 476, 480, 196 Pac. 610.)
In Imbler v. Pachtman, 424 U. S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), the Supreme Court concluded that the prosecutor enjoys the same absolute immunity under the federal civil rights act as he did at common law:
“We conclude that the considerations outlined above dictate the same absolute immunity under [Title 42 U.S.C.] Sec. 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system. Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. With the issue thus framed, we find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor’s immunity from actions for malicious prosecution:
“ ‘As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.’ Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949), cert. denied, 339 U. S. 949 (1950).” (424 U. S. at 427-428.)
In approving a statement made by the Court of Appeals for the Second Circuit, the court in Imbler, supra, stated:
“In our opinion the law requires us to hold that a special assistant to the Attorney General of the United States, in the performance of the duties imposed upon him by law, is immune from a civil action for malicious prosecution based on an indictment and prosecution, although it results in a verdict of not guilty rendered by a jury. The immunity is absolute, and is grounded on principles of public policy.” (424 U. S. at 422.)
Based on these standards we conclude that the statements complained of in this case were made in a judicial proceeding, the defendants were clothed with absolute immunity, and the trial court was correct in dismissing these actions for failure of the plaintiff to state a cause of action against the defendants, Rumsey and Sanborn.
Having determined the controlling issue in this case, we now discuss briefly the remaining points raised on appeal.
Plaintiff asserts that the court-proceeding privilege just discussed goes only to utterances that are “relevant” to the lawsuit, and claims that the language complained of here was not relevant to the prosecution. Assuming for the sake of argument that the privilege is so limited, plaintiff conceded on oral argument that the statements made by the defendant Rumsey relating to “liar” and “public corruption” could be considered as an attack upon plaintiff’s credibility as a witness, and thus relevant. The main thrust of his argument is that the words “son of a bitch” were not relevant and are actionable.
In Moriarty v. Lippe, 162 Conn. 371, 294 A. 2d 326 (1972), the plaintiff, a Norwalk police officer, while attempting to have the defendant move her improperly parked car, was called a “stupid son of a bitch” and other derogatory names in front of an assembled crowd. The court said:
“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.
“We conclude, then, that none of the allegedly slanderous words could be considered actionable per se in any sense. The matter then becomes one of law for the court. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 612, 116 A. 2d 440; Bums v. Telegram Publishing Co., 89 Conn. 549, 552, 94 A. 917; Donaghue v. Gaffy, 54 Conn. 257, 266, 7 A. 552. The trial court erred in refusing to direct a verdict for the defendant Lippe on the slander count.” (p. 385.)
We find certain similarities between Moriarty and the present case. The statements were made in public, the utterances did not charge a crime or improper conduct or lack of skill or integrity in one’s profession or business, and there were no allegations of special damages.
The two cases are distinguishable in that the statements in the present case were made in a judicial proceeding where the speaker was clothed with absolute immunity.
Although we do not condone the use of such words, we agree with the Moriarty decision that the allegedly slanderous words are not actionable per se and the matter becomes one of law for the court. Furthermore, it would appear from common knowledge and experience that such words do not have the same meaning in today’s society as they did in the past. Hence, even if the expression were not privileged, the words were not actionable.
We now turn our attention to plaintiff’s argument that Count IV states a cause of action against the defendant Sanborn for invasion of privacy. Basically, plaintiff contends that defendant San- born had for several years conducted continuing investigations of his private and business affairs, ostensibly in Sanborn’s capacity as district attorney, but in fact such conduct was outside the scope of his authority.
Defendant Sanborn responds that his actions were within the scope of his authority as district attorney for Sedgwick County, Kansas.
It has long been recognized that the county or district attorney is the chief law enforcement official in his jurisdiction and that a criminal proceeding is a matter of state concern and the control of it is in the county attorney. (State v. Pruett, 213 Kan. 41, 515 P. 2d 1051; State v. Kilpatrick, 201 Kan. 6,439 P. 2d 99.) It is his duty to inquire into the facts of violations. If the inquiry disclose the fact that an offense has been committed, he must institute proceedings for its punishment. (State v. Trinkle, 70 Kan. 396, 78 Pac. 854.) By statute he is given the authority to conduct inquisitions and to grant immunity to witnesses. (K.S.A. 22-3101 and 22-3102.) The same policy considerations requiring absolute immunity for communications made during the course of a prosecution require immunity for conduct in investigations which may lead to a prosecution. We hold that the power of the district attorney to investigate alleged violations within his jurisdiction is unquestionable and his motive in so doing may not be the subject of a lawsuit against him.
Finally, plaintiff raises as one of his points of appeal that the trial court erred in denying his motion for leave to amend his petition. On oral argument, plaintiff conceded that he could not improve upon his previously amended petition. Such admission disposes of this point.
For the reasons set forth in this opinion, the judgment is affirmed as to both defendants. | [
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Parks, J.:
This is an action for damages resulting from personal injuries caused by a mob. The jury awarded a $2,500 judgment in favor of the plaintiff, Robert E. Jenkins. The city appeals.
Plaintiff, in the company of his teammates (the Barristers) and their scorekeeper, Murray Rhodes, were seated in the bleachers of the Bonner Springs Junior High School watching a basketball game between the Ghetto Gang and the Five. When one of the players on the Ghetto Gang threw an opposing player into the wall, Rhodes shouted, “Get that son of a bitch off the court.” A few minutes later the game was over and the offending player, Rodney McGee, and another player went over to Rhodes, threatened him and challenged him to a fight. Lynn Johnson, a Barrister player, attempted to calm things down. However, when he tapped McGee on the shoulder, McGee either pushed or hit Johnson causing him to land on the basketball court. A number of persons in the bleachers left their seats, converged upon the floor and attacked Johnson. Robert Jenkins went to Johnson’s rescue and the crowd turned on him. Jenkins was knocked down and 25 to 35 persons began hitting him, kicking him and tearing his clothes. By the time a Bonner Springs police officer, two Edwardsville reserve officers and two sheriff’s patrol cars arrived, the fracas was over. Jenkins was taken to a hospital where he was X-rayed and six to eight stitches were taken to repair a cut in his mouth. Other injuries included body bruises, damaged teeth and an apparent concussion or loss of consciousness.
Whether there was a mob as contemplated by K.S.A. 12-204 is not at issue before this court.
K.S.A. 12-203, which governs this case, reads:
“A city shall be liable in damages for injuries to persons or property caused by the action of a mob within the corporate limits of the city if the city police or other proper authorities of the city have not exercised reasonable care or diligence in the prevention or suppression of such a mob. The city shall have all of the defenses in such action that are available to parties in tort actions.”
Recovery under K.S.A. 12-203 requires that three things be established. First, the injury to persons or property must have been caused by the action of a mob. Second, the injury must have occurred within the corporate limits of the city. Third, it must be established that the city police, or other proper authorities of the city, did not exercise reasonable care and diligence in the prevention or suppression of such a mob. These three factors were sufficiently shown by the evidence.
The trial court was correct in identifying the controlling question as being whether the action or lack of action on the part of the city of Bonner Springs was reasonable. Defendant’s counsel agree but question whether the plaintiff sustained the burden of showing that the city did not act reasonably.
Relevant evidence is evidence having any tendency in reason to prove any material fact [K.S.A. 60-401(¿)]. In the instant case, the relevant evidence included evidence which would prove or disprove the reasonableness of the city’s actions under the circumstances. The plaintiff presented testimony regarding previous conduct of the Ghetto Gang team members to establish that the city was aware of their behavior and habit of creating disturbances. Such testimony was properly admitted and goes to the question of whether the city used reasonable care and diligence under the circumstances.
The controlling statute clearly imposes liability upon the city for negligence, which necessarily encompasses the issue of foreseeability or prior notice. We hold it was proper to submit to the jury the factual issues as to whether the city exercised reasonable care and diligence in preventing or suppressing a mob. Here, the jury in its province resolved that question in favor of the plaintiff.
Another issue presented concerns the instructions to the jury. Defendant alleges that the trial court erroneously instructed the jury as to the applicable law and refused to. give several of defendant’s requested instructions. Read as a whole, as well as individually, the trial court properly instructed the jury as to the applicable law.
Essentially, the city has argued the issue of foreseeability in three different aspects: sufficiency of evidence, admissibility of evidence, and propriety of instructions. We conclude that under the facts and circumstances of this case, no error which would warrant disturbing the judgment has been shown.
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Greene, J.:
Fort Hays State University (FHSU) appeals the district court’s order upholding an award of the Kansas Public Employee Relations Board (PERB) to FHSU’s former employee, Frank Gaskill, in the amount of $12,772.80 in damages as a result of a prohibited practice complaint made by the Fort Hays State University Chapter of the American Association of University Professors (AAUP). FHSU principally argues that PERB had no authority to award monetary damages to Gaskill under these circumstances. AAUP cross-appeals, arguing that PERB’s reduction in Gaskill’s damages from the $142,013.62 requested was not supported by the evidence or was otherwise arbitrary, capricious, and unreasonable. On our own motion, this court raised a question of our own jurisdiction because of a purported untimely filing by AAUP of its motion for reconsideration at the agency, and we requested supplemental briefs on the issue.
We conclude that the doctrine of unique circumstances is applicable, thus vesting jurisdiction in the agency and validating judicial jurisdiction, and we reverse the award of monetary damages to Gaskill as an unauthorized agency action.
Factual and Procedural Overview
This matter is before the court after a long and tortured procedural history through administrative and judicial appeals. The gravamen of this action is that FHSU failed to accord to AAUP its representational status of Gaskill in a grievance process initiated by Gaskill after FHSU decided not to extend a contract to Gaskill for tire 2001-02 academic year.
This appeal was preceded, however, by an informal grievance filed by Gaskill that led to the termination decision being upheld. Rather than exhaust his administrative remedies by perfecting a formal grievance, Gaskill filed an action in district court for breach of contract and wrongful termination of employment.
FHSU moved to dismiss this suit, alleging a failure to exhaust administrative remedies. The district court granted this motion, and this court affirmed the dismissal in Gaskill v. Ft. Hays State Univ., 31 Kan. App. 2d 544, 546, 70 P.3d 693 (2003), reiterating that “the [Kansas Judicial Review Act] KJRA is the exclusive remedy for professors claiming either wrongful termination or breach of contract against state educational institutions.”
Prior to the filing of Gaskilfs civil action in district court, AAUP filed a prohibited practice complaint with PERB, alleging that FHSU had engaged in ongoing violations of the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq., by failing and refusing “to accord to the charging party its representational status with regard to representation of Professor Frank Gaskill,” by failing and refusing “to provide information which the charging party needs in order to properly represent Dr. Gaskill,” and by unilaterally changing “terms and conditions of employment as they applied to Dr. Gaskill without meeting its obligation to first bargain in good faith with the charging party.”
After resolution of preliminary motions, an administrative law judge (ALJ) held an evidentiaiy hearing on the merits of AAUP’s complaint. The ALJ ultimately issued a 36-page initial order encompassing findings and conclusions detailing FHSU’s violations of K.S.A. 75-4333(b), awarding Gaskill $142,013.62 in damages, and ordering FHSU to cease and desist from such violations.
FHSU filed a petition for review of the initial order with PERB, which ultimately adopted the findings and conclusions of the ALJ and affirmed the relief granted, except the award of monetary damages to Gaskill. PERB characterized the award of damages to Gas-kill as moot and held that Gaskill’s breach of contract action was not before it. Critical to our jurisdiction, AAUP then filed its motion to reconsider this final order 1 day late but faxed a copy to the agency within the deadline. The motion to reconsider was denied.
AAUP then filed in district court its petition for judicial review of the final order, arguing that PERB’s decision to reverse the monetary damage award was improper for a variety of reasons. The district court remanded the matter to PERB for further proceedings as to remedy, concluding that PERB’s decision reversing the monetary award was devoid of facts supported by the record and unsupported by policy. On remand PERB awarded damages to Gaskill but reduced his requested award of $142,013.62 to $12,772.80.
FHSU then filed its second petition for judicial review, contending the damage award was erroneous, and AAUP filed its own petition for judicial review, contending the monetary award should be modified to “reinstate” the entire $142,013.62. On this second judicial review, the district court essentially affirmed PERB’s final order awarding Gaskill $12,772.80. Both parties then filed respective notices of appeal.
After the appeals were docketed in this court, we issued a show cause order directing the parties to show cause why the appeal should not be dismissed for lack of appellate jurisdiction due to an apparent belated filing by AAUP of its motion to reconsider PERB’s final order. The parties’ responses led this court to order supplemental briefing on the issue of jurisdiction.
Does this Court Have Jurisdiction to Consider this Appeal, Given Belated Filing of a Jurisdictional Motion to Reconsider with the Agency?
We must initially address the jurisdiction issue framed by AAUP’s apparent belated filing of a motion to reconsider at PERB. FHSU argues that the timely fax-filed motion to reconsider was not authorized by the agency’s regulations, and the only such motion that was properly filed by AAUP was filed 1 day beyond the statutory 15-day deadline, thus depriving the agency of its jurisdiction to act on the motion and requiring any petition for judicial review of the final order to be filed within 30 days after service of that order. Because the petition for judicial review was not filed for 5 months following the final order, FHSU argues that all agency and judicial actions following the untimely motion for reconsideration should be deemed null and void. Obviously, our jurisdiction to address the merits of this appeal depends on the propriety of the fax-fifing of AAUP’s motion for reconsideration.
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 774, 148 P.3d 538 (2006). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Here, PERB served its first final order (affirming the presiding officer’s initial order except for reversing the monetary damages awarded to Gaskill) by mail on August 18, 2004. Adding 3 extra days because the order was served by mail (see K.S.A. 77-531), 18 days following this date was Sunday, September 5, 2004. Because of the Labor Day weekend that year, the deadline would have been extended until Tuesday, September 7, 2004. On September 7, 2004, AAUP faxed a motion to reconsider to PERB, and PERB stamped it “RECEIVED” the same day. AAUP also sent PERB a copy via the mail that was stamped “RECEIVED” by PERB on September 8, 2004. Thus, only the faxed copy of the motion was timely received by PERB.
AAUP argues that it fax-filed the motion for reconsideration because its counsel had a good-faith belief that fax filings were acceptable.
“Before faxing the Request for Reconsideration on September 7, 2004, Counsel for [AAUP] has fax filed pleadings with the PERB for approximately 8 years and has been informed that this is an acceptable method of filing pleadings. Prior to faxing the request on September 7, 2004, Counsel contacted PERB’s Office Manager, Ms. Sharon Tunstall and verified that it would be acceptable to fax the Request for Reconsideration .... Based on these forgoing facts, the acceptance of fax filing is based upon the expressed authorization and or waiver by the PERB.”
Fax filing is not within the acceptable means for service of pleadings with PERB according to its own regulations. K.A.R. 84-2-1 sets forth the requirements for service of pleadings for PERB and provides that “[t]he moving party and respondent in any action shall be required to file the original and five copies of any pleadings with the board or its designee either in person or by certified mail.” (Emphasis added.) K.A.R. 84-2-1(b). Despite this requirement, PERB apparently accepted, considered, and denied AAUP’s faxed motion to reconsider on its merits, rather than rejecting it as not properly filed and rejecting the mailed copy as not timely filed. AAUP argues that PERB should be deemed to have waived its specific service regulations. Indeed, we note that PERB’s regulations are prefaced with a general waiver provision:
“Waiver. In the event that the application of these rules would not be feasible or would work an injustice, the rules may be waived or suspended by the board at any time or in any proceeding unless such action would deprive a party of substantial rights.” K.A.R. 84-1-2(c).
Does K.S.A. 60-205 Apply to Permit Fax Fifing?
AAUP initially argues that K.S.A. 60-205(e) applies and allows for fax fifing in administrative matters. This statutory subsection provides:
“Filing with the court defined. The fifing of pleadings and other papers with the court as required by this article shall be made by fifing them with the clerk of the court. In accordance with K.S.A. 60-271 and amendments thereto and supreme court rules, pleadings and other papers may be filed by telefacsimile communication.”
AAUP’s assertion that fax filing was valid here under K.S.A. 60-205(e) is unpersuasive. AAUP cites Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 106 P.3d 492 (2005), to support its assertion, but we do not find this case controlling or instructive.
First, Pieren-Abbott addresses the use of the Code of Civil Procedure to supplement the KJRA, rather than the Kansas Administrative Procedure Act (KAPA) and PERB regulation at issue here. 279 Kan. at 97. AAUP cites no case law showing that KAPA may be supplemented by the Code of Civil Procedure, and it should be noted that KJRA deals with judicial review, whereas KAPA deals with procedures to be employed by administrative agencies.
Second, Pieren-Abbott suggests that the Code of Civil Procedure may be used by the district court to supplement the KJRA if the Code provision is a logical necessity “that is not addressed within the KJRA.” 279 Kan. at 97. Such supplementation is not warranted where the agency already has clear and specific rules. We hold that provisions of the KAPA do not supplement the procedural regulations of an agency in an area where those regulations already provide clear and specific guidance.
For these reasons, we reject AAUP’s suggestion that K.S.A. 60-205(e) controls and permitted the fax filing of its motion for reconsideration.
Does the Doctrine of Unique Circumstances Apply?
AAUP alternatively argues that we should invoke the doctrine of unique circumstances in order to save its fax filing.
The doctrine of unique circumstances is one of specific and limited application, and whether it applies is a question of law subject to de novo review. The doctrine generally applies to permit an untimely appeal in which the delayed fifing resulted from (1) the appellant’s good-faith and reasonable belief that the judicial action seemingly extending the time for fifing was valid; (2) the perceived extension was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant filed the appeal within the extension. Finley v. Estate of DeGrazio, 285 Kan. 202, 207, 170 P.3d 407 (2007). Although the factual scenario here does not involve a request for an extension of time or judicial action extending the statutory time for appeal, our Supreme Court has previously applied the doctrine in the context of an untimely petition for reconsideration before an agency. See In re Tax Appeal of Sumner County, 261 Kan. 307, 316-17, 930 P.2d 1385 (1997).
Application of the doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, and nonparty error. Finley, 285 Kan. at 209. Although our Supreme Court seems to have recognized in Finley some continued vitality of the doctrine, the court may have signaled some further restriction in its application by citing with apparent approval Bowles v. Russell, 551 U.S. 205, 214, 168 L. Ed. 2d 96, 127 S. Ct. 2360 (2007), where the United States Supreme Court declared “illegitimate” any application of the doctrine to jurisdictional deadlines. At a minimum, our Supreme Court held in Finley that the doctrine has application only where an untimely filing was the result of nonparty error, but where counsel has engaged in a reckless disregard for the facts in representations to a court, the doctrine may not be applied. 285 Kan. at 211-13.
PERB has itself created a problem for the parties and this court by its apparent encouragement of fax-filing without a corresponding change in its formal regulations. As cited above, the regulation in effect clearly restricts service of pleadings on the board to be made “either in person or by certified mail.” K.A.R. 84-2-1(b). Given the formal regulation that clearly restricts service to methods that do not include fax-filing, should the reliance by AAUP counsel on both “long-standing practice” and verbal encouragement to the contrary be considered “nonparty error”?
We might view the situation differently if there had been no specific waiver provision in PERB’s regulations. As also cited above, PERB regulations provide for waiver or suspension of its procedural rules where application “would not be feasible or would work an injustice.” K.A.R. 84-1-2(c). Even if counsel for the AAUP had been familiar with the restrictive regulation as to service, it was not unreasonable for counsel to view the agency’s encourage ment for fax filing as a waiver or suspension of that regulation in order to avoid an injustice to a filer making inquiry on the last day of the period for filing. Distinguishing counsel’s conduct from that at issue in Finley, here there was no conduct of counsel that could be characterized as reckless or misleading.
Limiting the application of the doctrine to the precise circumstances defined by our Supreme Court, we believe the doctrine should be applied here because (1) the AAUP’s fax filing appears to have been in good faith and based on a reasonable .belief that the agency action encouraging or permitting such filing was valid based either on long-standing practice or an express waiver of the more restrictive regulation; (2) the perceived validity of this filing methodology did not extend the time for filing more than 30-days, and AAUP counsel was informed of the methodology prior to expiration of the period for a timely filing; and (3) AAUP effected the fax filing within the permissible period. See Finley, 285 Kan. at 207.
. Moreover, we note that our Supreme Court applied the doctrine under veiy similar circumstances in In re Tax Appeal of Sumner County, 261 Kan. 307, 316-17, 930 P.2d 1385 (1997). The Sumner County case involved an agency advising parties of an erroneous period within which to file motions for reconsideration because the agency regulation was inconsistent with a revision in KAPA. Under these circumstances, the court held that reliance on the erroneous statement from the agency should not deprive a party of the right to an adjudication on the merits, even though there was an express statutory provision that should have been known by that party. See Slayden v. Sixta, 250 Kan. 23, 30, 825 P.2d 119 (1992).
We apply the doctrine of unique circumstances in holding that AAUP’s fax filing of its motion for reconsideration was sufficient to vest jurisdiction on the agency and validate jurisdiction of both agency and judicial action thereafter.
Was HERB Authorized to Award Monetary Damages to a Nonparty Under These Circumstances?
FHSU challenges the award of monetary damages to Gaskill on numerous grounds, but the essential question before us is whether PERB may properly award monetary damages to a nonparty for breach of an employment contract or wrongful termination in order to remedy a prohibited practice under PEERA, where the nonparty’s private cause of action seeking such damages has previously been dismissed for failure to exhaust administrative remedies in the exclusive forum for same. Although we recognize that the damages awarded were apparently intended to rectify or punish a prohibited practice, we cannot ignore the fact that they were measured by Gaskill’s loss of his employment and awarded to him even though he was not a party to the proceeding.
Do We Have Jurisdiction to Address This Issue?
Before we analyze the merits of FHSU’s arguments, we should first note AAUP’s cross-appeal challenge to our jurisdiction to consider them because FHSU failed to timely seek judicial review of PERB’s first final order.
PERB’s first final order determined that FHSU committed a prohibited practice, but reversed the presiding officer’s damage award. As FHSU states, it ultimately appealed the prohibited practice finding, but only the damage issue. Because PERB’s first final order vacated the damage award, FHSU had no “immediate and pecuniary” interest to justify an appeal of that issue at that time. It was only after PERB issued a damage award following remand from the district court that FHSU had the necessary interest to appeal.
It is well settled that a party has no right or obligation to appeal a judgment that is not adverse to its interests.
“Ordinarily a party cannot appeal from a judgment unless it has a particular interest therein and is aggrieved or prejudiced thereby. Ordinarily its interest must be immediate and pecuniary. [Citation omitted.]. Appeals are not for the purpose of settling abstract questions, however interesting or important to the public generally, but only to correct errors injuriously affecting the appellant. [Citation omitted.]” Blank v. Chatola, 234 Kan. 975, 978, 678 P.2d 162 (1984).
Thus, this court has jurisdiction to consider FHSU’s appeal.
Does PEERA Contemplate Awards to Employees of Monetary Damages on Contract Claims as the Measure of Damages for Prohibited Practice Violations?
Although there seems to be no dispute that there is no clear and express statutory authorization to award monetary damages to Gas-kill, AAUP and PERB argue that the authority is clear based upon PEERA’s broad language granting authority to PERB “as appropriate to effectuate the purposes and provisions of this act.” K.S.A. 2007 Supp. 75-4323(e)(3). FHSU challenges such broad authority as insufficient to support the award of monetary damages where the statutory scheme contains no express provision authorizing such an award. The ultimate question framed requires that we interpret and apply statutes, so we exercise unlimited review. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).
Statutory Overview
We begin by examining the overall statutory structure and purpose of PEERA, as stated by the legislature.
“[I]t is the purpose of this act to obligate public agencies, public employees and their representatives to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law. It is also the purpose of this act to promote the improvement of employer-employee relations within the various public agencies of the state and its political subdivisions by providing a uniform basis for recognizing the right of public employees to join organizations of dreir own choice, or to refrain from joining, and be represented by such organizations in their employment relations and dealings with public agencies.” (Emphasis added.) K.S.A. 75-4321.
The term “grievance” is defined for purposes of the Act as
“a statement of dissatisfaction by a public employee, supervisory employee, employee organization or public employer concerning interpretation of a memorandum of agreement or traditional work practice.” K.S.A. 75-4322(u).
Our Supreme Court has characterized the purpose of PEERA as follows:
“The Kansas [PEERA], K.S.A. 75-4321 et seq., is a hybrid, containing some characteristics of pure ‘meet and confer acts with other characteristics of‘collective bargaining.’ It imposes upon both employer and employee representatives the obligation to meet, confer and negotiate in good faith, with affirmative willingness to resolve grievances and disputes, and to endeavor to reach agreement on conditions of employment.” Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, Syl. ¶ 1, 667 P.2d 306 (1983).
In addition to authority provided in other sections of the Act, K.S.A. 2007 Supp. 75-4323(e) expressly authorizes PERB (1) to establish procedures for the prevention of improper public employer and employee organization practices (K.S.A. 2007 Supp. 75-4323[e][1]); (2) to conduct of hearings and inquiries (K.S.A. 2007 Supp. 75-4323[e] [2]); and (3) to “[m]ake, amend and rescind such rules and regulations, and exercise such other powers, as appropriate to effectuate the purposes and provisions of this act.” K.S.A. 2007 Supp. 75-4323(e)(3). Additionally, the board is to intervene in the public employer-public employee relations of political subdivisions to the minimum extent possible to secure the objectives of the Act. K.S.A. 2007 Supp. 75-4323(f).
Prohibited practices are specifically defined at K.S.A. 75-4333, and any controversy concerning such practices may be submitted to PERB for hearing pursuant to KAPA. K.S.A. 75-4334(a). PERB’s authority in connection with such controversies is defined as follows:
“The board shall either dismiss the complaint or determine that a prohibited practice has been or is being committed. If the board finds that the party accused has committed or is committing a prohibited practice, the board shall make findings as authorized by this act and shall file them in the proceedings.” K.S.A. 75-4334(b).
The Act also provides that in the case of an attempt by a public employer to institute a lockout or by a public employee (or employee organization) to engage in a strike, “the aggrieved party is authorized to seek relief in district court in the manner provided” while proceedings remain pending before the board. K.S.A. 75-4334(d).
Is This Award Contemplated by the Statutory Scheme?
Key to the statutory scheme is that neither party has identified any aspect of the Act authorizing an award of monetary damages in circumstances such as these. AAUP argues that PERB’s author ity for such an award is implicit within K.S.A. 2007 Supp. 75-4323(e)(3), authorizing the exercise of “such other powers as appropriate to effectuate the purposes” of PEERA. We disagree for a host of reasons.
First, we believe the purposes of PEERA do not contemplate providing a forum for private causes of action sounding in contract and seeking monetary damages by or on behalf of a public employee against a public employer. The stated purposes of the Act are limited to fostering discussions as a vehicle to resolve grievances between public employees and employers, improving employee-employer relations within state agencies and subdivisions, and providing recognition of the right of public employees to be organized, or not, as they choose. Punishing a prohibited practice with an award to the affected employee measured by his or her breach of contract damages is simply outside of the stated purposes of the Act.
Second, we note that there is no contemplation by the Act, either express or implied, of PERB entertaining controversies where the gravamen is breach of contract or wrongful termination of the employee. In fact, PERB’s jurisdiction is limited by K.S.A. 75-4334 to controversies concerning prohibited practices, and wrongful termination of an employment contract is not among the listed “prohibited practices” specified by K.S.A. 75-4333.
Third, PERB’s authority in resolving controversies does not include an award of damages but rather is limited by statute to “[making] findings as authorized by this act and [filing] them in the proceedings.” K.S.A. 75-4334(b). Had the legislature intended PERB to act as a forum for vindication of employee rights to damages upon a breach of employment contract, such authority could easily have been included in this or another provision of the Act. Once again, there is simply no apparent legislative contemplation for PERB to vindicate public employee contract rights through the award of monetary damages.
Fourth, we do not view PERB’s award of monetary damages to a public employee in this context to be consistent with the legislative restriction for intervention “to the minimum extent possible to secure the objectives expressed in [the Act].” K.S.A. 2007 Supp. 75-4323(f). In fact, the award of monetary damages measured by wrongful termination of an employment contract is arguably the ultimate intervention in employee-employer relations, an intervention that cannot be squared with involvement “to the minimum extent possible.”
Fifth, we are troubled that the measure of damages assessed against FHSU and the award to Gaskill serve to provide a remedy not for the AAUP, but for Gaskill himself, thus providing a remedy beyond the exclusive remedy available to him upon an exhaustion of his administrative remedies — -judicial review pursuant to the KJRA. In Gaskilfs prior appeal, our court was quite clear in holding that the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA) is the exclusive remedy for professors claiming either wrongful termination or breach of contract against state educational institutions. Gaskill, 31 Kan. App. 2d at 546.
And, finally, we are troubled by the lack of causal nexus between FHSU’s prohibited practice violations and the award of damages based on Gasldlfs loss of his employment. According to the hearing officer, prohibited practice violations by FHSU included (1) denial of AAUP of its right to represent Gaskill in the grievance process; and (2) refusal to allow Gaskill to proceed to the formal hearing process without first meeting and conferring with AAUP. Neither of these violations established that Gaskill should not have been discharged by FHSU, thus entitling him to monetary damages for his loss of employment.
The utter disconnect between the prohibited practice violation and the damage award to Gaskill is demonstrated by AAUP’s brief on appeal that suggests the violation “caused damage to all members of the bargaining unit.” While this may be true, we fail to appreciate why such widespread damage should be measured and awarded to Gaskill as if he would have prevailed in his breach of contract action. In fact, even if AAUP had been allowed to represent Gaskill and if there had been a proper meet and confer proceeding, this certainly would not have established that Gaskill was entitled to monetary damages based upon his loss of employment at FHSU. The award of monetary damages under these circum stances demonstrates that PERB acted in a manner beyond its statutory authority.
Are Authorities Construing Similar State and Federal Acts Instructive Here?
To further support its position, PERB encourages us to consider concepts parallel to those in PEERA from the Kansas Professional Negotiations Act, K.S.A. 72-5413 et seq. (PNA), and the National Labor Relations Act (NLRA), 29 U.S.C. § 151 (2000) et seq., and authorities construing same. The PNA is a public sector labor law, but the NLRA is applicable to private employment. See City of Wichita v. Public Employee Relations Bd., 259 Kan. 628, 633, 913 P.2d 137 (1996).
PERB admits that PEERA requires “fundamental distinctions” between private and public employment to be recognized, and states that “no body of federal or state law applicable wholly or in part to private employment shall be regarded as binding or controlling precedent.” See K.S.A. 75-4333(e). Our Supreme Court has been mindful of this restriction and has decided whether to apply NLRA concepts to PEERA depending on the issue presented. See City of Wichita, 259 Kan. at 633-34 (refusing to apply NLRA concepts of single employer and joint employer in deciding whether city was obligated to meet and confer with airport authority safety officers); but see Kansas Ass’n of Public Employees v. Public Service Employees Union, 218 Kan. 509, 517, 544 P.2d 1389 (1976) (applying federal NLRA decisions to a PEERA case involving representation elections as a “universally applicable” rule of “fundamental fair play”).
PERB argues that PEERA and the NLRA are both remedial legislation “designed to promote harmonious relations between employers and their employees, and to assuage the harms resulting from labor strife.” PERB recognizes, however, that the NLRA, unlike PEERA, expressly provides the National Labor Relations Board with the authority to award the remedies of back pay and reinstatement, a key distinction.
PERB then brings to our attention that our Supreme Court allowed a monetary remedy under the PNA in U.S.D. No. 279 v. Secretary of Kansas Dept. Of Human Resources, 247 Kan. 519, Syl. ¶ 5, 802 P.2d 516 (1990), and that the statutory authority of the Secretary was not unlike that provided to PERB in PEERA. The most obvious difference between U.S.D. No. 279 and this matter, however, is that the monetary award endorsed by our Supreme Court was to a teachers’ association that had itself been the victim of a prohibited practice. Additionally, the. language of the PNA differs from that in PEERA, in that the PNA directs the Secretary of Human Resources, in dealing with a prohibited practice complaint, to “either dismiss the complaint or determine that a prohibited practice has been or is being committed, and shall enter a final order granting or denying in whole or in part the relief sought.” (Emphasis added.) K.S.A. 72-5430a(b).
Moreover, it is significant to note that the PNA language is identical to the language of K.S.A. 75-4334, until it gets to the final action authorized. In the PNA, the Secretary is authorized to grant or deny relief, while in PEERA the PERB is authorized only to make and file findings. The U.S.D. No. 279 decision is based upon the “broad power” granted to the Secretary under K.S.A. 72-5430a to “fashion appropriate relief.” 247 Kan. 532. Given that the language in the PEERA version is significantly different, this undermines the value of U.S.D. No. 279 as justification for PERB’s authority to award a make-whole monetary remedy.
Finally, our Supreme Court has also cautioned that there is no indication the legislature intended its actions as to the PNA to have controlling significance with regard to PEERA, or vice versa. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 818, 667 P.2d 306 (1983).
We are not persuaded that similarities between PEERA and PNA or NLRA dictate that PERB should be authorized to award monetary relief under the circumstances of this appeal. Not only do the enactments have critical differences, PERB cites no authority under PEERA that supports monetary damage relief to a public employee who is not a party to the proceedings upon a showing of prohibited practice violations by his or her employer, especially where the relief awarded is intended to make whole the employee for his or her loss of employment.
For all of these reasons, we hold that PERB was not authorized to award monetary damages to Gaskill under these circumstances, thus requiring that we reverse the damage award. Other issues framed by the cross-appeal are rendered moot by this holding.
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Marquardt, J.:
Tyrone Leaper appeals his conviction for second-degree murder and his sentence of 620 months’ imprisonment. We affirm.
On May 12, 2006, Leaper went to his sister Erica’s apartment. Leaper’s brother, Roderick, and Christopher Lovitch, Roderick’s girlfriend’s brother, were sitting on the stairs outside Erica’s apartment.
When Leaper walked by Roderick and Lovitch, Lovitch said Leaper was “in violation” and started a fight with Leaper. The fighting continued and ended up on Georgetta Laster’s porch. Laster told the men to get off of her porch and then she called the police. The two men separated, and Leaper went inside Erica’s apartment to take care of his bleeding eye.
Leaper testified that when he went outside again, Lovitch jumped on him. The two began fighting again. Then Leaper’s cousin, Travis, arrived. Laster watched the fight from her window and testified that Leaper came out of the house with a pole and attempted to attack Lovitch. Laster noticed that one of Leaper’s eyes was swollen shut. Leaper testified that he was attempting to walk away.
Laster testified that she was on the phone with police when she heard a gunshot. Laster’s son, Ismail Markhal Hill, testified that he saw Leaper shoot a gun. Nina Jensen, Laster’s mother, also testified that Leaper shot the gun.
Leaper denied shooting Lovitch and testified that during the fight, Lovitch was slamming him against the apartment. He heard the gunshot only as his vision came back. Leaper testified that a male named Mike was there and he had a gun.
Roderick testified that Travis had a gun. He testified that he walked into Erica’s apartment and was on the phone with Lovitch’s sister, Misty Murphy, when he heard the gunshot. He testified that he did not see who shot the gun. Further, Roderick testified that when he went into the apartment to use the phone, Leaper was on the gi'ound next to the neighbor’s house. Roderick testified that he turned around and saw Lovitch coming inside and noticed he was shot. However, Roderick’s testimony was inconsistent with Murphy’s testimony. Muxphy testified that Roderick told her, “Tyrone shot your brother.” Rodexick never mentioned Travis to the detectives, but he did say that he saw Leaper walking towards the hill.
An autopsy revealed that Lovitch died from a gunshot wound to the chest that hit him at an angle. Officer Bruce Cobbins of the Kansas City Police Department testified that Lovitch was inside the apartment with the screen door shut when he was shot. Officer Cobbins testified that the shooter must have stood at a location higher than the door. The gun used in the shooting was never recovered. Nonetheless, Officer Cobbins believed the physical evidence was consistent with the witnesses’ statements.
After Roderick testified during trial that Travis was the only person with a gun, the State played the tape of Roderick’s earlier interview with police and noted that Roderick did not mention Travis in the tape. The State moved to admit the tape.
Defense counsel objected to admission of the tape, arguing that Roderick was testifying differently at trial than he did in his statement to die police. The district court allowed the State to put into evidence only the portion of the tape that could impeach Roderick’s trial testimony. The district court allowed the State to ask Roderick about specific statements he made.
The State asked Roderick if he remembered telling detectives about Leaper being up on the hill when he heard the shot. When Roderick again gave conflicting testimony, the State again offered the entire tape into evidence. The State argued that it was important for the jury to hear the discrepancies between Roderick’s statements on the tape and his testimony. The district court took the motion under advisement.
At the end of the day, the judge released the jury and requested a copy of Roderick’s statement and the tape. The State was unable to find the tape and questioned whether Roderick took it. The bailiff notified the district court and the parties that a juror told him that Roderick took the tape and put it in his pocket as he left the witness stand. The parties questioned Roderick about the whereabouts of the tape and a deputy searched him. The tape was never found.
The next morning, Leaper filed a motion for a mistrial, arguing that since the tape was missing, there would be uncertainty about Roderick’s testimony. He argued that at the very least, he should have an opportunity to question the juror to find out what he or she saw and determine if other jurors saw Roderick take the tape. The district court denied Leaper’s motion and stated that the jury has a duty to determine credibility of witnesses. Further, the district court noted that although a juror stated he or she saw Roderick take the tape, it is not uncommon for witnesses to take exhibits. The district court also denied the State’s motion to have the tape admitted because the tape was missing.
At the end of the trial, Leaper filed a motion for a new trial arguing, among other things, that the juror witnessing Roderick taking the tape affected his case. The State responded that Roderick’s taking of the tape was part of his demeanor and the jury could consider it just like any other demeanor evidence. The district court denied Leaper’s motion for a new trial, stating it had already provided its reasons and had determined that no prejudice occurred.
The jury convicted Leaper of second-degree murder and sentenced him to 620 months’ imprisonment. Leaper timely appeals.
I. Motions for a Mistrial and for a New Trial
On appeal, Leaper raises the same arguments that he raised in his motions for a mistrial and for a new trial.
A motion for mistrial and/or a new trial is reviewed under an abuse of discretion standard, and the party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced. State v. Albright, 283 Kan. 418, 425-26, 153 P.3d 497 (2007). Under K.S.A. 22-3423(c), a district court may order a mistrial at any time if prejudicial conduct, inside or outside the courtroom, makes it impossible to proceed without injustice to either party. Juror misconduct will not be a ground for mistrial, however, unless the party claiming error shows that such error substantially prejudiced his or her rights. State v. Wimbley, 271 Kan 843, 851-52, 26 P.3d 657 (2001).
“A high degree of appellate deference is allowed a trial judge’s exercise of discretion in assessing the texture and feel of the trial, the credibility of witnesses, and the perceived impact of an allegedly prejudicial event. In these circumstances, appellate decisions often recognize a presumption of validity in the exercise of discretion because of the superior vantage point of the trial judge. The judge’s decision will be affirmed even though the appellate tribunal might otherwise be inclined to take a precisely opposite view of the matter.” Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993).
There is no Kansas case dealing with the issue of whether a juror observing a witness taking evidence from the witness stand constitutes misconduct. However, there are cases in Kansas dealing with juror misconduct which indicate that the juror’s observation in Leaper’s case was not misconduct. Juror misconduct usually involves a juror engaging in conversation with third parties, instigating his or her own investigation into the facts of the case, or consulting outside materials to obtain an understanding of key issues of the case; not one where a juror observes a witness’ behavior during trial.
In Saucedo, a wife initiated a medical malpractice case against a doctor after her husband died from cardiac arrhythmia. After a verdict for the defendant, the plaintiff alerted the district court judge to the fact that jurors admitted misconduct during deliberations. One juror spoke with his daughter about the plaintiffs son’s ability to speak Spanish, which was an issue in the case, while another juror told members of the jury that the victim’s uncle was a cocaine dealer and speculated that he died of a cocaine overdose. The district court found the statements constituted misconduct but also believed the misconduct did not substantially affect the jury’s determination regarding the cause of the victim’s death. Our Supreme Court found the jurors’ actions constituted misconduct and the jury violated its oath when discussing the case with nonjurors. The court stated:
“A party is denied the right to a fair trial when a juror introduces evidence on material issues of fact to the jury during its deliberations. Plaintiff did not receive a fair trial because, under the facts of this case, the two incidents of jury misconduct introduced extraneous evidence during jury deliberations which had a substantial effect upon the issues and the validity of the verdict.” (Emphasis added.) 252 Kan. at 733.
In State v. Garza, 26 Kan. App. 2d 426, 429, 991 P.2d 905, rev. denied 267 Kan. 890, cert. denied 528 U.S. 929 (1999), a defendant alleged juror misconduct when an advance sheet was left in the jury room and tabbed to a case directly on point, and the jurors admitted to reading and discussing the case. This court held that the reading of the case constituted misconduct and the fact that the case explained the legal process demonstrated that the misconduct was prejudicial. This court found it particularly grievous that the district court left the advance sheet in the juiy room, rather than the jurors themselves “[finding] extrinsic legal materials and reading] through them.” (Emphasis added.) 26 Kan. App. 2d at 430-31.
Roderick’s actions and testimony were not extrinsic evidence. His actions and testimony were capable of being observed by the entire jury. This was not an act of a juror.
On the other hand, in State v. Everson, 229 Kan. 540, 543, 626 P.2d 1189 (1981), the victim, who was on the witness stand in the middle of cross-examination, began crying when the district court announced that it would adjourn for the day. The Kansas Supreme Court found that there was no proof of substantial prejudice to the appellant and held that the district court did not abuse its discretion in denying defendant’s motion for a mistrial.
In State v. Cheats, 231 Kan. 161, 165-66, 643 P.2d 154 (1982), the defendant requested a mistrial after a child witness cried and sobbed on the witness stand. The district court denied the motion, stating it did not observe the ciying. The Kansas Supreme Court affirmed and held that the district court is in the best position to observe the demeanor of witnesses and determine whether the accused sustained substantial prejudice. 231 Kan. at 166.
The facts in Leaper’s case are similar to those in the Everson and Cheats cases, where our Supreme Court found that the behavior of a witness on the stand was a part of the witness’ demeanor and did not cause the defendant prejudice. Here, the jury observed Roderick’s actions during trial. Unlike Saucedo and Garza, where jurors engaged in behavior outside the courtroom, the juror here observed a witness during the trial.
Unlike the juries in Saucedo and Garza, the jury in Leaper’s case was not influenced by extrinsic evidence, but was considering the witness’ demeanor. “[T]he credibility of a witness is a question for the jury, to be weighed and decided after the jury observes the demeanor of the witness at the trial of the accused.” State v. Holloway, 219 Kan. 245, 253, 547 P.2d 741 (1976). “Demeanor” is defined as “[ojutward appearance or behavior,” and “demeanor evidence” is “[t]he behavior and appearance of a witness on the witness stand, to be considered by the fact-finder on the issue of credibility.” (Emphasis added.) Black’s Law Dictionary 463, 596 (8th ed. 2004). On the other hand, “extrinsic evidence” is defined as “[e]vidence that is not legitimately before the court.” Black’s Law Dictionary 597 (8th ed. 2004). These definitions make clear that the juror considered Roderick’s behavior as demeanor evidence, like the evidence in Everson and Cheats, and not as extrinsic evidence, like the evidence in Saucedo and Garza.
It is not misconduct for a juror to observe the behavior of a witness on the witness stand; that very observation is required of the juror to make a credibility assessment of the witness. Further, all jurors may observe the same or different behaviors of the witnesses in assessing credibility. Therefore, absent a showing of misconduct by a juror, Leaper cannot demonstrate that his rights were substantially prejudiced, and this court is not required to conduct further analysis.
Although Leaper argues that this court cannot determine whether his rights were prejudiced without a hearing to fully investigate and question the juror, our Supreme Court has held, when considering communications between jurors and third parties, district courts have discretion in determining whether to questioii jurors regarding such communications. State v. Overton, 279 Kan, 547, 557, 112 P.3d 244 (2005). This court cannot find an abuse of discretion by the district court for failing to investigate actions that did not constitute misconduct. See State v. Albright, 273 Kan. 811, 825-26, 46 P.3d 1167, cert. denied 537 U.S. 962 (2002). The district court did not abuse its discretion for failing to question the juror.
Finally, Leaper fails to show how the juror’s observation of Roderick was relevant to his trial, or how it would have affected the outcome of his trial. The evidence against Leaper was overwhelming, considering that he was engaged in a physical fight with Lovitch moments before his death, and neighbors identified Leaper as the shooter. Further, Cobbins found the neighbors’ statements consistent with the physical evidence.
Although Roderick attempted to testify at trial that Travis was the shooter, he admitted that he never told the police about Travis when they interviewed him on the day of the shooting. The tape was played for Roderick during a trial break because he claimed that he could not read the transcript of his statement to the police. The jury did not hear the tape.
The actions by Roderick in taking the tape would only have contributed to his already negative demeanor and weak credibility. Thus, the action was not only irrelevant to Leaper’s case, it was insignificant compared to the evidence at trial and Roderick’s previous testimony.
Because there was no juror misconduct, we find that the district court did not abuse its discretion in denying Leaper’s motions for a mistrial and a new trial.
II. Use of Tape of Telephone Conversations and their Transcripts
Before trial, the State filed a motion to determine the admissibility of Leaper s recorded and transcribed phone calls made while he was in custody in the Wyandotte County jail. The motion was heard prior to trial, and the district court stated that it needed to review the statements before determining their probative value. There is nothing else in the record on appeal regarding this issue.
At trial, Captain James Eickhoff of the Wyandotte County Sheriffs Department testified that inmates are assigned PIN numbers when they are booked into jail so the sheriff can track their phone calls. Captain Eickhoff testified that inmates are notified before making a call that the call may be taped. There are signs posted in the calling areas saying that calls are subject to monitoring and recording. Eickhoff had provided the State with copies of calls made by Leaper. The State played the tape of the calls, and the tape was admitted into evidence as Exhibit 22 without objection.
During the phone calls, Leaper made the following statements:
1. "Travis wadn’t [sic] even there.”
2. “All they need to do keep they mouth closed, you know what I'm saying?”
3. “The only thing that really got me in here is that stuff that lady said, she seen me shoot. That's the only thing that got me here. If y’all go talk to her and she shut her mouth, I can come — I can be home if she can go up there and tell them she said the wrong thing, that they got the wrong person or somethin’. If y’all can get her to say that, I can come home tomorrow.”
4. “[T]he lady across the street supposed to be going to court on me and if she show up for court, I’ll be in here till whenever, I don’t know.”
During jury deliberations, the jury requested “a print out of the phone conversations from jail.” The response from the district court was “Yes.” Leaper made no objection to this request, and there is no additional information regarding this request in the record on appeal.
The jury ¿so requested to “hear the transcrip[t] from the jail phone conversations.” The district court, after noting that the sound quality of the recording was poor, stated “[t]hat's why they have the screen so that you can read what they’re saying as you listen to the transcript.” The State again played Exhibit 22 for the jury, and Leaper, his counsel, and the prosecutor were present. Then the district court stated, “That concludes the jail conversations and the transcript. The bailiff will escort you back to the jury deliberation room . . . .” Again, nothing in the record on appeal shows that Leaper objected to this request.
The record on appeal contains the certified court reporters transcribed versions of the phone conversations Leaper made from the Wyandotte County jail.
Leaper argues that the district court abused its discretion by failing to instruct the jury that the transcripts were not evidence and by allowing the jury access to the transcripts. Leaper argues that the district court’s actions were contrary to the requirements in State v. Kraus, 271 Kan. 810, 26 P.3d 636 (2001). Leaper failed to object to use of the transcripts at trial or their use during deliberations. There is nothing in the record on appeal that indicates the jury was allowed to take the transcripts into the jury room, and Leaper fails to show how the use of the transcripts prejudiced his case, which was the concern in Kraus.
A district court possesses wide discretion in determining whether to allow the jury to use written transcripts as aids in listening to audiotape recordings. Kraus, 271 Kan. at 812. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006). The party alleging an abuse of discretion bears the burden of showing such abuse. Kraus, 271 Kan. at 813.
Generally, a party cannot raise an issue on appeal where no contemporaneous objection was made and where the district court had no opportunity to rule. State v. Kirtdoll, 281 Kan. 1138, 1148, 136 P.3d 417 (2006). A defendant waives the right to challenge the district court’s response to a jury request by failing to object. State v. Smith, 258 Kan. 321, 327, 904 P.2d 999 (1995). Because Leaper failed to object to the use of the transcripts at trial and during deliberations, we find that Leaper waived his right to challenge the district court’s use of the transcripts in both instances.
Finally, Leaper has not provided any insight as to how the audio recording or the transcripts prejudiced his trial. The only argument Leaper malees is that the jury gave the transcripts and audio recording consideration during deliberations. This is not evidence of prejudice.
III. Cumulative Error
Leaper argues that the trial errors, if deemed harmless individually, are prejudicial when considered cumulatively. The State argues that no trial errors were committed.
“ ‘Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied tire defendant a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant. [Citation omitted.]’ ” State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007).
One error is insufficient to support reversal under the cumulative effect rule, and cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. Nguyen, 285 Kan. at 437; State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007).
Because we have determined that the district court did not commit trial errors, there is no cumulative error.
IV. Sentencing
Leaper argues that the district court erred by increasing his sentence based on his criminal history without first submitting and proving his criminal history to a jury beyond a reasonable doubt. The presentence investigation report showed that Leaper had a criminal history score of A. Leaper did not object to the presentence investigation report, and the district court subsequently sentenced him pursuant to his criminal history score.
Our Supreme Court already decided this issue in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). Moreover, our Supreme Court recently evaluated Ivory, did not find reason to alter the decision, and still concluded that the use of prior convictions to increase a sentence is constitutional. State v. Gonzalez, 282 Kan. 73, 118, 145 P.3d 18 (2006). Absent some indication the Kansas Supreme Court is departing from its holding in Ivory, this court is bound to follow the precedent. See State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007).
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Malone, J.:
Richard R. Snow appeals his upward durational departure sentence. Snow was convicted by a juiy of 15 felony counts of nonresidential burglary, theft, and criminal damage to property. The jury found aggravating factors supporting an upward durational departure, and the district court imposed a controlling sentence of 92 months’ imprisonment. The Kansas Supreme Court affirmed Snow’s convictions but remanded the case for resentencing because the total sentence exceeded the statutory maximum. State v. Snow, 282 Kan. 323, 342, 144 P.3d 729 (2006).
On remand, the district court again imposed a controlling sentence of 92 months’ imprisonment, calculated in a manner different than the original sentence. In this appeal, Snow claims; (1) the Supreme Court lacked jurisdiction to remand the case for resentencing; (2) the district court’s use of vague, nonstatutory aggravating factors to increase Snow’s sentence violated his due process rights; and (3) the district court erred by considering nonamenability to probation as an aggravating factor to justify an upward durational departure.
The facts supporting Snow’s convictions are not relevant to this sentencing appeal. In the earlier decision, our Supreme Court summarized the procedural history surrounding Snow’s initial sentencing:
“After the jury returned its verdict, the district court held a separate sentencing hearing for the jury to determine the existence of aggravating factors that could enhance Snow’s sentence. The jury found beyond a reasonable doubt that Snow was not amenable to probation, posed a significant risk to the community, would more likely than not reoffend, and posed a risk of harm to the fact witnesses against him.
“At sentencing, the district court used one of Snow’s nonresidential burglary convictions, a severity level 7 felony, as the primary crime for calculating Snow’s sentence. Based on Snow’s criminal history score of E, the district court determined that Snow’s presumptive sentence for nonresidential burglary was probation. However, the district court noted that Snow was on probation when he committed the crimes in this case and applied the special rule in K.S.A. 2005 Supp. 21-4603d(f), which permits the district court to impose a prison sentence in a presumptive probation case without a dispositional departure when the crime was committed while the defendant was on probation. The district court then granted the State’s motion for a durational departure, relying primarily on Snow’s lack of amenability to probation as justification. The district judge issued Snow’s sentence, stating:
T will adopt a sentence on the underlying Count One, burglary charge, of 23 months, which is the maximum [presumptive] sentence allowed. The Court will make the remainder of the sentences the aggravated number as found in each of the sentencing grid boxes for the felony counts, and I will order that they be run consecutive.
‘The court is denying probation as an effect both of granting the motion and of application of the Special Rule. The sentence will then on the felonies be the maximum that is allowed, which is 92 months.
‘There are four misdemeanor charges on which a six-month sentence can be rendered. The Court will render the maximum six-month sentence on each of those and will provide that they too be consecutive to the underlying felony sentences.’ ” Snow, 282 Kan. at 327-28.
In his first appeal, Snow argued that pursuant to K.S.A. 21-4720(b)(4), his total sentence could not exceed twice his base sentence. Because Snow’s base sentence was 23 months, he argued that his total sentence of 92 months was illegal. Our Supreme Court agreed and vacated Snow’s sentence and remanded the case to the district court for resentencing. 282 Kan. at 342.
On remand, the district court reiterated its decision to grant an upward durational departure based upon the jury’s findings that Snow was not amenable to probation, that he posed a significant risk to the community, and that if granted probation, Snow would more likely than not reoffend. These constituted nonstatutory aggravating factors for departure. Applying the departure factors to the first count of nonresidential burglary, the district court doubled the presumptive sentence of 23 months, resulting in a base sentence of 46 months. For the remainder of the felony counts, the district court imposed the aggravated grid box term and ran the sentences consecutively, resulting in a total term of 174 months’ imprisonment. Because Snow’s total felony sentence could not exceed twice the base sentence, the district court imposed a controlling sentence on the felony counts of 92 months’ imprisonment. Snow timely appeals.
Jurisdiction
Snow first asks this court to rule that the Supreme Court lacked jurisdiction to remand his legal presumptive sentences for .resentencing. Snow originally received a presumptive term of 23 months as his base sentence for nonresidential burglary. He also received the maximum presumptive sentence on tire other felony counts to be served consecutively. In other words, Snow initially received a legal presumptive sentence on each individual count, but the total sentence was illegal because it exceeded the statutory maximum for consecutive sentences. According to Snow, even though his total sentence was illegal, the Supreme Court lacked jurisdiction to order resentencing of his otherwise legal presumptive sentences on the individual counts. Following Snow’s logic, the district court should have left Snow’s original sentence on each count in place and doubled the original base sentence of 23 months, resulting in a controlling sentence of 46 months’ imprisonment.
Jurisdiction is an issue that may be raised for the first time on appeal. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). To the extent this issue requires interpretation of the Supreme Court’s mandate and a determination of whether the district court complied with the man date, our review is also unlimited. Edwards v. State, 31 Kan. App. 2d 778, 780, 73 P.3d 772 (2003).
Arguably, the district court probably intended to impose a legal maximum sentence of 92 months’ imprisonment at Snow’s initial sentencing. After the jury found Snow guilty of the charges, the district court held a separate hearing on aggravating factors supporting the State’s request for an upward durational departure. The jury found that multiple aggravating factors existed which were accepted by the district court. The district court noted that Snow’s aggravated presumptive term on the base sentence for nonresidential burglary was 23 months. The district court could have doubled the base sentence to 46 months, which was the purpose of holding the departure hearing in the first place, but the district court failed to expressly do so. Because the district court imposed a base sentence of 23 months rather than 46 months, the Supreme Court concluded that the total sentence of 92 months was illegal. In its decision, however, the Supreme Court expressly stated that on remand the district court could resentence Snow on all counts and change the base sentence to reflect the aggravating durational departure factors:
“When a defendant is convicted on several counts, a single judgment should be pronounced declaring the full measure of punishment to be imposed for all of the offenses. [Citation omitted.] When the defendant’s sentence violates the maximum consecutive sentence allowed by K.S.A. 2005 Supp. 21-4720, the district court can resentence the defendant for all counts and change the base sentence to reflect aggravated durational departure factors previously found to increase the total consecutive sentence pursuant to K.S.A. 2005 Supp. 21-4720. [Citation omitted.]” Snow, 282 Kan. at 342.
On remand, the district court did exactly what the Supreme Court signaled it could do. The district court doubled tire base sentence to 46 months to reflect the upward durational departure factors and ordered consecutive sentences on each count. Because the total sentence could not exceed twice the base sentence pursuant to K.S.A. 21-4720(b)(4), the district court imposed a controlling sentence of 92 months’ imprisonment. This resulted in the maximum legal sentence Snow could have received under the “double-double” rule. See Kansas Sentencing Guidelines, Desk Reference Manual, pp. 48-49 (2007).
State v. Baldwin, 24 Kan. App. 2d 12, 941 P.2d 422 (1997), presents a similar factual situation. In Baldwin, the defendant pled no contest to four counts of aggravated assault on a law enforcement officer. Pursuant to the plea agreement, the district court initially imposed a sentence of 20 months for each count and ran three of the counts consecutively, for a controlling sentence of 60 months. The defendant filed a motion to correct an illegal sentence because his total sentence of 60 months exceeded twice his base sentence of 20 months. The district court agreed and proceeded to resentence the defendant. The district court increased the base sentence to 38 months based upon departure factors and reduced the sentences on the remaining three counts to 19 months. The district court ordered the first and second counts to run consecutively for a controlling sentence of 57 months. 24 Kan. App. 2d at 12-13.
The Court of Appeals affirmed. The court found that the initial controlling sentence of 60 months was illegal because it exceeded twice the base sentence, even though the defendant received a legal presumptive sentence on the individual counts. Under such circumstances, the court determined it was permissible to resentence the defendant by increasing his base sentence and changing his sentences on the remaining counts to arrive at a controlling sentence of 57 months. 24 Kan. App. 2d at 13-14.
Here, the district court followed the same procedure that was approved in Baldwin, and Snow’s sentence directly comports with the Supreme Court’s mandate. We conclude that when a defendant’s controlling sentence in a multiple conviction case is found to be illegal because it exceeds the statutory maximum, the district court may resentence the defendant on each individual count. Snow’s argument that the Supreme Court lacked jurisdiction to remand his case for resentencing is without merit.
Use of nonstatutory aggravatingfactors
Next, Snow claims the district court erred by using nonstatutory aggravating factors as a basis for the upward durational departure. Snow makes two separate arguments. First, Snow argues that the use of any nonstatutory aggravating factors to increase his sentence violated his constitutional due process rights. In the alternative, Snow argues that the specific nonstatutory aggravating factors used in his case were vague, which also violated his due process rights.
K.S.A. 21-4716(c)(2) provides a nonexclusive list of aggravating factors that may be considered in determining whether substantial and compelling reasons for departure exist. Interpretation of a sentencing statute is a question of law, and an appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008). Also, whether an individual’s constitutional rights have been violated is a question of law, and an appellate court’s review is unlimited. McComb v. State, 32 Kan. App. 2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004).
Initially, the State maintains that Snow has not properly preserved this issue for appeal. Snow did not raise this issue prior to his original sentencing; he attempted to raise the issue for the first time in his original appeal. However, the Supreme Court declined to address the issue as Snow had not raised the issue in the district court. 282 Kan. at 343-44. On remand to the district court, Snow filed an objection specifically stating his constitutional argument. The district court imposed a departure sentence over that objection.
In this second appeal, the State argues that Snow is still procedurally barred from raising this issue under the law of the case doctrine because the issue was rejected by the Supreme Court in the first appeal. As Snow points out in his reply brief, however, the law of the case doctrine only applies “on all questions addressed in a first appeal.” (Emphasis added.) State v. Morton, 283 Kan. 464, 472, 153 P.3d 532 (2007). Because the Supreme Court did not address the merits of this issue in the first appeal and Snow raised the issue on remand to the district court, Snow has properly preserved the issue for this appeal.
Snow first argues that the use of any nonstatutory aggravating factors to increase his sentence violated his due process rights. Snow premises his argument on the fact that all crimes in Kansas are statutory. See K.S.A. 21-3102(1). Under the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, a state must give fair warning of proscribed conduct before imposing criminal sanctions. Snow argues that a statutory scheme that allows increased prison sentences based on nonstatutory aggravating factors does not provide fair warning and violates the Due Process Clause.
K.S.A. 21-3102(1) provides that no conduct shall constitute a crime against the state unless it is made criminal in the Kansas Criminal Code. Here, there is no question that Snow had fair warning of his proscribed conduct as the Kansas Criminal Code expressly prohibits burglary (K.S.A. 21-3715), theft (K.S.A. 21-3701), and criminal damage to property (K.S.A. 21-3720). However, Snow argues that the criminal code’s nonexclusive list of aggravating factors for a departure does not provide fair warning of his possible sentence because it permits an increased sentence based on factors not explicitly included in the criminal code.
Kansas appellate courts have consistently held that sentencing courts may use nonstatutory aggravating factors as the basis for departure as long as they are supported by the evidence and consistent with the intent and purposes of the Kansas Sentencing Guidelines. State v. Rodriguez, 269 Kan. 633, 646, 8 P.3d 712 (2000); State v. Tiffany, 267 Kan. 495, Syl. ¶ 8, 986 P.2d 1064 (1999); State v. Benoit, 31 Kan. App. 2d 591, 593, 97 P.3d 497 (2003).
Furthermore, this court has specifically rejected Snow’s due process argument in State v. Green, 38 Kan. App. 2d 781, 172 P.3d 1213 (2007). In Green, the defendant argued that his due process rights were violated when he was not warned that his sentence could be enhanced based on nonstatutory aggravating factors. This court rejected the argument and stated:
“The trouble with Green’s argument is the plain language of the statute clearly says the list contained in it is not exclusive. K.S.A. 2004 Supp. 21-4716(c)(2) states that it provides a ‘nonexclusive list of aggravating factors’ for consideration. Second, the State timely gave specific notice to Green that it planned on using these factors as grounds to increase Ins sentence. The State cited diese four aggravating factors in its motion for upward durational departure on November 23, 2004, and the trial over these aggravating factors did not occur until July 19, 2005. We see no error here.” 38 Kan. App. 2d at 790.
We agree with the court’s analysis in Green. K.S.A. 21-4716(c)(2) states that it provides a “nonexclusive list of aggravating factors” for consideration. Thus, Snow had statutory notice prior to his criminal conduct that his sentence could be enhanced based upon unspecified aggravating factors. Also, the State filed a notice with the district court which specified the nonstatutory aggravating factors it intended to rely on to seek a departure sentence well before Snow’s jury trial was held. Thus, Snow received fair warning of the departure factors used to increase his sentence.
We also note that under the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591 et seq. (2006), nonstatutory aggravating factors may be considered by a court or a jury in order to impose the death penalty. The FDPA enumerates 16 statutory aggravating factors to support the death penalty but also provides that the jury or the court “may consider whether any other aggravating factor for which notice has been given exists.” 18 U.S.C. § 3592(c) (2006). Under the FDPA, the government must prove the existence of at least one statutory aggravating factor in order for the jury to consider recommending a sentence of death. 18 U.S.C. § 3593(e) (2006). Once this threshold is met, however, the jury is allowed to weigh all aggravating factors against all mitigating factors to determine if the death penalty should be imposed. The federal courts have consistently upheld the constitutionality of the use of nonstatutory aggravating factors to impose the death penalty under the FDPA. See, e.g., United States v. Cheever, 423 F. Supp. 2d 1181, 1204-07 (D. Kan. 2006).
If the Constitution permits the use of nonstatutory aggravating factors to impose the death penalty under the FDPA, it would seem that the Kansas statutory scheme for considering nonstatutory aggravating factors to impose a departure sentence is also constitutional. We conclude that the district court’s use of nonstatutory aggravating factors to increase Snow’s sentence did not violate his constitutional due process rights.
In the alternative, Snow argues that the specific nonstatutory aggravating factors used in his case were vague. Snow’s upward durational departure sentence was based on the jury’s findings that Snow was not amenable to probation, that he posed a significant risk to the community, and that if granted probation, Snow would more likely than not reoffend. Snow specifically faults the district court for failing to define the key terms “amenable,” “probation,” “significant risk,” and “community.”
We disagree. The aggravating factors the district court used to increase Snow’s sentence were not so vague as to offend due process. At the hearing for the jury to determine the existence of aggravating factors, the State called as witnesses a probation officer and two of Snow’s victims. The victims testified about the significant impact Snow’s crimes had on their respective businesses. The probation officer described the available probation options in Johnson County and the different types of reporting requirements for each level of supervision. This testimony was relevant to the alleged aggravating factors the district court submitted to the jury for consideration, and in the context of the evidence, the key terms were not vague. The aggravating factors employed words and phrases commonly understood by a jury, and the district court did not need to define such terms. See State v. Phelps, 28 Kan. App. 2d 690, 695, 20 P.3d 731, rev. denied 271 Kan. 1041 (2001) (district court need not define words or phrases that are commonly understood). We reject Snow’s argument that the aggravating sentencing factors used in his particular case were vague.
Nonamenability to probation
Finally, Snow argues that nonamenability to probation should not be used as an aggravating factor to impose an upward durational departure. While Snow concedes that nonamenability to probation is an appropriate factor to justify a dispositional departure, Snow maintains there is no rational link between nonamenability to probation and an upward durational departure.
An appellate court’s review of a departure sentence is limited to whether the sentencing court’s findings of fact and reasons justifying a departure (1) are supported by the evidence in the record and (2) constitute substantial and compelling reasons for departure. K.S.A. 21-4721(d). Snow does not challenge the sufficiency of the evidence to support the jury’s finding that he was not amenable to probation. Rather, he argues that this factor does not con stitute a substantial and compelling reason for a durational departure. Whether the factors relied upon by the sentencing court constitute substantial and compelling reasons for departure is a question of law. State v. Martin, 285 Kan. 735, Syl. ¶ 3, 175 P.3d 832 (2008).
We first note that the Kansas Supreme Court has specifically held that nonamenability to probation may constitute a substantial and compelling reason for an upward durational departure, as well as a substantial and compelling reason for a dispositional departure. Snow, 282 Kan. at 345; State v. Yardley, 267 Kan. 37, 43-44, 978 P.2d 886 (1999). This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005).
Furthermore, even if we were to find merit in Snow’s argument, we note that the presence of one aggravating factor is sufficient to support an upward durational departure. It is not required that all the reasons given for departure by the sentencing court support the departure; as long as one or more of the factors relied upon by the sentencing court is substantial and compelling, the departure sentence will be affirmed. State v. Ippert, 268 Kan. 254, Syl. ¶ 2, 995 P.2d 858 (2000). Here, although the district court stated that nonamenability to probation by itself would be sufficient to support Snow’s upward durational departure, the district court stated that additional factors, including that Snow posed a significant risk to the community and that Snow would more likely than not reoffend, also supported a departure sentence. Snow does not argue that these additional factors do not constitute substantial and compelling reasons to depart. Accordingly, we find that Snow’s departure sentence should be upheld.
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Leben, J.:
Marcus Washington challenges the constitutionality of a Kansas Department of Corrections regulation that prohibits inmates from possessing sexually explicit materials. After hearing evidence, the district court held that the regulation was constitutional under Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), because it was reasonably related to legitimate interests of the penitentiary. Regulations of this sort elsewhere “have been routinely upheld as rationally related to legitimate penological goals.” Smith v. Dept. of Corrections, 219 Or. App. 192, 198, 182 P.3d 250 (2008). The evidence before the district court was sufficient to establish that these Kansas prison regulations further legitimate goals of the prison system. We therefore reject Washington’s constitutional challenge to the regulations.
Procedural Background and Standard of Review on Appeal
Washington brought his claim under the Kansas habeas corpus statute, K.S.A. 60-1501. The claims were presented in a trial at which several witnesses testified. On appeal, we review the district court’s factual findings to see whether they are supported by substantial evidence. We review the district court’s legal conclusions without any required deference to the district court. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
Two other procedural matters bear brief mention. First, the Secretary of Corrections argues on appeal that Washington’s claim should be dismissed for failure to exhaust administrative remedies and for failure to file a timely claim in court. We find no merit in that argument. Washington filed specific grievance forms to appeal the withholding of materials kept from him under the regulation. When that grievance was denied, he appealed to the Secretary. When the Secretary denied his claim, Washington filed a claim in court within 30 days. Second, another inmate, Brian McGoldrick, had also appealed the withholding of materials under this regulation; his habeas petition under K.S.A. 60-1501 was tried along with Washington’s in a joint trial. But McGoldrick did not appeal, so his claims are not before us.
The Regulation at Issue
Before going further, we should set out the regulation at issue, K.A.R. 44-12-313. It was adopted by the Secretary of Corrections under statutory authority to adopt regulations “for the maintenance of good order and discipline” in Kansas prisons. K.S.A. 2007 Supp. 75-5210(f). Washington has not challenged the Secretary’s statutory authority to adopt this regulation.
Since 2004, this regulation has provided that inmates may not possess sexually explicit material. The regulation defines that as something containing nudity, very broadly defined, or displaying or describing certain sexual acts:
“(a) No inmate shall have in possession or under control any sexually explicit materials, including drawings, paintings, writing, pictures, items, and devices.
“(b) The material shall be considered sexually explicit if the purpose of the material is sexual arousal or gratification and the material meets either of the following conditions:
(1) Contains nudity, which shall be defined as the depiction or display of any state of undress in which the human genitals, pubic region, buttock, or female breast at a point below the top of the aeróla [sic] is less than completely and opaquely covered; or
(2) contains any display, actual or simulated, or description of any of the following:
(A) Sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, and anal-oral contact, whether between persons of the same or differing gender;
(B) masturbation;
(C) bestiality; or
(D) sadomasochistic abuse.
“(c) Each violation of this regulation by inmates classified as sex offenders shall be a class I violation.
“(d) Each violation of this regulation by inmates not classified as sex offenders shall be a class II violation.
“(e) Each violation of this regulation by any inmate if the sexually explicit material depicts, describes, or exploits any child under the age of 18 years shall be a class I offense.”
The Department’s Justification for the Regulation and Its Application of the Regulation to Washington
The Secretary of Corrections’ rationale for banning sexually explicit material was set forth in the written denial of McGoldrick’s appeal. The Secretary cited the need to keep these materials away from sex offenders, the negative impact on prison staff, better use of prison resources, and trends in prison management:
“1. In September 2002 tire department restricted inmates who are managed as sex offenders from possessing or viewing such publications. Approximately 25% of all inmates are sex offenders. The department could not effectively restrict sex offenders from having access to such materials if other inmates continued to possess . . . them.
“2. There have been complaints from employees about being required to view tírese materials while performing their duties. There is a potential for staff to file sexual harassment complaints due to exposure to the publications and materials in the workplace environment as well as from comments made by some inmates when making comparisons between individual employees and individuals in the publications or other materials.
“3. An increasing number of correctional agencies nationally have taken this action in order to more efficiently and effectively manage the correctional environment.
“4. The department was expending considerable staff time at several levels to review publications to determine what was allowable and what was not, in processing and deciding appeals from the initial decision, and in processing notifications and other information related to ordering, receiving, or failing to receive such publications. The department will be better able to utilize its resources as a result of this action.”
Several books that Washington ordered were censored as sexually explicit: Slave Girl by Claire Thompson, Yearbook Lingerie 2004: Objects of Desire by Elodie Pivateau, The Lapdancer by Juliana Beasley, How to Make Love Like a Pom Star by Jenna Jameson, The Sexual Life of Catherine M. by Catherine Millet, and The Bride Stripped Bare by an anonymous author.
I. This Regulation Meets the Tests Set Out in Turner.
We must analyze the validity of this regulation under the four-part test announced by the United States Supreme Court in Turner. The Turner Court considered the constitutionality of restrictions on the right of inmates to receive mail and determined that four factors are central in determining the reasonableness of the regulation. 482 U.S. at 89. The four factors are (1) whether a valid and rational connection exists between the regulation and a legitimate governmental interest, (2) whether an alternative means of exercising the constitutional right at issue remains available to inmates, (3) the impact of accommodation of the asserted right upon guards, other inmates, and the allocation of prison resources, and (4) the absence of ready alternatives to the course of action taken in the regulation. 482 U.S. at 89-91; see also Rice, 278 Kan. at 321 (citing Turner factors); Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004) (same). We will review each factor separately; we will review the relevant factual findings of the district court as we discuss those factors.
A. Valid, Rational Connection to Legitimate Governmental Interests.
We first examine the connection between the regulation and legitimate government interests. A regulation “is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. In addition, the logical connection between the asserted governmental interest and the regulation must not be “so remote as to render the policy arbitrary or irrational,” and “the governmental objective must be a legitimate and neutral one.” 482 U.S. at 89-90.
The district court made some specific factual findings that demonstrate a reasonable relationship between the regulation and legitimate prison interests. The court found:
• “[T]here is a significant impact on others by an inmate’s receipt of this material,” which “negatively affects other inmates (sex offenders), prison personnel and allocation of prison resources.”
• “[Tjhere is a genuine concern for the work environment and the desire to not expose staff to sexual harassment.”
These conclusions were supported by evidence presented to the district court, including the written appeal denial that set forth in detail the basis for the regulation.
Keeping sexually explicit materials out of the hands of imprisoned sex offenders is certainly a legitimate interest. One of the inmates testified before the district court that inmates leave materials on tables in the prison, where other inmates pick them up and read them. He also testified that if he were to put such materials into a trash can, other inmates would dig them out. Perhaps a prison could prevent the movement of these materials within a prison, but that would take substantial additional supervision by prison officials. The prison legitimately already tries to keep sexually explicit materials out of the hands of sex offenders with only a moderate degree of supervision.
Preventing the harassment of employees who work in the prison is a legitimate interest too. Other courts have found that this interest is a valid justification for a hmitation on sexually explicit materials in the prison. E.g., Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999); Jolly v. Snyder, 2003 WL 1697539, at *3 (D. Del. 2003) (unpublished opinion). We agree.
Turners requirement that the hmitation be a neutral one might seem to be a hurdle to this regulation. Surely the regulation is not content-neutral; some materials are clearly excluded by the regulation based upon their content. In Hill v. Simmons, 33 Kan. App. 2d 318, 101 P.3d 1286 (2004), our court considered a similar prison rule keeping sexually explicit materials out of the hands of sex offenders. The Hill panel noted that Turners reference to neutrality was intended merely to require that the regulation actually further an important governmental interest, not that it be content-neutral. A similar prison rule in Hill met the neutrality test because the prison distinguished between publications not to suppress “the inmate’s freedom of expression regarding sexually explicit materials, but on the basis of their potential implications for prison security.” 33 Kan. App. 2d at 322-23; see Thornburgh v. Abbott, 490 U.S. 401, 415-16, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989). Because of the clear relationship between the regulation and valid penological goals, it is neutral for the purpose of the Turner test.
B. Alternative Means to Receive Uncensored Materials.
We next consider whether an alternative means of exercising First Amendment rights of access to information remains available to the inmates. The district court found that Washington was “permitted to receive a wide variety of publications, as long as they do not contain prohibited materials.”
In Turner, the Court upheld a limitation on inmate-to-inmate correspondence, noting that the regulation did not “deprive prisoners of all means of expression,” but only communication with a limited group — inmates at other prison facilities. 482 U.S. at 92. Here we consider not a limitation on certain types of expression, but one on receipt of certain types of materials. Thus, we look to see whether the prisoner’s right of access to information has been eviscerated or whether prisoners still have alternate means to obtain a wide range of materials. As one court put it, “the question is not whether the prisoners have other opportunities to read pornographic materials, but whether they have the opportunity to read in general .’’Jolly, 2003 WL 1697539, at *4. The district court concluded that Kansas inmates are “permitted to receive a wide variety of publications.” That finding is supported by the evidence.
C. The Impact Accommodation of the Prisoners Right Would Have on Others.
We turn next to the impact on others that would be expected if the prison were required to accommodate Washington’s desire to receive these materials. When there is a significant, negative impact on others, Turner counsels that “the choice made by corrections officials — which is, after all, a judgment peculiarly within [their] province and professional expertise,’ [citation omitted]— should not be lightly set aside by the courts.” 482 U.S. at 92-93.
The potentially negative consequences of allowing receipt of these materials by Washington or other inmates are the veiy factors that demonstrated the State’s legitimate interest in censoring these materials. We have already noted the district court’s findings that there would be a negative impact on the potential rehabilitation of sex offenders and a potential for harassment of prison employees. Our court is not in a position to second-guess the factual findings of the district court or the judgment of prison administrators on these matters. The district court, not our court, malees the appropriate factual findings from the evidence presented. And prison administrators, not courts, must make the initial judgment call, a decision we must give some degree of deference to under Turner. The district court’s factual findings were supported by evidence; the judgment call made by prison officials that allowing these materials into the prison would have negative impacts on other inmates and prison staff is supported by that evidence and by common sense.
D. The Absence of Ready Alternatives to the Approach of the Regulation.
We turn last to whether there are ready alternatives to the prison regulation. As the Turner Court noted, “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.” 482 U.S. at 90.
The district court found that no easy and workable alternatives were available, in part because a great many resources would be required to implement any alternative:
“Redacting the prohibited material or permitting the inmate’s review of the material is not a workable alternative. Considering that the respondents receive mail for thousands of inmates ... , it would be costly and cumbersome for someone to redact the material from each publication. Additional costs and security would be involved if each inmate was given the right to review the censored material in the presence of staff.”
Given the number of inmates and the logical logistical problems, it’s easy to see that there are no “obvious, easy alternatives” here.
First, let’s consider having prison officials redact the materials to remove only the portions that violate the prison regulation. With thousands of inmates each receiving multiple books or periodicals, a large staff would have to spend all its time reading through the materials, line by line, considering what could be allowed and what had to be removed. Turner suggests that if an inmate “can point to an alternative that fully accommodates the prisoner’s rights at de minimus cost to valid penological interests, a court may consider that as evidence that the regulation” goes too far to pass constitutional muster. 482 U.S. at 91. But the resources that would be required to redact the materials received by Kansas prisoners to conform to the regulation are not de minimus.
Second, let’s consider an alternative suggestion Washington made in the district court — having the inmates themselves review and redact the materials. That too would obviously require substantial use of prison resources. Some prison staff member would have to make sure that the inmate did not leave the room in which tire materials were reviewed with anything that wasn’t allowed. At a minimum, that would require searching the prisoner when leaving the room. In addition, prison personnel would still need to review the material page by page or line by line to see whether prohibited material remained in what the prisoner sought to take out of the room for reading and reflection.
Rather than conducting line-by-line reviews of publications, the prison has decided that materials containing some content contrary to the regulation won’t be allowed into the prison. Even administering this policy takes substantial staff resources. Between 27 and 30 employees staff the prison mail room; they conduct initial review of incoming materials. Materials flagged by the mail-room staff as potentially prohibited by the regulation are then reviewed by the prison’s publication-review officer. The time already spent by these staff members would be expanded exponentially if they had to review every page of a book or periodical rather than rejecting the item outright once something prohibited was found in it. Washington has not shown that there’s an “obvious, easy alternative” to the prison regulation at issue.
II. Washington’s Claim That He Wasn’t Told the Name and Address of Each Sender of Censored Mail Has No Merit.
Washington separately complains that the Department of Corrections did not follow its own regulations by providing him with the name and address of the sender of each item of censored mail. See K.A.R. 44-12-601(d)(2)(B). But the essence of his complaint is that the procedures followed by the Secretary denied him due process, a claim that is fully rebutted by the record of this case.
The essential requirements of due process are notice and the opportunity to be heard in a meaningful manner. State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006). The district court found that Washington suffered no prejudice by the failure to give him the name and address of each sender because Washington already knew that information — he had ordered these materials. Washington had a full and fair hearing of his claims; his attorney had full access at trial to all of the censored material. There was no harm from any failure of the Department to give him this information; thus, there was no denial of due process. See State v. Brown, 280 Kan. 65, 77, 118 P.3d 1273 (2005).
Conclusion
Regulations similar to the Kansas prison ban on sexually explicit materials have been upheld elsewhere against constitutional challenge. E.g., Mauro, 188 F.3d 1054; Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998); Owen v. Wille, 117 F.3d 1235 (11th Cir. 1997); Smith, 219 Or. App. 192. Indeed, the Kansas federal district court recently upheld the same regulation Washington challenges under the Turner criteria. Strope v. Collins, 2008 WL 2435560 (D. Kan. 2008) (unpublished opinion). Each of the factors set forth in Turner is met here based on the factual findings made by the district court.
The judgment of the district court is affirmed. | [
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Hill, J.:
In this appeal, Jose L. Garcia seeks reversal of his driving under the influence of alcohol conviction. He claims errors in a jury instruction and some rulings limiting the defendant’s opening statement and then later limiting the defense’s cross-examination of a Kansas Highway Patrol trooper. Our review of the record reveals the trial court used PIK Crim. 3d 70.02 in this trial. That instruction tells the jury that if a test shows a blood alcohol level of .08 or more in the defendant’s blood, the jury can assume the defendant was under the influence of alcohol. That is an accurate statement of the law. Also, we find no error in the trial court telling the defense counsel to comment about the evidence and not the weight of it in his opening statement because that is not a time for argument. Finally, the trial court did not abuse its discretion when it granted the State’s foundation and relevancy objections to some questions asked the trooper by the defense. We affirm.
The background reveals slow driving, an arrest, and the use of two testing machines.
While patrolling in Seward County early one morning in June 2006, Kansas Highway Patrol Trooper James Cody Parr came upon a Ford Explorer driving 16 miles an hour under the speed limit. Trooper Parr saw the Explorer weave within its lane and onto the shoulder several times. So, he pulled it over. When the trooper got close to the Explorer, he noticed the driver had bloodshot eyes and his shirt was halfway unbuttoned. Trooper Parr also noticed the driver reeked of alcohol. Garcia, the driver, had difficulties opening his glove compartment and struggled to get out his wallet. Garcia told the trooper he had drunk a “few” beers that night. After Garcia failed the one-leg stand and walk-and-turn field sobriety tests, the trooper arrested him for DUI.
Trooper Parr took Garcia to the Seward County jail. Garcia consented to a breath test. The first test was performed on the Seward County Sheriff s Department’s Intoxilyzer machine and showed a blood alcohol content of .000 because no air had entered the machine. The trooper performed the next two tests on the Liberal Police Department’s machine. In the second test, performed at 3:27 a.m., the machine read Garcia’s blood alcohol content at .093. In the third test, performed 9 minutes later, the machine read Garcia’s blood alcohol content at .104.
The State charged Garcia with a felony driving under the influence of alcohol violation of K.S.A. 2005 Supp. 8-1567(a)(3) and failure to keep a single lane. A jury convicted Garcia as charged. The court sentenced Garcia to the maximum of 1 year in the county jail since this was his third conviction.
We hold the instruction Garcia complains about is correct.
Garcia argues the following instruction, given the jury at his trial, misstates the law:
“The law of the State of Kansas provides that a chemical analysis of the Defendant’s breath may be taken in order to determine the amount of alcohol in the Defendant’s blood at the time the alleged offense occurred. If a test shows there was .08 percent or more by weight of alcohol in the Defendant’s blood, you may assume the Defendant was under the influence of alcohol to a degree that he was rendered incapable of driving safely. The test result is not conclusive, but it should be considered by you along with all the other evidence in this case.” (Emphasis added.)
Garcia objected to this instruction at trial but on different grounds than now raised on appeal. To the trial court he argued the instruction should not be given based on his objection to the admissibility of the Intoxilyzer test results, but he did not contend it was a misstatement of the law. Therefore, we review the challenged instruction to see if it was clearly erroneous. See State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995) (applying clearly erroneous standard of review where objections to instruction at trial different from complaint on appeal). “ 'Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Garcia challenges the instruction’s provision that the jury could assume he was under the influence based on the breath test results. He claims the presumption “does not appear to be the law in Kansas.” He claims that because K.S.A. 8-1005(b) (Furse 1991) says evidence of an alcohol concentration of .10 or more is only “prima facie evidence that the defendant was under the influence of alcohol to a degree that renders a person incapable of driving safely,” and so the instruction is invalid. He contends the instructional error was prejudicial because the State noted in its closing argument that one of Garcia’s breath test results was more than .10 and the other result was less than .10.
First, we must point out that in 2006, when Garcia was arrested, the legal limit for adult intoxication while driving was .08, not .10. See K.S.A. 2005 Supp. 8-1567(a)(2). Clearly, with breath tests of .093 and .104 the evidence proved the assumption was applicable in this case.
Next, the instruction comes from PIK Crim. 3d 70.02. The instruction uses the verb “assume,” while the statute provides that a test result at or over the stated limit is prima facie evidence. The Comment to PIK Crim. 3d 70.02 explains the- different usage:
“The Committee believes that ‘prima facie’ evidence as used in K.S.A. 8-1005 creates a presumption, and the suggested instruction is worded accordingly. State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973).”
We note the following:
“Statutory presumptions are rebuttable. A rebuttable statutory presumption only governs the burden of going forward with the evidence, and even when it operates against a defendant in a criminal case, it does not alter the ultimate burden of proof resting upon the prosecution, nor deprive the defendant of the benefit of die presumption of innocence.” State v. Haremza, 213 Kan. 201, Syl ¶ 2.
Our Supreme Court has pointed out:
“The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. . . . [Ajbsent [a] need [for case-specific modifications], PIK instructions and recommendations should be followed.” State v. Dunn, 249 Kan. 488, 492-93, 820 P.2d 412 (1991).
Because PIK Crim. 3d 70.02 accurately states the law and the instruction used by the trial court here mirrored the PIK instruction, we find no instructional error.
The rulings Garcia complains about do not compel a reversal of the conviction.
Garcia claims the trial court made several erroneous rulings during the course of trial. Garcia complains that when combined, those errors amount to cumulative trial error that denied him a fair trial. For such an issue, this court must find out whether the circumstances substantially prejudiced Garcia and denied him a fair trial. See State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006). Obviously, to find cumulative error, this court must first find errors that could accumulate.
Garcia’s first complaint involves his brief opening statement. After outlining some of the evidence that would be presented, defense counsel stated: “We believe that the evidence is not going to meet the standard to where — .” The State objected at that point, arguing counsel could talk about what the evidence would show but could not argue'the weight to give the evidence. The trial court sustained the objection, directing defense counsel to “[j]ust comment about the evidence and not the weight of it.” Garcia now claims the trial court committed “clear error” by preventing him from arguing the theory of his defense.
The trial court has broad discretion in controlling opening statements, and this court will not interfere with that decision unless the court has abused its discretion. State v. Duncan, 25 Kan. App. 2d 41, 42, 956 P.2d 737, rev. denied 265 Kan. 887 (1998).
An opening statement is not an argument:
“An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument.” United States v. Dinitz, 424 U.S. 600, 612, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976) (Burger, C.J., concurring).
Defense counsel here was not merely telling the jury what the evidence would show. He was trying to argue what weight the jury should assign the evidence. We find no abuse of discretion in sustaining the State’s objection to that argument.
Garcia next claims four rulings made by the trial court during the defense’s cross-examination of Trooper Parr were incorrect. The rulings dealt with Garcia’s questions about interview techniques, the walk-and-tum test, what happens when other people fail the test, and whether the trooper would ask someone else to take a field sobriety test without other clues. The State objected to all these questions, and the court sustained the objections. We address each ruling in turn, including additional facts for context where necessary.
• Interview techniques. The defense asked Trooper Parr if he was familiar with the alphabet interview technique or the countdown interview technique. Counsel then started to question him about other techniques approved by the National Highway Traffic Safety Administration (NHTSA).
The State objected that other techniques were irrelevant. The trial court ruled that defense counsel could “ask the trooper if he knows of any other or if he’s trained in any other tests. And if he tells you he has, you can follow up with why he didn’t administer those tests.” Rather than following the trial court’s lead, defense counsel abandoned that line of questioning.
We believe Garcia misunderstands the trial court’s ruling. The court did not limit Garcia to asking only about “other tests” or otherwise rule the tests were irrelevant. Rather, the trial court ruled that before Garcia could ask the trooper about those tests, he had to set up a foundation of Trooper Parr’s essential knowledge and training about those tests. See K.S.A. 60-419 (“As a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required.”).
Whether a sufficient evidentiaiy foundation has been laid is a question of fact for the trial court and rests largely within its discretion. When there is substantial competent evidence to support the finding, it will not be disturbed on appeal. State v. Rohr, 19 Kan. App. 2d 869, 870, 878 P.2d 221 (1994).
Rather than proving the proper foundation necessary to introduce evidence of any other specific tests through the trooper’s testimony, Garcia abandoned that line of questioning. We will not disturb the trial court’s foundation ruling.
• Walk-and-tum test. The defense counsel asked Trooper Parr about specific NHTSA requirements regarding the walk-and-tum test. The State objected, arguing that defense counsel should be required to produce and specifically reference the NHTSA manual before questioning the trooper about its asserted contents.
When defense counsel expressed confusion on how to continue, the trial court explained, “[Y]ou have to make sure that [the prosecutor] can be satisfied that it’s actually in the manual before you ask the question. That’s the whole point of having the manual.” The trial court found that defense counsel was relying on what “looks like some continuing legal education on standard field sobriety test[s].” The trial court then explained to defense counsel:
“[I]f it’s not the actual manual, I’m not going to let you ask specific questions from that book. But, [defense counsel,] I will allow you to ask specific questions to the trooper to inquire as to his knowledge of tire testing requirements and of the scoring requirements. But I’m afraid, [defense counsel,] if you don’t have the manual, I’m not going to accept you as an expert to correct him of anything he doesn’t know the answer.”
Garcia argues the trial court limited his counsel from asking questions “unless prior approval from the prosecutor was obtained.” That was not the trial court’s ruling. Garcia was essentially trying through his questioning of Trooper Parr to prove contents of the NHTSA manual. Our rules of evidence provide that except under certain circumstances not shown here, “[a]s tending to prove the content of a writing, no evidence other than the writing itself is admissible.” K.S.A. 60-467(a). The trial court did not err in ruling Garcia could not ask the trooper about specific contents of the NHTSA manual without first producing the manual.
• Other people’s test failures. Garcia complains the trial court mistakenly granted the State’s relevancy objection when defense counsel asked Trooper Parr, “Are there certain instances where somebody cannot complete die test, in your experience?”
Trial courts must deal only with evidence that is relevant. “ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). There is no dispute the level of Garcia’s impairment was material. The question of whether the evidence of other people’s failures to complete the test was relevant or probative of that material fact is reviewed for an abuse of discretion. See State v. Reid, 286 Kan. 494, 505-09, 186 P.3d 713 (2008).
The fact that other people are unable to complete the test, whether because of their own intoxication or some physical ail ment, does not have any tendency in reason to prove or disprove Garcia’s impairment. The trial court did not abuse its discretion in concluding this evidence was irrelevant.
• Asking others to take the field sobriety tests. Garcia further complains about the trial court improperly sustaining the State’s relevancy objection when his counsel asked Trooper Parr, “But you wouldn’t normally, in say a speeding case, have somebody get out and take [a field sobriety test] without other clues present or other indicators present for alcohol?”
Like the prior issue, we must determine if the trial court abused its discretion in concluding this evidence of Parr’s actions in other traffic stops was irrelevant. See Reid, 286 Kan. at 505-09. Whether the trooper asked another person to submit to a field sobriety test where he or she was stopped for speeding is not probative of, or relevant to prove or disprove, Trooper Parr’s grounds for asking Garcia to perform a field sobriety test. Thus, the trial court did not abuse its discretion in sustaining the State’s relevancy objection.
With no errors to accumulate, we do not reverse for cumulative error.
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Caplinger, J.:
In this medical malpractice action, Mary Ann Rojas alleges Patrick M. Barker, M.D., negligently performed her hernia surgery and failed to obtain her informed consent to the surgery. The district court granted partial summary judgment in favor of Dr. Barker on Rojas’ informed consent claim, finding Rojas failed to establish causation with respect to that claim. However, the court permitted Rojas’ negligence claim to go to the jury, which returned a verdict for Dr. Barker. Prior to trial, the district court sustained a motion limiting the amount of medical expenses.
In this appeal, Rojas argues the district court erred in granting partial summary judgment on her informed consent claim and in sustaining Dr. Barker’s pretrial motion limiting medical expenses.
We affirm the district court’s award of partial summary judgment on Rojas’ informed consent claim based upon Rojas’ failure to es tablish causation. Further, we decline to address the district court’s limitation of damages, as the issue is moot in light of our decision affirming partial summary judgment.
Factual and procedural background
On September 30, 2003, Rojas consulted Dr. Barker for treatment of a painful ventral hernia which had developed at the site of a scar left by a prior surgery. Dr. Barker recommended that Rojas lose 20-30 pounds prior to the surgical repair of the hernia. However, on October 7, 2003, Rojas again saw Dr. Barker after determining the pain caused by the hernia was too severe to wait any longer for surgery. Surgery was scheduled for October 14, 2003. On that date, Dr. Barker performed a diagnostic laparoscopy, laparoscopic enterolysis, an exploratory laparotomy, abdominal enterolysis, and a ventral incisional herniorrhaphy to “take down” or lyse any abdominal adhesions and repair the hernia. The following day, Dr. Barker left the United States, and Randall Beech, M.D., assumed responsibility for Rojas’ care.
Rojas claims she was not informed by Dr. Barker that he would be unavailable following her surgery, nor was she advised that Dr. Beech would assume her care during Dr. Barker’s absence. Dr. Barker claims, however, that consistent with his habit and practice, he advised Rojas that he was leaving town on October 15, 2003, for an extended period and her care would be assumed by Dr. Beech, a general surgeon practicing in a nearby community.
On October 15, 2003, Dr. Beech noted that Rojas had a bowel obstruction, a condition which, according to Beech, is not uncommon following abdominal surgery. From October 16, 2003, to October 18, 2003, Rojas remained in stable condition, but Dr. Beech noted that Rojas continued to have a bowel obstruction, a distended abdomen, and a low-grade fever.
Rojas experienced severe abdominal pain, a spike in temperature, and a change in her complete blood count on October 19, 2003. Dr. Beech ordered an abdominal x-ray which revealed a prominence of subcutaneous emphysema on Rojas’ right abdominal wall and a moderately large amount of free intraperitoneal air. In other words, Rojas had air trapped within the tissue of the right abdominal wall and air floating freely within her abdominal cavity.
Dr. Beech obtained Rojas’ consent to perform a second surgery, during which he discovered extensive inflammation and adhesions in Rojas’ abdominal cavity and two to three small perforations of her small intestine. Dr. Beech took down several adhesions and performed a small bowel resection. On November 3, 2003, Dr. Barker returned to the hospital and arranged to have Rojas transferred to another hospital for follow-up care. Rojas was later transferred to a third hospital where she underwent additional operations and experienced a prolonged recovery period.
Rojas timely filed this action against both Dr. Barker and Dr. Beech, alleging generally that both doctors were “negligent and departed from the accepted standard of care” in providing care and treatment to Rojas. Following discovery, the district court granted Rojas’ voluntary motion to dismiss her negligence claim against Dr. Beech with prejudice.
In the pretrial order, Rojas alleged Dr. Barker (1) failed to obtain informed consent for the initial surgery because he failed to notify her of his unavailability to provide follow-up care after her surgery; and (2) failed to identify and repair multiple perforations during the hernia surgery. Rojas made no claim in the pretrial allegations that Dr. Barker, or any other party, was negligent for failing to timely diagnose the bowel perforations following surgery.
Dr. Barker moved for partial summary judgment on Rojas’ informed consent claim based upon Rojas’ failure to establish causation. The district court granted the motion, finding no “causative factor” between Dr. Barker’s unavailability following surgery and Rojas’ injuries. The court also sustained Dr. Barker’s pretrial motion to limit evidence of Rojas’ recoverable damages to the amount of medical expenses actually paid by Medicare rather than the amount of medical expenses billed by Rojas’ health care providers prior to applying “write-offs.” The parties later agreed to stipulate to the amount of medical expenses paid and billed, and further agreed to submit the total amount billed to the jury during deliberations.
The case was tried to a jury, which returned a verdict in favor of Dr. Barker on Rojas’ remaining negligence claims.
Discussion
Rojas first claims the district court erred in granting Dr. Barker’s motion for summary judgment on the informed consent claim. Specifically, Rojas contends Dr. Barker failed to obtain informed consent for the hernia surgery because “he failed to inform her he would be leaving town the day after an elective surgery . . . and [would] not be available to provide any follow-up care or treatment.” Dr. Barker responds that partial summary judgment was appropriate because Rojas failed to present prima facie evidence that his alleged failure to obtain consent caused Rojas’ injuries.
A. Standard of Review
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. A district court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the adverse party. To avoid summary judgment, the adverse party must come forward with evidence to establish a genuine issue of material fact, and the facts subject to the dispute must be material to the conclusive issues in the case. Robbins v. City of Wichita, 285 Kan. 455, 460, 172 P.3d 1187 (2007).
B. The Doctrine of Informed Consent
The doctrine of informed consent in Kansas was established in Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960) (Natanson I), where our Supreme Court held:
“Where no immediate emergency exists, a physician violates his duty to his patient and subjects himself to liability for malpractice, . . . if he makes no disclosure of significant facts within his knowledge which are necessary to form the basis of an intelligent consent by the patient to proposed . . . treatment.” 186 Kan. 393, Syl. ¶ 4, 350 P.2d 1093 (1960).
Under this doctrine, medical professionals have a duty to provide sufficient information to their patients to permit patients to make intelligent, informed decisions about medical treatment. A physician or surgeon is obligated to inform the patient of the nature of the patient’s illness, of the significant risks and consequences inherent to the proposed treatment or procedure, and of reasonable, medically acceptable alternatives to the proposed treatment, including the option to forego treatment altogether. See Tatro v. Lueken, 212 Kan. 606, 616, 512 P.2d 529 (1973); Funke v. Fieldman, 212 Kan. 524, 531, 512 P.2d 539 (1973); Natanson v. Kline, 187 Kan. 186, 188, 354 P.2d 670 (1960) (Natanson II); Natanson I, 186 Kan. at 410; and Wecker v. Amend, 22 Kan. App. 2d 498, 502, 918 P.2d 658, rev. denied 260 Kan. 1002 (1996); see also PIK Civ. 4th 123.15 (defining informed consent as “reasonable knowledge of the nature of the procedure and understanding of the risks involved, and the possible results to be anticipated”).
The rationale underlying the doctrine of informed consent is that while a patient may seek the guidance of medical professionals, the ultimate decision of whether to proceed with a particular course of treatment, or to decline treatment, belongs solely to the patient. See Natanson I, 186 Kan. at 406-07 (noting that the law does not permit a doctor to substitute his or her own judgment for that of a patient); 1 Pegalis, American Law of Medical Malpractice § 4:1, p. 285 (3d ed. 2005) (“patient autonomy is the value invoked to justify informed consent”).
As a preliminary matter, we note that it is undisputed that Rojas sustained injuries during the hernia surgery. On the fifth day following the surgeiy, Dr. Beech performed exploratory surgery and found perforations in at least three areas of Rojas’ small intestine. Rojas’ expert witness, Dr. Shapiro, opined that bowel perforations discovered within 5 days of surgeiy generally are a result of the surgery itself. Dr. Barker did not dispute this evidence. The remaining issues, then, are (1) whether Dr. Barker had a duty to disclose his planned absence, (2) whether Dr. Barker failed to make that disclosure, and, (3) if so, whether that failure caused Rojas’ injuries.
C. Existence and Breach of a Duty
Rojas asserts that Dr. Barker had a duty to disclose his planned absence following her surgery, and that his failure to do so constituted a breach of Barker’s duty to obtain her informed consent to the surgery. Rojas asserts that if she had been advised of Dr. Barker’s planned absence she would have declined the operation, thus sustaining no injuries.
The existence of a duty is a question of law, subject to de novo review. Robbins, 285 Kan. at 460.
The duty to disclose information under the informed consent doctrine “ Is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances.’ ” Funke, 212 Kan. at 532 (quoting Tatro, 212 Kan. 606, Syl. ¶ 3); see also Natanson I, 186 Kan. at 407 (a physician violates his or her duty to a patient and subjects himself or herself to liability if tire physician withholds any facts which are reasonably necessary to form the basis of an intelligent consent by the patient to the proposed treatment).
Rojas argues on appeal that genuine issues of fact preclude summary judgment on the issue of whether Dr. Barker breached the standard of care as it relates to informed consent. However, Dr. Barker acknowledges in his appeal brief that he “does not dispute the existence of a genuine question of material fact on the prima facie elements of duty and breach of duty.”
Instead, Dr. Barker argues only that the district court properly granted summary judgment on Rojas’ informed consent claim because Rojas cannot establish a causal connection between his alleged deviation from the standard of care regarding informed consent and Rojas’ injuries.
Dr. Barker points out that Rojas voluntarily dismissed her claims of negligence against Dr. Beech. Thus, he reasons that Rojas abandoned her claim that the risk to which she was subjected by Dr. Barker’s failure to inform her of his absence (i.e., a delay in diagnosis or a compromising of her care) caused Rojas’ injuries.
D. Causation
Because the parties agree that genuine issues of material fact remain as to (1) whether Dr. Barker had a duty to disclose his planned absence, and (2) whether he breached that duty, we must next consider whether the district court properly concluded that no genuine issues of material fact remain as to whether Dr. Barker s breach caused Rojas’ injuries. Whether a causal connection exists between the breach and the resulting injury is a question of fact. Calwell v. Hassan, 260 Kan. 769, 777-78, 925 P.2d 422 (1996). Causation is an essential element of any negligence claim, including one based on informed consent. Natanson II, 187 Kan. at 190.
Rojas relies upon Natanson I, 186 Kan. 393, to support her claims regarding causation, which she summarizes at page 12 of her brief: “The effect of the Court’s statements in Natanson is that if a disclosure is not made and the disclosure would have caused the patient not to undergo certain treatment, then causation is proven.”
Dr. Barker strongly disagrees with Rojas’ interpretation of Natanson and relies upon both Natanson I and Funke, 212 Kan. 524, for the proposition that “[w]hile the plaintiff does not need to allege injury was caused by negligence to advance a claim of lack of informed consent, the plaintiff must contend the undisclosed risk materialized and caused harm to plaintiff.” A brief discussion of each of these cases is helpful to our analysis.
In Natanson I, the plaintiff underwent a radical mastectomy and removal of her ovaries and fallopian tubes after being diagnosed with cancer. The defendant physician recommended cobalt irradiation treatment, a relatively new treatment at that time. The defendant failed to disclose to the plaintiff the potentially serious risks of injuiy inherent to cobalt irradiation therapy, including skin, bone, and tissue damage. The plaintiff consented to the treatment and suffered chest, skin, cartilage, and bone damage in the area where she received the cobalt irradiation treatment.
Rojas relies upon the Natanson I court’s statement that because the defendant failed to disclose the serious risks of treatment, the defendant was guilty of malpractice “no matter how skillfully the treatment may have been administered.” 186 Kan. at 411. In discussing causation, the court also pointed out that where “the patient fully appreciates the danger involved, the failure of a physician in his duty to make a reasonable disclosure to the patient would have no causal relation to the injury.” 186 Kan. at 410.
Upon rehearing, the court in Natanson II restated its holding regarding causation using slightly modified terminology. The court found that “a causal relation must be established by the patient, between the negligent act of the physician and the injuiy of the patient, to sustain the burden of proof where damages are sought in a malpractice action for injuiy.” 187 Kan. at 190-91.
The plaintiff would have us ignore the fact that in Natanson I and II, the defendant failed to warn the plaintiff of the risk of the very type of injury which plaintiff eventually suffered. However, we think that fact underlies the court’s holding requiring the patient to establish that had he or she been fully informed of the risks associated with a procedure, the patient would not have agreed to the procedure.
That the plaintiff must suffer injury of the type the physician faded to warn about is evident from the court’s subsequent holding in Funke, 212 Kan. 524. There, the defendant anesthesiologist advised the plaintiff that a headache was the worst side effect the plaintiff could expect from a spinal anesthetic. And, although the defendant administered the spinal anesthetic in a nonnegligent fashion, the plaintiff sustained nerve damage.
The Funke court concluded that the defendant knew or should have known that the administration of spinal anesthesia carried with it more substantial risks than a mere headache, that he misinformed the plaintiff, and that he failed to obtain informed consent. 212 Kan. at 534-35. The court reversed the case for a new trial and indicated that the plaintiff s testimony about whether she would have refused the spinal anesthetic if informed of the additional risks would be relevant but not controlling on the issue of causation. Further, the court clarified that an objective standard must be used to determine whether a reasonable patient in similar circumstances would have refused treatment. 212 Kan. at 535-38.
Of particular significance to our holding in this case are two passages from Funke, which succinctly explain the elements of causation with respect to a claim that the physician breached the duty to obtain informed consent:
“No more than breach of any other legal duty does nonfulfillment of the physician’s obligation to disclose alone establish liability to the patient. An unrevealed risk that should have been made known must materialize, otherwise the omission, however unpardonable, is legally without consequence. Occurrence of the risk must be harmful to the patient, for negligence unrelated to injury is non-actionable. And, as in malpractice actions generally, there must be a causal relationship between the physician’s failure to adequately divulge the risks and damage to the patient. [Citation omitted.]” (Emphasis added.) 212 Kan. at 535.
“If adequate disclosure could reasonably be expected to have caused the patient to decline the treatment or procedure because of revelation of the kind of risk or danger which resulted in her harm, causation is shown, but otherwise not.” (Emphasis added.) 212 Kan. at 537.
Our review of Natanson I, Natanson II, and Funke reveals that a plaintiff proves causation in an informed consent case by showing (1) an objectively reasonable patient would have declined treatment had the patient been advised of a material risk or danger; (2) the patient was not advised of a material risk or danger; and (3) that risk or danger materialized, resulting in harm to the patient.
Despite the court’s seemingly clear statements in Funke regarding causation in an informed consent case, Rojas relies upon this court’s opinion in Wecker, 22 Kan. App. 2d 498, to suggest that causation in an informed consent case does not require proof that the risk that was not disclosed ultimately resulted in injury to the patient.
In Wecker, the defendant physician recommended laser surgery to treat abnormal cells found on the plaintiff s cervix. While the defendant informed the plaintiff that a risk inherent to the laser surgery was excessive bleeding, he did not inform the plaintiff that, in some cases, abnormal cells resolve themselves and nontreatment is a medically acceptable alternative to laser surgery. The plaintiff consented to the surgery, suffered excessive bleeding, and the defendant eventually performed a total hysterectomy to resolve the bleeding.
The Wecker panel concluded that the defendant failed to obtain the plaintiff s informed consent because he failed to disclose the alternative option of nontreatment. The panel reversed and remanded the case for a new trial, concluding the jury should have been instructed that the physician had a duty to disclose the alternative option of nontreatment, and that the plaintiff s testimony as to whether she would have declined the surgery would be relevant to establish whether a reasonable patient in the same situation would have declined surgery. 22 Kan. App. 2d at 503-05.
As Dr. Barker points out, Wecker could not have modified our Supreme Court’s prior holdings regarding the elements required to establish causation in an informed consent case. Instead, he suggests Wecker merely expands existing “informed consent jurisprudence” to include the requirement that physicians inform patients of the option of refusing medical treatment when doing so would be a reasonable alternative to the treatment proposed.
Like Dr. Barker, we read Wecker narrowly. We note that the Wecker panel considered a failure to inform of alternative treatments, not the failure to inform of risks of a planned treatment. While the instant case arguably falls on a continuum somewhere between these two types of claims, we think it more closely resembles the latter claim rather than the former.
The primary concerns of a patient advised that her surgeon will be unavailable for postsurgical follow-up would certainly include the risk that the patient would not receive proper postoperative care and treatment, or that a complication of the surgery would go undiagnosed or would not be timely diagnosed. Significantly, Rojas made none of these allegations, nor any other allegation of negligence with respect to her postsurgical care.
Finally, we note that to the extent that Wecker cannot be reconciled with the holding of Funke, we are bound by the Supreme Court’s clear statements in Funke regarding die proof required to establish causation for a claim of failure to obtain informed consent.
We conclude the material, uncontroverted facts demonstrate that Rojas failed to establish a causal connection between the alleged breach of Dr. Barker’s duty to obtain Rojas’ informed consent and her injuries. The district court appropriately granted partial summary judgment to Dr. Barker on Rojas’ informed consent claim.
E. Damages
As Rojas acknowledges in her appeal brief, this court’s conclu sion that the district court properly granted partial summary judgment on her informed consent claim renders moot her claim that the district court erred in sustaining Dr. Barker s motion to limit evidence regarding damages. Hence, we decline to consider that issue.
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Hill, J.;
Because of the way our statutes are drafted, there is often more than one way to commit a crime. For example, if a driver is under the influence of alcohol to a degree that he or she is unable to drive a car safely, he or she is guilty of driving under the influence of alcohol. See K.S.A. 2006 Supp. 8-1567(a)(3). In like manner, if the concentration of a driver s blood alcohol exceeds the legal limit within 2 hours of driving, that driver is guilty of driving under the influence of alcohol. See K.S.A. 2006 Supp. 8-1567(a)(2).
In Neis F. Baatrup’s case, the trial court told the jury the State had presented two alternative charges. First, Baatrup was incapable of driving safely because of alcohol consumption. Second, Baatrup was driving with a blood alcohol concentration exceeding the legal limit 2 hours after driving. The court told the jury the two theories make up one crime and the jurors had to sign the verdict form for the theory upon which they all agreed. The jury signed both verdict forms. Obviously, the jury found Baatrup guilty of driving under the influence of alcohol.
In this question reserved for appeal, the State wants us to rule that it is no longer necessary to instruct the jury as the trial court did here because of recent rulings by the Kansas Supreme Court. The State contends the trial court’s jury instruction was misleading because it made the jurors all agree on one theory or the other. In the State’s view, all the jury needed to agree on was the guilt of Baatrup. The State argues that some of the jurors could find him guilty under one theory and some guilty under the other, but they all must agree he was guilty.
We hold this case is a multiple acts case because Baatrup’s acts that give rise to the conviction are not one course of conduct and they are factually separated. Under the first theory, Baatrup must act in such a way that it shows he was incapable of driving a car safely because of alcohol consumption. Under the second theory, Baatrup must simply have an illegal blood alcohol content within 2 hours of driving. Therefore, we hold the jurors must all agree on the theory of guilt. Under these facts, it is proper to give the instruction to the jurors to sign the verdict form on which they all agree, as tire trial court did here.
We repeat the background facts and repeat the court’s instruction.
In February 2006, the State charged Neis F. Baatrup with one count of driving under the influence of alcohol or drugs. The State asserted two theories. The State contended under K.S.A. 2006 Supp. 8-1567(a)(3) that Baatrup, while driving, was under the influence of alcohol to a degree that made him incapable of safely driving a car. In the alternative, the State asserted under K.S.A. 2006 Supp. 8-1567(a)(2) that Baatrup, while driving, had an alcohol concentration in his breath of .08 or more as measured within 2 hours of the time of operating the car.
The court held a jury trial in 2006. At the instructions conference, the district court presented instructions for both of the State’s theories. Because the court intended to instruct the jury about both theories, the district court proposed to give instruction No. 9 to the jury. The State objected to this instruction, and it is from this matter the State appeals.
Instruction No. 9 uses language from PIK Crim. 3d 70.01-B:
“INSTRUCTION NO. 9
“The defendant is charged in the alternative with operating a vehicle while having a blood alcohol concentration of .08 or more or operating a vehicle while under the influence of alcohol. You are instructed that the alternative charges constitute one crime.
“You should consider if the defendant is guilty of operating a vehicle while having a blood alcohol concentration of .08 or more and sign the verdict upon which you agree.
“You should further consider if the defendant is guilty of operating a vehicle while under the influence of alcohol and sign the verdict upon which you agree.” (Emphasis added.)
At the end of the trial, the district court read instruction No. 9 to the jury. By signing both verdict forms, the jury found Baatrup guilty of driving under the influence in violation of K.S.A. 2006 Supp. 8-1567 by operating a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a car. Also, the jury found Baatrup guilty of driving under the influence by having an alcohol concentration in his blood of .08 or more within 2 hours of driving.
The State’s specific question merits review.
The question reserved by the State, as stated in its notice of appeal, asks whether
“a jury in order to find a defendant guilty of driving under the influence as defined by K.S.A. [2006 Supp.] 8-1567 must make an unanimous determination that either a defendant’s alcohol concentration exceeded die legal limit or the defendant was under the influence to a degree that rendered the defendant incapable of safely driving a vehicle; or whether a jury may rely upon alternative means to find a defendant guilty of driving under the influence.”
The question reserved by the State has the likelihood of arising in the future. K.S.A. 2007 Supp. 8-1567(a) has kept the same language from K.S.A. 2006 Supp. 8-1567(a), and the issue raised in this appeal is not fact-specific. See L. 2007, ch. 181, sec. 9; July 1. For those reasons, resolution of this question will provide helpful precedent in future cases. Therefore, we keep jurisdiction under K.S.A. 22-3602(b)(3).
The basis of the State’s argument relies on a recent Supreme Court case.
Citing State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007), the State argues that a unanimous verdict for its alternative theory under K.S.A. 2006 Supp. 8-1567(a)(2) is not needed so long as the jury unanimously agrees the defendant is guilty of the crime of driving under the influence. Based on this argument, the State requests this court to find that giving PIK Crim. 3d 70.01-B instruction is no longer necessary for driving under the influence of alcohol prosecutions.
This is a question of law. Therefore, this court exercises unlimited review over issues of jury unanimity. Stevens, 285 Kan. at 312. Under K.S.A. 22-3421, a criminal defendant has the right to a unanimous jury. See also K.S.A. 22-3423(1)(d) (mistrials). But we note that the right to a unanimous juiy verdict is not constitutional in origin but statutory. See State v. Holt, 285 Kan. 760, 766-67, 175 P.3d 239 (2008).
We examine first the doctrine of jury unanimity.
Our Supreme Court directs the threshold question in any unanimity challenge is to first decide whether the defendant’s conduct under the statute is part of one act or represents multiple acts which are separate and distinct from each other. Stevens, 285 Kan. at 313-14; State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007).
“ ‘ “In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. . . . [Citations omitted.] Whether a case is a multiple acts case is a question of law over which this court has unlimited review. [Citation omitted.]” State v. Danis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The threshold question in a multiple acts analysis is whether the defendant’s conduct is part of one act or represents multiple acts which are separate and distinct from each other. [Citation omitted.]’ (Emphasis added.)” Voyles, 284 Kan. at 244.
Therefore, to ensure juiy unanimity in multiple acts cases, “ ‘either the State must inform the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.’ ” (Emphasis added.) Voyles, 284 Kan. at 244-45; see also Stevens, 285 Kan. at 313 (stating the jury must be unanimous on which act or incident constitutes the crime).
The need for jury unanimity for each criminal act distinguishes multiple acts cases from alternative means cases. In alternative means cases, jury unanimity is needed only on guilt for the single crime charged; the juiy need not be unanimous about the means by which the crime was committed so long as substantial evidence supports each alternative means. State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994); see generally Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Cases in Kansas, 44 Washburn L.J. 275 (2005) (discussing Kansas case law’s historical approach to alternative means and multiple acts cases); Voyles, 284 Kan. at 252, 262-63.
To decide whether multiple acts are involved, we apply the test described in State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 175 (2005). Kesselring states that incidents are not continuous when they are “factually separated.” 279 Kan. at 683. “ Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by “a fresh impulse.’ ” [Citation omitted.]” 279 Kan. at 683; cf. State v. Staggs, 27 Kan. App. 2d 865, Syl. ¶ 2, 9 P.3d 601, rev. denied 270 Kan. 903 (2000) (“When the factual circumstances of a crime involve a short, continuous, single incident comprised of several acts individually sufficient for conviction, jury unanimity requires only that the jury agree to an act of the crime charged, not which particular act.”); see also PIK Crim. 3d 68.09-B, Notes on Use.
We examine State v. Stevens.
In Stevens, tire Kansas Supreme Court applied the Kesselring test to decide whether “operating” or “attempting to operate” under K.S.A. 2006 Supp. 8-1567(a)(3) constituted multiple acts. 285 Kan. at 314. In that case an officer was called to a residence for a criminal trespass complaint. On arrival, the officer saw the defendant exit the driver’s side of his Jeep and stumble towards the residence. After the officer approached the defendant, the officer noticed a strong odor of alcohol coming from the defendant. When asked, the defendant admitted to drinking but refused to explain why he got out of the driver’s side of the Jeep. At the Jeep, the officer saw the key in the ignition, an alcoholic drink can in both the driver’s side and passenger’s side door cup holders, and a brown paper bag containing a half-empty bottle of whiskey. After he was arrested, the defendant gave a deficient breath-test sample. 285 Kan. at 311, 317.
From this evidence, the State charged the defendant with “operating or attempting to operate” a motor vehicle while under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(a)(3). Under this charge, defense counsel asserted the State was, in reality, asserting two theories: “operating” or “attempting to operate”; thus, defense counsel requested the State choose its theory of prosecution. The court denied this request and allowed the State to proceed under both theories. The defendant was convicted of operating or attempting to operate a vehicle while under the influence of alcohol. 285 Kan. at 311.
On appeal, the defendant argued the district court erred in not requiring the State to elect its theory of prosecution to ensure his right to a unanimous jury verdict. Specifically, the defendant suggested that because operating or attempting to operate were set out together, it was unclear which act served as the basis for his conviction. The Court of Appeals rejected this argument. Declining to adopt the defendant’s argument for a multiple acts analysis, the Court of Appeals viewed the case as an alternative means case. In applying the standards for alternative means cases, the Court of Appeals found there was enough evidence to support both theories of “driving” and “attempting to drive” under the influence of alcohol. 285 Kan. at 312-13.
The Supreme Court examined the facts against the multiple acts test set forth in Kesselring. The Court held that “Stevens’ conduct did not consist of multiple acts; rather, it was a continuing course of conduct not motivated by a fresh impulse. Thus, a further multiple acts analysis is unwarranted.” 285 Kan. at 314. In affirming the Court of Appeals’ decision, the Supreme Court decided that “the DUI statute . . . provides alternative means of committing tire same crime.” 285 Kan. at 316.
Here, the State asks this court to find the same result. But when we apply Stevens to the circumstances in this case, we drink a multiple acts analysis becomes warranted. For example, to support a guilty verdict under K.S.A. 2006 Supp. 8-1567(a)(3), a defendant must commit acts showing the defendant was operating or attempting to operate a vehicle while under the influence of alcohol to a degree that the defendant was incapable of safely driving a car. In contrast, under K.S.A. 2006 Supp. 8-1567(a)(2), the only “act” the defendant must commit is producing a blood or breath alcohol concentration test result that exceeds the legal limit within 2 hours of the time of operating a car. Through the requirements of K.S.A. 2006 Supp. 8-1567(a)(3) and K.S.A. 2006 Supp. 8-1567(a)(2), a defendant’s conduct becomes factually separated. Therefore, under the test in Kesselring, this case becomes a multiple acts case.
In dealing with this issue the district judge reasoned:
“The thing that — as I sort of process this, is one concern about just saying, well, eight could vote for .08, and four could vote for impairment or whatever or some mixture, if there is some issue, if a case goes up on appeal with regard to insufficiency of evidence on one or the other, I don’t — you know, it’s unclear to me whether — because it’s charged alternatively with different sections, whether or not the court might then send it back for a total retrial because they couldn’t figure out which of the two was — if you combined the verdict form. Because I think if we change this we probably have to combine the verdict form in the alternative, that the jury could either find that the defendant was operating the vehicle while having the blood alcohol concentration of .08 or more, or while under tire influence of alcohol to the extent that he was impaired.
“So I guess I have a little bit of a problem as to which it is, based on the way that the statute is written. And part of me thinks it’s a little cleaner to actually have two separate instructions and, obviously, the alternative instruction, and then also two separate verdict forms.” (Emphasis added.)
Obviously, the district court looked at the statute first and recognized Baatrup’s actions called for more than one verdict form so the jury could either agree on one or tire other (or both as they did here). There are different facts for each theory in this case.
We believe this finding is consistent with Stevens because the Supreme Court relied on the same set of facts in deciding diere was enough evidence to support either the theory of “operating” or “attempting to operate.” See 285 Kan. at 316-17. The district court was correct in overruling the State’s objection and directing die jury to give separate verdicts for each of the State’s theories under its version of PIK Crim. 3d 70.01-B.
Appeal denied. | [
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Paddock, J.;
This is a personal injury action resulting from injuries received by Bobby G. Robison when he slipped and fell in a wet hallway between a swimming pool and a locker room. Bobby and his wife, Alma, appeal the order of summary judgment denying their claims for damages for Bobby’s injury.
We affirm.
Bobby had been using the pool during a swimming program sponsored by the Labette County Community College (Labette). The pool was in a building owned by the State of Kansas and housed the Parsons State Hospital (State Hospital). The facility is under the custody and control of the Secretaiy of the Kansas Department of Social and Rehabilitation Services (SRS).
The defendants’ motion for summary judgment stated that the Robisons’ claims were barred by the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., and the recreational land use statute, K.S.A. 2000 Supp. 58-3203, and there was a failure to state a claim under any theory of premises liability. The district court sustained the defendants’ motion but, unfortunately, failed to state on which ground summary judgment was granted.
The standard of review of summary judgments has recently been stated in Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000), and will not be repeated here.
We will first determine if the Robisons’ claims were barred by the KTCA— specifically, the recreational use exception of the Act at K.S.A. 2000 Supp. 75-6104(o), which states:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
“(o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
“The plain language of the statute makes it clear that immunity exists for any claim for negligendy caused injuries resulting from the use of public property intended for recreational purposes.” Nichols v. U.S.D. No. 400, 246 Kan. 93, 95, 785 P.2d 986 (1990).
The Robisons contend that the defendants are not excluded from liability under the recreational use exception of the KTCA because the State Hospital swimming pool is not “public property intended or permitted to be used as a park, playground, or open area for recreational purposes.” The Robisons argue that the swimming pool was not “built for members of the public so they would have a place to gather or meet” and it should not be considered public property under the exception. The Robisons opine that the swimming pool was built for the sole purpose of providing services to the residents of the hospital.
We have no difficulty in determining that the swimming pool at the State Hospital was public property. K.S.A. 2000 Supp. 75-6104(o) does not require the facility to have been built specifically for the recreational use of the public; the statute only requires that it be public property. The fact that the public only had restricted use of the property does not keep it from being public property.
“Limited access to governmental properly does not mean that the property is not ‘public.’ The government can restrict the times in which public property is used. The government can restrict the way in which public property is used. Governmental entities often charge a fee for entry onto public property. Sometimes admission is altogether denied if another group has already reserved the use of the public property. Even though the government restricts property in these ways, it remains ‘public property. [Citation omitted.]’ ’’ Jackson v. U.S.D. 259, 268 Kan. 319, 323, 995 P.2d 844 (2000).
Here, the property was used by residents of the State Hospital, by Labette, and under other circumstances when prior use arrangements were made. Bobby was not enrolled as a member of the Labette swimming class. He was attending the class for rehabilitation purposes following knee replacement surgery and had arranged to use the pool as a guest of a swimming student.
The swimming pool was public property within the meaning of the recreational use exception. The State Hospital allowed members of the public to have access to the pool under a controlled environment and with prior permission. Bobby was a member of the public.
Next, the Robisons claim summary judgment was improperly granted because a question of fact existed as to whether the swimming pool facility was used for recreational purposes. We disagree. Swimming has been established as a recreational activity for the purposes of K.S.A. 2000 Supp. 75-6104(o). Gonzales v. Board of Shawnee County Comm’rs, 247 Kan. 423, Syl. ¶ 4, 799 P.2d 491 (1990).
In support of their argument that Bobby’s use of the pool could be classified as nonrecreational, the Robisons compare Bobby’s situation to that of the middle school student in Jackson who was injured while participating in a required physical education class during the course of a regular school day. In Jackson, the Kansas Supreme Court remanded the case to the district court for a determination of whether the premises were intended or permitted to be used for recreational purposes. 268 Kan. at 333.
Unlike the situation in Jackson, Bobby was not enrolled in a swimming class offered by Labette. In any event, the swimming class was not compulsory for the purposes of education. It was a class offered as a service to the public for recreational and rehabilitative purposes. The superintendent of the State Hospital testified the swimming pool is open for public use for education, rehabilitation, and recreation. At the district court level, the Robisons concentrated their arguments on the fact that the pool was not open to the “general” public rather than whether the pool was used for recreational purposes. In fact, the Robisons admitted the recreational use of the pool when, in response to Labette’s motion for summary judgment, the Robisons stated: “The pool was to be used for recreation of clients at the Parsons State Hospital and Training Center but not for the general public.”
The Robisons also argue that the injury occurred in the hallway rather than in the swimming pool and that the hallway is not intended or permitted to be used for recreational purposes. The Kansas Supreme Court has already rejected this argument when it applied the KTCA recreational use statute to injuries occurring on the way from a practice field to the locker room. Nichols, 246 Kan. at 97.
The Robisons next argue that evidence of gross and wanton negligence was presented to overcome the recreational use exception. Wanton conduct is established by the mental attitude of the wrongdoer rather than by the particular negligent acts. Friesen v. Chicago, Rock Island & Pacific Rld., 215 Kan. 316, 322, 524 P.2d 1141 (1974). Wantonness requires that there be a realization of imminent danger and reckless disregard, indifference, and unconcern for probable consequences. 215 Kan. at 323.
The Robisons have failed to present any evidence of the mental attitude of a wrongdoer which would establish gross and wanton conduct. There was no evidence to establish that any of the defendants’ employees knew about an excess amount of water in the hallway which might cause a fall. The Robisons point out that the employees knew the floor mats had been removed from the hallway. Bobby Robison also knew the mats were no longer in the hallway. The Robisons also failed to allege gross and wanton negligence in the K.S.A. 2000 Supp. 12-105b(d) notice of claim. The Robisons’ argument lacks merit.
The recreational use exception of the KTCA bars the Robisons’ claim. Thus, we need not consider the remaining issue raised by the parties.
Affirmed. | [
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Pierron, J.:
Derwin Stewart appeals the district court’s summary denial of his K.S.A. 60-1507 motion.
In 1996, Stewart was charged with aggravated assault and reckless second-degree murder following an incident where Stewart had struck a woman at least twice with his vehicle. Following a juiy trial, Stewart was convicted as charged and sentenced to 154 months for reckless second-degree murder and 12 months for aggravated assault, to be served consecutively.
On direct appeal, Stewart argued that the jury’s view of the crime scene without his presence violated his due process rights, and the district court erred in failing to give the lesser included offense instruction of involuntary manslaughter based upon the use of excessive force during self-defense. Stewart’s convictions were affirmed. Our court found there was no factual basis to support the theory of self-defense. Thus, the court did not err by failing to instruct on the lesser included offense of involuntary manslaughter based upon the use of excessive force during self-defense.
Stewart then filed a K.S.A. 60-1507 motion alleging ineffective assistance of counsel, insufficient evidence, and several trial errors. The district court found the motion, files, and records of the case conclusively showed that Stewart was not entitled to relief, and summarily dismissed the motion.
Initially, Stewart takes issue with the summary denial of his motion, claiming that under Supreme Court Rule 183(j) (2001 Kan. Ct. R. Annot. 210), the district court erred by not issuing findings of fact and conclusions of law on each of his claims. The court’s journal entry stated: “The relief prayed for can not be granted as the motion, the files and records of the case conclusively show that Plaintiff is not entitled to relief; that a plenaiy hearing is not required; that the petitioner need not be produced for a hearing.” The journal entry then cited four cases that purportedly addressed the bulk of Stewart’s issues raised in his motion.
Under Rule 183 (j), the district court is required to make findings of fact and conclusions of law on all issues presented. This issue was recently addressed in State v. Bolden, 28 Kan. App. 2d 879, 24 P.3d 163, rev. denied 271 Kan. 1038 (2001). Bolden’s post-sentence motion to withdraw his guilty plea was summarily denied. The order stated there were no appearances; the motions, files, and records of the case did not show manifest injustice; and Bolden’s conclusory allegations did not entitle him to relief. The order did not address each of Bolden’s arguments individually. The Bolden court stated:
“Last year, in State v. Moncla, 269 Kan. 61, 4 P.3d 618 (2000), the Kansas Supreme Court made clear that Rule 183(j) has teeth. Monda had filed a motion for new trial based on newly discovered evidence, which included affidavits that stated another person had admitted to involvement in the murder for which Monda was convicted. After a nonevidentiary hearing, the district judge said only: ‘ “Thank you very much. At this time, based upon all matters before the Court, based upon the record which occurred at the trial, after reviewing all these matters, the court feels that a new trial is not proper at this time. I will overrule the motion.” ’ 269 Kan. at 63.
“On appeal, Monda argued the district court should have held an evidentiary hearing to explore the credibility and materiality of the evidence and should have explicitly analyzed and ruled upon the evidence alleged to be newly discovered. The Kansas Supreme Court held Monda had no automatic right to an evidentiary hearing, but it compared the procedure for motions for new trial to the procedure for K.S.A. 60-1507 motions. It found that the district court’s ruling did not comply with Rule 183(j). 269 Kan. at 64-65.
“Observing that it could only speculate as to the basis of the district court’s decision, the court said:
‘The merits of Moncla’s motion aside, the fundamental problem with the district court’s approach here is that it impedes appellate review. How are we to review the decision, even under the abuse of discretion standard, when neither findings nor conclusions based on the findings are stated? Motions for new trials, like many 60-1507 motions, may be meritless and, thus, not entitled to evidentiary hearings. However, the district court must tell us what its findings are and why it concluded the motion to be without merit if we are to conduct any sort of meaningful appellate review.’ 269 Kan. at 65.
“Moncla counsels us to monitor district court compliance with Rule 183(j) more strictly than we may have in tire past. Compare Jackson, 255 Kan. at 462 (affirming denial of motion because movant failed to allege sufficient factual basis in motion); Wright v. State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980) (affirming denial of motion without a hearing because movant failed to show new evidence would add to that already in the record). Under Monda, the district court’s order in this case was insufficient because it failed to make findings of fact and conclusions of law regarding each of Bolden’s arguments. The court’s failure to address the two-part ineffective assistance of counsel test is very similar to the court’s neglect of the applicable test for newly discovered evidence in Monda. Even if this case were not ripe for reversal for an evidentiary hearing, it would be remanded for compliance with Rule 183(j).” Bolden, 28 Kan. App. 2d at 883-84.
The journal entry in the instant case is very similar to that in Bolden. Under Bolden and Monda, the district court’s order in this case was insufficient because it failed to make findings of fact and conclusions of law regarding each of Stewart’s arguments. Boilerplate journal entries such as tire one used in the instant case do not comply with Rule 183(j). This case must be remanded for compliance with Supreme Court Rule 183(j) before review can be attempted.
Remanded with directions. | [
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Pierron, J.:
American Warrior, Inc. (AWI) appeals the Board of Tax Appeals’ (BOTA) denial of its application for exemption from ad valorem taxation.
Under authority of Article 11, § 13 of the Kansas Constitution, AWI submitted an application for ad valorem tax exemption to BOTA and requested a hearing.
BOTA received the application on June 24,1999, and scheduled the hearing for August 24, 1999.
On August 16, 1999, AWI notified BOTA that the application was for preapproval of the tax exemption and requested the scheduled hearing be cancelled. AWI requested BOTA “to determine its approval of our request- based on the merits of the project and the support of the county.”
On August 20, 1999, BOTA refused to act on the application until the project was complete. BOTA indicated it would cancel the hearing and hold the application until the new business commenced operations.
After making several requests for the status of the project, BOTA rescheduled the hearing for July 19, 2000. On July 14, 2000, AWI requested the rescheduled hearing be postponed again due to further delays in the project. On July 17, 2000, BOTA’s counsel indicated BOTA would postpone the hearing until AWI commenced operations and requested additional status reports. On March 17, 2001, AWI informed BOTA the project was operational.
BOTA received the completed packet on March 20, 2001. It published its order on April 11, 2001, without a hearing. Citing the definition of “manufacturer” found in K.S.A. 79-201m, BOTA found AWI did not qualify for the constitutional ad valorem tax exemption.
Specifically, BOTA found:
“[T]he applicant’s use of the property is not an exempt use because the collection and sale of natural gas and its by-products is not manufacturing. The applicant does not transform, refine or combine the gas with any other material to convert it to another form. The Board concludes that, because the collection and sale of natural gas and its by-products cannot be classified as manufacturing, research and development, or storage of goods or commodities, the Board finds that the applicant has failed to comply with the requirements of the Kansas Constitution.”
On April 24, 2001, AWI sought reconsideration of BOTA’s decision and again asked for a hearing. AWI explained the Ness County plant converted substandard natural gas into at least two other products:
“Through the processes involved in the Ness Gas Plant operation, which include compression and cooling to below 250 degrees below 0, the gas is transformed and refined into the two marketable products, helium and compressed industrial gas. These products are delivered to tank trucks and pipeline for sale at the plant outlet.”
In a memorandum order certified .May 1, 2001, BOTA acknowledged AWI’s timely request and denied reconsideration without hearing, because “no new or additional evidence is offered that would persuade [BOTA] the original order should be modified or that reconsideration should be granted.”
AWI made timely petition for judicial review May 29, 2001.
Judicial review of a state administrative agency is authorized under the Kansas Act for Judicial Review (KJRA), K.S.A, 77-601 et seq. The taxpayer has the burden of showing the action taken by BOTA was erroneous. K.S.A. 77-621(a). In re Appeal of Water Dist. No. 1 of Johnson County, 26 Kan. App. 2d 371, 372, 988 P.2d 267, rev. denied 268 Kan. 846 (1999).
In April 1986, the legislature passed the legislation for what was to become Article 11, § 13 of the Kansas Constitution. This legislation allowed localities to exempt certain properties within their jurisdiction from ad valorem taxation for 10 years. Prior to this amendment, only the legislature had authority to authorize these exemptions. The original amendment made no explicit provision for review of these exemptions by BOTA. L. 1986, ch. 423, sec. 1. As early as January 13,1987, the Kansas Attorney General claimed BOTA had authority to review the exemptions approved under this section of the constitution. (See Att’y Gen. Op. No. 87-5.)
In 1990, the legislature clarified its intent and made this exemption process explicitly subject to the review of BOTA. Pursuant to K.S.A. 79-213(m), the applicant had to receive BOTA’s approval to obtain the ad valorem exemption. L. 1990, ch. 345, sec. 4.
After the applicant provides BOTA with the documents required by K.S.A. 2001 Supp. 79-251, BOTA’s decision process is governed by K.S.A. 2001 Supp. 79-213(g):
“After examination of the request for exemption, and the county appraisers recommendation related thereto, the board may fix a time and place for hearing, and shall notify the applicant and the county appraiser of the time and place so fixed. A request for exemption pursuant to: (1) Section 13 of article 11 of the Kansas constitution;. . . shall be deemed approved unless scheduled for hearing within 30 days after the date of receipt of all required information and data relating to the request for exemption, and such hearing shall be conducted within 90 days after such date. Such time periods shall be determined without regard to any extension or continuance allowed to either party to such request. In any case where a party to such request for exemption requests a hearing thereon, the same shall be granted. Hearings shall be conducted in accordance with the provisions of the Kansas administrative procedure act.” (Emphasis added.)
The emphasized text was added by the legislature in 1998. L. 1998, ch. 146, sec. 5.
In this case, AWI contends BOTA violated due process by issuing its order without a hearing. Since AWI requested a hearing, BOTA was required to schedule a hearing within 30 days of receipt of the complete application. By not scheduling the hearing within 30 days of March 20, 2001, AWI contends that BOTA allowed the application to be approved by operation of law.
BOTA may decide appeals without a hearing if the parties agree to submit the action to BOTA based on the record, or where there are no material facts at issue and the decision is based only on questions of law. In re Tax Appeal of Colorado Interstate Gas Co., 258 Kan. 310, 318, 903 P.2d 154 (1995).
BOTA can take the position that it accepted all the facts that AWI submitted in support of its application. Therefore, no hearing was necessary. Its function was only to interpret law as applied to the given facts.
BOTA can also claim that AWI waived the hearing. AWI requested a hearing in its application, but in August 1999, AWI’s controller asked BOTA to cancel the public hearing and asked BOTA to decide the application “on the merits of the project and the support of the county.”
This statement could be seen as a waiver, but BOTA did not interpret it as one. On June 9, 2000, BOTA rescheduled the hearing after the “waiver.”
Material issues of fact also seemed to exist after March 20,2001. AWI had not explained the process used to extract helium and nitrogen from the waste gas input. It appears BOTA made its decision on facts not given in the record presented to it. In its initial order, BOTA stated AWI’s project involved only “collection and sale of natural gas and its byproducts.” This is not what AWI claimed to be doing in its Ness County plant, and AWTs claims are unchallenged.
As BOTA did not schedule a hearing in this case within 30 days of the completion of the application, the application might be deemed approved by operation of K.S.A. 79-213(g). However, the record is quite confusing as AWI requested cancellation of the hearing, and there was some difficulty in determining if there was a complete record.
We believe BOTA made its decision on the record now before us, and we may, as a matter of law, determine if property is exempt from ad valorem taxation. Board of Johnson County Comm’rs v. St. Joseph Hosp., 241 Kan. 613, 614, 738 P.2d 454 (1987). We will, therefore, review the substantial issues involved.
Tax statutes are construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify. The burden of proof is on the person asserting the exemption to bring himself or herself within the exemption statute. In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 246, 891 P.2d 422 (1995).
AWI contends that BOTA erred by (1) challenging the county commissioners’ findings; if BOTA did have the authority to review the county commissioners’ factual findings, it erred by (2) not classifying its Ness County project as “manufacturing” or “refining” for purposes of Article 11, § 13 of the Kansas Constitution.
At the time the legislature added Article 11, § 13 to the Kansas Constitution, BOTA did not explicitly have the power to review these exemptions. The legislature added K.S.A. 79-213(m) in 1990. This subsection mandates BOTA review of these applications and allows hearings.
Under K.S.A. 74-2438, BOTA takes other tax appeals de novo. Even before the inclusion of 79-213(m), the executive branch believed BOTA had authority to examine the “legal and factual basis of any such exemption and to determine its merits.” Att’y Gen. Op. No. 87-5. In the scheme of the statutes, there is evidence of legislative intent to allow BOTA to review and find facts. In the nature of things, BOTA’s review is necessary as a curb on potential excesses. Thus, the statute was apparently designed to permit BOTA to review the determinations of county commissions. AWI’s argument in this respect fails.
We must then determine whether BOTA correctly interpreted the statutes. Manufacturing is defined by Kansas statute and refined by case law.
K.S.A. 79-201m(a)(2) defines “manufacturer” as any person, company, or corporation who is “engaged in the business of transforming, refining or combining materials and labor to convert tangible personal property from one form to another including packaging.”
In Appeal of Water Dist. No. 1 of Johnson County, 26 Kan. App. 2d at 377, this court held that the initial pressurization of river water, until it reached pumping stations, is a manufacturing pro cess. The pressurization of the water changed its character and quality and thus transformed the water.
Earlier, the Kansas Supreme Court had found that a grain elevator operator who blended, cleaned, dried, and aerated grain produced a different product than it received. By enhancing a product’s value, the taxpayer was involved in “production, manufacture, processing, . . . refining or compounding” and gained a tax exemption. In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. at 251-52.
It is not disputed that AWI’s Ness County plant pressurizes unmarketable natural gas. The result of the process is the splitting of unmarketable natural gas into marketable helium, nitrogen, and marketable natural gas. This appears to fit squarely within the statutory and common-law definition of manufacturing used in Kansas.
K.S.A. 2001 Supp. 74-2433 binds BOTA to the prior judicial decisions of the Court of Appeals and the Kansas Supreme Court. Therefore, we conclude, as a matter of law, that the process here qualifies as manufacturing as defined in our statute, and BOTA’s finding to tire contrary was in error.
Reversed. | [
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Beier, J.:
Paul A. Miller appeals the district court’s revocation of his probation and imposition of his underlying prison term without consideration of placement in a community intermediate sanction center (CISC). He further appeals from the imposition of a $1,000 fine.
Miller entered a guilty plea to burglary of a farm building, a severity level 7 felony. The district court placed Miller on probation for 36 months, with an underlying prison sentence of 23 months. The court also levied a fine of $1,000 and ordered restitution of $200 and payment of other costs and fees of approximately $500.
A year later, the court found Miller had violated his probation conditions. Noting Miller’s criminal history of more than nine felonies, his past failure to appear in court, and his age of 24 years, the court concluded the Labette Correctional Conservation Camp was not an appropriate placement. The court ordered Miller to serve his original prison sentence without discussing any other alternative placement.
Consideration of a CISC
Miller argues the district court committed reversible error when it failed to consider placing him in a CISC, as required by K.S.A. 1998 Supp. 21-4603d(a), before ordering him to prison.
Interpretation of a statute is a question of law over which an appellate court exercises unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998). When a statute is plain and unambiguous, the court will not speculate as to the legislative intent behind the statute and will not read such a statute to add something not readily found therein. State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995).
K.S.A. 1998 Supp. 21-4603d(a) provides in pertinent part:
“[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid or grid blocks 5-H, 5-1 or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, 3-1, 4-E or 4-F of the sentencing guidelines grid for drug crimes, the court shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections pursuant to K.S.A. 75-52,127, and amendment thereto or a community intermediate sanction center. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp’s or a community intermediate sanction center’s placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.” (Emphasis added.)
Miller concedes the district court explicitly considered placement at Labette and decided it was not appropriate for him. However, he insists the court still was required to consider placement in a CISC explicitly and to reject it for reasons it put on the record before sending him to prison. The State responds that the “or” in the first sentence of the passage quoted from the statute contradicts Miller’s argument. In its view, either consideration of Labette or consideration of another conservation camp or consideration of a CISC is sufficient. The district court need not explore each placement in each case.
The problem with the State’s argument is that it requires us to ignore the second sentence of the quoted passage. The second sentence makes it clear that the legislature expected the district judge to address each of the possible alternative settings in each case. No defendant was supposed to be sent to one of Kansas’ full or filling prisons without explicit consideration and rejection of each of the listed nonprison possibilities. This includes any available CISC.
The issue then becomes whether such an animal exists anywhere in Kansas and, if so, whether it was intended to house qualified offenders only from the judicial district or community in which it is located or offenders from anywhere in the state. Nothing in the record in this case answers the first question, and our thorough review of the statute’s legislative history and subsequent legislative action authorizing spending for the creation of CISCs sheds no light on the second question.
In State v. Morrison, (Case No. 84,823, unpublished opinion filed July 13, 2001), our Supreme Court, after granting review of a Court of Appeals decision, remanded the case for resentencing when neither Labette nor a CISC had been considered by the district judge. The justices rejected the reasoning of a prior opinion from this court that the district judge’s omission did not merit reversal because the offender did not meet admission criteria for Labette and no CISC existed anywhere in the state. In essence, according to Morrison, a district court’s failure to abide by the mandatory language of K.S.A. 1998 Supp. 21-4603d(a) can never be harmless.
The Court of Appeals panel’s finding in Morrison that CISCs were “no more real than the emperor’s new clothes,” State v. Morrison (Case No. 84,823, unpublished opinion filed February 9, 2000), had been based on a letter submitted by defense counsel in response to an order to show cause. The letter stated that, although money had been approved by the legislature in 1998 for the creation of CISCs, the centers never materialized. A later letter from defense counsel asserted that the first letter was in error and that one such center was located in Wichita.
On remand from the Supreme Court, District Judge Gregory L. Waller ultimately entered an order in Morrison that the center in Wichita that had been described by its facilities coordinator as a CISC was not, in fact, a CISC as that designation is used in the statute. Although we would like to take judicial notice of Judge Waller s finding, even though it is limited in scope, we cannot.
Judicial notice shall be taken only of
“the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States, and of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.” K.S.A. 60-409(a).
Judicial notice may be taken only of
“(1) private acts and resolutions of the Congress of the United States and of the legislature of this state, and duly enacted ordinances and duly published regulations of governmental subdivisions or agencies of this state, and (2) the laws of foreign countries and (3) such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, and (4) specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.” K.S.A. 60-409(b).
Given the conflicting information supplied to tire courts so far, it is plain that the status of the Wichita facility is not a candidate for judicial notice. See also Jones v. Bordman, 243 Kan. 444, 459, 759 P.2d 953 (1988) (court may not take judicial notice of contested factual findings reached by another court). Moreover, even if we could take judicial notice of Judge Waller’s finding regarding the Wichita facility, the mysteries only deepen as to what other CISCs may or may not exist in Kansas and from where their residents may come.
We have no choice but to reverse this case and remand to the district court for an evidentiary hearing to determine whether any CISCs exist statewide and, if so, whether they were intended to be available as nonprison placement options only for offenders from their home judicial districts or communities, as opposed to offenders from anywhere in Kansas. We suggest that the parties contact and arrange for the testimony of Charles Simmons, Secretary of Corrections, on these points, as well as legislators familiar with the statute’s history and any later related appropriations. Should the district court determine that one or more CISCs exist, and that the court was intended to have the power to place Miller at one such facility, it must do so or explain its reasons on the record for why such a placement is inappropriate.
Fine
Miller next argues the trial court failed to comply with the requirements of K.S.A. 21-4607 when it imposed the fine of $1,000. The State responds that the issue is not properly before the Court of Appeals, because Miller did not file a notice of appeal on this issue within 10 days of sentencing. See K.S.A. 22-3608. Miller concedes his notice of appeal was untimely, but argues the fine constitutes an illegal sentence that can be corrected at any time under K.S.A. 22-3504.
We agree with the State. Miller’s untimely notice deprives this court of jurisdiction to review this issue.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
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Beier, J.:
Artis Cobb appeals his jury trial convictions of voluntary manslaughter and involuntary manslaughter in the deaths of Kasey Blount and her infant daughter, Alannah. He raises five issues: (1) The district court should have suppressed his statements to the police as involuntary and made in violation of his right to counsel; (2) the district court erroneously allowed a witness to testify that the death of Alannah was a homicide; (3) the district court erroneously prevented a defense expert from testifying about inconsistencies between Cobb’s confession and the crime scene; (4) the evidence was insufficient to support a voluntary manslaughter conviction; and (5) testimony that he had admitted to choking a woman should not have been admitted. The State raises two issues on cross-appeal: (1) The district court erroneously permitted an expert witness to testily regarding the phenomenon of false confessions; and (2) the district court erroneously gave a special confession instruction.
Factual Background
The number and complexity of the issues in this case, including at least two of first impression, demand a thorough recitation of the facts.
The Crimes
Kasey Blount was found dead in her apartment in Junction City by her husband when he returned home from military exercises. Her decomposing body was on its back on the living room floor, naked below the waist. Kasey had a baby’s sock in her throat and a pillow under her leg. A cushion was off of the nearby loveseat, and a knife was on the floor. An autopsy determined that Kasey had been asphyxiated.
Alannah’s body was in an upstairs crib. She died of dehydration, apparently after her dead mother could no longer respond to quench her thirst.
Physical evidence at the crime scene included semen from Keith Jones, semen from Javis Devore, and a fingerprint from James Battle. All three men admitted to having sex with Kasey in her apartment during her husband’s absence. Jones eventually directed the attention of authorities to “Scoop,” whom he later identified as Cobb. No physical evidence ever tied Cobb to the crime scene.
The Interrogations
In August 1997, approximately 3 years after the crime was discovered, Special Investigator Raymond Lundin of the Kansas Bureau of Investigation (KBI) and Special Agent Larry Thomas, Chief of the Cold Case Squad for the KBI, interrogated Cobb while he was in jail in Georgia on an unrelated drug charge. At the beginning of the interview, Lundin read Cobb his Miranda rights, and Cobb agreed to speak with the agents.
The interview lasted from 10 a.m. to 5:30 p.m., although several breaks were taken. Cobb was permitted to smoke outside, and he was provided with sandwiches for lunch. Thomas testified that at no time during the interview, did either he or Lundin speak harshly or act in any other aggressive or threatening manner.
During the interview, Cobb told Lundin he had found Jesus and had been studying religious literature. Cobb held a religious book during the interview and at one point got on his knees and appeared to pray. Lundin testified that he and Thomas did not discuss the specifics of the crime scene with Cobb, but they did show him a reward poster stating Kasey s cause of death as suffocation.
Initially, Cobb denied knowing Kasey or being in Junction City, but he then said he had seen her at the barracks and had been in Junction City. He made no incriminating statements about participating in raping or killing Kasey until after Lundin told him that Jones’ testimony would “bury him.” After this, Cobb remained quiet with his head down, and Lundin began to introduce scenarios of how the homicide might have happened, including a suggestion that it might have been part of a gang initiation.
Cobb then told the agents that he participated in an initiation process of a group of soldiers called “die Pimps” who lived at the barracks. He explained that he had to drink a concoction made of grenadine, nitrane, and other alcohol called “blood” and then answer questions. He was then taken by Andrew Jones to Kasey’s apartment. He said Andrew Jones forced Kasey to undress and forced Cobb to have sexual intercourse with her. Afterward, Cobb said, Andrew Jones directed Cobb to hold Kasey’s arms while Andrew Jones held a pillow over her face until she stopped moving. Andrew Jones then told Cobb to wait for him in the car. When Andrew Jones joined Cobb a few minutes later, he said the initiation was complete and, “Now you a pimp, nigger.”
Cobb drew a diagram of the basic layout of the crime scene, locating the furniture in the room and the body. He also wrote a poem for Kasey’s mother. Near the end of the interview, Cobb wrote a four-page statement describing his involvement. At Lundin’s suggestion, Cobb included a statement that “Agent Lundin of the Kansas Bureau of Investigation has advised me of all my rights and I am providing the following information voluntarily.” The agents then reviewed the statement with Cobb, and the interview concluded.
When the agents returned to interview Cobb a couple of days later, Cobb handed them a letter, which stated:
“ ‘After speaking with various family members, I’ve come to a couple of conclusions; One being, I made a very detrimental mistake by taking the actions I took with you two agents .... I’m referring to my writing the statement, which could very well be “self-incriminating.”
Due to the fact that I feel as though I was coerced into writing the statement, I wish to withdraw it in its entirety.
Out of extreme fear and lack of understanding, I created a scenario in my mind, in order to satisfy the two (2) agents, and I placed it on paper. It has no meaning nor is any of it true.
Please disregard the entire contents of the statement.
Anything to be discussed in future situations has to be done in the presence of my attorney.
Thanks for your time. Respectfully, Artis T. Cobb.’ ”
After the agents read the letter, Cobb said he wanted to explain it. Lundin again recited Cobb’s Miranda rights, and Cobb signed a written waiver of his rights and agreed to speak with the agents. Cobb explained that he did not want to withdraw the part of the statement about knowing Kasey; he just wanted to withdraw the part about raping and murdering her. He then agreed to look at photographs of Andrew Jones and Keith Jones. Cobb identified Andrew Jones; although he could not name Keith Jones, he recognized him as someone he had seen around Junction City. At no time during this meeting with Lundin and Thomas did Cobb assert his right to remain silent or make reference to wanting counsel.
Two more years passed before Lundin contacted Bill Pfeil of the Florida Department of Law Enforcement and asked for help with the investigation of Cobb. Cobb was informed that agents wanted to meet with him, and Cobb came in to meet with Pfeil and Lundin in July 1999.
At the beginning of this interview, Cobb said he went by the nickname “Scooby.” Pfeil then advised Cobb of his Miranda rights, and Cobb indicated he understood them. When asked if he was willing to talk about Kasey, Cobb responded: “Yeah, I’ll talk to you about it, you know that.”
Pfeil lied to Cobb, telling him there was new technology that had provided Kansas with evidence placing him at the crime scene “hook, line, and sinker.” Pfeil repeated similar comments throughout the interview. Cobb stated several times that he could not remember being at Kasey’s apartment. After one such statement, the following exchange took place between Cobb and Pfeil:
“Q. Well, if these guys arrest you for this is it going to, is it going to jog your memory?
“A. I don’t know.
“Q. Or what?
“A. I don’t know. I mean, I told those guys right then and there, you know: Are you guys going to arrest me or anything? You know what I’m saying.
“Q. That’s all in due time.
“A. Well, I mean, I don’t remember anything about this situation. And if due time ain’t today, then I would rather have a lawyer here present with me for the rest of this, okay?
“Q. Give me a minute here.
“A. So you are going to arrest me today for it, huh?
“Q. Probably so.
(WHEREUPON, Mr. [Pfeil’s] departure was noted for the record.)
“A. Look, man —
“Q. (By Mr. [Pfeil]) Probably so.
“A. — let’s talk some more, please, for me, because I, I can’t deal with it — (WHEREUPON, Mr. [Pfeil’s] presence was noted by the reporter.)
“A. — I truly can’t.
“Q. (By Mr. [Pfeil]) Okay, Artis, what I have got here is an arrest warrant from the State of Kansas. It’s charging you with six counts.
“A. Six counts of what?
“Q. Six counts.
(WHEREUPON, Mr. [Pfeil’s] departure was noted by the reporter.)
“A. No, no. We can talk some more, please. Let’s talk some more. Let me try to remember some of this, I mean.”
Lundin entered the room and said: “Now, I was listening outside the door and I heard you say, you know, you don’t want to talk no more about this thing, that you wanted a lawyer. Would you like to talk some more about this with us?” Cobb responded: “We can talk some more about this. Let’s do.”
During the ensuing interrogation by Lundin, both Lundin and Cobb made numerous religious references. In essence, they took turns in propelling the dialogue forward in this manner. For example, Lundin led the following exchange:
“Q. Do you think the Lord hears?
“A. Oh, yeah.
“Q. Do you think he’s listening now?
“A. Yeah.
“Q. And would the Lord prefer that we spoke the truth or that we spoke lies? “A. We spoke the truth, always.
“Q. Do you think he’s pleased with what he’s hearing from your mouth right now?
“Q. . . . And the Lord don’t want no half-baked Christians. He don’t want no half-bom — and he’s not responsible for lies.
“A. That’s true.
“Q. He’ll give us the truth. We are the ones that provide the lies. That’s where we are, that’s where we went wrong long, long, long ago and I know it hurts to bring this out, but I think I know in your heart you want to tell me the truth so bad that it’s just . . . .”
At other times, Cobb took the lead in invoking religious themes.
“A. I had no reason to listen to what they was speaking and I look at them as though it was the devil, you know, trying to make a bargain with me. But I got news for them, they can’t have this life, they can’t have this soul because I’m planted now. I’m planted, ain’t going to and I know that He’s going to see me through this.
“Q. ' Okay. That’s where your trust should be.
“A. That’s where all of my trust is.
“Q. You know what they say— (Tape Inaudible.)
“A. And one of my favorite little passages is that He would never put a burden on you that you can’t bear. He’ll never give you a load— it’s not a load for me because I’m not carrying it by myself. I’m depending on Him to help me carry this. If He don’t want my help I’ll let Him carry it his own self because I have that much trust in Him and I know that something good is going to come out of this. I know that something good is going to come out of this.
“Q. In and—
“A. The Lord loves me and I love him too so that’s where all of my trust is. I mean, I didn’t mean to back out of that statement but I only backed out of that statement because I was surrounded by nothing but evil in that jailhouse.”
Cobb eventually admitted to drinking until he was intoxicated with other members of the Pimps, including Andrew Jones. Cobb drove to Kasey s apartment with Andrew Jones, and he sat downstairs and drank while Andrew Jones went upstairs with Kasey for 5 or 10 minutes.
When Andrew Jones and Kasey came downstairs, she looked upset. According to Cobb, Andrew Jones told her that now she was “gonna give my boy some of this,” meaning that she was going to have intercourse with Cobb. When she resisted, Andrew Jones grabbed her and held her down to the floor and told Cobb to have sex with her or he would kill him. Cobb complied.
Finally, when Lundin asked Cobb how Kasey died, Cobb responded: “Ms. Kasey died with a pillow over her face, a pillow that was held by me, but I never meant to do it.” Cobb denied knowing Alannah was upstairs at the time of her mother’s death.
The Pretrial Motions
Before trial, Cobb moved to suppress his statements from his interviews as the products of coercive and deceptive practices by the agents and of violations of his right to counsel. The district court conducted a hearing on the motion and ultimately rejected Cobb’s arguments.
Specifically, regarding the August 1997 statements, the district court found Cobb had made the statements voluntarily and with full knowledge of his Miranda rights. The court also found Cobb reinitiated communication with the agents after giving them the letter withdrawing his earlier statement and requesting counsel, and he voluntarily waived his right to counsel orally and in writing by waiving his Miranda rights again.
Regarding the July 1999 statements, the district court found that Cobb made an ambiguous request for counsel that did not require follow-up questioning by the agents. Cobb also reinitiated communication by asking if he was going to be arrested, he begged the officers to continue to speak with him, and Lundin clarified the ambiguous statement by asking Cobb if he wanted to continue to speak with them even though he had said he wanted a lawyer. The court also found the July 1999 statements were voluntary under the totality of the circumstances, in spite of the interrogation’s heavy emphasis on religion and redemption. According to the court, Cobb was not suffering from any mental condition that impaired his ability to understand what was happening, and the manner and duration of the interrogation was not unduly restrictive. Cobb never requested communication with the outside world, he was an adult male of average intellect who had been in the army and had dealt with the criminal system before, and the officers were fair in conducting the investigation. The agents’ untruthful statements about nonexistent DNA evidence and incriminating evidence from other persons were merely “bluff’ and did not render Cobb’s statements involuntary, the court concluded.
The State filed a pretrial motion in limine to prevent the defense from using expert testimony regarding the tendency of certain police interrogation techniques to produce false confessions. At the hearing on the motion, Dr. Richard Leo testified about his expertise in criminology and social psychology and his specialty in police investigative behavior and “extreme influence in decision making.” Leo said he had participated in five or six police interrogation training seminars, including classes by Reid and Associates; he had taught police officers interrogation methods; he had written several articles in the field; and he was on the editorial board of the Law and Society Review. In his opinion, he said, he and Dr. Richard Ofshe are considered leading authorities in the field of police interrogation.
Leo also testified about the acceptance of “extreme influence in decision making” as a legitimate field of study. He said it had been recognized since 1908, and several indicators showed its acceptance level, including the amount of reputable research in academic journals, the presence of high-level textbooks or encyclopedias about the field, and the institutionalization of the area of study in university settings. Leo further explained that no dispute existed in the academic literature or among police about the existence of false confessions but that the subject was outside common experience or common knowledge of laypersons.
Leo also testified that research has shown certain techniques of investigation are more likely to produce a false confession than other techniques. For example, techniques that maximize the suspect’s involvement in the crime, suggesting that a failure to confess will cause him or her to be seen in a worse light and lead to maximum punishment, can produce false confessions. Minimization, a technique in which the questioner suggests to the suspect that the suspect had a lower level of culpability, perhaps because of self defense or a mistake, can also have that effect, he said, as can exhaustion, sleep deprivation, and extended questioning. Leo admitted on cross-examination that there are no statistics showing how often false confessions actually occur.
The district court ruled that Leo could not testify at trial regarding voluntariness, as that issue had already been disposed of. He could, however, testify about the phenomenon of false confessions and the correlation between them and certain interrogation techniques.
The Trial
At trial, Leo testified that the police in this case used Reid and Associates techniques in interrogating Cobb — such as telling him they knew he committed the crime, confronting him with irrefutable evidence of his guilt, suggesting that they wanted to help him, suggesting the gang initiation scenario, appealing to Cobb’s moral and religious sense, using maximization and minimization, leading him to believe that they would meet with the district attorney, and repeatedly asking Cobb to remember what happened and to help himself out. Leo explained that some of the techniques used by the interrogators in this case have contributed to false confessions.
Dr. Erik Krag Mitchell, who performed the autopsies on the victims, testified Kasey died of asphyxiation because the sock lodged in her throat obstructed her airway. Although she did not have bruising on her arms, Mitchell noted bruising on her upper chest and her neck, which probably was caused by manual strangulation. Mitchell also had been asked after the autopsy to examine photographs of the crime scene. At that time he noticed a pattern injury to Kasey’s face and neck, which was consistent with a textile having a matching pattern being pressed against those parts of her body.
During the prosecutor’s examination of Mitchell about Alannah’s death, the following exchange occurred:
“Q. Were you able to reach any conclusions on what the manner of death in this particular case was for this child, based on your examination?
“A. Yes.
“Q. Okay. And what was that?
“A. This is a homicide.
“Q. And what do you mean by that, Doctor?
“A. This means that this child has died as a result of the actions of another person or persons. This child was in a crib. It was of an age where it could not, itself, obtain help or maintain itself. It was not cared for because the mother was dead, because someone else had killed the mother; and, this makes it a homicide.”
Defense counsel did not object to this testimony.
Kelly Robbins, a KBI forensic scientist, testified about the absence of DNA evidence implicating Cobb. Robbins said it was possible for a sexual assault to leave no evidence of the perpetrator s bodily fluids. A negative rape kit can result, she said, if there was no penetration, there was penetration without ejaculation, there was penetration with only a small amount of ejaculate, the ejaculation took place outside the victim’s body in an unidentified location, semen was not collected as part of the ldt, or the semen deteriorated before testing was performed.
Chandra Scott, a friend of Cobb’s, testified that Cobb came to her home around the time of the crimes to talk to her. He was upset and said he was seeing a woman married to a man in the military who had a baby girl. According to Cobb, he and this woman “got into it” and he choked her. Scott admitted she and Cobb were smoking marijuana during this conversation. She also recalled that she had dropped Cobb off at Kasey’s apartment complex on one occasion so that he could visit his girlfriend.
Cobb’s jury also heard from Brent Turvey, a private forensic scientist and recognized expert in crime scene analysis hired by the defense. Turvey said he received and reviewed over a hundred reports and documents relevant to die case. He also had visited the exterior of the crime scene the night before he took the stand, walking around the apartment complex. Tuivey explained that he had been retained to compare the physical evidence at the crime scene to the content of the statements Cobb made to investigators.
When defense counsel asked what conclusions Turvey had reached, the prosecutor objected on the ground that the testimony would invade the province of the jury and that it lacked foundation. Outside the presence of the juiy, defense counsel proffered a report compiled by Turvey that highlighted 12 discrepancies between the forensic evidence and Cobb’s statements. Defense counsel argued:
“Judge, I don’t think Mr. Turvey’s [testimony] goes to the ultimate issue here either. He’s not going to say whether Mr. Cobb is guilty or not guilty, he’s not going to say whether the confession was false or true, he’s going to say whether the crime scene evidence is consistent or inconsistent with the statement.”
The district court ruled:
“Every one of these findings ha[s] already been in evidence through other witnesses, as far as the Court can find or recalls. And the — these are arguments to the jury, and the Court doesn’t believe that any of these would materially aid the jury in their determination of guilt or innocence in this case.”
Defense counsel then asked the district judge if Turvey could testify about evidence indicating Kasey had been dragged, and the proffer continued. It included Turvey’s anticipated testimony that the absence of Cobb’s semen, sperm, or fingerprints at the crime scene weighed against guilt. In addition, Turvey would have testified the lack of injury to Kasey’s arms was inconsistent with Cobb’s story that she was a struggling victim restrained by two offenders, the presence of a pubic hair in the sock in Kasey’s throat could have been transferred from a public laundry, and the physical evidence conflicted with Cobb’s story that Kasey had been suffocated with a pillow.
Turvey admitted that he could not say positively whether Cobb was present at the crime scene and that he did not personally examine the physical evidence.
The district court then reiterated its decision not to allow Turvey to testify because (a) his testimony would not materially aid the jury, (2) he had not examined any of the evidence in the case personally, (3) the juiy was already well aware that no evidence at the crime scene implicated Cobb, and (4) the evidence about dragging of Kasey had not been included in Turvey’s earlier written report and the State was therefore unprepared to respond to it.
The Instructions
The district court gave the following instruction regarding Cobb’s incriminating statements:
“Evidence has been admitted which may show that the defendant made statements to law enforcement concerning crimes charged by the State. It is for you to determine the weight and credit to be given such evidence. You may use your common knowledge and experience in regard to such matter(s) and consider any evidence I have admitted.
“You should consider all evidence, which may bear upon the weight and credit to be given any such statement(s).”
The State’s objection to this instruction was overruled, and the prosecutor reserved the issue for later appeal.
The jury also was instructed on felony first-degree murder, second-degree intentional murder, and voluntary manslaughter regarding Kasey. Regarding Alannah, the jury was instructed on felony first-degree murder, unintentional second-degree murder, and involuntary manslaughter. Cobb was convicted of voluntary manslaughter in Kasey’s death and involuntary manslaughter in Alan-nah’s death.
Analysis
Suppression of Statements Because of Agents’ Lies and Religious References
Cobb first argues that his incriminating statements from the August 1997 and July 1999 interviews should have been suppressed because they were involuntary products of both the agents’ lies and their improper appeals to his religious faith.
“When a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and intelligently given, and admits the statement into evidence at the trial, an appellate court accepts that determination if there is substantial competent evidence to support the trial court’s determination. [Citation omitted.] After a trial court has determined the confession was voluntary, an appellate court will not reweigh the evidence. [Citation omitted.]” State v. Lane, 262 Kan. 373, 382-83, 940 P.2d 422 (1997).
In State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), the defendant appealed the district court’s refusal to suppress state ments he made during an interrogation in which officers falsely represented that they had information and evidence impheating the defendant in a murder. The Kansas Supreme Court used the following factors to determine whether the confession was voluntary under the totality of the circumstances: “(1) the duration and manner of interrogation; (2) the accused’s ability upon request to communicate with the outside world; (3) the accused’s age, intellect, and background; and (4) the fairness of the officers in conducting the interrogation.” 267 Kan. at 126.
The Wakefield court noted that the questioning officer in Frazier v. Cupp, 394 U.S. 731, 739, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969), falsely told the defendant that his cousin had already confessed. Despite this falsehood, the United States Supreme Court found the misrepresentation was insufficient under the totality of the circumstances to make an otherwise voluntary confession inadmissible. 267 Kan. at 128.
The Wakefield court found the officers’ conduct in that case followed from the State’s interest in conducting a thorough and accurate investigation, and such tactics did not make a confession involuntary so long as the statements were otherwise the product of the defendant’s own free will. Given the lack of threatening behavior or unfulfilled promises by the officers, the court concluded the misrepresentations did not make the defendant’s confession involuntaiy. 267 Kan. at 127-28.
Applying the Wakefield factors to this case, we conclude the manner and the duration of the interrogations did not make Cobb’s statements involuntaiy. He was given several breaks during .the August 1997 interrogation, and the July 1999 interrogation lasted only 4 hours. Cobb did not complain that he was physically threatened by or that he had received any unfulfilled promises from the agents. He never requested to communicate with the outside world, and, as the district court noted, he was an adult of average intellect who had been in the United States Army and who had previous experience with the criminaljusti.ee system. All of the first three factors weigh in favor of voluntariness.
As for the officers’ fairness, although the agents in this case did misrepresent the strength of the evidence they already possessed, we believe it is unlikely these misrepresentations overbore Cobb’s will under the totality of the circumstances. At times, he was the party who urged the continuation of die conversations. We hold that substantial competent evidence supports the district court’s ruling that the misrepresentations did not render Cobb’s statements involuntary.
The agents’ manipulation of Cobb through repeated references to his religious beliefs during the July 1999 interview is somewhat more troubling because of the lack of controlling precedent. The agents initiated the topic, although Cobb was all too eager to continue the theme.
No Kansas cases have dealt specifically with whether an interrogator may use religion to appeal to a suspect to make a statement. Cobb relies primarily upon Carley v. State, 739 So. 2d 1046 (Miss. App. 1999), in arguing that the religious tone rendered his resulting statements involuntary.
In Carley, a 14-year-old boy witii a mental disability admitted to shooting his parents after officers made repeated references to the Lord and told him the only way he could obtain religious salvation and see his parents again was by telling the truth about his sins. Under the totality of those circumstances, the court concluded Carley’s will was overborne and his confession involuntary. The officers’ invocation of the deity, their references to Heaven and Hell, and their promises of leniency and religious salvation went too far. 730 So. 2d at 1054.
Castleberry v. Alford, 666 F.2d 1338 (10th Cir. 1981), had the opposite result in a situation where the defendant was an adult. As police officers drove Castleberry to the station for questioning, they took him for a visit with one of their ministers. The evidence as to exactly how this came to pass was disputed. After Castleberry met privately with the minister, where he prayed and listened to biblical passages about confession and forgiveness, he stated for the first time that he had killed his wife and children.
The Tenth Circuit Court of Appeals upheld the state court’s determination that Castleberry’s confession was voluntary. The court considered Castleberry’s mental capabilities, including his age, his average intelligence, his level of education, and his clean record. The court also found there was no particular misconduct on the part of the officers, and the visit to the minister was not objectionable in and of itself. 666 F.2d at 1341-43.
We view Cobb’s case as a close one. Although he was older and more intelligent than the defendant in Carley, the references to religion during his last interview can best be described as constant and pervasive. The agents made the most of their knowledge of his professed faith, gleaned from the August 1997 contact, and Cobb’s obvious religious fervor made him vulnerable to coercion when he was urged to consider the effect his failure to confess would have on his salvation.
We cannot, however, conclude that Cobb’s incriminating statements were involuntary. He was an adult, and, even when compared to the defendant in Castleberry, somewhat older and more experienced. Also, as mentioned, he joined into the religious discussion enthusiastically and urged the agents to continue talking to him rather than place him under arrest. In the end, we view the situation as comparable to one in which a police officer is aware that a suspect feels most comfortable when talking to a person who shares his or her opinions on politics. The officer would be permitted to feign agreement with and enthusiasm for the defendant’s position and to try to make cooperation in the investigation consistent with the defendant’s world view. This tactic would not make resulting incriminating statements involuntary if the suspect was mature and of normal intelligence. We are reluctant to arrive at any holding to the contrary in this case and thereby suggest that persons of deep religious faith should be presumed to be more gullible and easily manipulated than those with deeply held secular beliefs or opinions.
We also note that, even if we were to conclude the agents’ emphasis on religion was so coercive as to make Cobb’s July 1999 statements involuntary, the district court’s failure to suppress them would be harmless. Cobb had already placed himself at the scene, at least as an aider and abettor in Kasey’s rape and homicide. On the evidence in this case, he would have been found guilty even if his last incriminating statement had not been admitted.
Suppression of Statements for Denial of Right to Counsel
Cobb argues the district court should have suppressed his August 1997 and July 1999 statements to police because they were made in violation of his right to counsel. We again review the district court’s decision to ensure it was supported by substantial competent evidence. Lane, 262 Kan. at 382-83.
Cobb clearly waived his right to counsel in his first interview in 1997. This issue remains alive because he gave the agents the letter retracting his prior statements and saying: “Anything to be discussed in future situations has to be done in the presence of my attorney.”
The Kansas Supreme Court has discussed when officers may conduct further interrogation after an accused has asked for counsel:
“When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. An accused who has expressed a desire to remain silent is not subject to further interrogation by law enforcement authorities until counsel has been made available to die accused, unless the accused, initiates further communication, exchanges, or conversations with the authorities.” (Emphasis added.) 262 Kan. at 383.
This issue is without merit because Cobb initiated his further contact with the agents by telling them he wanted to explain the letter. In addition, the officers read Cobb his Miranda rights again, and he orally waived them and signed a Miranda card explaining those rights. Cobb had voluntarily waived his right to counsel during the 1997 interviews.
Cobb further contends that his right to counsel was violated a second time during the July 1999 interview when he requested a lawyer and was not provided with one. The district court found this constituted an ambiguous request for an attorney and the agents had a right to inquire and ask clarifying questions. See State v. Donesay, 265 Kan. 60, 73, 959 P.2d 862 (1998).
We agree with the district court. Cobb requested an attorney if he was not getting arrested that day. The agents were not required to follow up on this ambiguous request, but Lundin noted it and Cobb said he wanted to continue talking. Cobb also reinitiated communication with the agents after making the request, essentially begging tire agents to continue before moving to arrest. The agents were permitted to continue questioning him, and Cobb’s statements in 1999 were not made in violation of his right to counsel.
Admission of Mitchell’s Testimony Regarding Alannah’s Death
Cobb’s next challenge is directed at his conviction for Aannah’s death. He contends Mitchell should not have been permitted to testify the death was a homicide.
The absence of a trial objection dooms this challenge. A party must malee a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. State v. Deal, 271 Kan. 483, 492, 23 P.3d 840 (2001). Although Cobb urges this court to consider this issue for the first time on appeal, he has not demonstrated that such consideration is necessary to serve the ends of justice or to prevent the denial of his fundamental rights. We decline to reach the merits of this issue.
Refusal to Admit Turvey Testimony Regarding Inconsistent Evidence
Cobb next challenges the district court’s limitation of Turvey’s testimony.
This court recently described our standard of review regarding expert opinion testimony:
“A trial court has broad discretion concerning the qualification of an expert witness and the admissibility of expert testimony. Expert opinion testimony is admissible if it aids the jury with unfamiliar subjects or in interpreting technical facts or assists the jury in arriving at a reasonable factual conclusion. If the normal experience and qualifications of the jurors permit them to drawproper conclusions from the given facts and circumstances, expert conclusions or opinions on that subject are not admissible. [Citation omitted.]
“An expert witness may give an opinion on the ultimate issue but may only do so insofar as it aids the jury in interpreting technical facts or assists the juiy in understanding the material in evidence. An expert witness has no right to pass on the weight or credibility of evidence; these are matters strictly within the province of the jury. [Citation omitted.]” Cimarron Feeders v. Bolle, 28 Kan. App. 2d 439, 449, 17 P.3d 957, rev. denied 271 Kan. 1035 (2001).
“Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court.” State v. Broyles, 272 Kan. 823, 837, 36 P.3d 259 (2001).
Cobb essentially argues that it was unfair to permit KBI forensic scientist Robbins to testify about how the crime scene could be consistent with Cobb’s stoiy and then refuse to allow his forensic scientist to do the opposite. He relies primarily upon State v. Brickhouse, 20 Kan. App. 2d 495, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995). In Brickhouse, this court found it was an abuse of discretion to admit incriminating hearsay statements tending to convict a defendant while denying admission of exculpatory hearsay evidence from the same declarant. 20 Kan. App. 2d at 500. Cobb also argues the district court erred in relying on Turvey’s'failure to examine the evidence.
Cobb’s case is distinct from Brickhouse. Here, we are talking about two different witnesses testifying about two different subjects, not one out-of-court declarant with both helpful and hurtful things to say. Robbins’ testimony about the possibility of sexual assault that leaves no DNA evidence behind was not given by any other witness and was not within the experience or knowledge of lay jurors. The testimony Turvey was prepared to give was cumulative of other evidence and within the realm of lay understanding.
Moreover, we interpret the district court’s reference to failure to review the evidence to mean Turvey’s failure to visit the crime scene inside of the apartment or to personally examine the physical evidence, not an articulation of an erroneous belief that Turvey did not review documents or photos.
We see no abuse of discretion in the district court’s refusal to admit Turvey’s proffered testimony. It was not necessary to aid the jury with an unfamiliar subject, to interpret technical facts, or to assist the jury in arriving at a reasonable conclusion. The jury was capable of perceiving and understanding the inconsistencies between Cobb’s statements and the physical evidence.
Sufficiency of Evidence to Support Voluntary Manslaughter
Cobb next argues insufficient evidence was presented that the killing of Kasey was committed in the heat of passion or upon a sudden quarrel. Voluntaiy manslaughter is the intentional killing of a human being committed in the heat of passion or upon a sudden quarrel. K.S.A. 21-3403(a).
“ ‘When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.' ” State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999) (quoting State v. Abel, 261 Kan. 331, 337, 932 P.2d 952 [1997]).
In State v. Harris, 27 Kan. App. 2d 41, 998 P.2d 524 (2000), the defendant was charged with intentional second-degree murder but convicted of voluntary manslaughter upon a sudden quarrel or in the heat of passion. As Cobb does in this case, he argued on appeal that insufficient evidence supported the conviction. The court affirmed, stating:
“[W]here a defendant is charged with second-degree intentional murder and convicted of voluntary manslaughter based on sudden quarrel or heat of passion, the conviction may stand even absent evidence of sudden quarrel or heat of passion, as long as the evidence was sufficient to convict the defendant of second-degree intentional murder.” 27 Kan. App. 2d at 46.
In essence, the defendant had received a windfall: The jury had found the defendant intentionally killed the victim but believed there were mitigating circumstances justifying conviction of the less serious crime. The defendant could not complain his conviction was based on insufficient evidence, so long as sufficient evidence existed to convict him of the greater offense of second-degree murder. 27 Kan. App. 2d at 46-47.
We agree with Cobb that the evidence Kasey was killed in the heat of passion or upon a sudden quarrel is relatively weak. Cobb told Scott he had “got into it” with a woman and had choked her. The jury could have inferred that “got into it” meant an argument or a physical fight. There was a scuff on the wall of Kasey s apartment, one of Kasey s shoes was on the love seat, and a cushion was on the floor. Regardless, Harris is controlling. The evidence was sufficient to support second-degree murder, and Cobb cannot complain that the jury gave him a break by finding him guilty of the less serious offense.
Admission of Scott Testimony Regarding Choking
The standard of review regarding a district court’s admission of evidence is abuse of discretion. State v. Lopez, 271 Kan. 119, 136, 22 P.3d 1040 (2001).
Cobb contends the district court erred in permitting Scott’s testimony about Cobb’s admission that he choked a woman he had been seeing who was married and had a child. In Cobb’s view, the evidence could not properly be admitted under K.S.A. 60-455 and was not otherwise relevant because it could not be connected to Kasey.
Cobb is correct that 60-455 did not provide a vehicle for admission of this evidence. That statute deals with the propriety of admission of evidence of other crimes; the State sought to introduce this evidence believing it referred to the crime for which Cobb was on trial. The evidence- — that Cobb admitted to his friend that he had choked a married mother of a young girl, a woman he was seeing around the same time that the body of a strangled and suffocated woman with similar family circumstances was found — was highly relevant to the State’s case. Scott also was able to testify that she had once given Cobb a ride to Kasey’s apartment complex, where she understood his girlfriend lived. The district court did not abuse its discretion by admitting Scott’s testimony about Cobb’s admission.
Admission of False Confession Expert Testimony
The State’s first contention in its cross-appeal is that the district court abused its discretion by permitting Leo to testify as a defense expert on the phenomenon of false confessions. This is an issue of statewide importance; it says, because “Dr. Leo will be a regular visitor to Kansas courtrooms when a confession is offered in a major case if testimony of this nature is allowed.” We agree that our review of this reserved question is appropriate. See State v. Golston, 269 Kan. 345, 346, 7 P.3d 1132 (2000).
After a hearing, the district court found Leo’s testimony was admissible under the Frye test.
“The admissibility of expert testimony is subject to K.S.A. 60-456(b). The Frye test, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), however, acts as a qualification to the 60-456(b) statutory standard. Frye is applied in circumstances where a new or experimental scientific technique is employed by an expert witness.
“Frye requires that before expert scientific opinion may be received into evidence, the basis of the opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. If a new scientific technique’s validity has not been generally accepted or is only regarded as an experimental technique, then expert testimony based upon the technique should not be admitted.” Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, Syl. ¶¶ 2, 3, 14 P.3d 1170 (2000).
Although the admission of expert testimony is generally governed by an abuse of discretion standard, the Kansas Supreme Court has held that a district court’s Frye ruling should be reviewed de novo “because the outcome of a Frye holding transcends individual cases such that applying less than a de novo standard could lead to inconsistent treatment of similarly situated claims.” State v. Shively, 268 Kan. 573, 576, 999 P.2d 952 (2000).
Cobb argues that In re B.M.B., 264 Kan. 417, 420-21, 955 P.2d 1302 (1998), supports admission of Leo’s testimony. In that case, the district court permitted a defense expert to testily at a motion for new trial about the appropriateness of the questioning of a 10-year-old boy during a police interview. The expert said the techniques used in the interview were wholly inappropriate for use with children. Further, a substantial number of children would have agreed to what was being suggested to them because of the level of coercion and pressure present in the interview, regardless of whether they were guilty. We get little guidance from this case, however, because the issue of whether this testimony was properly admitted before a jury was not the focus of the appeal.
State and federal courts are split on whether to admit expert testimony on false confessions. See Major James R. Agar, II, The Admissibility of False Confession Expert Testimony, Army Law. 26, 35-37 (Aug. 1999). We note particularly State v. Davis, 32 S.W.3d 603 (Mo. App. 2000), in which the defendant appealed the district court’s exclusion of expert testimony by Leo on interrogation tech niques, false confessions, and coercive persuasion. The Missouri Court of Appeals recognized that this was an issue of first impression in Missouri, ultimately affirming. 32 S.W.3d at 607-08, 612. Along the way, it observed that United States v. Hall, 93 F.3d 1337 (7th Cir. 1996), had allowed expert testimony on coercive police interrogation and the incidence of false confessions under the Daubert standard. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). However, it also observed that in State v. Ritt, 599 N.W.2d 802 (Minn. 1999), the Minnesota Supreme Court had excluded such testimony, apparently under the Frye test.
The Davis court found Leo’s offer of proof regarding a suspect’s thought process when interrogated under circumstances similar to the defendant’s was particularized to the circumstances of the case and was not generic credibility testimony. The court concluded the testimony invaded the jury’s province to malee a credibility determination about the defendant’s statement. 32 S.W.3d at 608.
The Davis court likened the situation to that in a Missouri Supreme Court eyewitness identification case, in which the court affirmed tire district court’s exclusion of expert testimony about the unreliability of cross-racial identification. See State v. Lawhorn, 762 S.W.2d 820, 822-23 (Mo. 1988). In that case, the court determined the information was within the jury’s common knowledge and the reliability of the identification could be challenged through cross-examination.
“Adapting the reasoning of the Supreme Court [in State v. Lawhorn] to this case, the fact that police interrogation may be persuasive or coercive does not leave defendant without protection if the trial court denies expert testimony on this topic. Cross-examination is an adequate tool to expose police conduct, and closing argument gives the defendant a forum to further develop his theory that interrogation techniques are coercive. The jury is capable of understanding the reasons why a statement may be unreliable; therefore, the introduction of expert testimony would be ’a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally capable of drawing from the evidence.’ [Citations omitted.]
“The defendant had a full opportunity to cross-examine the police officers that interrogated him about their techniques. The jury heard testimony regarding the conditions of defendant’s interrogation, the length of time defendant was interrogated, the receipt and waiver of Miranda rights, and the content of the police questions and defendant’s statements. It was reasonable for the trial court to conclude that the jury could decide the issue of the statement’s reliability using its common knowledge. Consequently, the jury would not be aided by Dr. Leo’s testimony.” Davis, 32 S.W.3d at 609.
The Kansas Supreme Court has arrived at the same conclusion regarding expert testimony on the unreliability of eyewitness identifications, ruling such testimony should not be admitted at trial. See State v. Gaines, 260 Kan. 752, 755-63, 926 P.2d 641 (1996). In State v. Warren, 230 Kan. 385, 395-97, 635 P.2d 1236 (1981), the court reviewed cases from several jurisdictions and concluded that a cautionary instruction coupled with vigorous cross-examination and persuasive argument by defense counsel should be adequate to protect the rights of the defendant.
We find the reasoning of Davis and the Kansas cases regarding eyewitness identifications persuasive. The type of testimony given by Leo in this case invades the province of the jury and should not be admitted. Cross-examination and argument are sufficient to make the same points and protect the defendant. Cobb got more protection than future defendants will be entitled to claim.
Propriety of Confession Instruction
The State next argues that the district court erred by giving an instruction that focused on an evaluation of Cobb’s incriminating statements. PIK Crim. 3d 52.17, Confession, provides: “The Committee recommends that there be no separate instruction given as to confession.” The Kansas Supreme Court has affirmed this statement when a defendant has challenged the district court’s failure to give an additional jury instruction on confession. See State v. Shaffer, 229 Kan. 310, 316, 624 P.2d 440 (1981) (“A special instruction bearing on the credence to be given a confession or admission is not required when the jury is given a general instruction bearing on the credibility of the testimony of the witnesses.”) However, no Kansas case deals with a State challenge to a confession instruction. We therefore address the merits of the issue as one having statewide importance.
“Where a party objects to a jury instruction prior to the jury retiring to consider its verdict, as occurred in this case, the reviewing court is required to consider the instructions as a whole without isolating any one instruction, and, if the instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, then they do not constitute reversible error even if they are in some small way erroneous.” State v. Rodriguez, 269 Kan. 633, 637, 8 P.3d 712 (2000).
Although PIK is correct to discourage the inclusion of such instructions in most cases, we see no error in its inclusion in this case. In essence, it merely repeated the language of PIK Crim. 3d 52.09, which was already given to the jury as part of Instruction No. 1. We hold that the instructions as a whole clearly and accurately stated the law, and the inclusion of the confession instruction here did no violence to the State’s position.
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Lockett, j.:
Defendant appeals convictions of two counts of sale of marijuana within 1,000 feet of a school and his sentences for those convictions. Because we have determined that the defendant is entitled to a new trial, we will discuss only three of the eleven issues raised in the appeal.
Dennis Brockenshire was originally charged with two counts of sale of marijuana within 1,000 feet of a school and two counts of no tax stamp. The sales were alleged to have occurred on March 15, 1996, and on March 27, 1996. Both buys involved a police informant, Henry Rairden, who was paid $25 for each purchase of marijuana.
March 15, 1996, Marijuana Transaction
On March 15,1996, Rairden called the Leavenworth Police Department and told Detective Derek Burleson that Brockenshire was at Rairden’s mobile home wanting to sell him marijuana. Burleson met with Rairden, patted him down, briefed him, gave him a body wire and taping device, and provided him $80 for the buy. Burleson followed Rairden to the entrance of the mobile home park where he set up surveillance. Due to the surroundings, Burleson was unable to see Rairden’s mobile home from his position at the entrance of the park. Rairden was gone approximately 30 minutes.
While Rairden was in his mobile home, Burleson saw Dan Stillian drive up and park outside Rairden’s mobile home. Brockenshire went to Stillian’s truck. Stillian left and returned a short time later. Brockenshire again met Stillian at his truck. When Brockenshire returned to Rairden’s mobile home, he gave Rairden a quantity of marijuana. Rairden left his mobile home and turned the marijuana over to Burleson.
March 27, 1996, Marijuana Transaction
On March 27,1996, Rairden again contacted Burleson regarding a marijuana buy from Brockenshire. Burleson and Rairden repeated the same procedures implemented on March 15,1996, with the exception that on this transaction, Rairden was given $75 for the buy. Rairden waited with Brockenshire at Rairden’s mobile home until Stillian drove up. As before, Brockenshire met with Stillian in the truck, returned to Rairden’s mobile home with marijuana, and gave it to Rairden. Rairden turned the marijuana over to Burleson.
Procedural History of the Case
The Stated charged Brockenshire with the sale of marijuana within 1,000 feet of a school and no tax stamp in separate complaints filed on May 8, 1996. Later, the State amended the complaints by dismissing the no tax stamp charges. The complaints were consolidated for trial. Brockenshire was found guilty of both charges of sale of marijuana within 1,000 feet of a school. Brockenshire appeals his convictions and the sentences imposed, raising numerous issues.
ACCESS TO A LAW LIBRARY
One week after the complaints were filed, Brockenshire, who was held in the county jail, advised the judge that he intended to represent himself. Brockenshire then asserted that because the county jail in which he was incarcerated did not allow prisoners who represented themselves to have law books or access to a law library, he was being denied his constitutional right to access to a law library. The judge stated Brockenshire would be provided access to law books through a court-appointed attorney who would represent him at no cost. Brockenshire refused to accept a court-appointed attorney to represent him.
On June 18, 1996, Brockenshire, by written notice, asserted his right of self-representation. In addition, Brockenshire requested the court to grant him access to an adequate law library. At a hearing on September 25,1996, Brockenshire again informed the judge that he would represent himself and requested that he be granted access to a law library. The judge responded, “If you decide you need a lawyer [to represent you], let me know. I am not going to play games with you.”
At the preliminary examination Brockenshire, representing himself, objected to the proceeding because he had not been given access to law books. The judge advised Brockenshire to file a motion. At the conclusion of the preliminaiy examination, Brockenshire was bound over for arraignment and trial. At a pretrial conference on November 13, 1996, Brockenshire, representing himself, again requested he be provided access to a law library. The State argued that Brockenshire would have access to research material if he accepted court-appointed counsel to represent him. Brockenshire expressed to the judge his distrust of an attorney who would be paid by the State. He asserted that the right to represent oneself entails an entitlement to access a law library. The judge denied the motion. At some point prior to trial, Brockenshire accepted a court-appointed attorney as co-counsel. Brockenshire was convicted of both charges.
In his appeal, Brockenshire contends that the trial court’s refusal to grant him access to a law library denied him the right to effective self-representation and forced him to accept unwanted legal counsel in order to obtain access to legal resources to prepare for trial.
In Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), the United States Supreme Court considered an appeal by prison inmates who claimed that they were denied access to law libraries or legal assistance to challenge their sentences and conditions of imprisonment. The Bounds Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates [who are not entitled to court-appointed counsel] in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 430 U.S. at 828.
The issue of adequate self-representation by prison inmates was revisited by the United States Supreme Court in Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996). In Lewis, the Court emphasized that Bounds did not establish a right to a law library or to legal assistance; the right acknowledged in Bounds was the right of prison inmates who represented themselves of access to courts. 518 U.S. at 350. The Lewis Court stated: “[P]rison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring ‘a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.’ ” 518 U.S. at 351. Bounds and Lewis require prison authorities to provide inmates the legal tools needed to directly or collaterally attack their sentences and to challenge the conditions of confinement. The Court concluded that inmates who alleged a violation of the right of access to courts were required to show actual injury to succeed.
Following Bounds, federal circuit courts have determined that prison inmate rights are not unlimited and that a prisoner who knowingly and voluntarily refuses appointed representation by counsel in a criminal proceeding is not entitled to access to a law library. Degrate v. Godwin, 84 F.3d 768 (5th Cir. 1996) (a prisoner who knowingly and voluntarily waives appointed representation by counsel in a criminal proceeding is not entitled to access to a law library); United States v. Smith, 907 F.2d 42, 45 (6th Cir.) (State does not have to provide access to a law library to defendants who wish to represent themselves), cert. denied 498 U.S. 986 (1990); United States ex rel George v. Lane, 718 F.2d 226, 233 (7th Cir. 1983) (State was not required to offer a defendant law library access once it offered the defendant assistance of counsel, which the defendant declined); United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir. 1982) (a prisoner’s Sixth Amendment right to self-representation does not include a right to conduct research at the government’s expense), cert. denied 464 U.S. 867 (1983); Kelsey v. State of Minn., 622 F.2d 956, 958 (8th Cir. 1980) (holding that prisoner’s constitutional right of access to courts did not obligate officials to provide him with an adequate law library where alternative means of satisfying access to courts were available).
If Brockenshire rejected a court-appointed counsel to assist in his preparation for trial, he had no constitutional right of personal access to a law library in preparing for his criminal trial.
A defendant’s right to represent himself or herself does not obligate officials to provide a defendant held in custody pending trial access to a law library, where alternate means are available. When a defendant alleges a violation of his or her right to effectively represent himself or herself, the defendant is required to show actual injury to that right.
The record is unclear as to the time or the conditions imposed when Brockenshire accepted court-appointed co-counsel. At some point Brockenshire accepted co-counsel to assist him in preparation for trial. At that time he had access to all the legal resources necessary through court-appointed co-counsel, and he retained control of his case.
After reviewing the trial record, we are aware that at trial Brockenshire had co-counsel to assist him and that Brockenshire exercised control and direction of his defense. Brockenshire objected, made arguments to the court, presented evidence, and cross-examined witnesses during the trial. Although Brockenshire alleges his right to effectively represent himself was denied, he has not shown an actual injury to that right.
Right to be Present
Brockenshire next contends that the judge erred in conducting a competency hearing pursuant to K.S.A. 22-3302(1) without him being present at the hearing.
Brockenshire was in custody after his arrest. On May 15, 1996, after a brief hearing at which the Assistant County Attorney and Brockenshire were present, and at which Brockenshire represented himself, the district judge set a date for the preliminary examination. After Brockenshire was taken from the courtroom, Brockenshire’s mother expressed to the judge her concerns as to Brockenshire’s competency. Brockenshire’s mother approached the bench, stating:
“(DEFENDANT’S MOTHER): I have come up here because [Brockenshire] can’t remember dates and he has a learning disability.
“THE COURT: Does he have a history of mental problems?
“(DEFENDANT’S MOTHER): He can only read and write about the fourth grade level, and the last attorney he had told me he was mentally about sixteen.
“THE COURT: In his problem with other states, has he had a psychological evaluation or anything in school?
“(DEFENDANT’S MOTHER): No.
“THE COURT: Do you feel he might need one?
“(DEFENDANT’S MOTHER): I know he can’t read that well. He can read the law now because in prison he wanted to help himself, and he embarrasses me sometimes.
“THE COURT: I want to get him an attorney. If he won’t accept one, I can’t force him to take one, that’s the problem.
“(DEFENDANT’S MOTHER): I want to help him.
“THE COURT: I want to do that too. He won’t let me do that.
“(DEFENDANT’S MOTHER): That’s what he told me at the beginning.
“THE COURT: I wonder if we shouldn’t have a mental evaluation done.
“(DEFENDANT’S MOTHER): I would like that, but I don’t want him to get mad at me.”
The court’s journal entry states that on May 15, 1996, the case came on for hearing for a determination of Brockenshire’s competency to stand trial. The journal entry incorrectly stated: “[T]he Defendant appears in person and waives his right to counsel.” The judge ordered that Brockenshire be evaluated at Northeast Kansas Mental Health and Guidance Center in Leavenworth, Kansas, but he refused to cooperate in this evaluation.
A June 5,1996, a journal entry ordered a competency evaluation of Brockenshire at Larned State Hospital. The journal entry states that the matter “comes on for hearing the State’s Motion for Evaluation to Determine Competency. The State appears by its attorney, Michael Gibbens, Assistant County Attorney, the Defendant waives his right to counsel.” There is no transcript or record of this hearing in the appellate record or court file.
When Larned State Hospital found Brockenshire competent to stand trial, he was returned to court. At a subsequent hearing in the district court, Brockenshire claimed that because he was neither notified nor present in court when the judge ordered that he be evaluated to determine his competency to stand trial, the charges against him must be dismissed. Brockenshire stated to the judge:
“Yes, Your Honor. I was denied my constitutional right to be present at a material stage of my trial when you conducted the hearing to send me to Larned out of my presence, and I didn’t receive a copy of the motion to have the hearing, which I was entitled to, being I am representing myself. And, furthermore, under Subdivision [22]-3302, it states the defendant must be present at all proceedings under this section, and which is under the section that you sent me up there for. I had a right to be at that hearing, and, therefore, I am requesting a dismissal on die grounds that this is a delay that caused almost four months delay, which pointed to the people, and a violation of my speedy trial rights and right to be present.”
Without addressing his complaint, the judge reviewed the Lamed evaluation and found Brockenshire competent to stand trial. After the hearing, Brockenshire filed a motion to dismiss the charges against him, claiming a denial of his constitutional right to be present at a material stage of trial.
After the conclusion of the preliminary examination, Brockenshire again objected to having been committed for a competency evaluation without notice and without the opportunity to be heard. Without responding to the defendant’s objection, the judge bound Brockenshire over for trial.
At a pretrial conference, Brockenshire again renewed his motion for dismissal. This time the judge responded, stating:
“Once the question of the defendant’s competency is raised, the Court has to order an evaluation be conducted. Really wasn’t any hearing to hold, nor could the Court have entertained arguments from the defendant, who is representing himself at that point. Therefore, the court will deny the motion to dismiss.”
On appeal, Brockenshire asserts that he was prejudiced by the delay. Brockenshire argues that the delay caused by the competency evaluation resulted in the loss of a critical defense witness, Dan Stillian, who had been charged with sale of marijuana. The charge against Stillian had been dismissed for lack of probable cause. According to Brockenshire, Stillian left the jurisdiction of the court during the delay caused by the improper evaluation.
K.S.A. 22-3302(1) provides that if at any time after a defendant is charged with a crime the court finds reason to believe the de fendant is incompetent, the proceedings shall be suspended and a hearing conducted to determine competency. Subsection (7) of 22-3302 requires that the defendant be present personally at all proceedings under that statute.
The right of a defendant to be present at all proceedings to determine whether to hold a competency hearing has been discussed in several cases. State v. Baker, 236 Kan. 132, 137, 689 P.2d 803 (1984), held that an in-chambers conference to discuss defendant’s difficulty in understanding proceedings was not a competency hearing requiring the personal presence of the defendant. Relying on Baker, this court held in State v. Perkins, 248 Kan. 760, 770, Syl. ¶ 6, 811 P.2d 1142 (1991), that K.S.A. 22-3302 does not require that the defendant be present when the discussion concerns whether to hold a competency hearing.
The proceeding to determine whether to order a competency evaluation pursuant to K.S.A. 22-3302(1) is not a critical stage of the prosecution that requires the defendant’s presence under the Sixth Amendment. Neither the Constitution nor the statute requires that the defendant have counsel to represent him or her at the proceeding. Therefore, Brockenshire’s Sixth Amendment right was not violated by the fact he was not present at the proceeding to determine if a competency evaluation was required.
MANNER TAPE RECORDINGS ADMITTED
Cassette tape recordings from the body wire worn by Rairden during the two marijuana transactions were admitted into evidence over the objection of Brockenshire. To present a foundation for the tape’s admission into evidence, Detective Burleson testified that he supplied Rairden with a taping device and then received the tapes from Rairden after the drug transactions. When asked on direct examination if he could identify the tape as the same recording he received from Rairden on March 27, 1996, Burleson testified:
“Yes. This is the container that I put the tape in and sealed the evidence tape. The evidence tape has been broken, not by me. This was checked out to the defense. So my seal has been broken. I would only assume that this is the same tape in here.”
Brockenshire contends on appeal that the trial court erred in the admission of the tapes because they were admitted without sufficient foundation.
Brockenshire objected to the admission of the tapes and the lack of foundation, stating:
“Object to admission of the tapes . . . . Furthermore, Henry Lee Rairden never testified to the fact that is my voice on that tape. And he, the voice, what is on it, what is actually on the tapes has not been introduced into evidence, and there is no chain of evidence to show that’s my voice on that tape. Nobody ever played that tape and stated, yes, that’s our conversation. It hasn’t been admitted into evidence.”
Although admitted into evidence for the jury’s consideration during deliberations, the tapes were not played in open court.
Brockenshire contends that the trial judge’s refusal to play the tapes in open court violated his Sixth Amendment right to confront evidence and the witnesses against him; his Fourteenth Amendment right to due process; and the K.S.A. 22-3405 statutory right of the accused to be present at every stage of the trial.
The admission of evidence lies within the sound discretion of the trial court. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). The foundation requirements for admission of a tape recording are set forth in State v. Williams, 235 Kan. 485, 491, 681 P.2d 660 (1984):
“ ‘The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.’ [Citation omitted.]”
Burleson’s testimony was the foundation for the admission of the tapes. Burleson could “only assume” that the tapes admitted into evidence were the tapes he gave Rairden to record the drug buys.
First, the tapes were admitted into evidence without proper foundation. Second, the tapes were not played in open court but were played only in the juiy room; under these circumstances Brockenshire was denied the opportunity to comment or rebut the evidence contained in the tapes. Brockenshire’s lack of opportunity to confront the evidence in the presence of the jury was in contravention of his Sixth Amendment right of confrontation.
The admission or exclusion of relevant evidence in a criminal case is governed by two rules, the harmless error rule and the federal constitutional error rule. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. At every stage of the proceeding, the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. K.S.A. 60-261. When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved. State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995).
The Sixth Amendment to the United States Constitution gives a criminal defendant the right to be confronted with the witnesses against him or her. Coy v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988). Subject to certain exceptions not applicable to this case, the Confrontation Clause guarantees the defendant the right to physically confront those witnesses who will testify against him or her in a face-to-face meeting before the trier of fact. 487 U.S. at 1016.
An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Bell, 266 Kan. 896, 920, 975 P.2d 239 (1999).
The State has cited no authority for allowing a jury to consider evidence admitted outside the presence of the defendant. We are unable to declare beyond a reasonable doubt that this error had little, if any, likelihood of having changed the result of the trial. Therefore, Brockenshire’s convictions are reversed.
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Lewis, j.:
Defendant Lyn J. Pendleton is a bartender. While working at Molly Mae’s bar in Wichita, she sold a cereal malt beverage to a 19-year-old customer. As a result, she was charged with a violation of K.S.A. 21-3610a and was convicted of violating that statute. This is her direct appeal from that conviction.
While defendant was tending bar at Mollie Mae’s, a 19-year-old male ordered a beer. This particular 19-year-old male was working as a confidential informant for the Alcoholic Beverage Control when he ordered the cereal malt beverage in question. We shall hereafter refer to the confidential informant as the “underage customer.”
Defendant asked the underage customer to produce some identification, which he readily provided. The identification clearly showed that the underage customer had not reached the age of 21 years. Defendant, however, says that she had left her glasses at home and could not read the ID. Accordingly, she gave the ID to a bar patron, who also happened to be an experienced bartender, and asked that patron to read the ID. The patron misread the ID and told defendant that the underage customer was 21 years of age and that it was legal to serve him. Acting upon this advice, defendant sold the underage customer a cereal malt beverage. Defendant was then charged with a violation of K.S.A. 21-3610a, which makes it illegal to buy for or sell, give, or furnish, “whether directly or indirectly, any cereal malt beverage to any person under the legal age for the consumption of cereal malt beverage.” Defendant admits that she sold a cereal malt beverage to an underage customer. Her defense is that she was genuinely mistaken as to the age of the underage customer and had no criminal intent in selling him the cereal malt beverage.
The question we must resolve is whether a person who is genuinely mistaken as to the age of a customer lacks the necessary criminal intent to be convicted of selling cereal malt beverages to a minor.
This issue involves our interpretation of a variety of statutes, including K.S.A. 21-3201 through 21-3204, as well as K.S.A. 21-3610a.
“Interpretation of a statute is a question of law, and our review is unlimited. State v. Robinson, 261 Kan. 865, 874, 934 P.2d 38 (1997). A fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to tire intention of the legislature rather tiran determine what the law should or should not be. State v. Proffitt, 261 Kan. 526, 532, 930 P.2d 1059 (1997).” State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
K.S.A. 21-3201 provides: “Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code.” This statute seems to require that defendant must have had a criminal intent in selling the beer to the underage patron. She argues that in selling a cereal malt beverage to a minor under a genuine belief that her customer was at least 21 years of age, she did not possess the necessary criminal intent to be found guilty of violating K.S.A. 21-3610a.
We conclude that defendant’s belief as to her patron’s age, no matter how innocent, is irrelevant in determining whether she is guilty of a violation of K.S.A. 21-3610a.
Of particular importance in this regard is K.S.A. 21-3202(2), which clearly provides: “Proof of criminal intent does not require proof that the accused had knowledge of the age of a minor, even though age is a material element of the crime with which he is charged.” This statute makes knowledge of the age of a minor an irrelevancy in a prosecution under K.S.A. 21-3610a. It also requires the State to prove nothing more than general criminal intent. We conclude that since knowledge of the age of a minor is irrelevant, it follows that an innocent belief that the buyer is at least 21 years of age is also irrelevant and does not reheve a defendant from criminal responsibility for the sale of a cereal malt beverage to an underage buyer.
As indicated earlier, we conclude that the only intent required to be shown is general criminal intent. “[I]ntent may be established by proof that the conduct of the accused person was willful or wanton.” State v. Thompson, 237 Kan. 562, 567, 701 P.2d 694 (1985). In State v. Isley, 262 Kan. 281, 936 P.2d 275 (1997), our Supreme Court upheld a conviction for aggravated indecent liberties with a child. The defendant in that case argued that intent was “an essential element of the charge of aggravated indecent liberties and the failure to instruct denied him of due process of law.” 262 Kan. at 290. The Supreme Court answered this argument by saying:
“To be found guilty of aggravated indecent liberties with a child, as defined in K.S.A. 21-3504(a)(l), the State must only show that the defendant had sexual intercourse with the victims at a tíme when both victims were 14 or more years of age, but less than 16 years of age.” 262 Kan. at 291-92.
The court concluded by saying: “The statute only requires proof that the defendant had sexual intercourse with the victims,” thus, proof of a general criminal intent. 262 Kan. at 292. In State v. Rush, 24 Kan. App. 2d 113, 115, 942 P.2d 55, rev. denied 262 Kan. 968 (1997), this court held that “the very act of engaging in sexual intercourse with a child under 14 years of age establishes the crime [of rape].”
We analogize this case to the cases involving aggravated indecent liberties. We conclude that K.S.A. 21-3610a, when read along with K.S.A. 21-3202(2), requires only proof of a general criminal intent to establish the crime of selling cereal malt beverages to a minor. The only requirement under these circumstances is that the State must show that defendant willfully furnished a cereal malt beverage to a person under 21 years of age, which defendant admits. The willful furnishing of the cereal malt beverage to the underage buyer satisfies the requirement of general criminal intent. It is irrelevant what defendant thought the buyer’s age may or may not have been at the time of the sale.
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Knudson, J.:
Robert E. Barber appeals his jury trial conviction for criminal possession of a firearm. On appeal, Barber argues that the trial court erred in failing to instruct the jury that to convict, all of the jurors had to agree that the same underlying criminal act had been proven beyond a reasonable doubt and further erred in omitting an element of the crime from the elements instruction.
We reverse and remand for new trial, because it is not possible to conclude the jury rendered a unanimous verdict based upon the same underlying act of possession.
The State's evidence was that Barber, a convicted felon, possessed a gun during a disturbance. As Barber left the scene, a passenger in his car threw the gun from the window of the car. Barber, apparently not satisfied enough violence had been encountered for one day, later returned with another gun in his possession. Upon this set of factual circumstances, Barber was charged with one count of criminal possession of a firearm under K.S.A. 21-4204(a)(4).
At trial, the jury was given, without objection, the following elements instruction:
“The defendant is charged in Count II with criminal possession of a firearm. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant knowingly had possession of a firearm; and
“2. That this act occurred on or about the 5th day of October 1996 in Labette County, Kansas.”
Clearly, the jurors were not instructed that they must all agree that the same criminal act must be proved beyond a reasonable doubt before finding Barber guilty of the crime. In State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994)(quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]), the Supreme Court implicitly acknowledged such an instruction is necessary to insure jury unanimity in multiple acts cases.
The State appears to concede a specific multiple acts instruction should have been given but contends that Barber is precluded from raising this issue because no timely objection was made before submission to the jury. K.S.A. 22-3414(3) states, in material part: “No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous.”
We do not agree that the failure to give a multiple acts instruction, when the giving of such instruction is required by the evidence, permits review under a clearly erroneous standard. The trial court’s failure to so instruct the jury prevents an objective analysis as to whether the jury unanimously agreed Barber was guilty of committing a specific criminal act. And to quantify the evidence does not solve this Sixth Amendment problem — no amount of analysis would ever permit us to say the jury unanimously agreed to the underlying act supporting the conviction. Under such circumstances, the trial court’s failure to give a multiple acts instruction constitutes structural error, requiring that Barber’s conviction be set aside. See Sullivan v. Louisiana, 508 U.S. 275, 281-82, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993).
We turn next to Barber’s contention on appeal that the trial court committed reversible error by not including the necessary element of Barber’s prior conviction of a felony in the elements instruction. We agree the prior conviction is an element of the offense under K.S.A. 21-4204(a)(4). However, because we have already concluded this case must be retried, we see no reason to consider this issue upon its merits. Upon remand, the parties and trial court are referred to State v. Lee, 266 Kan. 804, 815-16, 977 P.2d 263 (1999), which tangentially addresses this issue and directs how the jury should be instructed.
Reversed and remanded for a new trial. | [
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Rulon, J.:
Respondent Excel Corporation (Excel) appeals from a decision of the Workers Compensation Board awarding claimant Gaspar Ramirez a work disability in excess of his functional impairment rating. We reverse and remand the cause with directions.
Claimant was employed by respondent as an inside meat skirt trimmer. On August 16, 1994, Dr. Pedro A. Murati examined claimant and diagnosed him with having a bilateral bicipital tendinitis, bilateral tennis elbow, and trigger fingers of the left third, fourth, and fifth digits. Claimant subsequently had nerve conduction studies performed which indicated bilateral carpal tunnel syndrome and Guyon canal syndrome. Claimant was placed on work restrictions and assigned light duty work in the laundiy room of respondent’s facility.
On February 16, 1995, claimant filed an application for hearing with the Workers Compensation Division. On February 20,1995, claimant was terminated for failing to disclose in his employment application that he had a prior workers compensation claim involving his back.
On the day of claimant’s termination, Dr. Ernest R. Schlachter conducted an independent medical evaluation on claimant. Dr. Schlachter diagnosed claimant’s condition as overuse syndrome of both shoulder girdles and both upper extremities with entrapment neuropathy of the ulnar nerve at the elbow, bilaterally, and the median and ulnar nerve at the wrist, bilaterally. Dr. Schlachter placed permanent restrictions on claimant’s activities and opined claimant had suffered a 73% loss of ability to perform work tasks. Dr. Murati, on the other hand, opined claimant suffered a 47% loss of ability to perform work tasks.
During the proceedings before the administrative law judge (ALJ), respondent stipulated that claimant’s accidental injuries arose out of and in the course of his employment. The parties agreed that claimant suffered a functional impairment of 24% to the body as a whole.
The ALJ awarded permanent partial disability benefits to claimant based on his 24% functional impairment. The ALJ found claimant suffered a 47% task loss based on Dr. Murati’s testimony. The ALJ found, however, that claimant’s wage loss resulted from his termination for failing to disclose a prior injury in his employment application and not from the work-related injuries. Claimant subsequently appealed to the Workers Compensation Board (Board).
A majority of the Board modified the ALJ’s award, finding claimant was entitled to work disability in excess of his functional impairment rating. The majority stated:
“Here, the claimant was returned to work with the respondent at an accommodated position after the injury. However, respondent discovered during this period of time that claimant had falsified his pre-employment application with regard to a prior workers compensation injury in California. . . . It is significant that the injury in California has no bearing on the upper extremity injury suffered by claimant in this instance. None of the tasks listed by Dr. Ernest Schlachter and Dr. Murati appear to exceed the 50-pound lifting limitation placed on claimant by the company physician in California in 1990. Therefore, the Appeals Board finds that claimant is entitled to a work disability based upon both the task loss and wage loss prong of K.S.A. 44-510e. In considering claimant’s 47 percent loss of task performing ability with the 100 percent loss of wages, as claimant was unemployed at the time of regular hearing, the Appeals Board finds claimant is entitled to a 73.5 percent permanent partial disability as a result of the injuries suffered while employed with respondent.
“The Appeals Board awards a work disability in this instance despite claimant’s falsification of his pre-employment application and concludes that the employment contract entered into between claimant and respondent did not change the employer/employee relationship with regard to claimant’s entitlement to workers compensation benefits. For the employment contract to be void, sufficient for the purpose of denying workers compensation coverage, claimant’s fraud would have had to have a causal relationship to claimant’s injury.”
A minority of the Board disagreed, noting
“it would be inappropriate for claimant to be awarded a work disability based upon his loss of wages when respondent put forth the effort to return claimant to work at an accommodated position and claimant’s loss of employment resulted purely from his own actions, i.e., the falsification of his employment application at the time of his hire.”
Respondent appeals from the Board’s majority decision.
Respondent argues the Board erred in not applying the presumption against work disability in this case because claimant returned to work at an accommodated position after his injury and before he was terminated for cause.
This court’s standard of review is set forth in the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. For purposes of this appeal, this court may only grant relief if “the agency has erroneously interpreted or applied die law” or “the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A. 77-621(c)(4), (7).
In Kansas, work disability is found and measured by considering the percentage of the worker’s loss of ability to perform work tasks and the actual loss of wages resulting from the worker’s disability. K.S.A. 44-510e(a) provides, in pertinent 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.”
K.S.A. 44-510e(a) precludes permanent partial disability compensation in excess of the functional impairment as long as the worker earns 90% of his or her pre-injury wage. See Lee v. Boeing Co., 21 Kan. App. 2d 365, 371-72, 899 P.2d 516 (1995). However, an employee may still be entitled to permanent partial disability benefits if the employer conducts an economic layoff or the employee’s accommodated position is no longer available. See Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 838-39, 936 P.2d 294 (1997).
Kansas courts have found that under certain circumstances, a worker is precluded from obtaining permanent partial disability compensation. In Perez v. IBP, Inc., 16 Kan. App. 2d 277, 826 P.2d 520 (1991), Perez argued that his work-related injuries prevented him from engaging in any type of employment following his termination from IBP for absenteeism. The ALJ, the director of workers compensation, and the trial court all found that Perez had failed to show a work disability. On appeal, this court recognized that “K.S.A. 1990 Supp. 44-510e(a) creates a presumption that no work disability exists under circumstances where the worker returns to the same work, for the same wage, after an injury.” 16 Kan. App. 2d at 279. This court noted the evidence revealed that Perez returned to work almost immediately after his injury, worked 33 out of 57 days, and was ultimately terminated for absenteeism. This court concluded by affirming the award limiting Perez to his demonstrated functional impairment. 16 Kan. App. 2d at 279.
In Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), Foulk was placed on work restrictions after suffering a back injury. In response, the employer offered Foulk a different job within her restrictions, at the same rate of pay, but Foulk rejected the offer and never at tempted to perform the new job. 20 Kan. App. 2d at 280. On appeal, Foulk argued the presumption of no disability under K.S.A. 1988 Supp. 44-510e(a) did not apply to cases where the worker has the ability to engage in work for comparable wages but does not do so. 20 Kan. App. 2d at 283. This court rejected Foulk’s argument, noting ”[t]o construe K.S.A. 1988 Supp. 44-510e(a) as claimant suggests would be to reward workers for their refusal to accept a position within their capabilities at a comparable wage.” 20 Kan. App. 2d at 284.
In Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997), Copeland sought workers compensation benefits after she failed to return to work in an accommodated position. The ALJ awarded benefits based on a 10% functional impairment but no work disability because Copeland refused accommodated employment. The Board modified the award, finding Copeland had an 80% work disability based on a 100% wage loss. On appeal, the employer argued that because Copeland still had the ability to earn wages at the time of her injury, she was not entitled to a work disability. 24 Kan. App. 2d at 319.
This court reversed the Board’s decision, stating:
“In attempting to harmonize the language of K.S.A. 44-510e(a) with the principles of Foulk, we find the factfinder must first make a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre- and post-injury wages based on the actual wages can be made. This may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.
“If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.” 24 Kan. App. 2d at 320.
We conclude the majority decision of the Board is erroneous both in its analysis and result. The facts of this case are controlled by our decisions in Perez v. IBP, Inc., and Foulk v. Colonial Terrace.
We reverse the Board’s decision and remand the cause with directions to enter an award limited to claimant’s stipulated functional impairment. | [
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Marquardt, J.:
Duane B. Larson appeals his conviction for driving while under the influence of alcohol.
The facts of this case are largely uncontroverted. Officer Tim Schuck was on street patrol when he observed Larson driving a 1-ton flatbed truck with an expired license plate. Officer Schuck stopped Larson, immediately smelled alcohol, and observed Larson’s glossy and bloodshot eyes and slurred speech. Larson could not adequately complete the field sobriety tests and failed the preliminary breath test.
Larson was charged with one count of driving while under the influence of alcohol and one count of driving a vehicle with an expired tag. Officer Schuck was not aware that owners of certain trucks had until February 15 to renew their license plates. Larson was found guilty of driving while under the influence of alcohol. The driving with an expired license plate charge was dismissed. Larson appealed his municipal court conviction to the trial court.
Larson filed a motion to suppress the evidence supporting the charge of driving while under the influence of alcohol. Larson argues that his license tag had not expired; therefore, the stop was solely based on Officer Schuck’s wrongful interpretation of Kansas law. See K.S.A. 8-134.
An evidentiaiy hearing was held on Larson’s motion. The trial court found that the stop was based on reasonable and articulable suspicions and denied the motion. Larson was convicted of driving while under the influence of alcohol. He timely appeals.
When the facts material to a decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law subject to unlimited review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).
A law enforcement officer may stop any person in a public place based upon a specific and articulable fact raising a reasonable suspicion that such person has committed or is about to commit a crime. State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999); see K.S.A. 22-2402(1). A determination of what is reasonable must be based upon the circumstances judged by common sense and ordinary human experience. State v. DeMarco, 263 Kan. 727, 734-35, 952 P.2d 1276 (1998). In the case of a police stop of a motor vehicle, the requirements to justify a stop, search, or arrest are lessened because of its mobility. See Slater, 267 Kan. at 698.
Every vehicle registration expires December 31 of each year, except passenger vehicles and vehicles provided for in K.S.A. 1997 Supp. 8-134a. Under K.S.A. 8-134(a), the renewal shall take effect on January 1 of each year but the owner of the vehicle has until, and including, February 15 for such renewal. The criminal sanctions provided for in K.S.A. 1997 Supp. 8-142 are not enforceable until after February 15 of each year. K.S.A. 8-134(a).
It is undisputed that Larson’s truck falls within the classification of vehicles covered by K.S.A. 8-134. Technically, his tags expired on December 31. The stickers on the license plate reflected this fact. Larson merely had a statutory grace period in which to renew his tags before he was subject to criminal sanctions for driving with an expired license plate.
Larson cites several cases from other states to support his argument for suppression. In People v. Teresinski, 30 Cal. 3d 822, 180 Cal. Rptr. 617, 640 P.2d 753 (1982), the defendant was charged with violating a loitering ordinance. In People v. Molenda, 71 Ill. App. 3d 908, 390 N.E. 2d 560 (1979), the defendant was charged with violating a hitchhiking statute. Both of these cases are factually distinguishable. In State v. Greer, 114 Ohio App. 3d 299, 683 N.E. 2d 82 (1996), also cited by Larson, the facts are much closer to those of the instant case. In Greer, an officer mistakenly believed that a driver’s u-turn was in violation of an ordinance. After the stop, Greer was arrested and charged with driving while under the influence of alcohol, an unlawful turn, and failure to wear a seatbelt. The trial court suppressed the evidence and dismissed all three charges against Greer. The Ohio Court of Appeals reversed the trial court’s decision, stating that it could not find the officer’s “act of stopping Greer to have been unreasonable under all the circumstances.” 114 Ohio App. 2d at 306. The court reversed the trial court’s suppression of the evidence relating to the charges of driving while under the influen ce and failure to wear a seatbelt.
Officer Schuck’s suspicion that Larson violated a statute by driving a vehicle with an expired license plate was reasonable because the tag had expired. Officer Schuck was unaware of the grace period provided in K.S.A. 8-134 for Larson’s type of vehicle. Larson was charged with driving with expired tags, but because of the grace period, he was acquitted of that charge in municipal court.
The statutory grace period for renewing an expired license tag does not invalidate an officer s reasonable suspicion that a statute was being violated. Had Larson not been driving while under the influence of alcohol, he would not have been convicted of any charge. Officer Schuck’s suspicions were reasonable.
The trial court did not err in refusing to suppress the evidence.
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PIERRON, J.:
Tyrone Oliver received a workers compensation award including payment for wage loss. The Boeing Company-Wichita and American Manufacturers Mutual Insurance Company (Boeing) contend that Oliver did not allow Boeing the opportunity to offer accommodated work before he resigned and claimed disability and, therefore, he did not act in good faith. We affirm.
Oliver worked for Boeing installing doors on 737 cargo planes. He riveted, drilled, deburred, and engaged in other physical tasks using power tools. In June 1993, he reported to Boeing’s medical center complaining of pain in his left elbow and told the physician the riveting gun he used was causing the problem. The physician prescribed painkillers. In October 1993, he reported to the center again and complained of severe shooting pains in his left hand and forearm when he used the riveting gun. Around this time, Boeing transferred Oliver to another job where the tasks were lighter, and his pain lessened. Short of qualified personnel, Boeing moved him back to the cargo door station and demanded 18 hours of overtime per week. Oliver began to complain steadily to his manager about the increasing pain. The manager, unhappy with Oliver’s performance, threatened to fire him.
On March 15, 1994, Oliver reported to the medical center and complained of continuous pain in his shoulders, across his back, and in his wrists, especially on the right side of his body. He reported the symptoms had begun 2 years before. The physician diagnosed early carpal tunnel and overuse syndrome, and shoulder bursitis. The physician placed no medical restrictions on Oliver, but suggested wrist braces and gel gloves. By March 24, it was impossible for Oliver to perform his job because of the pain. The physician again refused to place Oliver on medical restrictions, but referred Oliver to a specialist for a nerve conduction study. Oliver resigned from Boeing the same day, although he did see the specialist. He filed an application for hearing on July 7, 1994.
Within lVz weeks of leaving Boeing, Oliver found employment with a construction company. However, he was forced to quit after 3 months when the company insisted he do work that involved overhead reaching. He found another job with a forklift company where he maintained the company’s forklifts and vehicles. The light physical work does not aggravate his condition; however, he makes significantly less money than when he worked at Boeing.
Upon an order of the administrative law judge (ALJ), Dr. Mills examined Oliver and diagnosed tendinitis of the shoulders and carpal tunnel syndrome. Finding that Oliver had probably reached maximum medical improvement, Dr. Mills restricted him to occasional overhead lifting and forbade vibrating power tools, prolonged wrist flexion, and cool environments.
The ALJ rejected Oliver’s claim that he was forced to resign from Boeing and denied wage loss compensation. The ALJ awarded Oliver a 31.5% work disability. Boeing applied for Workers Compensation Board (Board) review. The Board amended the ALJ order, holding that Oliver was incapable of working the day he resigned and had acted in good faith. The Board awarded 66% permanent partial general disability, including a 60% wage difference. Boeing appeals.
Boeing contends Oliver violated his duty to seek appropriate employment, as required by Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Boeing points out Oliver left the company voluntarily when he was under no medical restrictions. Boeing also claims Oliver never requested accommodated work from the company. Boeing suggests an employee is under a legal duty to request accommodated work from an employer once restrictions are in place.
K.S.A. 1998 Supp. 44-510e(a) allows wage loss compensation if the claimant is making less than 90% of his or her preinjury gross weekly wage. Foulk and its progeny, including Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 318-19, 944 P.2d 179 (1997), and Lowmaster v. Modine Mfg. Co., 25 Kan. App. 2d 215, 217, 962 P.2d 1100, rev. denied 265 Kan. 885 (1998), create an exception and hold that a claimant is barred from wage loss compensation if he or she is capable of earning 90% or more of the employee’s preinjury wage level within medical restrictions but fails to do so. In such a situation, the court acts to prevent a claimant from re fusing to work and exploiting the workers compensation system. Foulk, 20 Kan. App. 2d at 284. Whether this exception gives rise to a duty to request accommodated work from an employer is a question of law over which this court exercises de novo review. See P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994) (existence of a duty is a question of law). Courts construe the Workers Compensation Act (Act) liberally for the purpose of bringing employers and employees within its provisions. Thereafter, the provisions are applied impartially to both employers and employees. K.S.A. 1998 Supp. 44-501(g); see Wheeler v. Boeing Co., 25 Kan. App. 2d 632, 967 P.2d 1085 (1998).
Neither K.S.A. 1998 Supp. 44-510e(a) nor Foulk’s policy exception require a claimant to seek post-injury accommodated work from his or her employer in every circumstance. The statute is concerned only with how much is made, not where the claimant is working. Foulk and its progeny are concerned with a claimant who is able to work but refuses to do so. Boeing does not cite any law supporting an absolute duty to seek accommodated work from the employer before looking elsewhere.
Just as the Act does not impose an affirmative duty upon the employer to offer accommodated work, Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 147-48, 927 P.2d 958 (1996), rev. denied 261 Kan. 1082 (1997), it also does not establish an affirmative duty upon the employee to request accommodated work. Whether a claimant requested accommodated work from an employer is just one factor, viewed along with the rest of the record, in determining whether the claimant in good faith attempted to obtain appropriate work.
Boeing points out its interest in avoiding liability under the Act and argues it would have readily accommodated Oliver once legitimate restrictions were in place. While Boeing raises a notable point, this sort of broad interest balancing is best left to the legislature.
Boeing also argues that Oliver resigned based on his own opinion that he could no longer do the work and before the company had an opportunity to evaluate his medical condition thoroughly. Boeing reasons Oliver’s act of bad faith discharged it from subsi dizing his less demanding but lower paying job with the forHift company.
The record indicates Boeing had known of Oliver’s deteriorating condition since June 1993. The Board found Oliver had requested work restrictions or a transfer and had been refused. His manager ordered him to work 18 hours overtime per week, and when he told her he was unable to do so, she threatened to fire him. The Board found that Oliver was physically unable to do his job the day he resigned. Finally, Oliver immediately found other employment corresponding to his skills and persisted until he found a job that also accommodated his disabilities. There was substantial evidence in the record supporting the Board’s findings.
Boeing had clear notice concerning Oliver’s physical difficulties and did not act. Oliver resigned of necessity and immediately found new work. The record supports all of the Board’s relevant factual findings and establishes that Oliver met his burden of good faith under Foulk and Copeland.
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Knudson, J.:
Kevin D. and Mary B. Bush (collectively “Bush”) purchased a residence with undisclosed termite damage from Roberta J. Shoemaker-Beal and James B. Beal (collectively “Beal”). After obtaining a $100,000 default judgment based upon negligent misrepresentations by Beal, garnishment proceedings were commenced against State Farm Fire & Casualty Company under a rental dwelling policy previously issued to Beal. Bush appeals from the district court’s determination that certain policy exclusions precluded coverage.
We affirm because the economic losses sustained by Bush from Beal’s negligent misrepresentations are not “property damage” caused by an “occurrence” as those words are defined or used within the policy issued by State Farm.
The State Farm policy consists of three distinct sections: general definitions; Section I, which provides property insurance coverage for loss or damage to the insured dwelling and related property; and Section II, which provides specified liability coverage to the insured for “a claim ... for damages because of . . . property damage to which this coverage applies, caused by an occurrence.”
In the definition section of the policy, “occurrence” and “property damage” are defined. “ ‘[Occurrence,’ when used in Section II of this policy, means an accident, including exposure to conditions, which results in: ... property damage”; “ ‘property damage’ means physical damage to or destruction of tangible property, including loss of use of this property.”
The above definitions unambiguously require a cause and effect analysis; that is, what was the occurrence that resulted in damage to the insured property?
State Farm maintains that its insured’s negligent misrepresentations, if any, were not the cause of any property damage; simply put, the termites, not the Beal’s misrepresentations, caused die property damage, and Bush’s claim is to recover economic damages.
The interpretation and construction of an insurance policy is a question of law over which we may exercise unlimited review. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998). Insurance policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. The test to determine whether an insurance policy is ambiguous is what a reasonably prudent insured would understand the language to mean. 265 Kan. at 694. An insurance policy is not ambiguous unless there is a genuine uncertainty as to which of two or more possible meanings is proper. 265 Kan. at 698.
The above-stated provisions of the State Farm policy are not ambiguous. We have been unable to find any reported Kansas cases addressing the issue now raised. However, numerous other jurisdictions have considered this issue and decided that a homeowner’s policy with similar language does not afford coverage for an insured’s negligent misrepresentations as to the condition of the property. See State Farm Fire and Cas. Co. v. Brewer, 914 F. Supp. 140, 142 (S.D. Miss. 1996), and the cases cited therein.
We agree with the reasoning in Brewer and hold that there is no coverage under the State Farm policy because the damage to the conveyed property was not caused by the negligent misrepresentations of Beal. The damage was caused by termites. We further hold there is no coverage because Bush seeks economic damages, not property damages.
Bush also argues State Farm should be estopped from contesting the reasonableness of the default judgment. Our decision renders this issue moot.
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Rulon, J.:
Respondents Jennifer Banks and Jerold Dahlstrom, the heirs of the estate of Robert C. Dahlstrom (decedent), appeal the district court’s order allowing petitioner, Betty A. Kroeger, decedent’s former spouse, to file a motion for reinstatement of her maintenance after decedent’s death. Respondents further appeal the granting of the motion for reinstatement of maintenance and the probate court’s jurisdiction over the matter. We affirm.
Petitioner and Robert C. Dahlstrom were divorced on November 3, 1989, in Shawnee District Court. An amended decree of divorce stated, inter alia:
“1. Effective October 1,1989, Respondent [decedent] shall pay ... an allowance for future support of tire Petitioner denominated as maintenance in the sum of One Thousand Two Hundred Fifty Dollars ($1,250) per month for seven (7) consecutive months, which shall be decreased to One Thousand One Hundred Dollars ($1,100) per month effective May 1,1990, for one hundred fourteen (114) consecutive months, for a total of one hundred twenty-one (121) months, subject to prior termination or modification as set forth hereinafter.
“2. Pursuant to K.S.A. 1988 Supp. 60-1610 and all amendments thereto, the Court reserves jurisdiction to consider extension of this maintenance order if the motion to reinstate is filed prior to the expiration of one hundred twenty-one months. Upon motion and hearing, the Court may reinstate the maintenance award in whole or in part, but no single period of reinstatement may exceed an additional one hundred twenty-one (121) months.
“5. In the event of Respondent’s death, the obligation for payment of maintenance shall not terminate and the Petitioner shall have a claim against the estate of Respondent for any unpaid maintenance payments and for future maintenance payments . . . .”
Decedent died on April 26, 1995. On July 3, 1995, petitioner filed a petition for allowance and classification of demand in which she asked the district court to order her maintenance payments to continue from decedent’s estate and to restate her right to file for reinstatement of maintenance. The court ordered maintenance payments to continue as had been ordered at the time of the divorce but made no ruling on the reinstatement of maintenance issue.
Petitioner subsequently filed a petition to secure claim for future maintenance under K.S.A. 59-2240 and restated her right to file for reinstatement of maintenance for an additional 121-month period. After a hearing on the issue, the district court found that a petitioner who has been granted the right to petition for reinstatement of maintenance, when accompanied by an agreement that maintenance is enforceable after the payor’s death, retains that right after the death of the former spouse. However, the court held the 120 months in which petitioner would have had to move for reinstatement of maintenance is shortened to the time allowed for claims against the estate or would be considered abandoned.
Eventually, the district court granted petitioner’s timely motion for reinstatement of maintenance for an additional 121 months. The court considered the size of the estate and weighed that against the resources and the needs of the petitioner. The court further considered whether the maintenance allowance would enhance petitioner’s lifestyle. Respondents appeal the district court’s orders.
JURISDICTION
Clearly, the district court reserved jurisdiction to hear a motion for reinstatement of maintenance in the amended divorce decree. Although such order was made in Division Seven (domestic), and the present issue was decided in Division Eight (probate), both divisions come under the jurisdiction of the district court. A district court may use the Probate Code, Chapter 59, to settle the accounts of an estate. See K.S.A. 59-103(a)(3); K.S.A. 1998 Supp. 59-2212. Further, it was necessary for judicial economy for petitioner to file her claim against the estate in the division of the district court that was handling the probate proceeding. See K.S.A. 59-2237.
REINSTATEMENT OF SPOUSAL MAINTENANCE
The general rule is that periodic payments of maintenance to a divorced spouse terminate upon the former spouse’s death in the absence of a provision in the settlement agreement, or in the decree, which expressly states otherwise or contains language which makes the intent unmistakably clear that such payments are to continue after the payor’s death. In re Estate of Sweeny, 210 Kan. 216, 224- 25, 500 P.2d 56 (1972). Here, there is a provision in the divorce decree which makes it unmistakably clear that the maintenance payments ordered at the time of divorce are to continue after the former husband’s death. The question is whether the right to move for reinstatement of maintenance continues after the former husband’s death. This is a question of first impression in Kansas.
K.S.A. 60-1610(b)(2) states: “If the original court decree reserves the power of the court to hear subsequent motions for reinstatement of maintenance and such motion is filed prior to the expiration of the stated period of time for maintenance payments, the court shall have jurisdiction to hear a motion by the recipient of the maintenance to reinstate the maintenance payments.” (Emphasis added.) Consequently, because this divorce decree “reserves the power of the court to hear subsequent motions for reinstatement of maintenance,” and because the “stated period of time for maintenance payments” in this case explicitly continues after the payor’s death, the recipient retains the right to file a motion to reinstate maintenance payments after the payor’s death. See K.S.A. 60-1610(b)(2).
This right to file a motion to reinstate maintenance payments must be filed “prior to the expiration of the stated period of time for maintenance payments” or, in the case of a claim against an estate, within the time in which claims against the estate may be filed. Such procedure is necessary to comply with the provisions of the probate code. See K.S.A. 59-1302; K.S.A. 59-1501; K.S.A. 59-2236.
Upon movant’s filing of a motion to reinstate maintenance, the district court must hold a hearing. K.S.A. 60-1610(b)(2). At the hearing, the court’s determination of reinstatement of maintenance must be based on “a realistic evaluation of the parties’ circumstances, future income, and needs.” In re Marriage of Sedbrook, 16 Kan. App. 2d 668, Syl. ¶ 2, 827 P.2d 1222, rev. denied 251 Kan. 938 (1992).
The trial court has wide discretion regarding spousal maintenance, and a judgment awarding maintenance will not be disturbed absent a clear abuse of discretion. In re Marriage of Hedrick, 21 Kan. App. 2d 964, 967, 911 P.2d 192 (1996). Discretion is abused only if no reasonable person would take the view adopted by the trial court. See Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984).
Here, the district court considered all relevant factors. The court looked at the size of the estate, petitioner s current resources and needs, petitioner s capacity to earn future income, petitioner s age and health, and whether reinstating maintenance would enhance petitioner’s lifestyle. Petitioner was 72 years old, emotionally and physically unable to work, and just meeting her monthly expenses with the maintenance payments. Decedent’s estate was sufficient to continue maintenance, and the maintenance would not enhance petitioner’s lifestyle but merely enable her to maintain her same standard of living. Importantly, the court ordered that any remaining assets left at the time of petitioner’s death should be distributed to decedent’s heirs. As we understand, the district court ordered the estate to be closed and the executor discharged. The remaining obligation of the estate is to keep the account open which has already been established for petitioner’s future maintenance.
Arguably, situations may arise with facts different from those here that may require the district court to deny a petitioner’s motion for reinstatement of maintenance after the payor’s death. But taking into account the facts and circumstances of the case at hand, the district court did not abuse its discretion in awarding petitioner maintenance for an additional 121 months.
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Lewis, J.:
In 1996, Robert and Betty George were divorced. A.D.G. is the minor child of the parties, and she was placed in the residential custody of Betty and has remained there to the present time.
This action arises because A.D.G. quit school on her 16th birthday and later became pregnant and gave birth to a child of her own.
After the events mentioned in the preceding paragraph had taken place, Robert filed a motion to terminate his obligation to pay child support on the grounds that his daughter had emancipated herself when she quit school and became a mother.
The trial court terminated Robert’s child support obligation, finding “that in as much as she is not attending school and has dropped out of school and is not attending [and] has in essence emancipated herself that support is no longer appropriate.”
We hold that the trial court erred in concluding that A.D.G. was emancipated, and we reverse and remand for that reason.
In Baker v. Baker, 217 Kan. 319, 537 P.2d 171 (1975), the father argued that when his son went into the Navy, the son became emancipated and that relieved the father of any further obligation of support. The court held that entiy into the Navy was not grounds for automatically terminating child support but could be considered as a factor for reducing or terminating the support payments. 217 Kan. at 321.
In Patrzykont v. Patrzykont, 7 Kan. App. 2d 533, 535, 644 P.2d 1009 (1982), we said: “[Emancipation does not necessarily terminate the obligation of support and would be an inappropriate event for justifying automatic termination by the parents without sanction of the court.”
Robert argues that under K.S.A. 38-101, K.S.A. 38-108, and K.S.A. 38-109, the trial court was authorized to determine whether A.D.G. was emancipated. We have examined those statutes, and they would only result in emancipation if the minor, by his or her next friend, filed a petition in the district court asking for emancipation. K.S.A. 38-109. If a minor is emancipated pursuant to these statutes, child support obligations would cease. See Trunkey v. Johnson, 154 Kan. 725, 730, 121 P.2d 247 (1942) (applying G.S. 1939 Supp. 38-108). It is obvious that A.D.G. did not petition the court pursuant to the statutes cited by Robert, and she was not emancipated by the procedure set forth in those statutes.
Robert next argues that the actions of his daughter in dropping out of school and in becoming a mother resulted in a constructive emancipation.
In Kansas, we have recognized constructive emancipation under the common law. See Longhofer v. Herbel, 83 Kan. 278, 280, 111 Pac. 483 (1910); Lewis v. Railway Co., 82 Kan. 351, 108 Pac. 95 (1910). In Lewis, our Supreme Court indicated that “[t]he emancipation of a minor by his parent may be inferred from the conduct of the parties or other circumstances. [Citations omitted.] The jury, in substance, found that the mother in this instance relinquished all claim to the plaintiff s earnings and all right to control him.” 82 Kan. at 351-52. This holding appears to be in conformity with the definition of emancipation found in 67A C.J.S., Parent and Child § 5: “the freeing of a child for all the period of minority from the care, custody, control, and service of the parents; the relinquishment of parental control, conferring on the child the right to his or her own earnings and terminating the parent’s legal obligation to support the child.”
In Harris v. Rattini, 855 S.W.2d 410, 412 (1993), the Missouri Court of Appeals for the Eastern District held that a child who drops out of school before his or her 18th birthday, takes a part-time job, and has no mental or physical incapacity is emancipated, and child support is no longer required. By way of contrast, however, in Detwiler v. Detwiler, 162 Pa. Super. 383, 387, 57 A.2d 426 (1948), the Superior Court of Pennsylvania found that a 17-year-old who dropped out of school, earned his own income, but lived at home was not emancipated. The court found that the parents had not relinquished control over the child. In In re Marriage of Clay, 670 P.2d 31 (1983), the Colorado Court of Appeals held that where a 16-year-old daughter was dependent upon her mother for financial support, had not established a residence away from both her parents, was not married to the father of her child, and did not receive support from her child’s father was not emancipated and was entitled to support.
We disagree with the trial court’s conclusion that when the child in question quit school, became pregnant, and bore her own child, she was emancipated. The young lady in question continues to live with her mother and is apparently dependent upon her mother to a large extent.
The trial court erred in terminating child support upon the grounds that the child was emancipated.
On remand, the trial court must consider all relevant factors. It is certainly relevant that the child has quit school and now has a child of her own. However, the trial court must also consider the financial resources and needs of A.D.G. The court should also consider, to some degree, the financial resources and needs of the mother with whom A.D.G. lives. After the consideration of all those factors, the trial court may decide to eliminate or reduce the amount of child support being paid by Robert to Betty.
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Marquardt, J.:
A.C.W. (A.), a 12-year-old, appeals his adjudication for aggravated indecent liberties with his 8-year-old half-sister, J.
A. was charged with aggravated indecent liberties pursuant to K.S.A. 21-3504(a)(3)(A) or, in the alternative, K.S.A. 21-3504(a)(3)(B).
The police were called to a disturbance at J.’s home. J.’s mother said the argument started because A. “had been sexually molesting [J.] and the problem had not been dealt with.” J. told Officer Mallard that her parents were arguing because her brother was touching her privates.
Prior to trial, A.’s attorney requested that A. be given a jury trial. The trial judge denied the request. After presentation of the evidence, the trial judge found A. to be a juvenile offender in violation of K.S.A. 21-3504(a)(3)(A) or, in the alternative, K.S.A. 21-3504(a)(3)(B).
A. was placed on probation and ordered to undergo sex offender treatment. The journal entry also ordered A. to provide blood and saliva specimens to the Kansas Bureau of Investigation. After the sentencing hearing, the trial judge issued an order nunc pro tunc correcting the original journal entry. The corrected journal entry found that there was enough evidence to support a conviction on both counts. A. filed a motion to dismiss, which was denied. A. now appeals the motions, trial, adjudication, and disposition of the district court.
Sufficiency of Evidence
A. argues the State did not prove A. performed the acts with the intent to satisfy his sexual desires, as required by the statute. A. contends the State cannot infer intent from his actions, which is commonly done in adult prosecutions. Rather, he says, the State must prove A. had the intent to satisfy his sexual desires. A. maintains his actions were motivated by innocent sexual curiosity.
The standard of review on a challenge to the sufficiency of the evidence requires this court to review all the evidence, viewed in the light most favorable to the prosecution. If the court is convinced that a rational factfinder could have found the respondent guilty beyond a reasonable doubt, a challenge to the juvenile adjudication should fail. In re B.M.B. 264 Kan. 417, 433, 955 P.2d 1302 (1998).
This is an issue of first impression in Kansas. The State of Washington considered an identical argument in State v. T.E.H., 91 Wash. App. 908, 960 P.2d 441 (1998). In that case the child’s attorney argued that the State must prove the juvenile’s understanding of the issues of sex and that the juvenile enjoyed the act or was sexually stimulated. 91 Wash. App. at 916. The Washington Court of Appeals stated that the offense of indecent liberties requires a showing of sexual gratification because without that showing the touching might have been inadvertent. The court found the act was not inadvertent. The court noted that the factfinder is entitled to make reasonable inferences based on all the evidence and testimony presented. 91 Wash. App. at 916-17.
Recently, the United States Supreme Court decided a case where a child was alleged to have sexually harassed another child at school. Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 143 L. Ed. 2d 839, 119 S.Ct. 1661 (May 24, 1999). The Court allowed a fifth grade girl to proceed with a Title IX suit against her school district. The plaintiff in Davis was repeatedly molested by a classmate who attempted to touch her breasts and genital area. The court found that the acts were “severe, pervasive, and objectively offensive.” 143 L. Ed. 2d at 860.
J. said A. always “ask[ed] [her] to make love with him” and became angry when she refused. J. also said A. asked her to touch his “private,” and that he touched her privates while she was sleeping. A. told her he was having sex with his girlfriend, and he was always asking neighbor children to touch his privates.
Because A. threatened to harm her, J. was afraid to tell any of her family. J. told the social worker she did not like getting her brother “in trouble” and that she would not be saying anything if it were not true.
Greg, the children’s father, testified that he had received reports from neighbors that A. was telling other children how to masturbate and perform sexual intercourse. Officer Zamorano testified that Greg told him that, “[b]asically, [A.]’s been playing with [J.]’s vagina and has done [sic] several times to arouse himself.” Greg testified at A.’s hearing and said that initially he felt A. was just “sexually curious.” Greg came to this conclusion after hearing A. say, “It’s time to play show and tell.” Greg then approached the bed where his children were and saw A. trying to zip up his pants. Greg admitted that his son’s behavior was “not right” and inappropriate.
Detective Hein, who also testified at A.’s hearing, spoke with Greg during his investigation. Greg allegedly confirmed J.’s story about A. touching her while she was in the bathroom. Greg allegedly told Detective Hein he wanted to make sure A. received therapy. On cross-examination, A.’s attorney asked Detective Hein if he spoke with any of J.’s neighbors. Allegedly, the neighbor told Detective Hein that J. frequently lies and makes up stories. However, Detective Hein also said several neighborhood children confirmed J.’s story about A. always wanting to have sex with J.
J.’s mother, Patricia, was concerned about A.’s behavior. Patricia confronted A., who admitted to “messing with” J. Apparently, a neighbor overheard this conversation and confirmed that A. confessed to molesting J.
The testimony given at A.’s hearing provides sufficient evidence to support the charge of aggravated indecent liberties. J. testified about the numerous times her brother inappropriately touched her. These statements were confirmed by her father and other neighborhood children. A.’s desire for secrecy supports the fact that he knew his actions were inappropriate. The inappropriate touches were clearly not accidental; the abuse apparently continued over a period of 1 year or more. Additionally, A. shared his knowledge of certain sexual behaviors with other children. The nature of the acts themselves, combined with A.’s obvious sexual maturity, prove intent. A. has provided no authority that would persuade this court to decide otherwise. There was sufficient evidence to support intent.
Prosecution of a Person Under 14 Years of Age
A. contends the Kansas Legislature never intended for a 12-year-old to be prosecuted under K.S.A. 21-3504, the statute which criminalizes aggravated indecent liberties. A. made this argument during his motion to dismiss. A.’s attorney admitted there was no legislative history to support his position. A. contends the purpose of K.S.A. 21-3504 is to protect the young children from pedophiles.
Interpretation of a statute is a question of law, and this court’s review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. The court must give effect to the intention of the legislature as expressed, rather than determine what the law should be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
The Kansas Juvenile Offenders Code mentions K.S.A. 21-3504 in two places. K.S.A. 38-1603(b) establishes special statutes of limitation for certain offenses, including K.S.A. 21-3504. K.S.A. 1998 Supp. 38-1610(b), dealing with expungement of records, specifically mentions K.S.A. 21-3504. In Kansas, a juvenile is a person between 10 and 18 years of age. K.S.A. 38-1602(a).
We hold that the legislature intended for K.S.A. 21-3504 to apply to persons under 14 years of age. K.S.A. 21-3504 does not specify the age of the offender; it only mentions the age of the victim. The plain, unambiguous language used in the statute allows prosecution of a 12-year-old for aggravated indecent liberties. A.’s argument is without merit.
Denial of a Jury Trial
A. argues the juvenile justice system has become more punitive than paternal since changes were made in 1984. A. claims the consequences of a felony juvenile adjudication are so similar to an adult felony conviction that a juiy trial is warranted.
It is well settled in Kansas that the decision of a trial court to deny or grant a jury trial in a juvenile proceeding is not subject to appellate review. In re J.T.M., 22 Kan. App. 2d 673, 681-82, 922 P.2d 1103, rev. denied 260 Kan. 993 (1996). A.’s argument is not without merit. However, this court is duty bound to follow Kansas Supreme Court precedent. 22 Kan. App. 2d at 682. We do not have jurisdiction to consider this argument.
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Elliott, J.:
Nathan C. Harbur, attorney for the plaintiff below in a personal injury suit, negotiated a settlement with Farmers Insurance Company (Farmers) which insured both plaintiff and defendant in the suit. Harbur appeals the trial court’s denial of attorney fees related to personal injury protection benefits (PIP) Farmers paid to plaintiff.
We affirm.
As noted, Farmers insured both parties. Farmers paid plaintiff $8,100 in PIP benefits. Harbur then negotiated a settlement with Farmers by which Farmers would pay an additional $15,000 to plaintiff for pain and suffering and waive its subrogation lien for the PIP benefits already paid to plaintiff.
Harbur sought attorney fees based on the $8,100 lien waived by Farmers on the theory he had “recovered” the PIP funds for Farmers. The trial court denied the motion, holding that without an actual transfer of funds, there could be no recovery under K.S.A. 40-3113a(e).
The sole question for decision is whether Farmers’ waiver of the lien was an execution under K.S.A. 40-3113a(b) for the purposes of apportioning fees. The parties agree the question is one of statutory interpretation, over which our review is plenary. See Jackson v. Browning, 21 Kan. App. 2d 845, 847, 908 P.2d 641 (1995).
When a statute is plain and unambiguous, courts must give effect to the legislature’s expression; we will not rewrite the statute. See Brown v. U.S.D. No. 333, 261 Kan. 134, 141-42, 928 P.2d 57 (1996); State v. Mires, 21 Kan. App. 2d 139, 140, 895 P.2d 1267 (1995).
K.S.A. 40-3113a provides:
“(a) When the injury for which personal injury protection benefits are payable under this act is caused under circumstances creating a legal liability against a tortfeasor ... the injured person . . . shall have the right to pursue such person’s remedy by proper action in a court of competent jurisdiction against such tortfeasor.
”(b) In the event of recovery from such tortfeasor by the injured person, . . . the insurer or self-insurer shall be subrogated to the extent of duplicative personal injury protection benefits provided to date of such recovery and shall have a hen therefor against such recovery and the insurer or self-insurer may intervene in any action to protect and enforce such hen. . . .
“(e) Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, such person’s dependents or personal representatives in the amounts determined by the court."
Under the statute, two things must happen before the attorney fee clause under subsection (e) comes into play: Defendant’s insurer must pay duplicative benefits and plaintiff s insurer must exercise its lien. See K.S.A. 40-3113a(b). The statute has been applied where, as here, a single company insures both parties, and any transfer of PIP reimbursement funds is purely an internal bookkeeping function. See Ballweg v. Farmers Ins. Co., 228 Kan. 506, 618 P.2d 1171 (1980).
In Ballweg, the two events needed to activate the attorney fee clause in the statute occurred — Farmers included duplicative PIP benefits in its total judgment and also executed the lien against itself through an internal transfer of money.
On the other hand, in the present case, Farmers never executed its lien and no internal transfer of PIP monies occurred. Instead of deducting or transferring funds pursuant to the lien, Farmers merely waived its lien and paid the pain and suffering settlement, preventing an internal transfer of PIP funds.
Kansas cases have held that PIP reimbursements are not subject to attorney fees if the company receives the funds in some manner alternative to the statutory subrogation lien. Where the insurer uses a valid alternative method of bookkeeping, the attorney fee provision in subsection (e) simply does not apply. See Bardwell v. Kester, 15 Kan. App. 2d 679, 684, 815 P.2d 120 (1991); Howard v. Edwards, 9 Kan. App. 2d 763, 764-66, 689 P.2d 911 (1984).
As we read these cases, the proper focus is not whether the attorney obtained reimbursement funds for the insurer but whether the insurer recovered funds through execution of the subrogation lien or through some other valid alternative method.
Without a transfer of duplicative benefits and an actual execution of the PIP lien, K.S.A. 40-3113a(e) does not apply. Applying the plain language of the statute, we hold that when a single company insures both parties to a settlement agreement, it is not liable for attorney fees based on PIP benefits paid unless it actually recovers the benefits by executing the statutory subrogation lien upon itself and internally transfers the funds. In the present case, by waiving its lien rather than executing on it, Farmers utilized a valid alternative bookkeeping method and is not responsible for attorney fees on that portion of the settlement.
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Worden, J.:
Appellant Daniel A. Martinez, d/b/a Insurance Claims Consultants, appeals the trial court’s order granting summary judgment in favor of appellee State Farm Fire and Casualty Company (State Farm). We affirm.
Martinez operated a business under the name of Insurance Claims Consultants in Wichita and purchased a business insurance policy from State Farm. In early 1997, the attorney general commenced an action against Martinez, alleging he had engaged in the unauthorized practice of law and had engaged in deceptive and unconscionable acts and practices in violation of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq.
State Farm retained legal services for Martinez in connection with the suit against him, reserving the right to assert that it might not be liable to indemnify him under the policy. Ultimately, in August 1997, State Farm instituted this declaratory judgment action to determine whether it had liability coverage under the policy.
In the action prosecuted by the attorney general, a jury convicted Martinez of three violations of the deceptive acts and practices provisions of the KCPA, including a single violation under K.S.A. 50-626(b)(4) that he “disparaged the services of another by representing that [Wichita] attorneys would charge a fee of 25-40% on a workers’ compensation award.”
In March 1998, the trial court granted State Farm’s motion for summary judgment, finding no ambiguity in the policy or liability on the part of State Farm to indemnify Martinez. This appeal timely followed.
Martinez argues that the trial court erred in granting State Farm’s motion for summary judgment.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to 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. See Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998).
Martinez argues that the business insurance contract with State Farm is ambiguous regarding coverage; thus, there exists a dispute of material fact precluding summary judgment.
The risk insured against and the duty to defend under a policy of liability insurance are determined initially by the terms of the policy. The overriding question in this appeal is the obligation of State Farm under the policy and the risk insured against with respect to the attorney general’s suit. In determining the appropriateness of the trial court’s actions, the pleadings and findings in the attorney general’s action must be examined in the light of the terms of the policy.
ATTORNEY GENERAL’S SUIT The petition filed by the attorney general asserted two theories against Martinez: (1) that he had engaged in the unauthorized practice of law and (2) that he had engaged in “deceptive and unconscionable acts and practices” in violation of the KCPA, pursuant to the provision of K.S.A. 50-626 and K.S.A. 50-627. Ultimately, Martinez was found guilty of the following: two violations of K.S.A. 50-626(b)(2), willful representation that he had advanced legal knowledge and experience in the insurance claims process and that those representations contained exaggerations, falsehoods, innuendos, and ambiguities of material facts; one violation of K.S.A. 50-626(b)(4), where Martinez disparaged the services of another by representing that attorneys would charge a fee of 25-40% of a workers compensation award and that he made such representation knowingly, or with reason to know, that they were false or misleading representations of material facts; committing 201 unconscionable acts and practices in violation of K.S.A. 50-627, by making misleading statements of opinion on which the consumer was likely to rely to the consumer’s determent; and engaging in the unauthorized practice of law.
The court fined Martinez $500 for each of the 201 unconscionable acts, $5,000 for each of the 2 willful misrepresentations, and $5,000 for disparaging the services of another. These fines were civil penalties imposed pursuant to K.S.A. 50-636(a).
THE POLICY
The policy is labeled and described as a “Business Policy” of insurance. This is a type of liability policy designed specifically for the protection of those engaged in business.
“A contract is the written embodiment of the parties’ intent, and construction of the contract is a matter of law.” Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1007, 974 P.2d 569 (1999). Appellate courts construe insurance policies in a way that will give effect to the intentions of the parties. Brumley v. Lee, 265 Kan. 810, 812, 963 P.2d 1224 (1998). If the policy is not ambiguous, the court is not to remake the contract, the court is to enforce the contract as made. 265 Kan. at 812-13.
“To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992).
Martinez repeatedly cites his interpretation that the policy says that State Farm will defend him and indemnify any damages that he is obligated to pay as evidence of ambiguity. Differing interpretations of a contract’s provisions do not make a contract incomplete or ambiguous. See Fahey, 266 Kan. at 1007.
The provision central to this appeal provides: “We [State Farm] will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury, properly damage, personal injury or advertising injury to which this insurance applies.” The policy then defines bodily injury, property damage, personal injury, advertising injury, and excepts certain willful actions of the insured from coverage.
This court must first look at the underlying theory of liability alleged by the attorney general to determine whether coverage exists. See Brumley, 265 Kan. at 814.
A. Did the policy provide coverage to the appellant in the suit filed by the attorney general?
The attorney general alleged Martinez had engaged in the unauthorized practice of law and had engaged in deceptive and unconscionable acts and practices in violation of the KCPA.
Some states have held that consumer protection violation suits brought by the attorney general are not covered by a general insurance policy. In O’Neill Investigations v. Ill. Emp. Ins., etc., 636 P.2d 1170, 1176-77 (Alaska 1981), the Alaska Supreme Court concluded that the general policy in question was unambiguous in its coverage of individualized injury and, since the attorney general’s action was not one for an individualized injury, coverage did not exist. Other jurisdictions have resolved this issue on a damages distinction, concluding that an attorney general’s action was not a claim for “damages.” Seaboard v. Williams’ NW Chrysler, 81 Wash. 2d 740, 744, 504 P.2d 1139 (1973); Haines v. St. Paul Fire & Marine Ins. Co., 428 F. Supp. 435, 441-42 (D. Md. 1977).
Kansas courts have not addressed this issue. The KCPA is intended “to protect consumers from suppliers who commit deceptive and unconscionable practices.” K.S.A. 50-623(b). Remedies under the KCPA include obtaining a declaratory judgment, obtaining a restraining order, recovering damages on behalf of consumers, and recovering reasonable expenses and investigation fees. K.S.A. 50-632(a). Also under the KCPA, a violator may be subject to civil penalties. K.S.A. 50-636. Either the attorney general or an aggrieved consumer may initiate an action under the KCPA. K.S.A. 50-632; K.S.A. 50-634.
If this court were to adopt an individualized injury interpretation of the insurance contract, such as that taken by the Alaska Supreme Court, no further inquiry is necessary — coverage for an action initiated by the attorney general would not exist. Alaska’s rationale relies on the role its attorney general plays in its consumer protection act. Its attorney general is responsible for bringing cases of this kind to “ ‘protect the public from the kinds of business practices which are prohibited by the statute; it is not to seek redress for private individuals. Where relief is provided for private individuals by way of restitution, it is only incidental to and in aid of the relief asked on behalf of the public.’ ” O’Neill, 636 P.2d at 1176 (quoting Seaboard, 81 Wash. 2d at 746). Under Alaska law, restitution is ancillary to the action. Alaska Stat. § 45.50.501(a) (1998). Kansas courts and comments to our KCPA do not express a similar intent; our statute places recovery for an aggrieved consumer on an equal footing with other enforcement remedies bestowed on our attorney general. K.S.A. 50-632.
Furthermore, a plain reading of the contract does not suggest such a restrictive interpretation. The policy purports to provide coverage for damages Martinez is obligated to pay as a result of certain defined injuries. The policy does not require the damages to be awarded to an injured person, simply that the damages result “because of bodily injury, property damage, personal injury or advertising injury.” For these reasons, this policy might provide coverage for damages resulting from an action initiated by the attorney general; further inquiry into the attorney general’s allegations and potential coverage is necessary.
1. Unauthorized practice of law.
Martinez argues that this violation is covered as a personal injury “arising out of oral or written publication of material that violates a person’s right of privacy.” His argument is essentially that since he was not an attorney, he was not bound by the Kansas Rules of Professional Conduct regarding client confidentiality. Therefore, anything told to him by one of his clients was subject to being published; that would be a violation of that client’s “right of privacy,” which was being enforced through the attorney general’s suit.
The attorney general’s action against Martinez was for the unauthorized practice of law, not an action on behalf of an injured client claiming a violation of his or her right to privacy due to publicized confidentialities. The proper inquiry is not speculation as to the attorney general’s motives in bringing the suit, but whether the unauthorized practice of law is a covered injury, either on the face of the policy or ambiguously hidden within it. See Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 731, 864 P.2d 204 (1993) (finding no merit in appellee’s speculative arguments). The unauthorized practice of law does not fit within any of the covered events found within the policy: bodily injury, property damage, personal injury, or advertising injury.
2. Two Violations of Kansas Consumer Protection Act, K S.A. S0-626(b)(2).
K.S.A. 50-626(b)(2) provides that a deceptive act includes “the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact.”
Martinez argues these two violations result from his representations to two clients that he had advanced legal knowledge and experience. As with his previous argument, he argues that these violations of two clients’ rights to privacy are covered under advertising injury and personal injury coverage.
Again, the proper inquiry is not speculation as to the attorney general’s motives in bringing the suit, but whether the willful use of exaggeration, falsehood, innuendo, or ambiguity as to a material fact is a covered injury, either on the face of the policy or ambiguously hidden within it. Such exaggeration does not fit within any of the covered events found within the policy: bodily injury, property damage, personal injury, or advertising injury.
3. 201 Violations of Kansas Consumer Protection Act, K S.A. 50-627(b)(6).
Martinez argues that while he was charged and found guilty of violating K.S.A. 50-627(b)(6), “that the supplier made a misleading statement of opinion on which the consumer was likely to rely to the consumer’s detriment,” these 201 counts were in reality violations of K.S.A. 50-626(b)(4), “disparaging the property, services or business of another by making, knowingly or with reason to know, false or misleading representations of material facts,” which is a covered injury under the policy.
Webster’s New Collegiate Dictionary 364 (9th ed. 1991) defines disparage as: “1: to lower in rank or reputation: DEGRADE 2: to depreciate by indirect means (as invidious comparison): speak slightingly about.” While a creative argument, it is nonetheless without merit; Martinez’ misleading statements cannot be equated to be disparaging remarks.
4. One Violation of Kansas Consumer Protection Act, K S.A. 50-626(b)(4).
K.S.A. 50-626(b)(4) provides that a deceptive act includes “disparaging the property, services or business of another by making, knowingly or with reason to know, false or misleading representations of material facts.”
Martinez argues that the policy provides coverage under advertising injury or personal injury provisions. Within the definition of both, the policy provides that coverage exists for “injury arising out of . . . oral or written publication of material that . . . disparages a person’s or organization’s goods, products or services.”
The policy clearly provides coverage for damages arising from an appellant’s publication of material disparaging a person’s services. Had a Wichita attorney sued for those remarks, there would be no question that such remarks would be covered within the policy; however, at issue is whether the policy covers such remarks when the suit is not brought by the disparaged individual, but by the State.
One reasonable interpretation of the contract is that advertising injury coverage protects Martinez from remarks he might make that disparage another; another reasonable interpretation is that coverage only extends to the disparaged person and suits by the disparaged person.
“The general rule that insurance policies are to be construed in favor of the insured and against the insurance company arises only if there exists a rational basis for construing the policy itself. ‘That is, the contract must contain provisions or language of doubtful, ambiguous or conflicting meaning, as gathered from a natural interpretation of its language. [Citations omitted.]’ ” Anderson v. Nationwide Life Ins. Co., 6 Kan. App. 2d 163, 165, 627 P.2d 344, rev. denied 229 Kan. 669 (1981) (quoting Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 498-99, 470 P.2d 821 [1970]).
Applying this standard, “damages” arising from Martinez’ disparaging remarks, enforced by the attorney general under the KCPA, may be covered unless the damages are excluded on other grounds.
The policy excludes personal injury or advertising injury “arising out of oral or written publication of material if done by or at the direction of the insured with knowledge of its falsity.” Martinez seeks coverage for his disparaging remarks. A material question of fact remains — whether his remarks were made with knowledge of their falsity or made with reason to know of their falsity. However, summary judgment may be appropriate if, as a matter of law, civil penalties may not be insured against.
B. Are civil penalties included as “damages” under the policy?
In granting State Farm’s summary judgment motion, the trial court determined that the policy did not provide coverage for the civil penalties sought by the attorney general.
This court has held similar provisions within an insurance policy provided coverage for exemplary or punitive damages where penalties were not expressly excluded by the policy language. Southern American Ins. v. Gabbert-Jones, Inc., 13 Kan. App. 2d 324, 328, 769 P.2d 1194 (1989). In Gabbert, this court held “all sums” language in an insurance policy was unambiguous and unqualified, covering punitive and exemplary damages; the policy did not say all sums awarded as compensatory damages or that all sums awarded except punitive damages will be paid. 13 Kan. App. 2d at 328. Under this rationale, civil penalties would be included within the broad language “those sums.” Martinez’ policy states State Farm “will pay those sums that the insured becomes legally obligated to pay as damages.” (Emphasis added.) In Gabbert, the appellee would pay “ ‘all sums which [Gabbert] ... is legally obligated to pay as damages.’ ” 13 Kan. App. 2d at 325. Because State Farm points to no exclusionary language in its policy, absent some overriding public policy against such coverage, civil penalties awarded under a covered injury would be covered.
State Farm argues that the civil penalties sought by the attorney general are penal in nature and therefore are not “damages” as defined by the policy. This issue has not been addressed in Kansas. An examination of many jurisdictions which have addressed this issue leads to the conclusion that there is a split of authority. See Travelers Ins. v. Waltham Indus. Laboratories, 883 F.2d 1092 (1st Cir. 1989) (finding no coverage with a general policy for civil penalties); Governmental Interinsurance Ex. v. City of Angola, 8 F. Supp. 2d 1120 (N.D. Ind. 1998) (finding civil penalties covered within the policy triggering insurer’s duty to defend); A.Y. McDonald Industries v. INA, 475 N.W. 2d 607 (Iowa 1991) (finding “damages” not broad enough to encompass civil penalties); Weeks v. St. Paul Fire & Marine Ins. Co., 140 N.H. 641, 673 A.2d 772 (1996) (finding penalty and fines to be covered by general insurance); Drexel Group v. Vigilant Ins., 157 Misc. 2d 198, 213, 595 N.Y.S.2d 999 (1993) (finding that “[t]he sting of criminal penalties is not to be soothed by permitting its payment out of an insurance pool rather than directly by the wrongdoer”).
The Kansas Supreme Court has held that it is against the public policy of this state to allow a wrongdoer to purchase insurance to cover punitive damages. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 404, 507 P.2d 189 (1973).
“Since exemplary damages, as we have endeavored to illustrate, are awarded not to enrich or reward a plaintiff but rather to serve as an object lesson both to a wrongdoer, himself, and to others who might be tempted to follow his wayward ways, the purpose they are intended to serve would be thwarted if the additional financial burden were cast upon innocent shoulders.” 211 Kan. at 404.
This reasoning is controlling; it would be contrary to public policy to allow a wrongdoer to insure against civil penalties associated with his or her own actions. For this reason, the judgment of the trial court granting summary judgment to State Farm is affirmed.
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Marquardt, j.:
Defendant Theodore J. Cooper seeks credit for time he spent incarcerated in Florida before his extradition to Kansas. He was charged with four counts of forgery in 1989. When he did not appear for a court hearing, an alias warrant was issued. He was then charged with failure to appear. In July 1997, Cooper was arrested in Florida on the warrant in Kansas. He resisted extradition from July 22 until October 22, 1997. Upon his return to Kansas, he pled no contest to the charges against him. He was sentenced to 1-to 2-year terms of imprisonment on each count. The sentences were to be served concurrently. Cooper was placed on probation, which was subsequently revoked.
Cooper requested credit for the time he spent incarcerated in Florida. The State argued that he should not be credited with this time because he was fighting extradition. The trial judge denied Cooper’s request. Cooper appeals.
In State v. Thorn, 1 Kan. App. 2d 460, 463, 570 P.2d 1100 (1977), this court noted that the legislative intent in K.S.A. 21-4614 is “to give criminal defendants sentenced to incarceration credit for all time spent in custody on the charge for which they are sentenced. The statute places no limits, conditions or discretion upon the grant of credit.” Although the State distinguishes Thom, stating that it did not involve a prisoner fighting extradition, the legislative intent is clear. A criminal defendant who resists extradition while incarcerated on a charge for which that defendant is later sentenced is entitled to credit for the time spent in custody. See K.S.A. 21-4614; K.S.A. 21-4614a.
The State did not dispute Cooper s assertion that he was incarcerated solely on the charges in Kansas. Therefore, the trial court did not have discretion. Cooper is entitled to credit against his sentence for the time he was incarcerated in Florida.
Reversed and remanded to the trial court for computation of Cooper’s sentence giving him credit for the time he was incarcerated in Florida. | [
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Hill, J.:
John M. Beal was convicted of one count of possession of methamphetamine with intent to sell, one drug tax stamp violation, and one count of possession of drug paraphernalia. We affirm in part, reverse in part, and vacate a portion of the sentence.
Beal had failed to appear at a sentencing hearing in a separate case. The trial court issued an arrest warrant for his nonappearance. The officers, in developing a strategy to execute the warrant, decided to take a police dog along with them in order to effect the arrest.
The officers arrived at Beal’s residence, announced their presence, and entered the home. The officers searched the home but could not locate Beal. Three children who were in the home at the time of the search informed the officers that Beal was not on the premises. One of the children told the officers that Beal was “out of town,” while another told officers that Beal was “over at Jimmy’s.”
The officers continued their search. They moved on to a detached garage located approximately 15 to 20 feet from the house. Some of the officers had previously been in the garage when executing a search warrant in 1995. Because of their experience with Beal, the officers knew that Beal had used the garage as an office. The garage has no windows. It is equipped with a roll-up door and a heavy metal, reinforced walk-through door, equipped with a swivel-type peephole. Using a battering ram to punch out the doorknob of the locked garage, the officers forced their way inside.
The interior of the garage was dimly fit and the officers approached with caution, their guns drawn for safety. One of the officers spotted a bent spoon attached to a piece of plastic and a pipe. He believed this to be drug paraphernalia. The officers decided to use the police dog to search for Beal. The police dog was trained to track individuals as well as to alert officers to controlled substances. The dog failed to locate Beal but did go straight to a cabinet located in the garage. The officers concluded that the dog was indicating there were illegal drugs in the cabinet. The officers left the garage and decided to obtain a search warrant.
While the officers were waiting for the search warrant, Randy Van Pelt arrived at the residence. Believing Van Pelt to be the defendant, one of the officers removed him from his car and conducted a pat-down search of his person. Van Pelt was in possession of a small quantity of methamphetamine and was arrested. Van Pelt told officers that he had gone to Beal’s residence to purchase narcotics from him. Van Pelt told the officers that he had made five or six drug purchases from Beal in the past, and each time Beal had retrieved the drugs from the garage. Van Pelt also told the officers that he had purchased methamphetamine from Beal as recently as 1 week before.
Upon receiving the search warrant, the officers searched the rest of the garage. They found plastic baggies, a scale, a bent spoon, a glass tube, a record book containing names and amounts of money, a funnel, a spatula, and three packets containing a white powdery substance which they believed to be methamphetamine.
At trial, Van Pelt testified that he had purchased methamphetamine from Beal in the past. Beal did not object to the testimony of Van Pelt.
Beal also testified at the trial. He stated that it had been a year since he had any dealings with Van Pelt. Beal also testified that he had never sold anything illegal to Van Pelt. Beal further testified that the scales, baggies, record book, drugs, and other drug paraphernalia belonged to someone else.
Beal raises five issues on appeal: (1) The trial court erred when it denied his motion to suppress evidence obtained from his garage; (2) the trial court improperly admitted evidence of prior drug sales activities; (3) the trial court was required to give a limiting instruction once it decided to admit evidence concerning his prior drug sale activities; (4) there was insufficient evidence to sustain his conviction for a drug tax stamp violation and possession of methamphetamine with intent to sell; and (5) the trial court erred when it commented on the chain of custody while admitting some State’s exhibits at the trial. We will deal with those issues in order.
Beal argues that the arrest warrant obtained by the officers gave them the right to search his residence or dwelling but did not give the officers the right to search the detached garage located 15 to 20 feet away from his house. He argues that the evidence found in the garage should have been suppressed by the trial court. We disagree.
In reviewing a decision regarding the suppression of evidence, we review the facts of the decision by a substantial and competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment. State v. Baacke, 261 Kan. 422, 437, 932 P.2d 396 (1997). The State bears the burden of proving that the evidence was lawfully obtained. See State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
Our United States Supreme Court in Payton v. New York, 445 U.S. 573, 603, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), stated: “[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton, therefore, “requires a two-part inquiry: first, there must be a reasonable belief that the location to be searched is the suspect’s dwelling, and second, the police must have ‘reason to believe’ that the suspect is within the dwelling.” United States v. Magluta, 44 F.3d 1530, 1533 (11th Cir. 1995). The officers’ reasonable belief is evaluated under a totality of the circumstances test. 44 F.3d at 1535.
In State v. Krout, 100 N.M. 661, 663, 674 P.2d 1121 (1984), the New Mexico Supreme Court held that an arrest warrant gave officers the authority to search for the arrestee in a greenhouse located about 300 yards away from the arrestee’s residence on the same lot, as long as the officers had a reasonable belief that they might find the arrestee there.
In United States v. Pallais, 921 F.2d 684 (7th Cir. 1990), the defendant was living in an apartment above a garage on property owned by his children. The officers had an arrest warrant but not a search warrant, and in an effort to find the defendant the officers entered into another house located on the same lot. The defendant argued that the officers had no authority to search the other house as it was not his residence. The Pallais court held that the officers had authority to search the house because it was “part of a complex of buildings constituting [the defendant’s] residence.” 921 F.2d at 691. The Pallais court further stated: “Under Payton, police armed with an arrest warrant can search the entire residence of the person named in their warrant in order to execute it — [the defendant] cannot defeat the search by hiding in the garage.” 921 F.2d at 691.
Under Kansas law, K.S.A. 22-2405(3), officers may use all necessary and reasonable force to effect an entry upon any building or property or part thereof to make an authorized arrest. The officers in this case had the authority to search the detached garage in an effort to effect their arrest warrant and upon the reasonable belief that the defendant was in the garage.
An arrest warrant gives officers the right to search for a person. Officers may search the property of the arrestee if they have reasonable belief that the arrestee is present on the property. The search for the arrestee is not limited to a house or dwelling. Officers have authority to search nonresidential buildings located on the property if they have a reasonable belief that the arrestee may be located in one of the nonresidential buildings. Officers cannot use the arrest warrant as a “Trojan horse” to search areas where the arrestee could not be hiding. See Bednar v. State, 506 P.2d 568, 570 (Okla. App. 1973). The Bednar court held that the officers could not use an arrest warrant to search a small locked trunk located inside the arrestee’s house when they could not locate the arrestee inside the house. 506 P.2d at 570.
In this case, some of the officers knew Beal had used the detached garage as an office. Beal was a fugitive and had a histoiy of eluding officers. Some of the officers had previously searched the garage pursuant to the execution of a search warrant. In fact, when Van Pelt arrived at the property looking for Beal, the first place that he looked was the garage. While the officers discovered that the garage was locked and they could not look inside the garage since it had no windows and only a small peephole, the officers used reasonable force to gain entry into the garage. Once inside, the officers found drug paraphernalia in plain view. The other ev idence was obtained by the officers after they had secured a search warrant for the premises.
We hold that the officers had the authority to search the garage in an effort to execute the arrest warrant because they had a reasonable belief that Beal was inside the garage. We conclude the trial court properly admitted the evidence.
Beal next argues that the State should not have been allowed to present evidence of his prior crimes without having a hearing prior to the trial court to determine its admissibility. Because Beal failed to object at the trial court level, we have no jurisdiction to review this issue.
The standard of review regarding a trial court’s admission of evidence subject to exclusionary rules is abuse of discretion. Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court’s view. State v. Haddock, 257 Kan. 964, 978, 897 P.2d 152 (1995).
At trial, the State called Van Pelt as a witness who testified that he had purchased drugs from Beal about a week before the execution of the arrest warrant. Beal failed to object at the time but now contends that it was erroneous to admit the evidence of his prior crimes. We cannot review evidentiary issues which were not objected to at trial. See State v. Cheeks, 258 Kan. 581, 594, 908 P.2d 175 (1995).
Continuing his argument concerning the testimony of Van Pelt, Beal argues that the trial court should have given the jury a limiting instruction concerning the use of prior crimes evidence, even though no contemporaneous objection was made. We disagree.
When a party did not request at trial that a limiting instruction be given but complains on appeal of the failure to give the instruction, the standard of review is a “clearly erroneous” standard. See State v. Roberts, 261 Kan. 320, 326, 931 P.2d 683 (1997).
The State argues that the prior crimes evidence was not admitted pursuant to K.S.A. 60-455 but was used as res gestae and therefore no limiting instruction was required. Generally, res gestae evidence is that evidence which does not constitute a portion of the crimes charged but has a natural, necessary, or logical connection to the crime. State v. Peck, 237 Kan. 756, Syl. ¶ 2, 703 P.2d 781 (1985). The State argues that this evidence is res gestae because it helps to explain the relationship between Van Pelt and Beal and helps to explain the presence of baggies, a scale, a bent spoon, a glass tube, a drug ledger, and three packets of methamphetamine in Beal’s garage. While the evidence of the drugs and the drug paraphernalia needs no additional explanation, the evidence of Beal’s prior dealings with Van Pelt does help explain why Van Pelt arrived at the scene and went first to the garage when he came to the property looking for Beal.
Failure to request a hmiting instruction or failure to object to the lack of a hmiting instruction waives the right to argue the issue on appeal. The defendant has the burden to request the hmiting instruction on evidence which is used as res gestae. See State v. Redford, 242 Kan. 658, 666, 750 P.2d 1013 (1988).
We conclude that the trial court was not required to offer a hmiting instruction on the evidence of prior crimes, as the evidence was res gestae and does not require a hmiting instruction.
Beal next argues that there was insufficient evidence to convict him for the charge of the drug tax stamp violation and for the charge of possession with intent to sell. We agree with his first contention but disagree with his second.
When a sufficiency of the evidence is challenged, the standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Cellier, 263 Kan. 54, Syl. ¶ 7, 948 P.2d 616 (1997).
In order for Beal to be convicted of a drug tax stamp violation, he needs to fall under the definition of a “dealer” pursuant to K.S.A. 79-5201(c). In order to be considered a dealer, Beal must have been in possession of “more than one gram of any controlled substance.” See K.S.A. 79-5201(c).
The State secured two pieces of evidence labeled Exhibits 10 and 11. Exhibit 10 weighed 0.4 grams and tested positive for methamphetamine. Exhibit 11 was actually two packages, neither of which was weighed separately but when weighed together weighed 1.4 grams. Samples from each package contained in Exhibit 11 were combined, and the combined sample tested positive for the presence of methamphetamine.
The methodology employed in the testing of the purported controlled substances in this case is suspect. The individual packets that comprised Exhibit 11 were never weighed separately. We do know that their combined weight was 1.4 grams. While samples were taken from both packets in Exhibit 11, they were not tested separately but combined into one sample, which tested positive for methamphetamine. One of the packets could have contained methamphetamine and one could have contained a substance that was not controlled. Both packets could have contained methamphetamine, but no test was performed that would prove this. Even if one of the packets in Exhibit 11 contained methamphetamine, we do not know its separate weight in order to determine whether when combined with Exhibit 10 (0.4 grams), there was more than 1 gram of methamphetamine that would require the purchase of a drug tax stamp. Laboratory tests of this kind must show that there is a controlled substance as well as its quantity.
Nor is the chemist’s opinion that the substances in the two packets of Exhibit 11 “appeared similar” sufficient to sustain a finding of guilt. No foundation testimony was presented at trial that would lead us to believe that such an opinion was generally accepted as reliable in the scientific community. See State v. Fuller, 15 Kan. App. 2d 34, 39, 802 P.2d 599 (1990), rev. denied 248 Kan. 997 (1991).
In a criminal case, the burden of proof is placed upon the State. Speculation based on probability or statistical or mathematical calculations is insufficient to prove guilt beyond reasonable doubt. State v. Hobbs, 248 Kan 342, 350, 807 P.2d 120 (1991).
We find that there is insufficient evidence that would convince us that a rational factfinder could have found the defendant guilty of the drug tax stamp violation, because the State failed to prove that Beal was in possession of more than 1 gram of methamphetamine.
Beal argues that there was insufficient evidence to support his conviction for possession of methamphetamine with intent to sell. His argument is based entirely on his argument that the contents of the garage should have been suppressed at trial. If the evidence would have been suppressed, Beal argues there would have been insufficient evidence to convict. Since we have held that the search was legal, this argument fails.
Finally, Beal argues that the trial court impermissibly commented on the chain of custody of State’s Exhibits 10 and 11 and therefore deprived him of a fair trial. We disagree.
During trial, Beal objected to the admission of State’s Exhibits 10 and 11 based upon a faulty chain of custody. When ruling upon the objection, the court stated:
“THE COURT: It is up to the court obviously to admit the evidence into evidence or whatever is presented into evidence. And the evidence that was presented by the witnesses today was that State’s Exhibit 10 and 11 was collected at the garage, that it was placed in bags at the garage, it was then transported to the sheriff s office in a tube, gray and red in color. It was locked in the car of Officer Higgins. It was retrieved from there and then placed in the custody, evidence locker, in the basement of the sheriff s office. From there it was then transferred to the KBI. It was retrieved by Chief Stanyan, turned over to Hernandez and examined at the KBI. It was returned and placed back in the locker. The officers testified that only Higgins and Hernandez had access to the custody locker at the sheriff s office, that it was in the basement, that it was secured, and the court’s ruling is that the chain of custody has substantially been established as is required by the statute. And it will be admitted into evidence.”
Beal argues that these comments, made in the presence of the jury, are an expression of the court’s personal views about the chain of custody of the evidence.
Allegations of judicial misconduct during the trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. See State v. Hays, 256 Kan. 48, Syl. ¶ 2, 883 P.2d 1093 (1994).
We find that Beal’s argument is without merit. The duty of the trial court is to determine the admissibility of the evidence. Here the trial court was merely recounting the testimony that had been heard concerning the evidence. This testimony had all previously been heard by the jury.
Furthermore, Beal failed to object to the trial court’s statement or request that its statements be stricken from the record or that the juiy be admonished to disregard the trial court’s statements concerning State’s Exhibits 10 and 11. Failure to make a contemporaneous objection prevents an appellate court from considering an issue oh appeal. See State v. Holbrook, 261 Kan. 635, Syl. ¶ 4, 932 P.2d 958 (1997).
We affirm the conviction of one count of possession of methamphetamine with intent to sell and one count of possession of drug paraphernalia. We reverse the conviction of the drug tax stamp violation and vacate 7 months of Beal’s imprisonment sentence which the sentencing court had made consecutive to Beal’s sentence for possession of methamphetamine with intent to sell.
Affirmed in part, reversed in part, and sentence vacated in part. | [
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Fairchild, J.:
Defendant, Donald Maggard, appeals from his jury conviction of attempted rape. He contends that the trial court erred in (1) refusing to instruct the jury on diminished capacity and, at the same time, instructing the jury that it must consider the case without favoritism or sympathy for either party; and (2) finding defendant competent to stand trial.
We agree that the combination of refusing to instruct on diminished capacity and giving the instruction on favoritism or sympathy was error. We reverse and remand for a new trial.
Defendant is mentally retarded and has a long-standing history of periods of institutionalization. The witnesses categorized the degree of defendant’s mental retardation as being mild and possibly moderate. Defendant was also diagnosed with Intermittent Explosive Disorder, an inability to control emotions resulting in especially explosive behavior.
On the evening of November 17,1995, defendant entered a local Total store and asked the lone female clerk to scan his Powerball tickets. Becoming upset and frustrated when the machine malfunctioned, defendant left the store only to return a short while later. Defendant stood by the counter. When the other customers left, he told the clerk the toilet was leaking in the restroom. When the clerk went to investigate, defendant pushed her inside the restroom. He locked the door, pushed her to the floor, and told her he was going to rape her. The clerk was able to swing her leg up and kick him in the face. As she did so, some small change fell out of her pocket. Defendant reached for the change, apparently distracted from his sexual attack. The clerk escaped from the restroom and called 911. Defendant hurriedly left the store. From the clerk’s description, officers quickly identified defendant as the likely suspect.
Defendant was charged with attempted rape. After approximately a 16-month delay caused by hearings and hospitalizations resulting from questions about defendant’s competency to stand trial, he was convicted by a jury of attempted rape. The facts surrounding the defendant’s competency will be explored more fully in the discussion of that issue.
The Court’s Instructions
Defendant claims the trial court erred in refusing to instruct the jury on diminished capacity. “Evidence of diminished capacity is admissible for the limited purpose of negating specific intent.” State v. Friberg, 252 Kan. 141, Syl. ¶ 1, 843 P.2d 218 (1992). An attempt to commit an offense requires specific intent. Therefore, attempted rape requires a showing of specific intent to commit the crime of rape. See State v. Collins, 257 Kan. 408, Syl. ¶ 4, 893 P.2d 217 (1995). In discussing diminished capacity, our Supreme Court has said:
“[T]he criminal law concept of diminished capacity requires the presence of a mental disease or defect not amounting to legal insanity which a jury may consider in determining whether the defendant has the specific intent required for the crime charged. Mere personality characteristics such as poor impulse control, a short temper, frustration, feelings of dependency] ‘snapping,’ lack of concern for the rights of other people, etc., do not constitute a mental disease or defect bringing tire doctrine of diminished capacity into play.” State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).
The trial court here ruled:
“As to the instruction of diminished capacity, the Court, after consideration of the testimony given, does not find that any evidence was given that suggests that Mr. Maggard’s problems arise above what prior cases have referred to as personality characteristic of poor impulse control. Also, there has been a lack of testimony that [make] a direct causal connection between Mr. Maggard’s capacity and the acts on November 17th, 1995.”
Defendant contends the evidence of his mental retardation and his diagnosis of Intermittent Explosive Disorder were more than sufficient to warrant an instruction on diminished capacity. When reviewing the district court’s refusal to give a requested jury instruction, appellate courts must view the evidence in the light most favorable to the party requesting the instruction. State v. Hunter, 241 Kan. 629, Syl. ¶ 9, 740 P.2d 559 (1987).
Defendant’s expert, Dr. Robert Barnett, testified that Intermittent Explosive Disorder is a behavioral disorder; however, it was his opinion that because of the mental retardation, “[the defendant] might have more difficulty controlling this marginally, because I don’t think with his level of intelligence he necessarily can understand the consequences of behavior; nor does he have the judgment to really think them through before he acts on them; and that may . . . make the problem more serious.” When asked about the combined effects of mental retardation and Intermittent Explosive Disorder, Dr. Barnett stated, “He acts on his impulses without thinking about them before he acts. He has a limited ability to understand the consequences of his behavior after he acts.”
When asked whether defendant knows right from wrong, Dr. Barnett answered, “I’ll have to answer that in two ways. He will tell you that he understands right from wrong. He is a veiy concrete individual. He thinks primitively in many cases. And I think, for example, part of his understanding of right or wrong may be more associated with — for example, he may consider a behavior acceptable if he doesn’t get caught as an issue of right or wrong, rather than understanding that it’s something that’s bad for society or bad for others in general.” Dr. Barnett stated that Intermittent Explosive Disorder is a mental illness that defendant cannot control. “He acts or reacts without thinking about it.” Dr. Barnett admitted that he would be merely speculating if he were to give an opinion as to whether defendant was having an episode of Intermittent Explosive Disorder on November 17, 1995.
A trial court is not required to give an instruction on diminished capacity. Whether to instruct the jury on diminished capacity is a matter of trial court discretion. Friberg, 252 Kan. at 145. Even where some evidence of diminished capacity has been presented, the trial court is not required to instruct on diminished capacity. See Wilburn, 249 Kan. at 686.
There is no question evidence was presented that defendant was mentally retarded and had Intermittent Explosive Disorder. A reasonable interpretation of Dr. Barnett’s testimony is that defendant has difficulty controlling his impulses to act and when he does act, he does not consider the consequences of his actions.
Although the trial court is not required to give an instruction on diminished capacity, even when faced with some evidence of diminished capacity, defendant’s evidence unquestionably raised the issue of his capacity to form the specific intent to commit the crime for which he was charged. Contrary to the trial court’s conclusion, the evidence showed that defendant suffers from more than a mere personality disorder with poor impulse control. Nevertheless, the trial court’s decision not to give the diminished capacity instruction might not be error had not the trial court also granted the State’s request for an instruction that the jury should consider this case without favoritism or sympathy for or against either party.
Defendant argues the trial court abused its discretion by instructing the jury that it must consider this case without favoritism or sympathy for or against either party and that neither sympathy nor prejudice should influence it, pursuant to PIK Crim. 3d 51.07. Defendant contends the purpose of the instruction was to remove the jury’s consideration of defendant’s mental retardation.
PIK Crim. 3d 51.07 is an objectionable instruction that should be given only in very unusual cases because it tells the jury what not to do rather than what to do. See State v. Sully, 219 Kan. 222, 226, 547 P.2d 344 (1976). At the trial in this case, the State argued for giving the instruction based on the large amount of testimony regarding defendant’s mental retardation. Defendant testified at trial. His speech was somewhat impaired, but his demeanor and actions on the stand are not reflected in the transcript. The record indicates that defendant’s gait was somewhat impaired; that he made gestures during the trial, including making circles in the air with his fingers; and that he appeared extremely upset and seemed to be ciying during the playing of the taped statement he gave officers. His demeanor, albeit likely to elicit sympathy, should have been considered by the jury in determining whether he was able to form the intent required in order to be found guilty of the crime of attempted rape.
The trial court found that “while this instruction is not normally given, there is a circumstance that has existed in this courtroom during this trial that I feel it is necessaiy to give the jury instructions on the possible intervention of sympathy into their deliberations.”
Our Supreme Court has stated:
“When reviewing challenges to juiy instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if die jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).
We find that the effect of the trial court’s instruction that the jury was to consider the case without sympathy for either party combined with the trial court’s refusal to instruct on diminished capacity was to remove from the jury’s consideration defendant’s capacity to form the intent necessary to commit the crime for which he was charged. The combination of these two rulings constitute an abuse of discretion by the trial court. Defendant’s conviction is reversed, and the case is remanded for a new trial.
Defendant’s Competence to Stand Trial
The defendant contends that the trial court erred in finding he was competent to stand trial. He argues that because the court’s initial finding was that he was incompetent to stand trial and would not be competent in the foreseeable future, it was not possible for him to later become competent. Defendant points out that his mental retardation is permanent.
The evaluation completed by Sedgwick County Department of Mental Health (Mental Health) found that defendant “meets some of the criteria for competency in that he understands the nature of his charges as well as the basics of legal proceedings.” Mental Health was concerned that defendant’s courtroom behavior might affect his ability to cooperate with his attorney in making a defense. Mental Health recommended a psychiatric evaluation to see if defendant’s behavior would be amenable to medication management. Based on this recommendation the district court ordered that defendant be evaluated by Lamed State Hospital. Based on the evaluation made by Lamed State Hospital the court found that defendant was not competent to stand trial.
The defendant was admitted to Lamed State Hospital for treatment and then transferred to Topeka State Hospital. Topeka State Hospital released defendant to the court. From the portions of the letter contained in the record we are unable to determine whether the Topeka State Hospital staff determined that the defendant was competent to stand trial at the time of his discharge. The trial court found that Topeka State Hospital determined defendant was competent to stand trial. After defendant was discharged from the hospital, he was evaluated by the defense’s expert, Dr. Barnett. Dr. Barnett found that nothing had changed since the initial finding of incompetency and defendant remained incompetent to stand trial. At the State’s urging, the court ordered another evaluation. Comprehensive Community Care of Sedgwick County (Comeare) evaluated defendant and concluded he was competent to stand trial. At a competency hearing on March 19, 1997, the court found defendant competent to stand trial based primarily on Comcare’s evaluation. Defendant maintains the trial court abused its discretion by relying on the findings made by Comeare rather than the conclusions of Dr. Barnett.
“On appeal, the reviewing court’s inquiiy on a trial court’s determination that a defendant is competent to stand trial is whether the trial court abused its discretion.” State v. Peckham, 255 Kan. 310, Syl. ¶ 6, 875 P.2d 257 (1994).
There was obviously a difference in opinion among the evaluators concerning defendant’s competency to stand trial. There is a suggestion in the record that during his hospitalization defendant received medication for his condition. From the record we are unable to determine whether taking this medication would cause the defendant to become competent to stand trial. However, the trial court was entitled to rely on the Comeare evaluation in finding the defendant to be competent to stand trial. The trial court’s reliance on the Comeare evaluation in determining that the defendant was competent to stand trial does not constitute an abuse of discretion.
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Pierron, J.:
K.L.G. is the natural mother of J.A.B., Jr., bom February 23, 1988. J.A.B., Jr.’s natural father died prior to J.A.B., Jr.’s birth. Gilbert Gregory and K.L.G. are married and Gregory has been a stepfather to J.A.B., Jr. Linda and Alvin Metcalf are the maternal grandparents. Dr. Vernon A. Berkey is J.A.B., Jr.’s paternal grandfather.
On August 31, 1998, Linda Metcalf filed a petition for appointment of a guardian and conservator and for issuance of letters of emergency guardianship over J.A.B., Jr. She alleged that he was in need of a guardian and conservator due to abandonment and neglect by K.L.G., and the inability of K.L.G. to provide for the care and well-being of J.A.B., Jr., as a result of substance abuse and her physical and mental condition. The court granted an emergency guardianship to Metcalf and suspended K.L.G.’s right to exercise care, custody, and control of J.A.B., Jr., during the pendency of the proceeding. At the time, J.A.B., Jr., was residing with Gregory and he continued to reside there with the authority of Metcalf.
On September 9, 1998, the State initiated a care and treatment proceeding against K.L.G. alleging she was addicted to cocaine. K.L.G. filed a written request for an order of referral for short term treatment which the court granted. K.L.G. began treatment at the Addiction Treatment Center on September 10, 1998. On September 28, 1998, upon the court’s own motion, K.L.G. was ordered to continue her care and treatment at a halfway house.
On December 1, 1998, Berkey, together with three of J.A.B., Jr.’s paternal aunts, filed a child in need of care (CINC) petition. The petition alleged that J.A.B., Jr., had been abandoned; had been physically, mentally, or emotionally abused and neglected or sexually abused; and was without adequate parental care, control, or subsistence necessary for his physical, mental, and emotional health. The petition detailed K.L.G.’s numerous changes of residence, how she had misappropriated funds from her late husband’s estate, and her drug addiction.
On December 8, 1998, Gregory filed a petition for stepparent adoption of J.A.B., Jr. Attached to the petition was a written “Consent of Mother to the Adoption of Minor Children” dated November 23,1998. K.L.G’s consent to the adoption was executed before a district judge on that date.
At a CINC proceeding on January 8, 1999, the petitioners filed a motion to find K.L.G. to be unfit to parent J.A.B., Jr., and to appoint a permanent guardian. Again, the motion detailed K.L.G.’s numerous changes of residence, how she misappropriated funds from her late husband’s estate, her drug addiction, and how she left her children with Gregory for weeks at a time.
On January 8, 1999, the district court held a scheduling conference covering all of the related cases. The court requested that the parties submit briefs regarding their positions as to how each case should proceed and whether Berkey, as a grandparent, had standing to participate in the adoption procedure.
On February 4, 1999, the district court issued a letter order granting the stepparent adoption to Gregory. The court found all parties had agreed that Gregory was an appropriate person to adopt J.A.B., Jr., Gregory had physical custody at the time the CINC proceeding was filed, the status of adoptive parent would entitle Gregory to certain consideration by the court in the CINC case, and his presence in the marital home would affect how the court approached issues concerning the natural mother. The court concluded that the CINC proceeding did not take precedent over the adoption proceeding on the limited legal issue of whether a legal relationship should be created between the child and the prospective adoptive parent. The court also found that Berkey had standing in the adoption proceeding only on the issue of reasonable visitation rights. Gregory was added as a necessary party in the CINC case, and the guardian and conservatorship proceeding was ordered pending until resolution of the CINC case.
On February 16,1999, Gregory filed a decree of adoption setting forth the court’s February 4, 1999, letter order. The decree was signed only by Gregory’s attorney. The order does not have the signatures of any other counsel and was not circulated to other counsel. The decree incorrectly states that Berkey appeared with counsel on February 16, 1999. On February 24, 1999, the court entered a nunc pro tunc order reflecting that J.A.B., Jr.’s name would remain unchanged after the adoption. This order was not circulated or approved by other counsel.
Berkey appeals the granting of the adoption.
First, Berkey argues the trial court erred in not requiring the CINC case to be heard prior to granting the stepparent adoption.
Generally, our standard of review in adoption cases is to determine whether there is substantial competent evidence to support the trial court’s findings. In re Adoption of K.J.B., 265 Kan. 90, 95, 959 P.2d 853 (1998). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999).
Berkey argues the present case is similar to In re K.W., 24 Kan. App. 2d 724, 726, 953 P.2d 229 (1998). There, the parents of a 2-month-old child took him to the hospital because he had been vomiting all day and had become limp and unresponsive. The father admitting to shaking the child in an attempt to arouse him. The examining doctors stated the child had sustained brain injuries consistent with injuries inflicted by shaken baby syndrome. The State filed CINC proceedings and the child was taken into protective custody and, later, into temporary custody by Kansas Department of Social and Rehabilitation Services (SRS). 24 Kan. App. 2d at 724.
Criminal charges were filed against the father for causing the child’s injuries. However, the charges were later dismissed for insufficient evidence. Although the State requested a CINC adjudication hearing for the child, the trial court never conducted a hearing. Five months after the infant had been taken into protective custody, the court ordered that he be returned to his parents. The court based its decision on the expert testimony at the father’s preliminary hearing, the evidence that no new charges were pending, and the belief that the child was the responsibility of the parents. The child died approximately 1 year later.
The In re K.W. court addressed the single issue of whether the Kansas Code of the Care of Children (KCCC) demands an adjudication hearing by the trial court before returning a child to the natural parents when an interested party had filed a CINC petition. The clear purpose of the KCCC is to protect children who have been abused or neglected. K.S.A. 38-1521. The provisions of the KCCC are liberally construed to fulfill this purpose. K.S.A. 38-1501. The In re K.W. court concluded: “When an interested party has filed a child in need of care petition and there has been no stipulation resolving this matter, the trial court is required to conduct an adjudication hearing.” 24 Kan. App. 2d 724, Syl. ¶. The court stated that to hold otherwise would undermine the entire framework of the KCCC and would prevent the State from carrying out one of the main purposes of the KCCC — to protect children who had been abused or who could potentially be abused. 24 Kan. App. 2d at 727.
Applying In re K.W. to the case at bar, Berkey argues the trial court failed to carry out the mandates of the KCCC. He contends there were ample facts before the court regarding the potential for abuse at the hands of K.L.G., yet the court allowed her husband to adopt J.A.B., Jr., without first adjudicating the CINC case which “in all likelihood would have wrested custody from K.L.G. and her husband.”
Gregory argues In re K.W. is factually not applicable. He argues that custody of J.A.B., Jr., was never removed from K.L.G. in the CINC proceeding since the child was already living with Gregory, that the CINC case is still active and pending, and that the public policy of the KCCC to protect children was adequately fulfilled by appointing an emergency guardian and by assuring care and treatment of K.L.G. Gregory maintains that even if the adoption had not been granted prior to the CINC proceeding, it is very likely, if not certain, that the court would have awarded temporary custody to Gregory anyway due to the existing relationship and existing placement.
Gregory argues his suitability to be an adoptive father to J.A.B., Jr., has never been challenged at any time by any party and points out that Berkey even requested in the CINC case that Gregory be given temporary protective custody of J.A.B., Jr. Gregory agrees with the trial court that Berkey has sustained no harm in the granting of the adoption. He says the CINC case can continue on the issue of K.L.G.’s fitness, but the issue is probably moot.
Gregory notes there is no legal authority prohibiting the granting of the adoption prior to resolution of the CINC case. He states that granting the adoption would be conducive to a return to the same family unit which existed prior to the petition.with K.L.G. having successfully completed treatment and recovery.
This case involves a stepparent adoption. It is not an agency adoption or an independent adoption. A stepparent adoption is the adoption of a minor child by the spouse of a parent with the consent of that parent. This is not a situation where a couple has divorced and later remarried or a case where one of the natural parents has failed to assume parental duties for 2 consecutive years prior to the filing of the adoption.
Nearly one million children a year become stepchildren. In most states, stepparents have no clearly defined legal right or obligations regarding stepchildren. 1 Elrod, Kansas Family Law Handbook § 6.021, p. 6-3 (1990). If both natural parents are still living, a stepparent adoption involves terminating only one of the natural par ent’s rights. The rights of the parent whose spouse is adopting the children remain intact. K.S.A. 59-2118(b) provides that “[ujpon adoption, all the rights of birth parents to the adopted person, including their right to inherit from or through the person, shall cease, except the rights of a birth parent who is the spouse of the adopting parent.” The Kansas statutes encourage stepparent adoptions in hopes of continuing a family unit which in most cases is conducive to a child’s well-being.
In this case, we are also cognizant of a trial court’s authority to control the proceedings in its court. District judges must have discretion to control the courtrooms of this state. See State v. Williams, 259 Kan. 432, 446, 913 P.2d 587, cert. denied 519 U.S. 829 (1996). Similarly, a district judge must have discretion to control the method of how it will proceed in related cases. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. McKissick v. Frye, 255 Kan. 566, 577, 876 P.2d 1371 (1994).
The trial court found that it would be preferable to have Gregory participate in the CINC case as the adoptive father as opposed to another party having custody of J.A.B., Jr., at the time the CINC case was filed. The court correctly recognized it was dooming Berkey’s case in finding that the strengths and stability that Gregory would provide to the home as both husband and father would significantly have an impact on the CINC case and its subsequent resolution. The court stated:
“Nor does the Court believe that the CINC proceeding takes precedence over the adoption proceeding on the limited legal issue of whether a legal relationship should be created between the child and the prospective adoptive parent. The CINC case will continue, the juvenile court will exercise its jurisdiction with respect to the best interests of the child. Nothing about the adoption order divests the juvenile court of jurisdiction or even attempts to do so. The CINC case proceeds to resolve the issues prompting the filing of the case. The adoption case has merely added another party to that process.
“The Court sees no harm in such an approach. This is a stepparent adoption. The child has lived in the Gregory home for some time. The natural father of the child is dead. The allegations of the CINC case are aimed at die care of the child provided by the natural mother. If the CINC case cannot resolve issues with respect to the mother’s care of the child, the Court will look to the fadier of the child. Why not have that fadier in place in this case should that be necessary.”
Trial courts must be vigilant in making sure the best interests of the child are served when more than one legal action involving the child’s welfare is pending. Here, we believe the court was aware of what was going on and carefully proceeded properly.
We find Berkey’s reliance on In re KW. to be unpersuasive. K.W. was taken into protective custody and then returned to the natural parents, who were suspected of abuse, without an adjudication hearing. In the case at bar, custody of J.A.B., Jr., has remained the same from the first judicial filing. The CINC case is still active and pending, and the public policy of the KCCC to protect children was followed by appointing an emergency guardian and assuring care and treatment of K.L.G.
We also stress that each adoption must be judged on its own unique set of facts. See In the Interest of A.R.M., 750 S.W.2d 86, 89 (Mo. App. 1988). We find the trial court did not err in allowing the adoption to be completed prior to resolution of the CINC case.
Next, Berkey argues K.L.G. could not give valid consent to the adoption while her parental rights had been suspended under the emergency guardianship and while a care and treatment proceeding and a CINC proceeding were pending.
Berkey contends that when K.L.G. signed the consent, she was still subject to the emergency guardianship proceeding and lacked the ability to give valid consent. The letters of emergency guardianship stated “the rights of the natural mother [K.L.G.] to exercise care, custody and control of said minor children [are] suspended during the pendency of this proceeding or until further order of the court.” Berkey points out that even the court in its February 4, 1999, ruling held that the guardian and conservatorship proceeding would be pending until resolution of the CINC case. Berkey argues that although the court did not give a definition of “control” in the granting the emergency guardianship, he argues it is inconceivable that any definition of “control” would not include suspension of a parent’s right to consent to the adoption of a child. Berkey argues K.L.G.’s consent was invalid and void.
Further, Berkey argues K.L.G. was subject to a care and treatment proceeding for being a drug abuser who was incapacitated by drugs. Berkey argues Kansas adoption law holds that the receipt and recognition of valid consent to adoption is of paramount importance. Berkey cites In re Adoption of J.H.G., 254 Kan. 780, 869 P.2d 640 (1994), and K.S.A. 59-2114 for authority that consent must be freely and voluntarily given. He also cites the definition of “consent” in Black’s Law Dictionary 305 (6th ed. 1990) where the definition contemplates a “voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another.” Berkey concludes that it is difficult to conceive of K.L.G., a ward of the court, incapacitated by drugs, and having had parental control of her children temporarily suspended, as meeting Black’s definition of ability to consent.
K.S.A. 59-2114(a) controls the parameters of a consenting party in an adoption case:
“Consent shall be in writing and shall be acknowledged before a judge of a court of record or before an officer authorized by law to take acknowledgments. If consent is acknowledged before a judge of a court of record, it shall be the duty of die court to advise the consenting person of the consequences of the consent. A consent is final when executed, unless die consenting party, prior to final decree of adoption, alleges and proves by clear and convincing evidence that the consent was not freely and voluntarily given. The burden of proving the consent was not freely and voluntarily given shall rest widi the consenting party.”
The court in In re Adoption of Irons, 235 Kan. 540, 684 P.2d 332 (1984), discussed the general concepts of valid consent. The court stated that when a consent to adoption is properly acknowledged, the acknowledgement serves as prima facie proof of the validity of the consent and that the written consent was freely and voluntarily given. See 1 Elrod, Kansas Family Law Handbook § 6.032B (1990); In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981). In order to rebut the presumption of validity there must be a showing of fraud, duress, undue influence, mistake or lack of understanding. See In re Adoption of Chance, 4 Kan. App. 2d 576, 583, 609 P.2d 232, rev. denied 228 Kan. 806 (1980).
In the present case, the trial court found that K.L.G. gave a free and voluntary consent to the adoption. Our review is to determine whether there is substantial competent evidence to support this finding. See In re Adoption of Chance, 4 Kan. App. 2d at 583. Berkey argues K.L.G.’s consent was invalid because she was a ward of the court, incapacitated by drugs, and her parental control of her children had been temporarily suspended. He has the burden to prove that K.L.G. lacked the capacity to consent at the time she executed the consent. Berkey has set forth nothing more than assertions of incapacity and no specific evidence that at the time K.L.G. stood before the court, she lacked the capacity to consent. See e.g., In re Adoption of Irons, 235 Kan. at 547 (The mere assertion of undue influence, however, is not sufficient to shift the burden of proof. The existence of such influence must be proved by the one asserting it.) 25 Am. Jur. 2d, Duress and Undue influence § 38).
Here, the trial court sided with Gregory as to K.L.G.’s capacity to consent finding that her consent was freely and voluntarily given. Gregory states that K.L.G. had successfully completed inpatient treatment for substance abuse and completed nearly a month of continued recovery at the halfway house. The consent was executed before a district court judge prior to the filing of the CINC proceeding. Later, the consent was approved by the court, which granted the adoption with full knowledge of the emergency guardianship and the care and treatment proceeding.
We do not find that the letters of emergency guardianship suspended K.L.G.’s legal rights to J.A.B., Jr. Clearly, basic parental rights are fundamental rights protected by the Fourteenth Amendment to the Constitution of the United States. The right to be the legal parent of a child is one of these rights, which cannot be abrogated except for compelling reasons, normally a showing that the natural parent is unfit. See Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549, reh. denied 435 U.S. 918 (1978); Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981).
It is not merely splitting hairs to say that while K.L.G.’s right to exercise care, custody, and control over J.A.B., Jr., was temporarily suspended, the legal relationship between them as mother and son was fully intact. The only way to sever this legal relationship would be to terminate K.L.G.’s parental rights. This issue does not concern the various nuances of the definition of control, but whether K.L.G. had the authority to exercise rights she still retained. K.L.G. still retained the legal authority to give consent to the adoption.
K.L.G. did not consent to an independent or even an agency adoption. She consented to a stepparent adoption in a situation where the other natural parent is deceased. J.A.B., Jr., has been living with the stepparent, Gregory, for quite some time. No one has ever challenged Gregory’s fitness or his ability to be a parent to J.A.B., Jr. Different facts could lead to different results.
Next, Berkey argues he had standing to contest the adoption. He argues that since the trial court is required under K.S.A. 59-2134 to consider all evidence offered by any interested party in considering an adoption petition, it is contrary to the intent of the statute to conclude that he does not have standing in the adoption case. Berkey also argues that since he received notice of the adoption pursuant to K.S.A. 59-2133(b), he has standing to contest the adoption. He claims the purpose of notice is to allow any party to present any defense and to hold otherwise would not give notification any purpose and it would amount to little more than a court ritual. Berkey contends all the cases involved in this situation are inextricably linked and he should have standing in all the cases.
Gregory argues there is no statute that confers standing upon a grandparent in an adoption, or interested party status, or requires a grandparent receive notice of the proceedings. Gregory argues Berkey was given notice of the proceedings to permit him to pursue rights of visitation, which has never been opposed. He maintains that notice of the adoption to Berkey did not automatically confer upon him interested party status, which is within the discretion of the trial court. Gregory contends the court considered the entire situation and did not abuse its discretion in holding that Berkey had standing only on the issue of reasonable visitation. We agree.
Berkey cites no Kansas authority which provides that a grandparent has standing to contest an adoption. A grandparent’s rights in an adoption of a grandchild are purely the province of statute. A grandparent has no natural or common-law rights to grandchildren. Browning v. Tarwater, 215 Kan. 501, 504, 524 P.2d 1135 (1974); In re Johnson, 210 Kan. 828, 831-32, 504 P.2d 217 (1972); In re Bullen, 28 Kan. 557, 560 (1882). The law of adoption is de pendent on state statutory law. In re Estate of Robbins, 241 Kan. 620, 623, 738 P.2d 458 (1987). We have unlimited review of conclusions of law. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990).
K.S.A. 59-2133(b) provides: “In independent and stepparent adoptions notice of the hearing on the petition shall be given to the parents or presumed parents, unless parental rights have been previously terminated, and any other persons as the court may direct.” K.S.A. 59-2133(b) does not specifically'list the persons the court should give notice to, but instead gives the court discretion in selecting participants in the adoption hearing and related issues. Contrary to Berkey’s argument, notice of the hearing does not give a complete right to participation in the hearing. Berkey argues notice becomes an anomaly if the party receiving the notice cannot fully participate in the proceedings. We disagree.
Notice is given to parties to insure the protection of that party’s rights. See generally Clarke v. City of Wichita, 218 Kan. 334, 543 P.2d 973 (1975) (The purpose of statute requiring notice of a city’s intention to annex territory and opportunity to be heard is to protect the rights of landowners against unilateral action by city in annexing their land.); Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 56, 652 P.2d 205 (1982) (The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.). However, each party does not have the same rights in the action. Standing to participate in the proceedings is limited by the rights of the party.
Here, the grandparents’ rights in the adoption proceeding are limited to a determination of whether reasonable visitation should be granted. K.S.A. 38-129 addresses the visitation rights of grandparents. It provides that the trial court may grant grandparents reasonable visitation rights if it would be in the child’s best interests and when a substantial relationship between the child and the grandparent has been established. K.S.A. 38-129(b) specifically gives the right to seek visitation to the parents of a deceased person even if the surviving spouse has remarried and the surviving parent’s spouse has adopted the child, which is the situation in the case at bar. See In re Adoption of 16 Kan. App. 2d 164, 165-66, 819 P.2d 1244, rev. denied 250 Kan. 805 (1991).
We find the trial court did not err in holding that Berkey had standing to appear in the adoption proceeding, but only on the issue of whether reasonable visitation would be in J.A.B., Jr.’s best interest. In the subsequent decree of adoption, we note the court found that it was in the best interests of J.A.B., Jr., that visitation be allowed with Berkey and his wife, at such times and places as may be agreed upon by the parties.
Last, Berkey argues the procedure by which the adoption proceeding and the subsequent nunc pro tunc order were entered should cause the case to be reversed. Berkey argues that since he received notice of the proceedings and filed written defenses to the adoption, the final orders should have been submitted for his approval. Berkey contends that based on the improper and ex parte entry of these critically important and dispositive orders, the trial court should reverse the decree of adoption and remand the case for further proceedings in the CINC case.
Gregory responds that all parties voiced their positions at the scheduling conference and the trial court found that Berkey had standing in the adoption case only for reasonable visitation, and ultimately granted visitation in the decree. Berkey sustained no harm by the decree being approved without approval by counsel. Gregory also states that if the decree of adoption and the nunc pro tunc were incorrect, Berkey took no measures in the trial court to set aside, correct, or modify it.
We find no reversible error. Berkey contends the decree implies that he consented to the adoption. Upon review of the adoption decree, we fail to see this reference. The only error alleged by Berkey is that he was not present with counsel when the decree was entered. Berkey fails to explain how he was prejudiced by this alleged error or the failure to submit the decree for his approval. We find the claimed errors to be harmless. “ ‘Harmless error is error which does not prejudice the substantial rights of a party. It affords no basis for a reversal of a judgment and must be disregarded.’ [Citation omitted.]” Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992).
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Per Curiam:
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The opinion of the court was delivered by
Schroeder, J.:
This is a class action suit filed against Phillips Petroleum Company seeking to recover interest on “suspense royalties” attributed to gas produced from leases in the three-state Hugoton-Anadarko area during the nine-year period from June 1961, to October 1970. Phillips Petroleum Company finally paid what it termed “suspense royalties” without interest in December 1972, after the Federal Power Commission (FPC) approved certain of Phillips’ pending gas price rate increase applications. The trial court determined (1) the matter could be tried as a class action, (2) the class members had not waived any claim for interest, (3) that Phillips was liable for interest on a theory of unjust enrichment, and (4) the class should be awarded six percent compound interest. Phillips Petroleum Company has appealed and the class has cross-appealed asserting the points hereinafter considered and determined.
Irl Shutts (plaintiff-appellee and cross-appellant), a resident of Sun City, Kansas, is the executor of the estate of Althea Shutts, and a royalty owner under producing oil and gas leases owned by Phillips Petroleum Company (defendant-appellant and cross-appellee) (hereafter Phillips) in the Hugoton-Anadarko area. Shutts or his predecessor in title, Althea Shutts, received certain of the “FPC suspense money,” so-called, paid out as royalties by Phillips as hereinafter set forth. The trial court certified Shutts as a member and proper representative of a class of approximately 6,400 gas royalty owners (less a small number of such royalty owners who have opted-out after having received notice given by publication and mailing according to order of the court) who received retained funds paid out as royalties by Phillips as a result of Federal Power Commission Opinion No. 586, issued September 18, 1970, by the Commission and which became final October 28, 1972, determining the lawful gas rates in the Hugo-ton-Anadarko area rate proceedings. (In re Hugoton-Anadarko Area Rate Case, 466 F.2d 974 [9th Cir. 1972].)
During her lifetime, Althea Shutts, a resident of Kansas, owned one-seventh (1/7) of the lessor’s interest in two oil and gas leases covering lands in Oklahoma and Texas. These leases were within the Federal Power Commission’s rate-making area known as the “Hugoton-Anadarko area” which encompasses all of the State of Kansas and the panhandle sections of Texas and Oklahoma. (See 18 C.F.R. § 154.106[g].) The lessee’s interest in Althea Shutts’ two leases was owned by Phillips Petroleum Company which operated five producing gas wells.
On each of these two leases, Althea Shutts’ predecessor in title had entered into a gas royalty agreement with Phillips which has remained in full force and effect and which provides that the royalty paid to the lessor shall be computed in relation to the weighted average price per Mcf received by Phillips during any calendar month from all sales of gas delivered by Phillips within a certain “designated area.”
On June 7, 1954, in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 98 L.Ed. 1035, 74 S.Ct. 794, it was determined that Phillips, as an independent natural gas producer selling gas to interstate pipeline companies for interstate transportation and resale, was a “natural gas company” within the Natural Gas Act. (15 U.S.C. § 717, et seq.) Accordingly, such sales of gas by Phillips were subject to regulation by the Federal Power Commission (hereafter FPC). By various orders, issued since that decision, the FPC has suspended increases in prices for sales of gas by Phillips and has permitted such increases to be collected at some date subsequent to the original date proposed by Phillips, only upon Phillips’ filing with the Commission a corporate undertaking to refund any or all portions of such increase which the FPC might find not to have been justified. This corporate undertaking cost Phillips nothing to obtain. Phillips chose to collect the higher rate, subject to possible refund, because increases in gas sales prices not made effective subject to FPC approval could not be made retroactive. Phillips filed the required corporate undertaking to refund the “FPC suspense money.”
After June 7, 1954, Phillips sold gas in the “designated area” and throughout the Hugoton-Anadarko area. Some of this gas was sold subject to the FPC jurisdiction at prices which had not been approved by the FPC. The increased prices for some, but not all, of Phillips’ gas sales in the “designated area” and the Hugoton-Anadarko area were collected by Phillips subject to a duty to refund the same to the gas purchasers in the event the FPC failed to approve the sales prices pursuant to Section 4(e) of the Natural Gas Act, 15 U.S.C. § 717c(e), with interest at seven percent (7%) per annum from the date of receipt until September 18, 1970, and eight percent (8%) per annum thereafter until paid out, if the FPC did not approve the sales price. (18 C.F.R. § 154.102[c] and FPC Opinion No. 586, p. 33.) Until such time as the FPC approved such increased sales prices, or a portion of such prices, Phillips was entitled to retain the proceeds from such sales under federal cases holding that the royalty owners had no legally enforceable right to obtain such monies held by Phillips subject to refund. (See Ashland Oil & Refining Company v. Staats, Inc., 271 F. Supp. 571, 579 [D. Kan. 1967]; and Boutte v. Chevron Oil Company, 316 F. Supp. 524 [E.D. La. 1970], aff’d 442 F.2d 1337 [5th Cir. 1971].)
Until June 1, 1961, Phillips in its monthly payments to its gas royalty owners in the Hugoton-Anadarko area paid all of their share of the increased rates being collected by Phillips subject to refund, as well as their share of proceeds from the sale of gas which were not subject to refund, the so-called “firm” proceeds. Beginning June 1, 1961, Phillips’ management decided to begin withholding all of its royalty owners’ share of increased gas prices subject to refund, unless the royalty owners put up an acceptable indemnity to repay the same with interest if the increased prices were not approved by the FPC.
In July 1961, Phillips gave the following notice to Althea Shutts and all other royalty owners in the Hugoton-Anadarko area:
“NOTICE
“As you probably know, since June, 1954, all sales of gas to the interstate pipelines have been subject to the control of the Federal Power Commission. Phillips has been successful since that time in securing a number of increases in its contract prices, but these could not be placed into effect until they were approved, after investigation and hearing, by the Federal Power Commission, except by the agreement of Phillips to refund to the purchaser, with appropriate interest, such amounts that are not finally allowed by the Commission. Heretofore, Phillips Petroleum Company has voluntarily computed royalties paid you on the basis of a weighted average price which included total proceeds received in the area, without regard to the possibility of future refunds. This practice can no longer be continued. Effective June 1, 1961, and until further notice, royalties paid you will be computed by excluding that portion of any price being collected subject to refund which exceeds 11 [cents] per Mcf (presently the maximum area price level for increased rates as recently announced by the Federal Power Commission in its Statement of General Policy). Payment of royalty based on the balance of the sums collected will be made at such time as it is determined that the sums collected are no longer subject to refund.
“Interest owners desiring to receive payments computed currently on the full sums being collected may arrange to do so by furnishing Phillips Petroleum Company acceptable indemnity to cover their proportionate part of any required refunds, plus the required interest.
“PHILLIPS PETROLEUM COMPANY NATURAL GAS DEPARTMENT BARTLESVILLE, OKLAHOMA”
(Emphasis added.)
The indemnity which Phillips required was not a no-cost corporate undertaking, which was all Phillips filed with the FPC. Rather, Phillips required a corporate surety bond in an amount based on estimated production for two years, plus seven percent (7%) interest, subject to Phillips’ review at the end of eighteen (18) months.
This notice was included with Phillips’ royalty checks for June 1961, that were mailed to all its royalty owners on July 28, 1961. Seventeen (17) persons or entities (who are not members of this class action) did furnish indemnities acceptable to Phillips and received current payments computed on the full sums being collected, including amounts subject to refund. However, none of the approximately 6,400 class members responded to Phillips’ offer contained in the notice, or requested that they be allowed to furnish Phillips with acceptable indemnity, so that they might be paid otherwise than according to the method outlined in Phillips’ July 28, 1961, notice.
At various times after May 20, 1960, Phillips had nineteen (19) applications before the FPC requesting permission to increase the price for sales of gas by it within the “designated area.” In due course the FPC issued orders suspending the nineteen (19) rate increase applications. On November 27, 1963, the FPC consolidated the applications of Phillips and others for hearing in the Hugoton-Anadarko area rate proceeding.
From June 1, 1961, to October 1, 1970, Phillips deposited the increased rate monies collected in its general account and commingled it with its other funds, without ever giving notice of this fact to royalty owners during the time it was holding money. It is important to note that during this period of time Phillips had no entitlement to the gas royalty owners’ share of the “suspense royalties, ” whether or not the rates were approved by the FPC. Phillips never owned this money. While Phillips collected eight-eighths (8/8) of the increased rates, under no condition was the one-eighth (%) of the increase attributable to the royalty owners ever to go to Phillips. That royalty share, according to eventual FPC ruling, was either to go to Phillips’ royalty owners, or back to Phillips’ gas purchasers with interest, or part to one and part to the other.
On September 18,1970, the FPC issued Opinion No. 586 in the Hugoton-Anadarko rate cases which established sales prices applicable to the gas sales and refund requirements. The order was made effective October 1,1970. (See 44 FPC 761 and 35 Fed. Reg. 15,986 [1970].) The effect of FPC Opinion No. 586 was to approve the increased rates collected by Phillips from September 1,1956, to the extent of approximately $152,000,000 in plant sales of gas and approximately $1,000,000 in field or lease sales of gas, and to disapprove rate increases to the extent of approximately $29,000,000 in plant sales of gas and $73,000 in lease sales of gas, the latter amounts being found refundable to the gas purchasers with interest.
However, the FPC had no jurisdiction over landowner royalty interests relating to the sale of gas, and it undertook to make no ruling with reference to whether any interest or compensation was payable by the producers to the royalty owners for “suspense royalties” held by Phillips.
As of October 1, 1970, Phillips again began paying all of the royalty owners, to whom it accounted, royalties including the rate increases as to current monthly royalties, but Phillips did not then pay any back “suspense royalties” on monies previously withheld. On or about November 25, 1970, Phillips sent the following notice to Althea Shutts and other royalty owners in the class:
“NOTICE CONCERNING FEDERAL POWER COMMISSION OPINION NO. 586 COVERING INTERSTATE SALES OF GAS PRODUCED FROM THE HUGOTON-ANADARKO AREA:
“Effective as of October 1, 1970, and until further notice, Phillips Petroleum Company is giving effect to the full ceiling rate levels established by the Federal Power Commission in Opinion No. 586. If the check enclosed herewith includes payment for your interest in properties in the Hugoton-Anadarko Area, you are hereby notified that such payment has been based upon the full ceiling rate levels established by the Opinion.
“If such Opinion should be changed, set aside, or vacated, resulting in a reduction of the rate levels relied upon by Phillips in its calculations, Phillips will expect you to reimburse it in full for any overpayments occasioned thereby. Such recovery may be had, at Phillips’ election, by withholding from subsequent payments to you for your interest in oil or gas, or both oil and gas, whether or not produced from the same properties under which the overpayment occurred.
“Your acceptance of the enclosed check will be regarded as evidence of your consent to such recovery.
“PHILLIPS PETROLEUM COMPANY EXPLORATION & PRODUCTION DEPARTMENT GAS SETTLEMENTS DIVISION - 619 FPB BARTLESVILLE, OKLAHOMA 74004”
The foregoing notice from Phillips to Althea Shutts and all class members was included with Phillips’ royalty checks for October 1970.
Litigation regarding FPC Opinion No. 586 continued until July 31, 1972, when the Ninth Circuit Court of Appeals affirmed the FPC opinion. When no appeal was taken, the opinion became final on October 28, 1972. (See In re Hugoton-Anadarko Area Rate Case, supra.)
On or about December 7, 1972, Phillips mailed royalty checks to royalty owners in payment of the increased royalties due them by virtue of the finality of FPC Opinion No. 586. Phillips paid Althea Shutts the sum of $2,831.25, and paid out approximately $5,700,000 in additional royalties to over 6,400 persons, firms, corporations and entities (which includes the class as defined by the trial court). Only 218 of these persons were residents of Kansas. Of that number only 128 had executed gas royalty agreements of the type under which Althea Shutts’ royalty was paid. (See Phillips’ July 1961, notice to all of its royalty owners in the Hugoton-Anadarko area heretofore quoted as stipulated by the parties herein.) The record is barren as to the number in the plaintiff class residing in other states who have gas leases with Phillips covering land in Kansas, which encompasses the largest portion of the Hugoton-Anadarko area.
At the time of these payouts, Phillips sent the following notice to each payee:
“NOTICE
“The enclosed check covers payment based upon gas proceeds which have heretofore been held in suspense pending determination by the Federal Power Commission of the just and reasonable rates applicable to the Hugoton-Anadarko Area, and, subsequent to issue of Opinion No. 586 of the Federal Power Commission which determined such rates, pending appeal and judicial finality of said Opinion. The decision of the Circuit Court of Appeals affirming Opinion No. 586 has recently become final.
“Credits to leases for these heretofore suspended sums have been acrrued by computer in suspense accounts, pursuant to numerous Federal Power Commission dockets. The detailed monthly prices and lease accrual information cannot, therefore, be reflected in any practicable manner on the enclosed check. The detail of our computations can be audited during regular business hours at our Bartlesville, Oklahoma office.
“PHILLIPS PETROLEUM COMPANY SETTLEMENTS DIVISION EXPLORATION & PRODUCTION DEPARTMENT BARTLESVILLE, OKLAHOMA 74004”
(Emphasis added.)
The foregoing notice discloses Phillips neither paid nor offered to pay any interest for the use of the money, nor did Phillips say anything about interest or how long the money had been held or used by Phillips.
Althea Shutts accepted the payment for increased royalties before she died on May 15, 1974. On September 16, 1974, Irl Shutts filed this action. Shutts, as a representative of approximately 6,400 royalty owners, claimed approximately $1,000 interest for himself and interest for the members of the class on the amount ultimately paid to the royalty owners which have heretofore been denominated “suspense royalties.”
On November 26, 1974, Shutts filed a motion to certify the action as a class action. On May 1, 1975, Judge Robert M. Baker granted Shutts’ motion for a class order under K.S.A. 60-223 and ordered notice to be given to all gas royalty owners in the Hugoton-Anadarko area, regardless of whether such leases covered land in Kansas, Texas or Oklahoma. Phillips’ request to take an interlocutory appeal was denied.
Shutts prepared notices which were distributed by Phillips during a monthly royalty payment mailing to all royalty owners in the Hugoton-Anadarko area then receiving royalties from Phillips. After setting forth the facts surrounding the lawsuit, the notice provided:
“1. The court will include as members of the plaintiff class herein all of the gas royalty owners addressed above; provided, however, any person or concern so included may by filing a written request to the Clerk of the District Court of Kiowa County, Kansas, Greensburg, Kansas, 67054, on or before the 30th day of April, 1976 [original notice specified July 15, 1975] be excluded from the class unless upon notice and after hearing and for stated reasons the court finds that inclusion is essential to the fair and efficient adjudication of the controversy. Any class member, if he so desires, may appear in the case in person or through his own counsel; otherwise, plaintiff’s counsel will represent him as a member of plaintiff class.
“2. Judgment in this action, whether for the plaintiff class or for the defendant, will be binding on all class members except those who may be excluded as above stated. Class members excluded will not be entitled to share in the benefit of any judgment or settlement entered or concluded favorable to plaintiff class.
“3. Plaintiffs’ attorneys’ fees are contingent on recovery. If the plaintiffs are successful, the court will allow a reasonable attorneys’ fee for plaintiffs’ attorneys out of the interest fund created. If plaintiffs are unsuccessful, there will be no allowance of attorneys’ fees.”
Notices were also published in seven area newspapers and sent by first class mail by the plaintiff to former royalty owners. Judge Baker later disqualified himself, and Judge Duckworth was eventually assigned to this case.
On August 12, 1975, three Texas residents mailed a notice to the clerk of the district court saying they did not wish to par ticipate in this class action suit. Because this notice was not timely filed and because a multiplicity of suits could occur if exclusion was granted, the trial court sustained Phillips’ motion to deny the exclusion.
The trial court adopted by reference the stipulations of the parties set forth in the pretrial order as its findings of fact and concluded (1) the matter could be tried as a class action, (2) the class members had not waived any claim for interest, (3) that Phillips was liable for interest on a theory of unjust enrichment, and (4) the class should be awarded six percent compound interest. Specifically, the trial court determined in its conclusions of law:
“1. This is a proper class action under the provisions of K.S.A. Supp. 60-223 because:
(a) The approximately 6400 royalty owners in the Hugoton-Anadarko area makes joinder impractable [sic];
(b) Any interest due each member of the class is too small to justify separate actions;
(c) Questions of fact and law are common to all members in that the facts are really undisputed and the sole legal issue presented is whether the plaintiff members are entitled to interest on the suspended royalties held by defendant;
(d) The claims of the named parties herein are typical of the claims of all members of the class and will fairly and adequately protect the interest of the class;
(e) The question presented common to all members of the class predominates over any individual question and a class action is not only superior but the only efficient manner to adjudicate the dispute herein (to avoid multiple suits and excessive expenses) and that this court having jurisdiction of a large physical portion of the Hugoton-Anadarko area is a convenient forum for such action.
“4. The defendant concomitant with its duty to its royalty owners to secure the best price obtainable (under its covenant to market) had the duty to remit the collected share of royalty as promptly as commercially feasable [sic] on the same conditions as it was received by defendant or in the alternative to place the funds in a proper investment fund for subsequent disbursement. The fact that FPC permitted and essentially required defendant to post bond and agree to pay back interest if a refund was ordered did not entitle defendant to free use of the royalty owners share of the increased proceeds. The FPC bond and interest pay back requirements certainly justify and permit defendant business use of the increased rates of its own share of those rates but not the royalty owners share which did not belong to defendant under any eventual ruling by the FPC. See Phillips Petroleum Co. v. Adams, 513 F2d 355. The Court therefore concludes that the defendant is liable for interest on royalty proceeds retained by it and used as a business asset by it pending final FPC approval and conclusion of litigation based on its contractual duty to remit royalty proceeds in a reasonably prompt manner. It is specifically not the basis of this decision that such duty arises from an attempt to impose any facet of fiduciary relationship to the defendant.
“7. The acceptance without an accounting as to rates or interest of payment of the suspended royalties herein in December, 1972, did not constitute ratification because there was no basis for the royalty owners to know what was involved in the payment. For the same reason estoppel does not apply to preclude recovery herein.
“8. Division orders and unitization orders cannot be construed to modify the lease obligations of the defendant, being instruments reflecting royalty owners interests in proceeds from production and unitization of acreage for allowables respectively. No consideration is reflected in these instruments which would support defendant’s contention that these instruments, executed subsequent to the original leases herein, were contracts to modify the royalty provisions of said leases. For the same reasons, the gas royalty agreements do not change defendant’s obligations under their original leases except for agreements to the controlled price.
“9. Defendant’s contention that the payment of the additional royalties in December 1972 constituted a ‘bounty’ to plaintiffs is without any foundation and is contrary to said ‘gas royalty agreements’ establishing the FPC approved prices as the basis for royalty payments.
“10. To allow defendant free use of the royalty share of production for over ten years as a result of the difficulties and delays caused by the FPC regulations would unjustly enrich defendants. Defendant paid the full royalty share of proceeds collected prior to June 1,1961, and after October 1, 1970. The decision to withhold the increased (but unapproved) rates in the intervening period was a unilateral decision by defendant that cannot rise to the stature of a defense of ratification. Nor does it support the ‘bounty’ theory of defendant herein as noted above.
“11. The statutory rate of interest herein in Kansas, Oklahoma and Texas is six per cent per annum and is allowed as the proper rate of interest to be applied to the suspended royalties herein from time of receipt until date of judgment herein with interest compounded on an annual basis.” (Emphasis added.)
Appeal has been duly perfected by Phillips, and a cross-appeal has been taken challenging the amount of interest awarded by the trial court.
The appellant contends the trial court erred in holding that it had jurisdiction over in personam claims of unnamed nonresident class plaintiffs having no contact with the State of Kansas.
Here the representative of the plaintiff class is a resident of Kansas. The named defendant does business in Kansas, and has been duly served with process in Kansas. No question is asserted on this appeal as to the jurisdiction of the trial court over the defendant or the trial court’s power to enforce a judgment against the defendant. Two hundred and eighteen plaintiff class members are Kansas residents, and an unknown number of the plaintiff members, many of whom reside in other states, have gas leases with Phillips covering Kansas lands. But it must be conceded some gas leases or other contracts entered into between Phillips and the gas royalty owners in the plaintiff class involve persons who are not residents of Kansas or persons who have gas leases covering land which is outside the physical boundaries of Kansas or both.
It is a basic rule of law that for a person to be bound by a state court’s judgment affecting his legal rights, he must be subject to the adjudicating court’s jurisdiction. The question presented is how can a Kansas court assert jurisdiction in a plaintiff class action, where some of the individual plaintiff class members do not reside in Kansas and do not have land in Kansas covered by leases with Phillips.
It is apparent the multistate class action filed herein presents a novel issue in terms of in personam jurisdiction. However, while multistate class actions are novel, state courts have long been confronted with actions brought against nonresident defendants. Out of these cases have developed jurisdictional principles which permit courts to assert personal jurisdiction over a foreign defendant or to obtain jurisdiction over the property of a foreign defendant, and in both cases to render a binding judgment.
The basic requirements to subject defendants to personal liability were first established in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, where the United States Supreme Court held:
“. . . The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse. . . .” (p. 720.)
The ruling in Pennoyer was expanded and made more flexible by cases examining the “minimum contacts” necessary to exercise in personam jurisdiction over a nonresident defendant. (Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154, 161 A.L.R. 1057; and McGee v. International Life Ins. Co., 355 U.S. 220, 2 L.Ed.2d 223, 78 S.Ct. 199.) Pennoyer was also expanded by quasi in rem judgments binding a nonresident defendant by the court’s exercise of in rem jurisdiction over the nonresident defendant’s property, thereby subjecting the property to the court’s jurisdiction. (Note, Consumer Class Actions with a Multistate Class: A Problem of Jurisdiction, 25 Hastings L. J. 1411, 1426-1428 [1974].)
Recently, in Hanson v. Denckla, 357 U.S. 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, the United States Supreme Court reaffirmed the Pennoyer rule in holding that the lower court’s exercise of in personam jurisdiction over the nonresident defendant was invalid. The United States Supreme Court stated:
“. . . But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. (Citation omitted.) Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him. . . .” (p. 251.) (Emphasis added.)
The most recent case of the United States Supreme Court indicating the parameters of quasi in rem jurisdiction over nonresident defendants is Shaffer v. Heitner, - U.S. -, 53 L.Ed.2d 683, 97 S.Ct. _ [No. 75-1812, decided June 24, 1977], following Internat. Shoe Co. v. Washington, supra.
Kansas cases examining and following these jurisdictional requirements over nonresident defendants include Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248; Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128; and Woodring v. Hall, 200 Kan. 597, 438 P.2d 135.
These cases all deal with nonresident defendants, not nonresident plaintiffs. Whether all nonresident plaintiffs in a class action are required to have “minimum contacts” with the forum is a different matter. Because a class action must necessarily proceed in the absence of almost every class member, we hold the residential makeup of the class membership is not controlling. (Note, Consumer Class Actions with a Multistate Class: A Problem of Jurisdiction, supra at 1432.) What is important is that the nonresident plaintiffs be given notice and an opportunity to be heard and that their rights be justly protected by adequate representation. These are the essential requirements of due process, and they must be satisfied in any class action by every court, state or federal, regardless of the residences of the absent class members. Therefore, while the essential element necessary to establish jurisdiction over nonresident defendants is some “minimum contacts” between the defendant and the forum state, the element necessary to the exercise of jurisdiction over nonresident plaintiff class members is procedural due process.
That there is indeed a difference between the jurisdictional standards governing class actions, and those governing all other actions, was emphasized long ago by the United States Supreme Court in Hansberry v. Lee, 311 U.S. 32, 85 L.Ed. 22, 61 S.Ct. 115, 132 A.L.R. 741. There the court refused to bind a Negro petitioner to a judgment against him, as a member of a class on the basis of earlier litigation, where a false and fraudulent stipulation was entered into. In that case the court noted:
“It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. Pennoyer v. Neff, 95 U.S. 714; 1 Freeman on Judgments (5th ed.), § 407. A judgment rendered in such circumstances is not entitled to the full faith and credit which the Constitution and statute of the United States, R.S. § 905, 28 U.S.C. § 687, prescribe. . . .
“To these general rales there is a recognized exception that, to an extent not precisely defined by judicial opinion, the judgment in a ‘class’ or ‘representative’ suit, to which some members of the class are parties, may bind members of the class or those represented who were not made parties to it. . . .
“. . . Courts are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction or because their whereabouts is unknown or where if all were made parties to the suit its continued abatement by the death of some would prevent or unduly delay a decree. In such cases where the interests of those not joined are of the same class as the interests of those who arg, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will proceed to a decree. . . .”
(pp. 40-42.) (Emphasis added.)
Thus, although the general rule is that only persons subject to a court’s jurisdiction are bound by its judgment, there is a recognized exception for suits of a representative character. While the United States Supreme Court conceded that the extent of this exception had not been precisely defined by judicial opinion, it went on to suggest that if a class were adequately represented, its interest would be protected and the court could proceed to a final decree. These pronouncements, although pure dicta, would not have been included in the opinion unless they were intended to state the rule regarding class actions. The opinion also foretells what is an essential requisite of due process as to absent plaintiff class members, adequate representation. (See Gray v. Amoco Production Co., 1 Kan. App. 2d 338, 564 P. 2d 579.)
An examination of the nature of class action suits provides a historical background for this conclusion. Class action suits arose in equity and were known to English chancery practice since the Seventeenth Century. (A. Homburger, State Class Actions and the Federal Rule, 71 Colum. L. Rev. 609, 611 [1971]; and H. Hunter, Georgia Investment Company v. Norman—The Supreme Court Creates a New Form of Class Action for Georgia, 24 Mercer L. Rev. 447, 448 [1973].)
In the 1853 opinion of Smith et al v. Swormstedt, et al, 57 U.S. (16 How.) 288, 14 L.Ed. 942, the United States Supreme Court gave its blessing to the equitable class suit by noting:
“The rule is well established, that where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others; and a bill may also be maintained against a portion of a numerous body of defendants, representing a common interest. . . .” (° p. 302.)
In 1938, the Federal Rules of Civil Procedure defined class actions in terms of the abstract nature of the rights involved: the so-called “true” category was defined as involving “joint, common, or secondary rights”; the “hybrid” category, as involving “several” rights related to “specific property”; the “spurious” category, as involving “several” rights affected by a common question and related to common relief. (See Proposed Rules of Civil Procedure, 39 F.R.D. 69, 98 [1966].)
Because of the unworkability of these classifications, the Federal Rules of Civil Procedure were amended in 196b. It was decided the new rules would allow a judgment to bind all class members unless a member affirmatively “opted out” of the litigation at its commencement. (Fed. R. Civ. P. 23 [c] [3].)
Recently the United States Supreme Court has required plaintiffs to assume the cost of notice in common-question class actions. (Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L.Ed.2d 732, 94 S.Ct. 2140.) The United States Supreme Court has also refused to aggregate class action claims to meet the $10,000 federal jurisdictional requirements. (Zahn v. International Paper Co., 414 U.S. 291, 38 L.Ed.2d 511, 94 S.Ct. 505; and Snyder v. Harris, 394 U.S. 332, 22 L.Ed.2d 319, 89 S.Ct. 1053, reh. denied 394 U.S. 1025, 23 L.Ed.2d 50, 89 S.Ct. 1622.) While the results are supported by the fear of overloading the federal judicial system and the desire not to judicially expand the constitutionally established jurisdictional limits, these recent United States Supreme Court cases have clearly restricted access to federal courts. This suit, for example, could not be brought in a federal court. Furthermore, the FPC does not have jurisdiction over the matter. If the state courts will not hear the matter, who will grant relief?
If state courts cannot maintain class action suits with nonresident plaintiffs, can the “small man” find legal redress in our modern society which increasingly exposes people to group injuries for which they are individually unable to get adequate legal redress, either because they do not know enough or because such redress is disproportionately expensive? (See A. Homburger, State Class Actions and the Federal Rule, 71 Colum. L. Rev. 609, 641-643 [1971].)
The appellant argues this action should be brought in several different state courts. This risks inconsistent adjudications for a class which is otherwise treated alike. Furthermore, the statute of limitations has run in Oklahoma and Texas. The United States Supreme Court has held the commencement of a class action suit tolls the applicable statute of limitations as to all members of the class. (American Pipe Sc Construction Co. v. Utah, 414 U.S. 538, 38 L.Ed.2d 713, 94 S.Ct. 756, reh. denied 415 U.S. 952, 39 L.Ed.2d 568, 94 S.Ct. 1477; and Eisen v. Carlisle & Jacquelin, supra.) However, if in this action Kansas is without jurisdiction over class plaintiffs in other states, this action would not toll the statute of limitations in those states.
We examine then the Kansas rules regarding class actions. Our statutes reveal a recognition of the need for permitting actions to be brought by a named plaintiff in a representative capacity. (G.S. 1868, ch. 80, § 38; L. 1909, ch. 182, § 37; R.S. 1923, 60-413; and L. 1963, ch. 303, § 60-223, amended by Supreme Court order dated July 17, 1969.)
In its present form the Kansas Class Action Rule, modeled after the Federal Rule of Civil Procedure 23, is found at K.S.A. 60-223. It gives the prerequisites for a class action as follows:
“(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 (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (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.
“(b) Class actions maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) The prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) The interest of members of the class in prosecuting or defending separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against members of the class; (C) the appropriate place for maintaining, and the procedural measures which may be needed in conducting, a class action.”
Phillips argues this is not a proper case for class action treatment under K.S.A. 60-223(¿)(3) because there are differing questions of law and fact governing the rights which arise under gas leases in three states. Phillips attempts to apply an overly restrictive interpretation of the “commonality” requirement of K.S.A. 60-223(a). (Gray v. Amoco Production Co., supra; Sommers v. Abraham Lincoln Federal Savings & L. Ass’n, 66 F.R.D. 581 [E.D. Pa. 1975]; and Fertig v. Blue Cross of Iowa, 68 F.R.D. 53 [N.D. Iowa 1974].) However, as explained later in this opinion, there are questions of fact and law common to the plaintiff class. (See Perlman v. First National Bank of Chicago, 15 Ill. App. 3d 784, 305 N.E.2d 236 [1973], appeal dismissed 60 Ill. 2d 529, 331 N.E.2d 65.)
Citations to the venue statutes of Kansas and other states are inapplicable here. (See United States v. Trucking Employers, Inc., 72 F.R.D. 98 [D.D.C. 1976].) First, venue is not a jurisdictional matter, but a procedural one. (Gray v. Amoco Production Co., supra; and 77 Am. Jur. 2d, Venue, § 1, p. 832.) Second, this is a transitory action affecting real property only incidentally. Re- cause this court has in personam jurisdiction over the defendant, venue lies in Kiowa County. (Gray v. Amoco Production Co., supra; 20 Am. Jur. 2d, Courts, § 121, p. 476-477; and Farha v. Signal Companies, Inc., 216 Kan. 471, 532 P.2d 1330, modified 217 Kan. 43, 535 P.2d 463.) Lastly, if the venue attack is carried to its logical conclusion a class action could not even be maintained in Kansas with Kansas residents because the venue statute would require separate suits in the different counties.
After reviewing K.S.A. 60-223, we hold Kansas courts can exercise jurisdiction over nonresident plaintiffs in a class action if procedural due process guarantees are met. Although no case in Kansas or any other jurisdiction is precisely in point on the factual situation here presented, many courts in cases from other jurisdictions have reached out to bind nonresident plaintiffs.
In Chance v. Superior Court, 58 Cal.2d 275, 23 Cal. Rptr. 761, 373 P.2d 849 (1962), the California Supreme Court held a class action to foreclose separate trust deeds securing each of 2,139 notes was proper and did not deny due process to unnamed noteholders, many of whom may not have been California residents, where the class was ascertainable and susceptible to notice, where the virtually identical notes were created in a single transaction as part of a speculative scheme, where all policyholders had common interests in reaching other assets, and where their individual lots were all in one tract which was more valuable as an entity.
In Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal. Rptr. 724, 433 P.2d 732 (1967), the plaintiff brought a class action on behalf of himself and all other users of the taxi cab services in the Los Angeles area who were overcharged by Yellow Cab. The California Supreme Court permitted this class action to proceed although some members of the plaintiff class were unknown and may have been residents of other states.
In Horst v. Guy, 211 N.W.2d 723 (N.D. 1973), the plaintiff filed a class action to secure payment of a veteran’s bonus under the North Dakota Vietnam Conflict Veterans’ Adjusted Compensation Act. The appellants claimed a class action was inappropriate because the district court might not have jurisdiction over all class members because some members were outside the state of North Dakota. The North Dakota Supreme Court held:
“. • • [T]he fact that some of the members of the [plaintiff] class may not be within North Dakota does not remove the jurisdiction of the district court to hear the case as a class action.” (p. 727.)
However, there the class was limited to North Dakota residents or former residents who were no longer residents of the state.
Furthermore, the lower federal courts seem to be relatively untroubled by the inclusion of nonresidents in classes represented before them, although federal courts are, in the absence of statute, generally limited in territorial reach of personal jurisdiction to the state in which they sit. (Fed. R. Civ. P. 4[f]; 4 Wright and Miller Federal Practice and Procedure, § 1124 [1969]; Compare School Dist. of Philadelphia v. Harper & Row Publishers, Inc., 267 F. Supp, 1001, 1005 [E.D. Pa. 1967].) While the residential characteristics of a class are seldom discussed by federal courts, it is reasonable to assume from the various factual circumstances giving rise to federal class actions that the court’s jurisdiction over the entire class is not affected by the fact some members reside outside the state in which the court sits. (See e.g., Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452 [E.D. Pa. 1968]; and City of Philadelphia v. Morton Salt Company, 248 F. Supp. 506 [E.D. Pa. 1965].)
Many commentators agree a state court has the power to bind a nonresident plaintiff class member. Professor Chafee in Some Problems of Equity (1950) notes the Restatement of Judgments “gives the court where a class action is properly brought jurisdiction to bind unnamed members, even if not personally within the jurisdiction of the court.” He recognizes the usual rules of res judicata apply to all representative suits, but agrees that with some limitations the propositions of the Restatement should usually be applied.
Professor Moore in his treatise, 3B Moore’s Federal Practice, § 23.11(5), in discussing the 1938 Federal Rule of Civil Procedure 23 indicates:
“The fact that members of the class are beyond the territorial limits of the class suit court is immaterial as to the binding effect of the class suit judgment.” (p. 23-2893.)
The Restatement of the Law of Judgments verbalizes the answer to the question of nonresident plaintiff class members without equivocation:
Ҥ 26. REPRESENTATIVE OR CLASS ACTIONS.
“Where a class action is properly brought by or against members of a class, the court has jurisdiction by its judgment to make a determination of issues involved in the action which will be binding as res judicata upon other members of the class, although such members are not personally subject to the jurisdiction of the court.” (p. 118.) (Emphasis added.)
Tentative Draft No. 2 of the Restatement of the Law of Judgments, Second, § 85 (April 15, 1975) states:
“(1) A person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of the rules of res judicata as though he were a party. A person is represented by a party who is:
“(e) The representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member.
“(2) A person represented by a party to an action is bound by the judgment even though the person himself does not have notice of the action, is not served with process, or is not subject to service of process.” (pp. 56-57.)
We are persuaded the view expressed by the foregoing authorities represents the correct rule of law to follow. (Contra, Note, Expanding the Impact of State Court Class Action Adjudications to Provide an Effective Forum for Consumers, 18 UCLA L. Rev. 1002, 1019 [1971]; and Fisch, Notice, Costs, and the Effect of Judgment in Missouri’s New Common-Question Class Action, 38 Mo. L. Rev. 173, 209 [1973].)
Phillips suggests a contrary conclusion is dictated by Klemow v. Time Incorporated, 466 Pa. 189, 352 A.2d 12 (1976), cert. denied, 429 U.S. 828, 50 L.Ed.2d 91, 97 S.Ct. 86. There the plaintiff filed a class action suit on behalf of both residents and nonresidents of Pennsylvania who subscribed to Life magazine seeking to compel continued publication of the magazine. The trial court dismissed the suit but the Pennsylvania Supreme Court, while reversing on other grounds, indicated the class could not encompass nonresident plaintiffs. The court said in a footnote:
“Because the jurisdiction of the courts of the Commonwealth is territorially limited, the class may consist only of Pennsylvania residents. The class may also include non-residents who submit themselves to the jurisdiction of the state courts. (Citations omitted.)” (352 A.2d 16.)
However, the Pennsylvania class action statute, 12 P.S.App. Rules of Civ. Proc. § 2230, reads:
“(a) If persons constituting a class are so numerous as to make it impracticable to join all as parties, any one or more of them who will adequately represent the interest of all may sue or be sued on behalf of all, but the judgment entered in such action shall not impose personal liability upon anyone not a party thereto. ” (p. 241.) (Emphasis added.)
K.S.A. 60-223(c)(2) provides:
“The judgment in an action maintained as a class action shall extend by its terms to the members of the class, as defined, whether or not the judgment is favorable to them.”
It is readily apparent the Pennsylvania statutory language is completely at variance with the Kansas statutory language. The distinction robs Klemow of its persuasion in Kansas. (See Donne and Van Horn, Pennsylvania Class Actions: the Future in Light of Recent Restrictions of Federal Access?, 78 Dick. L. Rev. 460, 521-524 [1973].)
In Feldman v. Bates Manufacturing Co., 143 N.J. Super. 84, 362 A.2d 1177 (1976), the court indicated that without “affiliating circumstances” between the forum state and the litigation, such as a “common trust fund,” the judgment in a plaintiff class action suit could not bind nonresident class members. It held class action certification was not appropriate since the judgment would not satisfy due process with respect to the nonresidents. There the Bates Manufacturing Corporation had no assets in New Jersey, was not authorized to do business in New Jersey, and the vast majority of its preferred stockholders (plaintiff class members) were nonresidents with no contacts in New Jersey, which had no special interest in adjudicating litigation. However, the court noted Delaware, Bates’ domiciliary state, was fully capable of providing a uniform determination of the issues involved. The Feldman court also applied the doctrine of forum non conveniens which is inapplicable here because the trial court found “this court having jurisdiction of a large physical portion of the Hugo-ton-Anadarko area is a convenient forum for such action.”
Our rejection of the Klemow and Feldman cases as applied to the facts here presented is aided by the United States Supreme Court approval of quasi in rem class actions which included nonresident class members, some of whom were later found to be bound by the class action decisions. These actions involved as the res, insurance funds, and their holdings were found to be determinative of issues concerning the same funds in subsequent actions. In these actions, known as the “common fund” cases, the respective courts found that the various plaintiffs were members of the classes, and therefore bound by the judgments of the prior actions, despite the fact that the prior actions were conducted in states other than those of the plaintiffs’ residences.
Thus in Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 59 L.Ed. 1165, 35 S.Ct. 692, Ibs, a Minnesota resident who was insured by Hartford was held bound by a prior Connecticut state court judgment rendered against Dresser, a Connecticut resident, and 30 other members of Hartford holding certificates who brought suit “in their own behalf and in behalf of all others similarly situated.” Dresser’s unsuccessful challenge to Hartford’s right to increase the premium assessments against Hartford’s 12,000. members was held binding on all policyholders, regardless of residence. The United States Supreme Court stated:
“ ‘Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuation by death or otherwise, that it would not be possible, without very great inconvenience, to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court. The legal and equitable rights and liabilities of all being before the court by representation, and especially where the subject-matter of the suit is common to all, there can be very little danger but that the interest of all will be properly protected and maintained.’ . . .” (p. 672.)
(See also Hartford Life Ins. Co. v. Barber, 245 U.S. 146, 62 L.Ed. 208, 38 S.Ct. 54 [Connecticut judgment binding on Missouri resident].)
In Carpenter v. Pacific Mutual Life Insurance Co., 10 Cal.2d 307, 74 P.2d 761 (1937), aff’d sub nom. Neblett v. Carpenter, 305 U.S. 297, 83 L.Ed. 182, 59 S.Ct. 170, reh. denied, 305 U.S. 675, 83 L.Ed. 437, 59 S.Ct. 355, the California Supreme Court, and ultimately the United States Supreme Court, expanded on the binding effect of judgments in insurance cases on nonresident plaintiffs. The courts upheld the right of the California Insurance Commissioner to liquidate and rehabilitate the Pacific Mutual Life Insurance Company, which was insolvent and on the brink of bankruptcy, against the wishes of the plaintiff class of policyholders. Acknowledging the significant state interest in insurance, and relying on Hartford Life Insurance Co. v. Ibs, supra, the California state court judgment was held binding on North Carolina, Illinois and Wisconsin residents. (Taylor v. Insurance Co., 214 N.C. 770, 200 S.E. 882 [1939]; Larson v. Pacific Mutual Life Ins. Co., 373 Ill. 614, 27 N.E.2d 458 [1940], cert. denied, 311 U.S. 698, 85 L.Ed. 452, 61 S.Ct. 137; and Padway v. Pacific Mut. Life Ins. Co. of California, 42 F. Supp. 569 [E.D. Wis. 1942].)
Taken together, these cases and subsequent actions in the context of giving full faith and credit to the prior decisions of other state courts clearly recognize a class action may be binding on nonresident plaintiffs when a “common fund” is involved and where due process requirements are met. (See also Royal Arcanum v. Green, 237 U.S. 531, 59 L.Ed. 1089, 35 S.Ct. 724; Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 65 L.Ed. 673, 41 S.Ct. 338; Sovereign Camp v. Bolin, 305 U.S. 66, 83 L.Ed. 45, 59 S.Ct. 35, 119 A.L.R. 478; and Sam Fox Publishing Co. v. U.S., 366 U.S. 683, 6 L.Ed.2d 604, 81 S.Ct. 1309.)
The “common fund” cases, which seem to be universally accepted, are closely analogous to the case at bar. Here Phillips filed a corporate undertaking guaranteeing to refund any or all portions of the “FPC suspense money” with interest which it collected and held pending FPC determination of the lawful gas rates in the Hugoton-Anadarko area rate proceedings. All gas royalty owners had a common concern in the funds attributable to “suspense royalties” held by Phillips. The “suspense royalties” in question never did or could belong to Phillips. If the proposed rates had been disapproved, the money and interest, which Phillips agreed to pay by its corporate undertaking, would have gone to the pipeline companies who purchased the gas from Phillips. If the proposed rates were approved, the “suspense royalties” would go to the gas royalty owners.
Had Phillips put the “suspense royalties” into a common trust fund, separate from its operating funds, to be used solely to pay either the pipeline companies or the gas royalty owners once the FPC ultimately decided the rate increase question, this case would dovetail nicely into the “common fund” cases. Instead Phillips commingled the “suspense royalties” with its other cash and used the “suspense royalties” to fulfill all its business obligations. In this manner the “suspense royalties,” which never did or could belong to Phillips, enriched Phillips at the expense of the royalty owners. To hold that Phillips’ act of using the money for business purposes, and not putting it into a separate corporate account, takes this case out of the “common fund” category would reward Phillips’ action at the expense of innocent gas royalty owners.
In Perlman v. First National Bank of Chicago, 15 Ill. App. 3d 784, 305 N.E.2d 236 (1973), a class action was brought by bank borrowers who attacked the bank’s computation of interest. The defendant bank attacked the class action because there was no common fund. The bank asserted any money which the class members might claim was commingled with other assets. The Illinois court held:
“. . . There seems no basis in law or logic for permitting a class action against an individual who has sequestered all money wrongfully acquired but denying one against an individual who has commingled it with his other assets.
“. . . The liability or wrongdoing creates the fund, and whatever is taken wrongfully constitutes the fund.” (pp. 800-801.)
(See also Note, Class Actions in Illinois: A Viable Alternative to Federal Rule 23?, 8 J. Marshall J. Prac. and Proc. 113 [1974].)
Phillips kept accurate records on this matter in the memory bank of its computer and our holding will not unduly burden them.
While the authorities are conflicting on whether a class action may bind nonresident plaintiffs, where a “common fund” may fairly be established, no question should be raised as to the binding effect of a class on nonresident plaintiffs.
Class actions with nonresident plaintiffs may be brought in Kansas only if due process guarantees are met. We now examine our class action statute and the procedures followed to insure that due process was provided.
Initially the query must be whether reasonable notice was given to all class members. The notice provisions of K.S.A. 60-223(c) differ slightly from the federal notice provisions in Federal Procedure Rule No. 23. K.S.A. 60-223(c)(2) reads in part:
“. . . To afford members of the class an opportunity to request exclusion, the court shall direct that reasonable notice be given to the class, including specific notice to each member known to be engaged in a separate suit on the same subject matter with the party opposed to the class.”
K.S.A. 60-223(d)(2) reads in part:
“In the conduct of actions to which this section applies, the court may, without limitation, make appropriate orders:. . . (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action. . . .”
Federal courts have attached particular significance to Rule No. 23’s requirement of notice in common question actions due to the finality afforded them. Notice to those whose legal relations are to be affected by a pending action has always been a fundamental requirement of due process. As the United States Supreme Court suggested in Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652, this elementary notion applies even when the interested parties are so numerous that the task of notification is a complex one. In fact, it is Mullane’s constitutional standard for notice that is incorporated into Rule No. 23: “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort,” although some suggest Rule No. 23’s requirement of notice does not involve constitutional due process. (See Eisen v. Carlisle & Jacquelin, supra.) We need not enter into a discussion on this matter because of the notice given in this case.
Here the notice given fully comports with Federal Rule No. 23, K.S.A. 60-223 and any possible constitutional requirements. Phillips has maintained extensive records in connection with the “suspense royalties.” All gas royalty owners and their interests are known. There are no unnamed or unknown plaintiff class members. The representative plaintiff prepared the notices, quoted earlier, which were distributed by Phillips during a monthly payment mailing to all royalty owners in the Hugoton-Anadarko area then receiving gas royalties. Notices were also sent by first class mail by the plaintiff to former gas royalty owners. Notices were also published in seven area newspapers.
Having Phillips mail the notice during its monthly mailing does not present error here cognizable. This procedure may not comply with the dictates of Eisen v. Carlisle & Jacquelin, supra, although that case does note an exception where a fiduciary duty preexisted between the plaintiff and the defendant, as in a shareholder derivative suit.
' The record discloses no objection by Phillips at the trial because it was required to mail the notice. It is well settled an issue presented for the first time on appeal will not be considered by this court. (In re Estate of Barnes, 218 Kan. 275, 543 P.2d 1004; and Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406.) In view of our favorable decision to the class, which may recover the cost of notification, this renders moot Phillips’ appellate objection to mailing notice. (See Lamb v. United Security Life Company, 59 F.R.D. 25 [S.D. Iowa 1972]; and Ostapowicz v. Johnson Bronze Company, 54 F.R.D. 465 [W.D. Pa. 1972].)
Phillips argues our notice statute which allows a party to “opt-out” of a class action suit cannot be used to “bootstrap” jurisdiction of the court. Suffice it to say the federal rules and our rule regarding class actions are the result of a conscious choice to decide between provisions allowing parties to “opt-out” or “opt-in.” A determination was made to follow the “opt-out” procedure to bind the greatest number of people. (See Proposed Rules of Civil Procedure, 39 F.R.D. 69, 105 [1966]; Cohn, The New Federal Rules of Civil Procedure, 54 Geo. L.J. 1204,1226 [1966]; and Staff Studies Prepared for the National Institute for Consumer Justice on Consumer Class Action, pp. 138, 149 [1972].)
Phillips argues our class action statute does not give the putative class member an absolute right to “opt-out” as does Federal Rule No. 23(c)(2)(A). K.S.A. 60-223(c)(2) provides in pertinent part:
“. . . [T]he court shall exclude those members who, by a date to be specified, request exclusion, unless the court finds that their inclusion is essential to the fair and efficient adjudication of the controversy and states its reasons therefor. . . .” (Emphasis added.)
Phillips argues by removing the choice of the putative class member to “opt-out” of the class, it was the intent of the rule to apply to persons over whom the court already had jurisdiction. We do not think such a convoluted conclusion logically follows. The language simply gives the court the power to deny exclusion to class members, be they residents or nonresidents of Kansas, whose inclusion is essential to the fair and efficient adjudication of the controversy. However, we need not examine this section in great detail. (See Staff Studies Prepared for the National Institute for Consumer Justice on Consumer Class Action, supra at 145-146.)
Here three Texas residents filed an untimely request for exclusion. Phillips filed a motion to deny the request for exclusion alleging in part the three men would file a class action suit in Texas. The trial court sustained Phillips’ motion. However, an untimely request for exclusion could be denied under either the federal or Kansas class action statutes without raising constitutional issues.
We hold reasonable notice was given to satisfy jurisdictional and constitutional due process requirements. (Mullane v. Central Hanover Tr. Co., supra.)
Second, we must examine the representation accorded the resident and nonresident plaintiffs by the named representative.
K.S.A. 60-223(d) gives the trial court the authority to make appropriate orders as follows:
“. . . (1) Settling the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, or to include such allegations, and that the action in either case proceed accordingly. The orders may be combined with an order under K.S.A. 60-216, and may be altered or amended as may be desirable from time to time.”
Furthermore, K.S.A. 60-223(c) insures adequate representation by controlling dismissals or compromises.
Where inadequate representation is established, courts have denied res judicata effect to class action judgments. (See Research Corp. v. Pfister Associated Growers, Inc., 301 F. Supp. 497 [N.D. Ill. 1969]; and Gonzales v. Cassidy, 474 F.2d 67 [5th Cir. 1973].)
The class action is premised on the theory that members of the class who are not before the court can justly be bound because the self-interest of their representative coincides with the interest of the members of the class and will assure adequate litigation of the common issues. Where the interests of absent class members have not been adequately represented, binding them by the class judgment would seem to offend the requirements of due process. (Hansberry v. Lee, supra.) Notice to absent members of the class in this regard is particularly important, for it is the greatest single safeguard against inadequate representation. (Mullane v. Central Hanover Tr. Co., supra at 314.)
Here we find adequate representation has been accorded the plaintiff class members by their representative through his attor neys who have done a superior job in bringing this action and in arguing and briefing the law on this appeal.
We hasten to add, this opinion should not be read as an invitation to file nationwide class action suits in Kansas and overburden our court system. Concepts of manageability in terms of our Kansas class action statute, the nature of the controversy and the relief sought, the interest of Kansas in having the matter determined, and the class size and complexity will have to be applied. (See Note, Consumer Class Actions with a Multistate Class: A Problem of Jurisdiction, supra at 1438-1439.) A court should also give careful consideration, as we have attempted to do, to any possible conflict of law problems. When liability is to be determined according to varying and inconsistent state laws, the common question of law or fact prerequisite of K.S.A. 60-223(a)(2) will not be fulfilled.
An excellent example of a factual situation in which a trial judge applying our class action statute should deny certification of a class action, where nonresident plaintiff class members are involved, is presented in Feldman v. Bates Manufacturing Co., supra.
The manageability of the class action herein is demonstrated in various ways. There are no basic issues of fact, the material facts having been stipulated by the parties and made a part of the pretrial order. The names, addresses and suspense royalty amounts for each of the royalty owners were readily available in Phillips’ records. In fact, the class is more manageable with nonresidents of Kansas included because Phillips would be required to take an extra step in separating nonresident royalty owners in its records. Phillips treated all royalty owners in the Hugoton-Anadarko area alike, regardless of residency, particular lease provisions or royalty agreements. (See Phillips’ notices to royalty owners heretofore quoted as stipulated by the parties herein.) Actually, it would be difficult to imagine a more manageable plaintiff class action.
Kansas has a legitimate interest in adjudicating the common issue herein because Kansas comprises the largest physical area included in the FPC designated Hugoton-Anadarko area where Phillips is doing business and producing gas which it sells in interstate commerce. All of the gas royalty owners in the Hugo-ton-Anadarko area have leases with Phillips and a common in terest in the money collected by Phillips as “suspense royalties” from the sale of gas in the designated area. It was the same FPC regulation that caused and permitted Phillips to collect the “suspense royalties,” and the same FPC Opinion No. 586 pursuant to which the “suspense royalties” were paid out to the royalty owners in the area. All of the gas royalty owners in the Hugoton-Anadarko area have a right in common with each other, in the equivalent of a common fund, to claim damages for commingling and use of the “suspense royalties” by Phillips, payable as interest, and they have a contact with Kansas by reason of such common interest.
Phillips contends the members of the class within the court’s jurisdiction are not so numerous as to make their joinder impracticable. Phillips argues only 218 class members are Kansas residents and of this number only 128 signed a gas royalty agreement of the same type under which Althea Shutts was paid her money in December of 1972. Phillips does not indicate, nor does the record disclose, how many gas royalty leases covering Kansas land are involved. In view of what has heretofore been said, there is no need to examine this contention. (However, see Williams v. Humble Oil & Refining Company, 234 F. Supp. 985 [E.D. La. 1964] [joinder of 76 persons impracticable]; Fox v. Prudent Resources Trust, 69 F.R.D. 74 [E.D. Pa. 1975] [joinder 148 limited partners impracticable]; Sabala v. Western Gillette, Inc., 362 F. Supp. 1142 [S.D. Tex. 1973] [class began with 39 and twelve opted-out]; and Republic Nat. Bank of Dallas v. Denton & Anderson Co., 68 F.R.D. 208 [N.D. Tex. 1975].)
Phillips argues this is not a proper class action case under K.S.A. 60-223(¿)(l). We think this point is immaterial. The trial court treated it as a K.S.A. 60-223(¿)(3) class action, despite its class order finding number four which was relevant to a 60-223(¿)(1) class action.
The appellant contends the trial court erred in holding that Phillips had been unjustly enriched by retaining certain increased proceeds of gas sales, subject to refund under appropriate FPC regulations, until final determination by the FPC of the just and lawful rate for such gas sales.
The trial court awarded interest on the grounds of unjust enrichment as reflected in its tenth conclusion of law, heretofore quoted. The doctrine of unjust enrichment prevents one from profiting or enriching himself at the expense of another contrary to equity. But there must be some specific legal principle or situation which equity has established or recognized to bring a case within the scope of the doctrine. (Anderson v. Anderson, 155 Kan. 69, 72, 123 P.2d 315.)
The appellant contends, and we agree, its retention of the suspense royalties pending FPC determination was lawful. (Ashland Oil & Refining Company v. Staats, Inc., 271 F. Supp. 571 [D. Kan. 1967]; Boutte v. Chevron Oil Company, 316 F. Supp. 524 [E.D. La. 1970], aff’d 442 F.2d 1337 [5th Cir. 1971]; and Phillips Petroleum Company v. Adams, 513 F.2d 355, 361-362 [5th Cir. 1975], cert. denied 423 U.S. 930, 46 L.Ed.2d 259, 96 S.Ct. 281.) However, that does not mean Phillips owes no interest as a result of the long retention of the FPC “suspense royalties.” (Boutte v. Chevron Oil Company, supra.)
This identical issue was presented in Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 562 P.2d 1. (On June 15, 1977, Mr. Justice White of the United States Supreme Court stayed the mandate of this court in that case.) In Lightcap, Mobil was paying gas royalties on the basis of old contract rates of 8.74 cents and 7.15 cents per Mcf while collecting increased rates. Mobil and its predecessors made active use of the plaintiffs’ monies collected and plaintiffs were deprived of that use. Although this court was not in complete agreement on other aspects of that opinion, it unanimously held:
“Where a party retains and makes actual use of money belonging to another, equitable principles require that it pay interest on the money so retained and used.” (Syl. 12.)
As previously indicated the FPC may order Phillips or any other natural gas companies to refund, with interest, the portion of such increased rates or charges found not justified by the FPC. (15 U.S.C. § 717c[e]; and 18 C.F.R. § 154.102[c].) The rate of interest in the event a refund is ordered is presently seven percent (7%) per annum for all rate filings tendered prior to October 10, 1974. (18 C.F.R. § 154.102[c].)
In the case at bar, beginning on June 1, 1961, Phillips withheld the share of the class members of the increased gas prices subject to refund. Thereafter, while the FPC slowly ground out FPC Opinion No. 586, Phillips deposited the increased rate monies in its general accounts and commingled them with other funds without giving further notice to the royalty owners. What is significant is these gas royalty suspense monies never did or could belong to Phillips. If the FPC disapproved the proposed increase rates the pipeline companies (gas purchasers of Phillips) would receive this suspense money and the interest which Phillips had agreed to pay by its corporate undertaking. If the FPC approved the proposed increase rate, the “suspense royalties” would go to the gas royalty owners.
Phillips held a sizable amount of money during this period. On or about December 7, 1972, Phillips mailed approximately $5,700,000 in additional gas royalties due gas royalty owners by virtue of the finality of FPC Opinion No. 586. A case comment on this subject at 54 Tex. L. Rev. 847 (1976) noted:
“. . . Phillips had collected $7,500,000 in additional proceeds from the Permian Basin area under FPC Op. No. 662 and currently collects $500,000 per month subject to refund under FPC Op. No. 669, which relates to nationwide rates. Petitioner’s Brief for Certiorari at 9, Phillips Petroleum Co. v. Adams, 96 S.Ct. 281 (1975). Five major oil companies paid approximately $4.5 million in suspense money royalties alone (normally one-eighth of the amount paid to lessees) to 16,000 Kansas and Oklahoma owners under the same FPC rate case in Adams. Sunday Oklahoman, Jan. 11, 1976, § B, at 2, col. 1. A Kansas state court recently awarded approximately $1.5 million in interest payments to royalty owners. Nix v. Northern Natural Gas Producing Co., No. 3116 (Dist. Ct. Grant County, Kan., Jan. 8, 1976). The potential problems grow daily as the FPC encourages the filing of rate increases to provide an incentive to increase the supply of natural gas. . . .” (fn. 54, pp. 856-857.)
Furthermore, Phillips did not permit the suspense royalty money collected to remain idle. O. W. Armstrong, Treasurer of Phillips Petroleum Company, testified in part as follows:
“. . . Phillips’ short term investments ranged from 89.7 million dollars in 1964 up to 338.5 million dollars in 1972. . . Phillips’ total assets went up from $1,806,000,000.00 in 1963, to $3,269,000,000.00 in 1972, with the exception of 1970 when there was a slight drop. . . Cash in excess of a given amount would be surplus cash and is invested. . . the approximately $6,000,000.00 in F.P.C. suspense money was a part of Phillips’ cash, ... all of Phillips’ cash being in one pot, . . . not segregated for any purpose. . . .”
Phillips made substantial profit during the years 1961-1973. The net profit ranged from $113,000,000 to $132,000,000 during the period in question and stockholders’ equity increased from $1,205,000,000 in 1962 to over $1,749,000,000 in 1971.
Phillips’ use of the “suspense royalties” was clearly a sound and profitable business practice. We cannot condemn Phillips for using this money because this was apparently not repugnant to the FPC regulatory scheme, or repugnant to Phillips’ contractual relations with the gas purchasers under federal case law. Nor do we condemn Phillips for the FPC delay. However, we- do not believe that Phillips may enrich itself in the absence of any contractual sanction or seize upon the procedural complexities of the FPC to avoid responsibility for an appropriate measure of damages, expressed in terms of interest. In Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 357, 532 P.2d 1081, the court enunciated the following, general principle:
“Interest has been defined as the compensation allowed by law or fixed by-the parties for the use, detention, or forbearance of money. In our society today money is a commodity with a legitimate price on the market and loss of its use, whether occasioned by the delay or default of an ordinary corporation, citizen, state or municipality should be compensable.”
(See also Lightcap v. Mobil Oil Corporation, supra at 468-469.)
In passing we also note a long line of federal cases have concluded Texas law permits — and equity requires — the award of interest on suspense royalties under similar circumstances. (Phillips Petroleum Company v. Adams, 513 F.2d 355, 365 [5th Cir. 1975], cert. denied, 423 U.S. 930, 46 L.Ed.2d 259, 96 S.Ct. 281; First Nat. Bank of Borger v. Phillips Petroleum Co., 513 F.2d 371 [5th Cir. 1975], cert. denied, 423 U.S. 930, 46 L.Ed.2d 259, 96 S.Ct. 281; Phillips Petroleum Co. v. Riverview Gas Compression Company, 513 F.2d 374 [5th Cir. 1975], cert. denied, 423 U.S. 930, 46 L.Ed.2d 259, 96 S.Ct. 281; Phillips Petroleum Co. v. Hazlewood, 534 F.2d 61 [5th Cir. 1976]; Fuller v. Phillips Petroleum Co., 408 F. Supp. 643 [N.D. Tex., 1976]; and Phillips Petroleum Co. v. Hazlewood, 409 F. Supp. 1193 [N.D. Tex. 1975].)
In addition,, the Texas Civil Court of Appeals recently awarded interest on suspended royalties in Stahl Petroleum Co. v. Phillips Petroleum Co., 550 S.W.2d 360 (Tex. Civ. App. No. 8762, filed April 6, 1977.) This case also arises out of the Hugoton-Anadarlco. area and the issuance of FPC Opinion No. 586. While recognizing Phillips Petroleum Company v. Adams, supra, the Texas Civil Court of Appeals relied on the terms of the royalty agreement and the Texas interest statute, rather than unjust enrichment, to require the payment of prejudgment interest on the suspended royalties.
An examination of the royalty agreement set forth in the record herein reveals the lessee (Phillips) contracted to pay and the lessor (royalty owner) contracted to receive a percentage of the “weighted average price per Mcf received by lessee from all sales of gas delivered within” a designated area during any calendar month. While the term “received” is not defined in the contract, giving the term its ordinary meaning, Phillips expressly contracted to pay a percentage of the price received for the sale of gas on which month-by-month payments to the royalty owner were to be based. Although the money received by Phillips for the sale of gas in excess of the established rates pending FPC determination was subject to possible refund, none of the excess was contractually excluded from the price received by Phillips and on which payment to the royalty owner was contractually based. There was no rule or regulation which prohibited Phillips from including the excess in the amount on which calculation of payment to the royalty owner on a month-to-month basis was made. (Stahl Petroleum Co. v. Phillips Petroleum Co., supra.) But if Phillips chose to withhold payments of contractually owing “suspense royalties” pending FPC approval, as authorized by prior federal case law, that did not relieve Phillips of its contractual obligation to pay the price received with interest for the period of time the suspense money was held and used by Phillips.
Oklahoma has no decision allowing interest on “suspense royalties.” However, several Oklahoma decisions hold that interest may be awarded on equitable grounds where necessary to arrive at a fair compensation. (Smith v. Owens, 397 P.2d 673 [Okla. 1963]; and First Nat. Bank & T. Co. v. Exchange Nat. Bank and T. Co., 517 P.2d 805 [Okla. App. 1973].)
Furthermore, the United States Supreme Court has noted the imposition of interest on refunds ordered by the FPC is not an inappropriate means of preventing unjust enrichment. (United Gas v. Gallery Properties, 382 U.S. 223, 15 L.Ed.2d 284, 86 S.Ct. 360.)
Based on the foregoing authorities we hold in this case that interest on suspended royalties may be recovered for the period of time such royalties remained in the control of, and were available for use by, the gas producer (Phillips) during the pendency of FPC proceedings and related litigation regarding the determination of applicable lawful rates for gas sales, and litigation regarding the determination of issues involved in this appeal.
Having determined that interest can be awarded, the question becomes what rate of interest should be applied. The district court found:
“The statutory rate of interest herein in Kansas, Oklahoma and Texas is six per cent per annum and is allowed as the proper rate of interest to be applied to the suspended royalties herein from time of receipt until date of judgment herein with interest compounded on an annual basis.”
Phillips contends the trial court erred in holding that under the facts in this case it was proper to award compound interest. It argues a (legal) (statutory) rate of six percent (6%) simple interest must apply under the laws of Kansas, Texas and Oklahoma.
The appellee has cross-appealed contending the trial court erred in failing to consider inflation rates and profits so as to place the owners at least on a par with gas purchasers.
In Lightcap v. Mobil Oil Corporation, supra, this court resolved the matter. There the court noted:
“Here Mobil and its predecessor made active use of plaintiffs’ money, and plaintiffs were deprived of that use. Under the reasoning of the foregoing cases plaintiffs are entitled to be compensated for their loss. Mobil was obligated by FPC order to pay Northern 6% interest on Northern’s share of the ‘impounded’ money; equitable principles require that the royalty owners receive the same treatment as to their share. . . .” (p. 469.) (Emphasis added.)
In the instant case Phillips was obligated by FPC order to pay gas purchasers seven percent (7%) until September 18, 1970, and thereafter eight percent (8%) interest on the gas purchasers’ share of the suspense monies. Here equitable principles require, and contractual principles dictate, that the royalty owners receive the same treatment as to their share.
. Phillips cites the interest laws of Kansas, Texas and Oklahoma. K.S.A. 16-201 provides:
“Creditors shall be allowed to receive interest at the rate of six percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the same and ascertaining the balance; for money received for the use of another, and retained without the owner’s knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; for all other money due and to become due for the forebearance of payment whereof an express promise to pay interest has been made; and for money due from corporations and individuals to their day or monthly employees, from and after the end of each month, unless the same shall be paid within fifteen days thereafter.” (Emphasis added.)
Texas Rev. Civ. Stat., Art. 5069-1.03 (1971) states:
“When no specified rate of interest is agreed upon by the parties, interest at the rate of 6% per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.” (Emphasis added.)
Oklahoma Stat., tit. 15, § 266 (1966) states:
“The legal rate of interest shall not exceed six per cent in the absence of any contract as to the rate of interest, and by contract, parties may agree upon any rate not to exceed ten per cent per annum. Said rates of six and ten per cent shall be respectively, the legal rate and the maximum contract rates of interest.” (Emphasis added.)
All these statutes refer to situations where there is no agreement as to the rate of interest. Here that situation does not exist.
We are dealing with “suspense royalties” which never could or would belong to Phillips. This was the equivalent of a common fund which was accumulated and used by Phillips. After the FPC Opinion No. 586 was announced the monies accumulated by Phillips in this fund were later divided between the gas purchasers and the gas royalty owners. In other words, Phillips was a stakeholder who retained the fund which it used for its own benefit. (See Phillips Petroleum Company v. Adams, supra.) What justified the payment of seven percent (7%), and later eight percent (8%), interest on part of this common fund which Phillips expressly contracted and agreed to pay to the gas purchasers, while paying only six percent (6%) interest to the gas royalty owners, is impossible to discern. If the FPC had denied all of Phillips’ rate increase applications, Phillips would have had to pay seven percent (7%), and later eight percent (8%), interest to the gas purchasers pursuant to its express agreement and corporate undertaking with the FPC. Thus, Phillips has made an express agreement, with regard to the monies accumulated in the suspense fund by Phillips, to pay seven percent (7%), and later eight percent (8%) interest, as ultimately determined by the FPC Opinion No. 586.
Due to limitations on the FPC jurisdiction, it could not provide in its order that interest be paid to the gas royalty owners. (Mobil Oil Corporation v. Federal Power Commission, 463 F.2d 256 [D.C. Cir. 1972], cert. denied, 406 U.S. 976, 32 L.Ed.2d 676, 92 S.Ct. 2413; and Lightcap v. Mobil Oil Corporation, supra at 470, 471.) However, the FPC did require Phillips to agree to pay interest on the suspense monies they held, which agreement the members of the plaintiff class herein assert as an appropriate measure of damages, expressed in terms of interest, for the commingling and use of the suspense monies by Phillips.
This answers Phillips’ contention that Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P.2d 773 and other cases prevent the payment of interest on unliquidated sums. In Columbian Fuel an interim rate increase was approved by the Kansas Corporation Commission on natural gas sold to the buyer. The buyer was permitted to withhold the increase upon securing a bond. The seller brought suit seeking to collect interest on the amount withheld. This court noted the temporary nature of the Kansas Corporation Commission order and disallowed interest. The court held:
“In the absence of an agreement therefor interest may not be recovered on a claim as long as the validity of the claim is unadjudicated and the amount on which interest could be computed, if the claim be declared valid, remains wholly uncertain and unliquidated.” (Syl. 5.)
Here, of course, an agreement for the payment of interest on the part of Phillips is clearly present. Further, the suspended payments in Columbian Fuel did not necessarily belong to another. Here the “suspense royalties” belong either to the royalty owners or the pipeline companies. Thus we reaffirm our decision in Lightcap, supra at 466, distinguishing Columbian Fuel.
Having determined that seven percent (7%), and later eight percent (8%), interest can be awarded, we must determine whether the actions of the royalty owners have waived their right to interest. The appellant contends the trial court erred in holding that the plaintiff class, by refusing to accept the increased proceeds from gas sales from Phillips under an obligation to refund the same, if Phillips was ultimately obligated to do so, did not waive any claim to interest on such proceeds, or were not es-topped from making such claim.
Phillips relies on its July 1961, notice sent to Althea Shutts and all other royalty owners in the Hugoton-Anadarko area which provided in pertinent part:
“Interest owners desiring to receive payments computed currently on the full sums being collected may arrange to do so by furnishing Phillips Petroleum Company acceptable indemnity to cover their proportionate part of any required refunds, plus the required interest.”
The seventeen royalty owners who accepted Phillips’ offer to reimburse Phillips with interest for any “suspense royalties” which the FPC might require Phillips to refund to the gas purchasers are not members of the plaintiff class. Phillips contends it would be inequitable under these circumstances to require it to now pay interest to these royalty owners who refused to accept the money under the same risk Phillips undertook.
Where, as here, Phillips has expressly contracted to pay a percentage of the price received .for the sale of gas on which month-by-month payments to royalty owners were to be based, and the amount received by Phillips for the sale of gas in excess of the established rates pending FPC determination, although subject to possible refund, was not contractually excluded from the price received, Phillips is in no position to unilaterally impose burdensome conditions upon the royalty owners precedent to fulfilling its contractual commitment albeit permissive until final FPC approval of rate increase applications. Furthermore, the jiotices sent by Phillips to its gas royalty owners, indicated Phillips was not unduly concerned with security for the possible return of “suspense royalties” paid out. The notice sent royalty owners by Phillips on or about November 25, 1970, informed royalty owners it was giving effect to full ceiling rate levels established by FPC Opinion No. 586 in the payment of royalty, although the opinion had not become final. In the notice Phillips further informed royalty owners it would expect reimbursement in full for any overpayments resulting in the reduction of levels relied upon should there be a change in the FPC Opinion No. 586, and that Phillips would withhold from subsequent payments of royalty on gas or oil, or both, at its election, any overpayment occasioned thereby. The royalty owner was told acceptance of the check would constitute consent to such recovery of overpayments.
It is apparent Phillips’ previous imposition of burdensome conditions upon royalty owners for payment of royalty at ceiling rate levels pending FPC approval of gas rate increases, was designed to accomplish precisely what the facts disclose. Virtually none of the royalty owners complied with the conditions, thereby leaving the “suspense royalties” in the hands of Phillips as stakeholder to use at its pleasure in the operation of its business over the long period of time the FPC retained jurisdiction over Phillips’ rate increase applications.
Under the circumstances we have no hesitance in holding that the royalty owners in the plaintiff class did not waive any claim to interest on “suspense royalties” held by Phillips, by declining to honor the burdensome conditions unilaterally imposed by Phillips for their monthly payment. For the same reasons the royalty owners are not estopped to assert their claim in this action. Phillips’ assertion of equity, by arguing it would be inequitable to require Phillips to now pay interest to these persons who refused to accept the money under the same risk that Phillips held it, is not impressive. It distorts the facts and ignores Phillips’ admissions. The conditions imposed by Phillips were far more stringent than the corporate undertaking Phillips filed with the FPC.
Phillips argues when the plaintiff class members, accepted the December 7, 1972, payment of suspense royalties and negotiated Phillips’ checks, this extinguished the debt and any right that might have existed to sue for interest thereon, and that the trial court erred in holding to the contrary. Phillips alleges they do not rely on accord and satisfaction or an estoppel, but rather on the rule that payment of the principal sum is a legal bar to a subsequent action for interest.
The notice Phillips unilaterally mailed to all of its royalty owners on or about December 7,1972, enclosing checks, to cover payment based upon gas proceeds previously held in suspense, said nothing about interest or how long the money had been held or used by Phillips. However, as previously indicated, Phillips is liable for interest on these suspense royalty funds which it retained as a stakeholder and used in the operation of its business. The payment of these funds to the plaintiff class members, instead of extinguishing the debt, constituted only a partial payment on an interest-bearing debt. This situation invokes application of the so-called “United States Rule,” which provides that in applying partial payments to an interest-bearing debt which is due, in the absence of an agreement or statute to the contrary, the payment should be first applied to the interest due. (45 Am. Jur. 2d, Interest and Usury, § 99, pp. 88-89; and 47 G.J.S., Interest, § 66, pp. 72-73.)
Kansas approved this rule in Christie v. Scott, 77 Kan. 257, 94 Pac. 214, in determining appellate jurisdiction, and cited the rule with approval in Jones v. Nossaman, 114 Kan. 886, 221 Pac. 271, 37 A.L.R. 317.
The “United States Rule” is also followed in Oklahoma and Texas. (Landess v. State, 335 P.2d 1077 [Okla. 1958]; Straus v. Brooks, 126 S.W.2d 542 [Tex. Civ. App. 1939], rev’d on other grounds, 136 Tex. 141, 148 S.W.2d 393 [Com. App. 1941]; and J. I. Case Co. v. Laubhan, 64 S.W.2d 1079 [Tex. Civ. App. 1933].)
Thus, we conclude, acceptance of the so-called “principal sum,” by the royalty owners is not a bar to their claim in this case. Phillips raised and lost a similar argument in Phillips Petroleum v. Riverview Gas Compression Co., 409 F. Supp. 486 (N.D. Tex. 1976), the sequel to Phillips Petroleum Co. v. Adams, supra.
In the exercise of equitable powers our court has refused to bar relief under theories of ratification, waiver or estoppel where one due to unequal bargaining power or knowledge accepts a check in reliance on a fraudulently induced impression by the payor. (Prather v. Colorado Oil & Gas Corp., 218 Kan. 111, 542 P.2d 297; and cases cited therein.)
Phillips argues the Oklahoma class members are not entitled to recovery by reason of Okla. Stat. Ann., tit. 23, § 8 (1951), which provides: “Accepting payment of the whole principal, as such, waives all claim to interest.” In the instant case there is no indication the principal was accepted, as such. We further note Oklahoma has not strictly construed this statute. (Webster Drilling Co. v. Sterling Oil of Oklahoma, Inc., 376 P.2d 236 [Okla. 1962].)
An identical statute in California was said to be a rule of construction to be applied between parties dealing at arm’s length, where their agreement is to be inferred from the fact that the principal is tendered and accepted, and the statute was held to have no application where the conditions of payment are such that the creditor has no opportunity to assert his claim for interest at the time of payment. (McConnell v. Pacific Mutual Life Ins. Co., 205 Cal. App. 2d 469, 24 Cal. Rptr. 5 [1962].) Here the individual class members had no practical opportunity to assert their claim for interest under the circumstances of Phillips’ payout.
We therefore hold on equitable principles Phillips is required to pay its royalty owners herein seven percent (7%) per annum simple interest on suspense royalties from the date of receipt of suspense royalties by Phillips until October 1, 1970 (the effective date of FPC Opinion No. 586), and eight percent (8%) simple interest per annum thereafter until the payout to the royalty owners on or about December 7, 1972. Applying the “United States Rule” on partial payments, after the payout there was still an unpaid principal sum due equal to the total principal due plus accrued interest, less the payout. Assuming proper calculations, this amount, although principal, would equal the accrued interest on the date of the payout. From December 7, 1972, on until the date of judgment (July 29, 1976) equitable principles and Phillips’ contractual undertaking require Phillips to pay its royalty owners herein eight percent (8%) per annum simple interest on the unpaid principal sum (accrued interest on date of payout) plus the unpaid principal sum; and thereafter our post-judgment interest statute, K.S.A. 16-204, requires payment of eight percent (8%) per annum simple interest for the benefit of the royalty owners on the total amount of the judgment until paid.
Accordingly, the judgment of the lower court is affirmed in part and modified in part, and the case is remanded for further proceedings consistent with the foregoing opinion. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in two criminal actions which were consolidated for trial. In each action the defendant-appellant, Charles L. Pierson, was convicted of aggravated robbery (K.S.A. 21-3437). In case No. 20768 CR the defendant was convicted of aggravated robbery of Marshall’s Barber Shop in Kansas City, Kansas. The evidence was undisputed that the barber shop was robbed during the morning hours of September 5, 1973, by Stephen Craig Boster, James Larry Campbell, and John Uziel. All testified as to their participation in the robbery and implicated the defendant Pierson by swearing that defendant had visited the barber shop prior to the robbery, had supplied them with the weapons to be used in the robbery, and had instructed them how to proceed in committing the robbery. The three robbers left the scene with money, a .45 caliber pistol, a watch, and the victim Marshall’s car which contained other property. All three of the robbers testified that following the robbery some of the items taken were delivered to defendant Pierson and the weapons used were delivered back to him. In defense of this charge the defendant Pierson denied any participation in the robbery and introduced alibi evidence showing that he was not personally present when the robbery occurred. The jury chose to believe the state’s witnesses.
Case No. 20767 CR involved the armed robbery of the Patio Tavern in Kansas City, Kansas, on October 4, 1973. This robbery was actually committed by Boster and Campbell. They implicated the defendant by testifying that he had given them a diagram of the tavern and had instructed them to rob the establishment after 2:00 p.m. on a Thursday because at that time the employees of the tavern would have in their possession large amounts of cash. According to Boster and Campbell the defendant told them exactly where the money was hidden in the tavern. The two robbers also swore that following the robbery they went to the defendant’s place of employment and gave him his share of the money. The owner of the tavern testified that defendant had been on the premises on several occasions prior to the robbery but never stayed long and was not a regular customer. In his defense to this charge the defendant Pierson denied any dealings with Boster and Campbell and again presented alibi evidence to show that he was not present when the robbery occurred. The jury also chose to disbelieve the defendant on this charge and found him guilty. Following his conviction in these two cases the defendant appealed to this court claiming trial errors.
The first point raised by the defendant on the appeal is that the trial court committed prejudicial error in denying him the pretrial discovery of information concerning certain psychiatric records of witness John Uziel. After the defendant was bound over for trial and his case was docketed in the district court, his counsel filed a motion for production of evidence, which the district court sustained. The order was rather broad and in substance directed the state to furnish the defendant “rap sheets” in relation to the state’s witnesses, if same exist, the names and addresses of the state’s known witnesses and of any additional witnesses as they became known to the state. The court further directed that the psychiatric background of Uziel be provided to the defendant and the defendant was ordered to provide the state a list of what he sought and the whereabouts of the treatment. On August 13, 1974, defense counsel advised the assistant district attorney that he had information that Uziel had been a patient at Osawatomie State Hospital in December 1970 and January 1971 and that he was also a patient at the General Hospital in Kansas City, Missouri, during 1972 and 1973. Counsel suggested that the prosecutor obtain a signed medical authorization form from Mr. Uziel. On October 25, 1974, defense counsel again wrote the assistant district attorney pointing out that he had not received the medical information in regard to John Uziel. On December 11, 1974, the assistant district attorney advised defense counsel that he had requested Uziel to sign a medical release for information and that Uziel had refused to grant permission to copy his records from Osawatomie State Hospital. On December 13, 1974, the defense counsel filed a motion for permission to take the deposition of the records librarian of Osawatomie State Hospital. Counsel for defendant also moved for an additional pretrial conference and filed a motion to dismiss the action on the grounds that defendant had been denied a speedy trial. These motions were taken up on January 7,1975, and were overruled by the court. Thereafter John Uziel testified for the state at the trial over defendant’s objection. The defendant contends here that he was denied the right of effective cross-examination of Uziel because he was denied Uziel’s psychiatric records.
In support of his position the defendant relies upon State v. Humphrey, 217 Kan. 352, 537 P. 2d 155. Humphrey involved a charge of sale of illegal drugs. The prosecution’s case was based solely on the testimony of one John Eckhart, a special agent of the Kansas attorney general. Eckhart signed the complaint which initiated the prosecution and was the sole witness against Humphrey. The defendant sought discovery of Eckhart’s prior convictions, prior statements in the hands of law enforcement agencies, and information pertaining to Éckhart’s medical records involving psychiatric treatment. The attempts to obtain this information were futile. The trial court denied the defendant discovery of any information adversely affecting Eckhart’s credibility. On appeal we reversed, stating that the discovery provi sions under the criminal code should be liberally construed and that the scope of discovery should be as full and complete as is reasonably possible under the circumstances. We held that it was prejudicial error for the trial court to deny defendant discovery of prior statements and reports of Eckhart and information pertaining to his prior criminal record. We further held that it was prejudicial error for the court to deny the defendant his right to issue a subpoena duces tecum to the records librarian of the High Plains Comprehensive Community Mental Health Center so that such records could be examined at the trial. We declared this to be a denial of the defendant’s constitutional right to compulsory process to compel the attendance of witnesses to testify oñ his behalf. In the opinion we emphasized that the testimony of Eckhart was the sole evidence connecting the defendant with the alleged crime and that Eckhart’s credibility presented a material issue of substantial proportion with respect to the preparation of a defense on behalf of the defendant. The complete denial to the defendant of information which might affect Eckhart’s credibility required the granting of a new trial.
In the present case the trial court granted liberal discovery rights to the defendant but unfortunately the state was not able to furnish to defense counsel Uziel’s medical records because Uziel refused to sign a medical authorization form. The defendant’s motion to take the deposition of the records librarian was taken up in January 1975 at the same time the defendant’s motion to dismiss for denial of a speedy trial was considered. On the record in this case we cannot say that the denial of discovery of Uziel’s psychiatric records before trial constituted reversible error. In the present case there were two witnesses who testified as to defendant Pierson’s participation in the barber shop robbery in addition to Uziel. Also in this case defense counsel did not subpoena the medical records for introduction at the time of the trial of the case as defense counsel did in Humphrey. In addition defense counsel here was provided a great amount of information which he used to attack the credibility of John Uziel. We note that on cross-examination of Uziel, defense counsel brought to the jury’s attention Uziel’s prior felony record and the fact that Uziel had been granted immunity by the state in this case in return for his testimony against Pierson. It was also brought out in cross-examination that Uziel had alcohol problems and had been hospital ized for that reason at Osawatomie State Hospital and other hospitals. Under all the circumstances, since Uziel’s testimony was cumulative to the testimony of Boster and Campbell and since defense counsel was able to cross-examine Uziel quite effectively as to matters affecting Uziel’s credibility, we have concluded that the refusal of the trial judge to permit the defendant to take the deposition of the medical records librarian did not constitute prejudicial error and does not justify a reversal in this case.
The defendant’s second point on the appeal is that the district court erred in failing to sustain defendant’s motion to dismiss because of the failure of the state to provide defendant a speedy trial within the time limit prescribed by K.S.A. 22-3402. The defendant was not incarcerated prior to trial and the applicable time period allowed from arraignment to trial was 180 days. The record discloses that defendant was arraigned on April 19, 1974, and a pretrial conference set for May 1, 1974. The pretrial conference was continued at defendant’s request to May 24,1974. On that date a further continuance for pretrial conference was allowed at defendant’s request and the pretrial conference was set and held on June 10, 1974. The appearance docket contained in the record shows the following notation on September 27, 1974: “Def. counsel requests that the trial not be set until further notice due to the unavailability of counsel at the present time.” In December 1974 defendant filed his motion to dismiss for lack of a speedy trial. This motion was overruled on January 7, 1975, and trial was set for January 27, 1975. The expiration of time from arraignment to trial was 283 days. The defendant correctly points out that the duty rests upon the prosecution to bring the accused to trial. (State v. Lewis, 220 Kan. 791, 556 P. 2d 888.) However, K.S.A. 22-3402 exempts from the statutory time any delay which happens as a result of the application or fault of the defendant. Here the record shows two requests for continuance of the pretrial conference amounting to 70 days, all chargeable to the defendant. The judge’s minutes on the appearance docket indicate that defense counsel on September 27, 1974, requested a continuance of the case until further notice. A delay of at least 102 days apparently resulted from the request that trial not be set until further notice from him. We cannot say that the trial court erred in concluding that this delay in trial occurred as a result of the application of the defendant. It appears that the trial judge was quite accommodating to defense counsel and allowed him more than adequate time to develop his defense. Under the circumstances shown in this record we cannot say that the district court erred in denying defendant’s motion for discharge based upon a denial of a speedy trial.
The defendant’s third point on the appeal is that the trial court erred in failing to discharge defendant because there was a variance in the proof. The defendant maintains that the state elected to proceed against defendant in the information on the basis that he was a principal offender, while the evidence presented at the trial showed that the defendant was at most only an aider and abettor since he was not present at the time either of the robberies occurred. The defendant concludes that his conviction as an aider and abettor constituted a variance from the charge contained in the information and therefore his conviction should be set aside. This issue has been raised before this court on many occasions, most recently in State v. Smolin, 221 Kan. 149, 557 P.2d 1241, where we held that one who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he were a principal. We find no error in the refusal of the trial court to discharge the defendant because of a claimed variance in the proof.
The defendant next contends that the district court erred in permitting the witness, James Larry Campbell, to testify over the objection of the defendant because the state failed to furnish to defense counsel in advance of trial certain statements made by Campbell concerning robberies in Johnson county, Kansas, in July of 1973. On cross-examination Campbell admitted participating in these crimes but stated that he was never prosecuted for them. Counsel for the defendant indicated to the court his desire to examine the statements in an effort to obtain information if Campbell had been promised leniency in exchange for his testimony in the present case. At the request of the state and pursuant to K.S.A. 22-3213 (3) the trial court examined the prior statements of Campbell and ruled that they concerned other crimes not related to the crimes charged in this case and were therefore irrelevant. The defendant has made no proffer of testimony to sustain his claim of relevancy. The defendant fully cross-examined the witness Campbell in regard to these crimes and it does not appear that his right to effective cross-examination was impaired by the court’s ruling. It is important to note that the defendant has not included these “statements” in the record for our consideration. Under K.S.A. 22-3213 (3) the defendant could have taken steps to make the statements available to this court on the appeal so that the correctness of the ruling of the trial judge might be determined. The burden is on the appellant to present to an appellate court on appeal any matter upon which he intends to base a claim for relief. (State v. Wilson & Wentworth, 221 Kan. 359, 559 P. 2d 374.) We find no basis for reversible error on this issue.
The last point of claimed error is that the court erred in enhancing the defendant’s sentence under the provisions of K.S.A. 1973 Supp. 21-4504 in reliance upon certain California felony convictions which were submitted to the court prior to sentencing. One of these convictions was based on defendant’s plea of guilty to second-degree robbery entered in Los Angeles, California, on December 16, 1964. The defendant does not deny that he had counsel at his guilty plea but maintains that his prior conviction was considered by the trial court in this case without the court’s first making a determination that the plea of guilty was obtained in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), and Henderson v. Morgan, 426 U. S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (1976). These cases held that before a plea of guilty may be accepted by a trial court the record must affirmatively disclose that the defendant entered his plea understanding^ and voluntarily. Both Boykin and Henderson involved direct attacks upon the challenged plea. Neither involved a collateral attack on prior convictions used by a sentencing court in another state to enhance punishment. We find the contention of the defendant here without merit. Every reasonable presumption in favor of the validity of a judgment should be indulged where there is nothing in the record to support allegations of irregularity. (State v. Jefferson, 204 Kan. 50, 53, 460 P. 2d 610.) In addition it should be noted that the convictions which were used to enhance the sentence in this case were final prior to the time Boykin was decided in 1969. The conviction on the defendant’s plea of guilty as pointed out above is dated December 16, 1964, and the convictions of grand theft and burglary are dated July 12,1948. It has been held that Boykin does not apply retroactively. (Baker v. State, 213 Kan. 874, 518 P. 2d 537, relying upon Halliday v. United States, 394 U.S. 831, 23 L. Ed. 2d 16, 89 S. Ct. 1498, reh. denied 395 U.S. 971, 23 L. Ed. 2d 761, 89 S. Ct. 2106; Green v. Turner, 443 F. 2d 832 [10th Cir. 1971]; Perry v. Crouse, 429 F. 2d 1083 [10th Cir. 1970]; and cases cited in Bishop, Federal Habeas Corpus in State Guilty Pleas, 71 F.R.D. 235, 255-257.)
For the reasons set forth above the judgment of the district court is affirmed. | [
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Per Curiam:
Reversed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a probate case from the order of the district court of Doniphan County refusing to remove certain real property claimed by Ellsworth and Mary Boldridge from the estate of Walter A. Keimig, deceased.
The appellants contend the district court of Doniphan County, Kansas, erred in sustaining a motion for summary judgment on the ground that a judgment in a quiet title action in the district court of Atchison County, Kansas, was res judicata. This position of the appellants is clarified by their second argument which is to the effect that the probate court of Doniphan County, Kansas, had jurisdiction to entertain their petition seeking to remove the real property in question from the estate of Walter A. Keimig, deceased, while the district court of Atchison County, Kansas, had no jurisdiction to adjudicate the ownership of the real estate in question because the probate court of Doniphan County assumed jurisdiction in the matter prior to the date upon which the petition to quiet title was filed in the district court of Atchison County where the land in question was situated.
Walter A. Keimig was a resident of Doniphan County, Kansas. He owned and farmed land in Doniphan County and Atchison County, Kansas. He died testate on June 21, 1971.
Probate proceedings were initiated in the probate court of Doniphan County by Goldie Keimig, Walter’s sole and only heir. Goldie Keimig, as the duly qualified executrix, filed an inventory and appraisement claiming as part of the decedent’s estate the following described land in Atchison County, Kansas:
“Commencing at a point on the South line of the Northeast Quarter of the Northwest Quarter of Section 28, Township 6 South, Range 21 East of the 6th P.M., Atchison County, Kansas, where the Missouri Pacific Railroad right-of-way crosses said South line, thence due East on said line to the West bank line of the Missouri River, thence Northwesterly along said Bank to an iron pipe set on the West Bank of said Missouri River in the Northwest Quarter of Section 21, Township 6, Range 21, approximately 1100 feet Northwest of where the said West bank of the said Missouri River crosses the East and West center line of said Section 21, thence Southwesterly on a compass course of 248 degrees 40 minutes approximately 1,398.7 feet to a point intersecting the Missouri Pacific Railroad right-of-way in the Northeast Quarter of Section 20, Township 6, Range 21, Atchison County, Kansas, thence Southeasterly along said Missouri Pacific Railroad right-of-way to point of beginning; also the North 4 acres of the South half of the East 10 acres of the Northeast Quarter of the Southeast Quarter, and the North half of the East 10 acres of the Northeast Quarter of Southeast Quarter of Section 20, Township 6, Range 21.”
On March 25, 1972, Ellsworth and Mary Boldridge (plaintiffs-appellants) filed a petition, denominated as a petition to “Strike From the Inventory Certain Real Estate and Determine Ownership Thereto.” On August 30, 1972, the appellants petitioned for a transfer of this matter to the district court of Doniphan County. (This action was apparently based on a contract for purchase from Lucy V. H. Ingalls, trustee, in the year 1954, and on a deed dated October 11, 1965, executed by Sally Ingalls Keith, successor trustee to Lucy V. H. Ingalls, which deed was recorded on October 20, 1966.)
Meanwhile, on September 21, 1972, Goldie Keimig commenced a quiet title action against the appellants in the district court of Atchison County concerning the disputed Atchison County land. This quiet title action alleged the Keimigs had been in peaceable, open, notorious, hostile, adverse, continuous and exclusive possession of the previously described real estate for more than fifteen years. Furthermore, the Keimigs introduced three deeds dated between the dates of September 1, 1948, and February 2, 1952.
The Boldridges answered and on October 15, 1973, this matter was heard in the Atchison County district court. On February 13, 1974, the Atchison County district court found Walter Keimig was the owner of the disputed land and that the Boldridges had at no time farmed or been in possession of the disputed land. Furthermore, the Atchison County district court found in 1956 Walter Keimig obtained a judgment quieting title to the disputed land against Lucy V. H. Ingalls.
The Boldridges perfected their appeal from the adverse judgment in the quiet title suit. However, on January 10, 1975, the appeal was deemed abandoned pursuant to Rule No. 6 (p) (214 Kan. xxv) of the Rules of the Supreme Court of Kansas. On February 27, 1975, this court denied a motion to set aside the order dismissing the appeal.
The executrix then proceeded to settle the estate in the Doniphan County probate court. On June 20, 1975, a hearing on her petition for final settlement was held. The probate court denied the Boldridges’ petition to strike real estate from the inventory. The Boldridges then appealed to the district court of Doniphan County, where the executrix filed a motion for summary judgment pursuant to K.S.A. 60-256 (b), contending that the adjudication of the quiet title action in the Atchison County district court was res judicata. On October 9,1975, the Doniphan County district court sustained the motion on the ground alleged in the motion.
On appeal, which has been duly perfected, the appellants contend the Doniphan County courts first obtained jurisdiction of this matter and had continuing jurisdiction, so that no court of coordinate jurisdiction could interfere. The appellants also contend the probate court has exclusive jurisdiction to determine title to real estate in a decedent’s estate. (Citing Wright v. Rogers, 167 Kan. 297, 205 P.2d 1010.)
Here the executrix was duly qualified and filed an inventory which included the real estate in dispute. The appellants filed their petition to “Strike From the Inventory Certain Real Estate and Determine Ownership Thereto” in the probate court, and petitioned for a transfer of the matter to the district court of Doniphan County. Was the action of the executrix thereafter in commencing a quiet title action in the district court of Atchison County, where the real estate in dispute was located, proper?
The appellants rely on the general rule of law that when one seeks to remove assets out of an estate of a decedent, the probate court has exclusive original jurisdiction of the matter. When an executor or administrator seeks to bring property into the assets of an estate of a decedent, or otherwise to realize something of benefit to the estate, the action is properly brought in the district court or some other court of competent jurisdiction. (In re Estate of Thompson, 164 Kan. 518, 190 P.2d 879; Hildenbrand v. Brand, 183 Kan. 414, 327 P.2d 887; Hudson, Administrator v. Tucker, 188 Kan. 202, 208, 361 P.2d 878; Shields v. Fink, Executrix, 190 Kan. 17, 372 P.2d 252; Weaver, Administrator v. White, 190 Kan. 291, 374 P.2d 219; Oswald v. Weigel, 215 Kan. 928, 932, 529 P.2d 117; and In re Estate of Teichgraeber, 217 Kan. 373, 391, 537 P.2d 174.) The appellants argue their petition filed in the probate court of Doniphan County to remove the real estate in dispute from the inventory was in the nature of a claim against the decedent’s estate and was designed to remove real estate from the decedent’s estate. The appellants rely primarily on the language in the case of In re Estate of Thompson, supra at 522-523.
K.S.A. 59-1401, reads in part:
“The executor or administrator shall have a right to the possession of all the property of a resident decedent, except the homestead and allowances to the surviving spouse and minor children. . . . He or she may by himself or herself, or with the heirs or devisees, maintain an action for the possession of the real estate or to quiet title to the same.” (Emphasis added.)
There is no argument that Goldie Keimig was the duly qualified executrix. The probate code under which she qualified clearly and expressly gave her authority to bring an action to quiet title to the real estate in dispute. The decedent, Walter A. Keimig, had possession of the real estate here in dispute at the time of his death and his executrix, Goldie Keimig, succeeded to and had possession of that real estate.
An action to quiet title to real estate “must be brought in the county in which the real estate is situated.” (K.S.A. 60-601 [b] [Weeks].) Therefore, venue of an action to quiet title on the facts in this case was in Atchison County where the real estate in dispute was situated.
The record here presented discloses no order of the probate court authorizing the executrix to bring an action in the district court of Atchison County to quiet title to the real estate in dispute. K.S.A. 59-301 [Corrick] (see L. 1976, ch. 243, Sec. 42, and L. 1976, ch. 242, Sec. 99) gave the probate court original jurisdiction to direct and control the official acts of executors and administrators. Thus, it has been held in Lanning v. Goldsberry, 171 Kan. 292, 232 P.2d 611, appropriate for an executor or administrator, before bringing an action for possession of real estate or an action to quiet title to real estate, to advise the probate court of the situation and procure from the probate court an order directing and authorizing him to bring the action. However, the decision makes it clear compliance with the foregoing procedure is not mandatory where the executor or administrator brings an action pursuant to statutory authority under 59-1401, supra, for the possession of the real property, or to quiet title to the same.
Cases where the executor or administrator has brought a quiet title action in district court under 59-1401, supra, include Kininmonth v. Carson, 156 Kan. 808, 137 P.2d 173; Collins v. Richardson, 171 Kan. 152, 230 P.2d 1018; and Bell v. Hanes, 190 Kan. 765, 378 P.2d 13. When the executor or administrator brings a quiet title action as he is authorized to do, it is not a case of a court of coordinate jurisdiction interfering with the actions of another court as the appellants argue. (Collins v. Richardson, supra.)
In Kininmonth v. Carson, supra, an administrator of the estate of Sarah Pennington brought a quiet title action against various defendants. Basically the quiet title petition alleged various defendants claimed title to land in Sumner and Cowley Counties by virtue of certain mineral conveyances dated April 11, 1936, and deeds dated September 16, 1936, all of which were given while Sarah Pennington was an incompetent and insane person. The district court of Cowley County determined it had jurisdiction of the matter, the plaintiff administrator had legal capacity to sue and Sarah Pennington did not have sufficient mental capacity to execute the conveyances and deeds in 1936. This court applied the clear language of 59-1401, supra, and affirmed. In the opinion the court said:
“It is conceded by all parties that the plaintiff in this action was appointed administrator of Sarah’s estate and that the probate court made an order putting him in possession of all the real estate involved. Plaintiff was in possession under this order when this action was commenced. He found the security of his possession threatened by the claims of the two appellants. The same section of the statute which provided for his being put in possession gave him authority to maintain action to quiet title. . . .” (p. 818.)
In Collins v. Richardson, supra, Nellie Henderson and three other plaintiffs filed an action in the district court of Ellis County to have their respective interests in a described 680 acre tract of Ellis County land determined. The sole defendant was Mollie Richardson. On April 10, 1949, Nellie Henderson, a resident of Rooks County, died testate. Her will was duly admitted to probate and Donald Collins duly appointed administrator c.t.a. of her estate. The Rooks County probate court authorized and directed Collins to revive the quiet title action in the district court of Ellis County, which he did. The district court of Ellis County made certain orders adverse to Mollie Richardson which were affirmed by this court on appeal on December 10, 1949. (Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302.) On February 16, 1950, Mollie Richardson, defendant in the Ellis County action, then filed a petition for allowance of demand in the probate court of Rooks County in which she restated the claim she made in the district court of Ellis County. Mollie Richardson alleged that the probate court of Rooks County had jurisdiction and the district court of Ellis County did not have jurisdiction. When the matter once again came before this court, the clear language of 59-1401, supra, was cited and it was held the judgment in the Ellis County case should be applied in the probate case in Rooks County. In the opinion the court said:
“Since the statute (G.S. 1949, 59-301) gives the probate court original jurisdiction (3) ‘To direct and control the official acts of executors and administrators, . . .’ it was proper for Donald Collins, administrator c.t.a. of the estate of Nellie Henderson, to apply to the court for authority to cause the quiet title suit in Ellis county and the suit pending in the supreme court to be revived in his name as administrator c.t.a. and for his authority to employ and pay counsel and to do all things necessary to diligently prosecute the suit to completion. Such an order was applied for and granted. The suit was properly revived under the authority of G.S. 1949, 59-2238, and by virtue of that statute the judgment in that suit will be filed in the probate court of Rooks county in the estate of Nellie Henderson, deceased.” (pp. 158-159.)
Counsel for the appellant in Collins v. Richardson, 171 Kan. 152, 230 P. 2d 1018, argued, the same as counsel for the appellants in the instant case, that real property in dispute was inventoried in the decedent’s estate in the probate court by the duly appointed representative of the estate, and that the appellant in the probate proceeding was trying to get something out of the estate of the decedent, hence the case fell within the first class of cases discussed in the opinion of In re Estate of Thompson, supra. The appellee in Collins argued, if the plaintiff’s contentions in the quiet title action in the district court of Ellis County are sustained concerning the real estate in dispute in Ellis County, property would come into the decedent’s estate pending in the probate court of Rooks County. In the Collins’ opinion the court said:
“We think this argument resulting from the classification of claims made by the writer of the opinion in the case of In re Estate of Thompson is more interesting than decisive. In fact, the court was careful to limit this classification to the case then before the court. This is clear from several portions of the opinion, and specifically from the following (p. 523):
“ ‘As to the second class of cases, the ground has not yet been so fully covered, and we shall not anticipate issues. But we think the disposition made of the cases decided rests upon a sound basis. The code now provides in G.S. 1947 Supp. [G.S. 1949], 59-1401, that the executor or administrator shall have the right to the possession of all the property of the decedent, real as well as personal, with certain named exceptions, and may maintain an action for possession of the real estate or to quite title to the same. Prior to the enactment of the code, such actions were brought in the district court and the code contains no specific provision changing that rule. Consequently, in the cases that have arisen, this court has found no reason to conclude that the legislature intended to change the forum, as was the case in various actions falling within the first class of cases heretofore referred to. . . .’
“We think counsel for appellant rely too heavily upon the case of In re Estate of Thompson. While the classification there made was not inappropriate as applying to that case it is clear that the court had no intention and did not attempt to lay down a rule for all cases in the future which might arise under G. S. 1949, 59-1401. Indeed, the statute makes no such classification of cases. We shall not attempt to decide the controversy between counsel as to whether the action pending in the district court of Ellis county seeks to bring into or to take from the estate of Nellie Henderson pending in the probate court of Rooks County. . . .” (pp. 157-158.)
In the case of In re Estate of Slaven, 177 Kan. 185, 277 P.2d 580, decided after Collins, the administrator had inventoried the real estate claimed by appellees who were grantees in deeds to the real estate. The appellees filed a petition in the estate to strike the real estate from the inventory. The appellees took the position that the probate court did not have jurisdiction and the case should be certified to the district court. The administrator took the position that it was a matter over which the probate court had jurisdiction but which would have to be settled by transfer to the district court. The probate court sustained the appellees’ position and certified the matter to the district court. At a pretrial conference the district court advised the parties that it had original jurisdiction and the matter would be tried as though the administrator were proceeding to recover property for the estate. The court ordered the parties to plead as if the administrator were starting an original action in the district court to recover the property. The parties failed to follow the trial court’s instructions and filed a pleading referred to as a stipulation and the trial court sustained the petition to strike. The Supreme Court ruled that the district court was correct in holding the matter was properly certified to the district court, but the trial court should have required proper pleadings to be filed so as to frame the issues in an action to adjudicate the title to the real estate. The court quoted from Lanning v. Goldsberry, supra, as follows:
“ ‘When an administrator, entitled to the possession of the real property of the decedent, learns facts tending to show that certain real property belonged to the decedent at the time of his death, the title of which is in the name of another, he is authorized by G.S. 1949,59-1401, to maintain an action in the district court for the possession of the real property, or to quiet title to the same.’ ” (p. 189.)
The court in Slaven said:
“The trial judge in a colloquy, to which reference has already been made in this opinion, directed the administrator to plead as if he was starting an original action in the district court to recover the property. For some reason the administrator did not see fit to file such pleadings. He filed the stipulation, to which reference has already been made. The trial court then sustained the petitions to strike. In this the trial court was in error. It should have insisted that proper pleadings be filed and should then have tried the action. The trial court was correct, however, in holding that the district court had original jurisdiction.” (pp. 189-190.)
In Bell v. Hanes, supra, Carl Bell was the duly appointed administrator of the estate of Virgil Hanes, a resident of Sedgwick County. Bell filed a quiet title action in the district court of Butler County involving title to Butler County land. The defendants challenged the jurisdiction of the Butler County district court. This court held Bell could properly bring an action in the district court of Butler County.
Wright v. Rogers, 167 Kan. 297, 205 P.2d 1010, relied upon by the appellants, was distinguished in Lanning v. Goldsberry, supra at 294.
We hold the district court of Atchison County had jurisdiction to determine the quiet title action upon application of the executrix. The appellants have litigated the quiet title action in Atchison County. Their attempt to litigate the matter in the probate proceeding in Doniphan County was improper. Venue of the matter was in Atchison County and the district court of Doniphan County was correct in sustaining the appellee’s motion for summary judgment. Res judicata which the trial court assigned as its reason, however, was erroneous.
If the trial court renders a correct judgment under the facts and the law, the judgment will not be disturbed merely because wrong reasons are given for its rendition. (Wallace v. Magie, 214 Kan. 481, 522 P.2d 989.)
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The opinion of the court was delivered by
Miller, J.:
This action was commenced by Victoria Ann Shriver against The Athletic Council of Kansas State University (the Athletic Council), a corporation, to recover damages for personal injuries which she alleges were sustained as a result of negligence on the part of the Athletic Council, its agents and employees.
Briefly, plaintiff, a student at the University, claims that she was injured while she was waiting to purchase football tickets. She arrived several hours before the tickets were to go on sale. The place of sale had been specified in advertisements by the Athletic Council. Plaintiff crawled into a sleeping bag and settled in for a long wait. A large crowd collected. Abruptly, the Athletic Council changed the place of sale and caused the change to be announced over loud speakers. This precipitated an uncontrolled mass rush by the crowd, and during the course of the stampede plaintiff was trampled and severely injured.
The Athletic Council moved for a summary judgment on the ground that the action is barred by K.S.A. 46-901, et seq. The trial court sustained the motion, and plaintiff appeals.
The issues raised here are two: whether the Athletic Council, as an instrumentality of the University, partakes of that governmental immunity established by K.S.A. 46-901; and, if so, then whether that immunity has been waived.
Three decisions of this court bear upon the first issue. Brown v. Wichita State University (Brown I), 217 Kan. 279, 540 P. 2d 66; Brown v. Wichita State University, P.E.C., Inc., 217 Kan. 661, 538 P. 2d 713; and Brown v. Wichita State University (Brown II), 219 Kan. 2, 547 P. 2d 1015.
In Brown I and the P.E.C. case, we analyzed the relationship between Wichita State University and Wichita State University Physical Education Corporation and held that the latter was a “mere instrumentality” of the University. In Brown II we upheld the constitutionality of K.S.A. 46-901, and found that tort claims against both the University and P.E.C. were barred by that statute, which grants governmental immunity to agencies of the state. K.S.A. 46-901 reads as follows:
“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
“(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
“(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.
“(c) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit.”
The documents before us disclose the following: The Athletic Council was formed on November 6, 1933. On April 30,1971, the official name of the corporation was changed to “The Athletic Council of Kansas State University, Inc.” The purpose of the corporation is “Supervision and operation of intercollegiate athletic activities at Kansas State University.” The council is a nonprofit corporation.
An agreement between the University and the Athletic Council, entered into on November 1, 1970, provides, in substance, that:
(1) The University grants the Athletic Council the exclusive right to maintain and operate an intercollegiate athletic program on land owned or controlled by the University in accordance with the rules and regulations of the University;
(2) the Athletic Council will be operated as a department of the University and be subject to the regulations and administrative policies of the University;
(3) the University agrees to furnish police and fire protection to Athletic Council facilities;
4) the Athletic Council agrees to provide management and operational services for operating an intercollegiate athletic program and to collect and disburse funds;
(5) the Athletic Council agrees to deposit the income from operation of the intercollegiate athletic program or the Council’s facilities in special accounts with the comptroller of the University. The income may be withdrawn for the use of the Council and its operation in accordance with agreements now in effect by and between the University and the Council; and
(6) the Council agrees to make its books and records available to the University, these to be public records and to be audited annually by an independent CPA. Audit reports are to be furnished to the University, the Board of Regents, and the State Department of Post Audits.
Affidavits submitted by the Athletic Council state in substance that the Athletic Council is operated as another department of the University; its funds are handled and administered by the University fiscal offices and are kept in the University’s bank account; the budget of the Council is prepared according to the same standards as other University departments; its salary levels follow the same criteria as those in other departments of the University. The University administers the personnel policies and standards of the Athletic Council, including its social security and retirement program. The Council operates as a standing committee of the Faculty Senate at the University. There are 13 members of the Council and they are selected as provided for in the constitution of the Faculty Senate. Under that constitution the Council is guided in its decisions by Faculty Senate policies and is required to submit contemplated changes in policy to the Senate for approval. Proposed changes are subject to rejection or modification by the president of the University or the Board of Regents, as well as the Faculty Senate. The Council is subject to the general administrative control of the University.
The constitution of the Faculty Senate provides that “The Athletic Council, guided in its decision by policies previously approved by the Faculty Senate, shall formulate policies concerned with the conduct of intercollegiate athletics, and it shall submit contemplated changes in policy to the Faculty Senate for approval.” Members of the Athletic Council consist of a chairman appointed by the president of the University, the director of athletics, the vice-president for student affairs, either the dean or associate dean of the college of arts and sciences, five faculty members appointed by the executive committee of the Faculty Senate, two alumni appointed by the president of the University on recommendation of the Alumni Association, and two students appointed by the Student Senate.
The Athletic Council is thus completely dominated by and is operated as an integral part of the University. In fulfilling the duties entrusted to it, and in its every activity and function, it is subject to the policy and control of the University. We conclude that the Athletic Council is an instrumentality of Kansas State University. As such, it shares in the governmental immunity mandated by the legislature through K.S.A. 46-901.
We turn now to the second issue, whether governmental immunity is waived. The parties stipulated that the Athletic Council “. . . is insured by a liability insurance policy insuring against negligence by said defendant; that said policy was not purchased with funds of the State of Kansas; that the insurer has denied liability and reserved the right to contest validity of the policy and coverage by the policy; and that the insurer asserts that the defendants [there were other parties defendant who are not parties to this appeal] would be obligated to pay from their own funds at least part, if not all, of any binding judgment which might be rendered against them.”
The policy of insurance is not before us, and although its contents are readily discoverable under the provisions of one of our rules of civil procedure, viz. K.S.A. 60-226 (b) (2), the record does not disclose that any discovery along this line has been pursued. Thus we do not know the date of issuance of the policy, or what coverage the policy affords. We know only that the Council has a liability policy which was not purchased with state funds.
K.S.A. 74-4715 authorizes the procurement of liability insurance. It provides:
“(a) The procurement of insurance is hereby authorized for the purpose of insuring the state or any county or city, and their officers, employees and agents against any liability, in addition to liability covered by the Kansas workmen’s compensation law, for injuries or damages resulting from any tortious conduct of such officers, employees and agents arising from the course of their employment.
“(b) Such insurance may be procured for the state or employee thereof, by the committee on surety bonds and insurance established by K.S.A. 75-4101, subject to the applicable limitations of the acts contained in article 41 of chapter 75 of the Kansas Statutes Annotated and any amendments thereto, and subject to appropriations being made therefor.” (Emphasis supplied.)
K.S.A. 74-4716 provides for waiver of governmental immunity by the state, and a corresponding waiver of the defense of governmental immunity by the insurer. It provides:
“Upon procuring such insurance, the state, city or county thereby waives its governmental immunity from liability for injuries or damages resulting from tortious conduct of its officers, employees or agents during the course of their employment only to the extent of the insurance so obtained. Upon issuing such insurance, the insurer or insurers thereby waive any defense based upon the governmental immunity of the state, county or city or their officers, employees or agents.”
Appellee argues that the insurance was not purchased by the committee on surety bonds and insurance; that such procedure is mandated by K.S.A. 75-4101, et seq.; and that the act of the Athletic Council in acquiring the insurance with its own funds does not waive immunity.
The legislature created the committee on surety bonds and insurance in 1969. Laws of 1969, Chapter 406, Sec. 1, codified as K.S.A. 75-4101. As amended by the 1971 legislature, the act applicable at the time of the occurrence with which we are here concerned provides:
“. . . On and after January 1, 1970, no state agency shall purchase any insurance of any kind or nature . . . except as provided in this act. . . .” K.S.A. 1971 Supp. 75-4101.
K.S.A. 1971 Supp. 75-4105, also then in effect, provides in applicable part:
“All. . . insurance contracts purchased pursuant to this act shall be purchased by the committee in the manner prescribed for the purchase of supplies, materials, equipment or contractual services under K.S.A. 75-3738 to 75-3744, inclusive, and acts amendatory thereof and supplemental thereto: Provided, however, The state controller shall not draw any warrant for the payment of premium on any surety bond or insurance contract until the purchase of such surety bond or contract shall have been approved by the secretary of the committee. . . . [Ijnsurance contracts having a premium in excess of fifty dollars ($50) purchased hereunder shall be purchased on sealed bids as provided by law for the purchase of other materials, equipment or contractual services. . . .”
These statutes govern the procurement of insurance policies with appropriated state funds. By virtue of K.S.A. 1976 Supp. 76-720, athletic funds — such as those of the Athletic Council — are specifically exempt from and need not be spent in compliance with K.S.A. 75-3727 to 3744, inclusive. Such funds are not a part of the state treasury. K.S.A. 1976 Supp. 76-732. And the state is not liable for the obligations of the Council. K.S.A. 1976 Supp. 76-734.
We are not concerned here with the disbursement of appropriated state funds. Further, there is no showing that the policy here involved was procured after January 1, 1970. Be that as it may, we conclude that K.S.A. 75-4101, et seq., are inapplicable when read in conjunction with the other statutes cited, and do not prohibit the acquisition of insurance by the Athletic Council with moneys which are not state funds. The obligation of the Athletic Council’s insurance carrier depends upon the policy and the merits of plaintiff’s claim — not upon the legal capacity of the Athletic Council to acquire and pay for the policy. Robertson v. Labette County Comm’rs., 122 Kan. 486, 252 Pac. 196, 73 A.L.R. 87.
Governmental immunity is clearly and specifically waived by K.S.A. 74-4716 to the extent of the insurance obtained, whatever the policy limits may be. And though governmental immunity protects the Athletic Council from any judgment above the policy limits, its insurance carrier has waived the defense of governmental immunity (K.S.A. 74-4716) and may not rely upon that defense to thwart recovery by one claiming negligent injury. The reason for governmental immunity fails where any judgment entered will be paid with private, not public, funds.
We conclude that the trial court erred in sustaining the motion for summary judgment. The judgment is reversed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from the denial of relief sought under a writ of habeas corpus pursuant to K.S.A. 60-1501. Petitioners-appellants are inmates at Kansas State Penitentiary at Lansing. On February 23, 1976, the appellants filed an amended petition for a writ of habeas corpus, pursuant to K.S.A. 60-1501, in the district court of Leavenworth County, alleging the deprivation of various constitutional and statutory rights and privileges while being confined in protective custody status in the Adjustment and Treatment (A and T) Building. Both sides presented evidence at a hearing held in the district court on March 11, 1976. On March 25, 1976, the district court rendered a memorandum opinion denying the appellants’ prayers for relief and dissolving the writ of habeas corpus. Notice of appeal from that decision was timely filed, and this appeal followed.
The appellants are on protective custody status at their own request. Protective custody inmates are segregated from the general prison population. They are housed in the A and T Building which is designed to protect the occupants. The building has three wings. The north wing is occupied entirely by inmates on protective custody status. The south wing is occupied by inmates on administrative segregation status awaiting hearings for institutional violations. The east wing is occupied by inmates on disciplinary segregation status who are serving “jail time” as a result of convictions of institutional rule violations. Some inmates on protective custody status, including the appellants, are also on the east wing.
The crux of the appellants’ position is that they are not receiving the same treatment as other protective custody inmates who are housed on the north wing. In their petition below, the appellants alleged they are denied many privileges which protective custody inmates on the north wing are allowed: the right to attend church, the privilege of listening to the radio, the privilege of earning money through institutional employment, adequate light to read by, the use of typewriters, and the privilege of having the same amount of exercise each day. The appellants further alleged they are allowed to spend less money per month in the canteen than are protective custody inmates on the north wing.
The evidence showed there are approximately forty protective custody inmates. There are twenty-one one-man cells and six four-man cells on the north wing. Because of past assault problems, only one man is housed in the larger cells. North wing inmates work in the prison laundry which is run entirely by protective custody inmates in the A and T Building. It is the only available job for protective custody inmates. There are from twenty-three to twenty-eight job positions in the laundry. It is an important prison function, and selection of workers is done with care. Two of the appellants had previously worked in the laundry and had proved to be unsatisfactory workers because of their belligerent attitudes. The decision to place inmates on the east wing is based in part on past behavior. Satisfactory workers are kept on the north wing. Protective custody inmates are not placed on the east wing for disciplinary reasons. Inmates from the north and east wings are not allowed to mix. Commingling has resulted in past problems. They have different exercise periods and do not attend church together, but protective custody inmates on the east wing do have an exercise period and they may have religious leaders visit them. The evidence further showed there was no difference in lighting or in the ¿mount of money protective custody inmates could spend in the canteen.
The district court concluded the evidence failed to establish the imprisonment of the appellants in the east wing of the A and T Building was illegal and a violation of due process or that it amounted to a violation of their right to equal protection of the law.
The appellants’ first point on appeal is that their confinement in the east wing of the A and T Building is illegal. They contend they have suffered a loss of institutional privileges without being accorded a prior hearing in violation of the due process clause of the Fourteenth Amendment. We disagree.
The appellants’ due process contention appears to be predicated on the view that retraction of their privileges occurred as a disciplinary measure imposed upon them by prison officials. However, the evidence showed that the decision to house prisoners on the east wing was merely an administrative classification decision made in the day-to-day operation and management of the penitentiary. The decision concerning the appellants’ housing was made by their unit team. -The unit team determined the appellants’ aggressive attitude toward institutional staff and other inmates and their unsatisfactory history of institutional employment necessitated their being housed on the east wing. This administrative classification decision allowed the most efficient inmate workers to work in the laundry and removed a potentially disruptive influence upon the remaining protective custody population. The decision was not imposed for disciplinary purposes and did not result in a reduction of privileges. The district court found that there was no significant difference in institutional privileges for inmates in protective custody status on the east and north wings.
In Levier v. State, 209 Kan. 442, 497 P.2d 265, this court recognized that prison officials are vested with wide discretion in the discharge of their duties and that their decisions concerning matters of internal management and operation of a state penitentiary will not be disturbed unless clearly arbitrary or shocking to the conscience. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813; Morris v. Raines, 220 Kan. 86, 551 P.2d 838.
These decisions are reinforced by the recent United States Supreme Court decision of Meachum v. Fano, 427 U.S. 215, 49 L.Ed.2d 451, 96 S.Ct. 2532. There a state prisoner brought a civil rights action under 42 U.S.C. Sec. 1983 contending his transfer from one state prison to another with conditions of confinement considerably more severe without a prior hearing violated his right to due process of law under the Fourteenth Amendment. The court stated:
“. . . We reject at the outset the ndtion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause. . . . [T]he determining factor is the nature of the interest involved rather than its weight.
“Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause. The Due Process Clause by its own force forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause. But given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” 427 U.S. at 224.
“A prisoner’s behavior may precipitate a transfer; and absent such behavior, perhaps transfer would not take place at all. But, as we have said, Massachusetts prison officials have the discretion to transfer prisoners for any number of reasons.
“Holding that arrangements like this are within reach of the procedural protections of the Due Process Clause would place the Clause astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges.” 427 U.S. at 228-29.
The broad discretion of prison ádministrators concerning the housing of inmates in protective custody was reaffirmed in Crowe v. Leeke, 540 F.2d 740 (4th Cir. 1976). That court stated:
“. . . The placement of inmates who have sought protective custody classification and the number of inmates who may be safely assigned to a cell is a matter resting within the sound discretion of the prison administration.” Id. at 742.
The classification decision of prison officials to house the appellants on the east wing because of the unavailability of space on the north wing and because of their aggressive behavior clearly constitutes a reasonable exercise of discretion aimed at promoting the welfare of the institution and the protective custody inmates. The determination implicated no constitutional right of the appellants. The classification of prisoners concerning housing and job assignments is necessary to the proper administration of a state prison and rests within the sound discretion of the prison administrator. Furthermore, no interest approaching the level of a fundamental right was deprived the appellants by their placement on the east wing of the A and T Building.
The appellants’ second point on appeal is that the district court erred in finding their confinement on the east wing did not violate their right to equal protection of the law under the Constitutions of the United States and the State of Kansas.
The district court found the appellants had not been denied privileges available inmates on the north wing. But even assuming a lesser amount of privileges are available to the appellants, no equal protection violation is presented under the instant facts. The evidence showed there are more protective custody inmates than there are jobs available in the laundry or cells available on the north wing. Consequently, prison officials were required to exercise their discretion to properly allocate these positions and maximize the efficient and safe operation of the A and T facility. The equal protection clause cannot be deemed to preclude responsible administrative classification to further legitimate objectives. The decision of prison authorities in regard to where the appellants should be housed served the legitimate goals of protecting the welfare of the protective custody inmates and ensuring the efficient operation of the prison laundry by preventing intermingling of those inmates with demonstrated behavioral problems with the rest of the prison population.
Morris v. Raines, 220 Kan. 86, 551 P.2d 838, is an analogous case in which an equal protection challenge was denied. There it was said:
. . There is no showing that any of the so-called discriminations are based on unreasonable or prohibited class distinctions or that they are other than reasonably necessary distinctions for the orderly administration of the prison and the welfare of the prisoners. . . . They simply do not rise to the level of unconstitutional discrimination.” Id. at 87, 551 P.2d at 839.
We hold that in the instant case the conditions of confinement to which the appellants are subjected do not rise to the level of unconstitutional discrimination in violation of equal protection guarantees.
The appellants’ third point on appeal is that the district court erred as a matter of law in finding habeas corpus is not a proper proceeding to raise the issue of crediting appellants’ accounts with forced savings accrued under the provisions of K.S.A. 1974 Supp. 75-5211.
A “forced savings” procedure implemented in 1957 remained essentially unchanged until the enactment of K.S.A. 1975 Supp. 75-5211. (1957 Kan. Sess. Laws, Ch. 473, Sec. 1.) K.S.A. 1974 Supp. 75-5211 upon which the appellants rely was the last enactment providing for this forced sayings procedure. Under this procedure, five cents per day of confinement was withheld from a convict’s earnings to be paid him only upon release. The remainder of what he earned was credited to his account for his immediate use in such manner and for such purposes as were authorized by the warden. On and after July 1,1975, the five cents per day was no longer withheld from an inmate’s earnings. All of his earnings are now credited to his account for his immediate use, and upon his release, he may be provided with a gratuity of up to $250 dependent upon individual need. K.S.A. 1975 Supp. 75-5211.
Department of Corrections Administrative Procedure No. 134 was promulgated to effect the change in the law. It provides that every inmate who was incarcerated prior to July 1, 1975, is entitled to the full amount of his sayings at the rate of five cents per day pursuant to law without any deductions. It also sets out guidelines for the determination of need which fixes the amount of the gratuity due an inmate upon his release. This amount is then reduced by the amount of accumulated forced savings due the inmate.
In the court below, the appellants argued Administrative Pro cedure No. 134 wrongly deprived them of their “forced savings” under former statutes. They argued the amount of their forced savings should be credited to tbeir account for their immediate use and should not be subtracted from the gratuity due them upon release. The district court ruled that a habeas corpus action is not a proper proceeding to raise the issue of crediting the appellants’ accounts with forced savings.
The appellants contend the district court’s failure to reach the merits of their claim was error on the theory that the alleged wrongful retention of money and failure to immediately credit their accounts with the forced savings is a “condition of confinement” properly cognizable in a habeas corpus action. Hamrick v. Hazelet, 209 Kan. 383, 497 P.2d 273. They also contend that to require a separate action on the forced savings issue would cause unnecessary duplicity. In support of their contention, the appellants note K.S.A. 60-102 mandates that provisions of the code “shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding.” They further note K.S.A. 60-1505(d) provides that the court entering judgment in a habeas corpus proceeding “may make such other orders as justice and equity . . . may. require.”
The appellee recognizes that the writ of habeas corpus may be utilized by an inmate to challenge the legality of the conditions of his confinement and to seek equitable relief therefrom (Levier v. State, supra; Hamrick v. Hazelet, supra), but argues that the use of the remedy does not extend to seeking monetary relief. The appellee notes that the appellants’ claim seeks monetary relief in the form of the immediate crediting of their accounts with their prior savings for their present personal use. Therefore, the appellee contends the claim is not jurisdictionally cognizable under habeas corpus.
The appellee also argues that appellants’ broad interpretation of K.S.A. 60-1505(d) is misplaced. The appellee contends the statutory provisions authorizing the court to make such orders “as justice and equity . . . require” merely confer the traditional power upon the court to employ its equitable powers in awarding appropriate relief in habeas corpus proceedings. Appellee notes a similar provision in 28 U.S.C. Sec. 2243 of the federal habeas corpus laws authorizing the court to “dispose of the matter as law and justice require” has never been interpreted to authorize monetary relief.
While equitable principles govern a habeas corpus proceeding (39 C.J.S. Habeas Corpus Sec. 6 [1976]), it is a legal, not an equitable, remedy. Preiser v. Rodriguez, 411 U.S. 475,36 L.Ed.2d 439, 93 S.Ct. 1827. Habeas corpus is an extraordinary legal remedy, and it should not be used when relief may be obtained by ordinary procedure. 39 C.J.S. Habeas Corpus Sec. 6 (1976). Without question, habeas corpus is not an appropriate or an available remedy in federal courts for a state prisoner seeking damages. Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct. 2963; Preiser v. Rodriguez, supra. Neither is it a proper remedy for presenting a prisoner’s claim that his money has been wrongfully taken and retained by a penal institution. Konigsberg v. Ciccone, 285 F.Supp. 585 (W.D.Mo. 1968), aff’d, 417 F.2d 161 (8th Cir. 1969), cert. denied, 397 U.S. 963, 25 L.Ed.2d 255, 90 S.Ct. 996 (1970).
In our cases recognizing that “conditions of confinement” are cognizable in a habeas corpus action, the conditions challenged were mistreatment in the context of living conditions and disciplinary measures. Levier v. State, supra; Hamrick v. Hazelet, supra. The same is true of the United States Supreme Court cases recognizing challenges to conditions of confinement are jurisdictionally cognizable in a federal habeas corpus action. Wilwording v. Swenson, 404 U.S. 249, 30 L.Ed.2d 418, 92 S.Ct. 407; Johnson v. Avery, 393 U.S. 483, 21 L.Ed.2d 718, 89 S.Ct. 747. We are not disposed to expand “conditions of confinement” cognizable under habeas corpus to encompass the instant claim alleging wrongful retention of money. We therefore hold the district court correctly ruled that habeas corpus was not a proper proceeding to raise the issue of crediting the appellants’ accounts with forced savings accrued under provisions of K.S.A. 1974 Supp. 75-5211. Because this action is not jurisdictionally cognizable under habeas corpus, we do not reach the merits of appellants’ claim.
The appellants’ final contention is that the district court erred in not ordering that employment opportunities be provided them in accordance with K.S.A. 1975 Supp. 75-5211. The appellants read this statute as mandating the Secretary of Corrections to provide inmates with institutional employment.
K.S.A. 1975 Supp. 75-5211 provides in pertinent part:
“. . . The secretary of corrections shall provide employment opportunities, work experiences, educational or vocational training for all inmates capable of benefiting therefrom.” (emphasis added)
The appellee contends, and we agree, that the statute gives the Secretary some discretion. The statutory discretion conferred upon the Secretary accords with the legislative intent to leave the internal management and operation of the state correctional system to the sound discretion of the Secretary. The only possibility of employment for protective custody inmates in A and T Building is work in the laundry. There are more protective custody inmates than jobs. Inmates with the best work records and behavior are employed in the laundry. We do not sit to second guess the apparent determination by prison officials that the appellants would not benefit from employment in the laundry because of their lack of desire to properly perform the duties and because of their disruptive effect upon other inmates.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by the claimant-appellant, Cleveland Crow, from adverse determinations in two interrelated workmen’s compensation actions which were consolidated for trial by the court below. The first case, docketed in the district court, was an appeal by the respondent-appellee, city, a self-insurer under our Workmen’s Compensation Act (K.S.A. 44-501, et seq. [now 1976 Supp.]), from an award of the director granting claimant a fifty percent permanent partial general bodily disability. The trial court reversed that award finding there was no permanent disability which arose out of and in the course of the claimant’s employment. The second case filed in the court below was an action by claimant under K.S.A. 44-512a [now 1976 Supp.], for the city’s failure to pay compensation within twenty days after written demand for the same had been made by claimant.
The claimant was employed by respondent city as a helper on a sanitation truck, a job he had held for over twenty years. On June 10, 1974, claimant accompanied the truck driver, Raymond Newell, to the City Ice Dock where they were to pick up trash. Newell backed the truck up to a concrete loading dock, whereupon claimant climbed on the dock and dumped several trash barrels into a hopper at the rear of the truck. Newell testified he then drove the truck up an incline and stopped it a short distance away from the loading dock so that some trash, which had fallen at the base of the dock, could be picked up. While claimant was picking trash off the ground, Newell’s foot slipped off the brake and the truck rolled back, pinning claimant against the concrete loading dock. Hearing the claimant yell, Newell pulled the truck forward whereupon claimant fell to the ground. He was rendered unconscious from the accident and fall. Newell testified he told a man at the ice dock to call an ambulance for the claimant and then reported the accident to the city sanitation office.
Claimant was taken to St. Francis Hospital where he was examined in the emergency room by Dr. George J. Farha, a surgeon. Dr. Farha testified the claimant had severe abdominal pain and appeared to be in some type of shock. Exploratory surgery was performed by Dr. Farha because of suspected bleeding in the abdomen as a result of the accident. Dr. Farha testified in pertinent part:
“. . . We explored him and found a tear in the mesentery. Because of that we had to resect a foot or so of the small intestine. This should have no effect on his function or physiological health.
“Once the incision has healed, after two months or so, he should be able to go back to heavy lifting. A similar job, if there are no other injuries.
“I did not see Mr. Crow after he was released from the hospital on June 25, 1974. We usually release people to return to work 9 or 10 weeks after surgery if they have done well. I don’t see them again.
“Mr. Crow was to see Dr. Kneidel for disability of the hip. I released him to return to work on October 10, 1974. My release to return to work would go along with Dr. Kneidel. Usually, people with abdominal surgery who had an excellent course in the hospital for two weeks, they are allowed to go to work.
“My abdominal surgery would have no effect on a patient’s back.”
Dr. Thomas W. Kneidel, a Board Certified Orthopedic Surgeon, also examined claimant in the emergency room. Concerning this examination, Dr. Kneidel testified:
“I first saw Mr. Crow on June 10, 1974 in the emergency room of St. Francis Hospital. I again saw him on June 11, 1974. Mr. Crow’s complaints at that time, aside from soreness from abdominal surgery, were tenderness around the iliac crest or the waistline area on the left side of the hip and some pain with motion at the hip joint. There was no neurologic deficit in the left leg, no evidence that a nerve was pinched or not funtioning.
“A series of x-rays were taken which showed a fracture of the wing of the ilium on the blade of the iliac bone. It extended from the upper margin where the stomach muscles attach through the wing of the ilium to the greater sciatic notch. There was no involvement of the hip joint.
“I felt this was an undisplaced non-weight bearing fracture and it could be treated by keeping the patient off weight-bearing.
“I saw Mr. Crow each day in the hospital, and subsequently saw him on July 10, 1974. At that time he had complaints of some pain around the left hip area. Examination revealed a good range of motion in his hip joint and no specific tenderness over the fracture area. X-rays show progressive healing and satisfactory alignment of the fracture.”
After claimant was released from the hospital on June 25, 1974, Dr. Kneidel continued to see claimant on a monthly basis. Concerning an examination of claimant in August of 1974 Dr. Kneidel testified:
“Mr. Crow did not have any complaints concerning his lower back on August 6, 1974.
“X-rays taken in August show marked degenerative changes in the lower lumbar spine, including large spur formations and calcifications outside the disc spaces at the L3-4, L4-5 and L5-S1 level. These are degenerative arthritic changes, wear and tear type of arthritis. These degenerative changes antedated the accident and, although Mr. Crow was a very poor historian, he never made any complaints about his back.”
Dr. Kneidel’s final examination of claimant was on October 3, 1974, about which he testified:
“. . . Upon physical examination the patient was able to walk without support, had a full range of motion in his hip and x-rays taken at the time showed complete healing of the fracture. I released Mr. Crow to return to regular work.”
Dr. Kneidel further testified concerning his final examination of claimant that insofar as objective physical findings were concerned, claimant should have been able to return to work on a trash hauler and that the accident did not in any way diminish claimant’s ability to perform the type of work that he was doing at the time of the accident. On cross-examination Dr. Kneidel admitted that an injury such as claimant’s could have aggravated a preexisting condition, but he concluded his testimony by indicating that based on complaints received from claimant, physical findings made, history taken from claimant and treatment of him there was no evidence that he had suffered an injury to his lower back.
Claimant returned to work shortly after his October 1974 examination by Dr. Kneidel. Claimant and the truck driver, with whom he was working, testified that he was unable to do any lifting. Claimant testified that after several days of trying to work at his old job his supervisor advised him the city had no jobs he could perform and claimant was placed on an early retirement pension of the city’s retirement plan.
Claimant went to see Dr. Daniel Thompson, a physician and surgeon who testified that he was certified by the Board of Family Practice, but had never had any orthopedic training. Dr. Thompson examined claimant and described his findings in these words:
“I saw Mr. Crow only one time, on November 12, 1974. He gave me a history of having been run over by a truck six or seven months prior to the time he was here. He stated that Dr. Farha did exploratory surgery for internal injuries. At the time he was here, he was complaining of pain in his back and pain in his left hip. He was here because he stated that he was unable to carry on his job and unable to lift barrels. He stated that he was unable to stoop over, that he had pain down his left leg when he did stoop, that there was some stiffness in the left leg and that his abdomen was sore and he was constipated.
“Upon examination, I made the following findings: The abdomen was still tender to palpation, with no masses or hernias; there was an absent reflex on the left, but I don’t know whether it is the leg or what, I suspicion it’s the left leg. The reflexes on the right were all normal. The reflexes on the right were hyperactive. There was little motion in the lower back and marked spasm in the paraspinal muscles. There was no limitation on bending to either side, but marked limitation on forward bending.
“The x-rays showed three narrow interspaces, some scoliosis of the lumbosacral spine, numerous osteophyte formations, a sort of calcified ligament between the vertebra.
“One further finding was that there was a little atrophy on the left leg.”
Dr. Thompson concluded that claimant’s injuries were the direct result of the accident and as to disability testified:
“For any kind of job in the labor market, I would say his disability is 25 to 35%. As to his ability to perform his job with the City, I don’t think he would be able to do that at all. From that type of work he would have 100% disability.”
Based upon the depositions of the three doctors, plus the testimony of claimant, his supervisor, and the truck driver, the examiner found that the claimant had a fifty percent permanent partial disability to the body as a whole as a result of the accident in question. The award ordered respondent to pay $3,473.80 in one lump sum and the balance of $14,543.10 was ordered paid at the rate of $42.90 per week for 339 weeks or until further order of the director. No review by the director was requested and an order approving the examiner’s award of $17,104.66 was entered by the director and filed on December 8, 1975.
Thereafter, on December 9, 1975, the city filed a notice of appeal to the district court. During the pendency of this appeal, a bond was filed as required by K.S.A. 44-556 [now 1976 Supp.]. However, it was stipulated that compensation was not paid by the city by December 28, 1975; that demand was duly made by the claimant on the city for payment of compensation; that this written demand was received by the city on January 8, 1976; and that no compensation was paid pursuant to 44-556 by January 28, 1976.
After demand and default by the city, on February 2, 1976, claimant filed an action pursuant to 44-512a seeking to accelerate all amounts awarded by the director and praying for judgment in the sum of $17,104.66, plus additional medical expenses.
Upon motion of the city, its appeal in the original compensation action was consolidated for hearing with the claimant’s 44-512a action. This consolidation was made over objection of the claimant. On April 8, 1976, claimant moved for summary judgment in his 44-512a action for the entire amount of the award of the director. The trial court sustained this motion in part holding:
“. . . [T]hat the motion for summary judgment should be sustained insofar as it relates to the compensation due for the ten weeks prior to the Director’s award entered on December 8, 1975, and the following 17.3 weeks to the date of hearing, April 8,1976, pursuant to K.S.A. 44-556. Said judgment should be for the total of 27.43 weeks at the rate of $42.90 per week, as set forth in the Director’s award, or a total sum of $1,176.75.”
The trial court thereafter reviewed the transcripts and depositions furnished in the original compensation appeal. After hearing arguments on this matter, the court ruled in pertinent part as follows:
“. . . That the credible medical evidence indicates that the injuries suffered on June 10, 1974 were to the abdomen and to the left hip; that there was no back injury which can be related to the accident on June 10,1974; that the testimony of Daniel Thompson, M.D., is speculative; and that the plaintiff has not carried his burden of proof by a preponderance of the credible evidence that he suffered a back injury in the accident of June 10, 1974, which would disable him from further employment as a trash hauler. The Court further finds that the Examiner’s award was in error and that there is no disability which arose out of and in the course of the plaintiff’s employment with the City of Wichita, Kansas, and the appeal of the City should be sustained and the finding entered that there is no disability as a result of this accident.”
In claimant’s appeal to this court from the disposition of the 44-512a action the following contentions are raised for our consideration:
“1. The trial court erred, as a matter of law, in holding that under K.S.A. 1973, Vol. 3a, 44-512a appellant is entitled only to compensation through the date of hearing since pursuant to said statute appellant was entitled to the full amount of compensation in the sum of $17,104.66.
“2. The District Court’s construction of K.S.A. 1973, Vol. 3, 44-512a and 44-556 was arbitrary and capricious and thus violated appellant’s right to due process guaranteed by the Fourteenth Amendment of the United States Constitution and Section 18 of the Kansas Bill of Rights.
“3. The trial court erred in consolidating appellant’s action with Appellee’s appeal for the reason that the issues were fundamentally dissimilar and that such consolidation prejudiced appellant’s right to a fair adjudication and constituted an abuse of judicial discretion.
“4. The trial court erred in hearing respondent-appellee’s appeal since a correct interpretation of K.S.A. 1973, 44-512a would have rendered the appeal moot.”
In his appeal from the adverse determination in the original compensation case, claimant has also specified four points on appeal, two of which are identical to points Nos. 3 and 4 in the 44-512a appeal. The two remaining contentions are stated by the claimant as follows:
“1. There was no substantial competent evidence to support the trial court’s finding that no disability arose out of and in the course of appellant’s employment.
“2. The District Court’s findings with respect to the issue of disability were capricious in that such were manifestly contrary to the weight of the evidence and hence such arbitrariness constituted a violation of appellant’s right to due process.”
Contentions Nos. 1, 2 and 4 in claimant’s appeal from the 44-5l2a action may be treated together. The central issue involved in these points is whether the trial court properly applied K.S.A. 44-512a (1974 Supp.) which became effective on July 1, 1974, ten days after claimant’s accident. Claimant took the position in the court below and maintains it on appeal that his 44-512a action is governed by the prior law; that the trial court decided the case under the old law, but erroneously applied it and, as he indicates in his point 4, if his position prevails, application of the provisions of the old law 44-512a would render moot the compensation case; and that his award, as approved by the director, would stand. In support of his position claimant contends the trial court misconstrued the import of Griffith v. State Highway Commission of Kansas, 203 Kan. 672, 456 P. 2d 21; and Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, 466 P. 2d 344. Respondent city, on the other hand, says that the new (1974) law controls, that this was its position before the district court and was the basis for the court’s decision.
The amendments to 44-512a, enacted in 1974, effected significant changes. (Kelly v. Phillips Petroleum Co., 222 Kan. 347, 566 P.2d 10.) Under the former law, failure by the employer to pay compensation when due, as provided in the act, caused “the entire amount of compensation awarded, agreed upon or adjudged” to become immediately due and payable. In place of acceleration of the entire award, the new act causes only past due compensation to become immediately due and payable and provides for certain civil penalties to be assessed by the director against the employer. The new act also provides for the allowance of reasonable attorneys’ fees incurred in connection with a 44-512a action. In its remarks from the bench and in the formalized journal entry of its decision, the trial court mentions K.S.A. 44-512a, but it does not specifically explain whether the old or new law was relied upon. The court overrruled claimant’s motion for summary judgment for the sum of $17,104.66, which, apparently, was filed pursuant to the old 44-512a. The court did sustain the motion in part, as to past due compensation. The court ruled:
“. . . [IJnsofar as it relates to the compensation due for the ten weeks prior to the Director’s award entered on December 8, 1975, and the following 17.3 weeks to the date of hearing, April 8, 1976, pursuant to K.S.A. 44-556. Said judgment should be for the total of 27.43 weeks at the rate of $42.90 per week, as set forth in the Director’s award, or a total sum of $1,176.75.”
The trial court’s decision in this regard is in line with the provisions of 44-512a (1974 Supp.) the new act. Whether the trial court failed to cite the proper statutory supplement in its journal entry, or even if it might have attempted to apply the former 1961 statute and then misconstrued it, is of no consequence if its decision achieved the correct result. Our long standing rule in this regard was restated in the recent case of Kirkpatrick v. Seneca National Bank, 213 Kan. 61, 515 P. 2d 781, wherein we held:
“The judgment of a trial court is to be upheld, if it is correct, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” (Syl. 3.)
See, also, Owens v. City of Bartlett, 215 Kan. 840, 528 P. 2d 1235; and Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858.
The claimant vigorously argues that the new act affects his substantial rights and to give it effect here would be retrospective application. Neither argument of claimant can be maintained. It has long been settled law in this jurisdiction that the basic thrust of 44-512a is remedial in nature. Moreover, application of the 1974 amendments to this case is not retrospective.
The nature and purpose of 44-512a in a context similar to that presented herein was first considered in Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860. Ellis had been injured in 1942 and the award of the commissioner (now director) had been finalized on March 23, 1943. The new law (44-512a) became effective March 23,1943. The respondent in the Ellis case did not pay any compensation, and in November of 1943 a demand letter was sent pursuant to the new statute. Respondent did not pay in response to the demand letter and claimant filed an action under the then new 44-512a statute. The trial court applied the new statute and rendered a lump sum judgment for claimant as prayed for. The respondent appealed. In affirming the judgment on appeal the Ellis court identified the issues in terms identical to those presented in the case at bar. The court said:
“. . . The basic legal questions involved are, first, whether the 1943 lump-sum-judgment law was intended to apply to a judgment previously rendered but in which default in the payment of compensation installments was made after the enactment of the new law, and second, if the new law is held to be applicable is it retroactive in character and therefore invalid on the ground it interferes with vested rights.” (pp. 216-217.)
Further in the opinion the court declared there are no vested rights in any remedy citing Dobson v. Wilson & Co., Inc., 152 Kan. 820, 107 P. 2d 676.
After deciding that 44-512a was procedural and remedial in nature the Ellis court addressed the matter of prospective-retrospective application. The court reasoned that the remedy under 44-512a did not become operative until the act of default on the part of respondent which occurred after the effective date of the new act. Thus, application thereof was prospective. In this connection the court concluded:
“. . . In concluding the new law was intended to apply to installment payments which became due and payable after the effective date of the new law we are not applying the new law retroactively but prospectively with respect to defaults in the payment of such installments.” (pp. 217-218.)
In the case at bar the claim for compensation was filed after July 1, 1974. The examiner’s award was not entered until November 1975 and the act of default did not occur until 1976. Following the rationale that the time of default determines the remedy applicable, K.S.A. 1974 Supp. 44-512a must be applied to this case.
The principle that 44-512a is remedial in character and intended to supplement existing remedies, as enunciated in Ellis, has been recognized in numerous subsequent cases. (See, Kraisinger v. Mammel Food Stores, 203 Kan. 976, 457 P. 2d 678; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267; and Babcock v. Dose, 179 Kan. 298, 293 P. 2d 1007.)
In the recent case of Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 552 P. 2d 998, this court found that the 1974 amendment to K.S.A. 44-528 (a) [now 1976 Supp.], which gave a workman a right to review where none existed under the previous law, affected vested or substantive rights and could not be applied to a case where, at the time the amendment became effective, the award had been finally adjudicated. However, the different effect of remedial or procedural amendments to the act was pointed out in Eakes, by our holding:
“Amendments to the workmen’s compensation act which are merely procedural or remedial in nature, and which do not prejudicially affect substantive rights of the parties, apply to pending cases.” (Syl. 2.)
In the case at bar, claimant also argues that K.S.A. 1974 Supp. 44-505 (c) [now 1976 Supp.] supports his position. The statute reads:
“(c) This act shall not apply in any case where the accident occurred prior to the effective date of this act. All rights which accrued by reason of any such accident shall be governed by the laws in effect at that time.”
The answer to claimant’s arguments in this regard is that no rights vested or accrued to him under 44-512a until after service of his demand letter and the respondent’s subsequent default. Respondent’s default occurred long after the effective date of the new amendment.
While applicability of the 1974 amendments to 44-512a was not the critical issue in Kelly v. Phillips Petroleum Co., supra, we noted, in considering the sufficiency of a demand letter dated August 23,1974, that the new act was then applicable to a 44-512a action even though the accident occurred in 1968 and compensation proceedings were commenced in 1969. In Kelly all of the compensation, in question, was past due, thus, application of the new act did not affect the result.
In points 1 and 2 in his appeal in the 44-512a action, claimant contends the trial court erroneously applied the old law in its decision. In view of our holding that the 1974 amendments are applicable, claimant’s arguments and response thereto by respondent need not be considered.
In point 3, claimant claims error in the consolidation of the two actions for hearing before the trial court. Claimant fails to show how he was prejudiced nor does he cite any authority in support of his position. While a 44-512a action is separate and distinct from a compensation proceeding, the two actions, when stemming from the same accidental injury, are interrelated. It is frequently the case that a 44-512a judgment supersedes the director’s award and will render moot an appeal in the compensation action. (See, Kelly v. Phillips Petroleum, Co., supra; and Griffith v. State Highway Commission of Kansas, 203 Kan. 672, 456 P. 2d 21.) In Kelly this court ordered consolidation of the two cases on appeal. In the absence of a showing of actual prejudice we see no reason why the two actions should not be consolidated; in fact, it would appear to be the better practice. In finding no error in consolidation we are not relying upon K.S.A. 60-242 (a) authorizing consolidation in civil actions. The rule is firmly established that the Workmen’s Compensation Act is complete and exclusive within itself in establishing procedures covering every phase of the right to compensation, and such procedures are not subject to supplementation by rules borrowed from the Code of Civil Procedure. (Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P. 2d 1274; and Kissick v. Salina Manufacturing Co., Inc., supra.)
We turn now to claimant’s contentions in his appeal from the trial court’s ruling in his compensation case. From the testimony heretofore recited the conflict in the medical testimony readily appears. The principal point in dispute is whether claimant suffered injury to his lower back.
This court’s limited scope of review in workmen’s compensation has long been established. Under K.S.A. 44-556 (c) [now 1976 Supp.] appellate jurisdiction is limited to questions of law. The question whether a district court’s judgment is supported by substantial evidence is one of law. (Reichuber v. Cook Well Servicing, 220 Kan. 93, 551 P. 2d 810; and Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108.) If, when viewed in the light most favorable to the party prevailing below, there is substantial evidence to support the district court’s factual findings, this court is bound by those findings and we have no power to weigh the evidence or reverse the final order of the court. (Reichuber v. Cook Well Servicing, supra; and Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P. 2d 313, and cases cited therein.) The term “substantial evidence,” when applied to the workmen’s compensation cases, means evidence possessing something of substance and relevant consequence, or evidence which furnishes a substantial basis of fact from which the issues presented can be reasonably resolved. (Drake v. State Department of Social Welfare, 210 Kan. 197, 499 P. 2d 532.) Although this court may feel the weight of the evidence, as a whole, is against the findings of fact, made by the district court, it may not disturb those findings if they are supported by substantial competent evidence. (Jones v. City of Dodge City, supra.)
After examining the evidence in the instant case, the trial court found that claimant had no back injury which could be related to the accident. Concerning the medical testimony, the court observed:
“. • . I cannot place very much weight on the testimony of Dr. Thompson at all. I don’t think he had the facts. I don’t buy his conclusions. His testimony in general just seems speculative to me. The court finds that the claimant made no complaints of any back injury or back pain until he saw Dr. Thompson.
Dr. Kneidel was the treating physician. He saw claimant every day while he was in the hospital and examined him at least three times after his release from the hospital. He found degenerative changes in claimant’s lumbar spine, but since there were no objective symptoms, no treatment was prescribed or given. Dr. Kneidel further explained that the changes and osteophyte spur formations found were not caused by the accident as they take at least six to nine months to form and they appeared in x-rays taken in August of 1974, less than two months after the accident. Dr. Kneidel did feel that claimant was disabled, but attributed it to alcoholism. Dr. Kneidel noted that claimant sustained an episode of delirium tremens while hospitalized and that he repeatedly smelled of alcohol during subsequent office visits. Dr. Kneidel was positive in his medical opinion that claimant had suffered no injury to his lower back.
Dr. Thompson, on the other hand, saw claimant only once. He made definite statements concerning his disability and the causes, but retracted to some extent by admitting that he had not examined x-rays taken in the hospital and did not know whether claimant’s spine condition was of long or short term duration. Dr. Thompson also admitted that he could not specifically relate the spurring condition, which he found, to claimant’s accident on June 10, 1974.
It is the prerogative and duty of the trial court to consider and weigh every part of a witness’s testimony and to give it such credence and weight as in the court’s judgment it deserves. It is not for an appellate court to say what testimony should be given credence or what evidence should be disbelieved. (Deines v. Greer, 216 Kan. 548, 532 P. 2d 1275; and Vocke v. Eagle-Picher Co., 168 Kan. 708, 215 P. 2d 185.) The testimony of Dr. Kneidel is sufficient in itself to provide the substantial evidence required to support the trial court’s findings. (See, Scott v. Day and Zimmerman, Inc., 215 Kan. 782, 529 P. 2d 679.)
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The opinion of the court was delivered by
Prager, J.:
The issue to be determined in this case is whether the direct sale of natural gas to five Kansas municipalities by the Cities Service Gas Company, an interstate pipeline company, is within the jurisdiction of the Kansas State Corporation Commission.
Cities Service is an interstate natural gas company as defined by and subject to the provisions of the Natural Gas Act, 15 U.S.C.A. § 717. It purchases gas from producers and other interstate natural gas pipeline companies in the states of Texas, Oklahoma, Kansas, and Missouri, and transports such gas through an integrated interstate network of pipelines to and through all of such states and to the state of Nebraska, where such gas is sold to distributors for distribution and public consumption. These sales are commonly called “sales for resale” and are made by Cities Service under Federal Power Commission tariffs to each of the municipalities, which in turn distribute and sell such gas to the residents of such municipalities. These sales for resale are not the subject of these proceedings. In addition to sales for resale, Cities Service sells natural gas for direct consumption to selected customers located on or near its pipelines in all of these states. Among its direct sales customers in Kansas are the cities of Iola, Chanute, Garnett, Neodesha, and Osage City. Such direct sale gas is used by the municipalities for the generation of electricity in the electric power plants owned and operated by the municipalities. It is these sales over which the commission seeks to assert jurisdiction.
It is undisputed that the direct sales made by Cities Service in the state of Kansas are of substantial volume. None of these direct sales are at the present time regulated as to the rates charged by either the Federal Power Commission or the Kansas corporation commission. The record discloses that in 1972 Cities Service had total system sales of $167,106,420 of which sales in Kansas amounted to $95,008,922. Approximately fifty-six (56) percent of Cities Service’s total business is conducted within the state of Kansas and slightly less than one-half of the total business in Kansas was derived from the unregulated direct sales. Cities Service has 5,329 miles of pipeline of which approximately 3,000 miles exist in the state of Kansas. In 1972 of its total customers in Kansas there were 1,068 direct sales customers as compared with 471 sales for resale customers. Over sixty-two (62) percent of the total value of Cities Service’s property, plant, and facilities is located in the state of Kansas. It is obvious from these statistics that we are dealing with hundreds of sales representing millions of dollars of unregulated direct sales in Kansas. The five municipalities involved in this case purchase gas by direct sales to serve about 26,000 of their citizens.
In July 1972, the five municipalities filed a complaint with the Kansas corporation commission requesting the commission to accept jurisdiction over direct sales of gas made by Cities Service to the municipalities. After denial of Cities Service’s motion to dismiss, an evidentiary hearing was held before the commission. On June 18,1974, the commission determined that the direct sale of such gas to the municipalities constituted a public utility function as defined by K.S.A. 66-104 and ordered Cities Service to apply to the commission for a certificate of public convenience and necessity for such sales and to file with the commission for approval its tariff for such sales or the contracts under which such sales were made. Cities Service filed its application for rehearing. In response thereto the commission adhered to its original rulings but modified certain of its findings of fact and conclusions of law. As modified on rehearing the pertinent findings and conclusions were as follows:
FINDINGS OF FACT
The commission finds:
1. That the matter has come before the state corporation commission of the state of Kansas pursuant to a complaint filed by the cities of Iola, Chanute, Garnett, Neodesha, and Osage City, Kansas, against Cities Service Gas Company (Cities Service) alleging, among other things, that the commission should regulate the rates at which Cities Service sells gas on a direct sales basis to the complainants.
5. That complainants in this matter are five Kansas communities having an aggregate population of 26,000 or more; that all of said complainants purchase natural gas from Cities Service, the respondent herein, via direct sales.
6. That complainants are buying natural gas from Cities Service on a “take-it-or-leave-it” basis; that complainants are buying the gas as Cities Service dictates; that Cities Service makes, amends, and cancels contracts as they desire with complainants having no say as to terms or price.
7. That Cities Service is the only supplier of natural gas in the area; that although there is a distributor certificated in the area (Gas Service Company), such distributor cannot get gas to service complainants; that the distributor certificated in the area is supplied gas by Cities Service.
8. That gas wholesaled by Cities Service to Gas Service Company is being sold by Gas Service Company to customers similar to complainants for like uses at prices less than what complainants are being required by Cities Service to pay via direct sales.
9. That complainant’s average price per Mcf is higher than the average for all direct sales; that Cities Service’s own evidence reflects this has been true for the last ten years.
10. That the possibility of complainants using other fuels is nil, so there are no effective competitive forces in the market place that would tend to help ameliorate the cost of gas sold via direct sales.
11. That complainants have no recourse against Cities Service through the Federal Power Commission should they wish to challenge prices above the minimum price approved by Federal Power Commission of the contracts involved; that the evidence shows that no governmental body, federal or state, is currently regulating the rates at which Cities Service makes direct sales of natural gas in Kansas other than minimum prices set by the Federal Power Commission.
12. That there were no indicated instances where the Federal Power Commission has intervened to review the contracts at which Cities Service sold natural gas via direct sales or involved itself with the rates on direct sales.
13. That Cities Service is a corporation that owns, controls, operates, and manages equipment, plant, and generating machinery for the conveyance of gas through pipelines existing in Kansas for the purpose of conveying gas in and through parts of Kansas; that Cities Service does operate pipelines (approximately 3,008 miles) in the state of Kansas for the general commercial supply of gas for heat and energy; that Cities Service property, plant, and facilities include numerous gas storage fields, compressor stations, gathering and transmission lines, and supplies of gas in Kansas.
14. That Cities Service obtains greater than one half of its total revenues from business transacted in Kansas; that approximately one half of the Kansas revenues are attributable to direct sales of natural gas; that the rates on all direct sales in Kansas, industrial, residential and commercial, are unregulated except for the approval of the minimum price by the Federal Power Commission; that these direct sales by Cities Service encompass a great variety of Kansas citizens, businesses, and organizations including but not limited to churches, schools, residences, farms, and military installations.
15. That Cities Service has exercised its rights of eminent domain to build pipelines in Kansas for the general commercial supply of gas to be sold as energy for heat and other purposes in Kansas and elsewhere; that such right is granted to Cities Service pursuant to K.S.A. 17-618 which stems from Cities Service being an interstate pipeline facility for the purposes of serving the public generally in Kansas and elsewhere. That Cities Service delivers more than 540 million Mcf of gas per year, more than half of which is sold in Kansas.
CONCLUSIONS OF LAW
The commission concludes:
1. That the state corporation commission of the state of Kansas, pursuant to K.S.A. 66-101, has the power, authority, and jurisdiction to supervise and regulate public utilities and common carriers doing business in Kansas.
2. That K.S.A. 66-104 defines the term “public utility” among other things, as “every corporation, . . . that now or hereafter may own, control, operate or manage . . . any equipment [or] plant . . . for the conveyance of oil and gas through pipelines in or through any part of the state, except pipelines less than fifteen (15) miles in length and not operated in connection with or for the general commercial supply of gas or oil . . .”
3. The commission in its original order stated that K.S.A. 66-105 defines the term “common carriers” to include pipeline companies. On rehearing the commission deleted conclusion of law No. 3, thus eliminating any reference to a pipeline company as a common carrier as a basis for the commission’s taking jurisdiction over Cities Service in this proceeding.
4. That Cities Service has on at least one occasion claimed the status of public utility in order to afford itself eminent domain rights under K.S.A. 17-618.
5. That Cities Service cannot now be heard to disclaim public utility status when it has previously elected to utilize said status.
6. Cities Service is a public utility as defined by K.S.A. 66-104 and that the state corporation commission of the state of Kansas has the power, authority, and jurisdiction to supervise and regulate the rates charged by Cities Service above the minimum set by the Federal Power Commission for direct sales of natural gas in Kansas. (The reference to Cities Service as a common carrier in the original finding was deleted.)
7. That K.S.A. 66-101 is not mandatory in its language. The absence of regulatory acts affecting Cities Service in the past does not preclude the commission from now acting upon its authority. The fact that the commission has not previously regulated a particular aspect of its jurisdiction does not negate the present exercise of that jurisdiction.
8. That Cities Service is an interstate pipeline company operating its property to sell natural gas to the citizens of Kansas and also in other states both through sales for resale and direct sales.
9. That Cities Service’s business of selling gas via direct sales to schools, churches, cities, military installations and others, is a business affected with a high degree of public interest.
10. That the Kansas Corporation Commission has the duty to protect the final or ultimate natural gas customer regardless of the status of the seller of such gas.
11. That the nature of Cities Service’s business, the manner in which it conducts the same, the limited competition, and its control over the supply of gas, has clearly demonstrated a need for regulation of the rates charged for the direct sale of natural gas to the complainants.
12. That the regulation of the rates on direct sales to complainants is necessary to conserve and insure the best use of natural resources and to protect the public interest generally.
13. That the Natural Gas Act of 1938,15 U.S.C.A. § 717 et seq., exempts direct sales of natural gas from the jurisdiction of the Federal Power Commission as to rates except as to the approval of a minimum rate under the Federal Power Commission’s certification responsibility.
14. That the Natural Gas Act reserves to the states the regulation of rates for direct sales of natural gas.
15. That the exercise of this commission’s rate regulation function as to the determination of rates for direct sales, above the minimum rate set by the Federal Power Commission, does not conflict or infringe upon the jurisdiction preempted by the Fed eral Power Commission. Further, that there is no potential for conflict in jurisdiction between the Federal Power Commission and the Kansas Corporation Commission.
16. That existing regulation by the Federal Power Commission is not such that it will make ineffective this commission’s regulation of the rates on direct sales of natural gas.
17. That the Supremacy and Commerce Clauses of the United States Constitution do not prohibit the states from regulating the rates on direct sales of natural gas, nor do such clauses in any way conflict or inhibit such state regulation.
18. That the Constitution of the state of Kansas neither prohibits nor inhibits the regulation of rates on direct sales of natural gas by the state corporation commission of the state of Kansas.
On the basis of its findings of fact and conclusions of law as modified, the commission entered the following orders:
IT IS THEREFORE RY THE COMMISSION ORDERED:
That Cities Service make application to the state corporation commission of the state of Kansas for a certificate of public convenience and necessity. This order is not to be construed so as to infringe or conflict with any federal authority but is only to apply to the rates charged by Cities Service above the commensurate and similar minimum rates set by the Federal Power Commission that would otherwise be applicable to the direct sale of natural gas to the cities of Iola, Chanute, Garnett, Neodesha, and Osage City, Kansas.
IT IS FURTHER ORDERED: That Cities Service file with the state corporation commission of the state of Kansas rate tariffs for charges made for the direct sale of natural gas to the cities of Iola, Chanute, Garnett, Neodesha, and Osage City, Kansas, or in the alternative, file copies of the contracts under which the direct sale of natural gas is being made to said cities for said commission’s approval within thirty (30) days from this order’s official mailing date.
The commission retains jurisdiction of the subject matter hereof, and of the parties hereto, for the purpose of issuing from time to time such other orders as may be necessary and proper.
Cities Service then filed a timely application for judicial review pursuant to K.S.A. 66-118c. After a hearing the district court of Osage county entered judgment finding that it had jurisdiction of the subject matter and the parties and adopting the findings of fact made by the commission as modified on rehearing. In addition, the district court found Cities Service to be a public utility within the meaning of K.S.A. 1974 Supp. 66-104; that direct sales of gas by Cities Service within the state constituted a business affected with the public interest; and that the exercise of jurisdiction by the commission did not violate the doctrine of federal preemption or impose an undue burden on interstate commerce in violation of the United States Constitution. It further found specifically that the orders of the commission asserting jurisdiction over the rates charged on direct sales of natural gas within the state of Kansas by Cities Service were lawful and reasonable. Cities Service then appealed to this court.
As one of its points on the appeal Cities Service maintains that the commission’s findings of fact and conclusions of law as affirmed by the district court are irrelevant and immaterial to the issue in this proceeding and are not supported by substantial competent evidence. From the entire record before us we have concluded that the findings of fact of the commission and the district court are supported by substantial competent evidence. The issues left to be determined are clear-cut questions of law and as presented resolve themselves into two basic questions: (1) Does regulation by the commission of the direct sales of natural gas involved here constitute an undue burden on interstate commerce and conflict with the exclusive jurisdiction of the Federal Power Commission under the Natural Gas Act, 15 U.S.C.A. § 717, et seq.? and (2) Are direct sales of natural gas made by an interstate natural gas pipeline company to five Kansas municipalities, for electric generation purposes, public utility sales within the provisions of K.S.A. 66-101, et seq.?
DOES REGULATION BY THE COMMISSION OF THE DIRECT SALES OF NATURAL GAS INVOLVED HERE CONSTITUTE AN UNDUE BURDEN ON INTERSTATE COMMERCE AND CONFLICT WITH THE JURISDICTION OF THE FEDERAL POWER COMMISSION UNDER THE NATURAL GAS ACT?
The first issue presented may be disposed of summarily and without extensive comment. In view of the more recent decisions of the Supreme Court of the United States we believe that there can be no doubt that a state regulatory commission may consti tutionally regulate the rates to be charged on direct sales by a natural gas pipeline company to its individual customers within the state. The exact issue presented here was fully considered and determined by the United States Supreme Court in Panhandle Pipe Line Co. v. Comm’n, (Ind.) 332 U.S. 507, 92 L.Ed. 128, 68 S.Ct. 190; Panhandle Co. v. Michigan Comm’n, 341 U.S. 329, 95 L.Ed. 993, 71 S.Ct. 777; and more recently in FPC v. Louisiana Power & Light Co., 406 U.S. 621, 32 L.Ed.2d 369, 92 S.Ct. 1827. In that series of cases the Supreme Court made it crystal clear that the Natural Gas Act of 1938 specifically exempts from regulation by the Federal Power Commission the rates to be charged on direct sales of gas by an interstate pipeline to. its customers and reserved to the states the regulation of direct sales. Under § 1 (b) of the Natural Gas Act (15 U.S.C.A. § 717[b]) Congress drew within its own regulatory power, delegated by the act to its agent the Federal Power Commission, only three things: (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale . . . each being an independent grant of jurisdiction. We find the contention of Cities Service that the Kansas state corporation commission as a state regulatory agency may not constitutionally regulate the rates charged on direct sales of gas by Cities Service in this state to be contrary to existing law. Before leaving this point it is important to emphasize that the Kansas corporation commission in its order recognized the limitations on its power to regulate natural gas companies. In requiring Cities Service to make application for a certificate of public convenience and necessity, the commission states unequivocally that its order is not to be construed so as to infringe or conflict with any federal authority but is only to apply to the rates charged by Cities Service above the minimum rates set by the Federal Power Commission that would otherwise be applicable to the direct sale of natural gas to the five municipalities. The order is further made more specific by requiring Cities Service to file with the commission rate tariffs for charges to be made for the direct sale of gas, or in the alternative, to file copies of the contracts under which the direct sale of natural gas is then being made to the municipalities so as to obtain the commission’s approval. We have no reason to apprehend that the commission intends to invade the exclusive jurisdiction of the Federal Power Commission.
ARE THE DIRECT SALES OF NATURAL GAS BY CITIES SERVICE TO THE FIVE KANSAS MUNICIPALITIES, FOR ELECTRIC GENERATION PURPOSES, PUBLIC UTILITIES SALES WITHIN THE CONTEMPLATION OF K.S.A. 66-101, et seq.?
We must determine whether Cities Service is a “public utility”, within the meaning of the Kansas statutes, in order to give to the Kansas corporation commission jurisdiction to regulate its direct sales of natural gas in this state. On this issue it would be helpful to summarize the basic contentions of the parties. The Kansas municipalities maintain that as direct sales purchasers or users of natural gas from Cities Service, they have been forced to accept Cities Service’s terms without negotiation because there is no other available supply of gas; that the rate charged is left solely to the discretion of Cities Service without any regulatory control by any federal or state regulatory commission; and that because there is no other source of supply of gas, Cities Service operates a monopoly as to the rates charged. They further contend that the direct sale of natural gas by Cities Service is affected with a public concern, welfare, and interest; that the direct sale of natural gas made by an interstate gas company from its facilities located in Kansas to Kansas customers is a public utility function as defined by K.S.A. 66-104 and therefore the state corporation commission has jurisdiction of the same.
Cities Service takes the position that it is engaged in buying, selling, and transporting gas in interstate commerce and since it does not hold itself out as serving the public generally it is not a public utility. It further contends that the commission has jurisdiction only over intrastate commerce and that some of the statutory duties imposed on the commission in its regulation of public utilities will result in a usurpation of the exclusive jurisdiction of the Federal Power Commission. It further relies on the fact that the Kansas public utilities statute was enacted in 1911, has since been amended five times, and that past legislative and administrative interpretations of the statute must lead to the conclusion that the commission has no jurisdiction over direct sale of gas by Cities Service.
The issue presented is one that has resulted in conflicting decisions in other jurisdictions. The courts of several states have interpreted their particular state statute to bring certain interstate gas companies within the definition of a public utility so as to vest jurisdiction in its state regulatory commission to control the rates charged on direct sales within the state. (Gas Co. v. Pub. Util. Comm., 135 Ohio St. 408, 21 N.E.2d 166 [1939]; Public Serv. Comm. v. Panhandle East. Pipeline Co., 224 Ind. 662, 71 N.E.2d 117 [1947]; Panhandle v. Public Service Comm., 328 Mich. 650, 44 N.W.2d 324 [1950].) In each of these cases the statute defined a public utility in broad language, which was construed to include the particular interstate gas pipeline company involved. Other state appellate courts have interpreted their public utilities statutes so as to exclude the jurisdiction of their state regulatory commissions over certain interstate gas pipeline companies. Examples are United Gas Co. v. Miss. Pub. Ser. Comm., 241 Miss. 762, 133 So.2d 521 [1961]; Miss. River Fuel Corp. v. Commerce Com., 1 Ill.2d 509, 116 N.E.2d 394 [1953]; P.U.C. v. Colorado Co., 142 Colo. 361, 351 P.2d 241 [1960].) Most of these cases were split decisions with dissenting opinions and involved state statutes defining a “public utility” in a more restrictive way. In each jurisdiction the state appellate court was required to construe its own state statute defining a “public utility” to determine the jurisdiction of its state regulatory commission.
To resolve the issue in this case it is necessary that we consider carefully the language of the applicable Kansas statutes in order to determine whether an interstate gas pipeline company falls within the statutory definition of a “public utility.” The applicable Kansas statutes in pertinent part provide as follows:
K.S.A. 66-101: “Power, authority and jurisdiction. The state corporation commission is given full power, authority and jurisdiction to supervise and control the public utilities, . . . doing business in the state of Kansas, and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.”
K.S.A. 1974 Supp. 66-104: “Utilities subject to supervision. The term ‘public utility,’ as used in this act, shall be construed to mean every corporation, company, . . . that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant or generating machinery, or any part thereof, . . . for . . . the conveyance of oil and gas through pipelines in or through any part of the state, except pipelines less than fifteen (15) miles in length and not operated in connection with or for the general commercial supply of gas or oil, . . . and all companies for the production, transmission, delivery or furnishing of heat, light, water or power: . . .”
K.S.A. 66-141: “Liberal construction; incidental powers granted. The provisions of this act and all grants of power, authority and jurisdiction herein made to the commissioners, shall be liberally construed, and all incidental powers necessary to carry into effect the provisions of this act are hereby expressly granted to and conferred upon the commissioners.”
It is undisputed in this case that Cities Service is a corporation that owns, operates, and manages equipment or plants in the form of natural gas pipelines, compressor stations, and other attendant hardware. Furthermore, it is undisputed that Cities Service utilizes its facilities to transport and sell natural gas and that such natural gas is conveyed through its pipelines in and through the state of Kansas. K.S.A. 1974 Supp. 66-104 with its broad definition of a public utility recites two exemptions: (1) private use and (2) pipelines less than fifteen (15) miles in length and not operated in connection with or for the general commercial supply of gas or oil. Cities Service has not claimed the exemption of pipelines of less than fifteen (15) miles in length and not operated for the commercial supply of gas or oil. It obviously is not applicable under the facts now before us. Cities Service does argue that its activities fall within the exemption of private use. We have concluded that whether a business is a public utility must, of necessity, be determined by the character of its operations. In our judgment the claim of exemption under the private use exemption is ill-founded. Furthermore, there is nothing in the Kansas statutory definition of a public utiiity which requires it to hold itself out as serving the public generally.
For more than 70 years this court has taken the position that the production, transportation, distribution, and sale of natural gas for light, fuel, and power is a business of a public nature and subject to the regulation and control of the state. (La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448 [1904].) In State v. Natural-gas Co., 71 Kan. 508, 80 Pac. 962, the court followed the decision of La Harpe and said: “. . . [Companies organized for the purpose of piping and distributing gas for light, fuel, and power are given authority to exercise the right of eminent domain. The privilege thus conferred stamps them as qwasi-public corporations. . . .” Other decisions of this court have accepted this same general proposition that a natural gas pipeline company which sells gas in the state is subject to state regulation in the absence of federal preemption. (The State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22; The State, ex rel., v. Gas Co., 100 Kan. 593, 165 Pac. 1111; Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 222 P.2d 704, reh. den., 170 Kan. 341, 225 P.2d 1054; Cities Service Gas Co. v. State Corporation Commission, 180 Kan. 454, 304 P.2d 528, reversed by the Supreme Court of the United States on another point in 355 U.S. 391, 2 L.Ed.2d 355, 78 S.Ct. 381, reh. den., 355 U.S. 967, 2 L.Ed.2d 542, 78 S.Ct. 531.)
Cities Service relies in part on State, ex rel., v. Sinclair Pipe Line Co., 180 Kan. 425, 304 P.2d 930. Sinclair was an action in mandamus in which the state on the relation of the attorney general and the state corporation commission sought to compel certain pipeline companies to ask approval of the commission before one company sells and the other buys a pipeline used for the transportation of crude oil. We held that the state statutes regulating common carriers do not apply to pipelines being used solely in interstate commerce. Sinclair involved the power of the state corporation commission to regulate the transportation of crude oil in interstate commerce. It was in no way concerned with state regulation of the direct sale of natural gas to Kansas customers which is the issue involved in this case. The regulation of the transportation of crude oil in interstate commerce was correctly held to be within the exclusive jurisdiction of the federal regulatory agency. Sinclair was distinguished in our most recent case on the subject, Cities Service Gas Company v. State Corporation Commission, 201 Kan. 223, 440 P.2d 660. In that case this court reversed the district court of Sedgwick county which had set aside the order of the state corporation commission as being unlawful. One basis for the district court’s decision was that the jurisdiction of the commission under K.S.A. 66-101, et seq. exists only to those persons performing the functions specified in K.S.A. 66-104, who have dedicated their property to public use and hold themselves out to serve the public generally. One of the contentions made by the gas pipeline companies in that case was that K.S.A. 66-104 did not authorize the commission to assume jurisdiction over them as public utilities. Rejecting this argument, the court in the opinion stated:
“We need not pursue the subject further, and again reiterate the historical doctrine prevailing in the decisions of this court and in our statute that the production, transportation, distribution and sale of natural gas for light, fuel and power is a business of a public nature, the control of which belongs to the state, and, by the enactment of the Public Utility Act, the regulation and supervision thereof was fully and completely vested in the commission.” (p. 238.)
This court reversed the case on procedural grounds in that the commission had failed to make the necessary findings of fact and conclusions of law and directed the district court to remand the case to the commission for further proceedings. Apparently the commission did not thereafter act further in the case.-
From an examination and analysis of these cases we have concluded that the law of Kansas is clear that the broad definition of a “public utility” as contained in K.S.A. 1974 Supp. 66-104 is sufficient to give to the Kansas state corporation commission jurisdiction to regulate the rates charged on direct sales of gas by Cities Service to its customers in the state. In reaching this conclusion we have followed the legislative mandate of K.S.A. 66-141 that the provisions of the public utilities act and all grants of power, authority, and jurisdiction therein made to the commissioners, shall be liberally construed. We have considered all of the contentions presented by Cities Service on this appeal and find them not to be persuasive when considered in the light of the definition of the term “public utility” as contained in 66-104. In our judgment the findings of fact and conclusions of law and the orders of the state corporation commission and of the district court on appeal are supported by substantial competent evidence and are legally correct. We have no quarrel with the interpretation by the commission and the district court as to the commission’s power, authority, arid jurisdiction under K.S.A. 66-101, et seq.
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Schroeder, J.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from the trial court’s order declaring Michael Ferris, age seventeen, not amenable to the care, treatment and training program available through the facilities of the juvenile court (K.S.A. 1975 Supp. 38-808 [b] [now K.S.A. 1976 Supp. 38-808 (b)]), subjecting him to prosecution as an adult for two counts of aggravated battery against a law enforcement officer (K.S.A. 21-3415), one count of felony theft (K.S.A. 21-3701), one count of attempted aggravated escape (K.S.A. 21-3301 and K.S.A. 21-3810) and one count of obstructing legal process (felony) (K.S.A. 21-3808).
The appellant raises various constitutional and evidentiary arguments concerning his certification as an adult. The appellant also raises arguments on the admission of evidence concerning civil commitment in a hearing to determine waiver of juvenile jurisdiction. The appellant argues mental illness is a sufficient basis for retaining jurisdiction by the juvenile court, where the juvenile can be dealt with under the civil mental illness statutes.
Michael Ferris was born March 7, 1958. His family consists of his mother, father and eight older brothers, some of whom are actually half-siblings. Michael lives with his parents in his hometown of Scranton in Osage County, Kansas.
Michael has run afoul of the law for many years. He began breaking and entering neighbors’ homes for liquor to drink when he was nine years old. He has used valium, barbiturates and LSD since he was thirteen.
On March 27, 1972, Michael, then thirteen years of age, was adjudicated a delinquent child in the juvenile court of Osage County for two counts of burglary. (K.S.A. 21-3715.) As a result, Michael was committed to the Atchison Youth Rehabilitation Center, where he twice ran away from his group for short periods of time. He was subsequently paroled to his parents subject to supervision by the Osage County Social Welfare Department. Two years after adjudication he was discharged. Shortly thereafter, on April 29,1974, Michael was diverted from prosecution and further court process in regard to five counts of felony theft. There is also evidence of Michael spending some time at the Kansas Children’s Receiving Hospital following an incident in which he threatened a school teacher in Scranton, Kansas, with a pair of brass knuckles.
Michael’s conversations with Charles Pachella, a psychologist for the Shawnee County Court Services, also revealed other problems which did not involve the juvenile authorities. Michael spoke of taking an ax to his car, wrecking a friend’s car so that they would collect the insurance, beating his sister-in-law and pointing a loaded pistol at his sister-in-law and threatening to shoot her.
There is substantial evidence that Michael has a drug problem. Doctor James B. Horne, a psychiatrist and clinical director of the Shawnee County Court Services, testified as follows:
“. . . He has used valium, barbiturates and LSD since he was 13. He has the most thoroughgoing drug orientation of any patient I have ever examined. He states that he only feels normal when he is on drugs and he feels strange when he is not. His whole orientation is toward the maintenance of a high on drugs. . . .”
When under the influence of drugs, Michael becomes violent, destroys property and threatens others. In fact Dr. Horne characterized Michael as psychotic when on drugs, but not otherwise.
Dr. Horne further believes Michael is suffering from an acute organic brain syndrome, an impairment of brain functioning due to dead brain cells possibly caused by the tremendous doses of sedatives and alcohol over an unusually prolonged period of time. Psychological testing reveals Michael possesses an I.Q. of 84 and is classified as dull normal.
Relevant to the case at bar, the state alleged that on August 16, 1975, Michael, then seventeen years and five months, committed the five acts of delinquency enumerated above in Shawnee County, Kansas. All of the offenses alleged would be felonies if committed by adults.
It appears Michael was a passenger in a vehicle with one other juvenile and one adult which was traveling in violation of the traffic code. Although unknown to two Topeka police officers pursuing them at that time, the vehicle had been involved as the “get away vehicle” in a purse snatching incident earlier. After being apprehended, Michael attempted to escape from custody. Although handcuffed, Michael was able to secure the gun of one of the officers which he fired several times, striking both officers. The record reveals Michael was under the influence of drugs at this time.
On August 18, 1975, the state initiated proceedings asking the juvenile court of Shawnee County to waive its original and exclusive jurisdiction and to direct that Michael be prosecuted as an adult. A guardian ad litem was appointed and evidence heard. After hearing the evidence, the juvenile court of Shawnee County waived its jurisdiction and directed that Michael be prosecuted as an adult. An appeal was taken from that decision to the district court of Shawnee County which conducted an extensive de novo hearing on December 19, 1975.
In the district court, Dr. Horne, who twice examined Michael, testified that Michael was unaware of other people’s feelings and had no inhibition to hurting them. He further testified:
. . He has very little self control. He has not practiced at all to develop any kind of self control, therefore, he responds to impulses almost immediately. Further, his total orientation is to staying high on drugs; and with him drugs are not really sedatives but actually facilitate impulsive action. I would have to conclude that he is very dangerous. . . . ” (Emphasis added.)
Dr. Horne said it might take three to five years or more to cure Michael. Even then the chances for successful treatment would be 50/50.
Dr. Horne, who was familiar with various juvenile programs, said the AWL Unit at the Topeka State Hospital was the likeliest to provide the necessary treatment although it was a short-term program. Dr. Horne said that the Youth Center at Topeka (formerly the Boys’ Industrial School) would be inappropriate because of Michael’s age and the Larned facilities would not serve Michael’s needs. Dr. Horne concluded:
“. . . If you ask me is there a facility in the state that is designed and willing and ready and able to treat this boy, there isn’t one.”
Charles Pachella testified:
“The only juvenile placement that I could think of that would provide the security and the treatment that Mike could profit from would be the AWL Unit from Topeka State in terms of juveniles.”
Michael Patterson, probation officer for the Shawnee County Court Services, juvenile division, testified it was his opinion there aren’t any juvenile institutions that could meet Michael’s needs.
Dr. Robert A. Haines, Director of the Division of Mental Health and Retardation Services, Department of Social and Rehabilitation Services of Kansas, discussed the Osawatomie Youth Rehabilitation Units which are designed for three to six months rehabilitation. He also discussed the Topeka State Hospital and Larned. Dr. Haines testified his department had control over civil commitments to mental institutions from the probate courts. When Dr. Haines was asked if there were facilities available through civil commitment for individuals who were twenty-one years of age or over, the court sustained an objection to the question because it called for a legal conclusion and because the test is whether or not Michael would be amenable so far as the facilities of the juvenile court were concerned, not whether there are other courts which have facilities.
The district court also considered evidence from Vicki Haley, a social worker for the Kansas Department of Social and Rehabilitation Services, and Floyd Sappington, the Superintendent of the Atchison Youth Rehabilitation Center. Admitted in evidence by stipulation were the certified copies of the records of the juvenile court of Osage County, the social history prepared by Roberta Scott, a social worker, progress reports prepared by Joseph Evans, a psychologist, a psychological evaluation prepared by Howard Snowbarger, a psychologist, and an intake summary prepared by Ellen Cameron, a social worker.
Based on the massive and detailed information, the district court found:
“(3) The seriousness of the alleged offenses is so great that the protection of the community requires waiver.
“(4) The alleged offense of aggravated battery against a law enforcement officer was committed in an aggressive and willful manner.
“(5) After considering the home, the environment, the emotional attitude and pattern of living of respondent as well as his maturity and emotional development, the Court finds there is little likelihood of reasonable rehabilitation of respondent by the use of procedures, services and facilities currently available to the Juvenile Court.
“(6) The record and previous history of the respondent indicate a continued trend toward drug addiction, violence and antisocial behavior.
“(7) The respondent is not amenable to the care, treatment and training program available through facilities of the Juvenile Court for the following reasons:
(a) his long standing multiple drug addiction;
(b) his propensity for violent and aggressive conduct;
(c) his need for long term treatment (i.e. 3 to 5 years in a secure psychiatric institution);
(d) his poor prognosis even if given recommended treatment;
(e) his present age of 17 years, 10 months, in view of the jurisdictional limitation of the Juvenile Court with respect to respondent’s age; and
(f) his previous record which indicates respondent was not amenable to the care, treatment and training program available through the facilities of the Juvenile Court of Osage County.”
On December 19, 1975, the district court waived juvenile court jurisdiction for the August 16,1975, acts and all future allegations of delinquency or miscreancy. Following an unsuccessful motion to reconsider, appeal from the district court’s order was duly perfected.
Before examining the appellant’s three contentions, it must be recognized this court has examined the criteria for certifying a juvenile as an adult on many occasions. (State, ex rel., v. Owens, 197 Kan. 212, 416 P.2d 259; In re Templeton, 202 Kan. 89, 447 P.2d 158; In re Stephenson & Hudson, 204 Kan. 80, 460 P.2d 442; In re Patterson, Payne & Dyer, 210 Kan. 245, 499 P.2d 1131; State v. Shepherd, 213 Kan. 498, 516 P.2d 945; State v. Green, 218 Kan. 438, 544 P.2d 356; In re Harris, 218 Kan. 625, 544 P.2d 1403; and State v. Lewis, 220 Kan. 791, 556 P.2d 888.)
In State, ex rel., v. Owens, supra at 225, it was noted the juvenile code expressly provided a standard for certification. The test was whether the child is “amenable to the care, treatment and training program available through the facilities of the juvenile court.” Subsequent cases have elaborated on the factors the district court was required to examine in determining a juvenile’s amenability to treatment. Among the applicable factors previously considered are: (1) social records or staff reports; (2) prior juvenile files showing unsuccessful efforts at rehabilitation; (3) the nature of a juvenile’s prior delinquency, the date or dates and the success or failure of probation, if applicable; (4) the cause, nature and result of counseling with the juvenile; (5) evidence of persistent prior misconduct; (6) if more than one juvenile is involved in a particular offense, efforts to differentiate among the juveniles as to culpability; and (7) the availability or unavailability of juvenile institutions. (In re Patterson, Payne & Dyer, supra at 250; and State o. Green, supra at 444.) The gravity of the misconduct alleged is not the controlling factor in determining the proper disposition of a juvenile offender. (In re Patterson, Payne & Dyer, supra at Syl. 2; and State v. Green, supra at 444.)
All of our past cases have been decided under our law as it stood before July 1, 1975. On that date K.S.A. 1975 Supp. 38-808 (h) became effective and prescribed slightly different factors for the district court to examine in determining whether a juvenile was a fit and proper subject to be dealt with under the Kansas Juvenile Code. The new law provides:
“Upon the completion of the hearing and a finding that the child was sixteen (16) years of age or older at the time of the alleged commission of the offense, the court may make a finding, noted in the minutes of the court, that the child is not a fit and proper subject to be dealt with under the Kansas juvenile code, and waive jurisdiction over the child. In determining whether or not such finding should be made, the juvenile court shall consider each of the following factors: (1) Whether the seriousness of the alleged offense is so great that the protection of the community requires waiver; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) the maturity of the child as determined by consideration of his or her home, environment, emotional attitude and pattern of living; (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (5) the record and previous history of the child; (6) whether the child would be amenable to the care, treatment and training program available through the facilities of the juvenile court; and (7) whether the interests of the child or of the community would be better served by the juvenile court waiving its jurisdiction over the child. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue of waiver of juvenile court jurisdiction. Written reports and other materials relating to the child’s mental, physical, educational and social history may be considered by the court. . .
These numbered factors resemble the numbered factors in Kent v. United States, 383 U.S. 541, 566-567, 16 L. Ed. 2d 84, 86 S.Ct. 1045.
Although the difference between the new statute and our prior case law is slight, it must be recognized, as the trial court did, K.S.A. 1975 Supp. 38-808 (b) (now K.S.A. 1976 Supp. 38-808 [h]) controls this dispute.
The appellant first contends:
“The Court erred in the transfer of jurisdiction of the respondent to the adult court, by denying the respondent his due process rights, and equal protection under the law. The Court has insufficient evidence to meet the criterion for certification of the appellant.”
It is conceded the appellant was over sixteen (16) and under eighteen (18) years of age and the alleged acts would be felonies if committed by an adult. The only question presented is whether the trial court’s decision that the child is not a fit and proper subject to be dealt with under the Kansas Juvenile Code is supported by substantial competent evidence. (State v. Lewis, supra at 793; State v. Green, supra at 443; and In re Patterson, Payne & Dyer, supra at 250.)
The term “substantial evidence” has come to have a well-defined meaning in our law. It is said to be evidence possessing something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can be reasonably resolved. (State v. Green, supra at 443; and In re Templeton, supra at 94.)
A comparison of the trial court’s findings and K.S.A. 1975 Supp. 38-808 (b) indicates the trial court consciously followed the new statute. We shall not burden this opinion with further recitation of facts showing the appellant is not a fit and proper person to be dealt with under the Kansas Juvenile Code. Suffice it to say substantial competent evidence clearly supports the detailed findings of the trial court.
However, because the appellant has raised certain arguments as though the factors discussed in the case of In re Patterson, Payne & Dyer, supra, and State v. Green, supra, were controlling, we will examine those arguments.
The appellant argues no current report as to the social work situation is offered. The record reflects progress reports prepared by a psychologist and an intake summary were presented. The appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. (State v. Robertson, 221 Kan. 409, 411, 559 P.2d 810; and State v. Pettay, 216 Kan. 555, 557, 532 P.2d 1289.) Therefore, we must assume the progress reports and intake summary brought the older files up-to-date and all of the available evidence was before the district court.
The appellant argues the record reflects a successful rehabilitation effort at Atchison. To the contrary, the record shows the appellant twice ran away from Atchison for short periods of time, was involved in activities not brought before the juvenile authorities and was diverted from five counts of felony prosecution shortly after his final discharge from Atchison. This does not constitute successful rehabilitation.
The appellant mentions the seriousness of the offense. While the gravity of the misconduct cannot be the controlling factor, the disposition of a case should be tailored to the offender. Here the serious act of shooting and wounding two law enforcement officers is a factor to consider in deciding whether the juvenile is a fit and proper person to be dealt with under the Kansas Juvenile Code. (K.S.A. 1975 Supp. 38-808 [b] [1].)
The appellant argues he could receive treatment at the AWL Unit of Topeka State Hospital and other units. However, Dr. Horne stated the AWL Unit insists on short-term treatment, 60-90 days, and rapid turnover. This facility would not aid the appellant. Dr. Horne testified:
. . If you ask me is there a facility in the state that is designed and willing and ready and able to treat this boy, there isn’t one.”
Dr. Horne also ruled out Larned and the Youth Center at Topeka as suitable for the appellant.
Dr. Haines testified generally the Youth Center at Topeka (formerly BIS) took boys fourteen and one-half to sixteen years of age. The usual duration of the programs at the Osawatomie and Larned Youth Rehabilitation Units was designed to be within three to six months. Michael Patterson indicated no juvenile institutions would meet the needs of the appellant.
Clearly no place was shown to be adequate for the rehabilitation of the appellant in view of the appellant’s age, history, violent acts and long-term prognosis for cure. The appellant mistakenly attempts to equate availability of institutions with institutions suitable for his rehabilitation.
The appellant next contends:
“The court erred in denying the respondent’s motion to reconsider, in that mental illness on the part of the appellant is sufficient basis for retention of jurisdiction by the juvenile court. Specifically where the juvenile can be dealt with under the mental illness statutes.”
The appellant places primary reliance on Kent v. United States, 401 F. 2d 408 (D.C. Cir. 1968). This opinion results from subsequent proceedings after the decision of the United States Supreme Court in Kent v. United States, 383 U.S. 541, 16 L.Ed. 2d 84, 86 S.Ct. 1045. There the District of Columbia Juvenile Court Act required “full investigation” and made the juvenile court records available to person having a “legitimate interest in the protection ... of the child.” Kent’s counsel filed a motion in the juvenile court for a hearing on the question of waiver, and for access to a juvenile court’s social service file which had been accumulated during Kent’s probation for a prior offense. The juvenile court did not rule on these motions. Instead, it entered an order waiving jurisdiction, with the recitation that this was done after the required “full investigation.”
The United States Supreme Court reversed on procedural grounds. It held a juvenile was entitled to a hearing, to access by his counsel to social records and probation or similar reports which presumably were considered by the juvenile court, and to a statement of the reasons for the juvenile court’s decision sufficient to enable a meaningful appellate review.
On remand from the United States Supreme Court, testimony was introduced showing Kent suffered from a psychosis labeled “schizophrenic reaction, chronic undifferentiated type.” There was reason to believe that a period of time beyond the limits of the juvenile court’s jurisdiction was required for reasonable prospects of rehabilitation. Moreover, the juvenile court’s long-term confinement facilities could not provide adequate psychiatric treatment for psychotic children. Therefore, Kent’s counsel sought mental treatment and civil commitment. The district court found that Kent was indeed civilly committable in 1961, but waived jurisdiction.
The Court of Appeals for the District of Columbia reversed the waiver of juvenile jurisdiction. Chief Judge Bazelon, writing for the majority, said:
“Since waiver was not necessary for the protection of society and not conducive to Kent’s rehabilitation, its exercise in this case violated the social welfare philosophy of the Juvenile Court Act. Of course, this philosophy does not forbid all waivers. We only decide here that it does forbid waiver of a seriously ill juvenile.” (p. 412.)
A strong dissent was written by the now Chief Justice Warren Burger who argued:
“The majority opinion asserts that the District Court turned ‘civil commitment law on its head’ because it found that Kent’s dangerousness was a factor to consider on the waiver issue. The majority view seems to be that if Kent were potentially dangerous to himself or others he should have been committed, not tried, and that neither the District Court nor the Juvenile Court could assert jurisdiction over him. But the District Court was not called upon to determine whether or not Kent should be committed — in which case dangerousness would be a factor in favor of commitment. It was asked instead to determine whether the Juvenile Court or the District Court should have original jurisdiction over Kent. Unless we are to say that the District Court had no duty to protect the public from Kent and Kent from himself, the District Court plainly was correct in weighing his dangerousness and trying to discern what were the best ‘mechanisms by which society could be protected’ — to borrow a phrase from Judge Bazelon. (Page 411).
“I suggest that it is the majority who turn the law ‘on its head.’ The District Court had a narrow issue before it — if Kent were not to be waived, all the procedures of the Juvenile Court would take over, but if he were waived, he would be like any other person charged with a serious crime. In the District Court he could assert absence of criminal responsibility and this could lead him to treatment at St. Elizabeths Hospital after verdict. Alternatively, the District Court could constitute itself as a juvenile court and have broader facilities than available to the Juvenile Court itself. . . .” (p. 414.)
In our opinion the view expressed by Chief Justice Burger represents the better view and the rule to be applied in this case.
This is in accord with the new statute regarding waiver of juvenile jurisdiction. K.S.A. 1975 Supp. 38-808 (b) provides in part:
“. . . Written reports and other materials relating to the child’s mental, physical, educational and social history may be considered by the court. . . .” (Emphasis added.)
This statute does not prescribe a per se rule regarding a juvenile’s alleged mental illness and waiver of juvenile court jurisdiction. Mental illness is but one of the factors to be considered in making the determination of waiver.
Where a juvenile is alleged to be mentally ill, the juvenile court may retain jurisdiction. The juvenile court may' then “commit such child to the state secretary of social and rehabilitation services,” who in turn “may place the child in any institution operated by the director of mental health and retardation services.” (Following K.S.A. 1976 Supp. 38-826 [a] [6] and K.S.A. 1976 Supp. 38-826 [d].) This was the procedure followed in the case of In re Waterman, 212 Kan. 826, 512 P.2d 466, where the juvenile court refused to waive juvenile jurisdiction of a juvenile suffering from mental illness diagnosed as adjustment reaction of adolescence.
The juvenile court is not required to retain jurisdiction because of the alleged mental illness of the juvenile. A juvenile alleged to be psychotic or seriously mentally ill can raise the defense of insanity at his trial as an adult.
Even if this court considered the majority opinion in Kent v. United States, 401 F. 2d 408 (D.C. Cir. 1968), controlling, the instant case could be distinguished. In Kent the Court of Appeals was dealing with a juvenile who was suffering from chronic schizophrenic reactions. Here Dr. Horne’s report found no indication of a schizophrenic thought disorder. Dr. Horne testified the appellant was psychotic on drugs but not otherwise.
United States v. Howard, 449 F.2d 1086 (D.C. Cir. 1971), is more nearly in line with the facts in the instant case. There the Court of Appeals for the District of Columbia upheld a waiver of juvenile jurisdiction. The court concluded the juvenile was not subject to civil commitment as a seriously ill juvenile, even though one psychologist testified the juvenile was a “borderline psychotic” and a second psychologist reported the juvenile was a “sociopath,” where three psychiatrists found the juvenile showed no signs of mental illness. The Court of Appeals said the juvenile court was entitled to consider Howard’s age and did not abuse its discretion in determining that Howard’s rehabilitation within the presently available juvenile facilities would be unlikely. (See also Strickland v. United States, 449 F.2d 1131 [D.C. Cir. 1971].)
Similarly in State v. Kemper, 535 S.W. 2d 241 (Mo. App. 1976), the Missouri Court of Appeals, Kansas City District, distinguished Kent and rejected the contention of erroneous waiver where there was testimony a fifteen-year-old youth was suffering from “an adjustment reaction of adolescence characterized by schizoid and explosive tendencies,” and “maladjustment. . . possessing some of the characteristics of schizophrenia.” See also Matter of Trader, 20 Md. App. 1, 315 A.2d 528 (1974), reversed on other grounds, 272 Md. 364, 325 A.2d 398 (1974), where waiver was allowed despite testimony the youth’s behavior was sociopathic and out of control.
Here the record discloses substantial evidence that successful rehabilitation treatment probably would be required to extend beyond the appellant’s twenty-first birthday. (United States v. Howard, supra; Jimmy H. v. Superior Court, 3 Cal. 3d 709, 91 Cal. Rptr. 600, 478 P.2d 32 [1970]; and P. H. v. State, 504 P.2d 837 [Alas. 1972].)
It should be noted waiver was upheld in State v. Lewis, supra at 792, under our prior juvenile law. There a psychiatric examination revealed an “anti-social psychopathic personality with a potential for explosiveness under stress” and a need for long-term institutional treatment.
Finally the appellant contends the trial court erred in refusing to permit testimony as to civil commitment.
During the waiver hearing, the following testimony of Dr. Haines was offered relative to civil commitment.
“Q. Does your department have control over commitment from the Probate Courts, civil commitment of individuals?
“A. For the department?
“Q. To mental hospitals from Probate Court.
“A. Right.
“Q. Are there facilities available through civil commitment for individuals who are 21 years of age and over?
“MR. YEOMAN: Your Honor, I object to this. We are not, again, here to assess what the Probate Court might be able to do. This is to determine what the Juvenile Court can do and whether the Probate Court can put people in the hospital or not is not relevant to this area.
“MR. PARRISH: Well, Your Honor, I believe that it is relevant inasmuch as we are talking about an individual who previous to this time has been described as one needing three to five years of treatment who is 17 and a half years old now and three to five years may extend beyond age 21. So if we are to decide whether the Juvenile Court and juvenile facilities can provide a program of treatment as has been described, then I think it is relevant to see where he might go after the age has been reached.
» » « a «
“THE COURT: Sustained. I think that calls for a legal conclusion anyway and certainly the test is whether or not the respondent is amenable so far as facilities of Juvenile Court is concerned. It is not whether there are other courts which have facilities.”
Later testimony brought out the fact the juvenile judge can commit to the social and rehabilitation department with a recommendation that the child be placed at the Topeka State Hospital.
Here the appellant was free to explore all the alternatives for the care, treatment and training program available through the facilities of the juvenile court, which the appellant did explore. It was irrelevant on the issue of waiver of juvenile court jurisdiction to examine the facilities available to the probate court after the appellant reached age twenty-one, and was no longer within juvenile court jurisdiction. (K.S.A. 1976 Supp. 38-806 [c].)
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the owner, of a retail grocery business and the owner of a shopping center for an injunction to enjoin the retail store employees union and its members from interfering with plaintiffs’ business and from unlawfully trespassing on private property. The plainiiffs-appellants are Reece Shirley, owner of a shopping center located in Bonner Springs, Kansas, and Ron’s Inc., d/b/a Bonner Springs I.G.A., which leases certain property in the shopping center for its grocery store business. The defendants-appellees are the Retail Store Employees Union and its local #782, R.C.I.A., AFL-CIO, and its members and representatives.
The petition alleged in substance that the union and its members are engaged in acts of unlawful trespassing upon the plaintiffs’ property and interfering with plaintiffs’ business, causing irreparable loss and damages which will continue if not restrained or enjoined. The defendants filed an answer to the petition admitting the relationship of the parties but asserting that the district court lacked jurisdiction over the subject matter of this action since such jurisdiction is vested exclusively in the National Labor Relations Board (NLRB), through operation of the National Labor Relations Act (NLRA), as amended, 29 U.S.C.A. Secs. 141-187. The answer further alleged that the defendant union had been certified by the NLRB as the exclusive bargaining representative of the employees of the plaintiff Ron’s Inc.; that Ron’s Inc. and the union had failed to agree on a labor contract; that the union went on strike and placed pickets at the plaintiff’s place of business; that there exists a labor dispute between plaintiff Ron’s Inc. and defendant and such strike is protected under the National Labor Relations Act. Defendants further alleged that all picketing was lawful, peaceful, and informational activity protected by the NLRA and the United States Constitution. Following the filing of the answer, the district court promptly set the case for trial on the merits. The case was tried to the court and after a full hearing the court took the matter under advisement. Thereafter the trial court by memorandum decision entered judgment in favor of the defendants, denying injunctive relief. An appropriate journal entry of judgment was prepared and the plaintiffs thereupon appealed to this court.
The essential facts as found by the trial court are set forth in the trial court’s journal entry of judgment in the following language:
“1. This controversy involves picketing by the defendant union of a grocery store located in Bonner Springs Plaza, a privately owned shopping center in Bonner Springs, Kansas.
“2. That plaintiff, Reece Shirley, is the owner of the shopping center and the building in which the store is located and which is leased to the plaintiff, Ron’s Inc., d/b/a Bonner Springs IGA store.
3. The defendant union has been certified by the National Labor Relations Board as the exclusive representative of the employees of the grocery store and that the union employees are on strike.
“4. That the union has placed pickets in front of the grocery store; the picketing is peaceful.
“5. The union has been notified by the plaintiffs by telegram to cease and desist from trespassing on plaintiff’s property but has refused to stop its picketing.
“6. The shopping center is located at the intersection of Front Street and Oak Street. It is bounded on the east side by Oak Street, on the south by Front Street, on the west side by Elm Street, and on the north side by a high wall and other business buildings.
“7. There are only two stores located in the shopping center, the plaintiff’s grocery store and a Ben Franklin Store, both of which are housed in one long building backed along Elm Street along the west side of the tract.
“8. The stores face east and because of the topography, are exposed to the public only from Front Street and Oak Street.
“9. There are three entrances to the shopping center, one on the east side from Oak Street, one on the south from Front Street, and a third one at the southwest corner of the tract from Elm Street near the loading docks. Aside from these entrances, the shopping center is separated from the adjoining streets by curbing and a narrow strip of land on the south side and a narrow public sidewalk running along Oak Street on the east.
“10. Plaintiff’s store occupies the south half of the building and has a loading dock on the south side of the store.
“11. There is a walk covered by a canopy extending along the front of the stores which is six feet in width. Parking spaces are lined out for the stores’ patrons in front of the store, and items which are for sale are displayed on the walk. Bumpers of cars parked in front sometimes overhang the walk so that in certain areas the passageway is restricted at times to approximately four and one-half feet.
“12. Between the stores and the outside perimeters of the shopping center, the area is paved with asphalt and there are numerous parking spaces lined out. These areas provide common parking facilities for both stores in the shopping center.
“13. The only entrance for patrons of the grocery store is on the east side of the store approximately in the middle of the store.
“14. The distance from the front of the store across the parking area to the sidewalk along Oak Street is approximately 200 feet.
“15. Oak Street is a principal thoroughfare in Bonner Springs and is rather heavily traveled. Parking is permitted along both sides of the sidewalk. Picketing engaged in by the defendant is on the walk in front of plaintiff’s store, usually by two pickets wearing banner type jackets stating that the union was on strike against the plaintiff’s store.
“16. At times the pickets walk abreast causing congestion on the walk. On occasion some of the defendants eat their lunches on the curb at the south end of the building by the loading dock and pickets park their cars in front of the .store in spaces reserved for patrons. Evidence established one incident of horseplay. AH of this causes annoyance and inconvenience to the patrons of the store. These incidences were sporadic and of short duration and relatively infrequent.
“17. There was no evidence of any violence, threats, or harassment of patrons.
“18. There was no showing the pickets have significantly interfered with the use to which the shopping center was being put by the plaintiffs and the general public, or with the store’s operation.
“19. Picketing by the defendant on the property of the plaintiff is controlled by Amalgamated Food Employees local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308. That ease, as in this case, a privately owned shopping center is involved. The shopping center here, as in that case, was bounded by two rather heavily traveled streets and the only entrance to the shopping area was by way of five entranceways from these streets. The shopping area was otherwise separated from the streets by earth and berms twelve to fifteen feet wide running alongside the street. The picketing was being carried out on the parcel pick-up area in front of the store by pickets carrying signs.
“20. To compel the defendant union to conduct its picketing off the premises of the shopping center owned by plaintiff, Reece Shirley, and leased by the plaintiff, Ron’s, Inc., d/b/a Bonner Springs IGA, under the circumstances here would for all practical purposes effectively hinder or bar the communication of ideas which the pickets seek to express to the patrons of the grocery store.
“21..........
“22. Judgment is hereby entered against the plaintiffs and in favor of defendants, denying the injunction.”
At the trial the plaintiffs contended in substance that the defendant union’s picketing constituted a trespass in violation of Kansas law (K.S.A. 21-3721); that such picketing materially obstructed and interfered with the store’s operations; and that the picketing could be efficiently and effectively accomplished on the public sidewalk and other areas outside the shopping center. The defendant union maintained that the district court was without jurisdiction because jurisdiction was preempted by federal law and vested exclusively in the NLRB; that its picketing in the shopping center was protected by the First Amendment to the United States Constitution and the NLRA since it was peaceable and did not obstruct or interfere with plaintiff’s business in any way. These same positions are taken by the parties on this appeal.
We must first consider the jurisdictional issue: Has the subject matter of this controversy been preempted by Congress and assigned to the exclusive jurisdiction of the NLRB so as to preclude state court jurisdiction? In the absence of the NLRA state courts would have jurisdiction to decide traditional trespass claims against unions and their members. However, a principal purpose of the Act is to establish a uniform national labor policy, and the Board has been given the initial responsibility for interpreting the Act and adjudicating claims of unfair labor practices. Although the Act does not explicitly preclude state courts from applying state law or federally declared standards to labor disputes, the United States Supreme Court has long recognized that state determinations might conflict with federal labor policy as established by the NLRA and interpreted by the NLRB, and the Supreme Court has required state courts to yield to the NLRB in this area. The leading case which supports the preemption doctrine is San Diego Unions v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959). In reviewing a California decision which awarded an employer damages from harm resulting from peaceful union picketing, Mr. Justice Frankfurter stated as follows:
“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by Sec. 7 of the National Labor Relations Act, or constitute an unfair labor practice under Sec. 8, due regard for the federal enactment requires that state jurisdiction must yield. . . .
“At times it has not been clear whether the particular activity regulated by the States was governed by Sec. 7 or Sec. 8 or was, perhaps, outside both these sections. But courts are ndt primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. . . .
“. . . When an activity is arguably subject to Sec. 7 or Sec. 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” (pp. 244-245.)
Sec. 7 of the NLRA (29 U.S.C.A. Sec. 157) provides employees with various rights vis-a-vis employers, including the right to organize, bargain collectively, and engage in other concerted activities for the purpose of collective bargaining or other activities. Picketing has been recognized as a legitimate tool which a union can use under this section to attempt to negotiate a collective bargaining agreement. Sec. 8 (29 U.S.C.A. Sec. 158) defines activities which constitute unfair labor practices, including certain types of picketing.
The preemption doctrine has long been recognized by the decisions of this court. (Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P. 2d 110; Texas Const. Co. v. H. & P.E. Local Union No. 101, 178 Kan. 422, 286 P. 2d 160; Friesen v. General Team & Truck Drivers Local Union No. 54, 181 Kan. 769, 317 P. 2d 366; Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349; Hyde Park Dairies v. Local Union No. 795, 182 Kan. 440, 321 P. 2d 564; Inland Industries, Inc. v. Teamsters & Chauffeurs Local Union, 209 Kan. 349, 496 P. 2d 1327.) The Kansas legislature has also recognized the preemption doctrine. K.S.A. 60-904 (c) restricts the right to injunctive relief in labor disputes in the following language:
“60-904 .......
“(c) Restraint prohibited in certain cases. No restraining order or injunction shall prohibit any person or persons, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means to do so; or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute; or from recommending, advising, or persuading others by peaceful means to do so; or from paying or giving to or withholding from any person engaged in such dispute any strike benefits or other moneys or things of value; or from peaceably assembling at any place in a lawful manner and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto, or from any activity over which the federal authority is exercising exclusive jurisdiction. ” (Emphasis supplied.)
Obviously 60-904 (c) covers a wide range of activities in labor disputes which are placed beyond the jurisdiction of state court injunctions. It is thus quite clear that the Kansas legislature has established the public policy of this state to be that the Kansas courts should not grant injunctions in labor disputes where the activity is one reasonably subject to the jurisdiction of the NLRB.
The undisputed facts in the present case show that the defendant union has been certified by the NLRB as the exclusive bargaining representative of certain employees of the Bonner Springs IGA. At the time the action was brought the union and its members were on strike because a labor contract could not be negotiated with the employer. The picketing here was the result of an existing labor dispute and was arguably subject to Sec. 7 or Sec. 8 of the NLRA.
We must consider, however, whether the picketing activities of the union in the present case were beyond the scope of the NLRA merely because they took place on the private property of the shopping center and, being without the owner’s approval, were consequently of a trespassory nature. The Supreme Court of the United States has established that under certain circumstances union representatives have a right protected under Sec. 7 to enter the employer’s premises. (Labor Board v. Babcock & Wilcox Co., 351 U.S. 105, 100 L. Ed. 975, 76 S. Ct. 679 [1956]; Central Hardware Co., v. NLRB, 407 U. S. 539, 33 L. Ed. 2d 122, 92 S. Ct. 2238 [1972].) A determination of its scope requires an accommodation between Sec. 7 rights and private property rights with as little destruction of one as is consistent with the maintenance of the other. (Labor Board v. Babcock & Wilcox Co., supra.) Under the Garmon rule so long as it can be argued that trespassory union activity is protected under Sec. 7, it is initially within the exclusive jurisdiction of the NLRB to reconcile these Sec. 7 rights with private property rights. It logically follows that state courts’ jurisdiction in resolving this conflict should be denied. (Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1360-61 [1972]; Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv. L. Rev. 552, 562-563 [1970].)
The Supreme Court has recently clarified this rule in Hudgens v. NLRB, 424 U.S. 507, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1976). Hudgens involved the picketing of an employer’s retail store located in a privately owned shopping center. The owner of the shopping center threatened the pickets with arrest for trespassing. The union then filed a complaint of unfair labor practices against the owner of the shopping center under Sec. 7 of the NLRA. The Board, relying on Food Employees v. Logan Plaza, 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968), held that under the First Amendment guarantee of free expression, union members could not be enjoined from peaceful picketing of a retail store in a privately-owned shopping center which was the equivalent of a municipality’s business district and entered a cease-and-desist order against the shopping center owner. Ultimately the case reached the United States Supreme Court which held that the-striking employees had no First Amendment right to enter the shopping center to advertise their strike against their employer, but that the respective rights of the parties were to be decided under the criteria of the NLRA alone, by resolving conflicts between the employers’ Sec. 7 rights and private property rights, and by seeking a proper accommodation between the two. In the opinion of the court written by Mr. Justice Stewart it was stated that Logan Plaza had been overruled by the intervening decision in Lloyd Corp v. Tanner, 407 U.S. 551, 33 L. Ed.2d 131, 92 S. Ct. 2219 (1972), although other justices did not concur with this statement. In our judgment Hudgens is important to the resolution of the present case because it states clearly that in case of trespassory picketing the rights and liabilities of the picketing union and the property owner are dependent upon the provisions of the NLRA and that it is the task of the NLRB to resolve the conflict between competing Sec. 7 rights and private property rights and to seek a proper accommodation between the two.
From a consideration of these decisions we have concluded that the trespassory picketing activity at issue in this case is both arguably protected by Sec. 7 and arguably prohibited by Sec. 8 of the NLRA and hence a case for federal preemption has been established. It is true that the Supreme Court in Garmon recognized exceptions to federal preemption by stating that state courts may take jurisdiction and act where the activity involved is merely a peripheral concern of the federal labor relations statute, or where the regulated conduct touches interests so deeply rooted in local feeling and responsibility that in the absence of compelling congressional direction it cannot be inferred that Congress deprived the states of the power to act. However, we have concluded that these exceptions are not applicable in the case before us.
In the present case the plaintiffs contend that the protection of private property from a trespass is an interest “so deeply rooted in local feeling and responsibility” that the state courts may enjoin peaceful labor picketing where trespass is present. The Supreme Court of the United States, despite several opportunities to grant certiorari, has not yet explicitly decided this question. The issue was specifically reserved in Meat Cutters v. Fairlawn Meats, 353 U.S. 20, 1 L. Ed. 2d 613, 77 S. Ct. 604 (1957). A number of state appellate courts when faced with the problem have reached different results depending to some extent on the factual circumstances presented in the individual cases: People v. Goduto, 21 Ill. 2d 605, 174 N. E. 2d 385, cert. denied, 368 U.S. 927, 7 L. Ed. 2d 109, 82 S. Ct. 361; May Dept. Stores v. Teamsters Local 743, 64 Ill. 2d 153, 355 N. E. 2d 7; Moreland Corp. v. Retail Store Employees Union, 16 Wis. 2d 499, 114 N. W. 2d 876; Hood v. Stafford, 213 Tenn. 684, 378 S. W. 2d 766; Taggart v. Weinacker’s Inc., 283 Ala. 171, 214 So. 2d 913, cert. granted, 396 U.S. 813, 24 L. Ed. 2d 65, 90 S. Ct. 52, cert. dismissed, 397 U.S. 223, 25 L. Ed. 2d 240, 90 S. Ct. 876, People v. Bush, 39 N.Y. 2d 529, 384 N.Y.S. 2d 733, 349 N.E. 2d 832. Other cases have held that actions involving peaceful trespassory picketing are preempted by federal law and must be determined at least in the first instance by the NLRB. (Freeman v. Retail Clerks Union, 58 Wash. 2d 426, 363 P. 2d 803; Broadmoor v. Amalgamated, 21 Ohio Misc. 245, 257 N. E. 2d 420; Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 17 Cal. 3d 893, 132 Cal. Rptr. 443, 553 P. 2d 603, cert. granted, 430 U. S. 905, 51 L. Ed. 2d 580, 97 S. Ct. 1172; Wiggins & Co., Inc. v. Retail Clerks Union, Local 1557, 80 L. C. 908, Syl. 11 [Chancery Ct., Knox County, Tenn.].) In considering the various cases it is important to note that some of them involved situations where there was a threat of immediate violence or some actual obstruction to ingress and egress to and from the employer’s place of business.
In Youngdahl v. Rainfair, Inc., 355 U.S. 131, 2 L. Ed. 2d 151, 78 S. Ct. 206 (1957), the Supreme Court held that a state court may lawfully enjoin a union from threatening or provoking violence and from obstructing or attempting to obstruct the free use of streets adjacent to the employer’s place of business, and the free ingress and egress to and from that property. However, it held that a state court cannot lawfully enjoin a union from “all picketing or patrolling” of those premises. We believe that the answer to our problem may be found in Youngdahl when considered together with the other decisions of the Supreme Court which are discussed above. We have concluded that a state court has the power to enjoin trespassory picketing only where there is shown to be actual violence or a threat of immediate violence or some obstruction to the free use of property by the public which immediately threatens public health or safety or which denies to an employer or his customers reasonable ingress and egress to and from the employer’s place of business. Unless the evidence establishes that these elements are present, a state court should not take jurisdiction in actions seeking injunctive relief in cases of peaceful trespassory picketing. Such controversies should properly be left for determination by the NLRB which has been given the authority to resolve conflicts between Sec. 7 rights and private property rights. (Hudgens v. NLRB, supra.)
In the case now before us the allegations of the plaintiffs’ petition reasonably implied that the trespassory picketing on the property of the shopping center was disrupting plaintiffs’ business and denying them the free use of their property. In view of these allegations in the petition and the denial thereof in the defendants’ answer, the district court properly set the case for hearing to determine whether or not there was any threat of immediate violence or some significant obstruction of ingress and egress to and from the plaintiff’s grocery store. The trial court resolved these issues in favor of the defendant union finding that all picketing was peaceful; that there was no evidence of any violence, threats, or harassment of patrons; and that there was no showing that the pickets had significantly interfered with the use to which the shopping center was being put by the plaintiffs and the general public, or with the store’s operation. We find there is substantial competent evidence in the record to support the trial court’s findings. Having made this determination, the district court properly denied injunctive relief. Thereafter any controversy between the parties over the rights of the union under Sec. 7 and the property rights of the plaintiffs was a matter to be determined by the NLRB pursuant to the National Labor Relations Act.
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The opinion of the court was delivered by
Fromme, J.:
The plaintiff, David C. Smith, appeals from a summary judgment entered in favor of defendant, The Union Pacific Railroad Company. The plaintiff was injured while riding as a passenger in a truck which collided with a Union Pacific Railroad train at a railroad crossing in the city of Manhattan, Kansas. The question is whether the testimony of plaintiff con clusively shows he was contributorily negligent as a matter of law in failing to look for a train, in failing to warn the driver and in failing to require the driver of the truck to stop before proceeding onto the railroad tracks. The testimony of plaintiff and all other witnesses was fully explored by interrogatories and depositions.
The defendant railroad was charged with various acts of negligence, including failure of the engineer to observe the maximum speed limit of 35 miles per hour and failure to give an adequate signal with the whistle to warn the occupants of the truck of the approach of the train. We are not concerned with these alleged acts of negligence since the sole basis for the entry of summary judgment was the court’s determination that plaintiff was guilty of contributory negligence as a matter of law.
A recitation of background facts will be helpful. The train in this case was on a regular run from Junction City to Topeka and was passing through the city of Manhattan. The collision occurred at the Sixteenth Street crossing. The train was traveling 39 miles per hour, slightly over the maximum speed of 35 miles per hour recommended in the operating manual. The train was coming from the west and the truck in which plaintiff was a passenger was proceeding north. The lines of vision of the engineer on the train and of those riding in the truck were blocked by a tall building on the southwest corner of the intersection. This building was located 25 feet south of the railroad tracks and 19 feet west of Sixteenth Street. The engineer was not able to see traffic coming from the south on Sixteenth Street until traffic cleared the building. The occupants of the truck were unable to see the train coming from the west until they were approximately 25 feet from the railroad tracks. However, when the truck cleared the building the occupants could have seen west along the railroad tracks a distance of about 1500 feet. Just prior to the collision the truck was traveling at approximately five miles per hour.
The plaintiff and his driver were working for a trenching company which laid sewer pipe. The company headquarters was located just south of the intersection where the accident occurred. Sixteenth Street dead-ends just south of the trenching company’s building. At this point the street is without curbing, is a graveled street, poorly maintained and contains many chuck holes which impede traffic. Both the plaintiff and the driver were familiar with this crossing. Plaintiff had worked there over six years and had crossed the railroad tracks several times each day. Earlier that same day he had driven another vehicle over the tracks. At that time he stopped the vehicle, looked both ways and then proceeded to cross the tracks. There was no stop sign at this crossing. There was one railroad crossing sign north of the tracks near Sixteenth Street.
Just prior to the accident the plaintiff and another employee of the trenching company returned to the company headquarters to load sewer pipe on the truck which had an eight foot wide bed. The pipe being loaded was located behind the headquarters building. They loaded the pipe and after stopping to pick up a tool box they proceeded north on this poorly maintained street toward the railroad tracks. Eugene R. Pixler was driving the company truck and plaintiff was a passenger in the front seat. They had traveled only 58 feet when the collision occurred.
The driver of the truck, Pixler, testified that when he had reached a point 28 feet from the tracks he thought he heard a shout behind the truck and turned to his right, away from the direction from which the train came, and looked over his shoulder toward the rear of the truck. When he turned his attention back to the street ahead he first looked east and then west. It was when he looked west that he first saw the train. It was five feet from the truck. He heard no warning train whistle. Before he had time to react the collision occurred.
The plaintiff, Smith, testified that after the truck started toward the railroad tracks he heard a piece of clay pipe hit the ground to the rear of the truck. He turned in the seat to look back and that is the last thing he remembers for a week. Smith testified he does not know or cannot remember whether he looked for or saw the train before the collision. He did not hear or does not remember hearing the train whistle. There was no evidence that he did or did not look for a train and no evidence that he did or did not see the train. There was no evidence that he warned the driver. Assuming that the truck continued traveling at five miles per hour after clearing the building and that the occupants of the truck had been watching, the train would have been in view approximately 2.5 seconds before the collision.
We turn now to the question presented on appeal.
A summary judgment may be entered if the pleadings, depositions, answers to interrogatories and admissions on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (K.S.A. 60-256 [c].) But in considering a motion for summary judgment the movant’s adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Vaughn v. Murray, 214 Kan. 456, Syl. 1, 521 P. 2d 262; Rothwell v. Transmeier, 206 Kan. 199, Syl. 3, 477 P. 2d 960.) Normally, the presence or the absence of negligence in any degree is not subject to determination by the court on summary judgment, for such a determination should be left to the trier of the facts. It is only when it can be said that reasonable men cannot reach differing conclusions from the same evidence that the issue may be decided as a question of law. (Vaughn v. Murray, supra; Abston v. Medora Grain, Inc., 206 Kan. 727, 735, 482 P. 2d 692.) So in the present case if we are to affirm the summary judgment entered by the trial court in favor of the railroad we must be able to say on the record before us that a passenger in a vehicle who is approaching a known railroad crossing is guilty of contributory negligence as a matter of law if he fails to maintain a constant lookout for trains and warn the driver in time to stop and avoid an oncoming train.
In the present case the trial court applied the rule in Buchhein v. Atchison, T. & S. F. Rly. Co., 147 Kan. 192, 75 P. 2d 280, holding the plaintiff passenger was contributorily negligent as a matter of law and rendering summary judgment as a matter of law. In Syl. 1 of Buchhein it is stated that a mature person who attempts to cross a railroad track without taking any precaution for his own safety while riding in an automobile with another who is driving, cannot recover damages from a railroad company for injuries sustained in a collision with a train when by looking he could have seen the approaching train in time to warn the driver of the danger. This rule places a duty to look for trains on a passenger equal to the duty resting on the driver, and the passenger is required to keep a lookout for possible dangers ahead when approaching railroad tracks, to see what is there to be seen and to warn the driver of every approaching train. This rule may be traced back through our case law to U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529, which was handed down in 1885 and involved a passenger riding in a spring wagon drawn by a team of horses. In that particular case the horses were in a fast trot and the plaintiff who was the wife of the driver failed to look for trains. Her children were riding in the back seat of the wagon and she did not hear nor see the train and she failed to warn her husband. It was held her negligence barred her recovery as a matter of law.
This same rule may be found in many of the subsequent cases. It has been recognized to some extent in our more recent cases. See Sander v. Union Pacific Rld. Co., 205 Kan. 592, 596, 470 P. 2d 748, and Alley v. Chicago, Rock Island & Pacific Rld. Co., 213 Kan. 457, 458, 516 P. 2d 967. In many of our more recent cases, such as in Alley, the negligence of the driver was all that was involved.
The rule imposing this strict duty upon a passenger with regard to collisions at railroad crossings has not been applied in cases involving collisions between two automobiles at a street intersection. In the latter cases the question of contributory negligence of a passenger is generally considered to be a question of fact. (Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049.) For instance, in Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P. 2d 980, a wife failed to look for and warn her driver husband of the approach of a taxi cab which approached from the passenger’s side. This court held that the evidence in the case did not require the trial court to instruct the jury that the passenger was guilty of negligence if she failed to look for danger and warn the husband-driver of approaching imminent danger.
In automobile collision cases this court has held that a passenger in an automobile is not negligent as a matter of law even though that passenger may be asleep when the accident occurs. See Howse v. Weinrich, 133 Kan. 132, Syl. 2, 298 Pac. 766.
Generally it can be said it is the duty of the passenger while riding in an automobile driven by another person to use that care which a reasonably careful person would use for his own protection under the circumstances then existing. (McGlothlin v. Wiles, 207 Kan. 718, Syl. 1, 487 P. 2d 533.) A passenger may properly rely upon the driver to attend to the operation of the vehicle, in the absence of the knowledge of danger, or of facts which would give him such knowledge. (McGlothlin v. Wiles, supra, Syl. 3.) It is for the jury to say from the evidence whether a passenger exercised such care as a reasonably careful person would exercise under the existing circumstances. See P.I.K. Civil, 8.91, and Restatement of the Law of Torts, Second, Ch. 17, Sec. 495, Comment c, d, pp. 556, 557.
We are not unmindful of the fact that high speed trains running on fixed tracks cannot be expected to stop at every crossing and that railroad tracks are themselves a warning of danger; especially is this true concerning the driver whose primary duty is to keep a lookout for danger and keep his vehicle under control.
In tort cases it is generally accepted that even though a person has knowledge of some possible danger, such knowledge by that person does not, without some comprehension of added risk and failure to reasonably respond thereto, constitute negligence as a matter of law. See Nave v. Hixenbaugh, 180 Kan. 370, Syl. 3, 304 P. 2d 482, and Autry v. Walls I.G.A. Foodliner, Inc., 209 Kan. 424, Syl. 3, 497 P. 2d 303.
Except under limited conditions passengers in modern vehicles are not expected nor required to keep a constant lookout or to remain aware of all conditions ahead of the vehicle in which they are riding. It is a common occurrence for a passenger in the front seat to take his attention off the road to look at the scenery or he may turn to speak to a friend in the back seat. When people are making an extended trip it is not uncommon for a passenger to read a book or to go to sleep. Ordinarily, the duty of care imposed on a passenger in the back seat of an automobile is not commensurate with that required of the driver. (McGlothlin v. Wiles, supra, Syl. 2.)
However, if a passenger knows that at a particular point there will be a peculiar danger, which he has reason to believe might escape the attention of the driver, he may be negligent if he does not keep himself in a position to call the danger to the attention of the driver. A passenger is entitled to trust the vigilance and skill of the driver unless he knows from past experience or the manner in which the car is being driven that his driver is not vigilant or skillful. (Miller v. Atchison, T. & S. F. Ry. Co., 166 C.A. 2d 160, 332 P. 2d 746.)
In other jurisdictions it has been held that a passenger in a motor vehicle driven by another is not required to exercise the same degree of vigilance as the driver in looking and listening for trains at a crossing. (Hatcher v. New York Cent. R. R. Co., 17 Ill. 2d 587, 162 N.E. 2d 362.) The mere sight or knowledge of the presence of a railroad crossing does not of itself impose a duty to warn the driver of what lies ahead. (Frideres v. Lowden, 235 Iowa 640, 17 N.W. 2d 396; Finley v. Lowden, 224 Iowa 999, 277 N.W. 487; and Gorman v. Franklin, [Mo.] 117 S.W. 2d 289.) The passenger may rely upon the driver performing his duty at a railroad crossing until it becomes apparent that he will not do so. A passenger is required to exercise ordinary care for his own safety in approaching a railroad crossing and if he sees or should have seen the approach of a train in time to inform the driver of it and cause the driver to stop the vehicle thereby preventing a collision but fails to do so, he may be held guilty of contributory negligence but that determination is generally left to the trier of fact. In such case it has been held the negligence may bar recovery from both the driver and from the railroad as well. (Liabraaten v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 105 Minn. 207, 117 N.W. 423.)
In most cases in which the question has arisen in other jurisdictions the circumstances and evidence have been such that contributory negligence of the passenger in failing to watch for and warn of the approach of a train at railroad crossings has been deemed to be a question of fact for the jury. (See 8 Am. Jur. 2d, Automobiles and Highway Traffic, Sec. 531, p. 89, and cases cited n. 20, and 75 C.J.S., Railroads, Secs. 768, 777.)
Although our Kansas cases have not been consistent we do have some cases which have held that contributory negligence on the part of both the driver and his passenger in failing to watch or to warn of the approach of a train at a railroad crossing is a question of fact for the jury. Our court has permitted some of these cases to go to a jury. See Johnson v. Union Pacific Rld. Co., 157 Kan. 633, 143 P. 2d 630; Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061; Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, 495 P. 2d 930; and Waits v. St. Louis-San Francisco Rly. Co., 216 Kan. 160, 531 P. 2d 22.
We believe the time has now come for this court to hold that the strict rule in U. P. Rly. Co. v. Adams, supra, Syl. 2; Bush v. Railroad Co., 62 Kan. 709, Syl. 3, 64 Pac. 624; Kirby v. Railway Co., 106 Kan. 163, Syl., 186 Pac. 744; Rathbone v. Railway Co., 113 Kan. 257, 214 Pac. 109; Cooper v. Railway Co., 117 Kan. 703, 232 Pac. 1024; Buchhein v. Atchison, T. & S. F. Rly. Co., supra, and similar cases, holding that a passenger in a vehicle is contributorily negligent as a matter of law when approaching railroad tracks if he fails to keep a lookout and warn the driver of any danger, is no longer the law in Kansas. Accordingly we disapprove the holding in such cases. As to the legal responsibility of a passenger we adopt the law stated in P.I.K. Civil, 8.91, p. 248, which reads as follows:
“It is the duty of a passenger while riding in an automobile driven by another person, to use that care which a reasonably careful person would use for his own protection under the circumstances then existing.
“A passenger may properly rely upon the driver to attend to the operation of the vehicle, in the absence of knowledge of danger, or of facts which would give him such knowledge.
“It is for the jury to say from the evidence whether a passenger exercised such care as a reasonably careful person would exercise under the existing circumstances.”
In applying such duty of a passenger to the facts of the present case we believe it can be said this passenger was not contributorily negligent as a matter of law. Prior to the time he heard the sewer pipe fall off the truck he had not heard or seen the approaching train. His vision was totally obscured by the tall building on the southwest corner of the intersection. He and the driver of the truck had just loaded the sewer pipe and were responsible for its transportation and safekeeping. It was not his responsibility to drive the truck. When he heard the pipe fall it was a normal reaction to turn and look out the back window. There was no reason appearing in the evidence why it was not proper for him to rely on the driver to attend to the operation of the truck. The truck was being driven at a rate of speed of five miles per hour and could have been stopped within a few feet. Smith testified he does not know or cannot remember whether he looked for or saw the train before the collision. He further testified that he remembers turning in the seat and looking back and that is the last thing he remembers for a period of one week. He did receive serious injuries and was hospitalized.
We hold that generally the failure of the passenger to keep a lookout for trains while approaching a known railroad crossing will not in itself constitute contributory negligence as a matter of law even though he may have diverted his attention elsewhere when the train came into view. Contributory negligence of a passenger should depend upon the facts and circumstances of each case and generally will be a question of fact to be determined by a jury after hearing all evidence in the case.
The summary judgment in favor of defendant, The Union Pacific Railroad Company, is reversed and the case is remanded to the trial court for further proceedings. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, James M. Kirby, was charged with and convicted of criminal injury to persons as defined by K.S.A. 1976 Supp. 21-3431. The essential facts of the case are not really in dispute and are as follows: On February 4, 1975, Gaylord and Patsy Taylor and their two children resided at 1354 North Yale in Wichita. That evening, when they went to bed, they could hear extremely loud music coming from one of the houses across the street. Some time later Mr. Taylor was awakened by the sound of breaking glass. He then heard gun shots. He and his wife crawled into their son’s bedroom and sent the boy to a basement bedroom. Taylor called the police who informed him that a similar report had already been received. Taylor later discovered what was identified as a spent bullet on the living room floor. When the police officers arrived at the Taylor home they found a shattered mirror tile in the living room and a series of holes in a window screen, storm window, window shade, and curtain in the living room. Later that evening it was discovered that another bullet had entered the closet of the Taylor boy’s bedroom, passing through several toys and lodging in a group of record albums in the closet. From the damage to the house the police were able to ascertain that the bullets had come from the house across the street at 1333 North Yale.
The police officers proceeded to that house and observed lights on inside and loud music. At first they could get no response from the occupants. Then one of the officers knocked on the front door with a flashlight. He looked through a window and observed two men walking towards the door. One of the men was the defendant Kirby who had a rifle in one hand and a drink in the other. The other man was Donald Bukacek. He opened the door and the officers walked into the house. A .30-caliber M-l rifle was lying at the defendant’s feet. An inquiry was made as to who owned the house and at this point Dr. Ernest Bubieniec entered the room and stated he was the owner. In the following conversation the defendant when asked stated that the rifle was his. The defendant was given a Miranda warning and placed under arrest. The defendant stated that he had been shooting the rifle, but did not know how many rounds he had fired. Dr. Bubieniec also admitted shooting the gun. Further conversation revealed the shooting had taken place in the kitchen. Later in the kitchen a detective counted 60 bullet holes in the wall and ceiling. A .30-caliber shell casing was found on the kitchen table. The police investigator observed the words “Big Don” written over the holes in the wall. Apparently “Big Don” was Donald Bukacek. Although there was some dispute at the trial as to whether or not the two bullets found at the Taylor home had been fired by the defendant Kirby, there was sufficient evidence to establish that as a fact. The testimony showed that the defendant Kirby had no prior acquaintance with the Taylors and that he did not intentionally fire any bullets towards the Taylor home. There was no evidence that the defendant intended to injure anyone by the firing of the weapon. The bullets were all directed toward the ceiling of the Bubieniec house and at least two had ricocheted into the Taylor home across the street.
At the trial there was a great deal of argument as to the interpretation to be given K. S. A. 1976 Supp. 21-3431. At the close of the state’s evidence and again prior to the submission of the case to the jury, the defendant moved for his acquittal and for a dismissal of the case on the grounds that K. S. A. 1976 Supp. 21-3431 is unconstitutional because it is vague and fails to inform a reasonable person of the nature of the proscribed conduct as required by Section 10 of the Bill of Rights of the Kansas Constitution and by the Fifth and Fourteenth Amendments to the Constitution of the United States. These motions were overruled by the trial court and the case was submitted to the jury. Following his conviction the defendant appealed to this court raising again the question of the constitutionality of 21-3431 and numerous trial errors pertaining to the admission of evidence and the instructions of the court.
In determining the constitutional issue raised on the appeal we should first consider some of the basic principles which have been applied in cases where various Kansas statutes have been attacked as being unconstitutionally vague and indefinite. These principles were recently discussed in State v. Conley, 216 Kan. 66, 531 P. 2d 36, and in State v. Gunzelman, 210 Kan. 481, 502 P. 2d 705. In Conley we stated that the test whether a statute is so vague and indefinite and therefore fails to inform the accused of the nature and cause of the charge against him as required by Section 10 of the Kansas Bill of Rights is the same as that applicable in determining whether a statute violates the due process clause of the Fourteenth Amendment to the federal constitution. The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess, at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness. (Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65.) This court has always held that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of a statute’s validity, and that before it can be stricken it must clearly appear that the statute violates the constitution. If there is any reasonable way to construe a statute to be constitutionally valid, the court should do so. (Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015.)
With these basic principles in mind we now turn to a close examination of K.S.A. 1976 Supp. 21-3431 to determine its constitutionality. 21-3431 defines the offense of criminal injury to persons in the following language:
“21-3431. Criminal injury to persons. Criminal injury to persons is the maiming, wounding, disfiguring, causing great bodily harm, or endangering of life of a person under circumstances which would constitute murder or manslaughter if death had ensued.
“Criminal injury to persons is a class E felony.
“This section shall be supplemental to and a part of the Kansas criminal code.”
The predecessor to 21-3431 was K.S.A. 21-435 (Corrick) which provided as follows:
“21-435. Maiming, wounding, disfiguring or causing great bodily harm; penalty.
“If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned shall, in cases not otherwise provided for, be punished by confinement and hard labor not exceeding five years, or in a county jail not less than six months.”
At the time the old criminal code was completely revised by the Judicial Council in 1968, 21-435 was eliminated as a crime under the new code. The old statutes pertaining to crimes against persons, including homicides, assaults, and batteries, were completely redrafted and included in the new criminal code which contained general provisions applicable to all crimes included thereunder. The old code, which had been the law of this state for 100 years, combined assaults and batteries together in the same statutes without any attempt to differentiate between the two offenses. The new criminal code as drafted by the Judicial Council and adopted as the law of this state effective July 1, 1970, separates assaults and batteries into two distinct classes of crime and provides for specific statutes governing each of these crimes. In K. S. A. 21-3408 assault is defined as an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary. In 21-3410 aggravated assault is defined so as to require an unlawful assaulting, or striking at another with a deadly weapon or committing assault by threatening or menacing another while disguised in any manner designed to conceal identity, or where a willful and intentional assault occurs with intent to commit any felony.
The primary statutory sections defining the battery crimes are 21-3412 and 21-3414. In 21-3412 battery is defined as the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner. Under 21-3414 aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which inflicts great bodily harm, or causes any disfigurement or dismemberment to or of his person, or is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted. It is important to note that the battery crimes under the new criminal code require an intentional touching or application of force to the person of another. Aggravated battery requires a specific intent to injure the person of another. There are other statutes in the criminal code defining various types of assaults and batteries under particular circumstances. In the criminal code as originally adopted and made effective July 1, 1970, there was no statutory provision which made it a crime for one person to seriously injure another without a specific intent to injure, even though the act was done in a wanton or reckless manner. The legislature attempted to fill this gap in the criminal code by enacting K. S. A. 21-3431 at its session in 1972. The language of 21-3431 is quite similar to that of 21-435.
We have concluded that the statute in question fails to meet the basic test and that it must be held unconstitutional because it forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess as to its meaning and differ as to its application. In reaching this conclusion we have considered not only the specific statute, 21-3431, but also the criminal code in its entirety, since it was designed and enacted as a comprehensive code with interrelated sectiohs. In the first place the statutory provisions are uncertain as to whether the act of maiming, wounding, disfiguring, causing great bodily harm, or endangering of life must have been done intentionally or unintentionally. K. S. A. 21-3201 provides in section (1) that, with certain exceptions not involved in this case, a criminal intent is an essential element of every crime defined by the code. Criminal intention may be established by proof that the conduct of the accused person was willful or wanton. The statute then uses the following language: “Proof of willful conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a wanton manner.” In section (2), willful conduct is defined as “conduct that is purposeful and intentional and not accidental.” In section (3), wanton conduct is defined as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of such conduct.” The prohibited acts under 21-3431 are the maiming, wounding, disfiguring, causing great bodily harm, or endangering of life of another person. 21-3201 requires proof that these prohibited acts must have been done willfully unless 21-3431, the statute defining the crime of criminal injury to persons, expressly provides that the prohibited act is criminal if done in a wanton manner. A person of common intelligence reading 21-3201 and 21-3431 together could not reasonably be expected to find in 21-3431 an express provision that the prohibited acts are criminal if done in a wanton manner. We believe that this vagueness in language would create an uncertainty in the mind of a person of reasonable intelligence. If the legislature intends to make criminal an act which is committed wantonly but not intentionally, it should do so in clear and express statutory language. This the legislature has not done with respect to the statute now under consideration. In this regard we deem it also important to note that K. S. A. 21-435 (Corrick) specifically provided for criminal liability where the maiming, wounding, etc. were caused by the culpable negligence of another. This reference to culpable negligence was not included in the language of 21-3431.
Another observation should be made as to the requirement of an intentional act in order for 21-3431 to apply. The statute makes it a criminal act to wound or endanger the life of another under circumstances which would “constitute murder or manslaughter if death had ensued.” In State v. Wright, 221 Kan. 132, 557 P. 2d 1267, this court stated that the distinction between aggravated battery (K. S. A. 21-3414) and criminal injury to persons (21-3431) is that an intent to injure is required for conviction of aggravated battery but is not essential for conviction of criminal injury to persons. This conclusion would be entirely correct under circumstances where the defendant would have been guilty of involuntary manslaughter if the death of the victim had ensued. Involuntary manslaughter (21-3404) requires an unlawful killing without malice and done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. The situation is entirely different, however, where under the factual circumstances the defendant would have been guilty of murder or voluntary manslaughter if the death of the victim had ensued. Murder in the first degree (21-3401), murder in the second degree (21-3402), and voluntary manslaughter (21-3403) all require an intentional killing. It would thus appear that a defendant may be guilty of criminal injury to persons under 21-3431 and on the same set of facts be guilty of aggravated battery under 21-3414 where the defendant inflicts great bodily harm upon his victim with the intent to kill the victim but fails to achieve that result. Under the vague statutory language the crime of criminal injury to persons would seem to be applicable to both intentional and unintentional injuries which cause great bodily harm or endanger life. In the case of intentional injury the same factual circumstances would reasonably require a jury to find a defendant guilty of aggravated battery (21-3414), a class C felony, and also guilty under 21-3431, a class E felony. Where the bodily injury is intentionally caused and the jury is instructed as to both crimes, a defendant could be convicted of either crime at the jury’s uncontrolled caprice. Such a result smacks of injustice and unequal treatment under the law. This again illustrates the vagueness and uncertainty in the language of 21-3431.
The defendant in his brief raises another claim of vagueness in the statute. He contends that if a strict construction is applied to 21-3431 some actual bodily injury to the victim is an essential element of the crime. The statute defines the crime as criminal injury to persons. He maintains that the phrase “criminal injury to persons” implies the existence of some actual injury to the person, and, furthermore, that the reference in the statute to the circumstance “if death had ensued” implies the existence of some type of personal injury to the victim from which death might result. Such a conclusion, however, is contradicted by the language of 21-3431 which lists a series of prohibited acts in the alternative with each act separated by the word “or.” This language would indicate that endangering the life of a person does not require an actual wounding or bodily injury of any kind. Consequently a person’s life could be endangered under the statute without an actual wounding of the person. We have upheld convictions under 21-435 where the victim’s body was not touched or injured. (State v. Lanam, 140 Kan. 434, 36 P. 2d 966; State v. Collins, 209 Kan. 534, 498 P. 2d 103.)
As pointed out above K. S. A. 21-435 (Corrick), the predecessor to 21-3431, was a part of the Kansas criminal code for over 100 years until its repeal effective July 1, 1970. The crime is contained in Chapter 33, Section 36, of the General Laws of 1862. The marginal note to the section describes the crime in the following language: “Persons by whose acts great harm is done, how punished.” This same crime is again provided for in Chapter 31, Section 42, of the General Statutes of 1868. In chapter 31 the crime is described both in the index and in the marginal note to section 42 as “Person by whose act, &c., great bodily harm is done, how punished.” These early descriptions of the crime, which would seem to require some actual bodily harm to the victim, are followed and repeated again and again in various statutory revisions through the years. We also note that the title to House Bill 1886, which created 21-3431 and which was enacted as Chapter 114 of the Laws of 1972, designates the crime as “criminal injury to persons.” Suffice it to say, the statutory language and the legislative history of 21-435 might well raise a reasonable question in the mind of a person of common intelligence as to whether a defendant could be guilty of criminal injury to persons under K.S.A. 21-3431 unless the victim suffered some type of bodily injury.
If wé assume that under the statute the proscribed act of endangering the life of another person does not require some actual bodily injury to the victim, we encounter another question of vagueness and uncertainty. In our judgment the phrase “endangering of life” is vague and ambiguous. 21-3431 does not define “endangering of life,” nor is the term defined in the definition section, 21-3110, or anywhere else in the criminal code. The defendant correctly points out that there is no universally accepted definition of the term “endangering of life” which exists within the common knowledge of the population of this state. He also maintains that the legal community has not provided any definite and certain standards with which to define such danger. The state in its brief concedes that the statutory phrase “endangering of life” is susceptible of two constructions and, hence, is ambiguous. Counsel for the state points out that on the one hand, the language could be construed to proscribe any act which possibly could imperil human life, no matter how remote that possibility might be. On the other hand, it could be construed to proscribe only those acts which are immediately and inherently life threatening. The difficulty with this argument is that, assuming the state is correct in its position, it would from a practical standpoint be impossible for a person of common intelligence in every factual situation to draw a clear line between acts which are and which are not immediately and inherently life threatening. Webster’s Third New International Dictionary 748 (Unabridged 1967) defines the term “endangering” as meaning “to bring into danger or peril of probable harm or loss.” Other sources do not assist in clarifying the meaning of the term. In our judgment the term “endangering of life” as used in 21-3431 requires too much speculation on the part of potential defendants and jurors.
Our conclusion is that K.S.A. 1976 Supp. 21-3431 is not sufficiently definite in its description of the acts or conduct forbidden when measured by common understanding and practice as to satisfy the constitutional requirements of due process of law. We wish to emphasize that this decision does not preclude the legislature from drafting an appropriate statute in clear and definite language making it a criminal offense to inflict great bodily harm upon another by wanton misconduct. Our only holding in this case is that 21-3431 is unconstitutional and void because the language of that statute as drafted is impermissibly vague. It is our judgment that the trial court erred in failing to sustain the defendant’s motions for acquittal and to dismiss the action. In view of the result reached it is not necessary for us to consider the various trial errors raised in other points on this appeal.
The judgment of the district court is reversed and it is ordered that the defendant be discharged from further prosecution in this action. | [
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The opinion of the court was delivered by
Schroeder, J.;
This is an appeal from an order of the trial court holding that an “Exclusive Listing Agreement” prepared by a real estate agency did not give the realtors a right to a commission when the property listed was sold by the owner himself.
The only question presented on appeal is whether the “Exclusive Listing Agreement” entitled the realtors, as a matter of law, to a commission when the subject real property was sold during the listing period by the owner himself.
Pat Begnoche (defendant-appellee) owned a liquor store at 1100 Laramie, Manhattan, Kansas, which he wanted to sell. On January 16,1975, Mr. Begnoche and Paul E. Foltz and William R. Just, d/b/a Town and Country Real Estate (plaintiffs-appellants), entered into a one-month “Exclusive Listing Agreement” drafted by Town and Country Real Estate or its agents. The agreement dated January 16, 1975, insofar as is material herein provides:
“EXCLUSIVE LISTING AGREEMENT
“In consideration of your agreement to list the following property, and to use your efforts in finding a purchaser, the undersigned owner hereby gives your agency the exclusive right until Feb 16, 1975 from date hereof, to sell BEGNOCHE LIQUOR STORE 1100 LARAMIE MANHATTAN. KS for the sum of $32,000 and upon the following terms: CASH TO SELLER If a sale or exchange is made by you during the term of this exclusive agreement at the price and upon the terms specified herein, or at any other price and terms acceptable by me, or if you produce a purchaser ready, able and willing to purchase the property, or if sold or exchanged six months after the termination hereof to anyone with whom you have negotiated concerning the property and where I have known of such negotiations or been informed of them in writing, I agree to pay you a 6% commission on the gross sale price. In the event of an exchange, which within the meaning of this contract shall be deemed a sale, you are permitted to represent and receive a 6 % commission from each party.”
Town and Country Real Estate produced two prospects who were unable to purchase the liquor store at the agreed cash price of $32,000. One prospect bid $30,000 which was not acceptable to Mr. Begnoche and the other had not lived in Riley County long enough to pass the requirements for an ABC liquor license.
On January 31,1975, Mr. Begnoche contracted to sell the liquor store for $31,000 to Robert Webster, a prospect found by Mr. Begnoche. Nothing indicates Town and Country Real Estate had ever seen or talked to Mr. Webster concerning the purchase of the liquor store. The sale was closed on March 3, 1975, and Mr. Begnoche refused to pay any commission to Town and Country Real Estate or any of its agents.
The pleadings and pretrial presented but one issue to the trial court — the interpretation to be given the written “Exclusive Listing Agreement.” Mr. Begnoche contended the “Exclusive Listing Agreement” meant he would list the property with no other realtor, but that the agreement did not prevent him, as the owner, from selling the property without paying a commission. John Ball, Director of the Kansas Real Estate Commission, read the “Exclusive Listing Agreement.” He submitted an affidavit stating the agreement’s terms would permit the owner to sell his property without an obligation to pay the broker a commission.
Town and Country Real Estate contended under the “Exclusive Listing Agreement” if the liquor store was sold by anyone, including the owner, Pat Begnoche, Town and Country Real Estate was to receive a commission. Dean Toothaker, President of the Manhattan Board of Realtors and a licensed real estate broker, also read the “Exclusive Listing Agreement.” He submitted an affidavit stating that he considered the terms of the agreement to give the real estate agency the exclusive right to sell the property prior to the expiration date, and did not allow anyone else, including the owner, to sell the property without paying a commission to the real estate agency.
The trial court held the contract was a listing agreement only, and it did not give the realtors an exclusive right to a commission if they were not instrumental in finding the purchaser. Appeal has been duly perfected.
The parties disagree completely as to the interpretation to be given to the “Exclusive Listing Agreement” which governs their rights and obligations. The appellants urge that the contractual language be construed to create an “exclusive right to sell,” which entitles the broker to a commission even though the owner sells the property himself. The appellants argue such a construction is necessary so the real estate agent can spend the time and money necessary to sell the property without fear that it will be sold out from under him.
The appellee views the contractual language as giving rise to an “exclusive agency,” which permits the owner to sell his own property if he himself procures a buyer, without liability for the broker’s commission.
A distinction is frequently made between an “exclusive agency” and an “exclusive right to sell.” (12 Am. Jur. 2d, Brokers, Sec. 226, p. 968; and Note, Real Estate Brokers Contracts in South Carolina, 18 S.C. L. Rev. 819,832 [1966].) An “exclusive agency” agreement listing real property for sale does not permit an owner to list his property with other brokers during the contractual term, but this does not prevent the owner from selling to a buyer procured on his own, unless the broker has procured a purchaser able and willing to buy prior to such time. The only effect of such a contract is to prevent the owner from placing the property in the hands of another agent. An “exclusive right to sell” agreement listing real property for sale forbids the owner from selling his property either by himself, or through another broker, without liability while the property is listed with the original broker. (Moreno v. May Supply Company, 280 Ala. 157, 190 So.2d 710 [1966]; Carlsen v. Zane, 261 Cal. App. 2d 399, 67 Cal. Rptr. 747 [1968]; Bourgoin v. Fortier, 310 A.2d 618 [Maine 1973]; Insurance & Realty, Inc. v. Harmon, 20 N.C. App. 39, 200 S.E. 2d 443 [1973]; Zifcak v. Monroe, 105 R.I. 155, 249 A.2d 893 [1969]; Dorman Realty & Ins. Co., Inc. v. Stalvey, 264 S.C. 94, 212 S.E. 2d 591 [1975]; and Baker v. Skipworth, 244 S.W. 2d 299 [Tex. Civ. App. 1951].)
In Bourgoin v. Fortier, supra, an agreement entitled “Exclusive Listing Authorization” which gave the broker the “exclusive right of sale or exchange” was held ambiguous and not an exclusive right to sell agreement. The reverse situation was presented in Carlsen v. Zane, supra, relied upon by the appellants. There the contractual agreement gave the brokers an “exclusive and irrevocable right to sell” land but specifically provided that “owner agrees to pay . . . brokers ten per cent of the selling price in the event that during the period of the agreement . . . said property is sold or exchanged by [brokers] or any other person including owner.” This was held to be an “exclusive right to sell” because it expressly forbade sale by the owner without liability. (See also Rankin v. Miller, 179 Cal. App. 2d 133, 3 Cal. Rptr. 496 [1960].) Similarly Holmes v. Holik, 238 S.W. 2d 260 (Tex. Civ. App. 1951) and Bagley v. Butler, 59 Misc. 2d 1029, 301 N.Y.S. 2d 148 (1969), clearly and unambiguously forbid sale by the owner without liability.
Kansas cases have long recognized, at least by implication, the distinction between an “exclusive agency” and an “exclusive right to sell.” In Helling v. Darby, 71 Kan. 107, 79 Pac. 1073, and Haggart v. King, 107 Kan. 75, 190 Pac. 763, the real estate brokers did not have an “exclusive right to sell” the land and could not recover commissions when the land was sold by the owner. (See also Kirshner v. Brown, 78 Kan. 531, 96 Pac. 848; Braniff v. Baier, 101 Kan. 117, 165 Pac. 816; Edwards v. Dana, 104 Kan. 266, 178 Pac. 407; and Russell v. Combs, 108 Kan. 411, 195 Pac. 605.)
In Krehbiel v. Milford, 171 Kan. 302, 232 P.2d 229, the court sustained the following instruction as proper and correctly stating the law of the state:
“ . . One giving a real estate broker authority to sell his property upon terms stated, but not expressly agreeing that such real estate agent shall have the exclusive right to sell, retains the right to effect a sale personally or through another agent, and the owner may enter into an agreement to sell which will be effectual at any time before he has actual notice that a purchaser has been procured by the agent who is ready, able and willing to purchase under the terms of the listing.’ . . .” (p. 305.)
A similar instruction was approved in Winkelman v. Allen, 214 Kan. 22, 29, 519 P.2d 1377.
Similarly in Hiniger v. Judy, 194 Kan. 155, 398 P.2d 305, this court stated:
“Where one gives a real estate broker authority to sell his property upon terms stated but not expressly agreeing that such real estate agent shall have the exclusive right to sell, he retains the right to effect a sale personally or through another agent. . . (p. 167.)
However, this court has never expressly examined a contract similar to the one now before us and determined whether the contract established “exclusive agency” or an “exclusive right to sell.”
In examining the contractual agreement before the court, it must first be recognized the agreement is entitled “Exclusive Listing Agreement.” The title “Exclusive Listing Agreement” does not import that there is granted to the broker the exclusive right to sell. (Neece v. AAA Realty Co., 156 Tex. 614, 616, 299 S.W. 2d 270 [1957].) Other cases have noted the title of the agreement is important, but not controlling. (Bourgoin v. Fortier, supra; Nicholas v. Bursley, 119 So.2d 722, 88 A.L.R. 2d 929 [Fla. Dist. Ct. App. 1960]; Suddereth v. Putty, 446 S.W. 2d 929 [Tex. Civ. App. 1969]; and Insurance & Realty, Inc. v. Harmon, supra.)
It must be conceded the contractual agreement before the court granted the broker the “exclusive right”until February 16, 1975, to sell the Begnoche liquor store. However, use of the phrase “exclusive right,” standing alone, should not be determinative in creating an “exclusive right to sell.” (Insurance & Realty, Inc. v. Harmon, supra; Cowal v. Hopkins, 229 A.2d 452 [D.C. Ct. App. 1967]; Stromberg v. Crowl, 257 Iowa 348, 132 N.W. 2d 462 [1965]; and Bourgoin v. Fortier, supra.)
Further examination of the contractual agreement discloses the provision:
. . If a sale or exchange is made by you during the term of this exclusive agreement ... I agree to pay you a 6 % commission. . . .”
That the phrase “by you” was inserted in the contract indicates the payment of commission is contingent upon the sale being made by the broker. By implication the agreement contemplated a sale or exchange by the owner, as no other realtor could make the sale without liability during the contractual period. (See Moreno v. May Supply Company, supra; and Stromberg v. Crowl, supra.)
A term in the agreement which cannot be ignored is:
“In consideration of your agreement to list the following property, and to use your efforts in finding a purchaser, the undersigned owner hereby gives your agency the exclusive right. . . (Emphasis added.)
By reason of the foregoing the disputed contractual agreement must be declared ambiguous. In Kansas it is well established that doubtful and uncertain language in a contract is construed against the party preparing the contract, for he has created the troublesome ambiguity. (State v. Downey, 198 Kan. 564, 569, 426 P.2d 55; Hamann v. Crouch, 211 Kan. 852, 856, 508 P.2d 968; and Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917.) Analogous cases from other jurisdictions have consistently construed the ambiguity in brokers’ contractual agreements against the party drawing the contract. (Nicholas v. Bursley, supra; Stromberg v. Crowl, supra; and Bourgoin v. Fortier, supra.) It is obvious from an examination of the contractual agreement in question that it was prepared by the realtors, and the trial court so found. As such we construe the “Exclusive Listing Agreement” herein to create only an “exclusive agency.”
Additionally, we are persuaded that an “exclusive right to sell,” by its very nature, should be created only by clear and unambiguous language. The owner of property, frequently unfamiliar with the terminology of brokerage transactions, should not be held to give up his right to sell his own property, unless the broker’s contract in some way or other imposes liability upon the owner for payment of a commission in the event of a sale by the owner, either expressly or by the grant to the broker of such exclusive right as the court may deem necessarily implies such liability. (See Moreno v. May Supply Company, supra; Bourgoin v. Fortier, supra; and Nicholas v. Bursley, supra.) Therefore, a real estate broker seeking to create an “exclusive right to sell” in which the owner may not sell his property without paying the broker a commission, whether or not the broker procured the buyer, must do so in clear and unambiguous language within the four corners of the written brokerage contract. For a comprehensive review of authorities on this subject, see Annot., 88 A.L.R. 2d 936 (1963); Note, Real Estate Brokers’ Commissions in Ohio, 38 U. Cin. L. Rev. 115 (1969); Recent Developments, 42 Tenn. L. Rev. 405 (1975); and Note, Real Estate Brokers Contracts in South Carolina, 18 S.C. L. Rev. 819 (1966).
Here the “Exclusive Listing Agreement” did not clearly and unambiguously waive the owner’s right to sell his own property.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a class action brought by Hazel Nix and Fred Schupbach, Jr., (plaintiffs-appellees and cross-appellants) individually and on behalf of some 5,739 gas royalty owners, including those who do not reside in Kansas or have leases covering land in Kansas or both, against their producers, Northern Natural Gas Producing Company and Mobil Oil Corporation (defendants-appellants and cross-appellees), for recovery of in terest on “suspense royalties.” The total amount of suspense royalties held from 1967 by Mobil and 1968 by Northern to May 1971 was approximately $1,250,000 by Mobil and approximately $223,000 by Northern, which both Mobil and Northern commingled with other funds and used in their business operations. Except for the size of the class membership, the starting of withholding in 1967 by Mobil and 1968 by Northern, the payout by both Mobil and Northern in May 1971, the judgment of the trial court on January 8, 1976, and a statute of limitations question hereinafter discussed, this case is identical in legal issues and factual situations to those presented in Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (No. 47,917, decided July 11, 1977). The same FPC Hugoton-Anadarko area and FPC Opinion No. 586 are involved.
This action was originally commenced on January 24, 1974, by filing a petition which alleged “Mobil Oil Corporation pays royalties on leases of Northern Natural Gas Producing Company, and Plaintiff is informed that Mobil Gas [Oil] Corporation has some interest in Northern Natural Gas Producing Company or its leases. Northern Natural Gas Producing Company is commonly referred to as ‘Northern Natural’ and for convenience, both defendants are referred to as ‘Northern Natural’ in this Petition.”
The original petition was filed by Hazel Nix, individually and as representative of a class “composed of all of the owners of royalty interests in oil and gas leases in an area known as the Hugoton-Anadarko Area who have had increased proceeds from the sale of their gas withheld by Northern Natural [Gas Producing Company].” The trial court found the appellees were members and proper representatives of a class of royalty owners entitled to “suspense royalties” in the Hugoton-Anadarko area affected by FPC Opinion 586 under leases owned by Northern Natural Gas Producing Company or Mobil Oil Corporation or any of their predecessor companies. The trial court excluded the royalty owners that opted-out and others that had individual actions pending against the defendants or their predecessor companies from the plaintiff class.
The trial court found Northern Natural Gas Producing Company to be a wholly owned subsidiary of Mobil Oil Corporation.
Attorneys for the parties agreed to add Fred Schupbach, Jr., as a party plaintiff in accordance with the terms and provisions of an amended petition. The agreement is recited in an order filed May 24, 1974 (dated May 22, 1974), which allowed the filing of an amended petition. The order recited, among other things, that the defendants were given 30 days from the date of the order to file amended answers and amended supplemental answers to interrogatories and requests for admissions in conformity to the amended petition. The defendants complied and filed their answers to the amended petition on June 24, 1974.
The record discloses the amended petition was not filed until June 13, 1974. Three years from the date of mailing the FPC suspense royalty checks was May 25, 1974.
Upon the foregoing, Mobil contends the three-year statute of limitations is applicable to the appellees’ claims, and, therefore, the claims of Mobil royalty owners, first asserted more than three years after appellees’ alleged cause of action accrued, are barred.
The trial court found that “Since the petition herein was filed January 24, 1974, not even the implied contract statute of limitations of three years in Kansas and Oklahoma (and four years in Texas) has run and the court finds the written contract limitation should apply.”
Assuming the three-year statute of limitations to be the applicable time limitation for consideration, as Mobil contends, we do not think ,the claims of Mobil royalty,, owners are barred. The original petition filed January 24, 1974, referred to both defendants, Mobil and Northern Natural, as “Northern Natural.” Both defendants had ample notice prior to the running of any statute of the contents of the amended petition. By agreement of the parties an order was entered by the trial court prior to the running of the statute on May 24, 1974, allowing the amended petition to be filed. The claim against Mobil and Northern Natural arose out of the same facts as alleged in the original petition. The defendants admitted in their answer to the amended petition that “Mobil Oil Corporation pays royalties on leases of Northern Natural Gas Producing Company” and that Northern Natural Gas Producing Company is a wholly owned subsidiary of Mobil. It was stipulated in the pretrial order that Mobil receives all proceeds from gas sales due Northern Natural Gas Producing Company.
Under these circumstances the plaintiff Nix, although a royalty owner under a lease with Northern Natural, had the same stand ing to seek recovery against Mobil as did the plaintiff Schupbach for damages payable as interest arising from the use of FPC suspense funds. The question presented was common to all class plaintiffs regardless of which defendant’s lease was applicable.
K.S.A. 60-215(c) provides:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he would not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”
Under all of the facts and circumstances here presented, and applying the intent and spirit of the foregoing statute, the amended petition relates back to January 24, 1974, both as to plaintiff Nix as being a proper representative of the entire class of Mobil’s and Northern Natural’s royalty owners and as to plaintiff Schupbach as being such representative.
Accordingly, as held in Shutts, (1) this action was properly tried as a class action even though involving nonresident plaintiffs, (2) the producers were liable for interest on a theory of unjust enrichment and contractual principles, and (3) the class members had not waived any claim for interest. However, the computation of the award of interest by the trial court should be modified to conform to the Shutts case which held:
“We therefore hold on equitable principles Phillips is required to pay its royalty owners herein seven percent (7%) per annum simple interest on suspense royalties from the date of receipt of suspense royalties by Phillips until October 1,1970 (the effective date of FPC Opinion No. 586), and eight percent (8%) simple interest per annum thereafter until the payout to the royalty owners on or about December 7, 1972. Applying the ‘United States Rule’ on partial payments, after the payout there was still an unpaid principal sum due equal to the total principal due plus accrued interest, less the payout. Assuming proper calculations, this amount, although principal, would equal the accrued interest on the date of the payout. From December 7, 1972, on until the date of judgment (July 29, 1976) equitable principles and Phillips’ contractual undertaking require Phillips to pay its royalty owners herein eight percent (8%) per annum simple interest on the unpaid principal sum (accrued interest on date of payout) plus the unpaid principal sum; and thereafter our post-judgment interest statute, K.S.A. 16-204, requires payment of eight percent (8%) per annum simple interest for the benefit of the royalty owners on the total amount of the judgment until paid.”
The judgment of the lower court is affirmed in part and modified in part, and the case is remanded for further proceedings consistent with the foregoing opinion. | [
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The opinion of the court was delivered by
Miller, J.:
This is a civil action in which one cotenant, Ima Kaye Miller, appeals from the final order in a partition action. The trial court ordered partition but determined that the fee-simple title was vested in Jessie B. Miller, plaintiff-appellee, and quieted his title against the cotenants, defendant-appellant, Ima Kaye Miller, and defendant, R. O. (Richard) Miller. For clarity we will refer to the parties by their given names.
Most of the facts are not disputed. Jessie is the father of Richard; Richard and Ima Kaye were husband and wife. The real estate, consisting of four acres of land in Butler County, was purchased in 1965. Jessie paid all of the purchase price, $4,500. The seller executed a deed conveying the property to Jessie, Richard, and Ima Kaye, as joint tenants with the right of survivorship and not as tenants in common. The deed was recorded.
There was a mobile home and a storm cellar on the property at the time of purchase. Jessie moved into the mobile home. Thereafter, he poured a concrete slab over the storm cellar and, with the help of Richard, built a house thereon. Ima Kaye also claims to have helped build the house. Jessie paid for the materials, and he paid the taxes on the property. Richard and Ima Kaye moved into the house upon its completion and lived there until Ima Kaye commenced a divorce action against Richard in 1974. A divorce was granted to Ima Kaye on April 24, 1975. Insofar as the real estate is concerned, the divorce decree recites:
“The Court . . . finds . . .
“. . . that no finding should be made as to the ownership of the real property referred to in plaintiff’s petition . . . but determines that if the parties hereto have any interest in said real property then said interest should be divided equally between plaintiff and defendant . . .
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that plaintiff and defendant are each divorced from the other. . . .
“IT IS FURTHER ORDERED that any interest these parties might have in and to the following described real property, to-wit:
[Description omitted.]
said interest to be determined in any appropriate action for such purpose; shall be divided equally between plaintiff and defendant, each to own fifty per cent (50%) of whatever interest the parties might have.”
Jessie commenced this action for partition on June 20, 1975, naming Richard and Ima Kaye as defendants. In the petition he alleged that title to the land wás conveyed to the three of them as joint tenants in 1965; that he paid the purchase price, bought the materials and built the house; that he paid taxes and utilities and is the equitable owner of all of the real estate and improvements; that defendants claim some interest in the realty; that the realty is not a homestead and is susceptible of being partitioned; and that he desires to have the interests of the parties determined, and to own his interest in severalty.
Ima Kaye answered, claiming a Ms interest by virtue of the gift, and by reason of labor she expended in the construction of the improvements. She asked that the property be set off to her as her homestead, or in the alternative that she be given her proportionate share of the proceeds of sale. Richard did not file an answer. He appeared only as a witness for his father.
Following trial, the court found that Jessie, Richard and Ima Kaye acquired title as joint tenants; that Jessie paid for the land and the materials, and did the greater part of the labor in building the house, though the defendants did help him; that Jessie paid the taxes; and that the defendants borrowed some money on the real estate which was used to pay their debts. The sole conclusion of law reads:
“That said property should be partitioned and that under said partition action, the plaintiff should be granted full ownership to the real estate, and the Court does so order.”
The journal entry directs that ownership of the realty be vested in Jessie and that his title be quieted against the defendants.
Ima Kaye presents two points on appeal: that Jessie did not come into court with “clean hands” and therefore the court should have refused the equitable relief of partition; and that the court erred in awarding the entire property to Jessie.
Appellant’s first argument is this: that misconduct by Jessie caused the breakup of Ima Kaye and Richard’s marriage, and their divorce; that Jessie harassed appellant and caused her to move from the property; therefore, Jessie did not come into court with clean hands, and the trial court should have denied him the equitable relief he sought, partition of the property.
The clean hands doctrine provides in substance that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct. Green v. Higgins, 217 Kan. 217, 535 P. 2d 446, Syl. 1. However, as Justice Prager pointed out in that opinion, the clean hands maxim is not a binding rule, but is to be applied in the sound discretion of the court. Green, p. 220.
Partition provides a method whereby two or more persons who own property together may put an end to the multiple ownership, so that each may own a separate portion of the property or, if a division in kind is not feasible, the property may be sold and each owner given an appropriate share of the proceeds. It is said to be a right much favored in the law because it secures peace, promotes industry and enterprise, and avoids compelling unwilling persons to use their property in common. 59 Am. Jur. 2d, Partition, sec. 3, p. 773. The right of partition is said to be an incident of common ownership. 68 C.J.S., Partition, sec. 21, p. 33.
Justice Wedell, quoting from Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844, in Holland v. Shaffer, 162 Kan. 474, 178 P. 2d 235, said:
“ ‘As a general rule, a tenant in common of a fee-simple estate in real property is entitled to partition as a matter of right. Such right, however, is subject to the full power of the court to make a just and equitable partition between the parties and to secure their respective interests.’ ” (p. 479.)
He went on to say:
. . The right of partition is considered an incident of common ownership. It is based on the equitable doctrine that it is better to have the control thereof in one person than in several who may entertain divergent views with respect to its proper control and management. The general rule therefore is that all property capable of being held in cotenancy is subject to partition by judicial proceedings, the partition being either in kind or by appraisal and sale. . . .” (p. 480.)
A joint tenant is a cotenant owning an undivided interest in property, and partition may be had as between joint tenants to the same extent as between tenants in common.
The trial courts necessarily exercise wide judicial discretion in partition actions, but that discretion is exercisable primarily in the area of making a fair and just division between the parties. Courts may deny partition in order to prevent the remedy from becoming an instrument of fraud or oppression (Holland v. Shaffer, supra, p. 482) but we do not have that situation in the case before us. The claimed inequitable conduct of the plaintiff does not amount to fraud, and has no direct bearing upon the partition action. We conclude that the trial court did not abuse its discretion in directing partition of the property.
We now turn to appellant’s second claim of error, that the trial court erred in awarding the entire property to Jessie. We agree that the court did err in so ruling.
The record establishes that each of the three parties — Jessie, Ima Kaye, and Richard — owned an undivided one-third interest in this tract at the time suit was commenced, and had owned such interests for almost ten years, since the recording of the deed in 1965. Jessie made a gift of a one-third interest to his son and of a like interest to his daughter-in-law when the property was acquired. That Jessie paid the entire purchase price is immaterial.
This is not an action to set aside the deed; there is no claim of fraud, overreaching, or undue influence. This is simply an action to partition the land between the three cotenants. The court failed to find the essential fact of ownership by cotenants which stands unchallenged on this record, and to direct partition or sale and division of the proceeds accordingly.
Improvements added to a property by one of several cotenants may be the subject of a credit to that cotenant. The extent of the credit is not the cost of the improvement, but the amount by which the value of the property is enhanced at the time of sale. Ames v. Ames, 170 Kan. 227, 225 P. 2d 85; 68 C.J.S., Partition, sec. 139 d, p. 227; 59 Am. Jur. 2d, Partition, sec. 53, p. 812. Taxes paid by a cotenant may also be the basis for a credit. Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763.
The trial court should first determine the interest of each cotenant as required by K.S.A. 60-1003 (c) (1), taking into account not only the record title but the enhancement in value resulting from the improvements made by each, in the exercise of its primary powers to make a just and equitable partition and to secure the interests of each party. Stratmann v. Stratmann, 204 Kan. 658, 661, 465 P. 2d 938. Further proceedings are mandated by the statute.
For the reasons stated the judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is a criminal appeal by the defendant-appellant, Vincent Hernandez, from a conviction by a jury of possession of burglary tools (K. S. A. 21-3717).
The appellant and one Albert Brocato were apprehended by police in Leawood, Kansas, on July 25, 1975. Brocato was tried and convicted for possession of burglary tools at a separate trial. The facts surrounding the apprehension and arrest of Hernandez and Brocato are set out in State v. Brocato, 222 Kan. 201, 563 470, P.2d and will not be repeated here.
The appellant first contends the district court erred in receiving in evidence, over his objection, a sack, pry bar, and two pairs of gloves identified as state’s exhibits 1, 2 and 3, because there was no proper foundation laid for their admission. The appellant’s argument is essentially that the chain of custody was not properly established.
A brown paper sack containing a pry bar and two pairs of cotton gloves with nylon palms was thrown from the car the appellant and Brocato were driving while police officers were giving chase. The car was soon stopped, and the officers retrieved the sack and its contents from the street. At trial, both arresting officers identified state’s exhibits 1,2 and 3 as the paper sack and its contents they retrieved at the scene of the arrest. Officer Prince testified his identification of the items was aided by his property stickers he placed on each item the night they were recovered. The pry bar was especially identifiable because the end appeared to have been filed down.
The admissibility of physical evidence is within the sound discretion of the trial court and is to be determined by the court on the basis of its relevance and its connection with the accused and the crime charged. State v. Beard, 220 Kan. 580, 552 P. 2d 900; State v. Wilson, 215 Kan. 437, 524 P. 2d 224; State v. Robinson, 203 Kan. 304, 454 P. 2d 527.
The rule with respect to chain of custody and guidelines for the application thereof were set forth in State v. Tillman, 208 Kan. 954, 958-59, 494 P. 2d 1178, 1182:
“. . . The rule is that a party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary, however, that the object offered into evidence should have been kept continuously under lock-and-key or continuously sealed up. The preliminary proof of the identity of the object and that the same has not been improperly tampered with, is first to be determined by the trial court. It is not necessary that all possibility of its being tampered with should be excluded. (State v. Cook, 17 Kan. 392; State v. Frideaux, 207 Kan. 790, 487 P. 2d 541.)”
See State v. Beard, supra; State v. Baker, 219 Kan. 854, 549 P. 2d 911; State v. Steward, 219 Kan. 256, 547 P. 2d 773. The Tillman test for chain of custody has been characterized as “reasonable certainty that no material alterations of the objects occurred.” State v. Baker, supra; State v. Reed, 214 Kan. 562, 520 P. 2d 1314.
In the case at bar, the objects were positively identified at trial by both arresting officers as the objects they seized at the time of arrest. Officer Prince’s property stickers placed on the objects when they were recovered were still on them at trial. The objects were not of a nature subject to easy alteration, and there was no claim of alterations. While the chain of custody evidence is scanty, under the facts of this case the district court did not abuse its discretion in allowing admission of the exhibits.
The appellant next contends that the district court erred in admitting, over his objections, opinion testimony of Officer Prince concerning the possible use of the pry bar.
After Officer Prince had identified state’s exhibits 1,2 and 3, he testified that, based on his experience and knowledge as a police officer, the only difference he could see in the pry bar from an ordinary pry bar was that the end appeared to have been filed down. He testified he had been a police officer for six years and had seen similar items before. Thereafter, the following transpired:
“QUESTION: Based upon your experience and knowledge, do you have any opinion as to what these types of tools are used for?
“MR. BORNHOLDT: I object to that question as being without sufficient foundation.
“MR. COATES: Your Honor, I would simply state to the Court he has indicated that he has seen items such as that many times as a police officer. I think based upon his experience and knowledge, he is qualified to render an opinion as to what those tools can be used for.
“THE COURT: Objection overruled.
“ANSWER: The type of tool»would be normally used to pry any locked object or open something of that nature.”
Following this, the exhibits were received and admitted.
K.S.A. 60-419 provides that:
“As a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required. . .
K. S. A. 60-456(a) allows the admission of non-expert opinion testimony in the judge’s discretion, if he finds the opinion “may be rationally based on the perception of the witness and . . . helpful to a clearer understanding of his . . . testimony.”
In the case at bar, Officer Prince testified as to his perception of the specially customized pry bar, and that in the course of his six years as a law enforcement officer he had seen similar items before. The probative value of this testimony was enhanced by the officer’s opinion as to what such a tool would normally be used for. We think admission of the opinion testimony was well within the district court’s discretion under the foregoing statutes. A district court is vested with wide discretion in receiving opinion evidence. State v. Craig, 215 Kan. 381, 524 P. 2d 679; Osborn v. Lesser, 201 Kan. 45, 439 P. 2d 395.
The appellant’s final contention is that the verdict was not supported by substantial competent evidence. Sufficiency of the evidence was also attacked in State v. Brocato, 222 Kan. 201, 563 P. 2d 470. There we held the evidence was sufficent to raise a reasonable inference of guilt.
That holding is equally applicable to this appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
The single question in this appeal is the sufficiency of the service of summons to bring the defendant into court.
The action was to compel the defendant owner of a quarter section of land in Stafford county to remove a dam which interrupts and diverts the waters of Rattlesnake creek, which flows through his land and downstream therefrom through lands of plaintiffs, which are also situated in Stafford county.
Sometime in 1930 the defendant constructed a dam across Rattlesnake creek on his land, with the consequence that the natural flow of the creek was stored therein. Defendant diverted this water by a ditch leading from the dam, so that it never returned to its natural channel; and plaintiffs and other lower riparian landowners were thereby deprived of the natural flow of the stream to their permanent injury; and causing damages not easily measured or assessed.
Defendant resided in Reno county, and a summons issued to him out of the district court of Stafford county, directed to the sheriff of Reno county, was served on defendant by that officer in Reno county. Another summons to defendant directed to the sheriff of Stafford county was likewise served on defendant personally— presumably in Reno county — but on that point the record does not speak.
Defendant’s motion to quash both summonses was overruled and the cause proceeded to judgment. A mandatory injunction was granted, to the effect that defendant should cease to make permanent diversion of the water from the creek, that he should remove the dam and close whatever artificial ditch he has constructed or maintained which leads water permanently away from its natural channel in Rattlesnake creek.
The propriety of the court’s ruling on the motion to quash is to be determined by a careful examination of certain provisions of the civil code which read, in part, thus:
“Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in the next section: First — for the recovery of real property, or of any estate or interest therein, or for the determination in any form oj any such right or interest, or ter bar any defendant therefrom. Second — for the partition of real property. Third— for the sale of real property under a mortgage, lien or other encumbrance or charge.” (G. S. 1935, 60-501.) (Italics ours.)
“If the real property, the subject of the action, be an entire tract, and situated in tw.o or more counties, or if it consists of separate tracts situated in two or more counties, the action may be brought in any county in which any tract or part thereof is situated, unless it be an action to recover possession thereof; and if the property be an entire tract situated in two or more counties, an action to recover the possession thereof may be brought in either of-such counties; but if it consists of separate tracts in different counties the possession of such tracts must be recovered by separate actions, brought in the counties where they are situated.” (G. S. 1935, 60-502.)
Under the common law as frequently declared by this court, water in the natural channel of a running stream is an inseparable attribute of the land through which the stream flows. In legal parlance it is part and parcel of the land itself. (Shamleffer v. Peerless Mill Company, 18 Kan. 24, 33; Durkee v. Bourbon County Comm’rs, 142 Kan. 690, 693, 694, 51 P. 2d 984; Frizell v. Bindley, 144 Kan. 84, 91, 92, 58 P. 2d 95; Robertson v. Arnold, 182 Ga. 664, 186 S. E. 806.)
In this view, it seems clear that the plaintiffs’ action was “for the determination of a right or interest in land,” and “to bar defendant therefrom,” and therefore maintainable in the county where the land was situated — precisely as the civil code declares. (Patterson v. Mitchell, 135 Kan. 585, 589, 11 P. 2d 1022; Wells v. Higgins, 144 Kan. 155, 162, 163, 58 P. 2d 1097.) In 67 C. J. 808 the rule is thus stated:
“An action on the case for diverting a watercourse so far savors of the realty as to be classed with local actions and, in accordance with the general rule, must be tried in the county where the injury happened.”
Appellant cites cases where the principal relief sought by injunction was in. personam, and where it was held that such an action must be brought in the county where the defendant can be summoned in conformity with the statute. (Chambers v. Bridge Manufactory, 16 Kan. 270; Railway Co. v. Wynkoop, 73 Kan. 590, 85 Pac. 595.) Neither of these cases was brought for the recovery of an interest in land nor for the determination of plaintiff’s right thereto, or to bar the defendant therefrom. A careful reading of Heston v. Finley, 118 Kan. 717, 236 Pac. 841, also cited by defendant, should show that it was written with due deference to the provisions of the civil code which govern the present appeal — particularly the first paragraph of the syllabus and page 720 of the opinion.
Counsel for the appellees suggest that this appeal should- be dismissed, since it is mainly predicated on the trial court’s ruling on a motion to quash the summonses. Such a ruling is ordinarily not appealable before a final judgment is reached in the trial court {Harwi v. Harwi, 143 Kan. 710, 56 P. 2d 449). Here, however, a final judgment was entered. Consequently all the rulings adverse to defendant to which he made timely and pertinent objection might properly be the subject matter of an appeal, including, of course, the ruling on a timely motion to quash the summonses.
The record contains no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This case comes before this court on an appeal by the interpleader, First National Bank of Manhattan, in the suit of Brewer against Harris from a judgment rendered against the in-terpleader in the district court of Riley county.
This is a controversy between three claimants of a fund in the hands of the state highway commission, each claimant contending that he has the prior right to have said fund applied to the satisfaction of his claim. The fund in question consists of the final estimates due from the state of Kansas to one Wm. H. Harris on certain road contracts performed by Harris for the state highway commission.
Suit was originally instituted by C. C. Brewer, doing business as the Brewer Motor Company at Manhattan, against Wm. H. Harris for recovery upon a promissory note. After filing the petition, and before judgment, a garnishment summons was issued to the state of Kansas to subject funds due Harris from the state highway commission, in the amount of $3,122.10, to the payment of Brewer’s claim. Thereafter the auditor of state filed his answer admitting a contingent liability to Harris in the above amount, but stated that the First National Bank of Manhattan and the Massachusetts Bonding and Insurance Company each claimed some interest in the garnished fund, and asked that they be interpleaded in the garnishment action.
Thereafter judgment was rendered in favor of C. C. Brewer against Harris in the amount of $1,935.54, the interpleaders were duly served with summons and made parties defendant to the garnishment action, and the state of Kansas paid the sum of $3,122.10 into the office of the clerk of the district court of Riley county.
The issues framed by the pleadings and the contentions of counsel presented only the question of priority of claims between the various claimants to the garnished fund. Plaintiff Brewer claims priority to the fund by reason of his garnishment of the fund and his judgment against the defendant Harris. The interpleader, First National Bank, claims priority to the fund by reason of a purported assignment from defendant Harris to the proceeds of certain construction contracts by reason of which the state of Kansas was indebted to defendant Harris in the amount garnished. The interpleader, Massachusetts Bonding and Insurance Company, claimed a priority to the fund upon the theory that it was entitled to an equitable lien by reason of its position as surety for the contractor Harris, and its alleged- liability for unpaid material and labor bills incurred in the performance of the contracts for road construction by Harris.
The First National Bank asserts that on or about the 30th of January, 1936, Wm. H. Harris, a contractor, contemplated placing his bids for certain road-construction work with the State Highway Commission of Kansas, and later was awarded the contract for such construction. Harris applied to the bank for a line of credit to finance such construction work. The answer of the defendant bank states: “That on or about said January 30, 1936, he orally proposed to respondent that if respondent would advance the funds necessary to be paid by him upon said jobs for material and labor, he would cause the checks issued by the state highway commission in payment of his contract obligations to be delivered by such commission to this respondent. This respondent, in reliance upon said proposal, thereupon agreed to finance said defendant.”
A statement from the state highway commission, attached to the affidavit of the garnishee, contains the following:
“You are further advised that under- date of May 5 the highway commission received a letter from Wm. H. Harris asking that all estimates be mailed to the First National Bank of Manhattan, which letter was answered under date of May 20. That copies of such correspondence are hereto attached marked exhibits ‘E’ and ‘F.’ That the highway commission did not understand that such correspondence was in any wise intended as an assignment but merely as an address and that the answer of the highway commission dated May 20, 1936, is a form letter used to answer all similar requests and is in words identical with other letters written to banks and particularly letter dated March 30, 1936, concerning Wm. H. Harris and the First National Bank of Manhattan, Kansas. You are advised, however, that the highway commission has been informed that the First National Bank of Manhattan is claiming some interest in such funds. Attached to said document are photostatic copies of applications by Wm. H. Harris, with bids for projects No. 4-1F 6774, Ness county, Kansas. Attached to said document are exhibits referred to in said last-named letter, including exhibit ‘E,’ which is as follows:
“ ‘May 6, 1936.
Mr. Harv Goodyear, State Highway Commission, Topeka, Kansas.
Dear Mr. Goodyear — Will you please write my bank, the First National Bank, Manhattan, Kansas, that you will mail all estimates to them on project 283-9-6782, project [ XXX-XX-XXXX ], project 4-1F-6773, and project 4-1F-6774.
Thank you very much. Yours truly,
.WHH/f (Signed) Wm. H. Harris.
Wm. H. Harris.’
“Also, exhibit ‘F,’ which is as follows:
283-9-6782 [ XXX-XX-XXXX ] ‘May 20, 1936.
4-1E-6773 4-1F-6774
First National Bank, Manhattan, Kansas.
Gentlemen — We have a letter from Mr. Wm. H. Harris, contractor, Manhattan, Kansas, requesting us to write your bank stating that we will mail all checks due him for the estimates earned on the above noted projects to your bank.
This request will be complied with to the best of our ability unless prior assignments are filed with us. Very truly yours,
HRG-JK H. R. Goodyear, Auditor.
CC Mr. Wm. H. Harris, contractor, 1017 Thurston, Manhattan, Kansas.’ ”
The trial court found that the interpleader, First National Bank, had no lien upon or claim to any of the garnished funds; that the interpleader, Massachusetts Bonding and Insurance Company, had a first lien on the funds in the amount of $2,016.50, for labor and material claims paid by it under its obligation on the bond as surety of the contractor, Harris; that plaintiff Brewer had a second lien upon the funds in the amount of his judgment against Harris. Any part of the fund remaining was given another claimant, Graham.
The first assignment of error is that the court erred in exclusion of testimony as to the circumstances of the loan by the bank to Harris. The record fails to show that the testimony, the exclusion of which is complained of as error, was produced at the hearing of the motion for a new trial by affidavit, deposition or oral testimony of the witnesses. Compliance with the statute G. S. 1935, 60-3004, is a prerequisite to having such alleged error reviewed by this court. (Ryan v. Harwood, 145 Kan. 267, 65 P. 2d 277.)
The second and third assignments of error state that the court committed error in rendering judgment in favor of the bonding company and in favor of Brewer. This statement specifies no error for our consideration. In Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372, it was said:
“The assignment that the court erred in rendering the judgment which it rendered merely says the judgment is wrong, and does not specify any error. . . . Consequently, there is nothing for the court to consider.”
The record fails to show the action of the trial court in overruling the bank’s motion for a new trial was assigned as error. This precludes any review of any questions arising on the trial of the cause. (Gas Co. v. Dooley, 73 Kan. 758, 84 Pac. 719; Bennett v. Supply Co., 80 Kan. 437, 102 Pac. 511.) The fourth specification of error was that “the court erred in refusing to render judgment in favor of First National Bank in accordance with the pleadings of said bank' and the evidence.”
In this state of the record there is serious doubt whether there is any question for review presented by the appeal. We shall, however, state our views on the controlling question in the case.
The claim of the bank to priority rests on the assumption that there was an assignment of the fund by Harris to the bank. It is asserted the evidence of the assignment consisted not only in the letter from Harris to the highway commission, but in the contract between Harris and the bank, and the conduct of the parties. It is asserted that “the conduct of the parties absolutely establishes the terms of this contract and that the money here paid into court had theretofore been irrevocably assigned to the intervener bank.”
Does the record show a valid assignment of the fund by Harris to the bank? The highway commission, in the statement above quoted, did not understand that the letter from Harris was in any wise intended as an assignment, but merely an address to which all checks due him for the estimates should be sent. It is admitted that checks for the estimates were made out in the name of Harris and mailed to the address indicated by the letter. The letter contained no operative words of assignment. The letter merely requested the commission to write a letter to the bank stating that all estimates would be mailed to them. It does not indicate an irrevocable appropriation of the funds. If it amounted to anything more than a mailing address it could only rise to the dignity of an order that was revocable at the pleasure of Harris. An assignment is an expression of intention by the assignor that his right shall pass to the assignee. The letter written by Harris does not manifest an intention to transfer his right and interest in the fund to the bank. There is nothing that would indicate an intention to make an irrevocable appropriation of the fund. The mere mailing of the checks payable to Harris to the bank as directed would not translate a mere order or direction into an assignment and transfer of ownership. While no particular form or mode is necessary to effect a valid assignment, yet the intent to transfer and make over to another the property in question must be clearly established. (Hall v. Terra, Cotta Co., 97 Kan. 103, 154 Pac. 210; Turner v. Williams, 114 Kan. 769, 226 Pac. 267; 6 C. J. S. 1089.)
One further point must be noted. The bond given by the in-tervener, Massachusetts Bonding and Insurance Company, was the statutory bond provided by G. S. 1935, 68-410. It is argued that the bonding company, in paying certain claims that were not itemized, verified and filed with the highway commission, was a mere volunteer, and that such volunteer payments would not displace the equities of other claimants. But, since we have found the bank was not an assignee of the fund, and since the plaintiff Brewer has not appealed from the judgment below, we find it unnecessary to determine this interesting question.
For the reasons stated the appeal of the bank must fail. As no appeal was taken by Brewer he cannot complain.
The judgment is affirmed. | [
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The opinion of the court was delivered by
AlleN, J.:
Leo H. Zeilinger was prosecuted on the charge of statutory rape upon Frances Hoey, a female under the age of eighteen years. He was found guilty and appeals.
The complaining witness, Frances Hoey, is a stepdaughter of the defendant and was thirteen years of age at the time the offense was committed.
The information was in three counts. The first count charged an offense on the-day of January, 1937; the second count charged an offense on February 13, 1937; the third count charged an offense on February 15, 1937. The second count was dismissed. The defendant was tried, and the jury returned a verdict finding the defendant guilty as charged in the third count of the information.
Defendant contends the trial court erred in refusing to allow the defendant to cross-examine the complaining witness in regard to an alleged act of intercourse on February 13, 1937. It has been repeatedly held that the extent .to which a witness may be cross-examined is largely in the discretion of-the trial court, and that unless prejudice is shown, or that the court abused its discretion, there will be no reversal. (State v. Owen, 124 Kan, 533, 261 Pac. 600; State v. Allen, 98 Kan. 778, 160 Pac. 795; State v. Smith, 114 Kan. 186, 217 Pac. 307; State v. Pfeifer, 143 Kan. 536, 56 P. 2d 442.)
The second count of the information had been dismissed, and the record does not show that the alleged offense on that date had been touched upon in the direct examination. (State v. Moore, 110 Kan. 732, 205 Pac. 644; State v. Long, 103 Kan. 302, 175 Pac. 145.)
We think there was no abuse of discretion by the trial court in limiting the scope of the cross-examination.
Defendant further argues that the evidence as to the offense on February 13 was competent to show the physical condition of the complaining witness. However, the defendant failed to introduce any evidence, either by affidavit or otherwise, on the motion for a new trial or on the motion for a rehearing on the motion for a new trial, showing what her physical condition was, and under the statute is precluded from raising the question on this appeal. (G. S. 1935, 62-1414, 60-3004; State v. Vandruff, 125 Kan. 496, 264 Pac. 1060.)
Defendant objects to the testimony of the witness Issitt, which was offered by the state in rebuttal on the motion to rehear the motion for a new trial. The name of this witness was not endorsed on the information. The testimony of Issitt consisted of an admission made by the defendant and was -offered in rebuttal of the recanting testimony of the complaining witness. The trial court ruled that this testimony had a “bearing upon the question whether or not this girl told the truth.” We think the testimony was ad missible for that purpose. (State v. Turner, 121 Kan. 364, 247 Pac. 427.) It was not necessary that the name of this witness should have been endorsed on the information. (State v. Morris, 131 Kan. 282, 291 Pac. 742; State v. Wood, 118 Kan. 58, 233 Pac. 1029; State v. Tassell, 87 Kan. 861, 126 Pac. 1090.)
At the hearing on the motion for a new trial, Doctor Kirby testified that he had been treating the defendant in the early part of March, 1937, and that his physical condition was such that he could not have committed the crime as charged. The trial court ruled that this statement was not newly discovered evidence — that, if true, it was known by the defendant at the time of the trial. There was no error in refusing a new trial on this testimony. (Morgan v. Bell, 41 Kan. 345, 21 Pac. 255; Thisler v. Miller, 53 Kan. 515, 36 Pac. 1060.)
It is asserted that the defendant did not have a fair and impartial trial for the reason that the jury apparently acted under the influence of passion and prejudice. A careful study of the record fails to disclose any basis for this assertion. Besides, it does not appear that any evidence showing the jury acted under passion and prejudice was introduced at the hearing on the motion for a new trial, or on the motion to rehear that motion. Any errors in the trial which are not clearly presented on the motion for a new trial are unavailing on appeal. (State v. Harrison, 128 Kan. 284, 276 Pac. 818; State v. Bell, 121 Kan. 866, 250 Pac. 281.)
Finally, it is insisted the court erred in overruling the motion for a rehearing on the motion for a new trial. The point is based on the recanting affidavit of the complaining witness and her testimony given on the motion to hear the motion for a new trial. It appears that the recanting affidavit of the complaining witness was made after the defendant himself conveyed her to Wichita, and was sworn to in the office of defendant’s attorneys. In the recanting affidavit the witness stated that her original story of the crime was prompted by the undersheriff Hubbard. However, on cross-examination on the motion for a rehearing she admitted the officer advised her to tell the truth. Her recanting affidavit was refuted by the testimony of former undersheriff Robert Hubbard, Probate Judge D. W. Nickels, secretary to the probate judge, Oleta Aker, chief of police Delmar Nelson and marshal William Issitt. The girl admitted that she related the facts regarding the offense to a number of persons when she was brought to the sheriff’s office on March 2. She made a statement' again at the preliminary hearing in March and again told her story at the trial in September, which was six months later. The whole matter could not be summed up better than was stated by the trial court at the time the court overruled the motion to rehear the motion for a new trial. The concluding statement of the court was:
“But when the court is confronted with the proposition of her having made this statement to the sheriff, of having made it to the county attorney, of having made it to the probate judge, of having testified to it upon the preliminary examination, and having testified to it in court, and then he is to set over against that her statement made when she is conveyed by the defendant to the office of his lawyer, which time shall the court say she told the truth? That is the situation. That is what confronts the court at this time.
“I think the motion for a rehearing should be denied, and that will be the order of the court.”
It is only in extraordinary and unusual cases that the court should grant a new trial because of the recanting testimony of the complaining witness on the motion for a new trial. We have examined the testimony and cannot say the court erred in refusing a new trial. (State v. Birzer, 126 Kan. 414, 268 Pac. 842.)
Finding no error in the record, the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover the proceeds from the sale of a lost or misplaced United States government bond. Defendant’s demurrer to the petition was sustained on the ground the action was barred by the statute of limitations. From that ruling plaintiff appeals.
The material facts contained in the petition were in substance as follows: Plaintiff resided at Independence. She was and is the owner of coupon bond No. 67,296F for $1,000 of the treasury 3-%’s (1940-1943) bonds, which bond in some way unknown to her became misplaced or lost. Plaintiff made diligent search for the bond but was unable to locate it until finally, through the aid of the treasury department at Washington, D. C., she first discovered on or about June 17,1936, that the defendant, M. A. Norlin, had the bond in his possession, and that defendant failing to locate the owner thereof, had sold and delivered the bond to Harris, Upham & Co., brokers of Kansas City, Mo., on or about May 29, 1933, and had received the proceeds thereof. The first notice plaintiff obtained that defendant had the bond was by letter from the treasury department dated June 17, 1936, copy of which letter is attached to the petition and made a part thereof.
The material portion of the letter from the treasury department was as follows:
“As you were previously informed, bond No. 67,296F was received in the department in regular course of business on June 3, 1933. In order to furnish you all the information available in regard to the transactions in connection with this bond, this office, with the aid of the various agencies through which the bond passed, traced the source of its receipt, and found that it was purchased by Harris, Upham & Company, Kansas City, Mo., on May 29, 1933, from Mr. M. A. Norlin, who formerly lived in Independence, Kan., but who now resides in Hutchinson, Kan. In reply to a letter addressed to Mr. Norlin inquiring how the bond came into his possession, this office has been informed that he found a government bond in his safe deposit box in the First National Bank in Independence some time in March, 1933, and that he was unable to determine how the bond first appeared in the box. Mr. Norlin further states that after an unsuccessful effort to locate the owner, he finally sold the bond, he presumes in May, 1933. Copies of Mr. Norlin’s letters of January 29 and April 14, 1936, are enclosed for your information.” (Italics inserted.)
After plaintiff learned defendant, M. A. Norlin, had sold and cashed the bond and that defendant had the proceeds thereof, plaintiff immediately made demand both orally and in writing upon defendant for the proceeds of the bond, and made demand upon defendant to account to her for the proceeds, but that defendant failed, neglected and refused to account for the proceeds thereof. That there is due to plaintiff from defendant the sum of $1,016, with interest thereon from June 1,1933, at the rate of six (6%) percent per annum, from the proceeds of the bond.
Was the action barred? It will be observed the action was not for the recovery of the bond, but was brought for the purpose of recovering the proceeds resulting from the conversion thereof. When appellee found the bond in his deposit box he did not acquire title thereto nor the right to possession thereof as against plaintiff, the true owner. (25 C. J., Finding Lost Goods, § 3.) He sold the bond and converted the proceeds thereof to his own use. In 65 C. J. 11, “conversion” is defined as follows:
“Conversion is ‘an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner’s rights.’ ” (See, also, Taylor v. Missouri Central Type Foundry Co., 143 Kan. 175, 180, 53 P. 2d 815.)
The bond had been redeemed by the government and could, of course, not be recovered. Plaintiff’s petition clearly discloses she waived the tort and based her action for the recovery of the proceeds, resulting from the sale or conversion of the bond, on the theory of implied contract. In other words, the action was in the nature of an action for money had and received to his use. In 25 C. J., Finding Lost Goods, § 16, it is said:
“The true owner may enforce his rights against the finder by trover, or replevin, or, if it was money that was lost, the owner may bring an action against the finder for money had and received.”
In 1 C. J., Actions, § 159, it is declared:
“The rule is well settled that, where personal property has been wrongfully taken and converted into money or money’s worth, the owner may waive the tort and sue the wrongdoer in contract for money had and received, upon the theory that he ratifies the sale as made for his benefit, and sues to recover the proceeds as money had and received to his use.”
See, also, Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Lipscomb v. Bank, 66 Kan. 243, 71 Pac. 583; Altman v. Bank, 86 Kan. 930, 122 Pac. 874.
In the Lipscomb case it was held:
“The owner of property which has been stolen or embezzled, may waive the tort and sue on the implied contract, and in such action he may have an attachment against the nonresident defendant.” (Italics inserted.)
In 1 C. J., Actions, § 169, the rule as to limitations of actions is stated thus:
“Where one waives a tort and sues in contract he necessarily waives the entire tort, . . . Where a tort is waived and an action brought in contract, the case is governed by the rules and principles applicable to the latter form of action, as in regard to . . . the statute of limitations applicable, . . .” (Italics inserted.)
See, also, Restatement, Restitution, §§ 121, 128, and introductory note to chapter 7. In the introductory note it is indicated the election to bring the action of assumpsit is not a waiver of the tort, but is the choice of one of two alternative remedies. Whether the action be construed to constitute a waiver of the tort or only a choice of remedies, the remedy chosen was barred within three years. (G. S. 1935, 60-306.)
The appellee found the bond in February or March of 1933. He converted it by selling it to a bond broker on May 29, 1933. The present action was not commenced until December 8,1936. Clearly the action was commenced not only more than three years after the bond was found, but also more than three years after the date of its conversion.
Appellant insists appellee having found the bond, he was under no obligation to deliver it until a demand was made for its surrender and hence no cause of action accrued until a demand was made. She therefore urges the statute of limitations did not begin to run until the date of the demand. In support of the contention various cases are cited involving the law of principal and agent and other fiduciary relationships. They are not controlling in the instant case. In them the agent was under a legal duty to account to his principal, and his concealment of the true facts constituted actual fraud or amounted to conduct in the nature of a fraud upon his principal. True, in cases of fraud, the statute of limitations does not begin to run until the discovery of the fraud. The statute so provides. (G. S. 1935, 60-306, third.) This action was not grounded on fraud. The petition alleged that appellee, "failing to locate the owner thereof, had sold and delivered the bond.” The letter from the treasury department, attached to the petition, sets forth ap-pellee’s conduct as follows: “Mr. Norlin further states that after an unsuccessful effort to locate the owner, he finally sold the bond.” (Italics inserted.) These are not allegations of fraud, but on the contrary constitute an admission of appellee’s failure to locate the owner after an effort to do so. Moreover, it can hardly be said that the sale of a government bond to a bond broker, after such failure to locate the owner, constituted concealment. The government redeemed the bond on June 3, 1933, which was more than three years and six months before this action was begun.
Plaintiff further urges the statute of limitations could not begin to run until she discovered who had found the bond. The statute makes no exception as to “discovery,” except in cases of fraud. We are not permitted to read other exceptions into it, and the fact a party does not know he has a cause of action does not prevent the running of the statute of limitations. (Regier v. Amerada Petroleum Corp., 139 Kan. 177, 183, 30 P. 2d 136.)
Appellant suggests appellee’s conduct constituted constructive fraud. The petition does not appear to have been drawn on such a theory. The finding of the bond was in no wise wrongful. The sale of it, after failure to locate the owner, constituted neither actual nor constructive fraud, but conversion. The averments of the petition disclose the conversion, the tort, was waived and that recovery was sought on the theory of an implied contract to pay its value. When plaintiff sued on implied contract she waived the entire tort. The nature of the cause of action must be determined from the pleadings. (Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Webb v. Crawford County Comm’rs, 127 Kan. 547, 274 Pac. 249.) In the latter case it was said:
“The nature of a cause of action, whether based on tort or on quasi contract, is to be determined from the allegations of the petition. When doubt exists words appropriate to an action for tort will be disregarded, and the petition will be interpreted as counting on quasi contract. (Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Delaney v. Implement Co., 79 Kan. 126, 98 Pac. 781; Douglass v. Loftus, Adm'x, 85 Kan. 720, 727, 110 Pac. 74.)” (p. 549.)
Appellant cites the early case of Daniel v. McLucas, 8 Kan. App. 299, to the effect that discovery of lost or stolen property and a demand on an innocent holder for possession are necessary to start the running of the statute. That was an action for the recovery of the lost or stolen property. It was not an action in which the tort was waived and recovery of the proceeds of the sale was sought on the theory of an implied contract. It is also well to note the opinion took no notice whatsoever of the fact that in an action for the recovery of property taken or detained, the statute made no exception to the effect that the cause of action did not accrue until the discovery of its location. (G. S. 1935, 60-306, Third.) Under the allegations of the petition appellant’s ignorance of the location of the bond was not due to conduct of the appellee. No fraud or even concealment of the location of the bond having been pleaded in the instant case, the cause of action accrued upon the date of the conversion of the bond and not from the date of the discovery of its location by the owner. (Bennett v. Meeker, 61 Mont. 307, 202 Pac. 203; Adams et al. v. Coon et al., 36 Okla. 644, 129 Pac. 851; Shelby v. Shaner, 28 Okla. 605, 115 Pac. 785; McGehee v. Alexander, 33 Okla. 699, 127 Pac. 480; Torrey v. Campbell, 73 Okla. 201, 175 Pac. 524.)
In the Bennett case it was said:
“The application of this subdivision of the law may appear rigid and unfair, and it finds its way into the statutes doubtless upon the theory that under the law of averages it gives the greatest good to the greatest number in tolling the rights of negligent claimants. The remedy for curing its apparent defects with respect to diligent and honest owners rests with the legislature and not with this court.” (p. 311.)
We have carefully noted all the authorities cited by appellant, but they do not quite reach the point in issue. This court is no more in sympathy with the retention by appellee of the proceeds from the sale of the bond than is the appellant, but in view of what has been said it is clear we cannot reverse the ruling of the trial court. The order sustaining the demurrer to the petition must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
Plaintiff invokes this court’s original jurisdiction in mandamus to compel obedience to an order of the state tax commission which directed a refund of certain taxes paid under protest in Chautauqua county.
The application for the alternative writ alleged that plaintiff owned certain property subject to taxation in Chautauqua county and in school district No. 44 and school district No. 83 therein; that in the year 1935 certain illegal and excessive taxes were levied for the county road fund, and for the general funds of those two school districts; that plaintiff paid those taxes in due time, but under formal, written protest, following which he instituted a proceeding before the state tax commission for such redress as the statute provided; that on November 23,1936, after due notice to the defendant county board and to the county treasurer and to the two school districts concerned, and upon full hearing and consideration of the evidence and argument, the state tax commission made an order directing the county treasurer of Chautauqua county to refund to plaintiff certain amounts of money then in his hands which plaintiff had paid under protest, and ordering the treasurer to cancel so much of the unpaid taxes as had been illegally levied. The sums thus ordered to be refunded were:
From the county road fund levy. $728.47
From the S. D. No. 44 general fund levy. 354.68
From the S. D. No. 83 general fund levy. 213.17
In their answer and return to the alternative writ, defendants have interposed a general and specific denial, but it is clear from the entire record and from the briefs that no controverted issue of material fact is intended to be raised. What is contested is the authority of the state tax commission to make the order sought to be enforced in this proceeding. Counsel for the defendants presents three points which he states thus:
“(a) The only basis for ordering the refund was that the respective levies exceeded budgetary requirements.
“(b) In making the order, the tax commission was merely substituting its discretion for the discretion of the lawfully constituted taxing authorities.
“(c) The order shows on its face that it is contrary to law.”
The proper disposition of these points requires consideration of the allegations of the alternative writ, the facts as found in the order of the state tax commission, and the pertinent provisions of the taxation statutes.
It appears that in 1934 the board of commissioners of Chautauqua county adopted a budget providing for a county road fund of $39,000 for 1935. In 1935, when the county board met to prepare the budget for the year 1936, it made a supplementary budget for the balance of the year 1935- — from July 1 to December 31. There was at the time an unexpended balance of $6,115.30 in the fund which had been raised pursuant to the budget of 1934. This supplemental budget for 1935 called for an additional amount of $18,-165.30.
Assuming that the proper steps were invoked by plaintiff or by any aggrieved taxpayer, could not this supplemental budgetary estimate and the tax imposed to raise it be suppressed or corrected?
What statutory authority exists under which such a supplementary budget could be made and a tax levied to meet it? The statute (G. S. 1935, 79-2005) prescribes a method by which an aggrieved taxpayer may save his rights when he pays an illegal tax. He can file a written protest with the county treasurer clearly stating the grounds on which the whole or any part of the tax is protested and citing the law or the facts on which he relies as the basis of his protest.
By another provision of statute (G. S. 1935, 79-1702) a protesting taxpayer may present his grievance to the state tax commission—
“And the said commission shall have full authority to inquire into the grounds of complaint, and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax, if uncollected, together with all penalties charged thereon, or if the tax has been paid by ordering a refund of the amount found to have been unlawfully charged and collected.”
In Robinson v. Jones, 119 Kan. 609, 240 Pac. 957, mandamus was invoked to compel the board of county commissioners of Butler county and the county clerk to obey an order of the state tax commission directing cancellation and refunding of certain taxes. This court held the order void, but the status of the state tax commis sion’s place in our system for the administration of the law pertaining to taxation was thus stated:
“The tax commission is an administrative body, and its decisions in all matters within the scope of its supervisory power, involving administrative judgment and discretion, are conclusive upon subordinate taxing officials. In the exercise of its functions, the tax commission must as a matter of necessity interpret the tax laws, and such interpretations are prima facie binding.” (p. 612.)
In another recent case, In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465, 37 P. 2d 7, where the state tax commission had refused to grant a refund of alleged excessive taxes paid under protest, and the district court had dismissed the protesting taxpayer’s action, this court, in affirming the judgment, said:
“When the state tax commission conducted a hearing and found that the balances in the various funds of the taxing districts of Butler county were not so large as to establish the railway company’s complaint that the taxes collected on its property were excessive and unreasonable, that conclusion and determination was not a judgment or decree of a judicial nature from which an appeal would lie. It was merely the disposition of a matter which the legislature had lodged in its administrative discretion.” (p. 470.)
• In Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936, certain railroad companies paid taxes under protests which conformed with the statute pertaining thereto. Through the proper procedural steps the protesting taxpayers brought their grievances before the state tax commission. That tribunal, upon notice to all concerned, and after a hearing, made a finding that the protests were well founded, and ordered the county treasurer to refund certain sums of the protested tax moneys. The Kaw Valley Drainage District, which was chiefly concerned in the alleged excessive and illegal tax exactions which the order of the state tax commission sought to redress, brought an action in the district court to enjoin the county treasurer from obeying the order of the state tax commission. Injunction being denied below, the cause was appealed to this court. In the opinion affirming the judgment, this court, in part, said:
“And fliis leads us logically to appellant’s next contention, which is that the state tax commission had no authority to consider and sustain the protest of the railway companies in respect- to the general-fund levy of the drainage district for 1932, nor to order a refund of the taxes illegally levied and paid under protest by the railway companies. On this question of law, certain pertinent sections of the tax law will require examination. R. S. 79-1702, in substance, provides that where a taxpayer has a grievance not otherwise remediable he can have redress through the state tax commission, which is given power, among other matters, to order a refund of the amount found to have been unlawfully charged and collected. R. S. 1933 Supp. 79-2005 also directs what preliminary steps a protesting taxpayer shall take to perfect his right to recover taxes illegally exacted. Of what avail would it be for him to conform to these steps if they were not intended by the legislature to lead to their logical fruition?” (p. 624.)
In Beacon Publishing Co. v. Burke, 143 Kan. 248, 53 P. 2d 888, mandamus was invoked to compel obedience to an order of the state tax commission directed to the proper county officials of Sedgwick county to cancel an excessive valuation of plaintiff’s property and to apply the proper levy to the valuation fixed by the state tax commission. In a painstaking opinion by Mr. Justice Hutchison the pertinent statutes and decisions dealing with the powers of the state tax commission were considered, and obedience to the order of the commission was required by mandamus. The case of Allen v. Burke, 143 Kan. 257, 53 P. 2d 894, was to the same effect.
It will thus be seen that the powers, duties and supervisory responsibilities of the state tax commission are coextensive with the state’s entire scheme of taxation, and defendants’ objection that “the tax commission was merely substituting its discretion for the discretion of the lawfully constituted taxing authorities” is not good. The state'tax commission is the paramount, lawfully constituted taxing authority. (Robinson v. Jones, 119 Kan. 609, 612, 240 Pac. 957.) Elsewhere in the same opinion it was said:
“A board of county commissioners ... is a part of the taxing machinery and, as such, subject to control by the tax commission.” (p. 612.)
Counsel for defendants cite such cases as Chicago, R. I. & P. Rly. Co. v. Paul, 139 Kan. 795, 33 P. 2d 304, where this court held that the mere fact that a tax levy is excessive — that it is higher than the budgetary estimates would appear to justify — is not a sufficient basis for the recovery of any portion of the taxes paid under protest pursuant to such seemingly excessive levy. The present action, however, is not a suit to recover taxes paid under protest, but a proceeding in mandamus to compel obedience to a prima facie valid order of the state tax commission. And while it is quite correct that an order of the tax commission does not have the potency of a final judgment of a court of competent jurisdiction, yet, as said in Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 518, 27 P. 2d 229, a decision of the state tax commission is prima facie binding. The legal potency of an order of the commis sion was similarly stated in Kaw Valley Drainage Dist. v. Zimmer, supra.
But although the order of the state tax commission is only prima facie valid, and subject to judicial scrutiny, what infirmity in the order is disclosed under the strictest scrutiny? None whatever! The vice of the levy was not merely that of being excessive'; it was altogether illegal and imposed without any shadow of statutory authority, express or implied. The budget requirements for 1935 were made in 1934. When the county board met pursuant to the statute to make the budget for 1936 (G. S. 1935, 79-1802, 79-2927), it had no power to impose the additional levy for 1935. The illegality of such a levy was indisputable. Plaintiff therefore had a right to interpose a written protest when he paid his taxes. And the redress he sought and obtained from the state tax commission was regular and appropriate, although it was not his exclusive means of redress. (Railway Co. v. Greenwood County, 104 Kan. 818, 180 Pac. 785; Bank of Holyrood v. Kottmann, 132 Kan. 593, 595, 296 Pac. 357.)
Touching so much of the" order of the state tax commission as directed a refund of the protested taxes of school district No. S3, we are advised that the tax commission’s order has been complied with insofar as that district is concerned. The finding and order of the commission in respect to the levy for school district No. 44 reads:
“The county clerk extended a levy of 17.30 mills against the property of this district [No. 44], which the applicant contends is excessive to the extent of 5.85 mills, for the reason that the levy produces a sum in excess of the budgeted requirement. The school district represents that the only contention on the part of the applicant is that the levy produces an excessive amount of taxes. The budget of school district No. 44 calls for an ad valorem tax levy of $14,731.21. A levy of 17.50 mills produces the sum of $22.336.59, which is greatly in excess of the amount actually required, as shown by the budget. There being no dispute as to the correctness of the figures submitted by the applicant, the tax commission finds that the rate of levy is excessive to the extent of 5.85 mills, which applied to the applicant’s valuation produces an illegal tax of $354.68. The county treasurer of Chautauqua county, Kansas, is ordered and directed to refund said amount to the applicant.”
As a justification for their refusal to refund the protested taxes in conformity with the finding and order quoted above, defendants cite G. S. 1935, 10-1120, which declares:
“The levying of a tax by any municipality which raises more money than is used or needed for the tax year shall not be the basis of a protest by any taxpayer and all such protests shall be of no force or effect.”
Of course that statute means what it says. The levying of a tax in excess, of the needs of the taxing district is not a sufficient basis to constitute the protest which by other statutes a taxpayer is authorized to interpose. But that statute does not strip the taxpayer of all legal redress for the imposition of illegal taxes. In discussing that statute, in Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936, we said:
“We construe this section to mean just what it says and no more. The statute does not say — and no reasonable application of the rules of statutory construction would justify its interpretation to mean — that the general provisions of the taxation statute are to be superseded and that an excessive levy of taxes is hereafter to be remediless to an aggrieved taxpayer.” (p. 624.)
It follows that a peremptory writ of mandamus should issue to defendants requiring them to refund the taxes paid by plaintiff as directed by the state tax commission. It is so ordered.
Haevey, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action by a common-school district to recover from its treasurer and his bondsmen $450 which it is alleged he paid unlawfully out of the funds of the district. A jury trial was waived. The trial court made findings of fact and conclusions of law and rendered judgment for plaintiffs. Defendants have appealed.
The facts are not seriously controverted and may be stated as follows: Common-school district No. 110, in Marion county, covers quite an area in Colfax township, the school building being near the town of Tampa, a city of the third class. On the other side of the township road, and a few hundred feet from the school grounds of the common-school district, are the school grounds and building of a rural high-school district. In 1935 the officers of school district No. 110, proceeding under the statutes relating thereto, prepared a budget and certified the same to the county clerk. This listed sums needed for teachers’ salaries and supplies, other salaries and supplies, fuel; light and water, a nominal sum for new equipment, and $126.92 for miscellaneous purposes. The budget did not provide for raising any money for new land and buildings, or for playground equipment.
In January, 1936, the NYA, an agency of the federal government, and the officers of the rural high-school district entered into a written agreement to build a swimming pool on or near the rural high-school grounds, and the officers of the city of Tampa and of school district No. 110 agreed orally to contribute to the cost thereof. The school district’s contribution was to be $450. A school warrant for that amount was drawn on its miscellaneous fund. This was signed by the director and clerk and countersigned by the treasurer, J. F. Rhodes, and he paid the amount out of the school funds on hand on this swimming-pool project.
The trial court concluded that the payment by the defendant Rhodes of the sum was unlawful, for the reason that it was an appropriation of money for construction upon property not owned by the school district, of which he was treasurer, and for the further reason that it was an appropriation of funds of the school district for purposes other than those for which they had been raised.
It is not contended the school district had any money on hand to be expended for the purpose for which this $450 was paid. The budget offered in evidence had not provided for it. The statute (G. S. 1935, 79-2934) provides the funds raised by the budget shall not be used for any other purpose, and payments for purposes not provided for in the budget are unlawful and void as against the taxing subdivision (G. S. 1935, 79-2935). These provisions are in harmony with article 11, section 5, of our constitution. They should not be disregarded. The judgment of the trial court was in harmony with them.
The appellants point to the section of the budget act (G. S. 1935, 79-2936) which provides that an official who violates the provision of the act is subject to removal from office, and argue that was the sole liability of the treasurer. The point is not well taken. The payment was void as to the school district. If the treasurer paid it out wrongfully the school district was entitled to its money. Removing the treasurer from office would not restore the fund. That can be accomplished only by its return.
We are not concerned here with whether the building of a swimming pool is so closely connected with education as to be within the power of a school district to do; but, if so, the district would have to raise the money for that purpose, which was not done in this case. It is true, as argued by appellants, that school-district officers have a wide discretion with respect to conducting a school, employing teachers, janitors, and purchasing supplies and equipment deemed necessary or appropriate for the successful conduct of the school; but this discretion is not unlimited. The officials are not above the law. They could not legally employ an unqualified teacher; neither can they lawfully use the funds of the district for purposes for which they were not raised.
The trial court found the report of the treasurer showing this expenditure was approved at the next annual school-district meeting. Appellants argue that is a ratification of the unlawful payment, citing School District v. Swayze, 29 Kan. 211; Bank v. School District, 102 Kan. 98, 169 Pac. 202; and Farmers State Bank v. School District, 134 Kan. 47, 4 P. 2d 404. We regard these cases as not in point. The budget law, which specifically makes payments for purposes for which no money had been raised void as to the school district, had not been enacted and was not considered in the cases cited. The purposes attempted to be accomplished by the statute will be lost if its provisions are ignored.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for wrongful death suffered in an automobile accident. From an adverse judgment the defendant appeals, the principal question submitted being whether the decedent and the plaintiff as a matter of law were guilty of such negligence as would bar recovery. At the trial the defendant demurred to plaintiff’s evidence on the ground no cause of action was proved, and later raised substantially the same question by certain post-trial motions to which reference will be made.
Plaintiff’s evidence showed the following: The place of the accident was on U. S. highway 69 about five and one-half miles north of Fort Scott, and the time was about 7:30 p. m. on January 16, 1937. Highway 69, which at this point runs north and south, is paved with brick eighteen feet wide and concrete strips one foot wide along the sides, and in the vicinity the highway is level for a considerable distance both north and south. On the evening in question the pavement was clear, but the shoulders outside the concrete strips were covered with ice and snow. Plaintiff and her husband lived near the scene of the accident. On that evening their employee, Fisher, started to town in his Ford car, but after going a short distance the car stalled. Fisher left it on the west shoulder of the road and perhaps five or six feet from the concrete strip. He returned to the house and told plaintiff and her husband and then left. Shortly thereafter plaintiff’s husband, accompanied by plaintiff, took his Dodge sedan and went south along the highway to where he could turn his car around to face the north. He stopped his car about fifteen feet north of the Fisher Ford, and as stated by plaintiff, so that the left wheels were on the dirt shoulder and the right wheels were on the concrete edge, the car facing a little east of north. This car had both bright and dim light equipment and the dim lights were on. With the Walt-mire car in that position and condition, Mr. Waltmire got out and took out a wire cable fitted with hook and loop. Mrs. Waltmire moved over to the driver’s seat and from there operated a flashlight for her husband, who fastened the cable to the rear of the Fisher Ford and to the rear of his own car. During this time an unidentified car came from the north and passed to the east of the Waltmire car. Shortly thereafter, defendant, driving his car, came from the north. What he saw and did will be more fully detailed later, but he drove off to the west side of the pavement, on to the shoulder, and just as he was about to pass the Waltmire car, struck Mr. Waltmire, who was standing by the west or left rear door of his car. Defendant’s car about the same time struck the left rear portion of the Waltmire car and a little later struck the rear of the Ford. After the accident, Mr. Waltmire was found badly injured and lying four or five feet to the rear of his car, and somewhat under the left running board of the defendant’s car, which had come to a stop in a nearly east-and-west position, with its front wheels on the pavement. Waltmire died shortly after being taken to Fort Scott. Defendant’s demurrer to this evidence as not proving a cause of action was overruled. He complains of that ruling, and contends that the evidence establishes contributory negligence on the part of plaintiff and her deceased husband.
In his argument, defendant calls our attention to statements of certain witnesses as to locations of cars, etc., and to testimony putting a somewhat different aspect on what occurred than is detailed above, but in determining 'sufficiency of evidence as against a demurrer, the court is concerned only with evidence and inferences therefrom favorable to the party offering it and does not consider that favorable to the demurring party, and the statement above is made in view of that rule. (See Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550.)
While the burden of proving contributory negligence is usually on the defendant, where plaintiff’s proof shows him guilty of it, the defendant can take advantage of it by demurrer. (Houdashelt v. State Highway Comm., 137 Kan. 485, 492, 21 P. 2d 343, and cases cited.) The question of the sufficiency of evidence as against a demurrer in cases similar has been before this court on numerous occasions. In Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, the test was stated thus:
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.” (Syl. ¶ 4.)
This test has been approved in the following cases: Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 51, 53 P. 2d 923; Bergman v. Kansas City Public Ser. Co., 144 Kan. 27, 58 P. 2d 110; Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846; Watson v. Travelers Mutual Cas. Co., 146 Kan. 623, 73 P. 2d 64.
Appellant contends that plaintiff’s evidence shows that plaintiff and her husband placed themselves in a position of peril and imminent danger, and a position where an ordinarily prudent person could have foreseen that an accident would happen, and that under the decision in Canestro v. Joplin-Pittsburg Rld. Co., 135 Kan. 337, 342, 10 P. 2d 902, they were guilty of contributory negligence. An examination of the facts of that case shows a marked difference from those now before us. There the plaintiff left a place of safety in the street and in attempting to pass other cars going in the same direction moved over into the path of an approaching trolley car, with which the plaintiff collided. Appellant also directs our attention to Crowe v. Moore, 144 Kan. 794. 62 P. 2d 846, where the casualty was caused by collision of cars, that of the plaintiff being on the wrong side of the highway, and to Hiler v. Cameron, 144 Kan. 296, 59 P. 2d 30, where plaintiff’s car swerved to the wrong side of the highway and into the path of defendant’s car. In both of these cases it was held that plaintiffs were guilty of negligence which was the proximate cause of their injuries. In both cases, plaintiffs’ cars were moving at the time of the respective accidents. In the case before us, the plaintiff’s car was at rest. The plaintiff and her husband had taken a position on the pavement at the time when there were no approaching cars, and when they stopped their car they left it properly lighted with dim lights. Appellant argues it was negligence as a matter of law to stop and leave the car on the wrong side of the highway — that is, it was negligence per se to leave the car faced north on the west side of the highway.
Appellant places considerable reliance on Whitworth v. Riley, 132 Okla. 72, 269 Pac. 350, 59 A. L. R. 584, the first headnote of which reads:
“Where a person drives his automobile on his left of the center of a public highway in the nighttime, and the same becomes stalled in a position that would not permit passage of an automobilist to his right traveling in the opposite direction, and so stands with the headlights on to indicate a moving car, the act of permitting the car to thus remain constitutes prima facie evidence of negligence by the driver thereof, in the event of a collision therewith by another automobilist going in the opposite direction, who, by virtue of the rules of the road, had the right to assume from the fact that the headlights were on, that the stalled car was in motion and would be operated in conformity with the law. And in an action to recover damages in such case, brought by the colliding automobilist, whether or not the plaintiff was guilty of contributory negligence in failing to stop his car or to adopt some other method in an attempt to avoid collision is a question of fact.”
It will be observed that in that case, parking under similar circumstances was held only to be prima facie evidence of negligence.
In an annotation on “Liability for injury in collision with- automobile standing on wrong side of street or highway” in 70 A. L. R. 1021, it is stated in the introduction:
“Of course, the standing of the automobile on the wrong side of the street or highway is a factor which must be considered in its relation to other matters, such as whether it is daylight or dark, whether the street or highway is a frequented one or otherwise, whether there are lights on the car, and whether the parking or stopping was unavoidable. And the questions of negligence, contributory negligence, and proximate cause must, of course, ordinarily be determined from all of the circumstances, and not from the mere fact of standing on the wrong side of the street or highway.”
And decisions of courts of different jurisdictions are cited and commented on.
In 5 Am. Jur. 682 (Automobiles, § 335) it is said:
“It is generally recognized as negligence to park on the wrong side of a much-traveled highway, and in some cases this is held as a matter of law. In other cases such parking is held merely to be evidence of negligence.
“The mere fact of stopping an automobile on the .wrong side of a highway does not, under all conditions, constitute negligence. Parking on the left side with headlights burning for the purpose of making a delivery or making repairs to the engine — even if there was opportunity to turn off the road for that purpose — is not negligence. In the ordinary case negligence in parking or stopping on the wrong side presents a jury question.
“The driver of an approaching car on his right-hand side of the road who sees in front of him the headlights of another car facing him has the right to assume that such car is in motion and will be operated in conformity with the law of the road.
“In order that liability may be based upon parking on the wrong side, the fundamental rule of negligence law — namely, that the negligence in so parking must be the proximate cause of the injury — applies.
“The doctrine of last clear chance has been held inapplicable in the situation presented by the class of cases under consideration.”
See, also, Babbitt, Motor Vehicle Law, 4th ed., p. 496, to the same effect.
In 2 Blashfield’s Cyclopedia of Automobile Law and Practice (Perm, ed.), p. 334, § 1199, it is said:
“Although a driver may stop his car upon the left-hand side of the road when reasonably necessary for the purpose of making repairs, if he does not thereby unreasonably interfere with the rights of others, stopping a car on the wrong side of the street or highway may, under appropriate circumstances, constitute negligence, and, where such is in violation of a statute, it has been declared to be negligence per se.
“The mere fact that a car is parked on the wrong side of the street will not permit a recovery by one who recklessly or carelessly runs against the car so parked; and the question whether or not the stopping on the wrong side of the street was a proximate contributing cause of the collision may be one for the determination of the jury.”
Other authorities of similar effect, cited in the briefs, have been examined, but will not be specifically mentioned.
While our decisions have recognized the duty of the driver of a car to keep on his right side of the road or highway (see Crowe v. Moore, supra, and cases cited), in each of those cases both vehicles have been under way. Can it be said as a matter of law it was negligence for Mr. Waltmire to go to the place of the stalled car and to be on the wrong side of the highway for the space of three or four minutes while he was preparing to tow it away? Assuming it may be said that Waltmire, having stopped his car on the wrong side of the highway, after dark, with its headlights dim, was guilty of prima facie negligence, what other circumstances should be considered? It is not contended by appellant there was violation of any statute on the subject. The evidence showed that the highway was level in each direction; that the brick and concrete pavement was clear of ice and snow which covered the shoulders of the high way. From this evidence, as well as from a photograph introduced in evidence, it is clear that the limits of the highway were clearly discernible, and that the position of the Waltmire car, which stood facing slightly east of north with its dim headlights on, was easily discernible. It was also to be deduced from plaintiff’s evidence: that defendant saw the situation, for when about twenty-five or thirty yards distant, he turned to the right, off the pavement, and proceeded on the shoulder. While it is true the conduct of a driver approaching from the north may have been affected by whether he saw headlights or taillights on his proper side of the highway, we are not discussing possible negligence of an approaching driver, but only negligence as a matter of law of the driver of the parked car. No one claims it was negligence on Waltmire’s part merely to attempt to tow the Fisher car to his home; the claimed negligence is in the manner of performing that act. Of course, it was possible, and conceding it was much more advisable that he first stop with his car headed south and pull the stalled car in that direction, whether Waltmire’s car was faced north or south, it had to be on the west side of the highway in order to have a towline reach the stalled car. Perhaps Waltmire didn’t attempt the towing in the same manner some other persons might have, but when it is remembered that the shoulders of the highway were covered with ice and snow, and it would have been difficult to have turned around to the north had he first proceeded south — and such a course would have blocked the highway perhaps more than his method did — can it be said that as a matter of law Waltmire was negligent? We think not. What has been said applies likewise as to any claimed negligence of the plaintiff individually. We think that under all the circumstances present, it was a fair question for the jury whether the plaintiff or her husband was guilty of negligence.
Defendant’s evidence showed that he was driving his car south at the rate of from fifteen to twenty miles per hour and that he saw the lights of the Waltmire car when he was about a quarter of a mile away. His car had good lights, and proceeding at fifteen miles an hour he could stop in fifteen feet. The snow and ice were off the pavement and he could see clearly where the edge of the pavement was. When he got closer to the Waltmire car, he slowed down to fifteen miles an hour. He discovered the Waltmire car was stationary, and without further slackening his speed he left the pavement about twenty-five or thirty yards to the north of the Waltmire car and attempted to drive to the west side of it, with the resulting collision. Defendant stated plaintiff’s car was well out on the pavement and he thought he had room to pass it on the west. The jury did not give credit to his statement as to location of plaintiff’s car.
The case was submitted to the jury, which answered special questions and returned a verdict for the plaintiff. The questions and answers were as follows:
“1. Upon, what part of the roadway, with reference to the center of the pavement, was the Waltmire car at the time of the collision? A. Two front wheels on pavement, left rear wheel on shoulder, right rear wheel on slab.
“2. Did the Waltmire car have headlights showing brightly or dimly, at the time of the collision? A. On dim.
“3. Where was Alice Waltmire at the time of the collision? A. At the wheel.
“4. Where was the model-T located at the time of the collision? A. Fifteen feet southwest of Waltmire car.
“5. Did the model-T Ford have any lights showing at the time of the collision? A. No.
“6. Was the model-T Ford attached to the Waltmire car, and if so, how? A. Attached to car, by cable.
“7. Did either the deceased or Alice Waltmire give the defendant any warning of their position on the highway? A. By headlights on Waltmire car.
“8. Was the defendant guilty of any negligence? A. Yes.
“9. If you find defendant guilty of negligence, of what did his negligence consist? A. By not approaching the Waltmire car with less caution.
“10. Was there anything to prevent the deceased and Alice Waltmire from having attached the model-T Ford to their ear and pulling it south? A. No.”
Immediately upon the return of the answers, plaintiff moved the trial court to return the jury to the jury room to make the answer to question 8 more definite and certain. Defendant objected and the trial court denied the motion. Defendant moved for a new trial and for judgment notwithstanding the verdict, alleging the verdict was unsupported by and was contrary to the evidence, that the evidence showed plaintiff and her deceased husband were guilty of negligence, and that the answers to the special questions were contrary to the general verdict. Both motions were denied. No motion was made to set aside the answer to any special question.
We have examined the evidence as abstracted and hold that it supports the general verdict and the answers to the special questions. What has been said with reference to contributory negligence disposes of the contention with respect to it. We fail to see wherein the answers to the special questions are inconsistent with the gen eral verdict. We note the seeming inconsistency in the use of the word “less” for the word “more” in the answer to the ninth question. Appellant professes ignorance of what the jury meant. We have no doubt of its meaning. The inaccurate use of a word, where the whole meaning is clear, is not sufficient to compel reversal. Appellant also contends that, by reason of the answer to question 9 being as it is, there is no finding of negligence on the part of the defendant. It must suffice to say we do not entertain the same meaning to be attributed to the answer to question 9 as does appellant. Further, his objection to the jury’s being returned to make a more definite and certain answer to question 8 having been sustained, he is hardly in position to complain. '
Appellant, in connection with his motion for a new trial, contends the trial court erred in one instruction to the jury. There is no showing that any objection was made to any part of the instructions when they were given, and strictly the question may not now be raised. We have, however, noticed appellant’s criticism of instruction No. 8. Reading it in connection with the remaining instructions, we cannot say the cause was not fairly submitted to the jury.
Essentially this was a fact case. The jury’s verdict and answers to special questions are supported by the evidence. There was no error in the admission of testimony nor in the trial court’s ruling, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for injuries alleged to have been sustained on a sidewalk on the streets of defendant city. Judgment was for plaintiff. Defendant appeals.
The petition alleged that on June 1,1935, in the walk in question, there was a loose hexagonal cement block. The petition there contained the following allegation:
“That all support to the said hexagon cement block had crumbled and broken away and that there was no foundation under the said cement block to support it; that there was'a deep hole under the said hexagon cement block which caused the said hexagon block to become unsteady underfoot, to rock, wabble and incline from one side to the other.”
The petition then alleged that defendant permitted this cement block to remain in an unsafe and dangerous condition, and that on June 1,1935, while plaintiff was walking along the sidewalk in question, with a friend, the friend stepped on the loose cement block, it tipped up, and as it tipped up the plaintiff’s foot slipped into the hole under the cement block, and it fell back and struck plaintiff on the leg and injured her. The petition then alleged that the city, through it officers and agents charged with the construction and maintenance of the sidewalk, had actual knowledge, or by the exercise of ordinary diligence should have known, that the sidewalk was unsafe for pedestrians, and the defendant negligently permitted the sidewalk to remain in such condition until after plaintiff was injured.
The answer of the city was a general denial and a plea of contributory negligence.
The plaintiff testified, among other things, as follows:
“Mary Ann. was about a foot ahead of me and all at once I stepped in a hole and felt something come back and hit me on the leg and I fell forward.”
She testified further that the hole underneath the block was about a foot deep.
Her companion testified that immediately after plaintiff was injured she saw a man fixing the block back in place and that she got on the block one evening after the injury and “it wabbled a little bit.” She testified further as follows:
“It was tilted up like that, you see. I stepped on it. I was over to the west and as it went up it was south like that and Janie come along like this and she stepped in it like this and fell to the northeast.”
The next witness testified that two or three months before June 1, 1935, she stepped on a block in front of the store where this injury is alleged to have occurred; that a piece was broken off; that her heel caught and it threw her forward. She did not notice any other broken blocks.
The next witness testified that in the latter part of April he bumped his right toe on one of the blocks; that it was raised about three fourths of an inch; that the block north of it was broken in two; that the condition of the blocks at this point was uneven; that after the injury he went with the husband of plaintiff to look at the block in question and it was still loose.
The next witness was the husband of plaintiff. He testified that after the injury he observed the sidewalk in question; that the blocks were cracked and were depressed about two and one half or three inches where they were cracked; that he stepped on several of the blocks and they would move one way or another; that he found one block cracked in the middle and it stuck up on both edges.He testified further that prior to June 1, 1935, he walked along the walk in question nearly every day; that at this particular point seventy-five percent of the blocks were broken; that he never said anything to his wife or any of the city officials about the condition of the walk.
The street commissioner testified for the defendant that he inspected the sidewalk in question; that the purpose of his visit was to repair the depressed blocks on account of a call from the man who owned the property in front of which the walk was located; and that the owner later put in a new cement walk.
At the conclusion of the evidence of plaintiff defendant demurred to it. This demurrer was overruled. The case was submitted to the jury, which returned a verdict for the plaintiff, and answered certain special questions. Motions were filed by defendant for a new trial, for judgment notwithstanding the general verdict, and to set aside certain answers to special questions. These motions were all overruled. The appeal is from that judgment.
Defendant argues, first, that the trial court erred in overruling the demurrer of defendant to the evidence of plaintiff.
It will be noted that the petition of plaintiff charged that the injury was caused by a block having such a hole underneath it that when the person in front of the plaintiff stepped on it, it raised up, and plaintiff stepped underneath it so that it fell back on her leg. The testimony of plaintiff and her companion established that this is what happened. Since this is true, we must examine the evidence of plaintiff as to what notice the city had of the condition that caused the injury. There is no evidence at all that any of them had actual notice.
Plaintiff argues that the evidence established that the city could, with the exercise of reasonable diligence, have discovered this condition. The rule is stated in Jansen v. City of Atchison, 16 Kan. 358, as follows:
“To make a city liable for injuries resulting from a defect in a sidewalk, it must appear either that the city had notice of the defect, or that it was a patent defect and had continued so long that notice might reasonably be inferred, or that the defect was one which with reasonable and proper care should have been ascertained and remedied.” (Syl. ¶ 4.)
That rule has been followed many times by this court. Indeed, its soundness is not disputed seriously by plaintiff here.
The rule with which we are interested is as follows:
“Notice of one particular defect which caused an injury cannot be established by proof of notice of another particular defect which is in no way related to the former and did not contribute to the injury. ...” (43 O. J. 1053.)
See, also, Nothdurft v. City of Lincoln, 66 Neb. 430, 92 N. W. 628, 96 N. W. 163; also, many cases cited in 20 L. R. A., n. s., 719.
When we examine the evidence offered by plaintiff on this point we find that the most she proved was that an occasional block stuck up a little above the surrounding blocks or there was an occasional loose block or one that was cracked. There was testimony that seventy-five percent of the blocks there were cracked, but it would be impossible for a cracked block to have caused this particular injury.
We have concluded that giving the evidence of plaintiff the benefit of every reasonable inference to be drawn therefrom there is not sufficient proof that the city officials by the exercise of reasonable diligence could have learned of the condition that caused the injury in question to warrant the submission of this case to the jury. It follows that the demurrer of the defendant to the evidence of plaintiff should have been sustained.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
HaRvey, J.:
This was an action for damages for personal injuries sustained by plaintiff and damages to his automobile alleged to have resulted from a defective street. The answer was a general denial and a plea of contributory negligence. A jury returned a verdict for plaintiff, which the trial court set aside on its own motion because of some misconduct of the jury. Defendant has appealed, and contends its demurrer to plaintiff’s evidence should have been sustained.
In July, 1935, a double line of streetcar tracks was being torn up and removed from Topeka avenue, a north-and-south street, paved forty-five feet wide, in the city of Wichita. The method of doing the work was to loosen the bricks along the side of a rail, raise one end with jacks, keep working along the rail loosening bricks, and raising it to where it was attached to the next rail, disconnecting the first one and taking out the next one in a similar manner. This left an open strip in the pavement about sixteen inches wide and four or five inches deep. To the side of this the pavement was in good condition a width of fourteen feet to the curb. When the workmen quit at five o’clock on Saturday evening they left an end of a rail pried up and blocked to a height of about eighteen inches above the pavement. There is testimony the workmen piled brick up in front of it and hung a red lantern there, but if so, the lantern was gone and the pile of brick knocked down at the time of the incident next to be stated.
The next day plaintiff took his wife to church, about eleven o’clock in the morning, and returning home turned into Topeka avenue in the block where this rail was left raised and blocked. He drove along this street for some distance with his car wheels straddling the ditch made by taking up the rail, and into the raised end of the rail, at a speed of fifteen to eighteen miles per hour. The raised end of the rail caught the lower part of his car, causing the injuries and damage for which the action was brought. It was a clear day; the street was dry. No reason was given for his driving on the torn-up part of the pavement; there was ample room for him to drive near the side of the street. He testified:
“Q. As you drove southward on Topeka avenue, did you keep a careful lookout for your own safety? A. No. I didn’t look out because I wasn’t looking for anything.”
There was nothing to keep him from seeing the uplifted end of the rail if he had looked. It seems clear that his own lack of care was the real cause of his injuries and damage. The demurrer to his evidence should have been--sustained.
The judgment of the court below should be reversed, with directions to enter judgment for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of burglary and grand larceny.
The evidence, among other things, showed that the S. E. Lux, Jr., Mercantile Company owned a warehouse near the Missouri Pacific station at Frankfort; that between September 6 and September 10, 1923, it received three cars of sugar; that this warehouse had been forcibly entered on the night of September 13; that a check of the contents showed eighteen sacks of sugar were missing. Five sacks were found piled near an elevator a short distance from the warehouse, and a sixth in or near an adjacent coal yard. The defendant was arrested in the immediate vicinity of the pile of sugar about 1:30 a. m. on September 14. He was attired in overalls and raincoat. In the right front pocket of his overalls he carried a .38 Smith & Wesson revolver, fully loaded, and in the left front pocket a quantity of loaded .38 cartridges. One of the telegraph operators for the railroad (Mr. Ellis) started to leave his work a little before 11 p. m. on the night of the 13th. As he was leaving he saw the defendant come up the street toward the station. He (the defendant) walked across the tracks, passing around some box cars on the passing track near the warehouse in question. Within about ten minutes Mr. Baird, the night operator, came up to Ellis. The two then stood on the south side of the station near the freight house door and saw the defendant cross the passing track between the cars at the end of the station and go north across the platform about 40 feet from where they were standing. The suspicions of Ellis were aroused from the fact that some box cars had been robbed a few days prior. Ellis left the station, walked around the block, came back, and got in between two box cars about 100 feet from the corner of the Lux building. From there he watched and again saw the defendant. He (the defendant) was carrying something in his arms, holding it in front of him against his chest. It was as large anyway as a sack of sugar. He came along the north side of the Lux building and disappeared in the darkness around the corner. Ellis saw him make three trips, carrying something each time. Ellis remained about five minutes, and went into the station. Ten minutes later Mr. Stillwell, the Missouri Pacific agent, arrived, as did also Mr. Welsh, city marshal of Frankfort and deputy sheriff. The three examined the seals of two cars near the Lux warehouse and found them intact. They went on to the office of an elevator located near the Lux building. Near this office they found a pile ■ of five sacks of sugar. The three men went inside of the office through the window and left it open. There they remained about two hours. • About ten minutes after one o’clock they heard someone approaching around the corner of the elevator, walking toward the office where they were. He flashed a flashlight into the window, whereupon Welsh went out at the door and commanded him to throw up his hands. It was the defendant. Stillwell testified that the marshal told the defendant three or four times to put his hands up, and he protested and argued about it, and wanted to know what was meant by it.
Error is assigned because the state was permitted to cross-examine the defendant upon the question of alleged sales by him of sugar and groceries to other parties and admission of the testimony of the other parties in rebuttal. The defendant took the stand in his own behalf. On his direct examination he testified, among other things:
“Q. What has been your business? A. Digging graves with my father, job work, chimnej'- work.
“Q. You and your father work together? A.' Yes, sir.”
On cross-examination he was asked if he had not been engaged in business as a merchant, and if on or about September 1, 1923, he had not sold a sack of sugar to Carlson, and in February, 1923, hams and bacon to Wagor. Upon his denial he was further asked:
“Q. You say that your only business, since you have been back in Frankfort, since September, 1919, has been as a general laborer and grave digger? A. Yes, sir.
“Q. Never engaged in any other business? A. No," sir.
“Q. Ever been a salesman of grocery products of any kind? A. No, sir.”
W. W. Carlson, called in rebuttal by the state, testified that he purchased a 100-pound sack of beet sugar from the defendant about August, 1923, for $6.50; that the retail price of 100 pounds of beet sugar at that time was around $9.50 or $10. Charles A. Wagor, also called by the state in rebuttal, testified that he operated a grocery and meat market at Bigelow; that on February 22 he bought some bacon and hams from the defendant, for which he paid the defendant $9 by check. The cancelled check was introduced in evidence.
It is insisted by the defendant that his cross-examination with reference to the sugar, hams and bacon sold to Carlson and Wagor, and other testimony in rebuttal, was improper; that those matters were collateral to the issue on which he was being tried; that it was contrary to the rule laid down in The State v. Hays, 113 Kan. 588, 215 Pac. 1109. We do not think so. The principle of the Hays case is not applicable here. The matters shown in rebuttal in the Hays case were clearly collateral. Here they are not. The defendant in his examination in chief gave his own status in order to reinforce and establish an alibi. He asserted in his direct examination that his business was digging graves, doing job work and chimney work. When pressed by the state as to the correctness of these statements, hé denied engaging in any other business. The question of his occupation, under the circustances, was not a collateral issue. In the Hays case the defendant was being prosecuted for wrongfully disposing of mortgaged property. He was asked concerning a transaction entirely foreign to the issue on which he was being tried. The court there said:
“At best it was a matter collateral to the issue on trial. In the State v. Alexander, 89 Kan. 422, 131 Pac. 139, it was held': ‘Evidence should not be admitted to contradict a statement of a witness elicited upon cross-examination upon a purely collateral matter which does not tend to prove or disprove an issue in the case, the contradictory evidence being offered by the party eliciting the statement.’ (Syl. 113.)” (p. 590.)
It is next ai’gued that the court erred in permitting the state to show the robbery of box cars occurring prior to the offense charged in the information. The testimony referred to is that of Mr. Ellis:
“Q. Well, state what had occurred with respect to the company’s property? A. There had been several cars broken into lately; that is, close to that time, in the yards' at night.
“Q. Within the yards? Do you mean within the immediate vicinity of the depot building? A. Yes, sir.
“Q. How recently had cars been broken into before September 13? A. September 10, I believe, was the last one up to that time; I am not sure about that; it was close, though.”
The testimony of Ellis was relevant and pertinent to the issue. It explained his conduct on the night in question. In the ordinary course of action Ellis would have returned to his home at 11 o’clock upon release from duty. His suspicions were aroused by the spectacle of a man loitering about in at least an uncommon manner— a circumstance which caused him to abandon his purpose of going home and to determine to remain at his post to discover, if possible,1 if something out of the ordinary might happen. Ellis performed a duty incumbent upon any employe under the circumstances. By secreting himself' and watching he was able to identify the defendant carrying objects from the vicinity of the warehouse, and which the jury must have concluded, beyond any question, where the sacks of sugar found piled near the elevator.
Complaint is made with reference to the admission of testimony concerning conversations with the defendant’s wife. She testified that her husband, having set the alarm clock for 1 o’clock because he was going to meet a train, lay down on the bed with her about 10:30; that he remained there until around 1 o’clock, when he got up; that he left the house in five or ten minutes; that she first heard that he had been arrested about 8 o’clock the next morning.
C. W. Kelley, who was deputized to go to the defendant’s house the morning of the 14th, testified that Mrs. Russell told him that she thought her husband (the defendant) was out in the country. The city marshal, J. M. Welsh, testified that she told him on the morning of the 14th that the last she saw of her husband was about 9:30 the evening before; that he was out in the country. The testimony of Kelley and Welsh was competent rebuttal to impeach the testimony of the wife. The issue was clear. The testimony of the defendant and his wife that he was in bed at home from around 10:30 to 1 o’clock, if believed by the jury, would have raised a doubt as to the identification of the defendant, because the man seen by Ellis carrying what must have been the sacks of sugar was doing so around the hour of 11:30. What the defendant’s wife first said to the officers in an unguarded moment, concerning her husband’s whereabouts at the time the crime was being committed, was proper for the consideration of the jury.
Other complaints of the defendant have been given careful consideration, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Harold B. Fiske appeals from conviction upon a charge of violating the statute which defines criminal syndicalism and penalizes its advocacy.
1. The offense is alleged to have been committed on July 2,1923. A term of court began September 4, 1923, on which day the information was filed. On September 18, the day the case was tried, the defendant filed a motion for a continuance until a later date or until the next term, on the ground that his regular counsel, a resident of Chicago, was unable to be present because of being of counsel in cases pending in another court and his local attorney had not had time to prepare a proper defense. The overruling of the motion is complained of. The matter was within the discretion of the court and it cannot be said that any abuse of discretion was shown.
2. It is contended that the case should have been transferred to Reno county under the statute authorizing such procedure where it develops that a prosecution is brought in a county not having jurisdiction. (R. S. 62-1442.) The defendant testified that he took two applications for membership in the Industrial Workers of the World (upon which conduct the state relied for conviction) at Haven, in Reno County, on June 30, saying, however, that he went from that county into Rice that day and was in the latter county all of July 1, The day the application cards bore date. He gave an explanation consistent with the applications having been made June 30, but its credibility was one of the issues of fact. There was also evidence that the sheriff of Rice county said to him in Geneseo, in that county, “Have you got any members here in this county?” and that he answered, “Yes, two.” There was other testimony to the same effect. The question whether the applications were taken in Rice county was therefore a fair one for the jury.
3. It is urged that there was no evidence of the defendant having induced anyone to join the Industrial Workers of the World except his own statements made out of court, and that the corpus delicti cannot be established by his extra-judicial admissions. The rule, if otherwise sound and applicable, does not apply here, because of the corroboration afforded by the signed cards in the possession of the defendant, which were identified by him as applications for membership.
4. Without a warrant the defendant was arrested and papers in his possession were seized. The use of the papers in evidence is objected to on the ground of their illegal seizure. This court has adopted and recently confirmed the rule that articles are not rendered inadmissible as evidence by the fact that they were wrongfully obtained. (The State v. Johnson, 116 Kan. 58, 226 Pac. 245.)
5. Error is assigned in the overruling of a motion to quash the information. The statute under which the prosecution is brought, so far as now important, reads:
“Any person who, by word of mouth, or writing, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of crime, criminal syndicalism, or sabotage, or who shall advocate, affirmatively suggest or teach the duty, necessity, propriety or expediency of doing any act of violence, the destruction of or damage to any property, the bodily injury to any person or persons, or the commission of any crime or unlawful act as a means of accomplishing or effecting any industrial or political ends, change or revolution, or for profit; . . . is guilty of a felony.” (R. S. 21-303.)
“Criminal syndicalism is hereby defined to be the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, or as a means of effecting industrial or political revolution, or for profit.” (R. S. 21-301.)
The material part of the information reads:
“That on or about the 2d day of July, 1923, and in the county of Rice and state of Kansas, one Harold B. Fiske, then and there being, did then and there unlawfully, feloniously and willfully, by word of mouth and by publicly displaying and circulating certain books and pamphlets and written and printed matter, advocate, affirmatively suggest and teach the duty, necessity, propriety and expediency of crime, criminal syndicalism and sabotage, by then and there unlawfully, willfully, knowingly and feloniously persuading, inducing and securing Henry Lang, Earl Summers and George Kelley to sign an application for membership in a society known as the Agriculture Workers’ Industrial Union No. 110, and by issuing to the said Henry Lang, Earl Summers and George Kelley membership cards, commonly known as the red card, in said Agriculture Workers’ Industrial Union No. 110, which said Agriculture Workers’ Industrial Union No. 110 is a branch of and component part of the Industrial Workers of the World organization, said defendant then and there knowing that said organization unlawfully teaches, advocates and affirmatively suggests:
“ ‘That the working class and the employing class have nothing in common, and that there can be no peace so long as hunger and want are found among millions of the working people and the few who make up the employing class have all the good things of life.’ And that, ‘Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production and abolish the wage system.’ And that, ‘Instead of the conservative motto, “A fair day’s wages for a fair day’s work,” we must inscribe on our banner the revolutionary watchword, “Abolition of the wage system.” ’
“ ‘By organizing industrially we are forming the structure of the new society within the shell of the old.’ ”
The information charges the defendant in so many words with having done the things prohibited by the statute, and the question presented is whether the specifications descriptive of the manner in which the acts were done bear out the general terms of the accusation. It does not in set phrase allege that the association known as the Industrial Workers of the World advocates, affirmatively suggests or teaches criminal syndicalism, but when read as a whole it clearly signifies this, and also that'the language quoted (which the evidence shows to be taken from the preamble of the constitution of that organization) was employed to express that doctrine. We regard persuading and inducing others to join an association as one of the methods of advocating, affirmatively suggesting and teaching the doctrines on which it is based. An information has been held insufficient which merely charges the defendant in general terms with having advocated and suggested certain doctrines, the court saying that although words used by way of advocacy, teaching or suggestion need not be set out with verbal accuracy, “the content of the propagation should be fairly indicated.” (The State v. Breen, 110 Kan. 817, 205 Pac. 632.) Here the method of propagation is specifically - pointed out — inducing others to become members of an organization devoted to such propaganda. This reasonably advises the defendant of the nature of the charge. It is not necessary that the pleader should go further and set out the arguments that were used to attain the end sought.
6. The defendant asserts that there was no evidence to support the verdict of guilty. He testified that he had secured the applications of Henry Lang, Earl Summers and George Kelley and issued them membership cards in the I. W. W., saying, however, that this was not done in Rice county — a matter which has already been discussed. He continued:
“I understand what the Industrial Workers of the World organization teaches. I understand that it teaches, advocates and states that the working class and the employing class have nothing in common and that there can be no peace so long as a few, who make up the employing class, have all of the good things of life. I understand that between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production and abolish the wage system. I understand that instead of the conservative motto, ‘A fair day’s wages for a fair day’s work,’ we must inscribe on our banner the revolutionary watchword, ‘Abolition of the wage system.’ I understand that by organizing industrially we are forming the structure of the new society within the shell of the old. We are organizing with industrial unions to take care of the labor situation in this country and in the world. That means that there won’t be any capital, and that means that everybody — that one will be just as well off as the other fellow, at such time as it can be done, and means that everybody will work. That is what it means when it says, ‘By organizing industrially we are forming the structure of the new society within the shell of the old.’ The new society will be a new organization — new control — control of industry. By ‘in the shell of the old’ I mean it will be forward, and instead of breaking up, we will not destroy anything, but we will build them. We will not take over property, but everybody will own. property. This will be forced in economically. That is what I was teaching and suggesting when I took these applications. I didn’t come right out and say that. The working class will enforce the laws when they are organized sufficiently. The people of the earth will make the laws; we will all belong to the working class. . . . They came to me and asked me if I knew where there was an I. W. W. organizer, and I told them I was one, and they asked me to explain it to them and I explained it to them. I explained the principles of the organization as far as I knew.”
The language quoted from the I. W. W. preamble need not, in order to sustain the judgment, be held necessarily and as a matter of law to advocate, teach or even affirmatively suggest physical violence as a means of accomplishing industrial or political ends. It is open to that interpretation and is capable of use to convey that meaning. The construction to be placed upon it in the connection in which it was employed was submitted as an issue of fact by an instruction that no conviction could be had unless from the evidence and beyond a reasonable doubt the jury were satisfied (among other things) that the organization commonly called the I. W. W. is one that teaches criminal syndicalism as defined in the statute. The jury were not required to accept the defendant’s testimony as a candid and accurate statement. There was room for them to find, as their verdict shows they did, that the equivocal language of the preamble and of the defendant in explaining it to his prospects was employed to convey and did convey the sinister meaning attributed to it by the state.
7. A final contention is that the statute violates the provision of the state constitution that “The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right” (Bill of Rights, § 11), and (because of invading the fundamental rights sought to be thereby protected) also is obnoxious to the due-process-of-law clause of the fourteenth amendment to the federal constitution. Statutes penalizing the advocacy of violence in bringing about governmental changes do not violate constitutional guarantees of freedom of speech. Their wisdom and justice are matters for the determination of the legislature. Cases holding valid acts of the same type as that here involved are collected in recent notes. (1 A. L. R. 336; 20 A. L. R. 1535, 1543.)
The judgment is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by the payee to recover the proceeds of a promissory note, the transfer and negotiation of which had been induced by fraudulent representations.
The plaintiff owned a note for $1,100, executed by one Murray and secured by chattel mortgage. On May 20, 1920, W. H. Simpson and Bern Thompson, both residents of Springfield, Colo,, induced the plaintiff to exchange the note and mortgage for stock in an oil company. Simpson was an oil-stock salesman; Thompson was a banker. The plaintiff, who resided in Morton county, Kansas, delivered the note to Thompson and received a receipt therefor. The oil stock was to be delivered later. Simpson and Thompson then went from Kansas to Stonington, Colo., where the note and mortgage were sold to the intervener, S. L. Thompson, a brother of Bern Thompson.
The plaintiff discovered that he had been defrauded of his note. No oil stock was ever delivered to him. He sought to prevent payment of the Murray note by filing an action in Morton county against Simpson. He procured a restraining order preventing Murray from paying the note; also preventing the register of deeds from recording any assignment or transfer of the chattel mortgage. He procured judgment by default against Simpson on September 16, 1920, by publication service. Afterwards Thompson filed an application to open up the judgment and to intervene. His application was granted and in due course the case was tried to a jury, the question being whether he acquired the note in the usual course of business, without notice of any vice in it, and before maturity. At the close of the testimony the court directed a ver- . diet for the intervener, Thompson, and plaintiff appeals.
Two errors are assigned: first, that the court was without jurisdiction to open the judgment and permit Thompson to intervene and set up his defense; second, that the court erred in directing the jury to return a verdict for the intervener.
-The first contention of the plaintiff that the court was without jurisdiction to open the judgment and permit Thompson to intervene is without merit. (R. S. 60-2530; Leslie v. Gibson, 80 Kan. 504, 103 Pac. 115. See, also, Martens v. Green, 113 Kan. 142, 213 Pac. 642.)
As to the directed verdict, the plaintiff contends that the issue was not merely whether Thompson had knowledge of the fraud or his action in buying the note, if he did buy it, was bona fide, butr that it also involved the question whether he ever became the owner at all.
It was conceded on the trial that Simpson’s title to the note was defective. The burden, therefore, was upon Thompson to prove himself a holder in due course. (R. S. 52-509.) Was the evidence so clear and unequivocal as to leave no difference of opinion concerning it among fair-minded men? We think not. The circumstances attending the transaction had various features which might have caused the jury to discredit the defendant’s whole testimony. Among other things he testified: “I purchased the note from a man by the name of Simpson. He, with some other parties, drove up in front of my garage and called me out, I think.” (He afterwards admitted, on cross-examination, that his brother was one of the parties and that they were in his brother’s car.) “They offered me this $1,100 note, a $100 note and a $100 check. I made an offer on it of twenty per cent discount.”
“Q. The check was dated in advance? A. No, it was dated that date. I am under the impression that the party had asked him to hold off for a while.
“Q. Did you know the maker of the check? A. No, I finally closed the deal for the paper. I gave the face of the notes, less twenty per cent. I think the check was at face value. Yes, I believe that was it; twenty per cent off on the notes and the check at face value. I gave Simpson a check, dated May 20, 1920, for $1,200, I believe. If the note was for $1,100 and the other note $100, it would be $1,200 less twenty per cent. It would be $1,200, less twenty per cent off, and $100 added for the check. . . . Witness identified check for $1,060 signed S. L. Thompson and indorsed by W. H. Simpson as the check given, and the check was introduced in ^evidence.
“Q. Did Simpson deposit this check and get the money? A. He was not living at Stonington at that time. He was living at Springfield, I think.
“Q. Anyhow you found this check charged against your account in the bank? A. Yes.
“Q. Somebody got the money? A. Yes. I didn’t make any inquiry as to how the note was obtained from Stalder by Simpson. I knew Simpson was selling oil stock. I did not know the note had been obtained for oil stock. I might have had an idea. I presumed that an oil man gets notes.
“Q. Was that your presumption at that time? A. I don’t remember about the presumption. I would presume now that he did.
“Q. On the date that you purchased this paper did you know that your brother and Simpson had gone somewhere that day and traded for this note? A. I don’t remember whether I did or not.”
The evidence showed that Bern Thompson was riding around with Simpson, who was selling oil stock; that before the intervener, Thompson, purchased the note from Simpson, Bern Thompson and Simpson attempted to sell it to a bank in Stonington, Colo.; that Simpson deposited the Thompson check in the bank with which Bern Thompson was connected; that the intervener was a stockholder in his brother’s (Bern Thompson’s) bank. If the opportunity had been given the jury to consider the unresponsive answers of Thompson to some of the questions, his evasion of others, and all the circumstances surrounding the transaction, the jury might, fairly and reasonably, have inferred that the note was not purchased by Thompson in good faith. The question should have been submitted to the jury. (Beachy v. Jones, 108 Kan. 236, 195 Pac. 184; Trust Co. v. Gill, 113 Kan. 261, 214 Pac. 413. See, also, Pioneer Trust Co. v. Combs, ante, p. 89, and authorities cited.)
The judgment is reversed and the cause remanded with directions to grant a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover a balance due on a contract under which the plaintiff .alleged that he furnished material and performed labor in the construction of a building for the defendants. Judgment was rendered for the plaintiff, and the defendants appeal.
1. The most serious matter presented concerns an order of the court denying a motion of the defendants asking that the petition be made more definite and certain in a number of particulars. The petition alleged, among other things, that the defendants verbally contracted with the plaintiff to furnish material and labor to plaster the inside of a house and to stucco the outside of it; that the labor and the material were furnished and the house was plastered and stuccoed by the plaintiff; that he received part of the pay for the labor and material; and that there remained due him under the contract the sum of $559.64. An itemized account of the material furnished and labor performed was attached to the petition. That account showed an item of ten per cent to be paid to the plaintiff on the cost of labor and material furnished by him. Other than as above shown, the petition did not allege the details of the contract between the plaintiff and the defendants.
The petition stated what the plaintiff was to do, but did not state what he was to receive, except as it was shown by the exhibit attached to the petition. The petition should have specifically stated the terms of the contract; but by the allegations of the petition and the items shown in the exhibit, the defendants were informed concerning everything that entered into the plaintiff’s claim. The defendants were not misled by the petition. They were just as conversant with the facts as was the plaintiff. The answer to the petition was a general denial. In their answer the defendants could have set out the facts as they understood them. The parties to the action understood the matters at issue between them, but the court was not very well informed concerning those matters. Although the pleadings did not fully disclose the issues, the parties knew what they were and introduced evidence on all matters in dispute between 'them.
Section 60-3317 of the Revised Statutes in part reads:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.”
The defective character of the pleadings should not be permitted to cause a reversal of the judgment. In order to uphold the judgment, the pleadings might be considered as amended to conform to the issues made by the evidence. There was no prejudicial error in denying the motion to make the petition more definite and certain.
2. Complaint is made of the submission of certain questions to the jury. Those questions and the answers thereto were as follows:
“1. Who was the general contractor on the Miller house, West Height Manor, Kansas City, Kan.? A. F. M. Holder.
“2. Who employed the plaintiff to perform the labor and furnish the material on the Miller house aforesaid? A. H. G. Miller and F. M. Holder.
“3. What was the contract price to be paid West for the work to be done by him and the material furnished in the performance thereof on the Miller house? A. Labor, material and 10 per cent commission.
“4. Has plaintiff completed his contract on the Miller house? A. Yes.”
The questions responded to the issues presented by the evidence, and there was no error in submitting them to the jury.
3. Complaint is made concerning certain instructions given to the jury. The instructions have been examined, and the court is unable to ascertain wherein there was any error in any of them.
A number of other matters are complained of. Each has been examined. No reversible error is shown.
The judgment is 'affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover on a policy of life insurance issued by the defendant on the life of the son of the plaintiff. The defendant pleaded that the policy had been forfeited for nonpayment of a premium. There was a verdict in favor of the defendant, and a new trial was granted on the motion of the plaintiff. From the order granting a new trial, the defendant appeals.
The policy was for $2,000, and was dated November 28, 1919. Premiums were payable annually thereafter. The first annual premium was paid. The second annual premium due in November, 1921, was not paid; but before it was due, the insured paid $7.92 and executed a note for $47.84 due on or before May 28, 1922, thereby extending the time for the payment of the premium to that date. The note contained the following provision:
“It is expressly agreed that unless payment is made in full at the time stated, the said policy shall be and remain absolutely void except as to any nonforfeiture provision contained therein or by law.”
The note was not paid, and on May 29, 1922, the defendant deposited in the post office of Des Moines, Iowa, enclosed in a postage prepaid envelope addressed to the insured at his home at Jewell, Kan., a notice that the premium on the policy was due and unpaid, and that the defendant intended to forfeit and cancel the policy unless payment of the premium should be made within thirty days from the deposit of the notice in the post office. On December 29, 1922, the insured died without having paid the note.
The policy contained the following:
“Thirty-one days of grace without interest will be allowed in payment of any premium after the first, the policy to remain in force for its full amount during.such period. If death occurs within the time of grace, the unpaid premium for the then current policy year shall be deducted from the amount payable hereunder.”
The order of the court recites:
“The court concludes that as a matter of law in construing said policy, said premium extension note and sections 40-332 and 40-333, Revised Statutes of the State of Kansas, that the aforesaid provisions of said policy for thirty-one days grace apply to said premium extension note and that the giving by the defendant of its notice of forfeiture dated May 29, 1922, was premature and ineffectual to terminate the liability of the defendant to plaintiff under the policy sued upon in this action, and that the court should have sustained her motion for an instructed verdict in this case; that by reason of the said erroneous ruling of this court thereon, and solely for that reason, plaintiff’s motion for a new trial is by the court sustained and a new trial is hereby granted to plaintiff, and this case be continued for further proceeding in that behalf.”
The plaintiff contends that the notice was prematurely given because it should have been given at the close of thirty-one days after the note became due, and not on the day after it became due. The case turns on the validity of that contention.
The material statutes are sections 40-332 and 40-333 of the Revised Statutes. Section 40-332 in part reads:
“It shall be unlawful for any life insurance company other than fraternal doing business in the state of Kansas to forfeit or cancel any life insurance policy on account of nonpayment of any premium thereon, without first giving notice in writing to the holders of any such policy of its intention to forfeit or cancel the same.” ' ’
Section 40-333 in part reads:
“Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify'the holder of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit -or cancel the same, and such policyholder shall have the right, at any time within thirty days after such notice has been duly deposited in the post office, postage , prepaid, and addressed to such policyholder to the address last known by such company, in which to pay such premium; and any attempt on,the part of such insurance company to cancel or forfeit any such policy without the notice herein provided for shall be null and void.’’
The argument of the plaintiff is that the note extended the time for the payment of the premium to May 28, 1922; that the policy gave thirty-one days additional, in which to pay the-.note; and that notice under the statute could not be given until thirty-one days after the maturity of the note had expired. The argument of the plaintiff might be good if it were not that “parties to an unperformed contract may, by mutual consent, modify it by altering, excising, or adding provisions, provided the modifications do not make it illegal or violative of public policy.” (13 C. J. 589.) When the note was given a new contract was made which extended the time for the payment of the second annual premium. It was a.pontract made upon consideration. The insured secured an extension of his policy; the defendant obtained money for carrying the policy until the due date of the note, and obtained the note providing for the payment of the premium. The argument of.the^plaintiff is not good, because the thirty-one day provision of the policy applied to the payment of premium as provided for in the policy, not as might be provided for by contracts outside the policy. The note extended, the time for the payment of the premium, but ¡there is nothing in the note tending to show that the insured had an additional thirty-one days for its payment. Its terms provided otherwise. It in effect extended the period of grace from thirty-one days to .six months. It stated “that unless payment is made in full- at the time stated, the said policy shall be and remain absolutely void except as to any nonforfeiture provision contained therein or by law.” (The thirty-one days additional time provided in the policy for payment of premiums was not one of the nonforfeiture clauses of the policy.) The,note did not carry with it the privilege of paying it thirty-one days after its maturity. The statute did not require the defendant to wait thirty-one'days after the maturity of the note before notifying the insured that the policy ¡would be cancelled if the note were not paid. The grace given by the policy for the payment of premiums did not attach to the note. This conclusion is supported by Pan-American Life Ins. Co. v. Carter, 202 Ala. 237; Robnett v. Cotton States Life Ins. Co., 148 Ark. 199; Schmedding v. Northern Assurance Co., 170 Mich. 528; Sharpe v. New York Life Ins. Co., 5 Neb. (unofficial) 278; Underwood v. Jefferson Standard Life Ins. Co., 98 S. E. 832 (N. C.); Kroksather, v. Western Union Life Ins. Co., 193 N. W. 48 (N. D.); Kansas City Life Ins. Co., v. Leedy, 62 Okla. 131; Stewart v. Home Life Ins. Co., 131 N. Y. Supp. 504; and Reed v. Bankers Reserve Life Ins. Co., 192 Fed. 408.
The plaintiff relies on Cunningham v. Insurance Co., 106 Kan. 631, 189 Pac. 158, where this court s.aid:
“Where before a life insurance .premium becomes due an agreement is made extending the time of payment, a failure to meet the obligation at its new maturity does not cause a lapse of the policy, notwithstanding a provision therein,contained to that effect; this result being prevented by the statute which forbids a forfeiture on account of the nonpayment of a premium until a thirty-day notice thereof shall have been given after such default has occurred.”
The difference between the Cunningham case and the present one is that there no notice of the forfeiture of the policy was given at the maturity of the extension note, while in the present case such a notice was given the day after the note matured. In the Cunningham case the court held that the statute providing for thirty days notice prevented a forfeiture of the policy without that notice,
The judgment of the .district court granting a new trial was erroneous. The judgment is reversed, and judgment is entered for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to oust the defendants from doing business in this state as a foreign corporation.
The charter of The Knights of the Ku Klux Klan recites that—
“The purpose and object of said corporation is to be purely benevolent and eleemosynary, and there shall be no capital stock or profit or gain to the members thereof.”
The petition of the plaintiff contains two counts, the first of which alleges that—
“The defendant, The Knights of the Ku Klux Klan, is a corporation organized and existing under the laws of the state of Georgia, and its purported purposes, among other things, are partly benevolent and eleemosynary, and its purposes are, among other things, to organize subordinate branches of the corporation in the state of Georgia and other states of the United States and elsewhere, whenever the same shall be deemed desirable in the conduct of its business, and to confer an initiative and degree ritualj and fraternal and secret obligations, words, grips, signs and ceremonies, and to own and conduct the sale of paraphernalia, regalia, stationery and other materials needed by the subordinate branches of such organization for the conduct of their business; and to publish a fraternal magazine and such other written or printed matter as shall be needed in the conduct of the business of the order; and to buy, hold and sell real estate and personal property suitable to the purpose of the corporation, and to sell, exchange and sublease said real or personal property or any part thereof, and to mortgage or create liens thereon, ánd'to borrow money and secure the payment thereof by mortgage or deed of trust, and to appoint trustees in connection therewith; and to execute promissory notes; and to have and to use a common seal; and to sue and be sued, to plead and be impleaded, and to do and perform all things and exercise all rights which, under the laws of Georgia, are conferred upon societies or orders of like character, and to have all the powers and privileges necessary to the extension of such corporation or to the conduct of the business and purpose of orders of like nature.”
The second count alleges that in this state the defendants are engaged in propagating race and religious prejudices and animosities, and are using intimidations, threats and violence to compel others to agree with the defendants and obey their commands.
The answer denies many of the allegations of the petition, admits some of them, and sets out the purposes and objects of the organization known as The Knights of the Ku Klux Klan.
Honorable S. M. Brewster, of Topeka, was appointed commissioner to hear and record the evidence and to make findings of fact and conclusions of law. That has been done.
The findings-of fact made by the commissioner include the following :
“I. The defendant, The Knights of the Ku Klux Klan, is a corporation organized and existing under the laws of the state of Georgia. It is incorporated under its charter as a patriotic, secret, social, benevolent order. Its purposes are stated to be purely benevolent and eleemosynary. The corporation has no capital stock. Its charter provides that there shall be no gain or profit to the members. Its principal place of business is Atlanta, Georgia.
“The charter gives the corporation power to issue decrees, edicts and certificates of organization to subordinate branches of the corporation in its home state and in the states of the United States and elsewhere, wherever the same shall be deemed desirable. It is given power to confer initiative degree ritualism, fraternal and secret obligations, words, grips, signs, cere monies; but only to white male persons of sound health, good morals and high character.
“IV. The charter provides that the corporation shall have the right to own and control the sale of all paraphernalia, regalia, stationery, jewelry, and such other material as is needed by the subordinate branches of the order for the proper conduct of their business. It also provides that the corporation shall publish a fraternal magazine and other literature needed in the conduct of the business of the order, and that the corporation shall buy, hold and sell real estate and personal property suitable to the purposes of the order; sell, exchange or lease the same; mortgage and create liens thereon; borrow money, execute promissory notes; have and use a common seal; and sue and be sued.
“V. The constitution adopted by the corporate organization declares that The Knights of the Ku Klux Klan, Incorporated, is the original klan organized in the year 1866 and active during the reconstruction period of American history, and ‘by and under its corporate name is revived, remodeled and expanded into a ritualistic, fraternal and patriotic society of national scope.’
“The constitution further declares that the order takes to itself all of the prescript used as the governing law of the original klan, together with all official .titles, mannerisms, usages and things therein prescribed, and these are declared to be held sacred as a precious heritage which the klan shall jealously preserve, forever maintain and valiantly protect from profanation.
“VI. The constitution states the object of the order is to unite white male persons, native born, gentile citizens of the United States of America, of good reputation and respectable vocation, exemplary habits, sound mind, under a common oath into a brotherhood to cultivate and promote patriotism toward the civil government, to practice an honorable clannishness toward each other, to practice a practical benevolence, and, among other things, to maintain white supremacy.
“XXII. The constitution of The Knights of the Ku Klux Klan provides for the payment of what is called a klectoken. This klectoken, or initiation fee, received prior to the issuance of a charter to the local klan by the Georgia corporation, is, not less than ten dollars for each member admitted into a klan in process of organization, which klectoken is divided as follows: Four dollars goes to the organizer of the klan; one dollar to the Imperial Representative of the defendant corporation; and five dollars is sent direct to the defendant corporation at Atlanta, Georgia. This fee has been and is being collected by the defendant corporation in Kansas by and through its representatives from each member received into a provisional klan in the state of Kansas.
“XXXII. The constitution provides that each and every member naturalized into the order of The Knights of the Ku Klux Klan must supply himself with a robe and helmet by sending an order through his kligrapp, with the required fee for the same, to the defendant corporation at Atlanta, and the constitution further provides that this robe shall be his and his only just so long as he is a member of the order in good standing, and upon his quitting or being suspended or banished, he shall return the robe to the exalted cyclops.
“It further provided that all money such member has paid shall be forfeited by him when he quits or is expelled or suspended.
“XXXIII. Some of the paraphernalia, regalia, emblems, etc., are copyrighted and the copyright is held in the name of the defendant corporation. The title to all of the paraphernalia, regalia, etc., whether used by the local klan or not, is held in the parent corporation. In the event that a klan charter is revoked or relinquished for any cause all moneys and properties must be accounted for and returned to the defendant corporation, and this' is true of all such property and moneys in Kansas held by the various klans.
“XXXIV. Members of the various klans in Kansas have procured robes, helmets and other paraphernalia in the manner and under the terms and conditions set out in the charter and constitution of the defendant corporation, and the same are still held in Kansas as the property of the defendant corporation.
“XXXV. The orders for supplies of whatever nature from any local klan in the state of Kansas are made through the officers of the local klan to the imperial representative of the defendant corporation, which imperial representative has in a way supervision over all the klans in Kansas. The orders are made out directly to the headquarters at Atlanta, and are sent, together with remittance, to the imperial representative (who for the state of Kansas is George T. MeCarron, of Kansas City, Missouri). The imperial representative in turn forwards them to the home office of the corporation at Atlanta, Georgia.
“XXXVI. Under the constitution it is obligatory for all of the copyrighted supplies to be obtained by the local organizations from Atlanta, Georgia. This applies to robes, stationery and ritualistic matters — all of which are manufactured or procured by the defendant corporation, The Knights of the Ku Klux Klan. Every order must go to the superior officers from the inferior officers, through the proper channels, until it officially reaches the imperial officers, and must come back the same way, through the imperial officers on down to the local officers. The corporation controls the handling and the use of all robes, insignia and paraphernalia of every kind as herein described. It is exercising and has exercised such control over such property in the state of Kansas.
“XXXVII. If official documents are wanted, an order is sent to the imperial representative at Kansas City by the exalted cyclops of the particular lodge. The imperial representative in turn sends the order to the imperial kligrapp (national secretary), who fills the order and sends it to the imperial representative at Kansas City, Missouri, who in turn transmits it to the exalted cyclops of the particular klan in Kansas, who holds custody of it for the defendant corporation under the rules prescribed by the constitution of the defendant organization.
“XXXVIII. In receiving orders for robes, etc., and in collecting money for the same and in transmitting the money and order to Atlanta, Georgia, the Idaliff or secretary of the different lodges in Kansas acts for and is the representative of the defendant corporation, and on the arrival of the supplies ordered from the defendant corporation, the officer having charge and custody of the same in the various lodges in Kansas holds the same as a representative of the defendant corporation, which corporation owns and has control'thereof as heretofore found.
“XXXIX. The defendant corporation owns and controls in the state of Kansas all the paraphernalia, regalia, etc., used in the state by the various klans or subordinate lodges or the individual members thereof.
“XL. The defendant corporation owns considerable personal property within the state of Kansas in the way of robes, insignia, etc., the exact amount or value of which the evidence does not disclose, and is exercising the right and power to hold such property in the state of Kansas.
“XLI. The defendant corporation sells supplies and has sold supplies to the various klans in the state of Kansas — jewelry, stationery, insignia and paraphernalia of all kinds — all of which have been sold and handled through the local officers of each klan in the manner described in findings Nos. XXXV, XXXVI, and XXXVII.
“XLII. The Knights of the Ku Klux Klan, Incorporated, has not made any application to the state charter board of the state of Kansas for authori1v to engage in business in the state of Kansas as a foreign corporation, nor has it, or anyone for it, complied with the laws of the state of Kansas respecting the doing of business therein by a foreign corporation.
“XLV. Each and all of the primary powers and purposes and businesses which the defendant corporation is authorized and empowered to do, and for which it is incorporated, are done, exercised and carried on in the state of Kansas by such defendant corporation through the various local klan organizations, and through its various agents and representatives, and under the control and direction of the imperial officers of the defendant corporation.
“XLVIII. Considerable evidence was introduced before the commissioner, both oral and documentary, as to threats made against individuals, and as to practices of intimidation and threats of injuries to persons and property, but your commissioner finds that such testimony is wholly insufficient to connect the defendant corporation with any of such alleged acts and practices, and finds that there is no evidence that the defendant corporation or the individual defendants have ever engaged in or authorized such practices in Kansas. There is nothing to connect the defendant corporation or the individual defendants with any of the threatening letters introduced in evidence and marked, respectively, 'Plaintiff’s Exhibits Nos. 24, 25, 26, 27, and 28’.”
Other findings of the commissioner gave in detail the manner in which the defendant corporation operates in this state.
Among the conclusions of law found by the commissioner are the following:
“I. The defendant corporation, The Knights of the Ku Klux Klan, is a foreign corporation governed by the provisions of section 17-505, Revised Statutes of Kansas for 1923.
“II. The defendant corporation is doing business in the state of Kansas within the meaning of section 17-505 and section 17-506, Revised Statutes of Kansas for 1923.
“III. The defendant corporation is doing business in the state of Kansas without authority of law and in violation of the statutes of the state of Kansas.”
Exceptions have been filed by the state to those findings of the commissioner which concern the failure of the evidence of the plaintiff to establish the allegations of the petition that the defendants are propagating race and religious prejudices and hatreds, and are using intimidations, threats and violence to compel others to agree with the defendants and obey their commands. The defendants have filed no exceptions to the report of the commissioner, but argue that his conclusions of law are not correct.
After an examination of the evidence as set out in the abstract of the plaintiff, the court approves the findings of fact made by the commissioner, adopts them and makes them the findings of the court.
1. The state challenges the right of The Knights of the Ku Klux Klan, a foreign corporation, to do business in this state without first securing authority from the charter board.
The pertinent statutes are parts of sections 17-501 and 17-503 of the Revised Statutes, which read:
“Any corporation organized under the laws of any other state, territory or foreign country, and seeking to do business in this state, shall make application to the state charter board, upon blank forms supplied by the secretary of state, for authority to engage in business in this state as a foreign corporation. ...”
“The state charter board, in passing upon the application of a foreign corporation, shall make special inquiry -with reference to the solvency of such corporation, and for this purpose may Require such information and evidence as they may deem proper. If they shall determine that the corporation is organized in accordance with the laws of the state, territory or foreign country under which it is incorporated, that its capital is unimpaired, and that it is organized for a purpose for which a domestic corporation may be formed, the application shall be granted. . . .”
The definition of a corporation given in 14 C. J. 49 is as follows:
“A corporation is a collection of natural persons, joined together by their voluntary action or by legal compulsion, by or under the authority of an act of the legislature, consisting either of a special charter or of a general permissive statute, to accomplish some purpose, pecuniary, ideal or governmental, authorized by the charter or governing statute, under a scheme of organization, and by methods thereby prescribed or permitted; with the faculty of having a continuous Succession during the period prescribed by the legislature for its existence, of having a corporate name by which it may make and take contracts, and sue and be sued, and with the faculty of acting as a unit in respect of all matters within the scope of the purposes for which it is created.”
We quote from 14A C. J. 1215 as follows:
“A foreign corporation can have no legal existence beyond the bounds of the state or sovereignty by which it is created. It exists only in contemplation of law and by force of the law, and where that law ceases to operate the corporation can have no existence. It must dwell in the place of its creation and cannot migrate to another sovereignty. This principle does not prevent a corporation from acting in another state or country with the latter’s express or implied consent. But every power which a corporation exercises as such in another state depends for its validity upon the laws of the sovereignty in which it is exercised. A state cannot impose one of its artificial creatures on another sovereignty nor confer upon its corporators powers which they can lawfully exercise beyond its jurisdiction. A corporation can exercise none of the functions and privileges conferred by its charter in any other state or country except by the comity and consent of such state or country.”
To the same effect is Land Grant Railway v. Com’rs of Coffey County, 6 Kan. 245, where this court said:
“A corporation is an artificial being, and can have no legal existence out of the boundaries of the sovereignty by which it is created. It must dwell in the place of its creation, and cannot migrate to another sovereignty.”
In Foster v. Caskey, 66 Kan. 600, 72 Pac. 268, is found a quotation from St. Louis v. The Ferry Company, 11 Wall. 423, 429, as follows:
“In the jurisprudence of the United States a corporation is regarded as in effect a citizen of the state which created it. It has no faculty to emigrate. It can exercise its franchises extraterritorially only so far as may be permitted by the policy or comity of other sovereignties.”
In Foster v. Caskey, supra, on page 602, the language quoted from Land Grant Railway v. Com’rs of Coffey County, supra, is repeated. In Williams v. Railway Co., 68 Kan. 17, 21, 74 Pac. 600, similar language is quoted from Bank of Augusta v. Earle, 13 Pet. 519, 588.
Prior to the enactment of our statutes governing the manner in which foreign corporations may be admitted to do business in this state they did business under what is known as comity between the states. On the subject of comity, 14A C. J. 1217 says:
“Under principles of comity, and except as otherwise provided by constitutional or statutory provisions, a corporation created by any state or nation is permitted to enter other states, and there to exercise all legitimate powers conferred upon it and to carry on as a corporation any business not prohibited by the local laws or against the local public policy. The rules of comity are subject to local modification by the lawmaking power. But until so modified they have the controlling force of legal obligation, and it is the duty of the courts to observe and enforce them until the sovereign otherwise directs. The comity involved is the comity of the state, not of the courts, and the judiciary must be guided by the principles and policy adopted by the legislature. No restric tions can be imposed by the courts without the sanction of the lawmaking power. This comity must be presumed to exist, and does exist, until a state expresses an intention to the contrary in some affirmative way; that is, by direct enactments on the subject, or by its public policy deduced from the general course of legislation or the settled adjudications of its courts of last resort. Legislative silence upon the subject is equivalent to permission. Statutes authorizing foreign corporations to do business within the state and prescribing the terms and conditions upon which they shall be permitted to do so have been almost universally adopted, and their construction and application forms a large part of the law of foreign corporations. Upon compliance with such statutes the foreign corporation may transact business with [within] the state as if under a franchise from the state, and ordinarily in the same manner as if it were a domestic corporation.”
The legislature may prescribe the terms and conditions upon which foreign corporations may be permitted to do business in this state. The United States supreme court in Interstate Amusement Co. v. Albert, 239 U. S. 560, 568, said:
“For the authority of the state to restrict the right of a foreign corporation to engage in business within its limits or to sue in its courts, so long as interstate commerce be not thereby burdened, is perfectly well settled. (Paul v. Virginia, 8 Wall. 168, 181; Hooper v. California, 155 U. S. 648, 655; Bank of Augusta v. Earle, 13 Pet. 519, 589, 591; Anglo-American Prov. Co. v. Davis Prov. Co., 191 U. S. 373; Sioux Remedy Co. v. Cope, 235 U. S. 197, 203.)”
In The State v. Telegraph Co., 75 Kan. 609, 631, 90 Pac. 299, this court used the following language:
“The right of the state altogether to exclude foreign corporations from the exercise of corporate franchises within its borders, or to admit them upon such conditions as it may see fit to impose, has been vindicated so often that a brief reference to a limited number of the decided cases will suffice.”
Quotations are then given from a number of decisions of the supreme court of the United States sustaining the proposition of law declared by this court. The decision in The State v. Telegraph Co. was reversed by the supreme court of the United States, but not because of the declaration of law just quoted.
The same rule was declared by this court in The State v. Pullman, 75 Kan. 664, 90 Pac. 319, which was also reversed by the United States supreme court, but that court in reversing The State v. Telegraph Co. and The State v. Pullman recognized the authority of the states to prescribe the terms and conditions on which foreign corporations may be permitted to do business in the state so long as those terms and conditions do not in any way interfere with provisions of the constitution of the United States.
In discussing the rights of a foreign corporation to do business in another state, the law makes no distinction between the different classes of corporations, whether aggregate, civil, ecclesiastic, eleemosynary, lay, municipal, private, public, or sole. When organized under the laws of another state each of these different classes of corporations is a foreign corporation. This rule follows from the principle that the laws of one state can have no extraterritorial force. Subject to minor qualifications, not here necessary to note, the laws of a state cease when the state line is reached.
Since the legislature has prescribed the terms on which a foreign corporation may be permitted to do business in this state, such corporations must conform to those terms unless protected by provisions of the constitution of the United States; otherwise they may be ousted from doing business in this state.
2. The defendants contend that the corporation is not doing business in this state within the meaning of our foreign corporation laws. The commissioner found as a conclusion of law that the defendant corporation is doing business in the state of Kansas within the meaning of those laws. In his findings the commissioner sets out in detail the operations of The Knights of the Ku Klux Klan in this state. Those operations show that the corporation is functioning here under its charter.
Section 17-506 of the Revised Statutes should be noticed. It reads:
“Every corporation organized under the laws of another state, territory or foreign country 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 for sale, delivery or distribution, shall be held to be doing business in this state within the meaning of this act.”
The defendants argue that to do business, that must be done which is for pecuniary, profit, and that our foreign corporation laws apply only to corporations engaged in some kind of commercial, financial or business enterprise, and not to corporations organized for religious, charitable or benevolent purposes.
Our statutes permitting foreign corporations to operate and to do business in this state limit the power of foreign corporations to do business to those fields for which a domestic corporation may be formed. (R. S. 17-503.) Domestic corporations may be created for the support of public worship and for the support of any benevolent, charitable, educational or missionary enterprise. (R. S'. 17-202.) The business of a corporation organized for the support of public worship or for the support of benevolent, charitable, educational or missionary undertakings is to support public worship and to support benevolent, charitable, educational or missionary undertakings., A foreign corporation, when it comes into this state for the purpose of supporting public worship or of supporting a benevolent, charitable, educational or missionary undertaking, does the business for which a domestic corporation can be organized. One purpose of our statute is to permit foreign corporations to do the same business in this state that a domestic corporation can do, and another purpose is to require the foreign corporation to obtain permission to do the business that a, domestic corporation can do.
We look to law books for assistance in the solution of this question. 14A C. J. 1270 says:
'■The general rule is that when a foreign corporation transacts some substantial part of its ordinary business in a state, it is doing, transacting, carrying on or engaging in business therein, within the meaning of the statutes under consideration.”
A very large number of cases are cited to support the statement just quoted.
Throughout our corporation statutes a distinction is made between corporations for profit and those not for profit. Other than that distinction there is nothing in our corporation law to assist in the interpretation of sections 17-501, 17-503 and 17-506 of the Revised Statutes.
So far as we have been able to ascertain, the courts and law writers, in discussing the rights of private corporations to do business in states other than those in which they are organized, make no distinction between corporations organized for profit and those organized not for profit. The language used is always broad enough to include both kinds of corporations, although used to describe private corporations organized for profit.
In prescribing the manner in which foreign corporations may be admitted to do business in this state the law makes no direct distinction between corporations for profit and those not for profit. The language used by the legislature is broad enough to include both of them, although there is that in the statute which may lead one ta the conclusion that the law is intended to be applied to corporations organized for profit only.
There are some declarations of other courts along the line indicated in 14A C. J. 1270 that will be of assistance in reaching a correct conclusion.
The supreme court of Alabama, in Beard v. The Union & American Publishing Company, 71 Ala. 60, 62, said:
“Receiving subscriptions to a newspaper or collecting the money therefor, although the paper is published in another state, and by a corporation, is not doing ‘business’ in this state within that section of the constitution. There must be a doing of some of the works or an exercise of some of the functions for which the corporation was created to bring the case within that clause.”
In The People v. C., I. & L. Ry. Co., 223 Ill. 581, 588, the court said:
“The expression ‘doing business in this state’ . . . has been defined to mean doing the business or character of business for which the corporation was organized.”
In Kline Bros. & Co. v. German Union Fire Ins. Co., 132 N. Y. Supp. 181, 185, the following language is found:
“Doing business within the meaning of section 15 of the general corporation law relates to the ordinary business which the corporation was organized to do, and has no relation to the incidental contract of a foreign; corporation with a domestic corporation, such as the insuring of its property.”
The supreme court of Texas, in Smythe Co. v. Ft. Worth Glass & Sand Co. et al., 105 Texas 8, 15, quoted from Beard v. Union & American Publishing Co., 71 Ala. 62, as follows:
“ ‘There must be a doing of some of the work or an exercise of some of the functions for which the corporation was created to bring the case within that clause.’ ”
In Barse Live Stock Co. v. Range V. C. Co., 16 Utah 59, 65, the court said:
“The constitution applies to all corporations. In our opinion, the constitution, when reasonably construed, was intended to prohibit corporations from transacting their ordinary corporate business within the state without first complying with its terms, and having one or more places of business', with an authorized resident agent upon whom process could be served in cases of litigation between them and citizens of the state.”
This language was used pertaining to the following provision of the constitution of that state:
“No corporation shall do business in this state without having one or more places of business, with an authorized agent or agents upon whom process may be served, nor without first filing a certified copy of its articles of incorporation with the secretary of state.” (p. 64.)
A similar statement is found in Rich v. Chicago, B. & Q. R. Co., 34 Wash. 14, 17, as follows:
“It is not easy to formulate a general rule by -which it can be determined in all cases whether or not a corporation is doing business at a particular place; but it seems to be the consensus of opinion that a corporation, to be within the rule, must transact within the state some substantial part of its ordinary business, continuous in the sense that it is distinguished from merely casual or occasional transactions, and it must be of such a character as will give rise to some form of legal obligation.”
All these cases concerned corporations for profit. In Conference Free Baptists v. Berkey, 156 Cal. 466, 469, this language was used concerning a corporation organized under the laws of Maine for “religious, missionary, educational and charitable” purposes:
“There are decisions, however, which hold that a foreign corporation may come within the purview of such statutes by the doing of a single act. But even in the states which announce this doctrine it is held that the single act which will bring the corporation-within the purview of the statute must be an act of the ordinary business of the corporation. In the language of the supreme court of Alabama, ‘There must be a doing of some of the works or an exercise of some of the functions for which the corporation was created to bring the case within that clause.’ ”
In Wilson v. Bank, 77 Kan. 589, 595, 95 Pac. 404, this court said:
“The very terms of the statute discriminate between maintaining actions and doing business, and the only rational meaning of ‘doing business’ is the carrying on of the operations of the corporation, or some portion of them, in the usual and regular course of the prosecution of the corporate enterprise for profit.”
But in Lumber Co. v. State Charter Board, 107 Kan. 153, 162, 190 Pac. 601, this court used the following language:
“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.”
The expression that the business “must be of such a character as will give rise to some form of legal obligation,” found in Rich v. Chicago, B. & Q. R. Co., supra, would indicate that the foreign corporation laws of Washington do not apply to corporations not for profit. The case was one for personal injury, for the negligence of the railroad. The expression probably was not used for the purpose of drawing a distinction between corporations for profit and those not for profit. With that qualification, the language used is in harmony with that used by the other courts and with the language used-in 14A C. J. 1270.
We quote from Knights of the Ku Klux Klan v. Commonwealth (Va.), 122 S. E. 122, as follows:
“Whether or not The Knights of the Ku Klux Klan, a corporation chartered under the laws of the state of Georgia, is required to comply with the statutes applicable to foreign corporations desiring to do Business or exercise their corporate functions in this state is the question here involved. . . .
“It seems to us that the mere recital of the fact that the appellant is a Georgia corporation is sufficient to sustain the conclusion of the commission, for the language of the inhibiting statutes seems too plain to require any interpretation. The constitution precludes foreign corporations from exercising their functions in this state, except upon compliance with the laws of the state, and expressly authorizes the gen'eral assembly to discriminate against foreign corporations if it is deemed expedient. That the general assembly may exclude foreign corporations from exercising their corporate functions within this state, subject only to the inhibitions of the federal constitution, is everywhere conceded. It is claimed here, however, by the appellant, that the state has neither exercised this undoubted power nor imposed any conditions or restrictions upon corporations of this class, and the supporting argument is chiefly based upon the contention that the words ‘doing business’ cannot be applied to a corporation which claims to be organized for patriotic and benevolent purposes.” (p. 123.)
Then follows a description of the manner in which The Knights of the Ku Klux Klan operate and the purposes for which they operate, the same as is shown in the findings of the commissioner in the present action. Then this language follows:
“From these conceded facts it is perfectly apparent that the corporation is exercising its functions and powers within this state. The claim is, however, that the words ‘doing business’ have reference to the exercise of some commercial, manufacturing or other function, and that the state has only intended to exclude corporations of this character. We find nothing in the Virginia statutes to justify, such a limitation upon the language used.” (p. 124.)
Another case which is illuminating is Pacific Typesetting Co. v. I. T. U., 125 Wash. 273, 216 Pac. 360. In the opinion in that case the court used the following language:
“It becomes necessary to determine whether this association, the International Typographical Union, was doing business within this state. It can hardly be argued that it was not, for among the important activities of an association such as this is the securing of what its members deem proper hours of labor for them in their trade, and the adoption of satisfactory working conditions and pay. These constitute the major purposes and the principal activities of such organizations. They are created primarily to attain these results, and the effort in any community to secure from their employers the adoption of any or all of these beneficient standards of employment is engaging in the very business for which they continue their existence. Therefore, when the International Typographical Union authorized Howard to employ all lawful means to secure the adoption of the 44-hour week in the printing trade in Seattle, it authorized him to carry on the business of the association to that important extent.” (p. 277.)
The defendant corporation is doing business in this state within the meaning of our foreign corporation laws.
3. The defendants contend that all the transactions of The Knights of the Ku Klux Klan with citizens of the state of Kansas are interstate commerce and therefore free from state regulation.
The report of the commissioner shows that the defendant corporation is selling lodge insignia, paraphernalia and supplies in the state of Kansas. These things are manufactured in Georgia and are sold, or perhaps delivered only, to the officers of subordinate organizations in the state of Kansas on the order of those officers transmitted to the headquarters or home office of the defendant corporation at Atlanta, Ga., and the paraphernalia, insignia and supplies are sent from Atlanta, in obedience to the orders received from the officers of the subordinate organizations in the state of Kansas. So far as this proposition is concerned it is controlled by International Textbook Co. v. Pigg, 217 U. S. 91, which reversed Textbook Co. v. Pigg, 76 Kan. 328, 91 Pac. 74. There this court held that the International Textbook Company, a Pennsylvania corporation, conducting a correspondence school which employed agents in Kansas to solicit students and transmit to the central office in Pennsylvania the fees paid by students, could not maintain an action to recover on a contract signed by one of its students because the corporation had failed to comply with the foreign corporation laws of this state. The United States supreme court said that the corporation was engaged in commerce among the state's. That court used the following language:
“It is true that the business in which the International Textbook Company is engaged is of a somewhat exceptional character, but, in our judgment, it was, in its essential characteristics, commerce among the states within the meaning of the constitution of the United States. It involved, as already suggested, regular and practically continuous intercourse between the Textbook Company, located in Pennsylvania, and its scholars and agents in Kansas and other states. That intercourse was conducted by means of correspondence through the mails with such agents and scholars. While this mode of imparting and acquiring an education, may not be such as is commonly adopted in this country, it is a lawful mode to accomplish the valuable purpose the parties have in view. More than that, this mode — looking at the contracts between the Textbook Company and its scholars — involved the transportation from tfie state where the school is located to the state in which the scholar resides, of books, apparatus and papers useful or necessary in the particular course of study the scholar is pursuing, and in respect of which he is entitled from time to time, by virtue of his contract, to information and direction. Intercourse of that kind between parties in different states, particularly when it is in execution of a valid contract between them, is as much intercourse in the constitutional sense ' as intercourse by means of the telegraph.” (p. 106.)
Many decisions might be cited to show that the sale of lodge paraphernalia, insignia and supplies by the defendant corporation to its subordinate organizations in the state of Kansas is interstate commerce, but it is not deemed necessary to cite any of them. For the purposes of this case it will be conceded that those transactions are interstate commerce and are beyond the control of this state because they are under the protection of the interstate-commerce clause of the constitution of the United States.
The findings show that the defendant corporation owns and controls all the paraphernalia, insignia, etc., used in this state by the local organizations or the individual members thereof, but that does not destroy the interstate-commerce character of the transaction by which those paraphernalia and insignia get into the hands of the local organizations or of their members.
While the sale of lodge paraphernalia, insignia and supplies by the defendant corporation to subordinate lodges ’ in this state is interstate commerce, the ownership of that paraphernalia, insignia and supplies after they arrive in this state is not interstate commerce, neither is the organization nor control of lodges of The Knights of the Ku Klux Klan within this state interstate commerce.
The defendant corporation, The Knights of the Ku Klux Klan, is ousted from organizing or controlling lodges of The Knights of the Ku Klux Klan in this state and from exercising any of its corporate functions in the state of Kansas except such as are protected by the interstate-commerce clause of the constitution of the United States.
Hopkins, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for a commission on the sale of a stallion and jack. Plaintiffs’ oral contract of employment with defendants provided that plaintiffs could keep as their commission all they could get above $175. Plaintiffs were authorized to dictate the price to any buyer they might obtain. Plaintiffs promptly found a prospective buyer, and he and defendants and plaintiffs discussed various phases of a bargain, but the closing of a contract was postponed for three days, during which time defendants effected a deal with the same prospective buyer on terms of their own making and without regard to the rights of plaintiffs under their agency employment.
Plaintiffs sued for a commission of $100. Jury trial; special findings; verdict for plaintiffs, and judgment accordingly. Defendants appeal.
After notice of appeal was served on plaintiffs, they filed a remittitur on their judgment, reducing it from $104.06 ($100 and interest) to $99.99, and raise the point that the amount involved in the judgment is insufficient to give this court jurisdiction. (R. S. 60-3303.) But defendants’ right to appeal was absolute at the time they gave notice of appeal. Plaintiffs could not strip defendants of that right by the belated filing of a remittitur. This matter seems to be governed by statute in some jurisdictions, but by what seems to be the weight of authority and the better reasoning a waiver or release of a part of the award after judgment is entered is unavailing to defeat the right of appeal. (Kennedy v. National Bank, 128 Ia. 561, syl. ¶ 2; Finch v. Hartpence, 29 Neb. 368; Ft. Worth & D. C. Ry. Co. v. Hodge & Speer, 58 Tex. Civ. App. 540; N. Y. Elevated Railroad v. Fifth Nat. Bank, 118 U. S. 608, and Rose’s notes thereto in 30 L. Ed. 601; 3 C. J. 423, et seq.)
Touching the errors assigned by defendants, it is first argued that plaintiffs’ agency was founded on a special contract which would not entitle them to a commission except in compliance therewith. Such is the general rule, of course, but here the conduct of defendants in closing a bargain with the buyer found by plaintiffs prevented plaintiffs from negotiating a contract which would have yielded to defendants their prescribed price' and some overplus thereto as a commission for plaintiffs, in strict conformity with their special agency contract. (19 Cyc. 262.) By that contract plaintiffs were given the right to fix the price at which the animals should be sold. While plaintiffs’ agency continued defendants had no right to dictate the price nor to take the bargain-making out of their agents’ hands.
One who employs an agent to sell his property or to find a buyer must deal with his agent in good faith, otherwise he may be liable for any consequent damages. Here the evidence inherent in the circumstances tended strongly to show bad faith on the part of defendants. On a certain Thursday, April 5, 1923, the contract of agency was made; on Saturday two days later plaintiffs produced Roberts as a prospective buyer. A contract of purchase and exchange was discussed by the parties that day but not concluded. Roberts asked to defer the matter “until Tuesday”; defendant Nichols agreed to keep the animals “until Tuesday”; Roberts was to come to defendant Nichols’ place “Tuesday morning”; on that day they were to “fix the deal up,” “one way or the other.” The three parties agreed to meet at a neighbor’s auction, on Tuesday. That day, however, defendants avoided the plaintiffs. Roberts pretended to them that the deal “was off.” Nichols told one of the plaintiffs that the deal with Roberts had “blowed up.” The truth was that on that same day defendant closed a bargain with Roberts for the sale and exchange of .the animals for Roberts’ note for $175 and certain cattle valued at $75..
Under such a showing, it is not surprising that the general verdict as well as the controlling special findings were favorable to plaintiffs. But even if there had been no element of bad faith involved, plaintiffs would have, been entitled to some commission for their services in procuring a buyer who dealt with the owner on terms other than those prescribed to or dictated by the agents under their special agency contract. (Briggs v. Bank, 112 Kan. 161, 210 Pac. 480.) Defendants’ conduct rendered it impossible for plaintiffs to proceed further under the terms of their special contract.
The incidental matters urged in this appeal need but brief comment: Fault is found with the instructions. These have been examined and are held to be free from error. The requested instructions were properly denied. Space is devoted to criticism of the jury’s special findings. The controlling findings were well supported by the evidence, and particularly by the evidence inherent in the circumstances — often the most persuasive and convincing of all the various sorts of judicial evidence. There was no error in overruling defendants’ demurrer to the evidence nor in refusing to direct a verdict for defendants. The contention that plaintiffs abandoned their efforts to negotiate a contract with Roberts cannot be sustained. The pretended shifting of the title to the animals from Nichols to Summitt availed naught against plaintiffs. The right to dispose of the property was in plaintiffs so long as their agency continued. Summitt was a son-in-law of Nichols and was quite familiar with the agency of plaintiffs. He was Nichols’ adviser in the trade and his creditor as well, and the animals were being disposed of by Nichols to satisfy a debt owed by him to Summitt. At the auction on Tuesday, Summit! told plaintiff Weaver, “If you fellows will give me $25,1 will put the deal over.” Despite the specious testimony for defendants, the more convincing evidence tended to prove that all the maneuvers and statements of both defendants, and of Roberts as well, were purposely and collusively designed to defraud plaintiffs out of their commission.
Neither material error nor miscarriage of justice is apparent in the record, and the judgment is therefore affirmed. | [
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