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The opinion of the court was delivered by
Burgh, J.:
The appeal brings up for review a judgment of the district court awarding unpaid compensation, allowed a deceased soldier of the World War, to the residuary legatee in his will.
After his claim of compensation had been allowed, but before payment was made, Carl John Elwood, a soldier of the World War, died. He left neither wife nor child, his mother was dead, and his father was his heir at law. He left a will in which his brother, Perry H. Elwood, was named residuary legatee, and the question is whether the heir or the legatee is entitled to the money.
The act of 1923 relating to compensation for veterans of the World War, passed pursuant to the referendum held in 1922, promised to pay compensation to veterans who were honorably discharged. A later act of 1923 declared that the intention was to pay qualified persons who served honorably, but who died before discharge. The interpretative statute clearly indicates -that, notwithstanding death of a soldier, privilege to receive his unpaid compensation passes to some one. This intention is confirmed by a still later act of 1923, which reads as follows:
“The county board shall promptly consider all claims presented and maKe findings of fact on the following points, to wit: (a) Date of entering the service, (b) Residence at said time, (c) Date of termination of such service. (d) Kind and character of discharge or manner and method of termination of service, (e) Whether claimant presented claim in person before said board. (/) If the claim is based upon the service of one who died before receiving compensation, the finding shall show the capacity of the claimant and a complete list of the names, ages* residence, address of the widow and children, if any, and the father and mother if surviving.” (R. S. 73-120.)
At the special session of the legislature in 1923, an act was passed forbidding assignment or transfer of claims for compensation, either before or after allowance. At the same session provision was made for securing to his wife or widow and minor children the compensation of a soldier who failed to file application therefor, and for securing compensation to a deserted wife or child. (R. S. 73-142, 73-143, 73-144.) The statute of wills provides that any interest in personal property may be given by will. The statute of descents and distributions provides for distribution of personalty, after payment of debts, between widow and children, or to widow if no child, or to child if no widow, and if no widow or child to parents, and if one parent be dead, then to the other.
The provision prohibiting assignment or transfer of claims for compensation is broad enough, if so intended, to include transfer by will. The word “assignment” has a comprehensive meaning, and has been held to include gift of a debt by will. (Hayes v. Hayes, 45 N. J. Eq. [18 Stewart] 461.) The word “transfer” has a still wider meaning. It includes all translations whereby property of one person becomes the property of another, whether by descent or purchase, and a will is the common assurance of a transfer which becomes effective at death of the testator. (2 Blackstone’s Commentaries, 294.) In view of the nature of the subject dealt with by the legislature and the mode of treatment in some other respects, there is good reason to believe the provision under consideration was intended to deprive a soldier of capacity to exercise dominion over the debt of the state to him in any manner, before payment. The soldier may receive; the state alone bestows.
The state pays soldiers’ compensation to whom it will, and no one may receive pursuant to general statutes relating to property interests. A claimant must derive his right from the compensation act itself. This principle was applied in In re Appeal of Ralph W. Oman, Administrator, 115 Kan. 232, 222 Pac. 111, in which it was said the legislature intended to take compensation out of operation of the law relating to decedents’ estates. Legatees are not recognized by the statute. Wives, widows and children of claimants are clearly recognized, and by inference — somewhat attenuated indeed — parents may take. But the compensation fund is distributed no further than the statute itself declares, and in this instance the residuary clause of the soldier’s will did not include his compensation.
The judgment of the district court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.
Harvey, J., concurs in the portion of the judgment which denies compensation to the legatee. | [
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The opinion of the court was delivered by
Mason, J.:
While M. M. Price, the owner of a motor truck, was hauling a load of household goods of G. W. Rogers and wife from Webb City to Parsons, they accompanying him, the truck turned over. Rogers sued Price on account of injuries to the furniture and to himself. He recovered a judgment on the first item, which is no longer in controversy, but the court refused to submit the claim for personal injury to the jury, and this appeal is taken from that ruling.
Í. The petition alleged that the defendant orally agreed that for thirty dollars he would take the defendant and his wife on his truck from Parsons to Webb City and bring them back with their furniture. The plaintiff’s evidence was that the defendant upon being asked what he would charge to bring the furniture from Webb City to Parsons, offered to do it for thirty-five dollars and furnish everything, or for thirty dollars if the plaintiff and his wife would go with him and help him load and unload; that the plaintiff accepted the second part of the offer. . The trial court held this to be a fatal variance, saying;
“In the petition it was alleged by the plaintiff that the defendant had entered into a contract with them to transfer them from the city of Parsons to the city of Webb City, Missouri, and return, and coming from Webb City was to haul their household goods for the sum of thirty dollars. The proof in this case therefore varied from the allegations of the petition in . . . that after the contract was entered into the plaintiffs went voluntarily, the defendant receiving no compensation whatever for hauling them to Webb City; instead, upon the other hand, the plaintiffs got five dollars for going over there and back. In other words, the testimony discloses that Mr. Price’s offer was that he would go over there and haul the goods back from Webb City, Mo., for thirty-five dollars if he furnished somebody to help load and unload, and the plaintiff elected to take his wife along and thereby save five dollars. The variance is such as would preclude a recovery in this case, and along that line there was no evidence that the defendant, Mr. Price, did not use a slight degree of care at least in the handling and management of his automobile. And where somebody gets in your car and rides gratuitously you are not bound to use that degree of diligence and care that otherwise would be required; you must use the slightest degree of care susceptible to the surroundings. So in this case I withdraw from the consideration of the jury the first cause of action.”
If the arrangement between the plaintiff and the defendant be treated as involving two contracts, one for the defendant to transfer the goods for thirty-five dollars, and the other for the plaintiff and his wife to accompany the defendant and help load and unload for five dollars, the defendant would be liable to the plaintiff for a personal injury resulting from his want of ordinary care in driving. In that view, the relation of the plaintiff and the defendant would seem to be that of employee and employer. But if the plaintiff is regarded as riding gratuitously — as a guest, for instance —by the weight of authority the defendant was under an obligation to him to exercise ordinary care. (Notes, 20 A. L. R. 1014; Ann. Cas. 1915D 345.) That rule was applied in Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613. There the jury were instructed that the driver of an automobile was liable to an invited guest for injuries due to his failure to exercise ordinary care, and a judgment for the plaintiffs was reversed only because of the refusal of an instruction concerning contributory negligence. “The law requires from all persons, including those who render gratuitous services, reasonable care for the safety of life and persons.” (Maybury v. Sivey, 18 Kan. 291.)
But we do not consider the plaintiff to have been riding gratuitously upon any theory of the facts shown. The contract was en tire. Each party presumably, or at least conceivably, derived a benefit from the plaintiff and his wife accompanying the defendant on the trip. The defendant had the advantage of their presence to render aid in loading and unloading, and they obtained their transfer from Parsons to Webb City and return. (See in this connection Railway Co. v. Fronk, 74 Kan. 519, 87 Pac. 698.) In any event their carriage back and forth was specifically provided for in the contract — it was one of the terms of the agreement — and the defendant assumed the obligations owed by a private carrier to passengers for hire.
2. The defendant asserts there was no evidence of the injury having been caused by negligence'on his part. The plaintiff gave this testimony, which was abundant to take to the jury the question of actionable negligence:
“Mr. Price drove his car all the way from thirty to thirty-five miles . . . We had five rooms full of furniture on the truck and the load extended way up above the cab. . . . The load extended out over the sides about a foot on each side. When we hit the concrete road he just cut her wide open, passed everything on the road; he outran two Fords. I asked Mr. Price two or three times not to drive so fast, and my wife asked him two or three times. The last time was just on top the hill before we started down the hill, about two miles from Columbus, about one-half mile before we upset. . . . Mr. Price was going about thirty miles an hour just prior to the time of the upset. . . . I saw the buggy about one hundred yards down the road on the left-hand side. Mr. Price was driving down the middle of the road. He swerved out before passing the buggy; just as he got even with the buggy he commenced to dodge, and he was going so fast it commenced to rock and went over.”
The judgment denying relief for the personal injury is reversed and the cause is remanded for a trial of that issue. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the holders of a promissory note, to recover from a person who had negotiated the note by delivery, and whose name did not appear upon it. A demurrer to the petition was sustained on the ground it did not state a cause of action, and plaintiffs appeal. The question is whether the action was barred by the statute of limitations.
The note was given on October 14, 1913, and was payable four years after date. The makers were James W. Hagar and Lucy A. Hagar, and the payee was David H. Hagar. When offered in evidence, the note bore the following indorsement:
“It is distinctly understod that I, D. H. Hagar, hereby assign this note and mortgage to [Bert Rucker], without recourse on me. And the makers of this note and mortgage shall not be held beyond the value here described.
[Signed] David H. Hagar.”
The action was commenced against the makers and indorser on October 11,1922. On December 9,1922, James T. Rafter was made a party defendant. The petition contained three causes of action. The first was directed against the makers. The allegations relating to the title of plaintiffs were: That before maturity the payee negotiated the note to Rafter, with the indorsement upon it copied above, except that the name of the indorsee was not inserted in the blank left for that purpose; that before maturity Rafter sold and delivered the note to Rucker, and inserted Rucker’s name in the indorsement; and that afterwards Rucker sold a half interest in the note to Stark. By reference, these allegations were carried into the second and third causes of action. The second cause of action was directed against the payee as indorser. The allegations were: that on the day suit was commenced David H. Hagar informed plaintiffs he had given no consideration for the note, never had it in his possession or disposed of it, and his signature as indorser was a forgery; that if Hagar’s statements were not true, they were fraudulent; that before the statements were made plaintiffs had no knowledge of any facts which would impair the validity of the note or render title to it defective; and that Hagar was liable on the statutory warranties. The allegations of notice were carried into the third cause of action, which was directed against Rafter. Plaintiffs charged: That if Hagar’s statements were true, Rafter had knowledge of the facts; that the sale and delivery of the note by Rafter, bearing a forged indorsement, was fraudulent; and that Rafter concealed the forgery from Rucker. The third cause of action then continued as follows:
“That the defendant Rafter warranted by his said acts that said note and the indorsement thereon were genuine and what they purported to be; that he had good title thereto, and that he had no knowledge of any fact which would impair the validity of said note or render it valueless. . . . That by reason of the breach of any of the aforesaid warranties, these plaintiffs are entitled to recover from defendant James Rafter the said sum of $5,150, with interest thereon from October 14, 1913, at ten per cent per annum.”
Plaintiffs say in their brief, as they were bound to say in view of the nature of their pleading, that they seek to charge Rafter with liability on the note. The negotiable-instruments law contains the following provision:
“No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided . . .” (R. S. 52-218.)
The only express provision applicable to the case, and the one which the pleaders clearly had in mind when the petition was framed, is the following:
“Every person negotiating an instrument by delivery, or by a qualified indorsement, warrants: (1) That the instrument is genuine and in all respects what it purports to be; (2) that he has a good title to it; (3) that all prior parties had capacity to contract; (4) that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless; but when the negotiation is by delivery only, the warranty extends in favor of no holder other than the immediate transferee.” (R. S. 52-606.)
The action, therefore, is on these warranties. They were breached as soon as made, and a cause of action immediately accrued. They were made before maturity of the note. Rafter was not sued until more than five years after the note matured, and whether the five-year statute or the three-year statute governs (R. S. 60-306, First, Second), the action was barred.
Plaintiffs say the warranties contained in the negotiable-instruments law are warranties against fraud, and under the exception contained in the statute of limitations (R. S. 60-306, Third), they could sue on the contract of warranty within two years after discovery of the fraud. The action is not one for damages for fraud. No misrepresentation of any kind was -charged in the petition. The act charged was negotiation of the note, and the allegation was that by his act Rafter made-the warranties specified. Warranty sounds in contract, fraud sounds in tort, and liability predicated on breach of warranty is contract and not tort liability. The assertion that plaintiffs could sue on the contract of warranty within two years after discovery of the fraud must mean that they could sue on the contract of warranty within two years after discovery of the breach of warranty, and consequently does not state the law. The subject received careful consideration in the case of Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051. The case was argued twice, and the court’s conclusion was stated in the second paragraph of the syllabus as follows:
“The provision, in subdivision 3 of section 18 of the civil code (Gen. Stat. 1901, § 4446), that a cause of action for relief on the ground of fraud shall not be deemed to have accrued until the discovery of the fraud, has no application to an action founded on contract.”
While the statement suffers under critical analysis, it is customary to say that when money or property has been obtained by fraud there is an implied contract to make the injured party whole. This fiction of a contract will not, however, give the injured party privilege to sue on the contract after action for relief on the ground of fraud is barred. (Orozem v. McNeill, 103 Kan. 429, 175 Pac. 633.) The warranty of one who transfers a negotiable instrument by delivery is as much a contract that enumerated facts in relation to the paper are as promised, as if the warranty were written upon the instrument and were signed by the warrantor. In case of breach of warranty, liability arises from the fact the contract was broken, from the fact the things promised were not as promised, and not from the quality of the breach, whether tainted with fraud or otherwise. Therefore, according to the principle applied in the Orozem case, when the essence of an action is breach of warranty, the fact that the breach may have a tortious aspect will not make the statute of limitations relating to actions for relief on the ground of fraud applicable.
Plaintiffs advance an argument difficult to follow, to the effect that they have a right to Rafter’s indorsement (R. S. 52-420), and because they have that right, Rafter is liable on the note as indorser. The argument fails for several reasons. Rafter was sued as warrantor and in no other capacity, and plaintiffs cannot mend their hold in this court. If the indorsement on the note was forged, Rafter was not “the holder of an instrument payable to his order,” within the meaning of R. S. 52-420. If the indorsement on the note was not forged, the indorsement was a qualified indorsement in blank, the instrument was payable to bearer, was transferable by delivery (R. S. 52-405), and plaintiffs were not entitled to Rafter’s indorsement. If plaintiffs were entitled to Rafter’s indorsement, the indorsement and liability upon it would relate to the time of transfer, and action to enforce the liability was barred by the statute of limitations when Rafter was sued.
Plaintiffs criticize the rule that a petition which discloses on its face that the action is barred by the statute of limitations is demurrable on the ground the petition does not state a cause of action. Whether sound or unsound, the rule has prevailed too long to be judicially discarded now.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
A petition for rehearing has been filed, expressing dissatisfaction with the statement of the evidence with reference to a knife held by the defendant at the time of the assault. The statement in the opinion to which objection is made reads: “That immediately after the second time he struck Butz (knocking him down) he (defendant) again had his knife in his hand.” One witness testified positively that the defendant had his knife in his hand after he knocked Butz down the second time. There were three other witnesses who testified that they did not know or did not see it. This testimony was given before the magistrate at the preliminary examination and also at the trial in the district court. Under the circumstances the positive evidence of the witness who saw the knife in defendant’s hand was more potent and probably had more weight than the testimony of other witnesses whose attention may have been directed to something else, and who therefore did not see the knife.
The defendant also contends that the decision in this case overturns the rule announced in The State v. Child, 42 Kan. 611, 22 Pac. 72, where it was held that an indictment for a felony must distinctly allege “intent” to commit a felony. In the original opinion in the instant case a copy of the complaint was set out, with the statement that it was a copy of the information. This was a mistake. The information on which the defendant was tried distinctly alleged the intent. It reads:
“I, J. B. Hayes, the undersigned county attorney of said county, in the name and by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed that on the 15th day of February, a. d. 1922, in the said county of Clark and state of Kansas, one Emery Clay did then and there unlawfully, feloniously and on purpose and with malice aforethought, in and upon the person of H. C. Butz then and there being, commit an assault, and did then and there, he the said Emery Clay, with a large pocket knife with the blade open, a dangerous and deadly weapon, liable to produce death or great bodily harm, and the said large pocket knife with the blade open, then and there in the right hand of the said Emery Clay held, did then and there the said Emery Clay, with the large pocket knife with the blade open aforesaid, unlawfully, feloniously on purpose and with malice aforethought, threaten to cut the guts out of the said H. C. Butz, with the intent then and there, him the said Emery Clay, unlawfully, feloniously, on purpose and with malice aforethought to kill said H. C. Butz. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state .of Kansas.”
It will readily be seen that the information in the instant case satisfied the rule laid down in The State v. Child, supra.
Other propositions advanced were sufficiently discussed in the original opinion.
The Detition for rehearing is denied. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is another prohibitory liquor case and the errors assigned in it differ little from the questions raised in other cases that have been reviewed on appeal.
Defendant was charged with and found guilty of unlawfully keeping and having intoxicating liquor in his possession on September 15,1923. It was alleged and shown that about five years before the commission of that offense he had been convicted of a violation of the prohibitory liquor law, and because of the prior conviction the punishment imposed on him for the violation in this case was imprisonment in the penitentiary for a period of one year. -
He complains first of the admission in evidence of the transcript from a docket of a justice of the peace which recited the former proceedings and judgment of conviction. One ground of complaint is that the justice of the peace had amended his docket entry about five years after the previous conviction. It appears that the amendment was made in the presence of defendant, pursuant to a motion filed by the state in his court, and that it was made in order to speak the truth as to the proceedings had in the case and to show that the defendant had pleaded guilty to a violation of the liquor law, and that judgment was entered on that plea. It was competent for the justice of the peace to amend his record in order to correct mistakes, supply omissions and thus make it speak the truth. (Hanlin v. Baxter, 20 Kan. 134; 15 R. C. L. 674.) Other proof besides that of the amended record was offered to show the previous conviction, and presumably there were good grounds for the amendments made. There is no contention now that the amended record does not accord with the proceedings actually had nor with the judgment which was actually pronounced. Even if the amendment could be said to have been erroneously made, it would only be regarded as a step in the prior prosecution and not a pro ceeding in the present case, and would only be open to a review of the former case.
There is a further insistence that, granting the competency of the record evidence received, it showed that the offense charged was committed more than two years before the present prosecution was commenced, and therefore is within 'the bar of the statute of limitations. Defendant bases this contention on the ground that the first conviction is a part of the offense charged in the present case, and that as the conviction occurred about five years before this prosecution was begun, the bar was effective. The former conviction cannot be regarded as a degree of later violations of the prohibitory liquor law, nor is it such a part of-the later violations that it must have occurred within the two-year period of limitations to warrant a prosecution. Speaking of this limitation it has been said:
“Of course the state could not go further back than two years, except as to the fact of former conviction,” etc. (The State v. Schmidt, 92 Kan. 457, 461, 140 Pac. 843.)
In the later proceeding the defendant is not prosecuted for the violations in the first. Evidence of a former conviction tends to show an existing condition, and is not strictly a part of the criminal act. A former conviction gives the defendant a status and a classification, and the statute relating to persistent violations prescribes a severer punishment for offenders .of that class. A former conviction furnishes a good basis for the classification and'the heavier punishment. A persistent violator is not punished, as we have said, a second time for the earlier offense, but the legislature has determined and declared that repeated violations justify the heavier penalties. (The State v. Adams, 89 Kan. 674, 132 Pac. 171.) The overt and illegal act in the second charge is of itself an offense; it constitutes a violation regardless of a former conviction, but the statute provides that proof of the offense being shown, and it further appearing that it is a second or later violation, the heavier penalty is prescribed. In The State v. King, 92 Kan. 669, 141 Pac. 247, a reference was made to the provision for punishment of persistent violators, and it was said:
“Strictly speaking, the act does not create a new felony. It merely provides a severer punishment for persistent offenders.”
In The State v. Schmidt, supra, in speaking of the severer prosecutions it has been said:
“They relate to separate crimes. The issues are not identical. Neither offense includes the other offense. In each information an act which constitutes an indispensable element of the crime is necessary to conviction which is different from any act necessary to conviction under the other. All the evidence necessary to prove the first charge would not establish the second, and all the evidence necessary to prove the second charge would not establish the other.” (p. 459.)
While this quotation relates specifically to the first prosecution and adjudication being a bar to a second, it treats of the nature of the prosecutions and has some application to the limitation bar. The fact that the former conviction of defendant occurred more than two years before the commencement of the present prosecution is not a bar to the maintenance of the latter.
There is also a contention by defendant that the evidence is not sufficient to sustain the charge that he had intoxicating liquor in his possession. It is abundantly sufficient to show not only that he had corn whisky in his possession, but also that he sold a pint of it to another and received $2 for it. Attention is called to the inconsistency of the jury in disregarding the testimony as to the sale, while holding defendant guilty of the possession of the liquor. It is true that he escaped conviction for the sale, but, as has been said:
“The compassion or clemency of the jury in allowing the defendant to escape on some charges which the evidence appears to show warranted a conviction is no ground for overthrowing the conviction upon another charge which is also well supported by the evidence.” (The State v. Caldwell, 115 Kan. 374, 377, 223 Pac. 299.)
Judgment affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover the price paid for an automobile which plaintiff claimed he had been induced to buy by fraudulent representations that it was a new car, and which He had returned to defendant promptly on,discovery that it was an old one. It was tried to a jury which made findings of fact and rendered a general verdict for plaintiff, and the defendant has appealed.
Plaintiff’s evidence tended to show that in July or August, 1921, he made a parol agreement with the defendant, who was conducting an automobile sales business at Arkansas City, to purchase a new Kissel roadster, which defendant was to deliver to him at the office of the Consolidated Motors Company, at Kansas City, Mo.; that the car was to be a new car, have disc wheels and a trunk rack and trunk; that defendant was to notify him when the car was ready for delivery; that later defendant did so notify plaintiff, and plaintiff went to Kansas City and was there shown a car; that plaintiff noticed the car did not have disc wheels nor the trunk rack and trunk, and called defendant’s attention thereto; that defendant said the trunk rack and trunk would be put on later, and that because of the speed of this car the company did not put it out with the disc wheels; that plaintiff had an opportunity to examine the car at the salesroom of the Consolidated Motors Company, but did not discover that it was an old car repainted; that he was led to believe by defendant that it was a new car as ordered; that he paid for it by giving his check for $2,900, and his note, secured by mortgage on the car, for $427, the balance of the purchase price, and started to drive it away; that he drove it a few blocks and noticed one cylinder was missing, and drove back to the Consolidated Motors Company’s place of business, where a new spark plug was put in. He started again, and after driving a few blocks the car stopped, and it was found that the gasoline line was clogged up. An examination then made disclosed that it was an old repainted car, and not a new car. He took it back to the Consolidated Motors Company, but it being Sunday and the place closed, he could not leave it, but did leave it there the next day. He then went back to Arkansas City and demanded of defendant the return of the purchase price of the car. This was refused, and suit was brought.
Defendant complains of the extent to which the court permitted him to be cross-examined. Over his objection, he was asked how many times he had had lawsuits over automobiles based on the alleged ground of fraud practiced by him, and stated that he had had one in fifteen years; that about six months before the trial of this case there was another one which was still pending in the trial court, and that this was the third. Plaintiff made no effort in rebuttal to contradict the evidence of defendant thus brought out on cross-examination. Defendant contends that this cross-examination was improper and prejudicial, and in support of that argument cites many authorities. It will not be necessary to review these authorities. It is well settled, when a party to an action is a witness in his own behalf, the latitude of his cross-examination upon matters tending to affect his credibility as a witness rests largely in the sound discretion of the trial court. Unless that discretion is abused no error will lie. (Bassett v. Glass, 65 Kan. 500, 70 Pac. 336; The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406.)
The jury answered special questions, as follows:
“1. Did the plaintiff have an opportunity to examine and inspect the car . in question before purchasing it? A. Yes.
“2. After making such examination and inspection as he cared to make and had opportunity to make, did he purchase it? A. Yes.
“3. Did Collinson believe the car was a new car at the time plaintiff purchased it? A. No.
“4. Did Collinson have reasonable cause to believe the car was a new car at the time plaintiff purchased it? A. No.
“5. Did Collinson tell plaintiff before plaintiff purchased the car that he wanted plaintiff to be satisfied about the car before he, Collinson, paid for it? A. No.
“6. Did plaintiff by word or conduct lead Collinson to believe that he, the plaintiff, was satisfied with the car before Collinson paid for it? A. Yes.
“7. Did Collinson, relying upon such belief, pay for the car? A. Yes.”
The defendant moved to set aside answers of the jury to special questions Nos. 3, 4 and 5, for the reason that they were not sustained by the evidence. This motion was overruled. ' There was evidence to sustain these findings.
Defendant then moved for judgment in his favor on answers to special questions, notwithstanding the general verdict, which motion was overruled.
It is argued that since plaintiff had an opportunity to examine and inspect the car, and purchased it after making such examination and inspection, he cannot recover, though the car sold was not a new one. There was evidence tending to support plaintiff’s theory of the case that his contract was for a new car, and that he paid the price for a new car. He was not buying a ■ car based upon inspection, but was buying one under a contract. The fact that in such examination as he made of it in the salesroom before paying for it did not disclose that a fraud was being practiced upon him, would not preclude his recovery.
Appellant complained that the court refused to give the requested instruction. We have examined the instructions given by the court, and are of the opinion that they fully and fairly presented the issues.
Lastly, appellant contends that in any event plaintiff should not have recovered more than the $2,900 which he paid in cash, while the verdict of the jury permitted him to recover also for the note given. The record does not disclose that this question was raised in the court below, nor does it disclose whether or not the defendant still had the note at the time of the trial. It may have been indorsed and in the hands of some holder in due course.
Finding no error in the record, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against him for real-estate agent’s commission on the exchange of real property.
A demurrer to the petition was overruled, as was also a demurrer to the evidence of the plaintiff. The defendant argues that both demurrers should have been sustained, and that there was not sufficient evidence to support the verdict of the jury.
1. The petition alleged that the plaintiff was engaged in the real-estate business at Clafiin; that the defendant owned certain land; that he authorized the plaintiff to exchange the land of the former for other land; that the plaintiff negotiated with Martin & Son, real-estate agents at Sterling, asking for land to be exchanged; that an attempt to exchange the land of the defendant for land in Pawnee county was made through Martin & Son, but the attempt failed because the land offered was not satisfactory to the defendant; that the plaintiff then authorized Martin & Son to procure other land to be exchanged for the land of the defendant; that other land was procured; that an exchange was made, and that the commission earned by the plaintiff had not been paid.
It is not pointed out what other allegation was necessary to be set out in the petition in order for it to state a cause of action. Everything that was necessary to entitle the plaintiff to recover his commission-was alleged. It follows that the petition stated a cause of action and that the.demurrer to the petition was properly overruled.
2. The order overruling the demurrer of the defendant to the evidence of the plaintiff and the sufficiency of the evidence to sustain the verdict in favor of the plaintiff present a different question. An examination of the evidence is necessary.
The plaintiff on his direct examination testified:
“That Neiberiine and Martin made arrangements to go back another day and inspect other land, and an arrangement was made that Martin was to go on and effect a deal if he could, providing he could find land that would suit Neiberiine; thait later a deal was made between Mr. Martin and Mr. Neiberiine for an exchange of lands.”
On his cross-examination he testified:
“That Mr. Martin is a real-estate man living in Sterling, Kan.; that appellee took Mr. Martin and went up to inspect the farm of appellant and appellee, and appellant went to Pawnee county; that they looked over some land in Pawnee county that Mr. Martin had listed for sale; that no deal was made, and parties all returned to Great Bend and appellee took appellant back home; that appellee never had any conversation with appellant from that time until after the appellant finally made a trade for some other land with Mr. Martin; that on the trip to Pawnee county appellee and Mr. Martin showed the appellant two half sections of land, but that neither of those deals went through; that appellee had no lands listed in Pawnee county and that the lands shown to appellant were lands listed with Mr. Martin; that appellee did not know whether Mr. Martin had the land fisted for sale that appellant finally obtained, and that he, appellant, had nothing whatever to do with the listing of any Pawnee county land.
■ “Q. Now what, if anything, did you have to do with the consummation or putting through with the deal that Neiberiine finally accepted? A. After I showed Mr. Neiberline’s place I paid no more attention to it, because that was Mr. Martin’s business to show the other.”
S. M. Martin, one of the real-estate agents at Sterling, testified as follows:
“That he lived in Sterling, Kan., and was in the real-estate business about twelve years; acquainted with the parties to this action; that he saw Mr. Frederick in Sterling; that about two weeks later he went with appellee to appellant's farm and all the parties then drove to Pawnee county and looked at two half sections of land that he, Martin, had listed for sale and exchange at that time; that after looking over the land they failed to complete a sale on either and came back to Great Bend and separated; in about 13 or 14 days he called Neiberline and told him that he now had a half section listed and thought they might make an exchange, and made arrangements with him to meet him in Great Bend to go and look at the farm, and after looking at the farm made the exchange; that when the deal was completed appellant asked him if he owed him a commission and he said no; that the usual commission was 5% on the first $1,000 and 2Vz% thereafter; that the reasonable value of appellant’s farm was $12,400, and that he had never known appellant until he was introduced to him by appellee. . . .”
On cross-examination Martin testified as follows:
“That while he and appellant were together appellant said to him that he would give him two or three weeks to find him a farm in Pawnee county for exchange for his farm; that the appellee had nothing to do with the trade and exchange of appellant’s farm for the land in Pawnee county; that he, Martin, made the deal himself some three weeks later.”
The defendant on his direct examination testified:
“That he had talked to him [plaintiff] about trading his [defendant’s] farm in Barton county for some land near Macksville; that later appellee phoned to him and asked whether or not he would trade for some land south of Larned; that he went out to see the land in Pawnee county with his son-in-law and Mr. Martin; that they looked at two pieces of land and returned to Great Bend and then went home; he had no further conversation with appellee about any further deals and had never had any further conversation with the appellee about any further deals until about six or seven weeks after the trading had been made; that about ten days after he had made the trip to Pawnee county Mr. Martin called him up and asked him whether or not he was going to make a deal and he told him no, and that appellant asked him whether or not he had anything he could show him and he said no, but he would look around and see what he could do, and later he called and asked appellant to come to Great Bend about a week or ten days later; that he went with Martin to Pawnee county and exchanged his Barton county property for Pawnee county land; that he did not trade for any land that Mr. Frederick, the appellee, had shown him and that it was not land that Mr. Martin owned personally.”
On cross-examination the defendant testified:
“That he had known appellee about a year; that he did not know what business he was engaged in; that he told him at Macksville that he would like to trade for some land near Macksville; that two or three months after that appellee and Mr. Martin came to appellant’s home in Barton county, and that he had never seen Mr. Martin before that time and that he was introduced to Mr. Martin by the appellee; that Martin looked his farm over and that arrangements were made to go to Pawnee county; that he and appellee and Martin went to Pawnee' county and looked over two pieces of land; that neither of them suited him; that they all came back to Great Bend, at which time he told Mr. Martin that he would give him two or three weeks to find some land that was suitable and that he would trade for some land in Pawnee county; that he rode home from Great Bend with Mr. Frederick; that he never recognized any liability to appellee for a commission; that he asked Mr. Martin whether or not he owed him anything, because he dealt with him, and Mr. Martin told him he did not own him anything; that he valued his Barton county land at $14,000.”
The evidence established that the plaintiff authorized Martin & Son to find land to be exchanged for the land of the defendant; that the first effort of Martin & Son to bring about an exchange of land failed; that the defendant gave them further time in which to find other land to be offered in exchange; that other land was found and offered; and that an exchange was made.
The controlling question in the case is, Was the plaintiff the procuring cause of the exchange of land? That is a question of fact, not a question of law. It is a question that must be determined from the evidence. Ordinarily it is not a fact that can be established by direct testimony, but is an inference of fact to be drawn from other facts proved. From the evidence the jury, under proper instructions on that question, concluded that the plaintiff was the procuring cause of the exchange of land. That conclusion was approved by the court, was justified by the evidence, and is binding on this court.
That brings this case within the rule often declared in this court, that “a real-estate agent has earned his commission when he procures a purchaser ready, willing and able to buy upon the terms which the owner has accepted or agreed to accept.” (Wacker v. Hester, 102 Kan. 710, 171 Pac. 1151.)
The defendant cites Latshaw v. Moore, 53 Kan. 234, 36 Pac. 342. The court there said:
“Real-estate brokers employed to procure a purchaser or a trade for property for a specified commission are not entitled to recover the commission agreed upon unless they were the primary, proximate and procuring cause of the sale or exchange which was made.”
The rule there declared does not differ from the rule that a real-estate agent who is the proximate and procuring cause of a sale is entitled to his commission.
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The opinion of the court was delivered by
Burch, J.;
The action was one by the assignee of rent to recover from a purchaser of the crop grown on the leased premises. The purchaser paid the price into court, and interpleaded a chattel mortgagee of the crop and the landlord and tenant. The tenant was allowed an offset against the rent and, plaintiff having died, his executrix was awarded sufficient of the fund, to satisfy the remainder of the rent. The chattel mortgagee and the tenant appeal.
Adams leased to Chapman, by written lease beginning March 1, 1918, and eliding March Í, 1923, for an annual rental of $800, payable semiannually, according to the terms of the ten promissory notes. On October 1, 1920, Adams indorsed the notes subsequently falling due to Pitts, and executed and delivered to Pitts the following instrument indorsed on the lease:
“For value received we hereby assign to E. P. Pitts all our rights, title and interest under the within contract of lease, and authorize full control thereof as completely as we ourselves would have as owner of the property herein described, with authority to sublet to others in the event that the lessee therein named shall fail to comply with this contract.”
All the rent notes were paid except the last two, for $400 each, due respectively March 1 and December 1, 1922. Chapman knew Pitts held the notes, and paid $100 on the note due March 1, but did not know of the assignment. In July, 1922, Chapman contracted to sell the rvheat crop of that year to the Blair Milling Company, of Atchison, to be delivered on track at Hawthorne. Delivery was completed on July 31. There was evidence sufficient to show the milling company purchased with notice. The milling company did not pay the tenent for the wheat but, when sued for $700, the amount of plaintiff’s claim, paid into court the full price of the wheat, $1,131.50, interpleaded every one interested, and was discharged by. the court from further liability. The Exchange National Bank claimed the entire fund under a matured chattel mortgage of the crop, given by the tenant in 1921. The tenant claimed an.offset against the rent. The landlord counterclaimed against the tenant. The court found the tenant was entitled to recover from the landlord the sum of $65.05. That sum was deducted from the rent notes, and plaintiff was given a lien on the fund in. court for the balance due on the notes. The remainder of the fund was awarded to the bank, whose chattel mortgage was subject to plaintiff’s lien, if plaintiff was entitled to a lien.
The action was commenced against the milling company on August 19,1922, under R. S. 67-526, which reads as follows:
“The person entitled to the rent may recover from the purchaser of the crop, or any part thereof, with notice of the lien, the value of the crop purchased, to the extent of the rent due and damages.”
Other pertinent statutes read as follows:
“Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may be enforced by action and attachment therein, as hereinafter provided.” (It. S. 67-524.)
“When any such rent is payable in a share or certain proportion of the crop, the lessor shall be deemed the owner of such share or proportion, and may, if the tenant refuse to deliver him such share or proportion, enter upon the land and take possession of the same, or obtain possession thereof by action of replevin.” (R.S. 67-525.)
R. S. 67-527 and 67-528 give to the person to whom rent is owing, whether due or not, if due within a year, remedy by attachment under certain circumstances. The bank contends no recovery could be had under R. S. 67-526 on account of the note maturing December 1, 1922, because the note was not due when the action was commenced; that the words “rent due” refer to maturity of rent obligation ; and that the remedy against a purchaser applies only for protection of rent in arrears. The sections relating to remedy by attachment are appealed to in support of the argument, and a plea is made for privilege on behalf of tenants to defeat rent liens by sale of crops at convenient seasons, before maturity of rent obligations.
The statutes referred to do two things: First, they make rent due for farming land a lien on the crop grown on the premises. Second, they provide remedies for protection and enforcement of the lien. The lien exists from incipience of the crop, and exists independently of remedies which it may or may not be necessary to invoke for protection of the lien. (Scully v. Porter, 57 Kan. 322, 46 Pac. 313; Bank v. Equity Exchange, 113 Kan. 696, 216 Pac. 278; Snodgrass v. Carlson et al., 117 Kan. 80, 230 Pac. 83.) If rent be payable in share of crop the lien is protected by regarding the lessor as owner of the share coming to him, and giving him privilege of distress or action of replevin. If the tenant sell the crop, the lien is protected by privilege to sue the purchaser. If the tenant be about to remove the crop, the lien is protected by remedy of attachment, and under other circumstances attachment may be resorted to for protection of the lien. Action against a purchaser with notice is simply an action for conversion of property subject to lien. The lien exists for protection of the entire rent, whenever it becomes payable (Snodgrass v. Carlson et al., 117 Kan. 80, 82, 230 Pac. 83), and the lien 'may no more be defeated in part by conversion before a final installment becomes due than it may be defeated entirely by conversion before the first installment becomes due. The remedy for conversion, however, does not extend to value of the entire crop, unless it be necessary to protect the lien. Just as the words “rent due” in R. S. 67-524, do not limit the lien to matured installments, so the same words in R. S. 67-526 do not limit protection of lien to matured installments. They refer to proportion of the value of the crop, and merely limit amount of recovery to a sum necessary to accomplish the purpose of the lien.
The remaining question presented by the bank is whether plaintiff became assignee of the rent, and as such entitled to benefit of the lien, and of the remedy for conversion.
In this state, the owner of land may carve out of his estate and transfer to another whatever quantity of interest he desires. (Miller v. Miller, 91 Kan. 1, 136 Pac. 953.) Adams might have deeded to Pitts the portion of the reversion extending to the expiration of the lease, just as he might have deeded the entire reversion, which would have carried rents to accrue. No particular form of instrument would be necessary to accomplish the purpose, and it would not be necessary that the writing be “under seal,” or that it be acknowledged, unless the purchaser desired to record it. The subject, however, is not important. The assignment indorsed on the lease effected an assignment of rents to accrue to the end of the term. Rents are severable from the reversion, and assignable, and whatever more the assignment accomplished or failed to accomplish, it was sufficient-to place the assignee in the shoes of the assignor with respect to rent, lien of rent on crops, and remedy for conversion.
Assignment of the lease may be disregarded. The contract of lease provided for payment of rent in stated installments, “as evidenced by ten certain notes.” Of course the rent was not paid by the notes. The notes stood for and were convenient evidence of installments of rent (Lee v. Joslyn, 184 Iowa, 1336, 1338), and assignment of the rent notes was in legal effect assignment of rent. The lien created by R. S. 67-524 is not given to a person. ■ It is charged on crops as security for rent and, although usually called “the landlord’s lien,” is in fact a rent lien. The remedy for conversion is given to the person entitled to rent. Therefore the holder of the rent notes stood in the shoes of the landlord with respect to rent, lien, and remedy.
The following cases lend support to the views which have been expressed: Westmoreland & Trousdale v. Foster, 60 Ala. 448; Ala. Gold Life Ins. Co. v. Oliver, 78 Ala. 158; Keeley Brewing Co. v. Mason, 102 Ill. App. 381; Strother v. The Steamboat Hamburg, 11 Iowa, 59; Lufkin & Wilson v. Preston, 52 Iowa, 235; Haywood & Son v. O’Brien, 52 Iowa, 537; Perrin v. Lepper, 34 Mich. 292; Kelly v. Bowerman, 113 Mich. 446; Newman v. Bank of Greenville, 66 Miss. 323.
Complaint is made because costs were taxed to the fund and not apportioned among the parties. The action for conversion did not last very long, and the contest became one over amount ánd priority of lien. The landlord did not dispute plaintiff’s lien, and the tenant did not dispute the bank’s lien. The bank in its pleadings became a partisan of the tenant, and championed the tenant’s claim of offset to the rent notes. The plaintiff in his pleadings championed the landlord’s counterclaim against the tenant, but did not resist allowance against the rent notes of any proper offset the tenant might establish. The contenders for the fund, which was not sufficient to satisfy both liens, were plaintiff and the bank. xThe battle between their allies, the landlord and the tenant, was fought for their ultimate benefit, and costs of the contest were properly charged upon the fund.
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Abbott, J.:
This is an appeal by the co-executrices of the estate of Agnes M. Pryor, deceased, from a district court order allowing a claim of The Salvation Army of Wichita, Kansas, in the sum of $12,143.55 by imposing a constructive trust on the assets of the estate. The assets upon which the trust was imposed were acquired by Agnes M. Pryor during her lifetime by inheritance from the estate of her sister, Gussie McClure, in violation of a joint, mutual and contractual will that had been probated on the death of Gussie McClure’s husband, John F. McClure.
John F. McClure and Gussie McClure were husband and wife. During their lifetime they entered into what all parties now concede was a joint, mutual and contractual will. John F. McClure died on March 9, 1957. His joint, mutual and contractual will dated January 6, 1953, was admitted to probate in the probate court of Sedgwick County, Kansas. Gussie McClure was appointed executrix and the estate was fully administered. The estate was probated and the executrix was discharged on April 22, 1958.
The will of John F. McClure and Gussie McClure read in pertinent part:
“ITEM FIRST We direct that our just debts and funeral expenses be paid and that a suitable tombstone be placed at our graves either by the survivor of us or the Executrix of the survivor as hereinafter appointed.
“ITEM SECOND We each give and bequeath to the other spouse respectively, John F. McClure and Gussie McClure, all of our personal property absolutely.
“ITEM THIRD We each give and devise a life estate in all of our real property to the other spouse respectively, John F. McClure and Gussie McClure, together with all rents, issues and profits thereof. We also give the survivor of us the power to sell and convey such real property during his or her life time in the event that such action may seem advisable and to use the proceeds thereof, if necessary, for the support, maintenance and comfort of such survivor.
“ITEM FOURTH We hereby further give, devise and bequeath to the Executrix hereinafter appointed all of our Estate, real, personal and mixed that may remain at the death of the survivor, subject only to Item First herein. We hereby direct that said Executrix shall, as soon as possible, after our death sell and convert all teal and personal property, that the survivor of us shall have at the time of his or her death, into cash and after paying our debts and funeral expenses, the expense of buying and erecting a monument at our graves, if the same has not already been done, and the payment of all costs and expenses of administration, divide the balance of the same in equal proportions to the following institutions, to-wit:
The Methodist Church,
Valley Center, Kansas.
The Christian Church,
Valley Center,' Kansas.
The Baptist Church,
Valley Center, Kansas.
The Park Church,
Sunnydale, Kansas.
The Midwest Bible and Missionary Institution,
Salina, Kansas.
The National Broadcasting System Long Beach, California. (Charles Fuller)
The Salvation Army,
Wichita, Kansas.
The said organizations shall have full discretion in how they shall use the funds they are given. We further will and ordain that if any of the above institutions are not in being when the survivor of us shall die, then the legacy to such institution shall lapse and the residuary estate shall be divided among the others set out.”
The journal entry of final settlement made distribution as follows:
“IT IS, FURTHER, BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the balance of the funds on hand, together with all other personal property, owned by the decedent at the time of his death, subject to any lawful disposition thereof heretofore made, is hereby assigned to Gussie McClure, and the same shall be distributed to her immediately.
“IT IS, FURTHER, BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the following described real estate, to-wit:
The Northeast Quarter (NE/4) of Section Nineteen (19), Township Twenty-five (25) South, Range One (1) East, in Sedgwick County, Kansas,
together with all other real estate, and the rents, issues and profits thereof, owned by the decedent at the time of his death, subject to any lawful disposition thereof heretofore made, is hereby assigned to Gussie McClure, for life, with the power to sell and convey said real property during her lifetime in the event that such action may seem advisable and to use the proceeds thereof, if necessary, for her support, maintenance and comfort. If said real estate shall remain at the death of Gussie McClure then the same shall pass to the Executrix named in said Will, or her successors or substitutes, who shall sell and convert the same into cash and after paying all debts and funeral expenses, the expense of buying and erecting a monument at the graves of Gussie McClure and John F. McClure, if the same has not already been done, and the payment of all costs and expenses of administration, divide the balance of the same in equal proportions to the following institutions, to-wit:
The Methodist Church, Valley Center, Kansas; The Christian Church, Valley Center, Kansas; The Baptist Church, Valley Center, Kansas; The Park Church, Sunnydale, Kansas; The National Broadcasting System, Long Beach, California. (Charles Fuller); The Salvation Army, Wichita, Kansas; The Midwest Bible and Missionary Institution, Salina, Kansas,
and the said organizations shall have full discretion in how they shall use the funds they are given; provided, if any of the above institutions are not in being when Gussie McClure dies then the legacy to such institution shall lapse and the balance shall be divided among the others set out.”
Sometime after John F. McClure’s death, Gussie McClure moved into the home of her sister, Agnes M. Pryor, in Reno County, Kansas. A new will was drawn and executed on March 17, 1968, whereby Gussie McClure bequeathed $5,000 to her brother and the remainder to Agnes M. Pryor. Gussie McClure was eighty-three years old when she executed the will on March 17, 1968. Gussie McClure’s brother preceded her in death, leaving Agnes M. Pryor as the sole beneficiary of Gussie McClure’s last will. The real estate was disposed of during the lifetime of Gussie McClure.
Gussie McClure died on April 30, 1972. Her will dated March 17, 1968, was admitted to probate in the probate court of Reno County, Kansas. No actual notice was given to any of the charitable institutions named in the joint, mutual and contractual will of John F. McClure and Gussie McClure dated January 6, 1953. The required publication notices were published in Reno County. Copies of the publication notices were not mailed to any of the interested charities. The estate of Gussie McClure was fully administered, a decree of final settlement was approved by the court, and the executor discharged on July 11,1973. All of the assets of Gussie McClure’s estate were paid to Agnes M. Pryor.
Agnes M. Pryor died testate on February 7, 1975, eighteen months after the estate of Gussie McClure was closed. The will of Agnes M. Pryor was admitted to probate in the probate court of Reno County, Kansas, on March 12, 1975.
In July of 1975, The Salvation Army learned of Gussie McClure’s death and timely filed a claim in the estate of Agnes M. Pryor, deceased. The Salvation Army was the only charity among those named in the joint and contractual will of John F. McClure and Gussie McClure which filed a claim in the estate of Agnes M. Pryor.
The Salvation Army’s claim requested relief as follows:
“WHEREFORE, Petitioner prays that the alleged Will of Gussie McClure, deceased, dated March 17, 1968, be held in contravention of the joint, reciprocal, mutual and contractual Will of John F. McClure and Gussie McClure, deceased, and the property distributed to Agnes M. Pryor from the Gussie McClure Estate be traced, accounted for and placed in trust in this Court and distributed to this Petitioner and the other beneficiaries under the Will of John F. McClure and Gussie McClure, deceased, and that this Petitioner have judgment for its costs herein.”
The claim was transferred to the district court of Reno County where a pretrial conference was held. The parties stipulated in writing that the evidence in the case would be the entire files in the estates of John F. McClure, Gussie McClure and Agnes M. Pryor, as well as a conservatorship proceeding of Agnes M. Pryor. In addition, it was stipulated that the seven charities were still in existence and the amount of claimant’s demand was one-seventh of $85,004.85, or $12,143.55. The sum of $85,004.85 was the full amount Agnes M. Pryor receipted for as sole beneficiary of the estate of Gussie McClure, deceased. The district court found that the contractual provision of the joint and mutual will should be enforced and The Salvation Army was a beneficiary in the estate of John F. McClure. The district court then imposed a trust in the full amount of the claim of $12,143.55. The estate of Agnes M. Pryor appealed to this court from the decree of the district court.
Appellant first contends that the legacy contained in. the joint, mutual and contractual will of John F. McClure and Gussie McClure was adeemed prior to the death of Gussie McClure when Gussie sold the real estate described in the journal entry of final settlement in John McClure’s estate.
Ademption has been defined as “the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the tes tator’s estate in his lifetime.” (In re Estate of Chevalier, 167 Kan. 67, 204 P.2d 748.)
A legacy is specific when the bequest is of some definite and specific thing capable of being designated and identified as compared to a general legacy which does not direct the delivery of a particular thing but may be paid or satisfied out of the general assets. (In re Estate of West, 203 Kan. 404, 454 P.2d 462.)
We conclude that the testators, having made provisions for the executor to convert all of their estate, real, personal and mixed, to cash and then distribute the cash to seven charities in equal proportion, made general bequests and the doctrine of ademption does not apply.
Our attention is next turned to the question of whether The Salvation Army’s claim, insofar as it is based on a contractual theory, is barred by the nonclaim statute for failure to file a claim in the estate of Gussie McClure.
Our law is well defined in Kansas that a claim may be filed against the estate of a testator who breaches a joint, mutual and contractual will. (In re Estate of Chronister, 203 Kan. 366, 454 P.2d 438; Reznik v. McKee, Trustee, 216 Kan. 659,534 P.2d 243.) A single will may be both a will contractual in nature and a contract testamentary in nature. As a will it is revocable, but as a contract it is enforceable; and although a contractual will revoked by execution of a second will cannot be probated, it can be enforced as a contract against the estate of the testator breaching it. (Reznik, supra.)
The parties conceded on oral argument that the will of John F. McClure and Gussie McClure was a joint, mutual and contractual will. Gussie McClure breached the joint, mutual and contractual will when she revoked the same on March 17, 1968, in her will that was subsequently probated. The question thus boils down to whether or not the trial court erred in imposing a trust on personal property Gussie McClure contracted to will to The Salvation Army when The Salvation Army failed to file a claim in the estate of Gussie McClure.
It is important to note that appellee did not allege or attempt to prove either actual or constructive fraud. No allegation was made or proof offered that the heirs of Gussie McClure, or anyone acting in an official capacity in the estate of Gussie McClure, had knowledge of the prior joint, mutual and contractual will of John F. McClure and Gussie McClure so that actual notice to appellee and the other charities might be required as compared to constructive notice required by the probate code.
Constructive notice is insufficient to satisfy due process requirements when the name and address of a party are known or are easily ascertainable. (Walker v. Hutchinson, 352 U.S. 112, 1 L.Ed.2d 178, 77 S.Ct. 200 [1956]; Dodson v. City of Ulysses, 219 Kan. 418, 549 P.2d 430.) But if the names and addresses of possible heirs are still unknown after the exercise of reasonable diligence, constructive notice when authorized by statute is as binding as actual notice regardless of whether or not actual notice is achieved. (Unified School District v. Turk, 219 Kan. 655, 549 P.2d 882; In re Estate of Barnes, 212 Kan. 502, 512 P.2d 387.) Constructive notice is authorized under K.S.A. 59-2209.
Neither the trial court nor this court may speculate that any of the parties acted in bad faith in failing to give actual notice to the seven charities. The probate proceedings in the estate of John McClure in an adjoining county would not have imparted notice to the executor and heirs of Gussie McClure of the prior joint, mutual and contractual will. No one suggests and we do not find that a petitioner for probate, an executor, or the heirs of a decedent had a duty to search the public records of a neighboring county to ascertain possible claimants in the absence of information that would put a reasonable person on notice of the possibility of other heirs or claimants. The duty to protect their interests rightly falls on those who would make a claim against the estate of a decedent. It follows that those who have a claim must be vigilant in ascertaining whether a potential debtor is dead or alive.
In Allbert v. Allbert, 148 Kan. 527, 83 P.2d 795, a case decided before the 1939 probate code was adopted, a trust was imposed where real estate was held in the name of the deceased’s mother for over nineteen years. The mother had accounted to the deceased, who lived in Ohio, for the rents and profits from the land. On the mother’s death, she willed the property to another son. The estate of the mother was opened, the property was assigned to the second son, and the estate was closed in 1934. The court held that the mother had held the property in trust and the son could not inherit by will from his mother any greater estate than his mother held and all she held was the title in trust for the deceased son.
The rule of Allbert, supra, was superseded by statutory changes when the probate code was adopted and was specifically disapproved in Simmons v. Gill, 161 Kan. 123, 166 P.2d 574. In Simmons, the plaintiffs were the sole heirs of Etta Coe. Etta Coe was married to Lee Coe. Etta and Lee Coe contracted to purchase real estate and over one-half the purchase price was paid by Etta Coe. Etta Coe died. Lee Coe paid the remainder of the contract price and a deed was delivered to Lee Coe conveying the real estate to him. Lee Coe remarried and upon his death devised the real estate to Florence Gill. Lee Coe’s estate was duly opened and closed, and no claim was filed by Etta Coe’s heirs. The plaintiffs’ cause of action was held to be barred by plaintiffs’ failure to assert their claim in the probate court within the time prescribed in the nonclaim statute.
In Egnatic v. Wollard, 156 Kan. 843, 856-7, 137 P.2d 188, the Supreme Court considered the question of jurisdiction of probate courts and in passing commented on equitable and/or legal claims arising out of a written contract, stating:
“It needs no argument to sustain the view that when a person dies his individual capacity to respond in damages for his torts, to pay his debts, to carry out his contracts, and to distribute his estate ceases. Thereafter his financial obligations must be met by his estate. One who deems himself entitled to a part or all of such an estate, whether the right contended for is founded in tort, or upon oral or written contract, or under the will of the decedent, or under the statute of intestate succession, must recover, if at all, from the decedent’s estate. Under our probate code the probate court is made the forum for the transaction of this business, and it is given original jurisdiction to probate the will, if decedent left one, to appoint an executor or an administrator of his estate, to require an inventory and appraisement of the assets of the estate, to hear the petition of anyone who claims all or any part of the estate, after due notice to all parties interested so each may have his day in court, and ultimately to settle the accounts of the executor or administrator and to disburse the estate to those legally entitled thereto. . . .
. . Summarizing, this court except in matters involving the adjudication of secured demands and a few others where adequate and proper relief is not expressly provided for, is committed to the doctrine that the new Kansas probate code grants exclusive original jurisdiction to the probate court over all matters incident and ancillary to the control, management, administration, settlement and distribution of decedents’ estates, including the exhibition and establishment of claims and irrespective of whether those claims be denominated equitable or legal.” (Underscoring supplied.)
In Burns v. Drake, 157 Kan. 367, 139 P.2d 386, Mabel Burns filed a petition in the estate of her father alleging an oral contract to convey certain real estate to her by “will or deed” in consideration of her caring for him. The claim was filed over nine months after the first publication of notice of the administrator’s appointment. The Supreme Court concluded the petition was a demand against the estate and was barred, the demand not having been exhibited within the nine-month period specified in the nonclaim statute.
The case of Gantz v. Bondurant, 159 Kan. 389, 155 P.2d 450, also involves the question of title to real estate. It is a resulting trust case, but has some precedential value. Gantz was administratrix of the estate of D. E. Bondurant. D. E. Bondurant was the father-in-law of the defendant, Melba Bondurant. Gantz maintained that D. E. Bondurant furnished money for land held in the name of Melba’s deceased husband. Melba’s husband preceded D. E. Bondurant in death and his estate had been opened and closed prior to D. E. Bondurant’s death. Gantz sought to impose a resulting trust based on an oral agreement between the father and son. The Supreme Court, speaking through Justice Wedell, held the contention of Gantz should have been filed as a claim or demand against the deceased son’s estate and, no claim having been timely filed, was barred by the nonclaim statute.
In the case In re Estate of Welch, 167 Kan. 97, 105, 204 P.2d 714, the court defined “all demands” as used in the nonclaim statute as applying “only to claims against the estate of a decedent which, if allowed, will reduce the corpus of his estate or the amount of property which would otherwise be subject to division or distribution among the heirs of an intestate decedent or the legatees and devisees of a testate decedent as the case may be.” (See, also, McCormick v. Maddy, 186 Kan. 154, 348 P.2d 1007.)
The case of In re Estate of Goodbum, 210 Kan. 740, 745-6, 504 P.2d 612, made a distinction between “a contest of a will” and “a demand against an estate.” The Goodbum case involved an attempt to enforce an oral contract to convey both real and personal property and to enforce a trust. The court very succinctly stated:
“In the present case, the petitioner is seeking to have the contractual obligation to bequeath and devise one-half of the property, enforced. He is in no way challenging the validity of the will, or the right of the beneficiaries to take under the will, or its operation as to the remaining property. He is merely asserting a claim or demand pursuant to the equitable power of the probate court (K.S.A, 59-301[12]) to construe the alleged oral agreement of the decedent to bind the property of her estate so far as to fasten a trust on it in favor of the petitioner, and to enforce such trust against the devisees and personal representative of the decedent. (Anderson v. Anderson, 75 Kan. 117, 123, 88 Pac. 743; Meador v. Manlove, 97 Kan. 706, 156 Pac. 731; Braden v. Neal, 132 Kan. 387, 392, 295 Pac. 678.)
“It would serve no useful purpose to extend this opinion further. The court is constrained to hold that where a party seeks to enforce a contractual obligation to devise or bequeath a portion of a decedent’s estate, the proceeding constitutes a demand against the estate and not a will contest, and an appeal may be taken by any person aggrieved by the decision of the probate court, to the district court within thirty days after the making of such order, judgment, or decree. (See 57 Am. Jur., Wills, §§ 180,718, pp. 158, 488.) Any statement or decision in Foss or Yeager, or any statement in any other opinion of this court to the contrary is disapproved.” (Underscoring supplied.)
Based on the foregoing cases, we have no hesitancy in concluding the district court erred in'imposing a trust on funds in the hands of the co-executrices of the estate of Agnes M. Pryor for funds Gussie McClure contracted to will to The Salvation Army. The appellee’s claim in that regard was against the estate of Gussie McClure. In the absence of clear and convincing proof of a breach of fiduciary duty, actual or constructive fraud, or some other form of unconscionable conduct, appellee’s claim based on a contractual theory is barred by the nonclaim statute, K.S.A. 59-2239. The Salvation Army’s inability to recover on a contractual theory does not necessarily preclude recovery on any other theory.
The will of John F. McClure clearly established a life estate in Gussie McClure in the Northeast Quarter of Section Nineteen (19), Township Twenty-five (25) South, Range One (1) East, in Sedgwick County, Kansas. This particular piece of real estate was appraised at $30,000 in John F. McClure’s estate. No evidence was offered regarding its sale price, and no effort was made to trace the funds received from its sale. No evidence was offered as to what part of the corpus, if any, was necessarily consumed by Gussie McClure for her support, -maintenance and comfort.
The life tenant was granted the power to sell and convey the real property during her lifetime in the event that she deemed such action advisable and to use the proceeds therefrom, if necessary, for her support, maintenance and comfort. John F. McClure’s will then provided for the executrix to sell the real estate if it remained in the survivor’s possession at the survivor’s death and to distribute the proceeds to the seven charities, provided they were in being when the survivor died.
A life estate can be created in real property subject to sale by the life tenant (with the life tenant having the discretionary power to use the corpus of the sale price if necessary for support, maintenance and comfort), or subject to sale by an executrix after the termination of the life estate, with the proceeds to be distributed thereafter to named charitable institutions which as remainder-men have an interest that vested at the death of the testator. The remaindermen did not have the right of the use and enjoyment of the personal property until the death of Gussie McClure.
The probate court assigned a life estate to Gussie McClure pursuant to the will. Both Gussie McClure and The Salvation Army were given actual notice of the final settlement hearing. Due notice having been given, a final settlement of an estate made by the probate court pursuant to the probate code is a final order binding upon all persons interested in the estate, and the order of final settlement, if not appealed from, becomes final and conclusive against collateral attack. (In re Estate of Seeger, 208 Kan. 585, 493 P.2d 281.)
Gussie McClure exercised the authority granted her in the will to sell the real estate. She was then required to keep the proceeds as a trust fund for the benefit of the remaindermen subject to her right to receive the income generated by the corpus during her lifetime. She was further authorized to invade the corpus if necessary for her support, maintenance and comfort. The life tenant occupies a fiduciary relationship to the remainderman and is frequently referred to as a quasi trustee. (Windscheffel v. Wright, 187 Kan. 678, 360 P.2d 178.)
Upon the death of Gussie McClure the corpus remaining from the sale of the real estate Gussie McClure held for life should not have been included in her estate. Having gone a full circle, we must once again face the question of whether or not The Salvation Army’s claim timely filed in Agnes M. Pryor’s estate is barred by the nonclaim statute for failure to file a claim in the estate of Gussie McClure insofar as The Salvation Army seeks to recover funds inherited from the estate of John F. McClure that were inventoried and distributed in the estate of Gussie McClure, i.e., the corpus remaining from the sale of the real estate.
The Kansas Supreme Court has had occasion to consider the necessity of filing a claim in a decedent’s estate to recover personal property when the claimant contends the personal property is legally the claimant’s and not the decedent’s.
In the case of In re Estate of Paronto, 172 Kan. 7, 9-10,238 P.2d 464, the claimant did not file a claim within the statutory period in an effort to recover a diamond ring that was his and not the decedent’s. The claimant filed an answer to the petition for final settlement contending he had loaned the ring to the decedent. The trial court denied the claim because it was barred under the nonclaim statute. On appeal, the claimant took the position that the ring never became part of the assets of the estate and because the ring belonged to him he was not seeking to recover anything belonging to the estate. The Supreme Court, in affirming the trial court, stated:
“. . . The fact that the ring was found on decedent’s finger amongst her personal effects at the time of her death was enough to make it incumbent upon anyone who claimed the ring against the claim of her personal representative to make the claim within the time allowed under the nonclaim statute. The assertion of any right against the assets of a decedent constitutes a claim against the estate and must be filed within the provisions under the nonclaim statute.” (Citations omitted.)
In Oswald v. Weigel, 215 Kan. 928, 934, 529 P.2d 117, the trial court specifically found that the subject matter of a bill of sale became the property of the defendants at the time of the execution of the contract, and that as to the personal property listed on the bill of sale and in defendants’ possession there was no necessity for making a claim for the property in decedent’s estate on the theory there was no effort to take anything out of an estate. The court, however, in stating that a determination of who has possession at the time of death of the person whose estate is being probated is critical in ascertaining whether or not a claim must be filed within the statutory period, comments:
“. . . As we have already held, such possession is one of the determining factors as to whether the nonclaim statute (59-2239) is applicable. If defendants were in such possession they must prevail; if not, they must lose one-half of this portion of the property covered by their bill of sale by reason of their failure to have the claim timely allowed in probate court.”
The Supreme Court has repeatedly held that unless a claim or demand is asserted in a decedent’s estate, it is barred by the nonclaim statute even though the claimants’ theory is that they are actually the owners of the property. (See, in addition to the cases heretofore cited, In re Estate of Pratt, 164 Kan. 512, 190 P.2d 872; Houdashelt v. Sweet, 163 Kan. 97, 180 P.2d 604; Malcolm v. Larson, 158 Kan. 423, 148 P.2d 291; In re Estate of Grindrod, 158 Kan. 345, 148 P.2d 278; Egnatic, supra; Behee v. Beem, 156 Kan. 115, 117, 131 P.2d 675; Swisher v. Bouse, 155 Kan. 797, 130 P.2d 565; Yeager v. Yeager, 155 Kan. 734, 129 P.2d 242.)
Kansas appears to be one of the few states, if not the only one, that bars the claim of one who claims legal or equitable title to items of personal property for failure to comply with the non-claim statutes. (See case cited in 42 A.L.R.2d 413, § 6, p. 443.)
Argument is made that an exception should be made in this case since real estate was converted to personal property, the theory being that real estate should be treated differently than personalty. We are unable to agree that a distinction on that basis is valid. Under the facts of this case, money, not real estate, was devised. In 1873 the Supreme Court of the United States held that:
“The real estate having been directed by the will to be converted into money, it is to be regarded for all the purposes of this case as if it were money at the time of the death of the testator. That it was not to be sold until after the termination of two successive life estates does not affect the application of the principle. Equity regards substance and not form, and considers that as done which is required to be done. The sale being directed absolutely, the time is immaterial.” (Cropley v. Cooper, 86 U.S. [19 Wall.] 167, 174, 22 L.Ed. 109 [1874].)
The Supreme Court has placed emphasis on the question whether or not the action attempts to reduce the corpus of the estate which would be subject to distribution among the legatees and devisees of a testate decedent in determining whether a written claim must be filed. Had a claim been filed in the estate of Gussie McClure, it clearly would have been an effort to remove assets from her estate. Gussie McClure during her lifetime obviously was of the opinion the property was hers to do with as she desired, as evidenced by her new will. From the evidence before us, the executor of Gussie McClure’s estate had a duty to gather all assets in Gussie McClure’s name and distribute them according to the will admitted to probate in Reno County. No proof was offered that the executor acted in any manner other than with the utmost good faith.
The legislature has given some indication that all claims or demands of any nature, legal or equitable, be presented in the decedent’s estate, and the Supreme Court has so held. (Shively v. Burr, 157 Kan. 336, 342, 139 P.2d 401; Estate of Grindrod, supra.)
In addition, both the law and equity favor the vigilant. Appellee failed to protect its interest when it failed to request a bond of the life tenant under the provisions of K.S.A. 59-1506. One can understand the reluctance of a charitable institution to require a benefactor to post a bond. When appellee chose not to request a bond, it still had an opportunity to protect itself by remaining in contact with the life tenant and filing a claim in her estate or to take any other steps available to it on the date of Gussie McClure’s death.
Despite the fact we have a great deal of difficulty drawing a distinction between this case and the rationale of Gantz, supra; In re Estate of Paronto, supra; Oswald, supra; and the other cases cited herein, we are of the opinion they are not controlling in this case.
The Kansas Supreme Court adopted Restatement (Second), Trusts § 289, in Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691. The section reads:
“If the trustee in breach of trust transfers trust property and no value is given for the transfer, the transferee does not hold the property free of the trust, although he had no notice of the trust.” (Syl. 6.)
The comments following § 289, p. 56, read in part:
“b. Transfers inter vivos or by will. The rule stated in this Section is applicable where the trustee makes a gift of trust property inter vivos or by will.”
The Supreme Court, having adopted § 289 of Restatement (Second), Trusts, intended to also adopt the interpretations included in the comments in the absence of an express rejection. Two theories exist that we conclude have validity in allowing recovery against the estate of Agnes M. Pryor for any funds remaining from the sale of the Northeast Quarter (NE/4) of Section Nineteen (19), Township Twenty-five (25) South, Range One (1) East, in Sedgwick County, Kansas. The first is that the transferee merely takes the place of the transferor and in effect becomes the quasi trustee with the same fiduciary duty to the remainderman as the life tenant had. (76 Am. Jur. 2d, Trusts § 257.) The second is that the estate of Agnes M. Pryor would be unjustly enriched at the expense of the remaindermen as a result of the violation of the trustee’s duty to the remaindermen. (Scott on Trusts, Second, § 289.)
We conclude that when the remainderman is able to prove trust funds are in existence and to follow and identify the trust funds, a constructive trust will be imposed on the funds. The remainder-man’s claim will be allowed if the life tenant breached a fiduciary duty by making a gift of the property by will even though the transferee had no notice of the trust duties of the transferor if the remainderman is not guilty of laches or barred by some statute of limitations other than the nonclaim statute.
We have examined appellant’s contention that the doctrine of laches should bar The Salvation Army’s claim and find the contention to be without merit.
The case is reversed and remanded to the trial court for further proceedings in accordance with this opinion. | [
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Rees, J.:
This is an action for recovery of payments, treble damages, injunctive relief, and attorney fees under the Kansas antitrust laws (K.S.A. 50-101 et seq), and for declaratory judgment. The amended petition alleges that the claims are asserted by the named plaintiff, Winters, individually and as representative of a purported class. This is an appeal from trial court denial of certification as a class action and entry of summary judgment in favor of defendants.
Defendants Stormont-Vail Hospital, St. Francis Hospital and 167 other Kansas hospitals have contracted with defendant Kansas Hospital Service Association, Inc., commonly known as Kan sas Blue Cross and hereafter referred to as Blue Cross, to furnish hospital services to Blue Cross subscribers. The claims against the defendants are founded upon the form contract executed by Blue Cross and each of the 169 hospitals.
Section IV of the contract contains provisions with regard to a payment formula. It is provided that:
“It is the intent of the payment formula for Blue Cross to pay hospital charges or costs, whichever are lower.
“Blue Cross will pay to the Hospital its covered charges pending determination of cost. At the close of the Hospital’s fiscal year and annually thereafter a retroactive adjustment, if any, will be determined. . . .
“Member Hospitals will be paid 100% of billed charges for covered services pending determination of the retroactive adjustment, if any, resulting from the application of this payment formula.”
At the end of and with regard to each annual accounting period the hospital submits to Blue Cross statements of its operating expenses and income. If during the last two accounting periods the average annual operating income exceeds the average annual operating expense; retroactive adjustment is to be made. The retroactive adjustment is computed and made so as to reimburse Blue Cross the amount by which charges paid have exceeded cost. The result is that for those years when the hospital’s operating income exceeds its costs, Blue Cross pays only the cost of the services furnished to its subscribers.
Winters refers to Section IV of the contract as a “kickback clause.” We will refer to it as the retroactive adjustment clause. In his amended petition, arguments to the trial court and brief on appeal, Winters attacked the contract solely on the basis of the retroactive adjustment clause. As did the trial court, we consider the contract only with regard to that clause.
Winters claims that he incurred a $43.30 bill with St. Francis Hospital for services furnished in September 1972 and a $259.50 bill with Stormont-Vail Hospital for services furnished January 1, 1973 and June 21,1973. He was not a Blue Cross subscriber. It is claimed that by reason of the retroactive adjustment clause, his bill for hospital services represents artificially higher prices than those charged Blue Cross for services furnished to its subscribers. He alleges that over the ten-year period preceding the commencement of this action the 169 hospitals subjected their patients who were not Blue Cross subscribers to charges of $500,000,000 for goods and services. The contracts between Blue Cross and the hospitals are claimed to be in restraint of trade under K.S.A. 50-101 and K.S.A. 50-112.
Winters, on behalf of himself and his purported class which allegedly consists of approximately one million persons, seeks recovery under K.S.A. 50-115 of the $500,000,000 or such amount as would be shown by an accounting to have been paid by him and all other non-Blue Cross subscribers within the ten-year period. Recovery is sought under K.S.A. 50-801 for damages in treble that amount, or $1,500,000,000, and for attorney fees. It also is asked that pursuant to K.S.A. 60-1701 declaratory judgment be entered determining that the retroactive adjustment clause is in violation of K.S.A. 50-101 and K.S.A. 50-112 and that under the authority granted by K.S.A. 50-801, the defendants be enjoined from implementation of the clause.
We exclude certain issues from consideration. Among these are the question of recovery under K.S.A. 50-115 for services; the question of the calculation made in the amended petition concerning the amount of treble damages sought under K.S.A. 50-' 801; and the question of limitations.
In the trial court, Winters moved for certification as a class action under K.S.A. 60-223 and defendants moved for denial. Certification was denied. The named defendants then moved for and were granted summary judgment on all claims.
When each of the two sets of motions was presented to the trial court, there had been no discovery. The defendants had filed answers denying the material allegations of the petition and alleging affirmative defenses. In addition, defendants had filed affidavits including one by a Blue Cross officer which stated that Blue Cross had neither requested nor received retroactive adjustment under its contract with St. Francis Hospital during the years 1960 through 1973 or under its contract with Stormont-Vail Hospital during the fiscal years commencing October 1,1964 and ending September 30, 1973. The amended petition was filed on February 25, 1974. The motion for denial of class action certification was filed April 8, 1974. Plaintiff’s motion for class action certification was filed November 25, 1974. The class action certification motions were ruled on by the court on October 15, 1975 upon arguments of counsel, briefs, the pleadings and affidavits filed by defendants. The record reflects that Winters conducted no discovery and filed no counter-affidavits. The class certification motions were heard upon the then existing record without objection by Winters.
Prior to and at the hearing on the motions for summary judgment, Winters neither responded to nor contested a statement of uncontroverted facts submitted by defendants, and his counsel announced to the court that he had nothing further to submit. By reason thereof, Winters is held to have stipulated (1) to the facts stated in the Blue Cross officer’s affidavit and (2) that he does not allege that retroactive adjustment was ever made by any of the defendant hospitals for the years in which he was furnished hospital services.
The rule that summary judgment should not be granted where discovery remains unfinished, stated in Brick v. City of Wichita, 195 Kan. 206,403 P.2d 964, and later cases, is not applicable here. The court is not to determine disputed facts. (Ebert v. Mussett, 214 Kan. 62, 519 P.2d 687; Stripling v. Star Lumber & Supply Co., Inc., 216 Kan. 507, 532 P.2d 1101.) However, the non-moving party cannot rely solely upon the allegations in his pleadings but rather he must come forward with something of evidentiary value to support his position. (Stovall v. Harms, 214 Kan. 835, 522 P.2d 353.)
In this case the crucial issue underlying the trial court’s rulings and our decision is whether Winters individually has standing to assert the alleged claims for relief.
If Winters has no individual claim, he has no standing to prosecute this matter as a class action.
K.S.A. 60-223, like Rule 23, Fed. R. Civ. P., is a procedural statute. It creates no substantive rights. (See Weiner v. Bank of King of Prussia, 358 F.Supp. 684 (E.D. Pa. 1973).)
In Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3rd Cir. 1970), cert. denied, 401 U.S. 974, 28 L.Ed.2d 323, 91 S.Ct. 1190 (1971), it is succinctly stated that:
“. . .[A] predicate to appellee’s right to represent a class is his eligibility to sue in his own right. What he may not achieve himself, he may not accomplish as a representative of a class.” (p. 734)
K.S.A. 60-223(a) requires that the named or individual party prosecuting suit as the representative of a class must be a member of that class. If Winters has no individual claim, then he lacks standing to represent the class even though the other class members may have claims. The rule is stated in Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 41 L.Ed.2d 706, 94 S.Ct. 2925 (1974), as follows:
“To have standing to sue as a cla%s representative it is essential that a plaintiff must be part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents. . . .” (418 U.S. at 216)
A plaintiff simply may not represent a class-of which he is not a member. Bailey v, Patterson, 369 U.S. 31,7 L.Ed.2d 512,82 S.Ct. 549 (1962); Hall v. Beals, 396 U.S. 45, 24 L.Ed.2d 214, 90 S.Ct. 200 (1969).
From the record before us, we must conclude that there were no retroactive adjustments made by Blue-Cross and the defendant hospitals for the fiscal years during which Winters incurred his bills for hospital services, and therefore, also conclude that artificially higher charges were not imposed upon him and he has sustained no damage.. Having sustained no damage, there is no basis upon which he is entitled to recover payment under K.S.A. 50-115 or to treble damages and attorney fees under K.S.A. 50-801.
Assuming for the sake of argument that retroactive adjustments under the contracts would constitute violations of the Kansas antitrust laws, what is the threat of injury to Winters? The threat to Winters is contingent upon the concurrence of four events. First, Winters will require hospital services, a fact upon which there, is no evidentiary showing of probability. Second, Winters will be furnished hospital services by a Blue, Cross member hospital. Third, Winters will not be a Blue Cross Subscriber at the time of hospitalization. Fourth, the Blue Cross member hospital will make a retroactive adjustment for the fiscal year during which Winters is hospitalized. Quite simply, the record affords no basis to conclude that the probability of the concurrence of these events is anything other than remote and a matter of speculation. Further, the record is devoid of evidence to support a conclusion that implementation of the retroactive adjustment clause is probable. On the contrary, the experience of Blue Cross for the preceding ten years lends support to the inference that implementation of the retroactive adjustment clause is not probable. We hold that the threat of injury to Winters is too remote and speculative to give rise to an actionable claim.
Zenith Corp. v. Hazeltine, 395 U.S. 100, 23 L.Ed.2d 129, 89 S.Ct. 1562 (1969), a Clayton Act case, is a representative case cited by Winters for the proposition that a party seeking injunctive relief need not suffer actual injury but needs only to show that there exists a significant threat of injury from impending antitrust violations or from contemporary antitrust violations likely to continue or recur. The “significant threat” test of Zenith is not met for the reason that the probability of injury to Winters is remoté and speculative.
With respect to threat of injury from violations of K.S.A. 50-101, et seq., by defendants, Winters’ status is no different than that of the public at large. A plaintiff must have a special private interest distinct from that of the public at large. (Watson v. City of Topeka, 194 Kan. 585, 400 P.2d 689; Foster v. City of Topeka, 112 Kan. 253, 210 Pac. 341.) An injunction will not lie at the suit of a private person to protect public interests. (Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825; Boyer v. Southwestern Bell Telephone Company, 252 F.Supp. 1 (D. Kan. 1966). This principle applies to actions for violations of antitrust laws. (Ketchum v. Denver & R.G.R. Co., 248 F. 106 (8th Cir. 1917); Burkhead v. Phillips Petroleum Company, 308 F. Supp. 120 (N.D. Cal. 1970).)
We hold that Winters has no individual claim against the defendants and that this is fatal to all of his alleged claims. The rulings of the trial court were correct.
We have not dealt with various questions ably treated by the trial court in its memorandum of decision. Included among these was the propriety of the alleged class when tested by K.S.A. 60-223(b). The alleged class was described as all persons who had been furnished goods and services by the defendants during the ten-year period preceding the commencement of this action and who had not been Blue Cross subscribers at the time of their hospitalization. The questions raised upon testing this alleged class against the requirements of K.S.A. 60-223(b) are obvious.
Similarly, we have not discussed the claim for declaratory judgment as a separate issue. The posture of this litigation as presented to the trial court and on appeal requires us to conclude that the claim for declaratory judgment is not distinguishable from the claim for injunctive relief under K.S.A. 50-801 and that our determination of the latter issue is determinative.
The judgment is affirmed. | [
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Swinehart, J.:
This appeal emanates from the August 14, 1976, fatal shooting of one Virgil E. Riley. Harry A. Esters, appellant, plead nolo contendere to a charge of involuntary manslaughter stemming from the slaying.
Following conviction on the plea, a presentence report was prepared which, we are told, was favorable to appellant. Because of the presentence report, appellant moved the trial court to suspend sentence or grant probation. The court denied appellant’s motion and imposed sentence of one to five years pursuant to K.S.A. 21-4501(e). Appellant immediately filed notice of appeal and orally moved for rehearing pursuant to K.S.A. 60-1507, which motion was denied. The court stayed execution on the sentence pending the outcome of the appeal. Shortly thereafter, appellant filed a written motion for rehearing pursuant to K.S.A. 60-1507 which was denied. Appellant then filed an amended notice of appeal as to the court’s order on the 60-1507 motion.
Before getting to the merits of this appeal, it is necessary that we briefly consider the state’s contention that this court lacks jurisdiction because defendant was found guilty on a plea of nolo contendere. The state relies upon K.S.A. 22-3601 which provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of . . . nolo contendere.” We have no jurisdiction on that part of this appeal pertaining to the conviction on the nolo contendere plea. (See Mayberry v. State, 213 Kan. 199, 515 P.2d 819.) Accordingly, that part of the appeal is dismissed.
However, the record indicates that following sentencing, defendant filed a motion collaterally attacking the sentence pursuant to K.S.A. 60-1507(a). That motion was denied. K.S.A. 60-1507(d) provides:
“Appeal. An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.”
Also, K.S.A. 22-3601 provides immediately following the portion of that statute above-quoted:
. . Provided, Jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.”
Thus, this court has appellate jurisdiction as to the lower court’s ruling on defendant’s 60-1507 motion, and it is upon that aspect of this appeal that we take jurisdiction.
Esters’ only complaint on this appeal relates to the lower court’s holding that K.S.A. 1976 Supp. 21-4618 prohibited the granting of probation or the suspending of sentence.
K.S.A. 1976 Supp. 21-4618 provides:
“Probation and sentencing for certain crimes involving use of firearms. Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act.”
There is no dispute as to whether or not this statute applies here. The dispute centers around the meaning of the statute. Appellant maintains the statute only prohibits the granting of probation— not the suspension of sentence. The state, however, contends the statute prohibits both the granting of probation and the suspension of sentence.
The outcome of this appeal will turn on our construction of 21-4618. The rules of statutory construction in criminal cases were ably summarized in State v. Bishop, 215 Kan. 481, 483, 524 P.2d 712, where the court, relying on State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P.2d 1011, said:
“ ‘It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.’ ”
Further, from United Parcel Service, Inc. v. Armold, 218 Kan. 102, 542 P.2d 694:
“In interpreting a statutory provision which is susceptible of more than one construction it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose. . . .” (Syl. 2.)
Thus, while we are to strictly construe K.S.A. 1976 Supp. 21-4618 in favor of appellant, we are not to so stretch the statute’s language as to give it an inordinate meaning. If the statute is susceptible of more than one construction, we must give it that meaning which conforms with the legislative intent.
With these standards in hand, we now turn to the task of construing K.S.A. 1976 Supp. 21-4618. We first note that the statute specifically provides that probation “shall not be granted.” That language is clear and concise, and requires nothing further from us.
The statute also says that the “defendant shall be sentenced.” Appellant argues that this language does not prohibit a suspension of sentence because it does not specifically say that a suspended sentence shall not be allowed, as is the case with probation. We do not agree. “Suspension of sentence” is defined at K.S.A. 21-4602(2) as “a procedure under which a defendant ... is released by the court without imposition of sentence.” (Emphasis supplied.) 21-4618 requires that the defendant be sentenced. This requirement, by unavoidable implication, prohibits suspension of sentence. It is impossible to sentence a defendant as required by 21-4618 and yet not impose that sentence. “Suspension of sentence,” by its definition, is the release of a. defendant without sentence. Consequently the only logical interpretation of 21-4618, which requires that the defendant be sentenced, is that that statute prohibits suspension of sentence.
Our examination of the legislative history of 21-4618 indicates to us that our analysis of that statute is correct. The official minutes of both the House and the Senate judiciary committees, which considered and passed 21-4618, speak of such things as mandatory sentences and guaranteed service of jail time. For example, one state legislator commented that “the purpose of the mandatory sentence was the deterrent of the guaranteed service of some time.”
We have concluded that both the clear language of 21-4618 and the clear legislative intent in passing that statute require that those criminal wrongdoers who use firearms in the commission of those crimes defined in article 34 of chapter 21 must serve some jail time. Appellant’s proposal that the statute permits suspension of sentence is contrary to the clear language of the statute and contrary to the legislative intent, and therefore must be rejected.
It should be noted that 21-4618 does not require that appellant actually serve the minimum sentence — only that he be so sentenced. We see nothing in 21-4618 which would prevent a parole should the prison authorities feel such relief to be appropriate at some point in the future.
We therefore hold that the trial court was correct in imposing the minimum sentence of one year. The appellant should immediately commence serving his sentence.
Defendant’s appeal on the criminal case is dismissed. The judgment of the trial court on the K.S.A. 60-1507 motion is affirmed. | [
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Spencer, J.:
In this action to recover a reward for the return of stolen property offered by the defendant Travelers Insurance Co., plaintiff Alexander sued Travelers and a rival claimant Russo. Travelers paid the reward money into court and did not participate further. Trial to the court resulted in judgment for Russo and plaintiff has appealed.
Sometime around July 1, 1973, a sheet of platinum rhodium alloy with a value in excess of $61,000 was stolen from the Certain-Teed St. Gobain Co. in Kansas City, Kansas. The resulting police investigation, as well as the investigation conducted by Travelers, proved unproductive.
In early or mid 1974, Alexander learned that her son had been involved in stealing the platinum and had it in his possession. At that time her son gave her a small sample of the platinum which she took to two individuals in what she described as an attempt to have the material analyzed. Both individuals testified, however, that Alexander had attempted to sell the platinum through them.
In May, 1974, Alexander was arrested for shoplifting and Russo, who was then a practicing attorney at law in Kansas City, was employed to represent her at her trial in municipal court which occurred on June 24, 1974. Russo testified that it was on May 24th that Alexander retained him and at that time paid him $170 of an agreed fee of $250. His testimony was that the remainder of that fee is still owing. At the trial on June 24 Alexander was convicted and Russo stated that they thereafter filed an appeal from that conviction, which was abandoned when Alexander was placed on probation. Just when the appeal was abandoned is not made clear by the record.
Following her trial on June 24, and prior to July 9, 1974, Alexander visited Russo in his office. Her testimony was to the effect that she then sought Russo’s assistance in returning the platinum to the rightful owner; that she wanted to do this in order to keep her son out of trouble; and that she was not then certain whether the material was actually platinum. Her claim is that she then gave Russo an additional $200 for which he did not issue a receipt, and that he made no commitment but said that he would see what he could do. Russo testified that on this visit Alexander brought some eggs to his office and asked him if he was interested in investing any money or making any money. Russo asked her what it was about and she then told him there were two black individuals who rented from her who had some platinum that she could get; that if they could afford to buy it, they could then sell it and make money or find a buyer and in effect broker it. Russo said he would have to look into the market for platinum before deciding because “I wasn’t interested in doing that at that particular time unless I knew there was a market for it.” Russo denied that she said she wanted to hire him to try to get the platinum back to the owner and he also denied that she paid him any compensation in addition to that which had already been paid on the fee due him for representing her on the shoplifting charge. He testified, however, that he did ask Alexander for the balance of his fee and that she then indicated she would pay it and would also guarantee payment of the portion owed by another lady who had been involved with her on that charge. Russo claims that there was no attorney-client relationship established between them at that time, nor had any such relationship existed subsequent to the hearing in municipal court on June 24, 1974.
On July 9, 1974, Russo made contact with one Donald D. Hall who was then a police inspector in Kansas City. Russo stated that he asked Hall to check and see if any platinum had been stolen. Inspector Hall elaborated on this meeting in his confidential report of July 29, wherein it is stated:
“On July 9, 1974,1 talked with a man whose initials are T.R. who ... informed me that he had come in contact in his course of business with a lady by the name of Jeannie Alexander, C/F, approximate age 45. He stated this female had told him and had actually approached him to purchase or dispose of a large sum of platinum. He requested that I get with him at a later date and he would furnish me with the lady’s address and phone number and would try to contact the lady again to receive more information in regards to this matter if I was interested in solving this crime.” (Emphasis added.)
Russo was subsequently identified as the “man whose initials are T.R.” in the report. We make special note of the fact that Russo told Hall that he had come in contact in his course of business with a lady by the name of Alexander.
On July 20 and 21, and apparently on July 23, 1974, Travelers published an offer of reward in two local newspapers. The form and content of the published offer are not deemed important for the purposes of this opinion.
The confidential report prepared by Inspector Hall further reflects that a meeting was held in Russo’s office on July 29, 1974, which is described as follows:
“On this date at approximately 11:20, the reporting officer along with Detective Floyd Smith drove to the office of Mr. T.R., and he informed us that he had been in contact with Jeannie Alexander who related the following information to him. That she had a couple of negro males who were living in some of her rental property who had told her they had stolen $80,000 to $90,000 of platinum and they were willing to sell this for $15,000 to $20,000. If Mr. T.R. wished to assist her in purchasing the platinum, she would set up a buy. He told me he informed this lady not to do anything until he had time to look into the matter and he then passed this information along to myself. He informed me that up to this time the lady has not committed a crime and he does not wish for her to commit a crime; and if I could think of a way to recover the platinum without this lady committing a crime, he would be happy to assist me in this matter.” (Emphasis added.)
On July 31, 1974, Alexander was called to police headquarters by Hall for what she said she presumed to be an interview regarding property which had been taken from her home. Alexander testified that when Inspector Hall came in he introduced himself and said, “You’d better call your lawyer.” Her reply was, “Call my lawyer? For what? I haven’t done anything.” Hall replied, “You are going to need your lawyer because you’ve got something that belongs to me and I intend to get it before you leave here today.” Alexander further testified that as a result Russo was contacted and, after some time had elapsed, did arrive at police headquarters, at which time he requested to be permitted to “talk to my client alone.” Alexander said that in their private conference Russo inquired as to whether she had told them that he knew anything about the platinum, to which she replied in the affirmative, and as to whether she had the platinum, to which she replied in the negative. She said that Russo then also advised her, “You go ahead and tell the police.” She then asked him if he might represent her son and he said, “No, because it would be a conflict of interest if I’m representing you, I can’t represent your son.” Her testimony was that Russo then told Inspector Hall that Alexander had not committed any crime and that it was all right for her to give a full statement.
Russo’s testimony with regard to this meeting was that he did not in fact receive a telephone call but happened to be in police headquarters when Inspector Hall stopped him and told him that Alexander was in his office and had told him (Hall) that her son had stolen the platinum. He then testified:
“Q. Did you ask to talk to her in private?
“A. Yes.
“Q. And what was the reason for asking to talk to her in private?
“A. Because I thought she was getting herself in a pickle there. She had changed the story from the story she had told me.
“Q. And so what purpose did you hope to accomplish by talking to her in private?
“A. Hoping I would straighten her out so she wouldn’t get herself involved in a crime and be convicted of something.
“Q. And did you then give her some advice as a result of that conference?
“A. Did I give her advice?
“Q. Yes.
“A. I told her to tell the truth and she wouldn’t be any problem because Corky Hall was a man of his word. If he told her something he would stick by it.
“Q. And in essence did you tell her to go ahead and give the police a full statement of everything?
“A. She had already given a statement.
“Q. Did you tell her to go ahead and give a complete written statement?
“A. I told her, the conversation was that if she wasn’t involved they wouldn’t charge her, and I said, ‘just tell them the truth. If you told me the truth just now then you are all right, go ahead and tell them the truth and you won’t have any problems.’ ”
Hall testified that Alexander had asked to see a lawyer and that he tried to call Russo for her as she indicated Russo was the one she wanted to talk to. He further stated that he assumed she would retain Russo in this matter. Hall also confirmed the fact that Alexander had told him about her son and the theft of the platinum prior to Russo’s arrival and that Russo did ask to talk to Alexander alone when he arrived. At this meeting, and after Russo had talked to Alexander, she signed an instrument entitled “Waiver of Rights,” which contained the statement “I do not want a lawyer at this time.” Her signature to this instrument was witnessed by an F.B.I. agent and Russo. Alexander then gave a written statement to Inspector Hall in which she recited her knowledge of the theft, and from which the police were able to identify the culprits and recover the platinum. Although this statement indicated that it was given “in the presence of her attorney Tony Russo,” the evidence indicated that Russo left police headquarters immediately after he had signed as a witness on the Waiver of Rights and he was not in fact present during the taking of the written statement from Alexander.
Following the revelations made on July 31, 1974, the police arrested Alexander’s son, who led them to the platinum, and recovery was made on August 5, 1974.
Russo testified that he knew of the reward offer from July 26th, and on August 6 and October 2,1974, Russo made formal claim to the reward. Alexander testified that she knew on July 31st and on August 2nd, while talking to the police, that Russo had started the whole thing and must have been the one that turned her in; and that she had no intention of going to the police because “I didn’t know the police that well.” She also testified that she did not know about the reward until her son had gone to trial and his attorney had made reference to it in court. Sometime thereafter she made claim to the reward under the fictitious name of “Alice Carlos.”
The trial court found that there was no attorney-client relationship existing between Russo and Alexander; that Russo’s actions in giving information to the police led to the ultimate recovery of the platinum; and that Russo should receive the reward.
On appeal, Alexander argues that the trial court erred in concluding that no attorney-client relationship existed between Russo and herself, and that if such a relationship existed, public policy should prohibit Russo from receiving the reward under circumstances that amount to betraying the confidences of a client. In the alternative, she argues that if no attorney-client relationship existed, Russo owed a duty as a lawyer to report any information he had of the theft and that public policy should prohibit him from receiving the reward for doing what his duty required him to do. Finally, she argues that the recovery was effected through information supplied by her, not Russo, and that the information Russo did supply was given prior to the offer of the reward and thus failed to establish a contract for its payment.
We first consider the issue of the attorney-client relationship. It is undisputed that such a relationship existed on June 24 when Russo represented Alexander on the shoplifting charge. The trial court found, with some support in the evidence, that when Alexander visited Russo between June 24 and July 9, she did so not in order to retain him, but in an attempt to sell the platinum.
We note, however, that this meeting was within and no more than fifteen days after the admitted representation of Alexander by Russo on June 24th.
“The relationship of an attorney to his client is fiduciary in character, binding the attorney to the highest degree of fidelity and good faith to his client on account of the trust and confidence imposed.” (Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, Syl. 3, 553 P.2d 254.)
In 7 Am.Jur.2d, Attorneys at Law § 98 at 110 it is said:
“. . . [I]t has been emphasized that the duty of fidelity and good faith imposed upon the attorney in dealing with his client is founded, not on the professional relation per se, but on the influence created by the relation, and that the duty does not always cease immediately on the termination of the relation but continues as long as the influence created by that relationship continues to exist.”
See also 7 C.J.S., Attorney and Client § 125 at 959; Colstad v. Levine, 243 Minn. 279, 67 N.W.2d 648 (1954); Conner v. Hodgdon, 120 Wash. 426, 207 Pac. 675 (1922).
May it truly be said that when Alexander visited Russo at his office, and talked to him about the platinum for whatever purpose, and he told her that he would have to look into the market for platinum before making a decision, and at that time they discussed the balance of the fee due him as her lawyer, that his duty as an attorney in dealing with his client had terminated and that the influence created by their former relationship no longer existed?
We do not here conclude that-the trial court erred in finding that the attorney-client relationship between Russo and Alexander did not exist during the period of June 24 to July 9 and again on July 29 when Russo gave Alexander’s name to the police. However, we do conclude from the evidence presented by this record, and particularly from the statements and admissions made by Russo, that the influence created by that relationship on June 24, 1974, had continued during this period of time and, accordingly, the duty owned by Russo as the attorney for Alexander had not terminated. We believe there is no doubt but that his contact with Alexander at least initially was by reason of his capacity as an attorney at law and was in the course of his business, and that- he was in fact trying to prevent her involvement in a crime.
It is obvious that the information given to the police by Russo on July 9 and 29 was only that he was in contact with someone who might provide the information necessary for recovery of the platinum. Information in detail had not been elicited until the meeting at police headquarters on July 31st when Alexander elected to reveal the facts to the police. As a result of her conference at that time with Russo in which he advised her to tell the truth, she elaborated on these facts and gave a written statement.
When Russo as a practicing attorney at law undertook to confer with Alexander at police headquarters to “straighten her out so she wouldn’t get herself involved in a crime and be convicted of something,” the relationship, and not merely the influence, of attorney and client was re-established and continued throughout the period during which Alexander gave her statements to the police on the strength of Russo’s advice to her. This is true even though Russo was not paid and did not thereafter represent Alexander.
The relation of attorney and client can be created by express or implied contract. (Caldwell v. Bigger, 76 Kan. 49, 90 Pac. 1095.) The establishment of the relation is not dependent on the payment of a fee. (7 C.J.S., Attorney and Client § 65b at 849; 7 Am.Jur.2d, Attorneys at Law § 91 at 105.)
DR 5-101 (A) of the Code of Professional Responsibility provides:
“Except with the consent of his client after full disclosure, a lawyer shall ndt accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” (214 Kan. Ixxxv.)
During the conference on July 31st, Russo was aware of the reward offer and did not disclose that fact to Alexander. He advised her to tell the truth and that she wouldn’t have any problems. It was only after this advice that Alexander executed the “Waiver of Rights” and gave her written statement to the police incriminating her son. The trial court did not address itself to this particular question, but we conclude that on July 31st Russo did in fact represent Alexander as her attorney and that his advice to his client was in effect — you go ahead and tell the police the whole story and after you have done so I will be able to collect the reward and you will not be the wiser. Would Alexander have been so cooperative had she been aware that Russo intended to make claim to the reward? We believe not and conclude that Russo was at that time confronted with an election either to refuse to confer with Alexander for any purpose or to make a full disclosure of the reward and of his involvement.
As a member of the legal profession, a lawyer must conduct his professional life with great circumspection and must tread that somewhat narrow path in a manner compatible with the Code of Professional Responsibility. He shall not violate a disciplinary rule nor engage in conduct involving dishonor, fraud, deceit, or misrepresentation, nor engage in conduct that is prejudicial to the administration of justice. [DR 1-102 (A) (1), (4), (5).] He must preserve the confidence and secrets of his client whenever that relationship exists and he must not use a confidence or secret of his client for the advantage of himself unless the client consents after full disclosure. [DR 4-101 (A) and (B).] He may, however, reveal the intention of his client to commit a crime and the information necessary to prevent the crime. [DR 4-101 (C) (3).] He must avoid even the appearance of professional impropriety. [DR 9-101.]
A practicing attorney at law in our society is one to whom confidences and secrets of the client and the prospective client must necessarily be imparted, and to permit the attorney to reveal such confidences and secrets to another for the purpose of his own enrichment, and without full disclosure to the client, would be unconscionable. The relationship between an attorney and his client is one of the highest trust and confidence and, as long as that relationship or the influence of that relationship may exist, the attorney must observe the utmost good faith and candor and must not allow his private interests to conflict with those of his client. Cf. In re Estate of Seeger, 208 Kan. 151, 490 P.2d 407.
We conclude that throughout the period of his original retainer by Alexander in May, 1974, to and including the conference between Russo and Alexander on July 31, there was sufficient influence created by the times when the attorney-client relationship did in fact exist that it would violate all sense of propriety and be contrary to public policy to permit recovery of the reward by Russo.
Having so determined, we need not decide whether a lawyer has a duty, incident to his profession, to report to the appropriate authorities any unprivileged information he might have regarding a completed crime, and whether that duty would preclude him from collecting a reward for furnishing such information. In this regard see American Bar Association Committee on Ethics and Professional Responsibility, Informal Opinion 1210 (February 9, 1972) describing the lawyer’s duty of disclosure in such a situation to be that of a “good citizen.” We note that it is against public policy for an officer to receive a reward for the performance of his official duty (Williamson v. Labette County Comm’rs, 122 Kan. 349, 252 Pac. 466), but that nothing prohibits recovery of a reward for actions by an officer where he is under no obligation arising from his official character to perform the service. (Elkins v. Wyandotte County, 91 Kan. 518, 138 Pac. 578; Montgomery County Comm’rs v. Johnson, 126 Kan. 36, 266 Pac. 749.)
The issues of which of the parties provided the information which led to the recovery, and whether there was an enforceable contract established, need not be discussed as to Russo.
What about Alexander? As previously noted in this opinion, the disclosures finally made by her were not in any manner motivated by the offer of reward, of which she was then unaware and of which she knew nothing until well after the recovery of the platinum had been accomplished. As stated in Taft v. Hyatt, 105 Kan. 35, 180 Pac. 213:
“A private offer of reward for the apprehension of an accused person stands, as a general rule, upon a different footing from an offer made by virtue of a statute. When accepted, the offer becomes a contract; until it is accepted by some person, who upon the strength of the offer takes some steps to earn the reward, there is no contract; and where a claimant of the reward was not aware that it had been offered until after he had acted, he is not entitled to claim the reward.” (Syl. 3.)
We see no reason why this rule should not apply to an offer of reward for the return of stolen property. It therefore follows that Alexander, being unaware of the reward when she implicated her son in the crime, did not thereby accept the offer of the reward and is not entitled to recover. Alexander argues, however, that Russo’s knowledge of the reward should be imputed to her to give her the requisite knowledge to effect the contract. This presupposes that Russo was acting as her attorney when he learned of the reward, a fact not established by the evidence. However, as a general rule, notice or knowledge of an attorney acquired during the time he is acting within the scope of his employment is imputed to his client. (Hess v. Conway, 92 Kan. 787, 142 Pac. 253.) We have here determined that at the time Russo learned of the reward (July 26) the attorney-client relationship did not exist, although the influence from the relationship existing prior to that date continued.
Whatever might be said of imputed knowledge, Alexander is not in this case with “clean hands,” and the right to claim a reward may be limited by equitable principles. (67 Am.Jur.2d, Rewards § 15 at 12.) She had no intention of going to the police because “she didn’t know them that well,” and her interests were more in realizing the fruits of the crime rather than in making any official disclosure of it. Even as we have determined that it would be unconscionable for Russo, an attorney, to recover under the circumstances revealed by this record, we deem it equally unconscionable for Alexander, whose knowledge of this crime and her son’s part in it had existed for a matter of months, to be allowed to recover.
Accordingly, we hold that the judgment of the trial court be reversed and this case remanded with directions to enter judgment that neither Alexander nor Russo shall recover, but that the reward money paid into court, less court costs and the costs of this appeal, be refunded to the defendant Travelers Insurance Co. (See Taft v. Hyatt, supra.) | [
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Spencer, J.:
Appellants are prisoners at the Kansas State Penitentiary at Lansing and each has appealed from an order of the district court dismissing his petition for a writ of habeas corpus under the provisions of K.S.A. 60-1501, et seq.
The issues here involved are identical and, although dealt with separately in the trial court and docketed separately in this court, we deem it appropriate to consolidate the appeals for this opinion. Counsel for each petitioner has indicated his agreement to our doing so.
We have been furnished Department of Corrections Administrative Procedure 207, “Standard of Cleanliness to be Observed/Hair Standards for Male Inmates,” which provides in part:
“2. The Department’s hair standards for male inmates, effective January 15, 1977, are:
“a. Upon admission to the custody of the Secretary of Corrections, or return for parole violation, male inmates’ hair will be cut to approximately one and one-half (114 ) inches in length; they will be clean shaven of beards and mustaches. These regulations apply to inmates received directly at the Reception and Diagnostic Center and to those who are received at the other adult male institutions. Mug photos for identification purposes will be taken before and after the admission haircut, within five (5) days after being received.
“b. Male inmates, regardless of their admission date, will not be permitted to grow sideburns below the bottom of the ear and will not be permitted to grow beards.
“c. Male inmates, regardless of their admission date, are permitted to grow mustaches, not to extend beyond the outer corners of the mouth.”
Petitioners allege that respondents-appellees’ attempts to enforce the policy prohibiting the wearing of beards is in violation of their First Amendment rights in that each is a member of the Sikh religion, among the tenets of which is the prohibition of cutting hair from the body.
Both petitions are handwritten, pro se, and entitled “Petition For A Writ Of Habeas Corpus.” The Wright petition was filed March 1, 1977; the Childers petition was filed March 17, 1977.
The Wright petition alleges that on or about January 28, 1977, Lt. Kenneth Lynch, officer in charge of the Adjustment and Training Building at the Kansas State Penitentiary, informed Wright that he (Wright) must shave off his beard. Wright informed Lt. Lynch that his religious beliefs prohibited him from doing so. On January 31, 1977, Wright was denied all “privileges” because of his refusal to shave. The petition also alleges that all administrative remedies have been exhausted.
The Childers petition alleges that on or about January 25, 1977, Childers was requested by Lt. Lynch to shave his beard; that Childers informed Lt. Lynch that he could not comply because of his religious beliefs; but thereafter, because of threats of loss of good time and out of ignorance of his constitutional rights, Childers did comply and did shave. On February 1, 1977, Childers was transferred to the Larned State Hospital where he was allegedly beaten and sustained injuries. Upon his return to Lansing on February 12, 1977, he was allowed to refrain from shaving in order that the cuts he had received in the beating could heal. However, on March 11, 1977, Lt. Lynch informed Childers that he must shave his beard, to which Childers again replied that his religion would not permit him to do so. Having in the interim been informed of his constitutional rights, Childers did not this time comply with the order. He was subsequently denied all “privileges.” The petition also alleges that all administrative remedies have been exhausted.
We make note here of information furnished the court upon oral argument to the effect that Wright entered the penitentiary with his beard and presumably his religion; and that Childers, who perhaps was a prison convert, developed his beard while in confinement.
Each petition was denied summarily on the day it was filed. The orders of dismissal are identical and read as follows:
“MEMORANDUM AND ORDER
“Petitioner has filed in the above-captioned case a petition for the issuance of a writ of habeas corpus.
“Petitioner alleges that he is being denied the privilege of wearing a beard and other evidence of his status as a member of the SIKH religion in violation of his constitutional rights in contravention of institutional regulations.
“This Court concludes that the petition fails to state a claim upon which relief can be granted in a habeas corpus proceeding and that a writ should not be issued.
“IT IS, THEREFORE, ORDERED that the petition for a writ of habeas corpus filed herein be denied and that this action be, and the same is hereby, dismissed.”
The designated points on appeal in each case are substantially the same and, in the final analysis, the issue here is whether in the absence of responsive pleading or an evidentiary hearing, the trial court may properly dismiss the petitions as failing “to state a claim upon which relief can be granted in a habeas corpus proceeding. . . .”
Bearing in mind that petitioners claim a violation of their First Amendment rights that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ,” as made applicable to the states by the Fourteenth Amendment to the Constitution, we consider first whether in fact we are dealing with an established religion.
Our very brief and limited research in this respect, taken from The New Schaff-Herzog Encyclopedia of Religious Knowledge, Vol. 10, p. 408, et seq., reveals that “Sikh” is a term applied to a religious group concentrated in northwest India. The, term meaning “disciple” is the correlative of guru “teacher.” The religion was founded and developed by a series of ten gurus, who in turn trace the beginnings of their faith to one Kabir, circa 1400 A.D. The first guru, Nanak, was active circa 1500 A.D. The principal book of the Sikhs is the Adi Granth or Granth Sahib. The religion is sometimes said to be an attempt to reconcile Hinduism, Buddhism, and Islam, although it is generally recognized to be a Hindu sect.
The history of the Sikhs is obscure after 1708 (the death of the last of the ten gurus). After 1800 they gradually took political and military control of the Punjab and fought with the British until 1848. Following the victory of the British, many of the Sikhs entered the British Army while in India.
From Buddhism the faith takes as one of its tenets belief in Nirvana. The essentials of Sikh practice are abstention from idolatry, wine and tobacco; observance of the caste system is prohibited; the duty to earn one’s living is expressed. True Sikhs are distinguished by the wearing of five articles — long hair, comb, sword, white clothing, and steel bracelet. From a publication originating at the Sikh Dharma Brotherhood headquarters at Los Angeles, California, furnished us by counsel for the appellants, we learn that one of the qualifications of a Sikh is as follows:
“C. He shall keep his form in the simple existence as God made him, thereby not removing hairs and keeping them long, intact and natural.
“1. The man shall tie his hair in a Rishi knot on the crown of his head to be covered by a cotton cloth known as a turban whenever in public. He will be obliged to keep a dastar (small turban) when he is without his turban. In those situations which require it, he may wear a steel mail over his dastar, over which a turban is to be tied.
“2. The woman shall wear her hair on the top of her head and keep it covered with a turban or chuni when in public.”
From evidence made available to us at this time, we must conclude that the Sikh Dharma, referred to in this opinion as “Sikh,” is an established and recognized religion to which the petitioners may subscribe.
At this point, we deem it well to make note of the recent decision of the United States Supreme Court in the case of Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 53 L.Ed.2d 629, 97 S.Ct 2532 (1977). In that case, Justice Rehnquist prefaced his opinion by reference to certain peculiar and restrictive circumstances of penal confinement as follows: ment as follows:
. . [T]his Court has long recognized that ‘[ljawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ . . . The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. We noted in Pell v. Procunier, [417 U.S. 817 (1974)] at 822:
‘[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.’ . ” (p 125.)
The case of Levier v. State, 209 Kan. 442, 497 P.2d 265, involved allegations in habeas corpus petitions of mistreatment of prisoners held in the A & T Building at Lansing. Included were allegations of denial of medical treatment, lack of exercise or work facilities, and injuries inflicted by guards. In an opinion prepared by then Commissioner Harman, now Chief Judge of this court, certain principles of law were set forth as follows:
“An inmate confined in a penal institution retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.” (Syl. 1.)
“The rights of an inmate include entitlement to adequate food, light, clothing, medical care and treatment, sanitary facilities, reasonable opportunity for physical exercise and protection against physical or psychological abuse or unnecessary indignity.” (Syl. 2.)
“Habeas corpus provides an appropriate remedy for inquiry into mistreatment of a continuing or probably continuing nature alleged by an inmate of a penal institution.” (Syl. 3.)
It was there cautioned, however, that:
“Prison officials as executive officers of the state are charged with the control and administration of the penal institutions of the state and as such are vested with wide discretion in the discharge of their duties. That discretion should not be interfered with by the courts in the absence of abuse or unless exercised unlawfully, arbitrarily or capriciously.” (Syl. 4.)
It was there held that, for reasons stated in the opinion, the judgment summarily denying relief and habeas corpus be reversed with directions to appoint counsel for petitioners and conduct evidentiary hearings upon issues joined. We again note that the petitions in these consolidated cases were summarily dismissed on the dates of the filing of those petitions and note further that counsel for petitioners were not appointed except for the purposes of the appeals.
In the present case it appears that the deprivations alleged to be the result of the petitioners’ insistence on adhering to their religious beliefs will be of a “continuous or probably continuing nature.” Such was not the case in Breier v. Raines, 221 Kan. 439, 559 P.2d 813, which affirmed a summary dismissal of a habeas corpus petition based upon a sexual assault by another inmate and events flowing therefrom. These petitions in effect allege an unlawful exercise of discretion by the prison officials in their control of the prison and the inmates in that the penalties visited upon the petitioners are in violation of their First Amendment right of religious freedom. Thus, the case is not one which on its face involves purely a matter within the discretion of the prison authorities.
The discretion of prison officials in matters of internal management of the prison, “unless clearly arbitrary or shocking to the conscience,” was reemphasized in the recent case of Foster v. Maynard, 222 Kan. 506, Syl. 1, 565 P.2d 285, which involved claims of denial of equal protection by inmates housed at the A & T Building at Lansing. There, the supreme court affirmed a denial of relief after an evidentiary hearing.
The free exercise of religion is a protected right (U.S. Const, amend. I; Kan. Const., Bill of Rights Sec. 7). The U.S. Supreme Court has recognized that prisoners retain “substantial religious freedom under the First and Fourteenth Amendments.” (Wolff v. McDonnell, 418 U.S. 539, 556, 41 L.Ed.2d 935, 94 S.Ct. 2963 [1974].) In this case, the petitioners argue that it was error for the district court to dismiss their petitions, alleging punishment by means of denial of all privileges due to their adherence to their religious beliefs, without responsive pleading or an evidentiary hearing. The state argues that the challenged prison regulation requiring the inmates to be clean shaven is reasonable and justified in itself and that no hearing was necessary.
It appears from those cases cited in appellee’s brief that the 5th Circuit Court of Appeals has held that petitions challenging shaving regulations on religious grounds may be summarily dismissed without hearing. Brown v. Wainwright, 419 F.2d 1376 (5th Cir. 1970); Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970); Hill v. Estelle, 537 F.2d 214 (5th Cir. 1976). On the other hand, the 2d Circuit has specifically held that in cases where a claim is made by a prisoner professing a legitimate belief in an established religion that prohibits the cutting of hair, a hearing must be held to determine if the state’s purpose in requiring beards to be cut outweighs the claimed religious right. Burgin v. Henderson, 536 F.2d 501 (2d Cir. 1976). Burgin distinguished Brooks and Brown as involving “somewhat idiosyncratic claims that beards had religious significance. . . .” (536 F.2d at 503 n. 4.) In that case, it was said:
“. . . It may well be that the state’s interest in hygiene and identification of inmates outweighs the prisoner’s interest in growing a beard as required by his religion, but there is nothing in the record now to show that. As we pointed out in Sostre v. Preiser [519 F.2d 763 (2d Cir. 1975)] at 764:
“But even if the institutional purpose is legitimate and substantial, ‘that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ . . .
At the very least, a record must be made as to what the no-beard rule is; how it is applied; whether any beards are allowed; whether, as plaintiffs allege, there is no hygienic problem; and whether the need for identification requires total prohibition of beards, rather than some narrower limitation.” (536 F.2d at 504.)
The case of Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976) involved pro se complaints by prisoners at the Wyoming State Penitentiary that prison officials acted to restrict their practice of the Satanic religion, in violation of the First Amendment. The district court dismissed the case before any responsive pleading. The 10th Circuit reversed saying:
“It is true that overt acts prompted by religious beliefs or principles are subject to some regulation . . . and the circumstance of imprisonment is, of course, a factor that bears on the lawfulness of limitations. . . . While in custody inmates have only such rights in practice of their religion as can be exercised without impairing requirements of prison discipline. . . . Again, however, the dismissal was made before there was any assertion by defendants that their actions were taken as necessary security or control measures in the prison, and without any pleading or proof of the surrounding circumstances.
“We are persuaded that the asserted justification of such restrictions on religious practices based on the State’s interest in maintaining order and discipline must be shown to outweigh the inmates’ First Amendment rights. . . . Hence we conclude we must vacate the judgment of dismissal and remand for further proceedings. If it is determined that the practice of a religious belief is involved, and that there are restrictions imposed on its exercise, then the court should further determine whether any incidental burden on fundamental First Amendment rights is justified by a compelling state interest in the regulation of prison affairs, within the State’s constitutional power. . . . For ‘. . . only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.’ Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15.” (540 F.2d at 1061.)
It may well be that there are compelling state interests which justify the restrictions imposed and that there are no less restrictive methods of achieving the goals of the regulation that all male inmates will be clean shaven of beards, whether those interests serve the purpose of identification or hygiene or whatever. But we are convinced that such restrictions are not to be imposed so as to deny the free exercise of an established religious faith without a proper determination of compelling state interests in doing so, and without the further determination that there are no less restrictive methods of achieving the object of the regulation. Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. Although not clearly shown by the record, it appears that it was not until January 15, 1977, that such a regulation was put into effect. Whether it is justified where First Amendment rights are involved is a matter for an evidentiary hearing.
The issue here involved, although not always in the religious context, was considered and the regulation upheld in Winsby v. Walsh, 321 F. Supp. 523 (C.D. Cal. 1971); Williams v. Batton, 342 F. Supp. 1110 (E.D.N.C. 1972); Rinehart v. Brewer, 360 F. Supp. 105 (S.D. Iowa 1973); and Collins v. Haga, 373 F. Supp. 923 (W.D. Va. 1974). In the following cases the regulations were found invalid when weighed against religious claims by the prisoners involved: Teterud v. Gillman, 385 F. Supp. 153 (S.D. Iowa 1974), aff’d sub nom Teterud v. Bums, 522 F.2d 357 (8th Cir. 1975); Monroe v. Bombard, 422 F. Supp. 211 (S.D.N.Y. 1976). See also, Oritz v. Ward, 384 N.Y.S.2d 960, 87 Misc.2d 307 (Sup. Ct. 1976).
We conclude that the orders of dismissal entered in these cases must be vacated and these matters remanded to the trial court for further proceedings in conformity herewith. | [
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Foth, J.:
The basic issue in this case is whether a foreign business trust must qualify to do business in this state if its only activity here is to lend money secured by a mortgage on Kansas real estate. The trial court found that the foreign business trust operated by plaintiffs was required to qualify, and restrained further proceedings in this suit to foreclose a mortgage on Kansas real estate until it did so. Plaintiffs have appealed from that ruling, and the defendants have cross-appealed from the court’s refusal to dismiss the suit altogether.
Plaintiffs are trustees of Tri-South Mortgage Investors, a business or “Massachusetts” trust having its principal place of business in Georgia. On June 30, 1972, it lent $1,300,000.00 to the defendant Kansas City West Land Company, Inc., a Kansas corporation, secured by a mortgage on some 33 acres of land in Wyandotte county. This action was filed June 5, 1975. The petition alleges a breach of the mortgage agreement by failure to pay interest due on August 11, 1974, and seeks foreclosure and judgment for the full principal amount plus accrued interest.
In addition to Kansas City West, the mortgagor, several individuals were named as defendants. As to three, liability was asserted on the basis of their personal guarantees of the loan. Others were named as stockholders, officers or directors, and in some cases as spouses of such interested parties. As to the non-guarantor individuals, liability was based variously on (1) their status as transferees of the mortgagor’s assets after a certificate of its dissolution was filed with the Kansas secretary of state on December 26, 1974; or (2) their status as stockholders of an undercapitalized corporation; or (3) their status as incorporators or stock subscribers of a corporation which had not complied with the statutory prerequisites to doing business. As a result of a series of motions most of the individual defendants, except those who had guaranteed the loan, were dismissed from the case. Although Tri-South appealed from the dismissals, it has since dismissed its appeal as to six of the individual appellees. In any event, the status of the individual defendants is not before us, except as it may be affected by the main issue.
That issue was raised by various motions to dismiss based on the fact that Tri-South had never qualified to do business in Kansas. Tri-South responded by an affidavit of one of its trustees to the effect that Tri-South’s only activities in Kansas have been to lend money on real and personal property situated in this state and to deal in the security interests acquired in connection with such loans. The affidavit was not contested, and it appears conceded by defendants that if Tri-South were a corporation it would be exempt from qualifying in this state by virtue of K.S.A. 17-7303. That section defines what is “doing business” in Kansas so as to require a foreign corporation to register, and goes on to say:
“Provided, That foreign corporations shall have the right to receive, take, purchase and hold, by mortgage or otherwise, any securities or liens executed, given, transferred or intended to represent or secure loans upon real or personal property situated in this state, and to sell, assign, transfer, sue upon, foreclose or otherwise enforce the same; and any foreign corporation which engages in Kansas solely and exclusively in the activities enumerated in this proviso shall not be required to obtain authority under this act to engage in such activities in this state.”
The trial court reasoned as follows:
“2. Defendants’ motions to quash and/or dismiss are generally based upon plaintiffs’ failure to comply with the statutory requirements of K.S.A. 17-2028 through 17-2035 relative to a ‘business trust’ or ‘Massachusetts Trust’ being permitted to conduct business in this state.
“3. Plaintiffs generally contend that they are exempt from said statutes pursuant to K.S.A. 17-7303 relative to what constitutes a ‘foreign corporation doing business’ in this state.
“4. The court directs counsel’s attention to K.S.A. 17-2035 which I excerpt from and emphasize as follows: ‘Business trusts shall be subject to all applicable provisions of law . . . relating to domestic and foreign corporations . . . except to the extent that such provisions of law are inconsistent with the specific provisions of this act.’
“5. This court therefore finds and concludes as a matter of law that K.S.A. 17-7303 does not exempt plaintiffs who are admittedly a ‘business trust’ or ‘Massachusetts Trust’ within the purview of Kansas law, from complete compliance with the aforecited statutes specifically defining and regulating their transaction of business within this state.”
We agree with the trial court that the controlling statute is K.S.A. 17-2035, part of the Kansas business trust act of 1961, quoted in part in finding number 4, above. The real question is whether the exemption of 17-7303 for foreign corporations which only lend money in Kansas is inconsistent with any of the “specific provisions” of the business trust act.
That act (Laws 1961, ch. 127) was the culmination of a long series of problems arising from the operation in this state of those hybrid business entities known as business trusts or, more commonly, “Massachusetts” trusts. The court was repeatedly faced with determining whether they should be treated as corporations, partnerships, true trusts, or simply illegitimate creatures of whom the law should take no cognizance whatever. A few of our cases will illustrate those problems.
The seminal case is Lumber Co. v. State Charter Board, 107 Kan. 153, 190 Pac. 601. The plaintiff trust there was organized to engage in a general manufacturing, mercantile or commercial business. The court first held that because the trust had not complied with our corporation code the state charter board was not required to consider its application to sell stock in Kansas. As a result of a post-decision motion to modify, however, it was recognized that such an organization met the definition of a “corporation” found in Article 12, § 6 of our Constitution. As a constitutional “corporation” it was entitled to have its shares considered for registration under our Blue Sky law, although its right to qualify to do business in this state was again questioned because the statutes covering qualification to do business were couched solely in terms of corporations.
In Harris v. Oil Co., 110 Kan. 532, 204 Pac. 754, the court upheld a judgment against a Massachusetts trust which was operating as an oil driller and producer. For that purpose the trust was a viable business entity upon whom service could be made by publication in its trade name. The court had occasion to reaffirm that “ ‘Massachusetts trusts’ are corporations within the meaning of our statutes where reasonably applicable.” (p. 537.)
In Hamilton v. Young, 116 Kan. 128, 225 Pac. 1045, the court held that the trustees of another oil producing trust were not personally liable on a promissory note they executed in the name of the trust. Thus limited liability, one of the prime attributes of a corporation, was apparently extended to a Massachusetts trust. However, in Weber Engine Co. v. Alter, 120 Kan. 557, 245 Pac. 143, the court noted that the nonliability in Hamilton was predicated on the peculiarities of the negotiable instrument law, and not on the nature of the business entity. When it came to an ordinary contract for the purchase of machinery for use in the trust’s business the trustees were personally liable — only by adhering to the letter of the corporation act could they secure the benefits of a corporation’s limited liability.
Weber was followed in Linn v. Houston, 123 Kan. 409, 255 Pac. 1105, where trustees of a Wyoming based Massachusetts trust were held personally liable on an oil drilling contract.
The conceptual difficulties in dealing with such a creature are graphically illustrated in the assorted litigation involving United Royalty Company. That was an Oklahoma based Massachusetts trust which conducted a vast oil royalty pooling operation in Kansas from the 1920’s through the 1950’s without either qualifying to do business or registering its securities under the Blue Sky laws. In Fitch v. United Royalty Co., 143 Kan. 486, 55 P.2d 409, it was held that a Kansas landowner could not avail himself of United’s failure to qualify in order to void a mineral deed given in exchange for United’s shares. Only the state could challenge the failure to qualify. Further, the lack of Blue Sky registration might have been a defense to an action on an executory contract, or grounds for rescission in an action promptly brought, but it did not foreclose United from successfully interposing the defense of laches against its grantor-stockholder. Then, in Froelich v. United Royalty Co., 178 Kan. 503, 290 P.2d 93, United secured a reversal of a judgment cancelling a mineral deed to it, and had its title quieted to the mineral interest involved. No question was raised as to its capacity to sue or be sued or its failure to qualify or register its securities. Finally, in State, ex rel., v. United Royalty Co., 188 Kan. 443, 363 P.2d 397, in a protracted suit that lasted over ten years, the state secured a judgment enjoining United from doing further business in this state until it qualified and registered its securities. For both those purposes, it was held, United was a “corporation” despite the fact that it was not incorporated under the laws of any state. Once it qualified and registered, however, all its prior business and contracts were legitimated. The fact that the statutes governing qualification still dealt only in terms of corporations did not trouble the United Royalty court as it had the Lumber Co. court forty-odd years earlier.
Such cases demonstrate that a Massachusetts trust is not a true corporation, but has long been a recognized business entity with some but not all the attributes of a corporation. For lack of legislative recognition, however, from Lumber Co. through the last United Royalty case our court was required to fit a Massachusetts trust into the corporate mold, at least for the purpose of public regulation.
In 1961, just before the last United Royalty case was finally decided, the legislature at last came to grips with the problem by enacting the business trust act, now K.S.A. 17-2027 et seq. An examination of the twelve sections of the act shows that the legislature, like the court over the years, dealt with business trusts essentially by treating them as corporations: Section 1 (17-2027) gives the title of the act. Section 2 (17-2028) is the definition section (of which more will be said later). Section 3 (17-2029) says that a business trust shall be “a permitted form of association for the conduct of business in this state.” Section 4 (17-2030) requires any business trust, “whether domestic or foreign, desiring to transact business in this state,” to file with the secretary of state its declaration of trust and other information about its structure, and for a foreign trust a designation of an agent for the service of process similar to that required of qualifying foreign corporations by specific reference to what is now 17-7301 of the corporation code. Section 5 (17-2031) specifies filing fees. Section 6 (17-2032) imposes personal liability on trustees for debts and obligations incurred by the trust before complying with the act. Section 7 (17-2033) requires filing of amendments to the trust instrument. Section 8 (17-2034) grants to a business trust all power and authority contained in its trust instrument, so long as not contrary to public policy and so long as the business to be transacted is such as could be done by “a private corporation for profit organized under the laws of this state.”
Section 9 (17-2035), quoted in part in the trial court’s findings, reads in full:
“Business trusts shall be subject to all applicable provisions of law, now in effect or hereinafter enacted, relating to domestic and foreign corporations, respectively, with regard to the issuance of securities, filing of required statements and reports, service of process, general grants of power to act and to sue or be sued, limitations upon individual liability of stockholders, and rights to acquire, mortgage, sell, lease, operate, and otherwise deal in or with real and personal property, except to the extent that such provisions of law are inconsistent with the specific provisions of this act.”
Section 10 (17-2036) requires annual reports. Section 11 (17-2037) provides for dissolution or withdrawal from the state. Section 12 (17-2038) is a severability clause.
From the act as a whole there appears an implicit but clear legislative purpose to regulate business trusts in a manner which parallels in almost every particular the legislative regulation of corporations; exceptions are made only where the nature of such an organization’s organic instrument requires. In particular, the laws governing foreign corporations which relate to dealings in property and the right to sue and be sued are incorporated by reference in 17-2035, except where inconsistent with the “specific provisions” of the business trust act.
We look in vain in the business trust act for any definition of what constitutes “doing business in this state,” comparable to the definition of that term for foreign corporations found in 17-7303. Hence we conclude that 17-7303 does not conflict with any “specific provision” of the business trust act, and applies to a foreign business trust. That section, of course, contains the proviso quoted above which exempts foreign corporations from registering if their business in Kansas is limited to that of the plaintiffs here.
Defendants, in their search for a “specific provision” of the business trust act which would require registration, fasten on 17-2028, the definition section. It provides:
“(a) A ‘business trust’ is an unincorporated business association of the type which at common law was known as a ‘common-law trust,’ ‘business trust,’ or ‘Massachusetts trust,’ created by a trust instrument under which property is held, managed, administered, controlled, invested, reinvested, and operated by trustees for the benefit and profit of such persons as are or may become the holders of transferable certificates evidencing beneficial interests in the trust estate, the holders of which certificates are entitled to the same limitation of personal liability extended to stockholders of private corporations for profit;
“(b) a ‘domestic’ business trust is one created under the laws of this state;
“(c) a ‘foreign’ business trust is one created under the laws of a foreign country or of a territory or state other than Kansas; and
“(d) the ‘corpus’ of any business trust is equivalent to the capital and accumulated earnings or earned surplus of a corporation.”
We are unable to see how that section helps the defendants. It defines a business trust, but it certainly does not define what constitutes “doing business in this state” by such a trust. It also describes in a general way how a business trust is operated, but it does not purport to limit its lawful activities to any particular type of business. Indeed, 17-2034 says it may do anything a corporation may do.
Their argument is that the statutory phrase “investment and reinvestment” limits a business trust to a passive use of its money, exemplified by the mortgage investment made here. If this activity does not require registration, they say, no foreign business trust will ever be required to register. We think the argument is refuted by the broad powers conferred by 17-2034, as noted above.
In addition, we think defendants take an unduly restrictive view of what constitutes the “investment” of money. Our own cases reflect Massachusetts trusts engaging in, for example, general merchandising, manufacturing, quarrying, road building, and oil production — in each of which enterprises the trust’s funds were “invested.” The list is amplified by a case relied on by defendants, Hemphill v. Orloff, 238 Mich. 508, 213 N.W. 867 (1927), aff’d 277 U.S. 537, 72 L.Ed. 978, 48 S.Ct. 577. The court was there determining whether a foreign Massachusetts trust dealing in commercial paper should be required to qualify under the Michigan statute (which contained no exemption like ours for money lenders). The court noted with some alarm that Massachusetts trusts were not limited to the type of “investment” indulged in by conventional trusts, and that it was only proper to require them to comply with restrictions imposed on corporations. Speaking fifty years ago the court observed:
“Some of the cases give us a glint of the broadened field for investment of trust funds under the modern common-law trust. We enumerate a few of the activities disclosed by the case in which such trust funds have been invested: a mail order business, Thompson v. Schmitt, [115 Tex. 53 (274 S.W. 554)]; dealing in automobiles, Palmer v. Taylor, 168 Ark. 127 (269 S.W. 996); dealing in automobile tires, State v. Gopher Tire & Rubber Co., 146 Minn. 52 (177 N.W. 937); manufacturing road material and road construction, Weber Engine Co. v. Alter, 120 Kan. 557 (245 Pac. 143); investment and construction, Reilly v. Clyne, [27 Ariz. 432 (234 Pac. 35, 40 A.L.R. 1005)]; dealing in land, Weiser Land Co. v. Bohrer, 78 Or. 202 (152 Pac. 869); ‘a syndicate,’ King v. Commonwealth, [197 Ky. 128 (246 S.W. 162, 27 A.L.R. 1159)]; State v. Cosgrove, 36 Idaho, 278 (210 Pac. 393); a toll bridge, Willey v. W. J. Hoggson Corp., [90 Fla. 343 (106 South. 408)]; and prospecting for oil, producing, refining and selling it, if found, has not been overlooked, Wagner v. Kelso, [195 Iowa, 959 (193 N.W. 1)]; State v. Summerland, 150 Minn. 266 (185 N.W. 255); Betts v. Hackathom, 159 Ark. 621 (252 S.W. 602, 31 A.L.R. 847); Hamilton v. Young, 116 Kan. 128 (225 Pac. 1045, 35 A.L.R. 496); Victor Refining Co. v. National Bank, 115 Tex. 71 (274 S.W. 561).” (238 Mich, at 524.)
All those activities, commonly carried on by individuals and corporations, were even then being carried on by Massachusetts trusts through the “investment” of trust funds. We see nothing in our act to prevent a business trust from carrying them on in Kansas, although not, of course, without registering. Hence it cannot be said that applying to a foreign business trust the same requirements and exemptions we apply to a foreign corporation in any way emasculates the business trust act, as defendants claim. There remains plenty of room for its operation.
The result is the trial court erred in requiring plaintiffs to qualify their trust before foreclosing, and its order restraining the foreclosure action must be reversed. It follows that it was not error to refuse to dismiss the action, as claimed on the cross-appeal, and that order will be affirmed.
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Harman, C.J.:
Plaintiff sued defendant railroad pursuant to the Federal Employers’ Liability Act for loss of a leg and other injuries sustained when he fell beneath the wheels of a freight car on which he was coupling air hoses. Trial to a jury resulted in a verdict for plaintiff for $450,000. Defendant appeals from a judgment rendered thereon.
Plaintiff Harry Rediker, forty-two years of age, had worked for the Rock Island Railroad as a carman and car inspector at its Herington, Kansas, yards for twenty-two years prior to his injury. On the day in question, September 10, 1973, he commenced work at 3:30 p.m. His duties included inspecting all trains for defects, conducting air tests, making light repairs and coupling air hoses between railroad cars. He was equipped with a lantern and a walkie-talkie radio which enabled him to communicate with the yardmaster, who was in charge of all train movements, and with the engineers on two switch engines operating in the yard at that time.
Plaintiff was informed of certain switching operations to be done in connection with a train (No. 02) which would arrive from the southwest during plaintiff’s shift: One switch engine would move against the front or north end of the 02 train, remove a number of cars from its front end, set them over on the No. 2 track and couple them into a string of cars already standing there; another would move against the rear of the 02 train, remove fifty cars from it, set the cars over on the No. 2 track and couple twenty cars into the south end of the cars already there.
Prior to the 02 train’s arrival, plaintiff proceeded to couple air hoses between cars in the string then standing on the No. 2 track. When the 02 train arrived, plaintiff told another car inspector he would bleed the air off the 02 train’s cars. He did not tell anyone he would be returning to the No. 2 track. After reaching the north end of the main line he started back south when he saw by means of his lantern that the air hoses between the two north cars on the No. 2 track were disconnected (this occurred sometime after plaintiff’s 8:30 p.m. lunch period). Plaintiff then stepped between the two cars to couple the hoses. As he did so the switch engine at the south end of the track shoved a string of fifty cars to couple them into the sixty cars already standing there. The resulting movement of the cars for about one to one and one-half car lengths caused plaintiff to fall under the wheels, injuring the tips of his fingers on his right hand and ultimately causing amputa tion of his right leg two inches below the knee. Further evidence will be stated in connection with the points raised.
In plaintiff’s petition, his amended petition and in the pretrial order the grounds of defendant’s negligence were stated to be: (1) Causing the cars to be moved suddenly and with unusual force, and (2) causing the cars to be moved suddenly and without warning to plaintiff. At trial upon conclusion of plaintiff’s evidence he moved the court for permission to conform his pleading to the evidence by adding a general allegation of negligence, namely, failure to furnish a safe place to work. Defendant objected and the requested amendment was denied. At the conclusion of all the evidence the trial court gave the following instruction to the jury:
“12. The plaintiff claims that he was injured and sustained damages as a result of the negligence of the defendant in one or more of the following respects:
“a. In failing to provide a safe place to work;
“b. In causing the cars to be moved suddenly and with unusual force;
“c. In causing the cars to be moved suddenly and without any warning to plaintiff.”
Defendant objected to the giving of 12a. Along with its general verdict the jury answered certain questions:
“1. Do you find from the evidence that the Chicago, Rock Island and Pacific Railroad Company was guilty of negligence which was a direct cause of the plaintiff’s injuries?
“ANSWER: Yes.
“2. If your answer to Question No. 1 is in the affirmative, state the acts or acts of negligence of which the Chicago, Rock Island and Pacific Railroad Company was guilty.
“ANSWER: 1. Not safe place to work.
“2. Engineer on switch engine was not paying attention.
“3. Safety rules were not enforced.”
Defendant-appellant’s first point on appeal is that the trial court erred in adding failure to provide a safe place to work as a general ground of negligence. The argument is that the pretrial order should have controlled and appellant was deprived of opportunity to defend against that general allegation. First, it may be observed that under controlling federal law the rule which requires a railroad to furnish its employees with a reasonably safe place to work refers not only to the physical condition of the place itself but may include negligent acts of fellow employees (Bailey v. Central Vermont Ry., 319 U.S. 350, 87 L.ed. 1444, 63 S.Ct. 1062; Griswold v. Gardner, 155 F.2d 333). Counsel for the parties may well have had this rule in mind as revealed by events and colloquy at trial. In voir dire examination appellee’s counsel stated recovery could be had “if you find it was negligent for them to move the cars while he was between them, whether they failed to furnish him a safe place to work.” In appellee’s opening statement it was said, “The evidence will show that this was an unsafe place to work.” There was no objection to either statement. Later, in argument before the court on appellee’s request to amend his petition to conform to the evidence and after appellant had objected, this colloquy occurred:
“MR. LANE: The pre-trial order was ten months ago. And, actually, what we have proved is an unsafe place to work, regardless of what we have called it. And under the F.E.L.A., it is an unsafe place to work. The cases and the statute have said this was to be freely allowed, and we have actually, in fact, proved an unsafe place to work and we have proved negligence.
“We have called this an unsafe place to work in our voir dire, in our opening statement, and counsel has said nothing about that; so, it has really gone in as an unsafe place to work.
“MR. BENNETT: He has alleged, in his allegations of negligence, that it was an unsafe place to work, in certain respects, and that is why there hasn’t been anything said about his voir dire or his own opening statement. But, certainly, we didn’t enter into this trial with any understanding we were faced with anything other than what was alleged in that pre-trial order.”
Then, after the court had submitted its proposed instructions to counsel, this occurred:
“MR. BENNETT: We would, then — going back, first, in reference to 12a., at the top of the page.
“THE COURT: All right, sir.
“MR. BENNETT: We would object to the giving of that instruction in the form in which it is presently set out, as it relates to 12a., b., and c., and the allegations of the plaintiff as to the negligence of the defendant for the reason that that does not reflect accurately the allegations of negligence which were — which are contained in the pleadings, including the pre-trial order.
“There is no separate allegation in the pre-trial order as to negligence in failing to provide a safe place to work, rather they make that allegation with specificity, and they allege in that, in the pre-trial order, in the pleadings, that the defendant was negligent in providing a safe place to work in certain specified — in a certain specified manner, and with no indication whatsoever that it occurred in any way other than in that the defendant negligently caused and permitted the cars to be moved on the tracks suddenly and with unusual force and violence.
“And it goes on, ‘and without any warning,’ in Paragraph b. It is our position that, in effect, what is done by the giving of this instruction is, in effect, opening up a whole new area of allegations, and to allow the plaintiff to argue any number of other possible acts of negligence, none of which the defendant commenced this trial with any idea that it was going to have to defend against. We came in here with the understanding that we would be defending against the two specific allegations set out in the pre-trial order, and nothing else.
“And to give the instruction, in the manner in which it does, just literally opens Pandora’s box.
“THE COURT: Well, I think, however, in looking at the act in its entirety, and with particular reference to my Instruction No. 13, and the evidence throughout the course of the trial, and particularly on plaintiff’s side of the lawsuit, the objection is noted and it is overruled, Mr. Bennett.
“MR. LYSAUGHT: Judge, not to quarrel with your ruling, maybe you misinterpreted what we mean. What we meant to say was, instead of making (a) a specific act, the way the pre-trial order was drawn, it would be that, in failing to provide a safe place to work in the following particulars — in one or more of the following particulars: (1) In causing the cars to be moved suddenly and with unusual force; and (2) in causing the cars to be moved suddenly and without any warning to the plaintiff. That is the meat of their grounds.
“Under the general law of safe place to work, they must specify what — in what manner that they didn’t give them a safe place to work. And I think that’s the only thing we are quarreling about. If that were added to that a.
“THE COURT: I understand. You are telling me the same thing he did, in different words.”
Although there is no instruction numbered 13 in the court’s instructions appearing in our printed record on appeal, an unnumbered paragraph in them immediately preceding instruction 14 (presumably the one referred to by the court) stated:
“It is the duty of a railroad to use reasonable care to provide its employees a safe place to work. The degree of care depends upon the dánger involved in the work and all the circumstances then existing.”
This instruction was never challenged.
Appellant cites in support of its position pre-modern procedural code cases which strictly limit issues to those specifically joined in the pleadings. These cases are not in harmony with present procedural codes. K.S.A. 60-215 (b) provides:
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
The thrust of appellant’s trial objection to instruction 12a. seems to have been directed towards its form, that is, that it should embrace the two grounds of negligence already pleaded and stated in the pretrial. In any event, the matter does not appear to have been of great moment to appellant at the time. In fact as a part of a long list of sequentially numbered requested instructions appellant submitted the following:
“It was the continuing duty of the defendant, as an employer, at the time and place in question, to use ordinary care under the circumstances, in furnishing the plaintiff with a reasonably safe place in which to work, and to use ordinary care under the circumstances to maintain and keep such place of work in a reasonably safe condition. This does not mean, of course, that the employer is a guarantor or insurer of the safety of the place to work. The extent of the employer’s duty is to exercise ordinary care, under the circumstances, to see that the place in which the work is to be performed is reasonably safe, under the circumstances shown by the evidence in the case.”
A litigant could well be prejudiced when a separate and distinct ground of liability is introduced for the first time in an instruction but there is no showing that was the case here. Appellant made no request to reopen its case and offer further evidence in the light of the proposed instruction. Its cross-examination of adverse witnesses was thorough. It has not demonstrated that anything untoward occurred in the oral argument or elsewhere, that is, that argument was made which went beyond the evidence and introduced matter against which appellant had no opportunity to defend or that appellant was faced with anything other than that alleged in the pretrial order. There is no indication anyone was misled or that anything came out of Pandora’s box. The trial court might well have granted appellee’s request for amendment at the conclusion of his evidence and “cleaned up” the instruction in harmony with appellant’s suggestions but we see nothing prejudicial in the failure to do either. Beyond this, as will presently be seen, it appears the verdict can properly be upheld on the jury’s answer No. 2 to special question No. 2: “Engineer on switch engine was not paying attention.”
Appellant next asserts there was no substantial evidence that it was guilty of any of the acts of negligence alleged in appellee’s petition and the jury answers acquitted it of those grounds. In nice, neat, legal language the petition alleged appellant caused the cars to be moved suddenly and with unusual force, and without warning to appellee. Under the evidence the engineer on the south switch engine was a key figure in these events. This switching crew was composed of four persons, the engineer and three switchmen, Kristek, Smith and Otte.
Appellee’s evidence showed it was not customary to move cars standing on the No. 2 track to the north under the existing circumstances and there was no warning of this particular movement; that the suddenness and force of movement of cars is dependent not only on the speed of the switching movement but on the number of cars being moved, their loads and the amount of slack between the cars. Here there were about fifty cars being shoved into a string of sixty in which the slack had been taken up and which were not to be moved again in the switching operation. Because of darkness and distances caused by the number of cars being switched, signals had to be relayed by lantern. Switchman Kristek was at the south end of the standing cars on track 2 to supervise the coupling. He gave signals to Smith, who relayed them on to Otte and the engineer. After the cars had started moving northward some distance Kristek gave an “easy” or slow signal to Smith which was relayed on (an “easy” signal means the cars are going too fast). However, the cars did not slow down as a result of which Kristek gave a stop signal and then later a “washout” or emergency stop signal (a “washout”- signal means the cars are getting too close and going too fast and the engineer will do everything in his power to stop as quickly as he can). Otte was close to the engineer to help pass signals to him. The emergency signal was seen by Otte but neither it nor the “easy” signal was seen by the engineer, according to his own testimony. The speed of the coupling movement was from one to four miles per hour. There was evidence the coupling of the two strings of cars was “hard” and a “rough joint” which moved the standing cars northward one car length or more at a time they should not have been moved. Appellee asserts all this shows the engineer was inattentive or that he ignored the signals.
In Kettler v. Phillips, 191 Kan. 486, 382 P.2d 478, this was said:
“. . . The rule of consistency, in the negligence charged in the petition and the negligence found by the jury, does not require that the same adjectivés, adverbs, or phrases be used. The rule is satisfied if the language used is reasonably synonymous.
“ \ . . [A] jury of laymen is not required to answer special questions in the precise language used by a lawyer in drafting a pleading. . . .’
“(Spencer v. Eby Construction Co., 186 Kan. 345, 350, 350 P.2d 18.” (p. 489.)
It might be added that the foregoing rule is satisfied if the answer can reasonably be construed to be included in the negligence charged.
Here it clearly appears that in part 2 of its answer the jury was fingering, in lay language, the engineer as the one responsible for the sudden, forceful and unexpected movement of cars which injured appellee. The answer that the engineer was not paying attention was fairly included in the negligence charged and it sufficiently convicted appellant of the negligence charged. There was some dispute in the evidence but that favorable to appellee adequately supported the finding.
We need not discuss to any extent part 3 of the answer which found that appellant did not enforce safety rules. Appellant introduced the issue by charging appellee violated the blue flag or blue light rule — a rule stating that a blue signal displayed at an end of a car means that a workman is under or about the car and that each class of workmen will display the blue signals. No blue signal was displayed at the time in question. Appellee responded with his own testimony and that of fellow workmen that in their years of employment with appellant they had never seen or been furnished a blue flag or light. The answer at the least was consistent with appellee’s testimony and not inconsistent with the general verdict or part 2 of the answer.
Appellant next complains of the trial court’s refusal to permit cross-examination of appellee’s actuarial witness concerning the impact of income taxation upon his computation as to the amount of appellee’s future earnings. The matter of income taxes has arisen in personal injury suits in two ways: Should future taxes be deducted from future wages in determining damages from the deprivation of future earnings, or should a jury be told the fact that an award of damages is not subject to income tax? Many jurisdictions, including our own, have dealt with the issue. The vast majority holds that a jury should not be told of this exemption, ruling either that income tax consequences cannot be considered or that cautionary instructions should not be given concerning nontaxability of the award. See Anno.: Damages — Considering Income Taxes, 63 A.L.R.2d 1393, and Later Case Service. Reasons given include:
(1) Income tax liability or saving is a matter not pertinent to the damages issue, being a matter of concern between the plaintiff and the taxing authority.
(2) The amount of income tax which might become due on one’s prospective earnings in future years is too conjectural to be considered in fixing damages.
(3) To admit income tax matter into a lawsuit for damages would be unduly complicated and confusing.
(4) If the jury were to mitigate damages by reason of income tax exemption, legislative intent to give the injured party a tax benefit would be nullified.
The matter was thoroughly explored in Spencer v. Eby Construction Co., 186 Kan. 345, 350 P.2d 18. In concluding that in a personal injury action the incidence of federal or state income taxation is not a proper factor to be considered by the jury in making an award of damages (Syl. 1) the court took into account all the reasons mentioned above. Appellant’s assertion of error cannot be sustained.
Appellant contends the trial court erred in refusing to give eight of its requested instructions. At trial appellant objected to the refusal only as to two of the requested instructions in accord with K.S.A. 60-251 (b) which provides that no person may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the ground of objection, unless the instruction is clearly erroneous. (For interpretation of this statute with regard to the refusal of requested instructions see Bott v. Wendler, 203 Kan. 212, 453 P.2d 100.) We have already dealt with one of the requested instructions which related to the grounds of negligence and have resolved the matter. The other stated the mere fact that an accident happened, standing alone, does not, unless otherwise expressly stated, permit the jury to draw the inference that the accident was caused by anyone’s negligence. Such an instruction is unnecessary when a jury is otherwise properly instructed on negligence, causation and burden of proof as was the case here.
Despite the failure to object specifically to the refusal to give the others and state the grounds therefor we have considered the refusals and conclude no error occurred. We need say only that those given, considered as a whole, adequately covered the ground — those refused were either repetitive, unnecessary, argumentative or, in the case of the one dealing with income tax impact, improper.
Finally appellant contends the verdict is excessive and results in unjust enrichment. Compensatory damages of $450,000 were awarded by the jury and approved by the trial court after denial of new trial and remittitur. The argument is primarily two-fold: First, no consideration was given to the fact appellee’s projected earnings would be reduced by federal and state income taxes — a proposition we have rejected — and, Second, that appellee’s actuarial witness used an investment figure of 5Vz% interest per annum in computing the present value of appellee’s projected earnings over his life expectancy. Appellant did elicit from the witness the fact that banks then paid up to 7% interest on long term certificates of deposit and even higher rates could be secured from building and loan associations. Thus the jury had this information before it in considering its award. Appellant did not object to any of the witness’ testimony nor did it offer any computations of its own as to appellee’s future wage loss. Appellant’s argument of excessiveness is focused largely on this item to the exclusion of other elements of damage which can only be regarded as substantial. Pain and suffering and accompanying mental anguish are ignored.
The jury was instructed in accord with PIK Civil 9.01. Appellee was entitled to recover for his disability, including lost earnings and earning capacity, past and future; for pain and suffering and accompanying mental anguish, past and future; and for medical expenses, past and future, a subject on which the record is mostly silent. There was evidence appellee had lost $30,000 in wages at the time of trial. He can no longer perform his railroad job or other manual labor and has commenced rehabilitation training. Taking into account rising consumer prices and wage scales his reasonable loss of wages was shown to be over $500,000. He endured great pain when his leg was crushed beneath the car wheel. The tips of his fingers on the right hand were crushed. He underwent surgery to amputate his right leg just below the knee. After this, he had much pain in his stump. He underwent a second operation because of gangrene in his stump. It became necessary to make a skin graft. His right thigh shrank. He received a prosthesis which was painful to use. The seven pound prosthesis is held on by a strap around his waist which causes constant back pain. It is necessary for him to remove the prosthesis during the day and rest. He has a constant feeling of tingling or electrical shock in his stump. He cannot enjoy recreational activities as before his injury. His injured fingers are always cold and tender and he is unable to pick up small objects with his right hand.
A specialist in orthopedic surgery who treated appellee testified appellee is at a disadvantage because of the shortness of his stump, the optimum stump length being five and one-half inches; that he had a bad amputation for fitting an artificial leg; “it is rubbing wrong” and the stump will not last through appellee’s life expectancy; that x-rays show changes in the knee joint and the bones have softened; appellee would probably be better off with an amputation through the thigh; appellee’s right leg condition is painful and the pain is permanent.
In Domann v. Pence, 183 Kan. 135, 325 P.2d 321, this was said:
“. . . [Tjhere is of course no uniformity in our decisions on the proposition of when damages allowed in a personal injury action are excessive for the simple reason determination of the question necessarily depends upon the facts and circumstances of each particular case as it is presented for review. . . . No verdict is right which more than compensates — and none is right which fails to compensate. . . . Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.” (p. 141.)
In Riggs v. Missouri-Kansas-Texas Rld. Co., 211 Kan. 795, 508 P.2d 850, the court-stated:
“. . . In order for a judgment to be set aside on the grounds of an excessive verdict, it must appear that the amount of the verdict is so grossly excessive as to shock the conscience of the court.” (p. 802.)
The verdict was not itemized so it represented all elements of damage allowable to appellee. We have no way of knowing how much was apportioned for the various items. At time of trial appellee had a life expectancy of twenty-seven years. His injury was grievous and his pain was shown to be of a permanent nature. Everything considered, particularly the difficulty of measuring pain and suffering in monetary terms, the amount seems to be within the bounds of reason and is not such as to be shocking to the court.
The judgment is affirmed. | [
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Harman, C.J.:
In trial to the court defendant Lawrence D. Becker was convicted of aggravated assault on a law enforcement officer. He appeals from the judgment and sentence imposed.
As a result of a high speed chase which occurred in McPherson about 11 p.m., June 9, 1976, defendant Becker was first charged with seventeen misdemeanor counts in the county court of McPherson county. When he requested jury trial these charges were dismissed and on the same date, July 6, 1976, fifteen of the counts were refiled in district court, the case being No. 1342. Count XII of case No. 1342 charged that defendant “drove a motor vehicle on the left half of a roadway, to-wit: First Street between Baer Street and Centennial Drive in the City of McPherson. . .
On July 12, 1976, defendant was arrested on a charge of aggravated assault on a law enforcement officer, which charge subsequently became case No. 1347 in district court. A bill of particulars reveals this charge was based on the incident which was the basis of count XII in case No. 1342 — driving left of center. The prosecution’s evidence in the record discloses that as defendant drove in excess of eighty miles per hour east along the roadway with a deputy sheriff pursuing him, he encountered a highway patrolman in a patrol car, with flashing lights, approaching from the east in defendant’s left lane; when defendant was about 200 feet to one-fourth mile from the approaching patrol car he drove left of center and forced the approaching patrol car almost completely off the roadway. Defendant testified that he did not drive on the left half of the highway immediately before approaching the patrol car and had no intent to harm the officer.
On December 21, 1976, defendant pleaded guilty to a number of counts in case No. 1342, including the driving left of center charge in count XII. He refused to plead guilty to some of them, including one of drunken driving.
On March 1, 1977, in trial to the court, defendant was found guilty of aggravated assault on a law enforcement officer in the case at bar (district court No. 1347) and was subsequently sentenced for that offense and for the driving left of center offense as well. This appeal is from the aggravated assault conviction.
Of defendant’s several points raised on appeal, we consider first his contention of double or former jeopardy. He asserts that by reason of the prior conviction of the driving left of center charge, he could not again be placed on trial on a charge based on the same conduct. We agree.
Broadly speaking, the fifth amendment to the federal constitution and section 10 of the Kansas Bill of Rights are designed to protect the individual from trial more than once for the same offense. This safeguard was intended to prevent harassment and oppression of the individual by government. The doctrine of double jeopardy generally is now codified in Kansas. For present purposes we need notice only K.S.A. 21-3108(2)(a) [since amended] which provided:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
“(a) . . . was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution. . . .” (emphasis supplied)
The following has been said respecting this provision:
. . A common test of the application of double jeopardy is the substantial identity of the former and subsequent offenses, and this is ordinarily measured by the character and effect of the evidence in each case. If the evidence which will support a conviction in the subsequent prosecution would have supported a conviction of the crime charged or an included offense in the former prosecution, then the second prosecution is substantially identical to the former and a conviction or acquittal in the former is a bar. Thus, one cannot be twice prosecuted for crimes involving the same conduct, unless in each prosecution facts must be proven which are not necessary to the other prosecution.” Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J. 179, 185 (1970). (emphasis supplied)
The foregoing fairly summarizes the quoted portion of our statute. See Jarrell v. State, 212 Kan. 171, 510 P.2d 127, and State v. Pierce, et al., 205 Kan. 433, 469 P.2d 308.
In the case at bar exactly the same conduct was the basis of two separate prosecutions. In the assault charge, the driving left of center was the threat or attempt to do bodily harm — the overt act under the particular circumstances. According to the state’s evidence, we do not have a situation where early in the chase and prior to the commission of the alleged assault the defendant drove his vehicle on the left half of the highway. Proof of the assault charge would have supported and included the traffic charge. Nothing was needed to be proven in the traffic count which was not necessary in the felony charge. The evidence in the latter would have supported conviction of the former. Thus, defendant could not be convicted of both charges and the latter prosecution must be voided.
Some jurisdictions have chosen to rule that prosecution of a motorist for one of several offenses arising out of one transaction in connection with the use of the motor vehicle is generally no bar to prosecution for another in the absence of statutes providing otherwise (see 22 C.J.S. Criminal Law, § 295[2]). Our statutes hold otherwise and in the instant case application of the identity test seems fair and just. As indicated, the former jeopardy provisions are designed to prevent governmental harassment and oppression. Also, traditionally, traffic offenses have been tried summarily and informally in police court where no lawyer is present, the magistrate may be an untrained lay person and punishments are minor (see State v. Currie, 41 N J. 531, 197 A.2d 678). Here the county attorney personally filed the misdemeanor charges in district court after defendant requested a jury trial in magistrate court. A fine of $250 was imposed upon his pleas of guilty. Then the felony charge was filed and prosecuted only after defendant refused to plead guilty to all the misdemeanor charges and serve a jail sentence. Defendant refused to plead guilty to a charge of driving while under the influence of intoxicating liquor because, among other things, his blood alcohol test was .09 percent and presumptively he was not guilty (K.S.A. 8-1005[a]).
The judgment is reversed. | [
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Spencer, J.:
This action was brought to determine whether appellee’s insured, Stanley Pfannenstiel, as a second permittee, was a permissive user under the omnibus clause of an automobile liability insurance policy issued to Clarence J. Rohr by appellant.
No substantial dispute exists as to the facts of this case, which were found by the trial court to be as follows:
“ . . . On July 14, 1972, Gary L. Rohr, a fifteen-year-old boy with a restricted driver’s license, and his father, Clarence J. Rohr, purchased a 1965 Mustang. The car was to be Gary’s car for use in going to and from school and most of the money for the purchase price came from Gary’s savings. Title was taken in the name of both Gary Rohr and Clarence Rohr and Clarence Rohr provided the insurance with the defendant herein, Continental Insurance Company.
"That evening Gary Rohr was given permission by his father, Clarence Rohr, to drive the car from the Rohr farm home to the nearby Younger farm to show the car to the Younger boys who were friends of Gary’s. According to the testimony of both Gary Rohr and Clarence Rohr, Gary was instructed by his father, Clarence, not to go further than the Younger farm, not to take the car on a paved highway, and in no event to allow any other person to drive the automobile.
“Gary drove the car to the Younger farm home, but found the Youngers not at home, and disregarding his father’s instructions, drove on to Munjor to show his car to his friend Stanley Pfannenstiel. Stanley Pfannenstiel and Gary Rohr then decided to drive the car to Hays, Kansas. They drove north out of Munjor until they reached the blacktop of U.S. Highway 40. At this point they switched drivers, with Stanley Pfannenstiel becoming the driver of Gary’s new car, Out of concern for a violation of the restrictions on Gary’s restricted driver’s license if he drove into the city of'Hays. Stanley Pfannenstiel was older and had a regular, unrestricted driver’s license.
“It is not entirely clear which boy suggested the switch. On one prior occasion, when his parents were out of town, Gary permitted Stanley to drive his father’s pick-up and Gary had gotten in some trouble with his father over this. Stanley Pfannenstiel knew of the trouble.
“After the boys turned west and proceeded on old Highway 40 towards Hays, they had an accident with a motorcycle driven by Larry Morris causing substantial personal injury to Larry Morris. Morris filed a lawsuit against Stanley Pfannenstiel, Gary and Mr. Rohr which resulted in a $100,000.00 settlement paid by U.S.F.&G., plaintiff herein, who had insurance coverage on Stanley Pfannenstiel. U.S.F.&G., plaintiff herein, had demanded that Continental, defendant herein, assume the defense, which was refused. The settlement, however, preserved the rights of U.S.F.&G. to bring this action against Continental to resolve the coverage questions.”
The trial court found that Stanley Pfannenstiel had implied permission from Mr. Rohr to drive the car at the time of the accident and that appellant’s policy provided liability coverage to Stanley Pfannenstiel. The court further found that appellant was primarily liable in the action which had been brought by Morris for his personal injuries (which had been settled), and appellant was ordered to pay appellee $25,000 as the full coverage provided by its policy with the Rohrs, together with interest and costs.
Appellant contends as error the finding of the trial court that Stanley Pfannenstiel had implied permission from Mr. Rohr to drive the car at the time of the accident.
The matter was presented to the trial court on written and documentary evidence. Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses and this court has as good an opportunity to examine and consider the evidence as did the trial court, and to determine de novo what the facts establish. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, Syl. 4, 545 P.2d 399.
The omnibus clause of the policy under consideration provided:
“PERSONS INSURED
“(2) any other person using such automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission . . . .”
For reasons of public policy, the omnibus clause of an automobile liability insurance policy is to be liberally construed. Alliance Mutual Cas. Co. v. Hartford Accident & Indemnity Co., 210 Kan. 769, Syl. 2, 504 P.2d 161. The permission referred to in the omnibus clause of such a policy may be either express or implied and, under certain circumstances, implied permission for a second permittee may be found, even though the named insured has expressly prohibited the first permittee from allowing anyone else to operate the car. Gangel v. Benson, 215 Kan. 118, 523 P.2d 330. Factors justifying an implication of consent in the face of a restriction on others to use the car were set out in Gangel by quoting from Gillen v. Globe Indemnity Company, 377 F.2d 328 (8th Cir. 1967), as follows:
“ ‘Perhaps as a consequence of the harshness of [the strict rule denying coverage] many courts, when given the opportunity, have been able to discover an implied consent from the named insured even in the face of express prohibitions against the loaning of the insured automobile. If the first permittee is actually in the car, or the car is being used for the benefit of the first permittee or of the named insured, or if the first permittee has an equivalent of equitable title and has unfettered control over the daily usé of the car outside of the surveillance of the named insured, or if the named insured is aware of past violations of instructions but allows the permittee to retain possession, or when an emergency arises, regardless of the express prohibitions against third party use, many courts will imply a consent on the part of the named insured for the third party’s use . . . .’ ” (215 Kan. at 124-125.)
The court in Gangel went on to state that the Gillen “compendium of factors which might justify permission by implication vis-a-vis a contrary prohibition is comprehensive . . . .” The court then analyzed the facts of that case in relation to the factors enumerated in Gillen and found none of those factors present. Thus, coverage was denied.
In Jones v. Smith, 1 Kan. App. 2d 331, 564 P.2d 574, rev. den’d, 221 Kan. 756,_P.2d_, this court considered the question of implied permission under an omnibus clause. After an analysis of the facts there present in relation to the Gillen-Gangel factors, implied permission and coverage were found to exist.
In this case, the trial court made the following findings in reference to the Gillen-Gangel factors:
“On the facts of this case, some of these factors apply and some do not. First of all, Gary Rohr, the first permittee, was actually in the car and it is equally obvious that the drive to Hays and the switch in drivers because of Gary’s restricted driver’s license was for the benefit of first permittee, Gary. Although Gary’s payment of a substantial part of the purchase price, together with his joint name on the title indicates that he probably has the equivalent of equitable title, it is also clear that his father was going to exercise control over his daily use of the car. There was one prior violation concerning the pick-up but not, of course, relating to the new Mustang. Obviously, there is no emergency.”
We agree with this analysis and appellant does not appear to challenge it. Appellant argues however that, apart from the Gillen-Gangel factors, “general” knowledge by the second permittee of the named insured’s prohibition should as a matter of law prevent a finding of implied permission. Appellant points to the deposition of Stanley Pfannenstiel, the second permittee, in which he stated that although he did not know that Mr. Rohr had told Gary not to allow anyone else to drive the car, he was aware of the fact that Gary had previously been in trouble for permitting Stanley to drive the Rohr family pickup truck.
It is arguable that actual knowledge by the second permittee of restrictions placed on his or her use of an automobile by the named insured would ordinarily be sufficient to negate a finding of implied consent, but the record here reveals that Stanley had no such actual knowledge. As to Stanley’s general knowledge of Mr. Rohr’s restriction, it is to be remembered that Gary was not driving the family pickup but a new vehicle, in effect Gary’s “own” car. It may reasonably be assumed that Stanley, even though he knew that he should not drive one of Gary’s parents’ vehicles, might see nothing contrary to this restriction in driving Gary’s “own” car. Stanley’s “general” knowledge of Mr. Rohr’s restrictions in this instance does not prevent a finding of implied consent where one or more of the Gillen-Gangel factors are found to exist.
It is also argued that any benefit derived from the use of the car must be for the named insured and not just for the first permittee. The language of Gillen and Gangel is clear in that the car need only be “used for the benefit of the first permittee or of the named insured . . . .” (215 Kan. at 124-125; emphasis added.) The better view appears to be that benefit to the first permittee alone is sufficient. See St. Paul Fire and Marine Insurance Company v. Dean, 308 F. Supp. 1378 (W.D. Ark. 1970); 7 Am. Jur. 2d, Automobile Insurance § 117, pp. 435-436.
Judgment affirmed. | [
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Pierron, J.:
Richard Dale Shadden appeals his conviction and sentence for driving under the influence of alcohol (DUI). Shad- den challenges several rulings by the district court and alleges prosecutorial misconduct. We find the admission of the testimony by an arresting officer that there was a 68% likelihood that Shadden was under the influence to an unlawful degree was scientific opinion that was not properly supported by expert testimony. We reverse and remand with directions.
On December 27, 2005, Officers Nick Weiler and Shannon Goodnight received a citizen complaint. Following the directions and descriptions of the reporting citizens, the officers located a truck loaded with pallets in the Town Center parking lot in Merriam, Kansas. As the officers observed the truck, the driver went through a stop sign, causing another vehicle to stop quickly to avoid an accident. The officers pulled behind the truck as it waited for a signal light at Antioch Road and activated the emergency lights after the truck had passed through the intersection. The truck turned onto a side street and stopped in the middle of the lane of traffic close to the intersection. The officers pulled up directly behind the truck.
Weiler approached the driver, later identified as Shadden, and asked for his driver s license and proof of insurance. Shadden was unable to provide a license or proof of insurance, but he provided the automobile registration. Weiler detected a strong odor of alcohol from Shadden and requested Shadden to step out of the vehicle. The smell of alcohol persisted after Shadden emerged from the vehicle. Shadden slurred some of his words and had difficulty communicating, frequently pausing and asking Weiler to repeat his questions. Shadden’s eyes were bloodshot and watery and his face appeared flushed.
Weiler asked Shadden to perform some field sobriety tests and directed him to the rear of the truck. Shadden swayed as he walked. Because Weiler was required to pull his car close to the truck, the space between the vehicles did not accommodate the tests. Therefore, Weiler conducted the tests next to the vehicles, and the patrol car’s video camera was unable to record Shadden’s performance.
Weiler requested that Shadden perform the walk-and-tum test, and, after Weiler instructed Shadden and demonstrated the test, Shadden attempted to perform the test. Because the street pro vided no actual line, Weiler advised Shadden to imagine a line for purposes of the field sobriety test. Based on standards promulgated by die National Highway Traffic Safety Administration (NHTSA), Weber was trained to look for eight possible clues of intoxication based upon an individual’s performance of the walk-and-tum test. If an individual demonstrates two or more clues, the individual is deemed to have failed the test.
As Shadden performed the test, Weiler noted that Shadden failed to maintain balance during the instructions and began the test before Weiler had instructed him to begin. During the first nine steps, Shadden stopped once, stepped sideways once, raised his arms twice, and fabed to place the heel of one foot against the toe of the other foot on four occasions. When turning, Shadden stepped outside the acceptable range of motion. On the final nine steps, Shadden stopped twice, stepped sideways twice, raised his arms five times, and failed to place his heel against his toe five times. Because of these errors, Weiler claimed he identified all eight clues of intoxication.
Weber had planned to conduct the one-leg stand test, but, because of the grade of the street, he opted not to conduct this test. Goodnight then conducted three nonstandardized sobriety tests: the alphabet test, a counting test, and the finger-to-nose test. Shad-den was unable to recite the alphabet from A to Z without mistake. Shadden counted to 15 correctly but repeated a few numbers when counting back down to 1. In six attempts, Shadden fabed to touch his nose correctly during the finger-to-nose test.
Weber arrested Shadden for DUI. At the police station, Weber provided Shadden with the implied consent advisory form (DC-27), which included a warning that a test refusal may be used against the individual in a trial for DUI. Weiler then requested that Shadden submit to a breath test on the Intoxilyzer 5000. Shadden refused the test. Weiler read Shadden his Miranda warnings, and Shadden waived his rights and spoke with Weiler. Weiler asked how much Shadden had to drink that evening, and Shadden not only informed Weber he had consumed 3-4 beers, he also stated he had smoked marijuana.
The State charged Shadden with operating or attempting to operate a vehicle while under the influence of alcohol to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2005 Supp. 8-1567(a)(3). Following a 2-day trial, a jury found Shadden guilty of DUI. For purposes of sentencing, the district court found that Shadden had three prior DUI convictions. The court imposed a sentence of 1 year in jail and a fine of $2,500. The court also imposed court costs, BIDS attorney fees, and a requirement of 12 months of substance abuse treatment upon release from jail.
Prior to trial, Shadden filed a motion in limine seeking to exclude any testimony referring to the field sobriety exercises as “tests,” indicating that he had failed such exercises, or lending scientific credibility to the results of the exercises. At the hearing regarding the motion, the district court denied the request without much discussion. On appeal, Shadden contends the court’s ruling on this issue was erroneous.
Appellate review of a district court’s decision concerning a motion in limine has traditionally been limited to determining whether judicial discretion has been abused. State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183 (2006). However, since a motion in limine involves the admission or exclusion of evidence, our review of the district court’s exercise of discretion must necessarily be framed by our standard of review regarding the admission of evidence.
When reviewing a district court’s decision to admit or exclude evidence, an appellate court first determines whether the evidence is relevant. Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). An appellate court has unlimited review over questions of the materiality of evidence, but a district court’s decision regarding the probative value of the evidence is reviewed for an abuse of discretion. State v. Reid, 286 Kan. 494, 503-09, 186 P.3d 713 (2008). Once relevance is established, appellate review regarding an evidentiary ruling depends upon die contours of the evidentiary rules governing admission and exclusion of evidence. When the legal basis for the admission or exclusion of evidence is challenged, an appellate court possesses unlimited review. See 286 Kan. at 503. Even if evidence is admissible under the pertinent evidentiary rules, a district court must determine whether the evidence is unduly prejudicial, a determination that is subject to the abuse of discretion standard of review. 286 Kan. at 512.
Shadden does not challenge the relevance of the field sobriety tests administered in this case. Clearly, a drivers performance on tests designed to gauge sobriety are relevant to determining whether the driver was capable of safely driving a vehicle. Shadden concedes that officer testimony related to his performance on the tests was admissible; however, he argues that testimony regarding the results of the tests, i.e., whether he passed or failed the tests, or reference to the tests, was unfairly prejudicial.
As the State notes, Kansas courts have consistently referred to field sobriety exercises as “tests” and have described an individual’s performances on such tests as “passing” or “failing.” See, e.g., State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 (2007) (finding DUI conviction was supported by evidence that defendant “was unable to satisfactorily complete the field sobriety tests”); Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 765, 148 P.3d 538 (2006) (noting that Bruch technically passed the field sobriety tests); State v. Martinez, 268 Kan. 21, 24, 988 P.2d 735 (1999) (discussing Martinez’ failure on the field sobriety tests); State v. Neuman, 266 Kan. 319, 320, 970 P.2d 988 (1998) (“Field sobriety tests were administered and defendant failed the tests. He also failed a breath test.”); City of Dodge City v. Norton, 262 Kan. 199, 204-05, 936 P.2d 1356 (1997) (discussing the validity of a field sobriety test as a clue to physical impairment); State v. Shaw, 37 Kan. App. 2d 485, 487, 154 P.3d 524, rev. denied 284 Kan. 950 (2007) (summarizing officer’s testimony that Shaw failed the walk-and-tum test by exhibiting four of eight clues); City of Dodge City v. Ingram, 33 Kan. App. 2d 829, 831, 109 P.3d 1272 (2005) (discussing Ingram’s failure on the alphabet test, the walk-and-tum test, and the one-legged balance test).
However, none of the cited cases specifically addressed the issue raised by Shadden in this appeal. Shadden’s argument rests pri marily upon a decision by a Florida District Court of Appeal, State v. Meador, 674 So. 2d 826 (Fla. Dist. App. 1996).
In Meador, the State appealed the suppression of all evidence related to Meadors performance of field sobriety tests. The Meador court initially distinguished between psychomotor field sobriety tests, which involved observations of a driver s attempts to perform certain tasks, and horizontal gaze nystagmus (HGN) tests, which involved observations of a physiological phenomenon associated with intoxication. We note below that Kansas does not allow the introduction of the HGN test results to prove intoxication. Citing State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992), with approval, the Meador court noted that the HGN test required expert testimony to establish its probative value because an officer could relate his or her observations about a driver s physiological condition but the correlation between the condition and alcohol impairment is premised upon scientific principles. 674 So. 2d at 834. In contrast, the correlation between a driver’s inability to perform psychomotor field sobriety tests and that driver’s inability to operate safely a motor vehicle is within the average juror’s common experiences and understanding. 674 So. 2d at 831. Therefore, while expert testimony that satisfies the standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), must be admitted to establish a driver’s performance of the HGN test, lay testimony is satisfactory for psychomotor field sobriety tests.
However, the Meador court limited the admissibility of psycho-motor field sobriety tests to the officer’s observations of the driver’s performance during the tests.
“While the psychomotor tests are admissible, we agree with defendants that any attempt to attach significance to defendants’ performance on these exercises beyond that attributable to any of the other observations of a defendant’s conduct at the time of the arrest could be misleading to the jury and thus tip the scales so that the danger of unfair prejudice would outweigh its probative value. The likelihood of unfair prejudice does not outweigh the probative value as long as the witnesses simply describe their observations. [Citation omitted.]
“Reference to the exercises by using terms such as ‘test,’ ‘pass,’ ‘fail,’ or ‘points,’ however, creates a potential for enhancing the significance of the observations in relationship to the ultimate determination of impairment, as such terms give these layperson observations an aura of scientific validity. [Citations omitted.] There fore, such terms should be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment.” 674 So. 2d at 832-33.
Though the Meador decision implies that the use of “test,” “pass,” “fail,” or “points” with reference to field sobriety tests causes prejudice to a criminal defendant, the context of the court’s reasoning suggests that the prejudice lies not in semantics but in any purported scientific or mathematical correlation between a driver’s performance during field sobriety tests and a certain level of intoxication. See United States v. Horn, 185 F. Supp. 2d 530, 558-60 (D. Md. 2002) (adopting the Meador reasoning to limit the type of testimony concerning a driver’s performance on a field sobriety test the State may elicit because it lends undeserved scientific credibility to an officer’s testimony).
The issue raised by Shadden and addressed by the Florida court is one of first impression in this jurisdiction. Extensive research has revealed only three Kansas cases involving the admissibility of field sobriety tests: State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998); State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); and State v. McHenry, No. 93,872, unpublished opinion filed June 30, 2006. Although none of the cases directly address the issue presented in this appeal, two of the cases provide some guidance about the manner in which Kansas courts have previously addressed challenges to testimony by officers who have conducted field sobriety tests.
In Witte, the Kansas Supreme Court provided an extensive analysis of the positions other jurisdictions had taken with respect to the admission of HGN test results. The court first considered whether the HGN test results involved scientific evidence requiring expert testimony that qualified under Frye. Witte, 251 Kan. at 318-22. The Witte court summarized the reasons other jurisdictions had concluded that the HGN test was scientific in nature in the following manner:
“These courts have given various reasons for holding that HGN evidence is scientific in nature: The HGN test is distinguished from other field sobriety tests in that science, rather than common knowledge, provides the legitimacy for HGN testing. [Citations omitted.] Certain reactions to alcohol are so common that judicial notice will be taken of them; however, HGN testing does not fall into tins category. [Citation omitted.] HGN test results are ‘scientific evidence based on the scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test.’ [Citation omitted.] HGN evidence could have a disproportionate impact on the jury’s decision making process because of the test’s scientific nature and because the jury may not understand the nature of the test or the methodology of its procedure. [Citations omitted.]” 251 Kan. at 321.
The court then concluded:
“Alcohol’s effect on a person’s sense of balance is common knowledge. The same cannot be said for HGN. The HGN test is based upon scientific principles and exceeds common knowledge. We hold that the HGN test results are scientific evidence. As such, the Frye foundation requirements for admissibility must be satisfied.” 251 Kan. at 322.
After reviewing cases from multiple jurisdictions that have considered the admissibility of the HGN test, the Witte court ultimately concluded that the test results were not rehable enough to meet the requirements of Frye. Witte, 251 Kan. at 329-30. While Witte did not address the admissibility of other field sobriety tests, the decision implies that the results of field sobriety tests based upon common knowledge of the effects of alcohol, such as poor balance, would be admissible irrespective of Frye.
In McHenry, a panel of this court considered whether the 12-step drug recognition examiner (DRE) protocol required demonstration of reliability under Frye. The McHenry court specifically noted that the district court restricted the arresting officer s testimony to discussions of the kinds of symptoms different drugs produce and the symptoms the officer observed in McHenry. In rejecting McHenry’s argument that the officer’s testimony implied scientific evidence that was not demonstrably reliable under Frye, this court quoted Williams v. State, 710 So. 2d 24 (Fla. Dist. App. 1998), at length. In essence, the McHenry court concluded that the testimony of the officer who conducted the DRE protocol was admissible outside of Frye because the testimony related to physiological conditions within the common knowledge of the jurors.
“ ‘Police officers and lay witnesses have long been permitted to testify as to their observations of a defendant’s acts, conduct, and appearance, and also to give an opinion on tire defendant’s state of impairment based on those observations. [Citations omitted.] Objective observations based on observable signs and condi tions are not classified as “scientific” and thus constitute admissible testimony.’ ” McHenry, slip op. at 17 (quoting Williams, 710 So. 2d at 28-29).
Implicit in Witte and McHenry is the prohibition against the admission of evidence regarding field sobriety tests diat is beyond the common knowledge of lay persons, unless the evidence is shown to be reliable under Frye. In other jurisdictions, this prohibition has extended to the use for which field sobriety test results are admitted. Most jurisdictions that have considered the question have admitted field sobriety test results as circumstantial evidence of intoxication but have prohibited the use of such results to assert or imply a specific level of intoxication. See, e.g., Ballard v. State, 955 P.2d 931, 940 (Alaska App. 1998), overruled on other grounds State v. Coon, 974 P.2d 386 (Alaska 1999) (concluding that HGN test results are admissible as circumstantial evidence of intoxication but inadmissible to establish a particular blood-alcohol concentration [BAC] level); State v. Campoy, 214 Ariz. 132, n134-35, 149 P.3d 756 (Ariz. App. 2006) (same); People v. Rose, 268 Ill. App. 3d 174, 181, 643 N.E.2d 865 (1994) (distinguishing between the admission of field sobriety test results and preliminary breath test results because the breath test registered body chemistry rather than recording behavioral characteristics); Schmidt v. State, 816 N.E.2d 925, 946 (Ind. App. 2004) (suggesting that admission of evidence regarding statistical probability that an individual who failed a field sobriety test would have a BAC over .10 is improper in the State’s case-in-chief); Wilson v. State, 124 Md. App. 543, 553, 723 A.2d 494 (1999) (permitting testimony regarding HGN test results but finding error when testimony included an opinion that Wilson was at or above .10 BAC); State v. Rose, 86 S.W.3d 90, 100 (Mo. App. 2002) (allowing evidence of HGN test results as circumstantial evidence of intoxication but not as evidence of a specific BAC level); State v. Baue, 258 Neb. 968, 985-87, 607 N.W.2d 191 (2000) (same); State v. Dahood, 148 N.H. 723, 734, 814 A.2d 159 (2002) (same); Brewer v. Ziegler, 743 N.W.2d 391, 400 (N.D. 2007) (admitting evidence of HGN test results as circumstantial evidence of intoxication but not as evidence of a specific BAC level); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993) (same); Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim.), cert. denied 513 U.S. 931 (1994) (same).
Nevertheless, not all courts have limited testimony regarding field sobriety tests as far as the Meador and Horn courts. In Campoy, the State appealed a district court’s decision to prohibit the arresting officer from referring to “ ‘sobriety,’ ” “ ‘test,’ ” “ ‘field sobriety test,’ ’’ “ ‘impairment,’ ” “ ‘pass,’ ” “ ‘fail,’ ” or “ ‘marginal’ ” in describing the driver’s performance on field sobriety tests because such language added unwarranted scientific credibility to the State’s evidence. 214 Ariz. at 134.
Reversing the district court, the Campoy court first noted that the results of field sobriety tests (FSTs) are admissible as evidence of a criminal defendant’s general impairment but not admissible to establish a specific level of blood-alcohol concentration (BAC). 214 Ariz. at 134-35.
“Within this framework of admissibility, we find no support for the restrictions the respondent judge [Hector Campoy] imposed. Rather, it is clear Arizona law permits testimony about a defendant’s performance on FSTs as long as no correlation is made between performance and BAC and no scientific validity is assigned to the tests themselves as accurate measures of BAC. FST performance has repeatedly been found to be relevant evidence of a defendant’s impairment; thus, we disagree with the respondent’s implicit conclusion to the contrary. [Citations omitted.]
“Moreover, the words the respondent precluded are pervasive throughout the case law concerning FSTs and have not been found, or even suggested to be, inadmissible. The danger our courts have attempted to guard against is using FST performance to estimate or quantify a specific BAC or level of impairment for prosecutions ... in which the state must prove the defendant had a specific BAC. That danger is much attenuated in prosecutions . . . where the state need only prove impairment to the slightest degree — though we realize BAC is relevant to such prosecutions and reiterate FST performance is inadmissible to quantify BAC in all [DUI] prosecutions ....
“The respondent judge ordered the restrictions based on his finding there is no scientific correlation between impairment and performance on FSTs, a finding in turn based on expert testimony that several factors other than alcohol impairment can lead to a cue of impairment on an FST. Our supreme court has indicated, however, that expert testimony goes to the weight to be given FST evidence, not its admissibility or relevance at trial. [Citation omitted.] Furthermore, although we generally defer to a respondent judge’s factual findings, the respondent’s conclusion here is not supported by the evidence. [Citation omitted.] The mere self-evident fact that circumstances other than alcohol impairment can be responsible for cues of impairment on FSTs does not establish that such tests are necessarily uncorrelated with impairment. Indeed, our courts have repeatedly found FSTs are tests of impairment, albeit not definitive indicators of such, and police officers should be permitted to testify accordingly. [Citations omitted.] And the words at issue in this case do not in themselves suggest a scientific basis for the tests or lend the tests unwarranted scientific credibility. Rather, they make plain the tests’ purpose as indicators of impairment and enable the state to demonstrate their probative value. Testimony that a defendant exhibited ‘four cues of impairment’ on a ‘field sobriety test’ does not improperly assert or imply the defendant has been scientifically proven to have been impaired. Rather, such testimony constitutes relevant evidence of a defendant’s impairment, which jurors may consider and balance against evidence of the tests’ limitations.
“Thus, the proper method for challenging FST deficiencies is testimony, such as that of [defendant] Cordova’s expert at the pretrial hearing, calling these deficiencies to the attention of the juiy and presenting evidence that cues of impairment were caused by something other than alcohol impairment. If, during trial, Cordova believes the state has attempted to assign unwarranted scientific credibility to the tests, e.g., the state has used their results to establish a specific BAC or as a definitive indicator of impairment, Cordova can object at that time. The respondent judge would then have the appropriate context in which to determine whether the state had improperly used the FST performance evidence.
“Additionally, permitting restrictions on vocabulary in DUI cases such as the respondent imposed here would open the door to creative wordsmithing and invite perpetual and unnecessary litigation. A considerable amount of time could be spent determining which words accurately describe FSTs and portray FST performance. Would a law enforcement officer be permitted to testify he or she had administered a ‘field incapacitation examination’? And that the officer had detected two cues of ‘deficient performance’? Without use of certain words, testimony could take an unnatural tone as witnesses attempt to sidestep prohibited terms. Such restrictions would place an unnecessary burden on both parties and would be transparent to the jury. [Citation omitted.]” 214 Ariz. at 135-36.
The reasoning of the Arizona court seems more persuasive than that of the Meador and Horn courts. The danger inherent in officer testimony that establishes a correlation between a driver s performance during a given field sobriety test and a specific level of intoxication is the possibility that the jury will give the test results undeserved weight as “scientific evidence” when the reliability of the test results has not been established under Frye. While a lack of balance and glassy eyes are commonly known indicators of intoxication, the correlation between test performance and a specific level of intoxication is not within the common knowledge of the average layperson.
In contrast, where officer testimony does not link test performance with a specific level of intoxication, the mere use of the term “test” or an indication by the officer that the defendant failed to perform the tests adequately and, therefore, “failed” the test does not lend scientific credibility to the test results. There is only a semantic difference between “field sobriety test” and “field sobriety exercise” or between “failing a test” and “being unable to perform an exercise adequately.” An officer must be permitted to relate the activities a suspected drunk driver was asked to perform and to indicate that certain deficiencies in the performance of these activities indicated that the driver was intoxicated. A juror is not likely to mistake the purpose of a driver standing in the street on one foot while counting to 30 or walking heel-to-toe for 18 steps on a straight line after being stopped by a law enforcement officer. To this end, it is appropriate for the officer to testify that field sobriety tests were administered and that, based upon tire officer s training and experience, tire driver failed those tests. It is impermissible to take the additional step of equating a level of certainty or probability to the officers opinion or to correlate a driver s performance with a specific BAC level.
In the present case, Officer Weiler s testimony went beyond an indication that Shadden attempted to perform certain field sobriety tests and demonstrated multiple clues of intoxication. Weiler also testified that, according to NHTSA standards, a driver who exhibits two clues during the walk-and-turn test has a 68% likelihood of having at least a .10 BAC. Weiler clearly was not qualified to testify about the reliability of the NHTSA standards, and no expert testimony was provided to qualify the NHTSA standards under Frye. Therefore, Shadden had no effective means of cross-examining the reliability of the NHTSA standards because Weiler was merely relating information promulgated by the NHTSA. The result is the officer s opinion that the criminal defendant is intoxicated is given an undeserved scientific credibility.
“Although [die officer] did not specifically state an opinion tiiat [die defendant’s] BAC would have registered at or above .10%, his testimony created a re markable inference that such was the case, and we find that the admission of such testimony was an abuse of discretion. A BAC of .10% is not a prerequisite to convicting for DWI. [Citation omitted.] In fact, a jury is still free to conclude that a driver is intoxicated even if the driver’s BAC is shown to be less than .10%. [Citation omitted.] ‘Intoxication is a physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.’ [Citation omitted.] Inasmuch as [State v. Hill, 865 S.W.2d 702 (Mo. App. 1993), overruled on other grounds State v. Carson, 941 S.W.2d 518 (Mo. 1997)], though the use of‘linguistic gymnastics’ (as characterized by the appellant), suggests that an officer who testifies that, in the officer’s experience, persons who score six points on the HGN test also register above .10% on the breathalyzer is not the same as testifying that the individual defendant has a particular blood alcohol content and is properly admissible, we think otherwise and hold that it is an abuse of discretion for a trial court to admit such testimony absent an adequate foundation which establishes the witness’ ability to determine that a person’s performance on the HGN test represents a BAC in excess of a certain level.” Rose, 86 S.W.3d at 100-01.
Here, Shadden properly objected to this testimony. Although Missouri obviously admits evidence of the HGN test, whereas Kansas does not, the reasoning in Rose is analogous to the evidence presented in Shadderis trial. Officer Weiler’s testimony went beyond recounting the tasks Shadden was asked to perform and Weiler’s observations of Shadden’s attempted performance. Weiler took the additional, impermissible step of implying a level of scientific certainly to the walk-and-tum test results. This was improper.
In Witte, the Kansas Supreme Court held that the erroneous admission of the HGN test results could not be held harmless because the later breath test results indicated that Witte possessed a BAC of .103 and the margin of error was unclear. 251 Kan. at 330-31. In the present case, Shadden refused to take a breath test, and the jury’s conviction was based entirely upon the interpretation given Shadden’s performance during the field sobriety tests. Due to the possibility that the jury placed undue weight upon the field sobriety test results, this court cannot conclude that the error was harmless. See State v. Murray, 285 Kan. 503, 535, 174 P.3d 407 (2008) (articulating the harmless error standard).
Therefore, we must reverse and remand for a new trial.
Although our rulings, if given effect, would make the following issues moot, due to the possibility of review we will address the other issues that appear to need resolution.
Shadden next contends that his trial was prejudiced by prosecutorial misconduct. Specifically, Shadden contends the State violated the district court’s ruling prohibiting the officers from rendering their opinions regarding Shadden’s intoxication.
In reviewing a claim that the State violated an order in limine, the appellate court applies a two-part standard of review that is indistinguishable from the review used to review a claim of prosecutorial misconduct, except a party must object to the inappropriate admission of evidence at trial in order to preserve the objection. See State v. Fewell, 286 Kan. 370, 391, 184 P.3d 903 (2008) (citing State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 [2003]); State v. Albright, 283 Kan. 418, 426, 153 P.3d 497 (2007) (“[W]hen a defendant alleges prejudice based on reviewing the district court’s denial of a mistrial motion based on violations of an in limine order by the prosecutor, we have also employed a prosecutorial misconduct-type analysis to the extent it is helpful in determining whether there has been substantial prejudice.”).
Where a claim of prosecutorial misconduct involves the improper elicitation of testimony rather than prejudicial remarks in closing argument, an appellate court must first consider whether the questions posed by the prosecutor were impermissible. In this case, the court must decide whether the State’s questions violated the district court’s order in limine. If so, the reviewing court then determines whether the misconduct constituted plain error. In applying the second prong of the test, the court must consider: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct exhibited ill will toward the defendant by the prosecutor; and (3) whether tire misconduct may be deemed harmless in light of the evidence of guilt presented at trial. Where the first two factors weigh against the prosecutor, a reviewing court may find the misconduct harmless only when both the statutory and constitutional harmless error tests are satisfied. State v. Hunt, 285 Kan. 855, 871-72, 176 P.3d 183 (2008).
In the present case, the district court held a hearing on the issues raised in Shadden’s motion in limine. In discussing Shadden’s argument that the arresting officers should be prohibited from rendering an opinion regarding Shadden’s impairment, the district court initially commented that the State should address the officers’ opinions in terms of their reasons for arresting Shadden. The State then noted that City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997), and State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981), overruled on other grounds State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983), specifically permitted law enforcement to provide opinion testimony concerning the state of intoxication of a criminal defendant. Defense counsel then conceded that the State could elicit testimony from the officers regarding their opinions that Shadden was intoxicated to a point that established probable cause to arrest. The district court then stated, “They reach their opinions based on conduct, field sobriety results, what have you, to arrest him, and to say that, ‘Okay. Based on what we saw, what we observed, the results of these tests, we arrested him for DUI.’ ” After further discussion, the district judge added:
“And I suppose that it is really a question of how you frame your question. If you say, ‘Based upon his conduct as well, did that cause you any pause as to whether he was under the influence at the time that you arrested him?’ I think that you can reach the same result. But I think that it is a little bit less than just turning to the juiy and saying, ‘In my expert opinion he was under the influence, members of the jury,’ period.
“It needs to be related to the juiy in the context of what they were seeing and observing, ‘Based upon the arrest of this individual, he was arrested for this behavior and conduct,’ that that is why they arrested him. They can relate to that. But I think that everything in the way of their opinions needs to be related to the reasons why they arrested him.”
When the State requested clarification of the court’s ruling, the district judge added:
“My point simply is this ... if you are simply going to put an officer on the stand and say, ‘You observed him all that night?’ ‘Yeah, I did.’ ‘Do you have an opinion for the jury?’
“It has to be — what I’m saying, it has to be in the context of what the officers did, why they arrested him . . . they needed to get him off the street, this is why they did it, this, this, this, and this.
“I think that you can get in what you are trying to get in if you phrase your question correctly. I’m asking that, if you have any questions ahead of time, you can bounce those off the Court. If you don’t want to, you don’t have to.
“But we may have to approach, we may have to do something outside the presence of the jury. I’m just anticipating that issue. I’ve had it come up in other cases and it is, I think, better practice for the State to have the officers give their opinions in relation to what they did. That is, they arrested the fellow, they detained him, gave him an Intoxilyzer, whatever they did, to explain what they are doing. That is all fair for the jury to hear and understand.
“But I think that when you just bring in an officer and say, ‘Okay. You observed everything; do you have a[n] opinion for tire jury?’ period, that is a little bit different.
“I may be anticipating a problem that won’t come up, truthfully, based upon how the questions are presented. I’m just . . . giving you food for thought probably more than anything.”
At trial, the State reviewed Weiler’s observations of Shadden’s performance during the traffic stop and subsequent field sobriety tests before ehciting Weiler’s opinion whether Shadden was intoxicated. Although defense counsel objected three times that the State had failed to lay a sufficient foundation to qualify Weiler as an expert on DUI, the district court neither sustained nor overruled the objections, merely directing the State to ask Weiler why he arrested Shadden. The State then approached the question by asking Weiler why Shadden was arrested. When Weiler testified that Shadden was arrested for DUI, the State asked for the basis Weiler used to determine that Shadden had committed DUI and asked whether Weiler believed Shadden was intoxicated. Again, Shadden objected, but the district court overruled the objection.
Despite the ambiguity of the district court’s ruling in response to Shadden’s motion in limine, the State clearly attempted to comply with the district court’s order that tire State lay a foundation for Weiler’s opinion that Shadden was intoxicated before eliciting that opinion. Contrary to Shadden’s argument on appeal, the State did not violate the district court’s order in limine regarding Weiler’s opinion about Shadden’s level of intoxication.
Moreover, even if the district court’s ruling could be interpreted, as Shadden suggests, to prohibit opinion testimony regarding Shad-den’s intoxication, the district court’s ruling was not erroneous. An officer who has observed a criminal defendant during a traffic stop may provide a lay opinion concerning whether the defendant was intoxicated at the time of the stop. See Hadley, 262 Kan. at 241-42. Consequently, any violation of the court’s order in limine did not result in the erroneous admission of evidence that was unfairly prejudicial to Shadden and did not provide a basis for reversing his conviction of DUI.
The officer’s testimony concerning the 68% likelihood that Shadden was under the influence, although reversible error in its admission, was not a violation of the motion in limine.
. Shadden additionally contends that the district court improperly permitted the State to elicit testimony regarding Shadden’s refusal to take a breath test in violation of Shadden’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Shadden acknowledges that he did not object to the admission of evidence on the grounds he raises in this appeal, but he argues that the issue should be considered for the first time on appeal because the issue involves a question of law on proved or admitted facts and because consideration of the issue is necessary to prevent the denial of fundamental rights.
Even constitutional grounds for appeal must be preserved by a timely and specific objection in the district court. Although an appellate court may reach questions of law that were not properly preserved if necessary to prevent the denial of fundamental rights, Shadden did not believe this issue was significant enough to raise in his motion in limine, in his motion for judgment of acquittal, or in any other manner. Therefore, this court may properly decline to consider die issue for the first time on appeal. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (refusing to consider the voluntariness of statements to police for the first time on appeal).
Moreover, even if this court reached the merits of Shadden’s claim, precedent of this court clearly establishes that the claim possesses no basis for the relief Shadden requests. See State v. Wahweotten, 36 Kan. App. 2d 568, 580-82, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007) (relying on Pennsylvania v. Muniz, 496 U.S. 582, 110 L. Ed. 2d 528, 110 S. Ct. 2638 [1990]; South Dakota v. Neville, 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916 [1983]). Admission of evidence regarding Shadden s breath test refusal did not violate Shadden’s Fifth, Sixth, or Fourteenth Amendment rights.
In a related argument, Shadden further contends that the officers request that Shadden submit to a breath test created an unconstitutional condition by requiring Shadden to choose between a waiver of his Fourth Amendment rights in consenting to a breath test and a waiver of his Fifth Amendment rights by refusing to take the breath test.
Again, this issue was not raised before the district court and is not properly preserved for appellate review. See Alger, 282 Kan. at 304. In addition, because the request to submit to a breath test does not impinge upon an individual’s freedom from self-incrimination, the request does not create an unconstitutional condition. See Wahweotten, 36 Kan. App. 2d at 583. Consequently, this argument also lacks merit.
With regard to the district court’s imposition of Board of Indigents’ Defense Services (BIDS) attorney fees, Shadden raises two issues. First, he contends that the imposition of any attorney fees under K.S.A. 22-4513 was error without first making findings on the record of his ability to pay such fees. Shadden then contends that the imposition of attorney fees in the journal entry was improper because the imposition of attorney fees was not announced at die sentencing hearing and, therefore, does not constitute an enforceable part of sentencing.
The State contends that any issue regarding the imposition of BIDS attorneys fees is moot because Shadden is no longer subject to the jurisdiction of the State. While the State refers the court to the Kansas Adult Supervision Population Electronic Repository (KASPER) to establish the fact that Shadden was released from State custody in December 2007, this information is not a part of the appellate record and cannot be considered by this court. See State v. Wright, 219 Kan. 808, 812, 549 P.2d 958 (1976).
The State accurately notes that at sentencing, on September 14, 2006, Shadden was given 262 days of jail time credit. Therefore, after sentencing Shadden was required to serve the remaining 103 days of his 1-year sentence. Shadden s sentence commenced on December 27, 2005. Shadden was assigned a 12-month postrelease supervision term. Therefore, Shadden should have been released from State custody on December 27, 2007, as the State alleges KASPER demonstrates.
Nevertheless, K.S.A. 22-4513(a) states: “If the defendant is convicted, all expenditures made by [BIDS] . . . shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.” While a district court is entitled to reduce or waive the amount of BIDS attorney fees the defendant is required to reimburse under K.S.A. 22-4513(b), the mandatory language of subsection (a) indicates that, unless the district court makes an affirmative finding and waives the fees, BIDS expenditures will become a civil judgment against the defendant. The State has not demonstrated that die BIDS attorney fees ordered by the court in the present case have not been imposed against Shadden as a civil judgment. Consequently, this court should not dismiss the issue as moot. See State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007) (“An appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned.”).
In State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d934 (2006), the Kansas Supreme Court held: “A sentencing court assessing fees to reimburse [BIDS] under [K.S.A. 22-4513] must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” The record is silent as to these considerations. Therefore, the BIDS attorney fees imposed pursuant to K.S.A. 22-4513 must be vacated.
In an attempt to prevent the case from returning to the district court, assuming the conviction stands, the State attempts to waive the imposition of attorney fees. However, as the State notes, the obligation to consider the defendant’s financial ability to reimburse BIDS is not the State’s but the district court’s. K.S.A. 22-4513 is a recoupment statute designed to reimburse State funds expended in a criminal defense. Neither the prosecutor nor the district court possess discretion in the matter of imposing BIDS fees. The district court must order a criminal defendant who has been convicted of a crime to reimburse BIDS for its expenditures, unless the district court takes an affirmative act to waive such fees based on the defendant’s financial condition and ability to reimburse BIDS.
While recognizing the frustration inherent in a remand on this issue, this court is bound by the plain language of K.S.A. 22-4513 and Robinson to remand the case for reconsideration, on the record, of the BIDS attorney fees imposed.
To the extent that remand under Robinson is necessary, Shad-den’s related argument — that the district court erred in imposing BIDS attorney fees in the journal entry when the fees were not imposed at sentencing — is moot. State v. Aleman, 16 Kan. App. 2d 784, 786, 830 P.2d 64, rev. denied 251 Kan. 940 (1992) (“An appellate court will not render opinions in appeals which present moot issues or where the judgment could have no practical effect on a then-existing controversy.”). Even if the issue were not moot, Shadden’s argument regarding the imposition of the BIDS attorney fees for the first time in the journal entry possesses no merit. See State v. Bale, 39 Kan. App. 2d 655, 664-65, 182 P.3d 1280, rev. denied 286 Kan. 1180 (2008) (holding that K.S.A. 22-4513 is a recoupment statute, not a penally statute, and a court may impose fees without pronouncing the fees at the sentencing hearing).
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Hill, J:
Hallmark Cards, Inc., appeals the Board of Tax Appeals (BOTA) denial of their corporate income tax refund, claiming the Board misinterpreted their post audit settlement agreement with the Kansas Department of Revenue (KDOR) on corporate income taxes. Because their settlement agreement did not cover tax credits arising from the High Performance Incentive Program (HPIP) law, K.S.A. 79-32,160a(e), we hold the statute limits Hallmark’s tax credits for a tax year to whatever their tax liability for that tax year was. The law requires any excess tax credits be carried forward into the next tax year. Therefore, we affirm the Board’s ruling.
The parties have agreed to the background facts, and their dispute centers on their contract.
Hallmark, a Missouri corporation, does business in Kansas by creating and selling “social expression” products. Hallmark and KDOR made a tax settlement agreement on June 15, 2000. The contract settled all issues arising from an audit of Hallmark’s corporate income taxes for tax years 1994, 1995, and 1996. Two continuing issues were excepted from their contract. The agreement did not apply to future adjustments to corporate income made by a federal revenue agent, sometimes called a Revenue Agent Report, or RAR, and income tax credits under the HPIP, found in K.S.A. 79-32,160a(e).
Before the agreement, in November 1999, Hallmark filed an amended corporate income tax return for tax years 1995 through 1997, seeking tax credits under the HPIP law. KDOR approved HPIP credits for Hallmark for 1997 but denied them for 1995 and 1996 because the Kansas Department of Commerce and Housing had not certified Hallmark as a qualified firm under the HPIP program for those years. Hallmark sued and, finally, in Hallmark Cards, Inc. v. Kansas Dept. of Commerce & Housing, 32 Kan. App. 2d 715, 88 P.3d 250, rev. denied 278 Kan. 844 (2004), this court ordered the Department of Commerce and Housing to certify Hallmark for the HPIP program for tax years 1995 and 1996. The Department did certify Hallmark HPIP eligible in December 2004.
After receiving that certification, tíre Kansas Department of Revenue calculated the credit to be refunded and the amount to be carried forward into future tax years. Following the statute, KDOR ruled the HPIP credits that could be refunded to Hallmark for a tax year are limited to the total tax liability paid by Hallmark that tax year. Any excess credits would be carried forward. Following this holding, KDOR refunded $679,220 plus interest to Hallmark for the tax year 1996 and nothing for 1995. The balance was carried forward.
In contrast to this ruling hmiting the credit, Hallmark contends the corporation was entitled to the entire refund. It seeks an added refund of $661,579 with interest, for tax years 1995 and 1996, because of the settlement agreement. After completing all administrative remedies, Hallmark appealed to BOTA, where BOTA agreed with KDOR.
Here, Hallmark asserts BOTA did not correctly interpret the terms of the setdement agreement with KDOR. Hallmark further contends that B OTA’s decision is not supported by substantial competent evidence. The corporation asks us to remand the matter for a determination of a refund amount consistent with its interpretation of the settlement agreement.
On the other side, KDOR responds that Hallmark received the proper refund under the settlement agreement and is now seeking to try to alter the agreement to gain further benefit. KDOR simply asks this court to affirm BOTA’s order.
We list our scope of review and some fundamental points of law.
The interpretation and legal effect of a written contract are matters of law over which an appellate court has unlimited review. Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006). Whether a written instrument is ambiguous is also a question of law subject to de novo review. Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002).
The primary rule for interpreting written contracts is to discover the parties’ intent. If the terms of the contract are clear and unambiguous, the parties’ intent and the meaning of the contract are to be determined from the language of the contract without applying rules of construction. Anderson v. Dillard’s Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007); Zukel v. Great West Managers, LLC, 31 Kan. App. 2d 1098, 1101, 78 P.3d 480 (2003), rev. denied 277 Kan. 928 (2004). A contract is ambiguous when it contains provisions or language of doubtful or conflicting meaning, and such ambiguity only appears when the “ "application of pertinent rules of interpretation to the face of tire instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.’ [Citation omitted.]” Liggatt, 273 Kan. at 921.
To interpret a provision in a contract, a court should not isolate one particular sentence but consider the entire instrument. The law favors reasonable interpretations. See Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10-11, 13 P.3d 351 (2000).
We look chiefly at the first two paragraphs of the agreement.
Both parties agree the first two paragraphs of their settlement agreement control the outcome of their dispute. But they disagree over the interpretation of the two. They are:
“1. Hallmark shall be entitled to claim a nonrefundable income tax credit in the amount of $1,750,000 against its Kansas corporate income tax liability commencing with the tax return filed for tax year 2000. If the amount of the credit exceeds the tax due for tax year 2000, the amount thereof which exceeds such tax liability may be carried forward for credit in the succeeding tax year or years until the total amount of the tax credit is used.
“2. The allowance of the nonrefundable income tax credit shall release both parties from any further liabilities or refunds for tax years 1994 through 1996 inclusive, with the exception of those associated with federal RAR adjustments which must be timely reported to the Department when they become final, as required by law, or any other issues not raised or that could ham been raised in the appeal before BOTA, including the allowance of income tax credits under the High Performance Incentive Program, KS.A. 79-32,160a(e). Any liabilities or refunds associated with federal RAR adjustments shall be computed using the apportionment factor percentages set forth in the schedule attached hereto as Exhibits A, A-1, A-2 and A-3.” (Emphasis added.)
Paragraph two of the agreement refers to a specific statute, K.S.A. 79-32,160a(e). When parties make such a specific reference, it is important to review the statute that is the subject of that reference. K.S.A. 79-32,160a(e) states in relevant part:
“The credit allowed by this subsection shall be a one-time credit. If the amount thereof exceeds the tax imposed by the Kansas income tax act on the taxpayers Kansas taxable income for the taxable year, the amount thereof which exceeds such tax liability may be carried forward for credit in the succeeding taxable year or years until the total amount of the tax credit is used, except that no such tax credit shall be carried forward for deduction after the 10th taxable year succeeding the taxable year in which such credit initially was claimed and no carry forward ' shall be allowed for deduction in any succeeding taxable year unless the taxpayer continued to be qualified and was recertified for such succeeding taxable year pursuant to K.S.A. 1997 Supp. 74-50,131, and amendments thereto.”
Obviously, under the plain terms of the tax settlement agreement, which has an exception for credits received under a specific statute, any such credits are subject to the terms of the statute. If there was no statute, there would be no credits. We hold the carry-forward provisions of K.S.A. 79-32,160a(e) apply to all credits received under that subsection, including the credits considered by the setdement agreement here. Hallmark’s claim otherwise is simply not supported by the plain language of the setdement agreement.
Therefore, as KDOR and BOTA reasoned, the refund available to Hallmark for those years was limited to Hallmark’s tax liability for that tax year. We cannot criticize them for following the law. Hallmark had prepaid its tax, and when its total tax liability was later reduced by application of the HPIP credits, it was entitled to a refund of the amounts it had prepaid that were replaced by HPIP credits, up to its amount of tax liability. It received this refund, and there is no provision in the HPIP statute for any further refunds to Hallmark for these tax years based on its HPIP credits. BOTA ruled correctiy.
BOTA made its decision on fact stipulations.
Hallmark argues that BOTA’s decision is not supported by substantial competence evidence, contending BOTA must have accepted KDOR’s “appeal adjustments” to arrive at its conclusion that no added refunds were proper, even though the schedules reflecting these refunds were not prepared until 5 years after the settlement. Hallmark goes on to contend the appeal adjustments were “not based on any rational methodology that can be ascertained by Hallmark or by any reasonable person” and have no support in the tax setdement agreement.
The parties’ stipulated facts reflect KDOR calculated and made a proper refund to Hallmark for the tax years at issue, based on HPIP credits, up to the amount of Hallmark’s tax liability for tírese years. As the above analysis determined, these credits were the extent of the refunds that could be properly made under the PIPIP statute, and the rest of the HPIP credits had to be carried over.
Hallmark does not challenge the stipulation that it received a refund for the tax years at issue which reflected the application of HPIP credits to its tax liability for those years. Instead, Hallmark focuses only on the idea the HPIP credits should be able to generate additional refunds by means of tax overpayment amounts from the years at issue. Hallmark offers a calculation table showing how “overpayments by Hallmark were available to fund the refunds of the additional HPIP credit amounts sought by Hallmark.” We note, in this table, the “Tax Per Original KS return” line reflects the tax Hallmark prepaid, not Hallmark’s tax liability. Again, the statute is clear.
Even if tax overpayment amounts existed, the HPIP credits could not be applied to them to produce more refunds, as the HPIP statute only allows the credits to be applied against tax liability. Because the parties’ stipulations reflect that Hallmark received refunds through the application of HPIP credits up to the total amount of its tax liability for 1995 and 1996, the existence of any tax overpayment amounts has no bearing on this issue. BOTA’s decision was based on determining a question of law and was supported by the parties’ stipulations. Hallmark’s argument on this point is not persuasive.
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Caplinger, J.:
AirTran Airways, Inc. (AirTran), garnishee, appeals from the district court’s denial of its motion under K.S.A. 60-260(b) to set aside a default judgment obtained by the garnishor, Southwestern Bell Yellow Pages, Inc. (SWB), under K.S.A. 61-3514 based upon AirTran’s failure to answer a wage garnishment order.
The district court entered default judgment against AirTran under K.S.A. 61-3514, which provides specific authority for entering a default judgment against a garnishee. However, that statute does not set out a mechanism or procedure whereby a garnishee may move to set aside a default judgment. SWB argued, and the district court agreed, that AirTran’s motion to set aside the default judgment was barred by the 10-day limitation found in K.S.A. 61-3301(c) for filing a motion to set aside a default judgment in Chapter 61 actions. However, because we conclude that K.S.A. 61-3301(c) applies only to default judgments taken under section (a) of that statute, we hold the district court erred in relying upon K.S.A. 61-3301(c) to deny AirTran’s motion to set aside the default judgment. We remand the case to the district court for consideration of AirTran’s motion under K.S.A. 60-260(b).
Factual and procedural background
The procedural history of this case began more than 10 years ago in May 1996, when SWB filed a petition under the Kansas Code of Civil Procedure for Limited Actions, K.S.A. 61-2801 et seq., to recover a debt from Brian A. Beadle, d/b/a AAA Sewer Service (Beadle). Beadle failed to appear for the hearing, and SWB obtained a default judgment against Beadle in the amount of $11,288.74, plus 18% interest and costs. SWB made several attempts to collect the judgment and renewed the judgment in 2001.
AirTran entered the picture more than 7 years later when the district court issued a wage garnishment order on November 14, 2003, to collect on the judgment, naming AirTran as the garnishee. AirTran received the order and answer form on November 17,
2003. AirTran prepared three answers, for pay periods ending November 24, December 8, and December 22, 2003. On December 30, 2003, AirTran mailed the answers, along with three checks in the amounts of $44.71, $30.24, and $22.10 to Donald C. Astle, counsel for SWB.
On January 27, 2004, SWB filed a motion for judgment against AirTran pursuant to K.S.A. 61-3514 for failure to answer the November 14 garnishment order. The motion sought $28,621.53 plus interest and attorney fees and alleged the “garnishee has failed to answer in the manner specified in the order of garnishment.” SWB mailed the motion to AirTran, via certified mail, with notice of a hearing scheduled for February 6, 2004.
AirTran received the motion on January 27, 2004, and upon investigation discovered that SWB had not received the answers and checks mailed on December 30. AirTran stopped payment on the three checks on January 29, 2004, assuming they were lost in the mail. Significantly, AirTran reissued the checks on February 4,
2004, and provided the reissued checks and the answers to counsel for SWB.
Despite AirTran’s prompt response to the motion, Astle proceeded to appear at the scheduled February 6, 2004, hearing on the motion for judgment. AirTran, however, believed the matter had been resolved by issuance of the replacement checks and did not appear. The district court granted judgment in favor of SWB for $28,611.46, plus interest, attorney fees, and costs. In doing so, the court noted AirTran’s failure to appear, found that an order of garnishment was properly served upon AirTran, and found that AirTran failed to answer the garnishment order in the time and manner prescribed by law.
The record indicates SWB did not send any notification to AirTran of the judgment taken by SWB. In fact, the record indicates that the three replacement checks were cashed by SWB on March 6, 2004, and between January 30, 2004, and April 7, 2004, SWB accepted at least six more answers and payments from AirTran pursuant to the wage garnishment order. SWB cashed those six checks between February 6, 2004, and April 14, 2004.
On April 23, 2004, SWB sent a “Full Release of Wage Garnishment” to AirTran via regular mail and filed the release with the district court on April 27, 2004. AirTran received the release on April 26, 2004, and AirTran s corporate office received the release on April 28, 2004. At that point, AirTran stopped further processing of tire garnishment order. Between April 28, 2004, and February 28, 2005, AirTran received no correspondence from SWB.
Then, on February 28, 2005, Astle sent a letter to AirTran demanding payment in the amount of $28,861.46 and, for the first time, enclosed a copy of the February 6, 2004, journal entry of judgment entered against AirTran for failure to timely answer a wage garnishment order.
AirTran’s payroll manager, Richard Teeter, promptly responded by letter to the court and to Astle, advising them that the journal entry of judgment was “disputed” because “the last correspondence [AirTran] received . . . was a Full Release of Wage Garnishment” and AirTran had not received any other order reinstating the garnishment. Teeter further requested that Astle send back-up documentation to support tire garnishment if reinstatement of the garnishment was sought, and he enclosed a copy of the wage garnishment release.
Astle did not respond to Teeter s query, nor did SWB attempt to explain the seeming contradiction between the judgment taken by SWB and its continued acceptance of garnishment payments from AirTran or its eventual release of the garnishment. In fact, more than IV2 years passed with no further communications between the parties after Teeter s letter to the court and Astle explaining the perceived mix-up, although Astle did renew the original judgment against Beadle on December 7, 2005.
Then, at SWB’s request, the district court issued a garnishment order on November 6, 2006, in the amount of $33,100.68, which showed the Sedgwick County Board of Commissioners as garnishee and AirTran as the judgment debtor. The Board answered, indicating it was indebted to AirTran in excess of the amount of the garnishment order. On December 7, 2006, the district court ordered the Board to pay $33,100.68 to the clerk of the district court in satisfaction of SWB’s judgment against AirTran.
On January 4, 2007, AirTran moved to set aside SWB’s judgment against AirTran pursuant to K.S.A. 60-255(b) and K.S.A. 60-260(b). SWB opposed the motion, alleging the district court lacked jurisdiction to set aside the judgment because the motion was not filed within 10 days as required under the general default statute in Chapter 61 actions, K.S.A. 61-3301(c). The district court denied the motion, citing a lack of jurisdiction under K.S.A. 61-3301(c), and AirTran timely appeals.
Discussion
AirTran contends the district court erred in finding that K.S.A. 61-3301(c) applies to default judgments against garnishees and in concluding it lacked jurisdiction to set aside the judgment. SWB contends AirTraris motion was untimely and deprived the district court of jurisdiction.
Generally, tire decision of whether to grant relief from a default judgment rests in the sound discretion of the district court, and appellate courts review that decision for an abuse of discretion. Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). However, the issue raised in this appeal involves questions of jurisdiction and statutory interpretation, both of which are questions of law subject to de novo review. Frost v. Cook, 30 Kan. App. 2d 1270, 1272, 58 P.3d 112 (2002).
Application of K.S.A. 61-3301(c) to judgments under K.S.A. 61-3514
Attachment and garnishment proceedings are governed by Article 35 of Chapter 61, and SWB filed its default judgment motion under K.S.A. 61-3514. That statute permits the district court to enter judgment against a garnishee if the judgment creditor files a motion alleging the “garnishee fails to answer within the time and manner specified in the order of garnishment.” K.S.A. 61-3514 provides in full:
“If the garnishee fails to answer within the time and manner specified in the order of garnishment, the judgment creditor may file a motion and shall send a copy of the motion to the garnishee and the judgment debtor in the manner allowed under K.S.A. 61-2907, and amendments thereto. At the hearing on the motion, the court may grant judgment against the garnishee for die amount of the judgment creditor’s judgment or claim against die judgment debtor or for such other amount as the court deems reasonable and proper, and for the expenses and attorney fees of the judgment creditor. If die claim of the plaintiff has not been reduced to judgment, the liability of the garnishee shall be limited to the judgment ultimately rendered against the judgment debtor.”
Although not explicitly labeled as such in the statute, we note that a judgment against a garnishee for failure to answer a garnishment order is a default judgment. See Black’s Law Dictionary 428 (7th ed. 1999) (defining default judgment as “[a] judgment entered as a penalty against a party who does not comply with an order”).
While K.S.A. 61-3514 clearly provides specific authority for entering a default judgment against a garnishee, it does not set out a mechanism or procedure whereby a garnishee may move to set aside a default judgment. Hence, the garnishee in this case, AirTran, moved to set aside the judgment pursuant to K.S.A. 60-260(b).
The district court found that the 10-day time limitation of K.S.A. 61-3301(c) for setting aside a default judgment in Chapter 61 actions barred AirTran’s motion here. However, in rejecting Air-Tran’s motion, the district court indicated that it believed its result was neither fair nor contemplated by the legislature but was necessitated by the language of K.S.A. 61-3301(c). The court also noted “concerns” with the constitutionality of K.S.A. 61-3301 but found that, based upon the case law, it was not in a position to find the statute violated due process.
Thus, the primary question on appeal is whether the district court correctly concluded that the jurisdictional time limits set forth in K.S.A. 61-3301(c) apply to default judgments obtained under garnishment proceedings pursuant to K.S.A. 61-3514.
It is necessaiy to examine K.S.A. 61-3301 in its entirety to resolve this issue. That statute provides:
“(a) The court may enter a default judgment in the following situations:
(1) If a defendant fails to either appear or file a written answer on or before the time specified in the summons, judgment may be entered against the defend ant upon proof of service and at such time as the plaintiff requests same, without further notice to the defendant.
(2) If a defendant fails to appear at the time set for a pretrial or trial hereunder, judgment may be entered against the defendant at the request of the plaintiff without further notice to the defendant.
(3) If the defendant has filed a counterclaim against the plaintiff and the plaintiff fails to appear at the time set for a pretrial or trial hereunder, judgment may be entered against the plaintiff at the request of the defendant without further notice to the plaintiff.
“(b) A default judgment shall not be different in kind from or exceed the amount of the relief sought in the demand for judgment.
“(c) If a defendant seeks to set aside a default judgment for failure to appear at the time specified in the summons, the defendant shall file a motion not more than 10 days from the date of such judgment in a lawsuit where the defendant was personally served with summons within the state, or not more than 45 days where service of summons was by other than personal service within the state. If any party seeks to set aside any other default judgment, that party shall file a motion not more than 10 days from the date of such judgment. Any motion to set aside a default judgment, except for the time limits set forth above, shall be in accordance with the applicable provisions of subsection (b) of K.S.A. 60-260, and amendments thereto.
“(d) In cases where no service is had, for good cause shown, the court may set aside a default judgment pursuant to the applicable provisions of subsection (b) of K.S.A. 60-260, and amendments thereto.” (Emphasis added.)
Our first task in determining the applicability of K.S.A. 61-3301 to the facts at hand is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).
Focusing on the italicized language in paragraph (c) above, SWB argues that default judgments under K.S.A. 61-3514 come within the catchall phrase “any other default judgment” and, hence, a motion to set aside a judgment under that statute must be filed within the restrictive 10-day time limit of K.S.A. 61-3301(c).
The problem with SWB’s analysis is that it fails to interpret the phrase “any other default judgment” in context with the other provisions of K.S.A. 61-3301. See State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008) (when construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible).
First, and most importantly, K.S.A. 61-3301(a) sets out three distinct situations in which the district court may enter a default judgment in a limited action. Only one of those situations, 61-3301(a)(1), arguably applies here. That section permits a default judgment to be granted “if a defendant fails to either appear or file a written answer on or before the time specified in the summons.”
As AirTran points out, the section excludes garnishments by its very language, as it specifically refers to a “defendant’s fail[ure] to . . . appear.” (Emphasis added.) K.S.A. 61-3301(a)(1). Clearly, a garnishee is not a defendant. Also, the statute refers to the defendant’s failure to “file a written answer,” yet under the current garnishment statutes, answers are no longer “filed” with the court. Instead, the procedures have been streamlined, and answers are filed with the debtor’s attorney. Compare K.S.A. 61-2006 (Furse 1994) (repealed, L. 2000, ch. 161, sec. 117) with K.S.A. 61-3510. This distinction is particularly significant here, where AirTran issued replacement checks and a written answer prior to the date of the default hearing but did not “file” an answer with the court, as it was neither required nor permitted to do so. We simply cannot interpret K.S.A. 61-3301(a)(1) to permit the court to grant a default judgment against a party that is not a defendant and has not had an opportunity to file a written answer.
Our conclusion that K.S.A. 61-3301 does not apply to garnishment situations is buttressed by the language of section (b) of that statute, which mandates that “default judgment shall not be different in land from or exceed the amount of the relief sought in the demand for judgment.” K.S.A. 61-3301(b). Here, the “relief’ sought by SWB from AirTran was the periodic garnishment of the earnings of AirTran’s employee, Brian Beadle, to satisfy SWB’s judgment against Beadle. Yet SWB obtained a default judgment against AirTran under K.S.A. 61-3514 for the full amount of the SWB’s judgment against Beadle, the judgment debtor, plus attor ney fees, interest, and costs. Thus, SWB’s default judgment against AirTran was different in kind and exceeded the amount of relief sought in the garnishment action — again verifying that K.S.A. 61-3301 does not apply to default judgments in garnishment actions.
Finally, because K.S.A. 61-3301(a) enumerates three specific situations in which the court may enter a default judgment, we read K.S.A. 61-3301(c), which provides time limits for filing a motion to set aside a default judgment, to apply only to default judgments entered under 61-3301(a). The first sentence of K.S.A. 61-3301(c) refers to the time limits — either 10 or 45 days depending on the method of service — in which a defendant must file a motion to set aside a default judgment entered under 61-3301(a)(1) for failure to appear at the time specified in the summons. The last sentence of K.S.A. 61-3301(c), which contains a catchall provision for a party that seeks to set aside “any other default judgment,” refers to the time limit which applies to a motion to set aside any other default judgment entered under 61-3301(a).
We cannot reasonably interpret the catchall provision in section (c) of 61-3301 to apply to the entire Kansas Code of Civil Procedure for Limited Actions. Rather, we hold the phrase “any other default judgment” must be restricted to default judgments appropriately granted under 61-3301(a)(1), (2), or (3).
Application of case law interpreting K.S.A. 61-3301
Further, we find the two cases cited by SWB in support of its argument for application of the 10-day time limit in K.S.A. 61-3301 to be distinguishable. See Kubicki v. Wyandotte County Race Training Stables, 11 Kan. App. 2d 629, 731 P.2d 1288 (1987), and Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
In Kubicki, the plaintiff filed a Chapter 61 petition to recover $600 from the defendant. The defendant was personally served with summons and a copy of the petition but failed to answer or appear as directed in tire summons. The district court entered a default judgment in favor of the plaintiff. Seventeen days later, the defendant moved to set aside the default judgment under K.S.A. 61-1721 (Ensley 1983), the predecessor to K.S.A. 61-3301, and the district court granted the motion. On appeal, this court held that under the clear language of 61-1721, the defendant’s failure to file the motion within 10 days deprived the district court of jurisdiction to set aside the default judgment. 11 Kan. App. 2d at 630-31.
In Rose, the plaintiffs filed a Chapter 61 petition to recover legal fees from the defendant. The district court granted a default judgment after the defendant was personally served but failed to appear at the time required in the summons. The defendant moved to set aside the default judgment 27 days after entry of judgment. Both the district magistrate judge and the district judge denied the motion, citing the 10-day limit in K.S.A. 61-1721 (Furse 1994). On appeal, the defendant asserted that her attorney had informal discussions with the plaintiff regarding mediation prior to the scheduled appearance date and argued that those discussions were sufficient to constitute an appearance.
The panel in Rose concluded (1) as a matter of law, informal communications between parties or between a party and opposing counsel do not constitute an appearance under 61-1721; (2) a defendant seeking to set aside a default judgment under 61-1721 must do so within the 10-day time limit; and (3) the 10-day time limit does not violate due process. 25 Kan. App. 2d at 26-28.
Thus, in Rose and Kubicki, this court interpreted 61-1721 to hold that the statutory time limits for filing a motion to set aside a default judgment were jurisdictional. SWB urges us to find that these cases require us to apply the successor statute, K.S.A. 61-3301, to the facts of this case. See L. 2000, ch. 161, sec. 117. While K.S.A. 61-3301, which was enacted in 2000, is substantively similar to its predecessors, that fact does not require its application here. See K.S.A. 61-3301; K.S.A. 61-1721 (Ensley 1983; Furse 1994).
Rose and Kubicki are factually distinguishable from this case because both cases involved a defendant’s failure to timely file a motion to set aside a default judgment properly granted under the predecessor default statute, K.S.A. 61-1721. Neither case involved a default judgment granted against a garnishee under a separate statute, and the court was not required in either case to consider the scope of the general default statute under Chapter 61. Accordingly, we do not find Rose or Kubicki persuasive in this case and they do not impact our conclusion that the time limitations of K.S.A. 61-3301 do not apply to motions to set aside default judgments entered under K.S.A. 61-3514.
Moreover, we would note that the specific finding of Rose— that informal communications between a party and opposing counsel do not constitute an appearance under K.S.A. 61-1721(Furse 1994) — would be of questionable value in interpreting the time limits for filing a motion to set aside a default judgment in a garnishment action. As mentioned, under the current statutory scheme, the garnishee does not file a formal answer with the court; instead, it provides its answer to the debtor s attorney. Thus, the fact that the garnishee did not formally file an answer or pleading with the court may be of less significance in considering the validity of a default judgment taken under the garnishment statute.
Because we conclude the district court erred in finding that K.S.A. 61-3301 applies to motions to set aside default judgments entered under K.S.A. 61-3514, we reverse the district court’s decision denying AirTran’s motion to set aside SWB’s default judgment and remand for further consideration as discussed below.
Application of K.S.A. 60-260 on remand
AirTran filed its motion to set aside the default judgment under K.S.A. 60-260, which allows relief from judgments or orders under the Kansas Code of Civil Procedure. That section is incorporated into the Kansas Code of Civil Procedure for Limited Actions and applies to Chapter 61 judgments as long as it does not conflict with other provisions of Chapter 61. See K.S.A. 61-2912(i); K.S.A. 61-3304. We conclude that because there are no specific provisions within K.S.A. 61-3514 regarding a garnishee’s motion to set aside a default judgment and because K.S.A. 61-3301 does not apply to default judgments granted against garnishees, K.S.A. 60-260 applies to default judgments obtained under K.S.A. 61-3514.
The district court did not consider the merits of AirTran’s argument under K.S.A. 60-260; instead, it concluded it lacked jurisdiction to consider the motion to set aside the default judgment because it was filed outside the 10-day time limit of K.S.A. 61-3301(c). In light of the district court’s ruling, neither party ad dresses the application of K.S.A. 60-260 on appeal. Accordingly, we remand this case to the district court to consider whether AirTran’s motion to set aside the default judgment should be granted under K.S.A. 60-260(b).
Because we have concluded that K.S.A. 61-3301 does not preclude AirTran’s motion to set aside the default judgment, we need not consider AirTran’s remaining argument on appeal that K.S.A. 61-3301(c) as applied in this case violates constitutional protections of due process and equal protection.
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Malone, J.:
Robert Sokol appeals the district court’s dismissal of his guardianship petition due to lack of subject matter jurisdiction. This appeal raises two questions. First, does this court possess jurisdiction over the appeal? Second, did the district court err in dismissing the guardianship petition due to lack of subject matter jurisdiction? We answer yes to both questions, and we remand the case to district court for further proceedings.
Following a divorce in 1995, Robert Sokol and Julie Bergmann engaged in lengthy, acrimonious custody disputes regarding the four children of the marriage. See In re Marriage of Bergmann and Sokol (Sokol I), No. 80,476, unpublished opinion filed December 24, 1998, slip op. at 2; In re Marriage of Bergmann and Sokol (Sokol II), No. 91,975, unpublished opinion filed March 25, 2005, slip op. at 2. In 1998, Julie, who possessed primary residential custody of the children, received permission of the district court to move to New York with the children. Sokol II, slip op. at 2. In March 2003, the district court modified the custody order, awarding Robert primary residential custody of the three younger children. The oldest of the three minor children returned to Kansas in July 2003, but Julie attempted to block the custody determination in the New York courts. Sokol II, slip op. at 2-3. Robert ultimately obtained custody of the two younger children, one of whom, Moshe Sokol, is the proposed ward in this case.
Moshe was born on September 4, 1988, with spina bifida. He is paralyzed in the lower half of his body and is confined to a wheelchair. Because of his paralysis, Moshe possesses no bladder control, requiring frequent catheterization and the use of diapers. Nevertheless, Moshe successfully attended high school. During an emancipation proceeding in February 2006, the district court concluded that Moshe possessed the intellect and maturity of an average 17-year-old. At the hearing on the emancipation petition, which was ultimately denied, Moshe specifically expressed his desire to attend Mesivta High School in New York.
On August 28, 2006, about a week before Moshe turned 18, Robert filed a petition to be appointed Moshe’s guardian in the probate division of the Johnson County District Court. Moshe received notice of the petition, and he subsequently filed an answer through counsel. Robert later amended the petition to allege that Moshe was an impaired adult pursuant to K.S.A. 59-3058. The original petition requested the district court to issue several preliminaiy orders, including an order that Moshe not be removed from Kansas, which the district court granted.
On August 31, 2006, the district court held a hearing on an order to show cause why the preliminary orders should not be vacated. Robert, Julie, and Moshe appeared personally and were represented by counsel. After hearing statements of counsel, the district court vacated its preliminary orders, noting that Division 12 of the district court possessed continuing jurisdiction over Moshe’s custody determination. On the same day, Julie obtained a modification of the custody order, granting her physical custody of Moshe in order to assist him in his move to New York in preparation for school.
On September 3, 2006, with the petition for guardianship pending, Moshe left Kansas to attend school in New York. Subsequently, Moshe filed a motion to dismiss the guardianship petition or, in the alternative, a motion for summary judgment. The motion claimed the district court lacked subject matter jurisdiction over the guardianship proceeding because Moshe resided in New York with the intent to remain there indefinitely.
On October 4, 2006, the district court held a hearing on the motion to dismiss the guardianship petition. By then, Moshe was 18 years old. Moshe did not attend the hearing in person but was represented by counsel. Robert and Julie provided the only testimony at the hearing. After hearing the evidence, the district court dismissed the guardianship petition for lack of subject matter, jurisdiction, concluding that Moshe, as an adult, had chosen to reside in New York. The district court’s journal entry was filed on November 1, 2006.
On November 16, 2006, Robert filed a motion to alter or amend the judgment. The district court held a hearing and denied the motion in a journal entry filed on February 15, 2007. Robert filed a notice of appeal on April 2, 2007.
After the appeal was filed, this court issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction, due to the untimely notice of appeal. Robert responded that this court should retain the appeal because he did not receive a signed copy of the February 15, 2007, journal entry denying his motion to alter or amend the judgment, until March 29, 2007. Julie responded to the show cause order and claimed the appeal was untimely because the final judgment in the guardianship case was entered on November 1, 2006. Julie argued that Robert’s post-judgment motion did not toll the time for filing the appeal, because the probate code contains no provision for filing postjudgment motions and because the tolling effect of postjudgment motions contained in the code of civil procedure does not apply to a Chapter 59 judgment.
On June 7, 2007, this court issued an order retaining the appeal on present showing. The order stated: “The unique circumstances doctrine operates with respect to the appellant receiving notice of the February 15, 2007, journal entry.” The order further directed the parties to brief the question of whether the tolling principles for filing postjudgment motions set forth in K.S.A. 60-2103(a) apply to postjudgment motions filed in a Chapter 59 proceeding. In response to the order, both parties addressed this issue in their briefs.
Does this court possess jurisdiction over the appealP
Before considering the district court’s decision to dismiss the guardianship petition, this court must address whether it possesses jurisdiction over the appeal. “The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative.” In re A.F., 38 Kan. App. 2d 742, 743, 172 P.3d 63 (2007). An appellate court possesses jurisdiction to entertain only those appeals that comply with the statutory requirements for jurisdiction. Interpretation of a statute is a question of law over which an appellate court has unlimited review. In re Condemnation of Land v. Stranger Valley Land Co., 280 Kan. 576, 578, 123 P.3d 731 (2005).
This court has already ruled that Robert’s failure to file the notice of appeal within 30 days of the journal entry denying his motion to alter or amend the judgment is excused under the unique circumstances doctrine. We will not revisit that ruling. The only issue addressed in this opinion is whether the tolling principles for fifing postjudgment motions provided under the Chapter 60 rules of civil procedure apply to postjudgment motions filed in a Chapter 59 guardianship proceeding.
Pursuant to K.S.A. 2007 Supp. 59-2401a(b)(5), an appeal of the final order of the district court in a guardianship proceeding is governed by Article 21 of Chapter 60 of the Kansas Statutes Annotated. In pertinent part, K.S.A. 60-2103(a) provides:
“When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of judgment .... The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250, and amendments thereto; or granting or denying a motion under subsection (b) of K.S.A. 60-252, and amendments thereto, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259, and amendments thereto, to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259, and amendments thereto.”
Moshe acknowledges that K.S.A. 60-2103(a) governs the time limitation for fifing an appeal from a final guardianship order, which is 30 days from the entry of judgment. However, Moshe argues that the remaining provisions of K.S.A. 60-2103(a) do not apply to a Chapter 59 proceeding. Moshe claims that postjudgment motions in a Chapter 59 proceeding are governed exclusively by K.S.A. 59-2213. Because this statute does not contain a tolling provision for fifing postjudgment motions, as is contained in K.S.A. 60-2103(a), Moshe contends that Robert’s motion to alter or amend the district court’s November 1, 2006, judgment did not toll the deadline for filing an appeal from the judgment.
Moshe’s statutory construction is unpersuasive. If the Kansas Legislature had only intended to apply the 30-day appeal time to guardianship proceedings and no other aspect of the appeal procedures of Chapter 60, the legislature could have simply imposed a 30-day time limitation in K.S.A. 2007 Supp. 59-2401a(b) without referring to Article 21 of Chapter 60. It makes no sense for a Chapter 59 proceeding to incorporate the first sentence of K.S.A. 60-2103(a), but not the remaining provisions of the same statute. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). As a general rule, courts should construe statutes to avoid unreasonable results and presume the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006).
Moreover, the Kansas Supreme Court has already applied the tolling provisions of K.S.A. 60-2103(a) to proceedings governed by Chapter 59. In In re Estate of Burns, 227 Kan. 573, 608 P.2d 942 (1980), the court addressed whether the appeal time from a judgment in a probate proceeding was tolled following a timely motion for rehearing. Without reference to K.S.A. 59-2213, the court reasoned that, because K.S.A. 1979 Supp. 59-2401(c) [the precursor of K.S.A. 2007 Supp. 59-2401a] specifically incorporated the appeals procedure of Chapter 60, the tolling provisions of K.S.A. 60-2103(a) were applicable to probate proceedings. The court concluded:
“[I]n appeals from judgments and orders in probate cases entered by a district judge or an associate district judge tire running of the time for appeal is terminated by a timely motion for rehearing or such other motion as may be enumerated in K.S.A. 60-2103(a), and the full time for appeal fixed in K.S.A. 1979 Supp. 59-2401(a) commences to run and is to be computed from the date the written order on such a morion is signed by the judge and filed with the clerk of tire court.” 227 Kan. at 575.
Moshe contends that Bums is inapplicable to his case. He argues that K.S.A. 59-2213 governs postjudgment motions under Chapter 59 and that this statute contains no tolling procedures for filing a notice of appeal. Moshe argues that K.S.A. 59-2213 is a more specific statute than K.S.A. 60-2103(a) and that the provisions of a specific statute control over the provisions of a general statute.
When a court is presented with a general statute and a specific statute governing the same circumstances, the court should attempt to read the statutes together in harmony with one another. If the statutes cannot be read in harmony, the specific statute will generally control over the general statute, unless a contrary intent is clearly expressed by the legislature. In re Estate of Wolf 279 Kan. 718, 724, 112 P.3d 94 (2005). In this instance, we conclude that a careful reading of K.S.A. 59-2213 reveals no conflict with K.S.A. 60-2103(a). K.S.A. 59-2213 provides:
“No judgment or decree shall be rendered in a probate proceeding without proof. The verification of the petition pursuant to K.S.A. 59-2201 and amendments thereto shall constitute sufficient proof of tire statements made in the petition in the absence of written defenses or any appearance by an adverse party. The court shall have control of its orders, judgments, and decrees for 30 days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by subsection (b) of K.S.A. 60-260 of the code of civil procedure.”
K.S.A. 59-2213 provides that a probate court shall have control of its orders, judgments, and decrees for 30 days after the entry of tire order. The statute does not specifically mention any postjudgment motions except for a motion for relief from judgment under K.S.A. 60-260. Significantly, this type of motion can be filed more than 30 days from the date of judgment. However, just because K.S.A. 59-2213 does not expressly provide for filing other types of postjudgment motions, this does not mean that such motions are unauthorized in a Chapter 59 proceeding. The mere fact that the legislature provided that the district court retains control over its orders, judgments, and decrees for 30 days implies that the court may consider challenges to probate orders, judgments, or decrees within that 30-day period. See, e.g., In re Adoption of A.P., 26 Kan. App. 2d 210, 218-19, 982 P.2d 985, rev. denied 268 Kan. 886 (1999) (mentioning K.S.A. 59-2213 and permitting consideration of a motion to alter or amend the judgment).
All the postjudgment motions enumerated within K.S.A. 60-2103(a) must be filed within 10 days of judgment. See K.S.A. 60-250(b) (renewal of motion for judgment as a matter of law); K.S.A. 60-252(b) (motion to amend or add findings); K.S.A. 60-259(b) (motion for new trial); K.S.A. 60-259(f) (motion to alter or amend judgment). Therefore, any timely postjudgment motion enumerated within K.S.A. 60-2103(a) falls within the 30-day period of K.S.A. 59-2213, during which a district court retains control of its orders, judgments, or decrees in a proceeding under Chapter 59. It follows that any postjudgment motion enumerated within K.S.A. 60-2103(a) may be filed and considered in a Chapter 59 proceeding, including a guardianship proceeding. Because tire appeal procedures under K.S.A. 2007 Supp. 59-2401a incorporate tire provisions of K.S.A. 60-2103(a), the time limitation for filing an appeal from a Chapter 59 judgment is tolled by the timely filing of a postjudgment motion pursuant to K.S.A. 60-2103(a).
We conclude the holding of Burns controls this issue. Plere, the 30-day period for filing a notice of appeal initially commenced on November 1, 2006, when the district court entered its journal entry dismissing the guardianship petition for lack of subject matter jurisdiction. Robert filed a motion to alter or amend the judgment on November 16, 2006. This motion was timely under the mail rule provided in K.S.A. 60-206, and the parties do not dispute the timeliness of Robert’s postjudgment motion. When Robert filed his timely postjudgment motion, the running of the time for appeal terminated. When the district court filed its February 15, 2007, journal entry denying the motion to alter or amend the judgment, the full time for appeal commenced to run again. As this court previously ruled, Robert’s failure to file his notice of appeal within 30 days of the February 15, 2007, journal entry was excused by his failure to receive a signed copy of the journal entry until March 29, 2007. For these reasons, Robert’s notice of appeal filed on April 2, 2007, was timely. Therefore, this court possesses jurisdiction over the appeal.
Did the district court err in dismissing the guardianship petition for lack of subject matter jurisdiction?
Turning to the merits of the district court’s dismissal of the guardianship petition, Robert contends the district court improp erly concluded that it lacked subject matter jurisdiction over the proceeding. Robert’s argument focuses primarily on the district court’s conclusion that Moshe was a resident of New York. Robert argues that Moshe remained a Kansas resident even after he went to New York to attend school and, thus, the district court erred in dismissing the guardianship petition for lack of subject matter jurisdiction.
The filing requirements of K.S.A. 59-3058 are jurisdictional. In re Stremel, 233 Kan. 136, 141, 660 P.2d 952 (1983) (applying former version of the statute). Appellate review of jurisdictional issues is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Granted, a determination of a person’s residence is generally a fact question. See In re Estate of Phillips, 4 Kan. App. 2d 256, 262, 604 P.2d 747, rev. denied 227 Kan. 927 (1980). But, when the facts are undisputed, as here, the application of the facts to tire statute becomes a question of law, over which an appellate court has unlimited review. See Denning v. KPERS, 285 Kan. 1045, 1048, 180 P.3d 564 (2008) (declining to grant deference to agency interpretation of a statute when a question of statutoiy interpretation involved undisputed facts).
K.S.A. 59-3058(a)(1) provides:
“Any person may file in the district court of the county of residence of the proposed ward or proposed conservatee or of any county wherein the proposed ward or proposed conservatee may be found, a verified petition requesting the appointment of a guardian or a conservator, or both, for an adult with an impairment in need of a guardian or conservator, or both. If the proposed conservatee is not a resident of or present within the state of Kansas, such petition may be filed in the district court of any county in which any property of the proposed conservatee is situated.”
Under this statute, a district court has jurisdiction to consider a guardianship petition filed in the proposed ward’s county of residence, or in any county where the proposed ward may be found. Residence requires a person’s physical presence at a certain location and an intent to remain at the location for an indefinite period of time. Teter v. Corley, 2 Kan. App. 2d 540, 543, 584 P.2d 651 (1978). Although both parties focus on Moshe’s physical location and residential intent at the time he turned 18, we believe the pertinent inquiry is whether the district court obtained subject matter jurisdiction when the guardianship proceeding was commenced.
In In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, 913 P.2d 213 (1996), a conservatorship petition was filed in the county where the conservatee resided and the conservatee received notice of the petition. However, the conservatee died prior to the issuance of the letters of conservatorship, and the conservatee’s son later challenged the district court’s continued jurisdiction over the proceeding. The district court rejected the son’s jurisdictional challenge, and the case remained open until the final accounting was filed and the district court issued an order terminating the conservatorship.
On appeal, the court affirmed the district court’s decision concerning jurisdiction. The court held that subject matter jurisdiction attached when the conservatorship proceeding was properly commenced and continued until the proceeding was concluded by an accounting and discharge of the conservator. 22 Kan. App. 2d at 141. The court reasoned that although the conservatee’s death terminated the conservatorship by law, once subject matter jurisdiction had attached, the district court did not lose jurisdiction until the proceeding was concluded by an accounting and discharge of the conservator. 22 Kan. App. 2d at 140-41.
Here, Robert filed tire original guardianship petition on August 28, 2006. Moshe either resided in Johnson County, Kansas, or he could be found in that county when the petition was filed. Moshe received notice of the petition, and he personally appeared at the hearing on August 31, 2006. The district court obtained subject matter jurisdiction over the guardianship proceeding when the proceeding was properly commenced. The record reveals that Moshe did not move to New York until September 3, 2006. Once subject matter jurisdiction had attached, the district court was not deprived of jurisdiction by Moshe’s subsequent move from Kansas. Thus, we conclude the district court erred in dismissing the guardianship petition due to lack of subject matter jurisdiction.
Moshe contends that the district court could not have obtained jurisdiction over the guardianship petition pursuant to K.S.A. 59- 3058 because Moshe was not an adult when the original petition was filed. K.S.A. 59-3058 governs a guardianship petition for an adult with an impairment. Robert filed the guardianship petition about a week before Moshe turned 18, and Robert subsequently amended the petition to allege that Moshe was an impaired adult after Moshe turned 18. Thus, K.S.A. 59-3058 was inapplicable to Moshe on the date the original petition was filed. However, we note that K.S.A. 59-3059, which applies to guardianship petitions for minors, contains the identical jurisdictional filing requirements that are found in K.S.A. 59-3058. Thus, it does not matter that Moshe was not yet 18 when Robert filed the original guardianship petition. Whether the petition was filed under K.S.A. 59-3058 or under K.S.A. 59-3059, subject matter jurisdiction attached when the proceeding was commenced and the district court was not later deprived of jurisdiction when Moshe moved to New York.
A determination that the district court possessed subject matter jurisdiction over the guardianship petition does not end the inquiry, however. Subject matter jurisdiction merely addresses the authority of a court to decide a particular matter; it does not address whether a court should exercise its authority. Such considerations are governed by principles of comity. In re Miller, 5 Kan. App. 2d 246, 253, 616 P.2d 287, aff'd in part and rev'd in part on other grounds 228 Kan. 606, 620 P.2d 800 (1980); see also Head v. Platte County, Mo., 242 Kan. 442, 447, 749 P.2d 6 (1988).
In enacting K.S.A. 59-3058, the Kansas Legislature provided for a district court’s exercise of comity in guardianship and conservatorship cases. K.S.A. 59-3058(a)(3) provides:
“If the court finds it is not in the best interests of the proposed ward or proposed conservatee or in the interests of justice that the proceedings take place in that county and the proposed ward or proposed conservatee is a nonresident of the state of Kansas, the court may dismiss the matter immediately, or may continue the matter for a specific period of time not to exceed 60 days to allow for the filing of proceedings in the state of residence. After the expiration of that period of time, or upon the filing of proceedings in the state of residence, the court shall dismiss the petition without prejudice.”
K.S.A. 59-3058(a)(3) appears designed to address a petition for guardianship or conservatorship that is filed when the proposed ward or conservatee is present in Kansas but is not a resident of Kansas. However, the comity principles inherent in this provision seem equally applicable to circumstances like those presented in this case.
Thus, when the district court obtains subject matter jurisdiction in a guardianship proceeding, but the proposed ward leaves Kansas to reside in another state before a guardian is appointed, the district court may consider whether the Kansas court is the best forum for adjudicating the guardianship issue as a matter of comity. The district court may dismiss the guardianship petition if the court finds it is not in the proposed ward’s best interests or it is not in the interests of justice that the proceeding takes place in that county. Such a dismissal is discretionary. However, there is no justification for demanding the district court to proceed with a guardianship determination blind to changes in circumstances that have occurred after the petition was filed.
Here, even though the district court retained subject matter jurisdiction in the guardianship proceeding after Moshe moved to New York, the district court may dismiss tire guardianship petition if it finds that it is not in Moshe’s best interests or it is not in the interests of justice that the proceeding takes place in Johnson County. If the district court so finds, it may dismiss the matter immediately, or it may continue the matter for a specific period of time not to exceed 60 days to allow Robert to file proceedings in New York. K.S.A. 59-3058(a)(3). However, because the district court previously dismissed Robert’s guardianship petition as a matter of law rather than in the exercise of its discretion, the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded. | [
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Greene, J.:
Natural father appeals the district court’s termination of his parental rights. Concluding that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that father’s rights should be terminated and that such termination was in the best interests of the children, we affirm. .
In February 2007, the children were placed in State custody based on reports that father physically and sexually abused the children and mother failed to protect them. On August 7, 2007, the district court found that father sexually abused B.A.Y., physically abused B.E.Y., mother neglected the children, and both mother and father had emotionally abused the children. Therefore, the district court held that the children were children in need of care.
On November 13, 2007, the State filed a motion to terminate father’s and mother’s parental rights. After a trial, the district court found that their parental rights should be terminated because both parents were unfit by conduct or condition that rendered them unable to care for B.E.Y., B.A.Y., and S.C.Y.
Father timely appeals. Mother timely appealed but has voluntarily dismissed her appeal.
The State must prove by clear and convincing evidence that a parent’s rights should be terminated when the termination follows a child in need of care adjudication. K.S.A. 2007 Supp. 38-2269(a). When an appellate court reviews a trial court’s determination to terminate a parent’s rights under the clear and convincing evidence standard, “it should consider whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence,” that the parent’s rights should be terminated. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
Father generally contends there is insufficient evidence to support the district court’s findings his parental rights should be terminated. He argues that he was making progress toward reintegration and the district court failed to adequately consider facts demonstrating compliance with a plan to reintegrate.
Here, the district court made thorough findings to support its conclusions that both parents were unfit and unlikely to change in the foreseeable future.
The district court found the following statutory factors applied to father: (1) conduct of a physically, emotionally or sexually cruel or abusive nature, pursuant to K.S.A. 2007 Supp. 38-2269(b)(2); (2) excessive use of intoxicating liquors, pursuant to K.S.A. 2007 Supp. 38-2269(b)(3); (3) physical, mental, and emotional neglect of the children, pursuant to K.S.A. 2007 Supp. 38-2269(b)(4); (4) failure of reasonable efforts made by child care agencies to rehabilitate the family, pursuant to K.S.A. 2007 Supp. 38-2269(b)(7); (5) lack of effort by father to adjust his circumstances, conduct, or conditions to meet the needs of his children, pursuant to K.S.A. 2007 Supp. 38-2269(b)(8); and (6) failure to carry out a reasonable plan approved by the court directed toward the integration of the children into the parental home, pursuant to K.S.A. 2007 Supp. 38-2269(c)(3). The district court also held that father lacked accountability for the damage done to the children, father had made little progress on his case plan, and father had not gained any insight into the problems with his behavior during the course of this case.
Based on our review of the record, we are convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that father s rights should be terminated. We note, however, that the district court’s journal entry fails to fully conform to the statute by omitting to state that its finding of unfitness was made by clear and convincing evidence. K.S.A. 2007 Supp. 38-2269(a) clearly directs that parental rights may be terminated “when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders tíre parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” (Emphasis added.) The better practice dictates that the district court expressly reflect in its journal entry that this standard of proof was employed in making all findings.
Moreover, the statute also directs that “[i]f the court malees a finding of unfitness, the court shall consider whether termination of parental rights as requested in the petition or motion is in the best interests of the child.” K.S.A. 2007 Supp. 38-2269(g)(1). Again, the better practice is that the journal entry expressly reflects that the children’s best interests were considered. In a case such as this one, however, where father sexually molested or emotionally abused the children, we are convinced that termination was in the children’s best interests.
Affirmed. | [
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Green, J.:
Miller Paving and Construction, L.L.C. (Miller) appeals from the trial court’s judgment in favor of Rural Water District No. 3 of Miami County, Kansas (Water District) on the Water District’s claim of negligence in the amount of $6,116.33. On appeal, Miller contends that the trial court erred in determining that Miller was negligent. In addition, Miller asserts that the trial court erred in determining that the Water District met its duty of care on all but two occasions. We disagree. Accordingly, we affirm.
Miller was the general contractor on a 14-mile gas line installation project for the City of La Cygne. The project lasted from approximately June 2004 to September 2004. During this time, the Water District received tickets from Kansas One-Call, notifying it that Miller would be doing work in an area where the Water District had water lines. The Water District was a member of and had a contractual agreement with Kansas One-Call. Under its contract with Kansas One-Call, the Water District had agreed that once it was notified of a contractor’s work in a particular area, it would locate, mark, or otherwise provide the approximate location of the underground facilities in a manner as to allow the use of hand-dug test holes to determine the precise location of the underground facility.
Rick Courtney, who owned Courtney Construction, was the water line locator for the Water District. Courtney picked up the Kansas One-Call tickets and proceeded to locate the water lines in the areas where work was being done by Miller. Doug Simms, Miller’s foreman on the gas line installation project, met with Courtney and showed him a map of the area where Miller would be installing gas lines. Courtney then showed Simms the general location of the Water District’s water lines on the map. Courtney also physically marked the approximate location of the water lines with flags.
The water lines located in the area of the gas line installation project had been in place since the late 1960’s, were made of PVC plastic, and did not have tracer wire. In locating these water lines, Courtney referred to the Water District’s maps and diagrams. According to Courtney, however, the Water District’s maps and diagrams were vague and basically told him on which side of a road a water line was located. As a result, Courtney had to rely on his knowledge about the location of several of the water lines during previous repairs. Moreover, Courtney looked for ditch lines and differentials in soil conditions that would indicate where the water lines had been placed.
Kevin James, the managing member of Miller, acknowledged that Courtney had told him that the water lines could not be located with any accuracy.
Apparently, during his contact with Miller, Courtney had stated on numerous occasions that the plastic lines could not be accurately located due to the absence of tracer wire in the pipes. James testified about his experience in using two particular pieces of equipment to ascertain the location of underground utility lines. According to James, when PVC pipes do not have tracing wires, the equipment can be used to attempt to induce a signal in the pipes and then to detect the location of the signal within the pipe. Nevertheless, James did not use this equipment to detect the location of the water lines during the gas installation project. Moreover, although Courtney had heard of the concept of using sonar technology to detect the location of underground utility pipes that did not have tracer wire, he had never been trained on such equipment.
During the course of the gas line installation project, Miller struck and damaged the Water District’s water lines approximately 14 times. Two of the water lines that Miller struck had never been marked by Courtney. James acknowledged that on two or three of the strikes, Miller had hand exposed the water line before striking it. Courtney testified that several of his markings were very close to the location of the water lines (6 inches to 3 feet) and that none of his markings were farther than 5 to 7 feet from the water lines. Simms testified about each line strike and indicated that, aside from the water pipes that Courtney had neglected to mark and the pipes that Miller had hand exposed before striking them, Courtney s markings were 1 to 5 feet from where the strikes had occurred.
When Miller would strike a water line, Simms would call Courtney who would go to the site for repairs. James testified that on all but one occasion, Miller dug out the water line for Courtney to make repairs. On the other hand, Courtney testified that in approximately 50 percent of the strikes, Miller would assist in exposing the water line so that repairs could be made. Courtney testified about the repairs he made after each water line strike and indicated that Miller helped him with the actual repairs on several of the water line strikes. Based on Courtney’s testimony, when Miller struck the water lines, the Water District sustained damages in the form of lost water from the strike, parts used to repair the water lines, additional water used to flush out the water lines, and the amount charged by Courtney for the service call.
In September and October 2004, the Water District sent out invoices to Miller for the damages that it claimed resulted from Miller’s strikes to the water lines. In March 2005, the Water District sued Miller for negligence. Based on the pretrial order in this case, the Water District proceeded to a bench trial under three theories: (1) negligence; (2) strict liability for trespassing; and (3) liability for intentional trespassing for the damages that occurred after Miller became aware of the location of the water lines. Miller raised the defenses of comparative fault, failure to mitigate damages, and consent to enter. In addition, Miller counterclaimed that the Water District was negligent in failing to locate or in failing to properly mark its water lines and claimed damages for its costs for downtime and for repairing the water lines. The Water District alleged the defense of comparative fault.
At the conclusion of the bench trial, the trial court found that Miller owed a duty to exercise reasonable care in its excavation to avoid causing injury to others or to the property of others. The trial court determined that an excavator s standard of care is to exercise ordinaiy care to locate the lines to avoid injury to the property of others when underground lines fall outside the scope of the Kansas Underground Utility Damage Prevention Act (KUUDPA) and when the lines are difficult to locate. Conversely, the trial court determined that the owner or operator of such underground lines does not owe to the excavator a per se duty to specifically locate and mark the lines. The trial court determined that the Water District had fulfilled its duty when it took reasonable steps to put Miller on notice that its water lines were located in the path of the intended areas of excavation and gave Miller its best information about the location of the water lines. The trial court held that in the instances where Miller was notified by the Water District of the presence of a water line at a given site, but Miller failed to dig test holes to determine the precise location of the water line, Miller failed to exercise reasonable care. The trial court noted that in the two instances where the Water District had failed to provide Miller its best information of the location of its water lines, Miller was not liable for the damages invoiced for those dates.
Aside from the two line strikes where the Water District had neglected to mark the approximate location of its water lines, the trial court granted damages to the Water District resulting from Miller s line strikes. In awarding damages, the trial court reduced the damages claimed by the Water District by not allowing damages for items invoiced as “mobilization,” by reducing the items invoiced as “labor” by 50 percent to avoid double recovery, and by correcting the amount billed for parts used in repairing a particular line strike. Accordingly, the trial court entered judgment in favor of the Water District on its negligence claim for $6,116.33 plus costs and postjudgment interest.
Did the Trial Court Err in Determining That Miller Was Negligent?
First, Miller argues that tire trial court erred in finding that it breached its duty to exercise reasonable care and in finding that it had a duty to visually expose the Water District’s water lines before excavating. On the other hand, the Water District argues that the trial court properly determined that when underground lines fall outside tire scope of the KUUDPA and when the Unes are difficult to locate, an excavator is bound to exercise ordinary care to locate such lines so as to avoid injury to the property of others. The Water District further argues that the trial court was correct in finding that Miller had breached this duty of care on all but two occasions.
Miller’s argument requires this court to review the trial court’s findings of fact and conclusions of law. An appellate court reviews the trial court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of conclusions of law. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007). An appellate court does not weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact. LSF, 283 Kan. at 19.
To recover for negligence, a plaintiff must prove the existence of a duty, breach of the duly, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists presents a question of law. Whether a duty has been breached presents a question of fact. Sall v. T's, Inc., 281 Kan. 1355, 1360, 136 P.3d 471 (2006).
Duty of Care
The first question to be determined in this case is whether Miller had a duty of care to the Water District. If so, what was the scope of that duty? Both parties agree with the trial court’s determination that the KUUDPA does not apply in this case. The KUUDPA defines the duty of care that applies to operators of certain underground facilities. See Southwestern Bell Telephone v. APAC-Kansas, Inc., 36 Kan. App. 2d 299, 309-10, 138 P.3d 1238 (2006). Nevertheless, the underground facilities to which the KUUDPA applies is limited by K.S.A. 66-1802(e), which states:
“ ‘Facility’ means any underground line, system or structure used for gathering, storing, conveying, transmitting or distributing gas, electricity, communication, crude oil, refined or processed petroleum, petroleum products or hazardous liquids; facility shall not include, any production petroleum lead lines, salt water disposal lines or injection lines, which are not located on platted land or inside the corporate limits of any city.”
The legislature’s intent, as expressed through tire plain language of K.S.A. 66-1802(e), was not to include water lines when referring to the underground facilities that are covered by the KUUDPA. As a result, the trial court properly determined that the KUUDPA does not apply in this case.
For informational purposes only, we note that our legislature has amended K.S.A. 66-1802(e) to include water lines when referring to the underground facilities that are covered by the KUUDPA. This legislation will go into effect on July 1, 2009. The new legislation establishes a tolerance zone for water lines of “not less than 60 inches of the outside dimensions in all horizontal directions of an underground water . . . facility.” House Bill No. 2637.
Throughout its appellate brief, Miller argues that the trial court, after determining that the KUUDPA did not apply in this case, still used the duty of care under the KUUDPA against it. Miller contends that this was contrary to the common law, which the trial court was required to apply under K.S.A. 77-109. Under K.S.A. 77-109, the common law remains in force in this state where the constitution is silent or the legislature has failed to act. Ling v. Jan's Liquors, 237 Kan. 629, 640, 703 P.2d 731 (1985). Miller further argues that because the legislature excluded water lines from the KUUDPA, the duty of care under a common-law negligence theory must be less stringent than the KUUDPA.
Miller provides no authority for its argument that the duty of care under a common-law negligence theory must be less stringent than the duty of care under the KUUDPA. A party who fails to press a point by supporting it with pertinent authority or by showing why it is sound despite contrary authority or a lack of supporting authority forfeits the point. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002). Moreover, Miller’s argument that the trial court applied die KUUDPA in determining die duty of care is simply unsupported by the record in this case.
What is evident from the record is that the trial court applied common-law concepts to this unique case in order to determine each party’s duty of care. Neither party was able to provide the trial court with a case that defined the duty of care in a situation such as the present one. Miller admits that although it reviewed numerous cases, it was unable to find a case similar to the facts here. As a result, the trial court was faced with the difficult task of applying common-law negligence concepts that had been used in actions involving underground utilities.
As the Water District points out, the trial court, after flatly rejecting the application of tire KUUDPA to the present case, looked to common law as reported in two A.L.R. annotations and to public policy when expressing the rule upon which its primary holding was based. See Annot., Liability of One Excavating on Private Property for Injury to Public Utility Cables, Conduits, or the Like, 28 A.L.R.5th 603; Annot., Liability of One Excavating in Highway for Injury to Public Utility Cables, Conduits, or the Like, 73 A.L.R.3d 987. The trial court noted that although the cases cited in the two A.L.R. annotations were not factually similar to the present case, many jurisdictions had originally looked at these types of cases under a strict liability theory. Specifically, the courts had held that an excavator with notice of the existence of a utility proceeded at its own peril. Other jurisdictions had looked at the cases under a trespass or a constructive notice theory. The trial court noted, however, that the general rule involved an idea of reasonable care.
Pointing out that the common law recognized that the utility already in place had a property interest right, the trial court stated:
“[M]uch of the old case law in the common law theory relies on this general concept — and, that is that the utility that’s in place has a property interest right. First in time, first in right. They’re already there. They don’t get any benefit from the secondary utility coming through.”
The trial court noted that the utility already in place should not be responsible for the cost of identifying water lines that are difficult to locate, particularly when an excavator can incorporate those costs into its bid on a project:
“It makes very little sense, from a public policy perspective, to pass the cost of the disclosure of that line onto them, when they receive no benefit.
“What makes much more sense, from a public policy perspective, is that as applied to the facts in this case, that the contractor is responsible for that cost. Because, then, if the contractor who does the appropriate investigation of the facts before entering their bids, finds out that there’s a Rural Water District with lines that are going to be impossible, if not at least very, very difficult, to locate with any degree of precision, that that cost can be built into that bid.
“Which, is passed onto, in this case, the City; who should be ultimately responsible for the cost of trying to avoid damage to that preexisting utility.
“From a legal perspective, I think you come back to the concept that that utility’s already there, presumably on a lawful easement. And, they don’t get any benefit from this. And, they’re just sitting there . . . and they really don’t have a vested stake in this, except to protect themselves.”
The trial court found that in this case, the parties were dealing with 1960’s vintage PVC line that had no good discernable way of being detected, without some relatively new and sophisticated technology. The trial judge determined that under the particular facts of this case, Miller had the duty to exercise reasonable care to avoid injury to the Water District’s water lines:
“Now, I believe that the rule that Pm about to pronounce for this case, applies only to, at best, non-inherendy dangerous utilities outside die KUUDPA, where lines don’t have simple technology for precise location; like, the finding wire.
“In those instances when a contractor, or subsequent party, is on notice of the existence of that utility, they have to exercise reasonable care to avoid injury to the existing utility.”
The trial court’s decision appears to be in line with the common law. A common theme arising from cases involving underground utilities is that an excavator can be held hable on a theory of negligence where the excavator knew of the existence of an underground facility or should have known that buried utilities would be found in or near the excavation sites and failed to exercise ordinary care. See 28 A.L.R.5th at 618; see also 73 A.L.R.3d at 990 (recovery permitted under theory of negligence where contractor failed to exercise reasonable care under circumstances). Willmar Gas Co. Inc. v. Duininck, 236 Minn. 499, 53 N.W.2d 225 (1952) (contractor performing work for municipality in streets has duty of reasonable care toward owner of gas mains in public streets and is liable for negligence in performance of its work).
In Annot., Damage to Underground Utility, 28 A.L.R.5th, § 16, p. 641, numerous cases are cited where courts have concluded that contractors negligently damaged underground utility conduits during excavation on private property or have held that a cause of action for negligence existed where there was evidence to establish that the contractors had knowledge of the existence of the utilities, or had notice or reason to know of their existence and failed to take reasonable precautions to avoid the damage. See, e.g., R.B. Tyler Co. v. Southern Bell Tel. & Tel. Co., 347 S.W.2d 669 (Ky. 1961) (defendant that knew of presence of underground cable was under duty to exercise at least ordinary care not to damage it).
In this case, where Miller knew that underground water lines were present in its path of excavation, the trial court did not err in determining that Miller had a duty to exercise reasonable care to avoid injury to the Water District’s water lines.
Breach of Duty of Care
The next question for this court’s consideration is whether Miller, during its excavation, breached its duty of reasonable care to the Water District. In determining that Miller had breached its duty of care, the trial court noted that Miller had admitted that it had been told by Courtney that the Water District’s water lines could not be located with any degree of precision. Further discussing the notice that Miller had received concerning the imprecise location of the water lines, the trial court stated:
“[Miller] knew what they were dealing with, going into this whole thing. They were on absolute notice those lines were there. Then, they were on specific notice, because of the conversation that occurred between Mr. Courtney and Mr. Simms. Where, Mr. Courtney, to the best of his ability, let them know the general location. And, those were drawn on those drawings.”
The trial judge then went on to discuss what it felt that Miller should have been doing in exercising its duty of reasonable care:
“In my opinion, any time Miller wasn’t digging some kind of test hole to see exactly where this line was, they were failing in their duty, miserably. They knew these things weren’t going to be accurate. And, it really doesn’t appear, not only from the photographs, but from the testimony, that despite the knowledge of the fact that these markings did not have any particular degree of accuracy, we just kind of took a certain distance away from the flags as best as we can, and ducked fences and trees and just went right on down the line. And, that was not exercising reasonable care in my opinion.”
Miller maintains that the trial court’s ruling requiring it to visually expose the water lines was an erroneous application of K.A.R. 82-14-1(k), which applies to the KUUDPA. K.A.R. 82-14-1(k) states:
“ ‘Reasonable care’ means the precautions taken by an excavator to conduct an excavation in a careful and prudent manner. Reasonable care shall include the following:
(1) Providing for proper support and backfill around all existing underground facilities;
(2) using nonintrusive means, as necessary, to expose the existing faciliiy in order to visually determine that there will be no conflict between the facility and the proposed excavation path when the path is within the tolerance zone of the existing facility;
(3) exposing the existing facility at intervals as often as necessary to avoid damage when the proposed excavation path is parallel to and within the tolerance zone of an existing facility; and
(4) maintaining die visibility of the markings that indicate the location of underground utilities throughout the excavation period.”
K.A.R. 82-14-1(k) merely sets forth some of the precautions that excavators can take to exercise reasonable care to underground facilities. Because this regulation relates to the KUUDPA, the trial court did not apply it to the instant case. Nevertheless, precautions similar to those listed under K.A.R. 82-14-1(k) would be pertinent in a case involving an excavation project in the vicinity of existing underground utilities but not covered by the KUUDPA. For example, it might be necessary for an excavator owing a duty of reasonable care to existing underground utilities to maintain the markings identifying the location of the utilities throughout the excavation period and to expose the existing facility in order to avoid damage. As a result, K.A.R. 82-14-1(k) incorporates the common-law principle that an excavator has the duty to exercise reasonable care to avoid injury to existing underground utilities.
Here, in order to exercise reasonable care to avoid causing injury to the Water District’s water lines, Miller needed to identify the specific location of the water lines before performing its excavation work or to ascertain that the water lines were not in the path of its excavation work. Miller had been notified that the Water District had estimated the location of the water lines but had been unable to ascertain their precise location. Based on what Miller knew about the location of the water lines, it could have exercised its duty of reasonable care by visually exposing the water lines in order to avoid hitting them. Instead, Miller chose to proceed with its excavation efforts, often with heavy equipment, without determining the precise location of the water lines, even though it knew that water lines were located in the vicinity of where it was laying gas lines. Under the facts of this case, Miller’s actions were inconsistent with its duty of reasonable care to avoid causing damage to the Water District’s water lines. As a result, the trial court properly determined that Miller breached its duty of reasonable care.
Did the Trial Court Err in Determining That the Water District Met its Duty of Care on All but Two Occasions P
Finally, Miller argues that the trial court erred in finding that the Water District’s duty of care was to locate its water lines without any specificity or precision other than a flag in the ground and in fining that the Water District had not breached its duty of care. On the other hand, the Water District argues that the trial court was correct in identifying the Water District’s only duty as to notify Miller of the presence of water lines where Miller intended to excavate and in finding that the Water District met this duty of care on all but two occasions.
As stated previously, our standard of review is to determine if the trial court’s findings are supported by substantial competent evidence and are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of conclusions of law. LSF Franchise, 283 Kan. at 19. An appellate court does not weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact. LSF, 283 Kan. at 19.
Duty of Care
The trial court determined that the Water District, once it had been told about Miller’s gas fine project, had a duty to put Miller on notice of the location of its water lines. Nevertheless, determining that the Water District did not have a duty to precisely identify the location of its water lines, the trial judge stated:
“I am unwilling to impose the duty on a Rural Water District in this district, to have to go out and purchase the most sophisticated equipment possible. And, do these sounding sonar things, just so a contractor can know where that water line is.
“Again, I think that’s passing the burden of expense on, and that’s just not equitable and fair. And, I don’t think that should be the policy.”
In arguing that the trial court applied an erroneous duty of care, Miller cites Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, 828 P.2d 923 (1992), for the proposition that the failure of a utility owner to properly mark and locate its underground facility makes it liable on a negligence claim. Nevertheless, Wahwasuck does not include such a broad holding. Wahwasuck dealt with a completely different issue — the foreseeability of personal injury from an underground power line- — than the case at hand. Moreover, Wahwasuck dealt with a dangerous underground power line, a hazard which brings with it a whole body of common law that is not readily applicable to other less dangerous underground utility lines. Wahwasuck does not stand for the broad rule of law that Miller proposes.
In its appellate brief, Miller argues that the duty of care applied by the trial court was erroneous but fails to come forward with any pertinent authority that defines the Water District’s duty of care under the facts of this case. In fact, Miller concedes that there is no Kansas case that directly relates to the facts at issue in this case. Without attempting to specifically define the duty owed to it by the Water District, Miller simply argues that the duty owed to it by the Water District “must be more than simply putting flags in the ground.”
Miller encourages this court to set tolerance zones for water line operators and invites this court to look at the website for Water District No. 1 of Johnson County, Kansas, for information on how another water district has set forth its own tolerance limits. Nevertheless, as the Water District points out, Water District No. 1 of Johnson County, Kansas, was never a party to these proceedings, and the proffered guidelines were never put before the trial court in any document, testimony, or oral argument. Because this information was never presented to the trial court and was never made a part of the appellate record in this case, it will not be considered. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007) (Issues not raised before the trial court cannot be raised on appeal.); State v. Bloom, 273 Kan. 291, 307, 44 P.3d 305 (2002) (Assertions made in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.).
The trial court’s decision in this case appears to be consistent with the common-law principles discussed in the previous issue. Moreover, there appears to be no case that imposes a common-law duty upon a water district to precisely locate its existing water lines that are not readily ascertainable. As found by the trial court, this case involved the location of 1960’s PVC water pipes that contained no tracer wire. Due to the absence of tracer wire, these pipes could not be precisely located with the methods used to locate newer pipes. There was some evidence in the record that attempts to locate the pipes could be made through sonar technology. Although the Water District’s locator had heard of this type of technology, he did not have the equipment with this technology and he had not been trained to use such equipment. The Water District’s locator could estimate the location of the water lines based on the Water District’s maps, the prior locates, and his observations of the land but could not precisely identify the water lines.
Miller, as the contractor on the major gas line project, would be placing underground gas hnes in areas where the Water District’s water lines were already located. Miller had the opportunity to include the cost of locating the water lines in his bid on the project. As the trial court stated, it would not be fair to put the burden of precisely locating the water lines on the Water District when Miller got the bid on the project.
Under the unique facts of this case, the trial court’s determination that the Water District owed a duty of care to Miller to reasonably mark the location of its water lines was proper.
Breach of Duty
Determining that the Water District did not breach its duty of reasonable care except in the two instances where it failed to mark its water lines, the trial court found that the Water District took every reasonable action to try to notify Miller of the water lines. Specifically, the trial court stated that the Water District “went out and did the best they could to mark these locations under the circumstances, and what was available, and what could be reasonably accepted.”
The trial court’s finding is supported by substantial evidence in the record. Once the Water District was notified of the area in which Miller would be excavating, it made reasonable efforts to estimate the location of the water lines for Miller. The Water District’s locator specifically informed Miller that the markings were only estimates and that they were not precise. Under the facts of this case, the trial court properly determined that the Water District did not breach its duty of care to Miller, except in the two instances where the Water District completely failed to mark the water lines.
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Green, J.:
Colony Woods Homes Association (CWHA) appeals the trial court’s interpretation of the Declaration óf Restrictions applicable to homeowners hving in the Colony Woods subdivision. On appeal, CWHA contends that the trial court erred in its interpretation of the homeowners’ restrictions. We agree. Nevertheless, because of its conduct, we determine that CWHA waived compliance with the homeowners’ restrictions. Accordingly, we affirm.
Michael and Nan Falkner own a home located in Colony Woods. CWHA operates Colony Woods undér a Declaration of Restrictions filed in 1975 with the Johnson County Register of Deeds. CWHA is responsible for enforcing compliance with the Declaration of Restrictions. Included are two provisions: one titled “Right to Approve Plans” (Section 7) and the other titled “Required Building Materials” (Section 9). Section 7 contains the following language:
“No building shall be erected, placed or altered on any building plot in this subdivision until the building plans, specifications and plot plan showing the location of such building have been approved in writing as to conformity and harmony of external design with existing structures in the subdivision ....
“Upon any such request for approval the party requesting such approval shall submit simultaneously with said request the following documentation:
“(d) A fist of all exterior materials to be used which will include roof, masonry, siding and windows ....
“ ... In the event said Committee, or its designated representative, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the erection of said building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.”
Section 9 states: “Roofs shall be covered with wood shingles, wood shakes, slate or tile. Any building products which may come into general usage for dwelling construction in this area after the date of these restrictions shall be acceptable if approved in writing by die Architectural Control Committee.” The Architectural Control Committee (ACC) is established in Section 7 as a 5 member group of homeowners which accepts requests for new buildings and alterations and approves the requests under the Declaration of Restrictions.
On December 20, 1998, the ACC disseminated a notice (Notice) to the homeowners of Colony Woods informing them that the ACC “will allow the GAF Grand Sequoia 40yr Weathered Wood color and Celotex Presidential shake 40yr Autumn Blend color as alternative material choices to the current Colony Woods Homes Associations Declaration of Restrictions, pursuant to the ‘other materials which may come into general usage in the area’ clause.” The Notice continued to explain that the ACC had developed a form for every homeowner to use if they were to “install [a] new roof or re-roof or alter their existing roofing materials.” The new approval process outlined in the Notice required the homeowner to fill out and sign the form, include a material data sheet and bid proposal, include a copy of the City of Lenexa’s Building Roofing Permit, and “await a written and signed response from [an] ACC member prior to ordering material or any work to begin.” The Notice specified that the ACC would then have 30 days to respond in writing to any request received. The letter concluded by providing a 2-week period for “comments, objections, or suggestions to the new rule on alternative roofing.”
On or about March 15, 2006, the Falkners completed the replacement of their wood roof with a laminate asphalt shingle roof. CWHA knew, on March 3, 2006, that the Falkners were using materials that did not comply with the Declaration of Restrictions. The Falkners took no action to obtain approval by the ACC before the installation of the new roof. Moreover, on the final day of construction, the Falkners spoke with a member of the ACC who told them that the roofing materials were not an approved product. The ACC member told the Falkners they needed to submit a request form for approval of alternative roofing materials. In a letter dated March 22, 2006, the chairman of the ACC wrote the Falkners telling them that the roofing material they were using had not been approved and that the ACC “will have to deny the use of this material, unless it can be proved that this [was] an approved roofing material.” Further, the letter included a request form for exterior roofing material change. The letter requested that the Falkners fill out an approval form and return it to the ACC by April 18, 2006.
The Falkners returned a completed approval form, dated March 23, 2006, and included the materials used in the re-roofing of their home. Upon receiving no response, the Falkners’ attorney wrote the chairman of the ACC on June 8, 2006, to determine whether the request had been approved. CWHA’s attorney responded with a letter on June 16, 2006, stating that the Falkners’ roofing materials had been disapproved before the submission of the approval request form and that the CWHA would take further legal action.
The Falkners brought an action for declaratory judgment. They requested that the trial court interpret the Declaration of Restrictions. CWHA answered and counterclaimed for an injunction and damages. CWHA moved for summary judgment and the court later held a hearing. At the hearing, the trial court determined that it was uncontroverted that the Falkners did not comply with the original deed restrictions or tire procedures outlined in the Notice to obtain approval for their roof. The trial court further determined that it was uncontroverted that CWHA took no action to enjoin the construction of the new roof before completion. The court ultimately found that CWHA had failed to take action to enjoin the roof replacement within the requirements of Section 7 of the Declaration of Restrictions which states: “ ‘[I]f no suit to enjoin the erection of said building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.’ ” The trial court denied CWHA’s motion for summary judgment.
The court entered judgment in favor of the Falkners and stated that they were not required to remove their roofing materials. The court further entered judgment in favor of the Falkners on CWHA’s counterclaims.
Did the Trial Court Properly Interpret the Declaration of Restrictions P
CWHA argues that the trial court erred in its interpretation of the Declaration of Restrictions because the court used rules of contract construction incorrectly and ignored the intent of the drafter. Further, CWHA argues that it had no duty to respond to the Falkners’ request for approval of their roof. Finally, CWHA argues that the trial court’s interpretation of the Declaration of Restrictions generates an absurdity because it requires CWHA to self-police the subdivision. On the other hand, the Falkners argue that the trial court’s interpretation of the Declaration of Restrictions was correct. In the alternative, the Falkners pleaded affirmative defenses of waiver, estoppel, and laches, and they argue these defenses on appeal.
Standard of Review
This court employs a de novo standard of review for contract interpretation. The interpretation and legal effect of written instruments are matters of law and an appellate court exercises unlimited review. McGinley v. Bank of America N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. City of Lenexa v. C.L. Fairley Constr. Co., 245 Kan. 316, 319, 777 P.2d 851 (1989). Further, this court uses the same rules it applies to interpret contracts to interpret restrictive covenants in deeds. South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, 750-51, 549 P.2d 1035 (1976).
To interpret the Declaration of Restrictions, this court must first ascertain the intent of the parties. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. Anderson v. Dillard’s Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007). An ambiguity in a contract does not appear until two or more meanings can be construed from the contract provisions. Gore v. Beren, 254 Kan. 418, 426-27, 867 P.2d 330 (1994). Furthermore, restrictive covenants contained in deeds should be construed according to the intent and purpose of the grantors collected from the entire document. South Shore Homes, 219 Kan. at 751. An interpretation should not be based on isolating one particular clause or sentence of a contract, but rather by considering the contract as a whole. Johnson County Bank v. Ross, 28 Kan. App. 2d 8, 10, 13 P.3d 351 (2000).
Interpretation of Sections 7, 9, and 22
CWHA argues that the trial court erred by using rules of contract construction and finding both Sections 7 and 9 applied to the Falkners’ reroofing project rather than Sections 9 and 22. CWHA also argues, for the first time on appeal, that Section 22 of the Declaration of Restrictions should apply to this case. Section 22 states:
“[T]he Developer, its successors and assigns, and also die owner or owners of any of the lots hereby restricted shall have the right to sue for and obtain an injunction, prohibitive or mandatory, to prevent the breach of, or to enforce the observance of, tire restrictions above set forth, in addition to ordinary legal actions for damages, and failure of the Developer, its successors or assigns, or any owner or owners of any lot or lots hereby restricted to enforce any of the restrictions herein set forth at the time of its violation shall, in no event be deemed to be a waiver of the right to do so thereafter.”
Although CWHA did not mention Section 22 in its answer and counterclaim or in its motion for summary judgment, CWHA now states Section 22 applies to the Falkners’ reroofing project and allows CWHA unlimited time to pursue legal action against the Falkners. Kansas law is clear that issues not raised before a trial court cannot be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). Nevertheless, because we make our own interpretation of contracts, this court will consider Section 22’s application in this case. See City of Lenexa, 245 Kan. at 319.
At the hearing on CWHA’s motion for summary judgment, the trial court stated that the restrictions in the declaration must be read together. The judge stated: “They don’t need to do any rules of construction if we can see that plain language read in its normal sense, in a rational sense within the four corners of the file documents. We don’t have to do any rules of construction if we don’t see any ambiguity.” The court went on to make the following findings: (1) that Section 9 of the Declaration of Restrictions gives proper notice to a homeowner in Colony Woods that the ACC has authority to determine which alterations are allowed in the subdivision, (2) that Section 7 of the Declaration of Restrictions es tablishes the ACC and explains its authority, (3) that the Notice sets out specific acceptable alternative materials for roofs and also provides a form for homeowners to request approval under Section 9 for any roofing construction. As a result, the court found it “uncontroverted that the applicants need to follow' those procedures, and these plaintiffs [the Falkners] did not comply with the . . . timely making of an application to the architectural control committee.”
Nevertheless, the trial court also found it uncontroverted that CWHA took no action to enjoin the Falkners’ construction before the completion of the project. After close examination of Section 7, the trial court determined that the Declaration of Restrictions required the. ACC to file suit to enjoin the construction before completion in order to enforce the restriction. The trial court determined that the clause was reasonable considering the expense spent on reroofing projects and held that the ACC had failed to comply with die provision. Finally, the trial court noted that the Declaration of Restrictions contained a procedure for amending the document, if the CWHA found it necessary.
A quick review of Section 9 is necessary. Section 9 outlines the required building materials for homes in Colony Woods. In addition to specifying the requisite materials for the exterior walls, windows, and doors, this section outlines the following requirement for roofs: “Roofs shall be covered with wood shingles, wood shakes, slate or tile.” Section 9 further states that any other building products will be deemed acceptable after approval in writing by the ACC, although it specifies no procedure for a homeowner to obtain approval. At the hearing, CWHA argued that Section 9, not Section 7, should apply to this case. On appeal, CWHA makes the same argument.
CWHA’s argument ignores the fact that Section 7 also contains language pertaining to this case. Section 7 requires approval by the ACC before any building is “erected, placed or altered.” The trial court was correct in determining that replacing a roof is altering a building under Section 7. Section 7 also specifies the ACC’s role, including naming the members and providing for the procedure to dismiss any member. Further, Section 7 outlines the specific pro cedure to obtain approval for the erection, placement, or alteration of a building. Finally, CWHA’s approval form used by homeowners to request an exterior roofing material change states: “I have read and will comply with all of the applicable Colony Woods Homes Association’s Declarations of Restrictions particularly the Section VII and Section IX, with regards to the plan approval process and required building materials.” Clearly, Section 7 would be applicable to a homeowner’s reroofing project.
Despite CWHA’s desire to have Sections 7 and 9 read distincdy and separately from each other, it is necessary to construe all provisions of a contract together and in harmony with each other to determine the parties’ intent. Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 671, 876 P.2d 1362 (1994). ‘Where the language of the contract is clear and can be carried out as written, there is no room for construction or modification of the terms. [Citation omitted.]” 255 Kan. at 671. The two provisions are not contrary to each other and can be read together. While Section 9 outlines the approved building materials when the Declaration of Restrictions was drafted and allows the ACC power to approve additional materials, Section 7 furnishes the specific procedure by which a homeowner can obtain approval from the ACC for any additional buddings or alterations of existing buildings. Further, Section 7 explains the purpose of the ACC, which, as CWHA discussed at the hearing, must necessarily be pertinent to this case if the ACC has any authority over the Falkners’ roofing project. These provisions are not contrary to each other and no alternative meaning can be extrapolated from the provisions. Thus, there is no ambiguity and no need to employ contractual rules of construction.
Further, in considering the Declaration of Restrictions as an entire document, it is clear that Section 22 is a general clause regarding the ability of CWHA and individual homeowners to enforce the Declaration of Restrictions while Section 7 applies specifically to situations where homes are “erected, placed or altered.” Thus, if CWHA or a homeowner wanted to file suit to require another homeowner to sod their yard under Section 10, or to prevent another homeowner from installing an above-ground swimming pool under Section 13, or even to restrict another homeowner from conducting automotive repair on their land under Section 18, they would do so by filing suit under Section 22 because none of the provisions contain a more specific clause regarding the approval procedure and legal process. Like Section 9, Section 22 can be read in harmony with the more specific procedures outlined in Section 7.
This interpretation of Section 22 is consistent with this court’s decision in Colony Woods Homes Association, Inc. v. Pevehouse, No. 77,467, unpublished opinion filed May 22, 1998, which CWHA cites in support of its argument on appeal. In Pevehouse, CWHA appealed a trial court’s denial of an injunction relating to a shed and treehouse located on a homeowner’s land. This court held that Sections 7 and 22 of the Declaration of Restrictions were in harmony with each other. For example, Section 7 applied to the approval of plans for residential structures while Section 22 applied to the right to enforce the restrictions regarding Sections 10 through 20 and the “various limitation or prohibition provisions concerning the use of property.” Slip op. at 7.
Finally, even if this court were to assume some error or uncertainty regarding Sections 7, 9, and 22, any such error would not create an inconsistency by which the overall intent cannot be determined from the documents. In such a situation, this court would not consider the document to be ambiguous. “When the intent of the parties to a contract is clearly ascertainable by construing the document from its four corners it is not considered ambiguous; although some terms may be conflicting, extrinsic evidence is inadmissible and rules of construction applicable to ambiguous contracts do not apply.” Brown v. Lang, 234 Kan. 610, 614-15, 675 P.2d 842 (1984). Again, this court may not consider the Declaration of Restrictions ambiguous unless two or more meanings can be construed from its terms. See Beren, 254 Kan. at 426-27. That is not the case here, and any conflict between Sections 7, 9, and 22 can be clarified by construing the Declaration of Restrictions as a whole.
CWHA challenges the trial court’s holding that “[i]t would appear that [CWHA has] no right as a matter of law to enforce this restriction as it’s set out in section 7 of the declarations, because they didn’t timely file a suit before the completion.” Although CWHA incorrectly argues that Section 7 is inapplicable to this case, CWHA is correct when it contends that the trial court’s holding is incorrect and inconsistent to what we said in Pevehouse. In Pevehouse, this court considered Section 7 and stated the following:
“Even if the trial court had been correct in its assumption that section VII applied, the trial court erred in its interpretation of the language of this section. Section VII requires Pevehouse to submit building plans, specifications, and a plot plan to the Committee and to obtain its approval before building any structure. The Committee would have 30 days to approve or disapprove the structure. Pevehouse cannot take advantage of the saving clause of this section without first complying with the requirement that he submit his plans to the Committee. Because Pevehouse failed to meet this requirement, we hold that Colony Woods timely filed this action.” Slip op. at 8.
Although the previously mentioned statement in Pevehouse is dicta, the statement is helpful in understanding Section 7’s interrelationship with Section 22. Here, the trial court correctly determined that the Falkners had failed to follow the proper procedures to obtain approval of their roofing material. According to Pevehouse, the Falkners’ failure to seek initial approval from the ACC to re-roof their home would have precluded them from taking advantage of the saving clause under Section 7. We agree with that interpretation. Moreover, Section 22 would have controlled this situation because, as CWHA argues, the Falkners had failed to seek prior approval of their building plans under Section 7. As a result, the trial court’s holding on this point is incorrect.
Nevertheless, if a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. The reason given by the trial court for its ruling is immaterial if the result is correct. Hall v. Kansas Farm Bureau, 274 Kan. 263, 273, 50 P.3d 495 (2002).
CWHA’s Duty to Respond to the Falkners’ Request for Approval
CWHA argues that it had no duty to respond to the Falkners’ request for approval of their reroofing project. CWHA argues that a response would have been useless because the Falkners had been notified that the materials used to roof their home had been dis approved. Nevertheless, immediately upon receiving the ACC’s letter dated March 22, the Falkners complied with the approval procedure and returned all necessary paperwork. Although the ACC’s letter stated that “[t]his roofing material is not approved as far [as] we can tell,” the letter stated that “[w]e need a request formed [sic] filled out correctly with what materials were used and the color that was used.” The letter requested the form be returned by April 18, 2006.
Unlike the homeowner in Pevehouse, the Falkners complied with the approval request procedure and returned all necessary paperwork to the ACC. Moreover, after waiting nearly 3 months for a response, die Falkners had their attorney inquire as to whether their materials had been approved. CWHA’s explanation, however, for its lack of response to the Falkners’ approval request form runs counter to reason. If the materials had already been disapproved before the Falkners had submitted their approval request form, why ask them to submit a form by April 18, 2006? Assuming for the salce of argument that ACC had disapproved the materials used before the Falkners had submitted their approval request form, this does not end our analysis. The Falkners, for example, were also seeking to be excused from literal compliance with the previously mentioned approved roofing materials listed in the Notice and the ACC’s letter of March 22, 2006.
Section 9 specifically states: “Any building products which may come into general usage for dwelling construction in this area after the date of these restrictions shall be acceptable if approved in writing by the Architectural Control Committee.” Clearly, the ACC had the authority to excuse the Falkners from literal compliance with the materials listed in the Notice and its letter of March 22, 2006, and find acceptable the roofing materials used by the Falkners. Moreover, if the ACC did not have the authority to excuse the Falkners’ noncompliance with the approved roofing materials, why would it ask them to submit an approval request form when, as CWHA contends, the ACC had disapproved the roofing materials used by the Falkners?
One of the arguments that the Falkners make in support of the trial court’s decision is waiver. A waiver is the intentional relin quishment of a known right, and intention may be inferred from conduct. Iola State Bank v. Biggs, 233 Kan. 450, 458-59, 662 P.2d 563 (1983); see also Postal Savings & Loan Ass’n v. Freel, 10 Kan. App. 2d 286, 287, 698 P.2d 382 (1984) (An intent to waive may be inferred from conduct.).
In defining the word “waiver,” our Supreme Court stated that it was “an intentional renunciation of a claim or right and exists only where there has been some absolute action or inaction inconsistent with that claim or right.” Proctor Trust Co. v. Neihart, 130 Kan. 698, 705, 288 Pac. 574 (1930). Moreover, justified and reasonable reliance upon an implied waiver will also excuse nonfulfillment of a condition. See Foundation Property Investments v. CTP, 286 Kan. 597, 609, 186 P.3d 766 (2008) (“Waiver of a contract provision may be implied from the parties’ conduct.”). Although our research has revealed no case exactly on point with the issue in this case, we can draw guidance from the decision in Lee v. Casualty Co. of America, 90 Conn. 202, 96 A. 952 (1916). Lee is instructive because it shows that a party by its conduct may waive a condition as to notice even after the condition to its duty to perform has been breached.
In Lee, the insured’s casualty insurance policy contained a condition precedent to the insurer’s duty to defend: that the insured promptly notify the insurer of a claim covered by the policy and, if sued, promptly deliver the summons and legal papers to the insurer. The insured failed to do either act promptly, but did eventually comply with the condition precedent. The Connecticut Supreme Court found the insurer waived the insured’s delay for the following reasons: (1) the insurer received and accepted tardy notice of the accident claim; (2) the insurer, for 2 months, negotiated unsuccessfully with the injured claimant for a settlement; (3) and the insurer asked the insured for further information, which the insured furnished.
Similarly, the chairman of the ACC wrote the Falkners, in a letter dated March 22, 2006, inviting them to submit information on the roofing material that they had used. Moreover, the ACC received and accepted the tardy approval request form. The letter stated that the ACC “will have to deny the use of this material, unless it can be proved that this [is] an approved roofing material.” Although CWHA contends that it had denied the roofing materials used by the Falkners in its March 22, 2006, letter, its letter does not support this assertion. The letter specifically stated that the ACC “will have to deny the use of this material, unless it can be proved that this [was] an approved roofing material.” (Emphasis added.) CWHA’s use of the word “will” indicates future conduct on its part. In fact, the approval request form submitted by the Falkners contained the following information to be completed by the ACC:
Do not write below this line — for Architectural Committee use only
ACC Received Date: _ ACC Approved: YES-NO—
ACC Reviewed By: _ Owner Notified: -
ACC Reviewed Date: _ Notification Date: -
ACC Comments: -
Based on the information to be completed by the ACC, it was apparent that the ACC would have reviewed the Falkners’ approval request form, approved or disapproved their request, and notified them of its decision.
Although the Falkners took no action to obtain approval from the ACC before installation of the new roof, they sought approval for their new roof after the ACC had invited them to do so by April 18, 2006. Moreover, the ACC never told the Falkners that it would not accept or consider their approval request form. Finally, the fact that the March 22, 2006, letter requested that the Falkners submit an approval request form by a specific date implied that the ACC was willing to consider the approval request form even though it was tardy. Could the ACC withdraw and nullify its implied waiver of the condition to submit a timely approval request form? Yes, if promptly done, but not, as here, after the Falkners had relied on ACC’s invitation to submit a tardy approval request form. The ACC did not have to invite the Falkners to submit an approval request form. Yet, it did. When it received the Falkners’ approval request form, it could have immediately rejected it, but it did not.
Once a homeowner has submitted an approval request form to the ACC to erect or to alter a building under Section 7, the ACC could disapprove the homeowner’s request form in one of three ways: (1) by notifying the homeowner in writing of the adverse decision within 30 days after submission of the homeowner’s approval request form; (2) by filing suit to enjoin the erection or the alteration of the building before completion of the work when either the homeowner has started work before obtaining written approval from the ACC or the ACC has failed to notify tire homeowner in writing of the adverse decision within 30 days after submission of the homeowner’s approval request form and the homeowner has started work; or (3) by doing both (1) and (2) previously mentioned. Because the ACC allowed the Falkners to submit an approval request form after they had completed their roofing project, the ACC was left with only alternative (1) to disapprove their roofing job.
CWHA correctly argues that Section 22 would be applicable to homeowners who have failed to seek prior approval to erect or to alter a building under Section 7. Indeed, because there was no uncertainty between tire general provision of Section 22 and the specific provision of Section 7, the general provision of Section 22 would control situations where homeowners have failed to seek prior approval of their building plans under Section 7. Nevertheless, because of the unique facts of this case, Section 22 is inapplicable to this situation and Section 7 controls: because the ACC invited the Falkners to submit an approval request form after the roofing project had been completed and because the ACC accepted the Falkners’ tardy approval request form.
In summary, Section 7 specifically requires a homeowner to seek prior approval from the ACC of all exterior materials to be used in erecting or altering a home. When the ACC invited and accepted the Falkners’ approval request form, this was strong evidence, manifested by ACC’s conduct, that it intended to waive compliance with the condition requiring a prior submission of an approval re quest form under Section 7. Moreover, the Falkners relied upon this intended waiver by submitting their approval request form well in advance of the April 18, 2006, time period for submitting such a request. As a result, the ACC was required to either approve or disapprove the Falkners’ approval request form within 30 days after its submission. Yet, the ACC failed to comply within the 30-day notification period.
Because die ACC failed to disapprove the Falkners’ approval request form within 30 days after its submission to the ACC and because no suit had been filed by CWHA to enjoin the roof project before its completion, we determine that the CWHA, by its conduct, waived approval of the roof under Section 7.
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Malone, J.:
Shannon D. Tatum appeals his convictions of one count each of cultivation of marijuana and possession of drug paraphernalia. The single issue is whether the district court erred in denying Tatum’s motion to suppress the evidence. Specifically, Tatum claims the district court erred in ruling that his consent to search his residence was voluntary. Although we disagree in part with the district court’s legal analysis, we uphold the district court’s ultimate conclusion that Tatum’s consent was voluntary.
On June 10, 2004, Kansas Bureau of Investigation (KBI) Agent Greg Skelton was conducting surveillance at the Green Circle Hydroponics Store in Overland Park, Kansas. The store sells items used for cultivating plant life indoors with or without sod, which can also be used to grow marijuana indoors. The investigation involved agents documenting the store’s customers and their purchases both photographically and with their vehicle tags and descriptions. Skelton observed Tatum leaving the store with a bag that Skelton believed contained a jug of liquid fertilizer, which is commonly used in the cultivation of marijuana. Later, the KBI learned Tatum’s name and residence through his vehicle tag.
Over the next year, KBI agents unsuccessfully attempted to contact Tatum at his residence, sifted through his trash for marijuana residue or paraphernalia, and examined his utility records. When Skelton went to Tatum’s residence, he observed it had a second air conditioning unit for the basement. This was significant to Skel ton because the use of high intensity lights to artificially create sunshine for marijuana grown indoors creates tremendous heat which needs to be cooled down in the area where the plants are grown. Skelton also observed clay balls in the landscaping near Tatum’s front door, which are typically used as a substitute for soil to grow plants indoors.
On June 23, 2005, at approximately 11:15 a.m., Skelton and KBI Senior Special Agent Gary Smith arrived at Tatum’s residence in an unmarked car and were wearing street clothes which covered their weapons. They knocked on the front door or rang the doorbell and Tatum answered. Skelton and Smith identified themselves as KBI agents and showed Tatum their badges. Tatum stepped out on his front porch and closed the door behind him. Skelton told Tatum they were following up on information that he was growing marijuana inside the residence. Skelton wanted to give Tatum the impression that they knew he was growing marijuana and had evidence against him. Skelton pointed out the clay balls in the front planter by the porch and told Tatum that he knew they were used for growing marijuana.
Tatum initially denied any knowledge of illegal drug activity. The agents informed Tatum that he would not be arrested but that they would like to come into the residence with his permission to collect the marijuana and cultivation equipment which would be presented to the district attorney. Both agents testified that they informed Tatum that they did not have a search warrant and that Tatum did not have to consent to the search.
Tatum was in his early 40’s with a college education, he had a job in the medical field, he could read and write, and he appeared to understand the agents’ questions. He was primarily concerned about his neighbors’ perceptions if his house was searched by the police and he was arrested in front of his neighbors. The agents assured Tatum that they would not use marked units or officers in uniform to assist in the search and the collection of evidence and he would not be arrested that day. During this conversation, Tatum was never physically detained or handcuffed, none of his physical property was taken, the agents never yelled or raised their voices, no threats were made, no weapons were drawn, and the tone was pleasant and conversational.
After 5 to 10 minutes, Tatum consented to the search and invited the agents inside the residence. At Skelton’s request, Tatum walked the agents through the house and pointed out the items associated with growing marijuana indoors. At that point, Smith enlisted the help of some other agents, while Skelton sat down in the living room with Tatum and went over a written consent to search form. Tatum signed the consent. Tatum never changed his mind or attempted to revoke his verbal or written consent.
While the other agents collected the evidence, Skelton informed Tatum that he would like to interview him but that it was completely voluntary. Tatum agreed to talk and gave Skelton a full statement regarding his growing marijuana. When the interview was over, Skelton thanked Tatum for his cooperation, gave him a business card, and asked if he felt threatened or coerced while the agents were there. Tatum replied in the negative and thanked the agents for their professionalism at his residence.
Tatum’s testimony was consistent with the agents’ testimony for the most part, except Tatum denied that the agents informed him that he did not have to consent to the search. According to Tatum, the agents told him that he could either do it the easy way or the hard way, but one way or another the agents would ultimately search his residence. Tatum testified he felt intimidated because the agents gave him the impression that they already had evidence against him.
Tatum was charged with cultivating marijuana and possession of drug paraphernalia. Tatum filed a motion to suppress the evidence, arguing he was subjected to an illegal seizure and his consent to search was involuntary. Following a hearing, the district court issued a memorandum decision. The district court found the facts consistent with the agents’ testimony. The district court noted that the testimony was conflicting on whether the agents informed Tatum that he did not have to consent to tire search, but the district court concluded the “discrepancy is not dispositive.” The district court denied the motion to suppress, reasoning that although the initial voluntary encounter turned into an illegal seizure, Tatum’s subsequent consent was the product of his own free will and was sufficient to purge the illegal detention. Tatum was found guilty as charged following a bench trial on stipulated facts. He timely appeals.
Tatum claims the district court erred in denying his motion to suppress the evidence. Tatum argues that the district court should have suppressed the evidence seized from his residence and his statements to the agents because they were the result of an illegal detention and an involuntary consent to search. Tatum also argues there was no intervening event to purge the taint of the illegal detention.
The State claims the district court was right for the wrong reason. The State argues that the district court’s legal determination that the voluntary encounter turned into an illegal seizure was erroneous. However, in the event there was an illegal seizure, the State agrees with the district court that Tatum’s subsequent voluntary consent to search purged the taint of the illegal detention.
An appellate court reviews the district court’s decision on a motion to suppress evidence using a bifurcated standard. Without reweighing the evidence, the appellate court reviews the district court’s factual findings to determine whether they are supported by substantial competent evidence. The appellate court then reviews the ultimate legal conclusion regarding the suppression of evidence using a de novo standard. State v. Wooverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
In keeping with the district court’s analysis, we will first determine whether the district court was correct in deciding that the voluntary encounter between Tatum and the agents escalated to an illegal seizure. We will then review the district court’s decision that Tatum’s consent to search was voluntary and purged the taint of the illegal detention.
The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of Kansas Constitution Bill of Rights contains similar language and “provides protection identical to that provided under the Fourth Amendment to the United States Constitution.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003). The Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights have been found to give special deference to the sanctity of privacy in an individual’s home. See State v. Platten, 225 Kan. 765, 768-69, 594 P.2d 201 (1979).
The four types of police-citizen encounters are voluntary or consensual encounters, investigatory detentions, public safety stops, and arrests. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). A voluntary encounter does not implicate the Fourth Amendment because a person voluntarily interacting with law enforcement is not considered to be seized. State v. Young, 37 Kan. App. 2d 700, 703-04, 157 P.3d 644 (2007).
The law is well settled that a law enforcement officer, without any reasonable suspicion of criminal activity, may approach a residence by a route available to the general public, knock on the door of the residence, and speak with an occupant of the residence who responds to the knocking. See, e.g., State v. Fisher, 283 Kan. 272, 296, 154 P.3d 455 (2007). Such an encounter, known as a knock- and-talk, is consensual and does not implicate a citizen’s Fourth Amendment rights. See State v. Dwyer, 28 Kan. App. 2d 238, 240, 14 P.3d 1186 (2000), rev. denied 270 Kan. 900 (2001).
However, such a voluntary encounter may become a seizure if an officer by word or deed demonstrates a show of authority which would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority. Morris, 276 Kan. at 18-19. A court looks to the totality of the circumstances to determine whether a particular encounter constitutes a seizure impheating Fourth Amendment rights. The test of whether a seizure has occurred is based on whether a reasonable person would have felt free to decline an officer’s requests or otherwise terminate the encounter. Thompson, 284 Kan. at 775. In order for a seizure to be legal, a law enforcement officer must reasonably suspect a person is involved in criminal activity. Young, 37 Kan. App. 2d at 704.
Appellate review of the district court’s determination of whether a reasonable person would feel free to refuse the officer’s requests or otherwise terminate the encounter consists of two parts: (1) the factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or to terminate the encounter, is reviewed under a de novo standard. Thompson, 284 Kan. at 776.
The Kansas Supreme Court has identified several objective factors to be used to consider whether there was a coercive show of authority such that a reasonable person would not feel free to disregard the officer: presence of more than one officer, the display of a weapon, physical contact, or the use of a commanding tone of voice. State v. Lee, 283 Kan. 771, 775, 156 P.3d 1284 (2007). Additionally, the Tenth Circuit Court of Appeals has discussed several factors to be used in determining when a voluntary encounter becomes a seizure: the location of the encounter, particularly whether it is an open place in view of other people; whether the officers touch or physically restrain the defendant; whether the officers are in uniform or plain clothes; whether a weapon is displayed; the demeanor, number, and tone of voice of the officers; whether the officers retain any personal items of the defendant, such as tickets or identification, and for how long; and whether the defendant was specifically advised of his right to terminate the encounter or refuse consent. United States v. Zapata, 997 F.2d 751, 756-57 (10th Cir. 1993).
We will discuss two Kansas cases helpful in analyzing when a consensual encounter becomes a seizure. In Dwyer, law enforcement officers contacted the defendant at his residence and talked to him outside his apartment door which he was holding shut behind him. The officers testified they smelled burning marijuana and asked the defendant if he would show them where the marijuana was located. According to the officers, the defendant responded, “ ‘Yeah, okay,’ and went into his apartment, leaving the door open behind him.” 28 Kan. App. 2d at 239. The officers interpreted this to mean they had permission to enter, did so, and then obtained the defendant’s permission to further search the apartment. The defendant testified that the officers asked him to get the marijuana, that he did not expect them to enter his apartment, and that he did not consent to a later search. The defendant agreed the officers did not yell or use a loud tone of voice, did not touch or physically intimidate him, and did not prevent him from leaving the area outside the front door.
On appeal, the defendant argued that the conversation outside the door amounted to an unlawful seizure. The court rejected this argument reasoning that the defendant’s own testimony belied the conclusion that his freedom was restricted in any meaningful way. The court concluded that “the politely and calmly executed ‘knock and talk’ conversation outside the apartment did not constitute an investigatory detention.” 28 Kan. App. 2d at 240. Relying on the district court’s assessment of the credibility of the witnesses, the court found that the defendant voluntarily, unequivocally, and specifically consented to the officers’ entry into the apartment and to its subsequent search. 28 Kan. App. 2d at 240-41.
In State v. Kermoade, 33 Kan. App. 2d 573, 105 P.3d 730, rev. denied 279 Kan. 1009 (2005), law enforcement officers received a tip from an unreliable source that the defendants were growing marijuana in their home. Dressed in plain clothes, two officers knocked on the door, and a woman answered by opening the door only slightly. The woman refused the officers’ request to come inside. The officers then asked the woman to step outside, which she did, shutting the door behind her. The officers explained they were investigating her neighbor and believed the neighbor was growing marijuana in the woman’s home, and the officers asked for consent to search the residence. The woman made it clear that she did not want the officers entering her home. The officers explained that if she did not consent they would apply for a search warrant, which the judge may or may not grant. The officers explained they would secure the residence and although people would be free to leave, anyone who stayed would have to be in the presence of an officer.
At that point, the woman said she wanted to speak with her husband. She went into the basement of the house outside the officers’ view, leaving the door cracked open. After the woman was inside the house for several minutes, the officers became concerned that evidence was being destroyed. The officers testified they smelled fresh marijuana, and they called for the woman to come upstairs. The officers then entered the residence, and the testimony differed whether the officers were let in or came in on their own. The officers sat down in the living room with the husband and wife and had a 30-minute conversation where the possibility of a search warrant was discussed again and the officers sought consent to search the home. Ultimately, the husband and wife both consented to the search of the home where marijuana and equipment was discovered. After being charged, the defendants filed a motion to suppress the evidence which the district court granted. The district court concluded from the evidence that “the ‘knock and talk’ turned” into a “ ‘knock and twist the arm out of the socket’ because [the officers] would not take ‘no’ for an answer.” 33 Kan. App. 2d at 577.
On appeal, the court reasoned that although the initial encounter was a lawful “knock and talk,” it transformed from a consensual encounter into a seizure when the officers asked the woman to step outside her home, when the officers would not take “no” for an answer, when they yelled for the woman to come back to the door after she was inside for several minutes, and when the officers said they would remain with each occupant of the home while a search warrant was sought. The court further noted that the defendants’ movements were restricted and controlled, that the encounter lasted over 30 minutes, and that the officers’ actions were coercive such that a reasonable person in the defendants’ situation would not have felt free to disregard the officers’ demands. The court then found that the seizure was unlawful because the officers had only an unreliable tip without corroborating evidence that the defendants were engaged in illegal activity. The court determined that the defendants’ subsequent consent was not voluntary so as to purge the taint of the illegal seizure. The court reasoned that the officers’ persistence overcame the defendants’ will and there was no sufficient intervening time or event between the illegality and the evidence obtained. 33 Kan. App. 2d at 580-82.
Returning to our case, the district court relied heavily on Kermoade in determining that Tatum was illegally seized. Although the district court found the initial encounter was voluntary, the district court concluded that under the totality of the circum stances, the agents did not have a lawful basis to continue questioning Tatum after he initially denied any knowledge of illegal drug activity. The district court reasoned that the agents had little or no evidence of criminal activity and no disinterested magistrate would have authorized a search warrant based on the information available to the agents before they approached Tatum’s residence. The district court noted it had been over 1 year since Skelton observed Tatum purchase the fertilizer from the store under surveillance. The KBI’s investigation of Tatum’s residence during that year had revealed no material evidence. The district court found that Skelton’s observations of the air conditioner and the clay balls were insignificant because the items had a legitimate use as well as an illegal one. Finally, the district court reasoned that the agents’ initial conversation with Tatum on the front porch did not give rise to reasonable suspicion of criminal activity.
The State argues the district court’s legal determination that the voluntary encounter turned into an illegal seizure was erroneous. The State reasons that the district court incorrectly focused on the agents’ lack of evidence of drug activity and whether reasonable suspicion of criminal activity existed to continue questioning Tatum, which is not required for consensual encounters. The State argues that the district court should have focused on whether a reasonable person in Tatum’s situation would have felt free to decline the agents’ requests or otherwise terminate the encounter.
We find the State’s argument persuasive. Review of the district court’s memorandum decision suggests that the district court skipped a step in its analysis by determining whether the encounter between Tatum and the agents was an illegal seizure before determining if the encounter was in fact a seizure. In Kermoade, the court first determined that a seizure had in fact occurred because a reasonable person in the defendants’ situation would not have felt free to disregard the officers’ demands. Only after making this initial determination did the Kermoade court consider whether the officers had reasonable suspicion of criminal activity to detain the defendants. 33 Kan. App. 2d at 588.
Essentially, the district court determined that Tatum was illegally seized because the agents lacked reasonable suspicion of crim inal activity to detain Tatum after he initially denied any knowledge of illegal drug activity. However, the district court failed to evaluate whether Tatum was seized in the first place. As long as Tatum’s encounter with the agents remained consensual, there was no requirement for reasonable suspicion of criminal activity in order for the agents to continue their questioning. A voluntary encounter is not considered a seizure and does not require a law enforcement officer to have reasonable suspicion of criminal activity. Young, 37 Kan. App. 2d at 704.
The facts of this case fall somewhere between the defendant’s immediate cooperation with officers in Dwyer and the persistent drawn out process to obtain consent in Kermoade. However, this case is clearly distinguishable from Kermoade, relied on by the district court. Although Tatum initially denied any knowledge of illegal drug activity, Tatum never informed the agents that he did not want them in his home, as the woman did in Kermoade. Unlike the woman in Kermoade, Tatum did not go back into his house and then receive an order to return to the door. Furthermore, the agents did not threaten to secure Tatum’s residence to obtain a search warrant, as the officers did in Kermoade. Tatum’s encounter with the agents lasted 5 to 10 minutes as opposed to the 30-minute encounter in Kermoade. During the conversation, Tatum was never physically detained or handcuffed, the agents never yelled or raised their voices, no threats were made, no weapons were drawn, and the tone was pleasant and conversational.
We conclude that the district court’s legal determination that the voluntary encounter turned into an illegal seizure was erroneous. Under the totality of the circumstances, a reasonable person in Tatum’s situation would have felt free to decline the agents’ requests or otherwise terminate the encounter. See Thompson, 284 Kan. at 775. The agents’ continued conversation with Tatum following his single denial of illegal drug activity was insufficient for the district court to determine that the voluntary encounter with Tatum transformed into a seizure. See United States v. Woodward, 873 F. Supp. 535 (D. Kan. 1994) (10-minute knock and talk on porch based on anonymous tip of drug activity was not a seizure even when defendant initially denied drug activity where officers were in plain clothes, did not display weapons, and did not touch or physically restrain defendant).
The final question to be decided is whether Tatum’s consent to search his residence was voluntary. The State bears the burden of showing that Tatum’s consent to search was freely and voluntarily given. The Kansas Supreme Court has stated that voluntariness of a consent to search is a question of fact to be determined from all the circumstances. State v. Moore, 283 Kan. 344, 360, 154 P.3d 1 (2007). For a consent to search to be valid, there must be clear and positive testimony that the consent was unequivocal, specific, and freely given without duress or coercion, express or implied. Thompson, 284 Kan. at 776. An appellate court reviews the district court’s determination of the voluntariness of a consent to search for substantial competent evidence. Moore, 283 Kan. at 360.
Many of the factors that are relevant in determining whether the encounter between Tatum and the agents was consensual are also relevant in determining the voluntariness of Tatum’s consent to search. The evidence that the agents were in plain clothes, did not display weapons, used a conversational tone, did not threaten or touch Tatum, and assured him he was not going to jail and that the conversation lasted only 5 to 10 minutes clearly supports a conclusion that Tatum’s consent to the search was voluntaiy. At the conclusion of the search, Tatum acknowledged to Skelton that he did not feel threatened or coerced and he thanked the agents for their professionalism.
Tatum claims that he was tricked into giving consent because the agents gave a false impression that they possessed reliable evidence that Tatum was growing marijuana. However, as the district court noted, a bluff or a misrepresentation as to the amount of evidence that law enforcement officers have against an individual will not render involuntary an otherwise voluntary consent. See State v. Wakefield, 267 Kan. 116, 127, 977 P.2d 941 (1999). Tatum also denied that the agents informed him that he did not have to consent to the search. The agents contradicted Tatum’s testimony in this respect. The district court did not resolve this factual dispute and indicated the “discrepancy [was] not dispositive.” Although it would have been better for the district court to make a specific finding of fact, the district court’s failure to do so was not fatal. Even if the district court believed Tatum’s testimony that the agents never informed him he did not have to consent to the search, this is only one factor to consider in the totality of the circumstances as to whether the consent was voluntary. As the district court noted, knowledge of the right to refuse consent is not required for a finding of voluntariness. State v. Holmes, 278 Kan. 603, 611, 102 P.3d 406 (2004).
The district court’s determination that Tatum knowingly and voluntarily consented to the search of his residence was supported by substantial competent evidence, even though some evidence may have supported a different conclusion. The district court also concluded that Tatum’s consent purged the taint of the illegal seizure. We do not need to reach this issue based on our conclusion that there was never an illegal seizure. The judgment of the district court will be upheld on appeal if it is correct for any reason. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008). For these reasons, we conclude the district court did not err in denying Tatum’s motion to suppress the evidence.
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Green, J.:
Mental Health Association of the Heartland (MHAH) appeals from an order of the Board of Tax Appeals (BOTA) denying its application for exemption from ad valorem taxes on a parcel of real estate used to furnish low-income housing for the chronically homeless and severely mentally ill individuals. MHAH argues that BOTA erroneously interpreted and applied the law pertaining to its application when BOTA determined that K.S.A. 79-201 Second and K.S.A. 79-201 Ninth did not apply to allow an exemption for the property. Moreover, MHAH contends that K.S.A. 79-201b Fourth denies it due process and equal protection of the law. We disagree.
We determine that because the subject property in this case was primarily used as a low-income housing facility, K.S.A. 79-201b Fourth is the applicable exemption statute here. Moreover, based on the plain meaning of K.S.A. 79-201b Fourth and the strict construction that must be given to exemption statutes, we determine that MHAH is not entitled to a statutory tax exemption because of its failure to meet the requirements of K.S.A. 79-201b Fourth. Further, because K.S.A. 79-201b Fourth is the specific statute that controls low-income housing and because K.S.A. 79-201 Second is only a general statute, K.S.A. 79-201b Fourth is the applicable statute to determine whether MHAH is entitled to a statutory tax exemption. Because we have previously determined that MHAH was not entitled to a tax exemption under K.S.A. 79-201b Fourth, we affirm.
MHAH is a nonprofit corporation organized under the laws of Missouri and admitted to engage in business in Kansas as a foreign not-for-profit corporation. MHAH is exempt from federal income tax. Moreover, contributions to the corporation are tax deductible. MHAH was formed in part “to advocate public and private sector policies, services, facilities, and financing which provide adequate and appropriate detection, treatment, rehabilitation and prevention programs” and “to promote and/or provide services and programs to meet the needs of individuals suffering from mental illnesses, to improve mental health, and to reduce conditions which impede the attainment of mental health.”
The “Marion Home,” the subject property, was built by MHAH to provide housing to low-income, chronically homeless, and mentally ill individuals. To live in the Marion Home, these individuals must provide information proving they are homeless and have a severe and persistent mental illness. All residents of the Marion Home receive for their mental illness one or more of the following: Social Security and Medicare disability payments.
To receive funding for the home, MHAH must comply with federal restrictions on use of the property. MHAH has a cap on the amount of rent it can charge residents. The rent cannot exceed 30% of the resident’s adjusted gross income. The average rent MHAH currently charges residents is $234 per month — below the fair market value and below the expenses necessary to operate the home. MHAH also receives money through the McKinney-Vento Homeless Assistance Act. MHAH is required by U.S. Department of Housing and Urban Development (HUD) to raise funds for a matching donation of money. MHAH is dependent on grants from the federal government and tax-exempt donations from other charities and individuals.
In October 2006, MHAH applied for a tax exemption requesting that BOTA consider the Marion Home exempt from ad valorem taxation beginning in the year 2002. MHAH stated that the exclusive use of the properly was an apartment building for chronically homeless, low-income individuals suffering from severe mental handicaps and other physical disabilities. MHAH stated that K.S.A. 79-201b Fourth authorized the exemption and the Marion Home met all the requirements set forth in that statute (ie., it was used exclusively for housing elderly and handicapped persons having a limited or low income, it was run by a nonprofit corporation, and it received federal funding under 12 U.S.C. § 1701 [2006] et seq. or 42 U.S.C. § 1437 [2000] et seq.). In addition to its exemption application, MHAH listed all sources of funding for the Marion Home.
The Leavenworth County appraiser recommended that the property be granted exemption under K.S.A. 79-201b Fourth. In its trial brief to BOTA, MHAH maintained that the Marion Home was exempt from taxation under K.S.A. 79-201b Fourth and K.S.A. 79-201 Ninth. At a hearing on the matter, MHAH additionally requested exemption under K.S.A. 79-201 Second and the Kansas Constitution. See Kan. Const. art. 11, § 1(b) (2007 Supp.).
BOTA denied MHAH’s request. BOTA first denied the request for exemption under the Kansas Constitution and K.S.A. 79-201 Second. BOTA held that these exemptions require that the property be used “exclusively” for charitable purposes. BOTA determined that the Marion Home was not used exclusively for a charitable exempt purpose because it was actually and regularly used for housing for which MHAH received compensation from the tenants or federal government in the form of subsidized rents or grants.
BOTA noted the provision within K.S.A. 79-201 Second that permits exemption although the applicant is reimbursed for services based on the recipient’s ability to pay was inapplicable. BOTA determined the actual and regular use of the property was for residential purposes, which was not an exempt use under K.S.A. 79-201 Second. Furthermore, BOTA cited In re Tax Exemption Application of Johnson County Housing Coalition, Inc., 29 Kan. App. 2d 322, 26 P.3d 1279, rev. denied 272 Kan. 1418 (2001), noting that K.S.A. 79-201b Fourth is the provision that specifically governs housing facilities.
BOTA next denied MHAH’s request for exemption under K.S.A. 79-201 Ninth. BOTA reasoned that Johnson County held that the statute dealing with low-income housing, presumably referring to K.S.A. 79-201b Fourth, is the applicable exemption statute.
BOTA finally denied MHAH’s request for exemption under K.S.A. 79-201b Fourth. BOTA determined that MHAH received funding under the McKinney-Vento Homeless Assistance Act, a program not listed as an acceptable source of funding under the statute. BOTA rejected MHAITs argument that the McKinneyVento Homeless Assistance Act should be considered part of the National Housing Act, reasoning that BOTA only had the authority given to it by the legislature. BOTA explained that the Kansas Legislature had not amended K.S.A. 79-201b Fourth to provide an exemption for new programs.
MHAH filed a petition for reconsideration of BOTA’s decision, and that petition was denied.
DID BOTA ERR IN DENYING MHAH’S REQUEST FOR EXEMPTION UNDER K.S.A. 79-201 SECOND AND K.S.A. 79-201 NINTH?
Standard of Review
MHAH appeals from die decision of BOTA denying its application for exemption from ad valorem taxation. The standard of review of an order of BOTA is governed by K.S.A. 77-621(c), which states that the court shall grant relief only if it determines:
“ ‘(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
(3) die agency has not decided an issue requiring resolution;
(4) the agency has erroneously interpreted or applied die law;
(5) die agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
(7) the agency action is based on a determination of fact, made or implied by die agency, diat is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.’ ” In re Tax Exemption Application of Inter-Faith Villa, 39 Kan. App. 2d 810, 815, 185 P.3d 295 (2008).
Taxation is the rule and exemption is the exception under Kansas law. Inter-Faith, 39 Kan. App. 2d at 815-16. The burden of establishing an exemption is on the party requesting it, and all doubts are to be resolved against exemption. Constitutional and statutory provisions exempting property from taxation are strictly construed against the party claiming the exemption. Strict construction, however, does not warrant unreasonable construction.
The interpretation of a statute by an administrative agency such as BOTA is entitled to judicial deference on review. Johnson County, 29 Kan. App. 2d at 324. Such deference is appropriate when the agency is one of special competence and experience. BOTA is a specialized agency that decides taxation issues and is considered to be the paramount taxing authority in Kansas. Inter-Faith, 39 Kan. App. 2d at 817. Thus, its decisions are given great weight and deference.
An agency’s interpretation of a statute is not binding, and the final construction lies with the appellate court. Johnson County, 29 Kan. App. 2d at 324. Statutory interpretation is a question of law over which this court’s review is unlimited.
“[T]he fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Inter-Faith, 39 Kan. App. 2d at 816.
MHAH argues that the decision of BOTA is unconstitutional, unreasonable, arbitrary, and capricious and is an erroneous interpretation and application of the law. MHAH requests relief under K.S.A. 77-621(c)(1), (4), and (8).
Applicable Exemptions
BOTA denied MHAH’s request for exemption under the Kansas Constitution, K.S.A. 79-201 Second, K.S.A. 79-201 Ninth, and K.S.A. 79-201b Fourth.
Article 11, § 1(b)(2) of the Kansas Constitution states that all property used exclusively for benevolent and charitable purposes is exempt from taxation. Likewise, K.S.A. 79-201 Second provides that real property actually and regularly used exclusively for benevolent and charitable purposes is exempt from property or ad valorem taxes. The statute provides that an exemption applies to property that is otherwise exempt even if the agency or organization is reimbursed for providing the services that accomplish its purpose based upon the recipient’s ability to pay.
K.S.A. 79-201 Ninth states that all property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services is exempt from property or ad valorem taxes.
K.S.A. 79-201b Fourth exempts from property and ad valorem taxation all property actually and regularly used exclusively for housing elderly or handicapped persons having limited or lower income or used exclusively for cooperative housing for persons having a limited or low income, whose financing is received under 12 U.S.C. § 1701 et seq. or under 42 U.S.C. § 1437 et seq. and which is operated by a Kansas not-for-profit corporation or a not-for-profit corporation organized under the laws of another state that is duly admitted to engage in business in Kansas as a foreign corporation.
The key issue before this court is what provision applies in MHAH’s case and whether MHAH is entitled to an exemption under that provision. MHAH argues on appeal that it is entitled to an exemption under K.S.A. 79-201 Second and K.S.A. 79-201 Ninth.
K.S.A. 79-201 Second
BOTA first denied MHAH’s request for exemption under the Kansas Constitution and K.S.A. 79-201 Second. BOTA held that the Marion Home was not used exclusively for charitable and benevolent purposes because the property was regularly used for housing for which MHAH received compensation. BOTA also relied on Johnson County, reasoning that K.S.A. 79-201b Fourth was the statute that specifically governed housing facilities. 29 Kan. App. 2d at 326-27. At a hearing on the matter, BOTA questioned the applicability of K.S.A. 79-201 Second, reasoning that K.S.A. 79-201b Fourth was the applicable statute based on the primary use of the property.
MHAH argues that the Marion Home is used exclusively for charitable purposes under K.S.A. 79-201 Second. Thus, MHAH contends that BOTA erred in denying an exemption under that statute and erred in stating that it had to qualify under K.S.A. 79-201b Fourth. This same argument was recently rejected by a panel of this court in Inter-Faith. 39 Kan. App. 2d at 811. In Inter-Faith, two organizations had claimed an exemption for similarly owned housing facilities for homeless persons with chronic mental disabilities or alcohol/drug problems and for persons with limited or low income. Funding for those organizations came from various sources, including the HUD Supportive Housing Program, 42 U.S.C. § 11381 (2000) et seq., the HOME Investment Partnership Program (HOME), 42 U.S.C. § 12721 (2000) et seq., and rental income.
The organizations (Inter-Faith) filed for exemption from ad valorem taxation under K.S.A. 79-201b Fourth. BOTA determined that Inter-Faith did not satisfy the financing requirements of the statute and denied the application. Inter-Faith filed for reconsideration, adding K.S.A. 79-201 Ninth and Article 11, § 1(b)(2) of the Kansas Constitution as alternative bases for its argument. BOTA again denied the application, reasoning that the property was not used exclusively for an exempt purpose under the two statutes. Moreover, BOTA determined that the applicable statute was K.S.A. 79-20lb Fourth and Inter-Faith did not receive funding from a program identified in K.S.A. 79-201b Fourth.
On appeal, this court upheld BOTA’s decision. First, the court held that BOTA had properly denied the request for exemption under K.S.A. 79-201b Fourth. Interestingly, Inter-Faith failed to dispute BOTA’s finding that it did not meet the requirements of K.S.A. 79-201b Fourth, thus abandoning that argument.
Second, the court rejected Inter-Faith’s request for exemption under K.S.A. 79-201 Ninth. The court cited Johnson County, concluding that K.S.A. 79-201b Fourth was the specific statute that applied to exemptions for low-income housing. See Johnson County, 29 Kan. App. 2d at 326-27 (holding that K.S.A. 79-201b Fourth is the specific statute that governs low-income housing facilities). In Johnson County, this court reasoned that if K.S.A. 79-201 Ninth controlled, there would be no purpose for K.S.A. 79-201b Fourth because all the exemptions listed in the latter would also classify as humanitarian activities under the former. The Inter-Faith court reasoned that legislative history clearly showed that the legislature did not intend K.S.A. 79-201 Ninth to control over K.S.A. 79-201b Fourth in cases involving housing facilities. Despite Inter-Faith’s argument that the predominant purpose of the properties was a humanitarian service that included housing, InterFaith acknowledged in its application for exemption under K.S.A. 79-201b that the predominant use of the property was for low-income housing. Moreover, the Inter-Faith court noted that the humanitarian service was secondary to the main purpose of providing low-income housing, that the residents were transferred when they were unable to pay rent, and that the funding for the property was tied to low-income housing.
Third, the Inter-Faith court rejected Inter-Faidi’s request for exemption under Article 11, § 1(b)(2) of the Kansas Constitution. To qualify as charitable, the service must be (1) provided free of charge or so nearly free of charge that the charges are nominal or negligible, and (2) rendered to legitimate subjects of charity who are unable to provide for themselves what the institution provides. The court held BOTA correcdy rejected Inter-Faith’s request for exemption under the constitution because Inter-Faith was not making a free gift of housing to the tenants (that is, it collected rent and required that rent be paid). 39 Kan. App. 2d at 825.
Inter-Faith further argued that K.S.A. 79-201 Second contained a provision that permitted an exemption although the applicant may have been reimbursed for its services. The court held that this provision was enacted by the legislature to broaden the scope of the statutory charitable purposes exemption, but determined that it did not apply to the constitutional exemption. Although InterFaith did not request an exemption under K.S.A. 79-201 Second before BOTA or on appeal, this court further noted that the issue would have failed even if it were properly before the court. The Inter-Faith court pointed out that K.S.A. 79-201b Fourth was the specific statute that controlled low-income housing, while K.S.A. 79-201 Second was only a general statute. Although this statement is dicta, it does offer guidance.
Here, MHAH stated that the Marion Home was used exclusively for housing low income, chronically homeless individuals with mental or physical disabilities. K.S.A. 79-201b Fourth applies to property used exclusively for housing elderly or handicapped persons having limited or low income. General and specific statutes should be harmonized when possible, but when a conflict exists the special statute prevails unless it seems the legislature intended for the general statute to control. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1274, 136 P.3d 457 (2006). This court in Inter-Faith affirmed Johnson County’s holding that K.S.A. 79-201b Fourth was the specific statute that controlled exemptions for low-income housing. Thus, as the court stated in Inter-Faith, any argument that an exemption should be granted under K.S.A. 79-201 Second lacks merit.
Nevertheless, the present case is distinguishable from Inter-Faith because MHAH specifically requested an exemption under both K.S.A. 79-201 Second and the Kansas Constitution. The appellants in Inter-Faith, however, only requested an exemption under die constitutional provision. Because MHAH requested an exemption under K.S.A. 79-201 Second, we will consider its application to this case.
MHAH imposed a cap on the amount of rent it could charge residents. Moreover, the rent could not exceed 30% of the resident’s adjusted gross income. The average rent MHAH charged residents was below the fair market value and below the expenses necessary to operate the home. Thus, it was reimbursed for the services it provided based on the recipient’s ability to pay. For the salce of argument, we will assume that MHAH’s act of providing housing was an exempt purpose under that part of K.S.A. 79-201 Second that allows an applicant to receive reimbursement for its services.
MHAH first argues that providing housing to the homeless or mentally ill was so obviously charitable that the Marion Home should lie clearly covered under K.S.A. 79-201 Second. Nevertheless, when the applicant in Inter-Faith similarly argued that its purpose was a humanitarian service that merely involved housing, the court noted the following: Inter-Faith acknowledged that the predominant use of the property was for low-income housing. Moreover, the court determined that the humanitarian service was secondary to the main purpose of providing low-income housing because the residents were transferred when they were unable to pay rent and because the funding for the property was tied to low-income housing. Similarly, MHAH admitted that the Marion Home was built to provide housing to low-income, chronically homeless, mentally or physically disabled individuals and that this was the exclusive use of the property. As in Inter-Faith, though its actions seem charitable in nature, the predominant purpose of the Marion Home is to provide low-income housing.
In summary, it can be said that the regularity of use of the property is the primary consideration in determining whether the property is exempt.
Second, MHAH notes that although other statutes provide exemptions for specialty housing there is no exemption for housing the homeless. Nevertheless, as explained earlier, the legislature specifically enacted K.S.A. 79-201b Fourth to cover low-income housing, which has been construed to include the homeless.
Third, MHAH argues that other Kansas cases have upheld an exemption for property used for residential purposes under K.S.A. 79-201 Second. Nevertheless, the cases cited by MHAH are distinguishable. In each case, this court found that larger organizations’ use of a residence was exempt from taxation under K.S.A. 79-201 Second. See In re Holy Spirit Association for the Unification of World Christianity, Case No. 93,800, unpublished opinion filed January 13, 2006, slip op. at 2, 7 (where residence owned by church was used as residence for the pastor and her family, missionaries, and guests of the church, and for church office work, activities, meetings, and worship); In re Tax Exemption Application of Fire Baptized Holiness Church v. Hendrix, 28 Kan. App. 2d 598, 599, 602, 18 P.3d 308 (2001) (where dormitory owned by school housed high school students and dorm parents, and was used as a cafeteria, gymnasium, and auditorium).
Notably, in each case the primary purpose of the organization was religious or educational, an exempt purpose under K.S.A. 79-201 Second, and the residential use was only incidental to the primary purpose. Holy Spirit, slip op. at 7-9; Application of Fire, 28 Kan. App. 2d at 600-02. Here, although charity is likely a significant purpose of the Marion Home, the residential use is not incidental but is the predominant use of the property.
Fourth, MHAH argues that In re Tax Exemption Application of Johnson County Housing Coalition, Inc., 29 Kan. App. 2d 322, 26 P.3d 1279, rev. denied 272 Kan. 1418 (2001), is inapplicable because the court did not rule upon K.S.A. 79-201 Second in that case. Indeed, in Johnson County the appellants argued that K.S.A. 79-201 Ninth permitted the exemption. The court held that K.S.A. 79-201b Fourth was the specific statute that controlled over K.S.A. 79-201 Ninth. Nevertheless, in the absence of direct authority, we can draw some guidance from Johnson County in its interpretation of K.S.A. 79-201 Ninth and K.S.A. 79-201b Fourth.
Fifth, MHAH argues that BOTA may have denied the exemption because it believed that the Marion Home was not a “service-oriented” facility. MHAH notes that the court in Johnson County stated that K.S.A. 79-201 governs service-oriented facilities including benevolent or charitable organizations, but K.S.A. 79-201b governs housing facilities. MHAH argues that there is no indication that K.S.A. 79-201 Second is limited to service-oriented facilities, and even if this were a requirement, MHAH would meet that requirement. First, this court’s reference in Johnson County to “service-oriented facilities” may have been mere dicta within the opinion. 29 Kan. App. 2d at 327. No case since Johnson County has suggested that a property must be service-oriented to qualify for an exemption under K.S.A. 79-201 Second. Second, there is no indication that BOTA denied MHAH’s application on that basis. Rather, BOTA determined that the actual and regular use of the property was for low-income housing, which is specifically governed by K.S.A. 79-201b Fourth. Consequently, we determine that this argument lacks merit.
Sixth, MHAH argues that the “specific trumps general rule” was improperly applied by BOTA. MHAH argues that the court can apply this rule only if both the general and specific statutes apply to a factual situation. MHAH argues that because BOTA determined that it did not qualify under K.S.A. 79-201b Fourth, it was illogical to apply the rule and hold that it cannot apply under the general statute.
MHAH notes that BOTA found K.S.A. 79-201b Fourth “cannot apply to the facts of our case.” Nevertheless, what BOTA essentially determined was that K.S.A. 79-201b Fourth did apply to the facts of MHAH’s case but that MHAH had failed to meet the requirements of the statute. In Inter-Faith, the court likewise upheld BOTA’s finding that the applicant did not meet the requirements of K.S.A. 79-201b Fourth. Similarly, the court held that Inter-Faith could not receive an exemption under tire general statute, K.S.A. 79-201 Ninth. 39 Kan. App. 2d at 821.
Although the desire to give a tax exemption to organizations which furnish low-income housing under K.S.A. 79-201b Fourth is clear on the face of the statute, thus removing the need to consider legislative intent, still the legislative history provides explicit confirmation on this point beginning in 1985. In 1985, a special committee was asked to review state policy on property tax exemptions for special care housing as to uniformity and consistency. In re Tax Exemption Application of Presbyterian Manor, Inc., 16 Kan. App. 2d 710, 712-13, 830 P.2d 60 (1992). The committee recommended the legislature exempt housing provided by state-licensed, nonprofit corporations whose contributions are deductible in Kansas and whose rent payments provide less than the total operating costs of tire facility. In enacting K.S.A. 79-201b Fourth, the legislature relied upon the strict requirements of federal regulations to assure the goals and public purposes of the program would continue to be met. Board of Johnson County Comm'rs v. Ev. Luth. Good Samaritan Soc., 236 Kan. 617, 624-25, 694 P.2d 455 (1985).
Our legislature intended that corporations which provided low-income housing and hoped to receive a tax exemption would obtain funding from certain federal programs, thus remaining subject to certain standards. If such corporations were allowed to bypass K.S.A. 79-201b Fourth and receive an exemption under the general K.S.A. 79-201 Second, K.S.A. 79-201b Fourth would become meaningless. The record lacks any evidence that BOTA is using K.S.A. 79-201b Fourth as a means to unfairly exclude charitable corporations from receiving exemptions. To the contrary, BOTA is merely complying with legislative intent by ensuring that corporations that provide low-income housing meet the special requirements set forth by the legislature under K.S.A. 79-201b Fourth to receive that exemption.
Seventh, MHAH asserts that because the legislature intended to expand tax exemptions by creating K.S.A. 79-201b, charitable organizations should not be excluded from receiving tax exemptions under that section. This argument is fallacious because any charitable organization providing low-income housing that failed to meet the specific requirements of K.S.A. 79-201b Fourth could receive an exemption under K.S.A. 79-201 Second. As previously stated, this would cause the former statute to become meaningless.
Eighth, MHAH argues that the Marion Home need not be “used exclusively” for charitable purposes to qualify under K.S.A. 79-201 Second because the legislature has moved away from this strict requirement. BOTA held that K.S.A. 79-201 Second required that the property be used “exclusively” for charitable purposes and that the Marion Home did not meet this requirement because it was used for residential purposes for which MHAH received compensation. Indeed, in In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 754-57, 973 P.2d 176 (1999), our Supreme Court recognized that the legislature departed from the strict definition of “charitable and benevolent” and the “exclusive use” requirement by (1) amending K.S.A. 79-201 to add exemptions for real property, such as property used exclusively by not-for-profit corporations for housing low-income persons, (2) amending K.S.A. 79-201 to provide, among other things, that an exemption is not inapplicable to otherwise exempt property if the organization is reimbursed for services based on ability to pay by the recipient, and (3) creating K.S.A. 79-201 Ninth, which omitted the “exclusive use” requirement in favor of a “predominant purpose” requirement.
BOTA considered the exemption in K.S.A. 79-201b Fourth but found MHAH did not meet the financing requirement. BOTA did not ignore tire provision in K.S.A. 79-201 Second that allows exempt property to receive the exemption although the organization receives reimbursement for its services, but found that this provision was inapplicable because tire regular use of the Marion Home was for residential purposes, not for charitable and benevolent purposes as contemplated by K.S.A. 79-201 Second. BOTA considered the exemption in K.S.A. 79-201 Ninth, but found it inapplicable in light of Johnson County. Thus, BOTA exhausted the avenues the legislature had created when departing from the “exclusive use” requirement. More important, in light of the inapplicability of K.S.A. 79-201 Second, it is irrelevant whether “exclusive use” is a requirement or whether MHAH meets that requirement.
Ninth, MHAH argues that BOTA’s ruling improperly injects a “non-residential requirement” into K.S.A. 79-201 Second (that is, K.S.A. 79-201b Fourth excludes housing from K.S.A. 79-201 Second when the latter statute does not specifically require that it be excluded). This is clearly not the case. First, in Holy Spirit and Application of Fire, our court held that residences were entitled to exemption under K.S.A. 79-201 Second when (1) the applicant fell under K.S.A. 79-201 Second due to its primarily religious or educational nature, (2) it was not subject to K.S.A. 79-201b Fourth because the property was not low-income housing, and (3) the residence was only incidental to the religious or educational aspect. Holy Spirit, slip op. at 1-9; Application of Fire, 28 Kan. App. 2d at 600-02. Thus, it is possible for residences to obtain exemption under K.S.A. 79-201 Second under appropriate circumstances. Second, K.S.A. 79-201b Fourth does not exclude all residences from K.S.A. 79-201 Second but only excludes the specific type of housing listed in the statute: low-income housing. BOTA is observing the plain language of the statute by only permitting an exemption under K.S.A. 79-201b Fourth when the property is low-income housing.
Article 11, § 1(b) of the Kansas Constitution
MHAH fails to brief the application of Article 11, § 1(b) to its case. Furthermore, MHAH admits it does not specifically appeal this issue because the article has been codified by K.S.A. 79-201 Second. Thus, we determine that MHAH has abandoned this issue. See State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999).
K.S.A. 79-201 Ninth
BOTA next denied MHAH’s request for exemption under K.S.A. 79-201 Ninth, citing Johnson County. As discussed earlier, this court in Inter-Faith rejected an exemption under K.S.A. 79-201 Ninth, affirming Johnson County’s holding that K.S.A. 79-201b Fourth is the controlling statute that applies to low-income housing. 39 Kan. App. 2d at 818-22. Thus, BOTA correctly determined that MHAH was not entitled to an exemption under K.S.A. 79-201 Ninth.
K.S.A. 79-201b Fourth
MHAH fails to brief the application of K.S.A. 79-201b Fourth to its case, thus abandoning any argument in this regard. See Valdez, 266 Kan. at 784.
In any event, K.S.A. 79-201b Fourth permits an exemption when assistance for the financing of the subject property is received under 12 U.S.C. § 1701 et seq. or 42 U.S.C. § 1437 et seq. BOTA denied MHAH’s request for exemption because MHAH receives funding under the McKinney-Vento Homeless Assistance Act, which is not an acceptable source of funding listed in K.S.A. 79-201b Fourth. BOTA rejected MHAH’s argument that the Act should be considered part of the National Housing Act, noting that the Kansas Legislature had not amended K.S.A. 79-201b Fourth to provide an exemption for new programs.
Similarly, in Inter-Faith, BOTA denied the exemption in part because Inter-Faith did not receive its funding from a program identified in K.S.A. 79-201b Fourth. This court stated:
“While the record indicates that the appellants have established an important service of providing residential low income housing and incidental services to those in need, the legislature has not yet enacted an exemption that would cover the appellants’ property. . . . Until the legislature amends the statutes to include the new federal financing options for low income housing or otherwise expands the exemptions for low income housing, the tax exemptions requested by the appellants cannot be granted.” 39 Kan. App. 2d at 827.
Furthermore, this court held that Inter-Faith abandoned a challenge to B OTA’s finding that it did not meet the requirements of K.S.A. 79-201b Fourth by failing to dispute the issue on appeal. Because MHAH similarly fails to dispute or provide any argument contrary to the position taken by BOTA in this regard, this court need not further address this issue.
Does K.S.A. 79-201b Fourth deny MHAH due process and equal protection of the law?
MHAH finally argues that BOTA’s ruling is unconstitutional because it denies MHAH equal treatment and due process of law.
MHAH raised this constitutional argument in its motion for reconsideration, but BOTA did not rule on the issue. Nevertheless, BOTA is not vested with authority to determine the constitutionality of a statute. In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 906, 47 P.3d 1275 (2002). Determining whether a statute is unconstitutional is a question of law over which this court exercises a de novo standard of review. Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 250, 930 P.2d 1 (1996). The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998). A statute must clearly violate the constitution before it may be struck down, and the court must construe it as constitutionally valid if there is any reasonable way to do so. The burden is on the party challenging constitutionality. In re Tax Appeal of Weisgerber, 285 Kan. 98, 102, 169 P.3d 321 (2007).
Although a legislative act may not always be viewed as fair or what a court thinks should be done, that does not make the act unconstitutional. Peden, 261 Kan. at 251. It is not the judicial province to correct every abuse of legislative taxing power. 261 Kan. at 251 (citing Morton Salt Co. v. City of South Hutchinson, 159 F.2d 897, 900 [10th Cir. 1947]). Legislatures possess the greatest freedom in classification in the area of taxation. Madden v. Kentucky, 309 U.S. 83, 88, 84 L. Ed. 590, 60 S. Ct. 406 (1940).
Section 1 of the Fourteenth Amendment to the United States Constitution states that no State shall deprive any person of life, liberty, or property without due process of law. See Kan. Const. Bill of Rights, § 18. Due process ensures the fair and orderly administration of the law and emphasizes fairness between the State and the individual. Wesley Medical Center v. McCain, 226 Kan. 263, 265, 597 P.2d 1088 (1979). Our Supreme Court has declined to disturb tax assessments unless they clearly transgress reasonable limits, stating there must be some legal effect that is the equivalent of an intentional or fraudulent purpose nullifying the principles safeguarding a citizen’s rights and property to violate due process. 226 Kan. at 265 (citing Great Northern Ry. v. Weeks, 297 U.S. 135, 80 L. Ed. 532, 56 S. Ct. 426 [1936]). A statute does not violate due process if it is necessary to effectuate a legitimate and substantial state interest and is not applied in an arbitrary or capricious manner. 226 Kan. at 266 (citing Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 [1975]).
Equal protection is implicated when a statute treats “arguably indistinguishable” classes of people differently. Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 (1993). When a taxpayer asserts that tax rates implicate equal protection (that is, the law results in economic inequality), the court evaluates the statute under a rational basis standard. Under this standard, a law is constitutional despite unequal classification if the classification bears some reasonable relationship to a valid legislative objective. Peden, 261 Kan. at 252. Any state of facts that rationally justify the classification will uphold the statute. 261 Kan. at 258. There must be relevance between the classification and the objective. Relevance is accomplished if the classification is rationally related to the legitimate legislative purpose of the statute. A statute cannot classify persons into groups based on criteria that is unrelated to the goal of the statute and may not be arbitrary.
As noted earlier, it would seem that the legislature enacted K.S.A. 79-201b Fourth in an effort to ensure that recipients of low-income housing tax exemptions meet certain requirements to maintain consistency and uniformity. Because K.S.A. 79-201b Fourth is reasonable to effectuate a legitimate and substantial state objective, the statute satisfies due process.
Moreover, the statute applies to all nonprofit organizations which use property exclusively for housing low-income, elderly, or handicapped persons. Although the statute appears to treat classes of people differently by specifying a particular group of persons to which the statute applies, thus implicating the Equal Protection Clause, the statute nevertheless serves a legitimate state purpose. The classification (not-for-profit organizations that provide low-income housing) is directly related to the purpose of ensuring uniformity when offering tax exemptions. Thus, the statute survives the rational basis test and does not violate equal protection.
For the reasons explained earlier, there is no evidence that BOTA incorrectly or erroneously interpreted or applied the law, that its actions were unreasonable or arbitrary, or that the statutes discussed above are unconstitutional. The burden of establishing an exemption is on the party requesting it, and MHAH has failed to meet this burden. Consequently, BOTA appropriately denied MHAH’s request for exemption.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action in the district court Andrew Sedlock recovered a judgment for $1456 against the Carr Coal Mining & Manufacturing Company as compensation for an injury sustained by him while employed in the defendant’s mine. There is no controversy between the parties as to the employment, or the nature and extent of the injury suffered, nor yet as to the amount of the compensation al lowed. The question which divides them is whether the accidental injury sustained by the plaintiff arose out of and in the course of his employment with the defendant within the meaning of the compensation act. It appears that plaintiff had been at work during the day in one of the rooms in the coal mine. About 4 o’clock he quit work, changed his mining clothes for street clothes in the room, then started to walk along the entry in the mine leading towards the shaft for the purpose of ascending to the top of the mine. He wore his miner’s lamp, and it was necessary for him to do so in order to find his way to the bottom of the shaft. While he was walking along one of the straits of the mine leading to the shaft, and about 200 feet from his room and one-half mile from the bottom of the shaft, he struck his face against a piece of slate that was hanging from the roof of the mine, and the result was an injury, including the destruction of one of his eyes. At the time of the injury both parties were within the operation of the workmen’s compensation law.
The defendant contends that the plaintiff was not entitled to compensation under the act. To recover it must appear that the plaintiff’s injury arose out of and in the course of his employment. (Laws 1911, ch. 218, § 1.) In an amendment of section 9 of the act it is provided that “the words ‘arising out of and in the course of employment’ as used in this act, shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.” (Laws 1913, ch. 216, § 4.) While the plaintiff had laid aside his pick and other tools, he was still in the mine and subject to the rules pre-scribed by the defendant when the accident occurred. The relationship of master and servant continued to exist' while he was within the control and subject to the orders of the defendant. While the plaintiff was in the mine he was under obligation to observe the rules prescribed by the defendant, and it was incumbent on the defendant to provide him not only a safe place to work in the mine but also a safe passage way out of it as well as the means to carry him safely to the top of the mine. His duties to his employer had not ended until he left the mine, nor had the duties of the defendant to wards him ended until that time. It can not be said, therefore, that he was on his way to assume the duties of his employment or had left such duties at the time of his injury. The statutory definition of the words “arising out of and in the course of employment” is substantially the meaning applied to them by the courts which have had them under consideration.
In Milwaukee v. Althoff, 156 Wis. 68, 145 N. W. 288, L. R. A. 1916 A, 327, compensation was allowed to an employee who, after receiving instructions as to where he was to work during the day, proceeded along a street toward the place, and while on the way fell and injured his knee. It was contended that as he was not actually at work and had not in fact reached the place of work, the injury could not be said to have been received in the course of employment or to have arisen out of it. The decision was rested largely on the relationship that existed between the parties when the accident occurred, upon the theory that if the relationship of master and servant existed at the time of the injury he was entitled to the benefits of the act. It was held that if the servant was under the master’s control and subject to1 his direction the accident is to be regarded as having arisen out of and in the course of the employment. Many American and English cases are cited to show that the relation may extend beyond the hours when the servant is carrying on his regular work and in some instances, where he goes to places other than the mine, factory or premises where the actual work was being done.
In De Constantin v. Public Service Commission, (W. Va. 1916) 83 S. E. 88, L. R. A. 1916 A, 329, a workman employed by a contractor to do work upon a railroad was killed about five minutes before the actual work was to begin and also before his arrival at the place where the work was to be done. The accident was supposed to have occurred while the workman was proceeding on a way chosen by himself, and when he stepped in front of one train to escape another. As he was not upon the premises of the employer nor upon a road or other way provided by the employer as the only means of access to the place where the work was to be done compensation was not recoverable. The court held that a recovery may be had in some instances before the arrival at or retirement from the place of actual work. It was said:
“A reasonable time after the termination of actual work is allowed. If a workman is injured on the premises of the employer and while leaving his place of actual work by the usual course of travel, the injury is deemed to have arisen out of the employment. Kinney v. Baltimore & Ohio Emp. Rel. Ass’n, 35 W. Va. 385, 14 S. E. 8, 15 L. R. A. 142. Since injury after the termination of actual work, while on the premises of the employer and in pursuit of the usual way of leaving the same, is held to be within the course of employment and to have arisen out of the same, it seems clear that an injury to a workman while coming to his place of work on the premises of the employer and by the only way of access, or the one contemplated by the contract of employment, must also be regarded as having been incurred in the course of. employment and to have arisen out of the same. If, in such a case, injury does not occur on the premises, but in close proximity to the place of work and on a road or other way intended and contemplated by the contract as being the exclusive means of access to the place of work, the same principle would apply and govern.” (p. 89.)
It was held in a Michigan case that the fact that a workman is upon the premises of his employer when the injury occurs is not a conclusive test that he is covered by the act, as he might be so far beyond the place of work at the time of the accident as to be beyond the control or direction of the employer and therefore outside of the protection of the act. A section-hand, instead of eating his dinner with others of the crew near the place of work as was customary, concluded to go to his own home for dinner a considerable distance away. While walking on a railroad track towards his home he was struck by a train and killed. The court followed the rule that accidents which befall an employee while going to and from his work are not to be regarded as happening in the course of or arising out of his employment, and, held that as the workman had gone on a mission of his own, not connected with the employer’s business nor in accordance with the usage of the crew, but for his own purposes and pleasure, he was not entitled to compensation. In deciding the case the court remarked:
“In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment.” (Hills v. Blair, 182 Mich. 20, 27, 148 N. W. 243.)
In Zabriskie v. Erie R. R. Co., 86 N. J. Law, 266, 92 Atl. 385, an employer failed to provide toilet facilities for employees in the building where they were at work and they were obliged to and did habitually resort for such facilities to another building of the employer which lay across a public street. One of them, while crossing the street to reach the toilet during working hours, was struck by a vehicle, and the court held that the action arose out of and in the course of employment.
Sugar Co. v. Riley, 50 Kan. 401, 31 Pac. 1090, 34 Am. St. Rep. 123, did not arise under the compensation act, but it is somewhat analogous. There an employee at work on the premises of the company asked and obtained permission to go into a certain part of the factory to warm himself, and while attempting to enter the place fell into an uncovered cistern and was scalded. It was contended that the employee was pursuing his own comfort and pleasure at the time and was not engaged in the business of his employer; but the court held that he was engaged in the line of his duty at the time of the injury.
In Brick Co. v. Fisher, 79 Kan. 576, 100 Pac. 507, four men were employed to work at a certain machine in a brick plant, and under their plan each one took a turn at resting while the others were at work. One of them, while resting, went into another department of the establishment near his own machine and was injured because of the failure of his employer to guard machinery near which he went. It was held that he was engaged in the performance of duty at the time and that a recovery might be had under the provisions of the factory act.
An elaborate annotation of the workmen’s compensation act, covering every feature of it, may be found in L. R. A. 1916A, in which the American and English cases are cited, and most of those applicable to the point in contention here are set forth at pages 40, 232, 327 and 329. In the note, authorities are cited in support of the proposition that “the moment that the actual work stops can not be considered in every case as the time of the termination of the employment,” and that a “recovery may be had for an accident occurring before the place of work has been reached, if, during the antecedent period within which it occurred, the servant was, as a matter of fact under the master’s control.” (p. 332.)
Here, as we have seen, the workman was in the mine, under the direction and entitled to the protection of the defendant at the time of the accident. Each owed duties to the other and the relation of master and servant still' existed between them when the injury was sustained, although the workman was not actually using the pick and shovel at that time.
A motion to dismiss the case was filed but the merits of the controversy were fully presented by both parties when the motion was submitted and therefore final disposition of the case will be made at this time.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover damages alleged to have been received while working in the defendant’s strip pit by firing a blast without giving the plaintiff proper warning. In his account of the matter, his story of what occurred made out a case. In his attempt, however, to fix the chronological limits of the affair, his mathematical estimates took him out of •court. After having directed a verdict for the defendant, the trial court, acting upon the theory of Acker v. Norman, 72 Kan. 586, 84 Pac. 531 as applied in Cornwell v. Moss, 95 Kan. 229, 147 Pac. 824, concluded that it would be proper for a jury to choose between the descriptive and the chronological testimony of the plaintiff, and granted a new trial.
This ruling was right for two reasons: First, because the court was not satisfied with the former decision (Civ. Code, § 307), and second, because when the evidence even of one witness or one party is fairly susceptible of two different constructions leading to diverse results, it becomes the province of the jury to weigh such evidence and reach the proper conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This case was here before on a question as to the sufficiency of the petition. (Gillies v. Linscott, 94 Kan. 217, 146 Pac. 327.) It is an action to recover the sum paid for stock in a corporation. The plaintiff had been a depositor in the defendant’s bank in Holton for many years. In May, 1904, the plaintiff had about $800 in the bank and he asked the defendant if he knew where it could be safely invested. Some days later the defendant told him that he had a place for plaintiff’s money, in the preferred stock of The Mahogany Lumber Transportation Company, a corporation operating two ships in the Gulf of Mexico, with headquarters at Mobile, Ala., and that the defendant thought it would be a safe investment, and that he and his father and brothers were interested in the company to the extent of $30,000; and that the preferred stock was selling at $100 per share.
The plaintiff purchased eight shares of preferred stock for $800 on May 16, 1904, which the defendant procured for him. The payment was made by a check in favor of The Mahogany Lumber Transportation Company. The company did not receive the check, nor would it have'been entitled to it under the circumstances, for the defendant had procured the eight shares from his brother. The check was cashed by defendant.
Dividends of seven per cent per annum were regularly paid by the corporation until 1908.
In June, 1907, under similar circumstances, the plaintiff purchased twenty shares of preferred stock. This time the stock procured for him by the defendant had belonged to defendant’s mother, although it stood on the stock register of the company as belonging to defendant’s deceased father. The payment was by check in favor of the corporation as before, and cashed as in the first transaction.
In 1909 there was a default of dividends, probably through the shipwreck of one of the vessels of the company. No later dividends were paid. The plaintiff set about an investigation of the company’s affairs in 1912, and discovered that the stock sold to him was not treasury stock, but stock owned by the Linscott family; and in May, 1913, he brought this action, setting up the facts just recited, alleging that he purchased the stock relying on the integrity, truthfulness and business capacity of the defendant and on the representations made to him, and with no knowledge of his own, and that the defendant’s statements that he and his father and brothers had an interest to the amount of $30,000 in the company were untrue, and that defendant’s statements that the company was selling its preferred stock at $100 and that it was a good, safe and profitable investment were false, fraudulent and deceitful, and well known by defendant to be so when made, and that these statements were made with intent to deceive and defraud the plaintiff.
The petition continues:
“That in fact and in truth said company, at the times above mentioned, was offering to the public one share of preferred stock of the par value of $100, and one share of common stock of the par value of $50, together, for sale at the price of $100 for the two shares; that defendant instead of procuring twenty-eight shares of preferred stock from the company and paying the said company the purchase price thereof, as he represented and was authorized so to do, converted the money theretofore paid him by the plaintiff to purchase said shares of stock to his own use, procured twenty-eight shares of other stock, to be transferred upon the books of said company, and to be issued to said plaintiff, and was to plaintiff delivered, and represented to [him] by said defendant as and for twenty-eight shares of stock purchased from said company, which said representation the plaintiff believed to be true and relied fully thereon; . . . that said statements and representations were made . . . with the intent to cheat and defraud and deceive the plaintiff, and by means of such fraud and deceit to induce . . . him to believe . . . that he was purchasing said stock from the said company, . . . which shares of stock'were in fact at the times set forth of no value, as the defendant then well knew.”
The plaintiff recovered judgment for the amount paid by him for the stock, with interest, less the amount of the dividends he had received from the company. The defendant appeals, contending that he was entitled to an instructed verdict, that he should have had judgment on the jury’s findings of fact,’ that certain answers of the jury to special questions were unfairly made, and that certain instructions to the jury were erroneous.
Appellant’s first contention is that every material fact alleged by plaintiff was disputed by his own testimony. On cross-examination, plaintiff conceded that the Linscotts did have $28,500 in stock of the company, which would have been a sufficiently precise statement to warrant the defendant in saying “We are interested in the company to the amount of $30,000,” if the Linscotts in fact had invested $28,500 in the company. But the defendant admitted that only $11,000 of the stock was preferred, and the remainder was common stock of no value. It will thus be seen that the extent of the Linscotts’ interest was grossly misrepresented.
Another disputed question was whether the stock which defendant was to procure for plaintiff should have been treasury stock purchased from the company or whether it might be stock procured elsewhere. The plaintiff was cross-examined with exceptional cleverness:
“Q. .Now, I will ask you this, whether this question was asked you and you answered it as follows, at the other trial in Jackson. County: ‘Tell again what George told you; what he said to you at the time you bought those eight shares of stock. A. Well, George said he could purchase me eight shares of stock in The Mahogany Lumber and Transportation Company.’ Q. Was that question asked, and did you answer it in that manner? A. Yes.
“Q. All this lawsuit comes from the fact it did n’t keep on making a dividend, is it not? A. Yes, sir.”
It would never do, however, to lay it down as a matter of law that because a litigant makes a fool of himself on the witness stand, or because a skillful lawyer entangles him into admissions against his interest, he must lose his cause. Counsel may make the most of such inconsistencies in his argument to the jury. It is the jury’s province to harmonize the evidence and sift the false from the true, the rational from the irrational, the consistent from the inconsistent. Elsewhere the defendant testified that if the company had continued to pay dividends he would never have investigated the matter, and consequently he never would have known that his investments did not go to augment the capital of the company. That the purchase of treasury stock was the defendant’s intention is clearly evidenced by his checks in payment for his stock. These checks were payable to the company, and as they were never delivered to the company, but cashed by defendant in a most unusual and irregular manner, this was a circumstance tending to show the defendant’s duplicity. This is sufficient to show that the defendant was not entitled to an instructed verdict.
The appellant assigns error on the overruling of his motion for judgment on an answer to a question propounded in harmony with an instruction given by the court.
The instruction reads:
“12. You are instructed that if you find from the evidence that the defendant told the plaintiff at the time he talked with him about purchasing- preferred stock in the Mahogany Lumber and Transportation Compansr, in May, 1904, and in June, 1907, that he could get the plaintiff preferred stock in said company and that he purchased it for him, then your verdict must be for the defendant.”
The question and answer read:
“Q. 9. Did the defendant tell the plaintiff at the time of each of said purchases that he could purchase preferred stock in the Mahogany Lumber and Transportation Company at a hundred dollars per share? A. Yes.”
Neither this instruction nor the question and answer quite covered the issue. There was no controversy as to whether the defendant told the plaintiff that he could purchase preferred stock. The gist of this lawsuit was whether the defendant was authorized to purchase the stock from any source or whether he was to procure it from the company. Plaintiff, having great respect for the financial sagacity of the Linscotts, desired to follow their judgment and invest his money where they had invested $30,000 and in a place which defendant recommended as safe. It is absurd to suppose that plaintiff, a landsman in Jefferson county, residing a thousand miles from the sea, would invest his money in the stock of a navigation company of which he had no independent knowledge and in stocks which his trusted banker and relatives were getting rid of.
The other pertinent instructions and the general and special findings of the jury must not be overlooked. It will not do to excise a single instruction from its context. The instructions must be read and construed together. Another instruction, in part, reads:
"4. . . . and in this case if you believe from a preponderance of the evidence that the plaintiff instructed the defendant to purchase stock direct from the Mahogany Lumber and Transportation Company, and the defendant did not purchase such shares direct from said company, but purchased shares of stock from some other person or persons, the plaintiff upon discovering such fact had the right to repudiate such pur ehase of said shares of stock, tender them back to the plaintiff and recover the money given the defendant by plaintiff to purchase said shares of stock.”
This instruction covered the crux of this lawsuit. Some light may be gathered touching the'jury’s understanding of question No. 9 from their first answer to this question:
“Q. 9. Did the defendant tell the plaintiff at the time of each of said purchases that he could purchase preferred stock in the Mahogany Lumber and Transportation Company at a hundred dollars per share? A. The evidence shows (see checks made to M. L. & T. Co.) that defendant led plaintiff to believe stock was from said company, and worth $100 per share.”
In response to appellant’s motion, the jury were required to retire and make more definite and specific answers to this and other questions. In compliance therewith, they then answered question No. 9 with a simple affirmative. But it can not be said that by this simplification of their first answer they intended to adopt defendant’s theory of the case, that he was privileged to procure for plaintiff any sort of preferred stock from any source. The special answers clearly show that the jury were tenacious of the proposition that the plaintiff had bargained for treasury stock, and that he was deceived by the defendant. Thus:
“Q. 11. If you find for the plaintiff and against the defendant, state fully what fraudulent conduct of the defendant - you base your verdict upon. A. (1) The checks here in evidence show that while made to M. L. & T. Co., the defendant stated on stand that the checks were not intended for said company, neither were said checks indorsed on back by or to anybody, yet were collected by the defendant.
“(2) The fact that plaintiff bought said stock due to the representation of defendant. The statement of the defendant that he and family had about $30,000.00 in company, that he, plaintiff, was thereby led to purchase stock.”
The complaint that the jury did not answer the questions fairly calls for no extended discussion. They certainly show no passion or prejudice. Some of these will illustrate:
“Q. 1. Was the business of the Mahogany Lumber and Transportation Company prosperous in May, 1904, when the plaintiff purchased the first eight shares of stock? A. 1. Yes, to all appearances.
“Q. 2. Was the Mahogany Lumber and Transportation Company doing a prosperous business in June, 1907, when the plaintiff purchased the last twenty shares of stock? A. 2. Yes, to all appearances.
.“Q. 3. Did the Mahogany Lumber and Transportation Company pay to its stockholders, who held preferred stock, dividends of seven per cent, from the time it was organized until the year 1909? [First Answer] A. 3. No evidence to show that dividends were paid prior to the payments made to John Gillies. [Second Answer] A. 3. No.”
Another answer criticized reads:
“Q. 5. Did the defendant get any profit at either time out of the purchase of the stock for the plaintiff. A. 5. Yes.”
It is said there was no evidence to support this finding. Perhaps so, unless it was by fair inference to be drawn from the curious conduct of defendant in cashing the checks drawn in favor of the corporation. The jury may have wholly disbelieved defendant’s avowal that he turned the proceeds over to the members of his family, from whom the stock was procured. But the sufficient answer to this assignment of error is that it was of no consequence whether the defendant, as plaintiff’s agent to purchase the stock, made any profit out of the transaction or not. He was to procure stock from the company, and he procured it elsewhere. If he had purchased stock from the company its financial' capacity would have been just so much enhanced. The purchase of his brother’s and mother’s stock for defendant availed naught to the benefit of the company.
The errors assigned which pertain to the instructions have been examined, but we think they are without merit and call for no discussion.
So, too, the general objections to the net result: The statute of limitations did not begin to run until the fraud was discovered. Plaintiff’s confidence in defendant and defendant’s family, founded on long years of fair business dealings, was not easily shaken. One brother was the corporation’s managing officer. Plaintiff was bound by what the official reports of the company disclosed; but nothing transpired to arouse his suspicion that the defendant had not procured for him what he bargained for, until the continued failure of dividends prompted him to make the- investigation which disclosed the cause of action which he has presented here, and since it was within time and i.s supported by the evidence, and concluded by the verdict and judgment, the result must be re-, spected.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was on a promissory note. ' The plaintiff recovered and the defendants appeal.
On September 25, 1910, W. F. Craddock borrowed $500 from the plaintiff and gave his note, due in six months. G. Porter Craddock and C. H. Drew signed the note as sureties. W. F. Craddock was at that time engaged in the mercantile business at Richfield, Kan. In the summer of 1911 he became financially embarrassed and a large number of commercial accounts were placed in the hands of Samuel Yaggy, an attorney of Syracuse, for-collection and adjustment. In August, 1911, the plaintiff, at the suggestion of C. H. Drew, one of the sureties, placed the note in the hands of Mr. Yaggy, with instructions to bring suit, and action was commenced against all the parties on the note. Shortly afterwards, on August 24, 1911, Mr. Yaggy took possession of the Craddock store and for more than a year managed the business in the interest of the creditors. Later, he made an arrangement with the two Craddocks whereby four quarter sections of land were conveyed to him, to be sold and the proceeds distributed among the creditors of W. F. Craddock and G. Porter Craddock. All of the claims in Mr. Yaggy’s hands were against W. F. Craddock individually, except two — the note in question and one other upon which G. Porter Craddock was also liable.
The question involved in the appeal is whether the plaintiff’s attorney, Mr. Yaggy, was authorized by the plaintiff to include the adjustment of the note in question along with the claims of the general mercantile creditors of W. F. Craddock; or, if he was not authorized so to do, the question is whether the plaintiff ratified the action of his attorney in compromising the note and accepting in full discharge thereof a pro rata share of the proceeds of the property turned over to the attorney for the benefit of Craddock’s creditors. At the close of the evidence the court instructed the jury to find for the plaintiff for the full amount of the note.
It was the theory of the trial court that, inasmuch as Mr. Yaggy was employed .solely to bring suit on the note, he was not authorized to accept anything in payment or settlement except money for the full amount due. The defendants concede that if the employment was only to collect or sue, the attorney would not be authorized to make any other settlement or adjustment of the note without further instructions or authority; but the defendants strenuously insist there was evidence to go to the jury on the question whether plaintiff had not ratified the action of his attorney in compromising the note for a pro rata share of the proceeds from the collections and the sale of the lands. It is true the evidence shows that long before the settlement was consummated plaintiff knew Mr. Yaggy was endeavoring to secure an arrangement for the adjustment of the claims of the creditors, and that if this should be accomplished the pro rata share of the proceeds was to be applied upon the plaintiff’s note; but we are unable to find anything in the evidence from which the jury could have found that plaintiff understood he was to surrender his claim on the note for a pro rata share of the proceeds. In a letter from plaintiff to his attorney, in September, 1911, the plaintiff said: “Of course, if it can’t be made out of Craddocks, I’ll look to Drew to pay me.” The evidence shows that the plaintiff relied all the time on the fact that C. H. Drew, one of the signers of the note, was solvent and well able to pay the entire amount due, but plaintiff was friendly to Drew and willing to have as much as possible collected from the Craddocks.
An attorney employed to collect or bring suit on a note has in the absence of express directions no authority to compromise or settle his client’s claim or to receive anything in payment thereof except money. (Herriman v. Shomon, 24 Kan. 387; Jones v. Inness, 32 Kan. 177, 4 Pac. 95; 6 C. J. 659-664.) This principle is so firmly established in the law that necessarily the burden of proof rests upon him who asserts that the attorney had express authority to compromise a claim, or who seeks to establish the fact that the client ratified a settlement or compromise made by the attorney.
We think that the most that can be said for the evidence in this case is that it shows a willingness on the part of plaintiff to have the action on the note deferred in the interest of Mr. Drew until a share of the proceeds from the sale of the land could be applied on the note, and that it fails to show that he ever consented to or ratified the action of his attorney in attempting to settle his claim in full for such share of the proceeds from the sale of the lands.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a consolidation of four appeals. The state, through its county attorney in Montgomery county, filed four suits charging that the defendants, which are certain social fraternities in Caney and Independence, were keeping liquor nuisances on their respective premises at the time of the filing of the suits, and that such nuisances had been so kept and maintained for some time prior thereto.
The state’s evidence showed that periodically, usually once a week, once in two weeks, or once a month, the members of these lodges, or some of them, held so-called social sessions, at which intoxicating liquors were produced and drank and the participating members paid a small sum to meet the expenses. It was. shown, however, by ample testimony that the lodge members and their officers had been warned to quit, and threatened with, prosecutions unless they did quit, and that they had also such, persuasive notice of the state’s attention being directed toward their conduct as a deliberate and searching inquisition by the county attorney might be expected to give. This evidence was developed on the examination and cross-examination of the state’s witnesses. It also was shown that these warnings were not without effect, and that from one to three weeks before the state’s suits were filed the defendant lodges and their officers and members determined to abandon these social or drinking sessions, and that they did abandon them and cleaned out all their paraphernalia pertaining to these drinking sessions; and it was solemnly avowed that these reformations had been undertaken in good faith, as a permanent course of conduct, and with no intention to lapse into lawlessness hereafter.
On this showing, a • demurrer to the state’s evidence was sustained and the state appeals.
We need not discuss the technical question whether judgment was properly rendered on the demurrer. There is no doubt that where a lodge society or fraternity periodically' or occasionally permits the drinking of beer or other intoxicants upon its premises it violates the law, and every officer or member responsible for this state of affairs is liable to criminal prosecution, and the premises are a nuisance which the state may have enj oined as a matter of its sovereign right. Indeed, the state may have a temporary injunction against such premises for the asking, and the details of evidence necessary to secure a permanent injunction may be gleaned by a county attorney’s inquisition or otherwise after the suit for an injunction is filed. But where the public officers proceed as they did here, giving the defendants an opportunity to quit before filing suits for injunctions, and where the evidence shows that they did quit and cleaned up their premises, manifestly no nuisances in need of injunction or abatement existed when the state’s cases were started; and so, for the time being, injunctions can not issue. • If the evidence touching the sincerity and permanency of the defendants’ reformation is not true, it will be no trouble for the state to commence anew. Meantime the district court’s judgment must be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an action to recover upon a beneficiary certificate issued December 15, 1913, upon the life of James A. Farragher, plaintiff’s son. At the time of his death, March 19, 1914, he was a member of the defendant order in good standing. The plaintiff recovered judgment and defendant appeals.
The defense is that in his application for the insurance James A. Farragher made certain representations which were false and fraudulent. To each of the following' questions asked of him by the defendant’s medical examiner, he answered “No.”
“1. Have you ever consulted, or been treated, by any physician or surgeon, within the past five years for any illness, disease or injury? If so, give name and address of each and full particulars.
“2. Have you undergone any surgical operation, or have you any bodily malformation or weakness?”
The evidence shows that on February 21, 1913, James A. Farragher was circumcised by Dr. J. C. Cornell for balinitis, that is an inflammation of the foreskin, indicating the presence of bacteria. On later days Doctor Cornell dressed the wound caused by the circumcision. Also, that on November 1, 1913, Farragher, who conducted a grocery and meat market, cut his finger and had Dr. Cornell treat the wound in order to prevent any danger of blood poisoning, although there was no evidence of blood poisoning. Doctor Cornell testified that the removal of the foreskin does not affect a person’s general health, but usually makes it better; that he made an examination of Farragher at the time of the circumcision, and that, aside from this one condition, he regarded Farragher as a perfect specimen of manhood; that there was no evidence of his having then, or previously, any venereal disease. He further testified that he performed the circumcision at his office; that Farragher came there to have it done and after it was done walked away and was then in perfect health. In his opinion as a physician and surgeon he did not consider circumcision an operation; that at the time he removed the foreskin there was no diseased condition; that the foreskin was perfectly healthy, and that he performed the operation for sanitary purposes, and that it did not affect Farragher’s health. He also made proof of death, and certified that James Farragher died from acute dilation of the heart, which he testified usually arises from secondary conditions, such as rheumatism, which in his opinion, was the cause of the heart dilation in this instance, and he said that he found no rheumatic conditions at the time of his examination.
Dr. J. C. Creel, one of the witnesses for the defendant, testified that circumcision is a minor operation, and that if performed where there is no infection it is beneficial. The chief medical director of the defendant company testified that a simple, uncomplicated circumcision, without disease present and no disease necessitating the operation, would not in his opinion be a ground for rejecting an applicant for membership in the order. Other physicians testified that circumcision is a very common thing, that it improves the condition of a person from a sanitary standpoint. Doctor Boardman, medical examiner, who examined Farragher at the time the appli cation was made, testified that the answers to the questions were in his handwriting; that if he had known or had been told that the applicant had been treated for balinitis, or had been circumcised within the past five years, he might not have considered it serious enough to mention in the application. He further testified as follows:
“I quite frequently explain to the applicant that the company does n’t care about every little cold they have had in their head or cinder in their eye or anything minor like that. That they don’t care for anything like that. I could n’t positively say that I explained that to him, but I quite probably did as I quite generally do that.”
Asked to define his understanding of the words “consultation and treatment,” in the written application, he testified:
“Well, the way I understand that question is this, the company don’t care about knowing every little bit of thing that a man has spoken to a doctor about in the past five years or that passes off in a day or two but that the company don’t care about that.”
The findings show that the trial court was impressed with the testimony of the examining physician as to his custom and practice to explain to applicants the scope of the inquiry, and was convinced that the defendant had failed to show the intentional suppression of any fact or circumstance which the deceased naturally supposed would tend to influence the defendant in passing upon his application. We think it must be obvious that if experienced physicians and surgeons do not regard circumcision as a surgical operation in the sense in which that term is employed in the questions submitted, and where it is found necessary for sanitary purposes, and where there is no disease, certainly an ordinary layman would naturally look at the matter in the same light. According to the testimony, James A. Farragher was a man in perfectly good health at the time of the circumcision. It was apparent that he did not regard it as an operation within the meaning of the question. He had never been sick or lost any time from his work by reason of it. It was a minor operation, requiring the attention of a doctor on one or two occasions after it was performed, for the purpose of dressing the wound. It was of little more consequence or importance than the dressing of his finger when he was injured by the butcher knife.
The authorities generally recognize that it will not do to place an absolutely literal interpretation on the provisions in the policy and application with respect to untrue answers. (See Insurance Co. v. Brubaker, 78 Kan. 146, 150, 96 Pac. 62.) Of course there must not be evasion, fraud or. suppression of material facts. There must be absolutely good faith in the conduct of the applicant. But where the evidence shows there has been no evasion or fraud, no purpose to conceal any fact which the applicant would naturally, under the circumstances, suppose was contemplated by the question; and where as in this case, the company issuing the certificate could not have been prejudiced or injured in any manner by the answer, and the cause of death is wholly unrelated to the matter about which the alleged untruthful answer was given, such defense should not be upheld. Upon the findings of the trial court we deem it unnecessary to enter into a discussion of the authorities on the question of untruthful answers in applications for insurance.
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The opinion of the court was delivered by
Mason, J.:
A survey was' asked and made for the purpose of establishing the corners and lines of a section. The only present controversy relates to the position of the line between the northeast and the southeast quarters. The surveyor placed it some distance north of a line that would evenly divide the east half of the section, locating the east quarter corner 190 links north of the middle of the east line of the section, this location being fixed with reference to an old hedgerow. The owner of the northeast quarter appealed from the survey, contending that the two east quarters should have been made of equal area. The district court approved the report of the surveyor, and the appellant appeals from the judgment.
The case turns upon the effect of an affidavit received by the surveyor concerning a transaction had some thirty years before between the then respective owners of the two tracts affected. The appellants maintain that the affidavit related only to an agreement as to the boundary line to which the title of each owner should be deemed to extend, and therefore under prior decisions of this court was not competent evidence, because it had no bearing upon the question under investigation, which was the place at which the division line had been located by the government survey. (Roadenbaugh v. Egy, 88 Kan. 341, 128 Pac. 381; Terrell v. Chessmore, 94 Kan. 611, 614, 146 Pac. 1152.) The appellee, however, contends that while the affidavit included matter relating to the making of an agreement between the adjoining owners, it also showed independent facts which were competent evidence of the original location of the line, namely, declarations of its position made by occupants of the land, and long acquiescence by them in the location so indicated. The affidavit was made by the grantee of the southeast quarter under the government patent, who died prior to the trial. It says of himself and J. H. Whitaker, the patentee of the northeast quarter:
“They met by agreement on the half section line dividing their two quarters, for the purpose of locating the line and for the further purpose of planting a hedge for a fence between them. That at said meeting, the exact date being so long ago is to this affiant unknown, but more than thirty years ago, and by agreement between the said Whitaker and this affiant they had the County Surveyor to locate this east and west line between the two respective quarters; that they then and there agreed as to where the line was and by agreement this affiant used his team and broke the land for the hedge-row. . . . That the said division line as then and there agreed upon between the said Whitaker and this affiant, the then owners of the quarters as above described, the line as given them by the county surveyor and as ever since recognized as the line dividing the two said quarter sections, was about three feet south of and parallel with the hedge-row that was placed out by agreement between the said Whitaker and this affiant.”
The appellee invokes the principle by which the rule against hearsay evidence is so far relaxed as to admit declarations concerning even private boundaries made in certain circumstances by persons since deceased. (2 Jones on Evidence, 2d ed., § 304; 2 Wigmore on Evidence, § 1565; 5 Cyc. 956-958; 4 A. & E. Encycl. of L. 850, 851; 4 R. C. L. 122-124.) Such declarations, however, are scanned with care and received with caution, and admitted only where the declarants are shown to have had means of knowledge on the subject. Here it affirmatively appears that the landowners relied merely upon the statement made by the county surveyor. Even if that officer had been shown to be dead, his declaration as to the location of the line would not have been competent without a further showing as to his means of knowledge. (Note, 15 Ann. Cas. 874.)
The acquiescence of the adj oining owners in the line marked by the hedge was obviously based upon their agreement, and therefore affords no independent evidence that it corresponded with the government survey. Nor can a recognition . thus specifically based upon the agreement be regarded as the equivalent of general reputation or tradition.
The appellants contend that the dividing line between the two quarters should be located just half way between the north and south lines of the section, because there is no evidence that the original survey placed it elsewhere. The appellee argues that this contention proceeds on the erroneous assumption that the position of the section corners is definitely known, whereas they were located by prior surveys, which, under the decision in In re Martin’s Appeal, 86 Kan. 336, 120 Pac. 545, are not conclusive here, since the request on which these proceedings are based called for a survey of the entire section. Whether or not the section corners were correctly located by the prior surveys, the same locations have been adopted in the present survey, and as they are not attacked, must be deemed conclusive in this proceeding.
It clearly appears that the position of the line in controversy was determined solely by the affidavit referred to. No question of the conflict of oral evidence is involved, and the decision of the trial court is therefore open to review. This court is of the opinion that the affidavit has no greater effect than if it had merely set out that a former county surveyor had told the owners where the line ran, and that they had then agreed to abide by his statement; and that this would not be competent evidence of the true location, in the absence of anything to show upon what information he had acted.
The judgment is reversed with directions to modify the surveyor’s report by placing the dividing line midway between the north and south lines of the section. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Carrie Whitsel recovered a judgment against D. M. Watts for $225 as damages for injuries which he is alleged to have willfully and maliciously inflicted upon her. Defendant appeals and insists that the evidence did not warrant the verdict of the jury and the judgment of the court and that several rulings made during the trial were erroneous.
It appears that defendant held a mortgage on some hogs belonging to the plaintiff’s husband and that accompanied by a constable he visited the plaintiff’s home when her husband was absent and undertook to obtain possession of the mortgaged hogs. Upon arriving at the place the constable went into the house and told the plaintiff of the purpose of their visit, but the plaintiff refused to surrender possession of the hogs. The interview between them occurred in the yard between the house and the gate near which the defendant was seated in a buggy. According to the plaintiff’s testimony the defendant, upon learning of the plaintiff’s refusal to give possession of the hogs, jumped out of his buggy, ran towards the plaintiff in an angry, threatening manner, swearing and shaking his fist and saying: “You are fooling with the wrong person this time.” She was greatly frightened, turned and ran into the house, closing and fastening the door, and then collapsed. Her husband returned shortly after the occurrence and found her in an unconscious state, and when she became conscious she was suffering intense pain and within a few hours a miscarriage and subsequent illness resulted.
Defendant insists that he inflicted no bodily injury upon her, that no physical injury was in fact threatened, that there was no assault upon her and that proof of a mere fright furnishes no basis for a recovery. It has long been the rule here that there can be no recovery for fright or mental anguish unless it results in or is accompanied by physical injury to the person. (Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341.) The plaintiff, however, is not asking a recovery for fright alone, but for the personal injuries directly resulting from fright caused by the willful tort of the defendant. It is argued that as the acts of the defendant did not amount to an assault she has no right to recover; but the defendant’s liability does not depend upon whether his wrongful onset constituted an assault. The plaintiff is seeking to enforce a civil liability for the consequences of the wrong and the general rule is that a wrongdoer is liable in damages for injuries which are the natural and reasonable consequences of his wrongful act, whatever name may be fittingly applied to the wrong. Taking the testimony of the plaintiff, as the jury did, the defendant advanced upon the plaintiff with clenched fist in a threatening manner, at the same time using violent, abusive and insulting language, towards the plaintiff which she says led her to fear that he would strike and injure her and the result was the nervous prostration and miscarriage. A physician testified that miscarriages do result from fright and mental disturbances. In 1 Thompson’s Commentaries on the Law of Negligence, § 156, it is said:
“Not only will every competent physician or surgeon that can be summoned, testify that a severe fright or nervous shock has a tendency to produce a miscarriage in a pregnant woman, but it is a matter so well known that it may be rested upon common observation; and every court ought to take judicial notice of such a fact.”
There is a conflict in the authorities in regard to whether there can be a recovery for physical injuries resulting from fright where the act causing the fright was merely negligent and not willful, and differences of opinion as to what constitutes a physical injury and whether certain injuries can be regarded as the proximate result of the negligence which caused the fright; but the great weight of authority is that if the bodily injury is the direct and reasonable consequence of the fright caused by the negligence a recovery may be had although the negligence may have been unintentional. (Notes, 3 L. R. A., n. s., 49; 22 L. R. A., n. s., 1073; 23 L. R. A., n. s., 667; 24 L. R. A., n. s., 1159; 12 Ann. Cas. 741; Ann. Cas. 1913 E, 505; G. C. & S. F. Ry. Co. v. Hayter, 93 Tex. 239, 54 S. W. 944, 77 Am. St. Rep. 856; 8 R. C. L. § 81.) [Although the authorities are in conflict as to injuries resulting from fright where fright is caused by a merely negligent act, there is general agreement in the cases that a recovery may be had where the injury results from fright caused by a willful wrong or an act so grossly negligent as to show utter indifference to consequences. (Lonergan v. Small, 81 Kan. 48, 105 Pac. 27; Notes, 3 L. R. A., n. s., 66; Ann. Cas. 1913 E, 506; 13 Cyc. 41, 44.) The testimony produced by the plaintiff tended to establish that the fright of the plaintiff was caused by the intentional wrong of the defendant, and the finding of the jury is that he acted wantonly and with the intention of injuring the plaintiff. It follows that he is liable for the injuries which resulted from his wrong.
There is complaint that the plaintiff’s husband was allowed to testify to statements made by her which are said to be of a self-serving character. Those objected to were exclamations of pain and acts of the plaintiff indicating that she was suffering pain before the miscarriage; also requests that he obtain medicine or some relief for her. Husband and wife are not allowed to testify for or against each other concerning communications made by one to the other during the marriage, and one or two of the statements in question might be regarded as communications, but they can not have been prejudicial. They only went .to show the labor pains endured by the plaintiff about the time of the miscarriage, and as to that there can be no controversy. Only material errors are available for a reversal. .
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a widow against the executor of her husband’s estate for the value of a quantity of wheat claimed by the executor as assets of the estate. The plaintiff was defeated and appeals.
The plaintiff and William Ahnert were married in 1908. An antenuptial agreement provided that each should continue to own and control his own property. The husband owned a tract of land which he afterwards conveyed, the plaintiff joining him, by a deed containing the following reservation:
“The parties of the first part hereby expressly reserve to themselves, and their assigns the full benefit and use of the above described premises and the rents, issues and profits thereof, for and during their natural life, and on the death of either of the first parties the survivor shall have the benefit, use, rents and profits for and during his or her natural life.”
In the fall of 1918 the land was sown to wheat. In 1914 the crop was harvested, threshed and placed in. granaries on the premises. Afterwards, and in August, 1914, William Ahnert died, leaving a will .which was duly probated. The executor marketed the decedent’s share of the wheat and declined to turn over the proceeds to the plaintiff.
The plaintiff says that her husband could increase the amount of property she was allowed by the antenuptial contract and could create an estate in her favor in the land and its rents, issues and profits by reservation in his deed, all of which is not disputed by the defendant. The difficulty with the plaintiff’s claim consists in this: According to the terms of the reservation in the deed the rents, issues and profits of the land which accrued before the death of William Ahnert belonged to him. The plaintiff may claim rents, issues and profits arising subsequent to her husband’s death but she has no title to rent wheat placed in the bin before his death.
The status of the wheat under the reservation contained in the deed was considered informally by the probate court, which reached the conclusion the wheat belonged to the plaintiff and directed the defendant to correct his inventory accordingly. The defendant took legal advice, became satisfied the wheat belonged to the estate, and so treated it. The probate court had no jurisdiction to make a final adjudication of title to the wheat (Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642) and the defendant did not estop himself from claiming the wheat in his official capacity by participating in the probate court proceedings.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The board of education of the city of Arkansas City entered into a contract with E. L. Hudson for the building of a schoolhouse, which required the contractor to give two bonds, one for its faithful performance, and the other for indemnity against mechanics’ liens, “as required by the laws of the state of Kansas.” Several lien statements were filed. The surety company procured assignments of the rights of the claimants, and brought an action to foreclose- the liens, based upon a contention that the conduct of the board had released it from liability upon the bonds, thus making the situation practically the same as though no bond had been given. A motion of the board for judgment in its behalf upon the pleadings was sustained, and the plaintiff appeals.
A copy of the contract is set out in the answer, which must be regarded as accurate, since its correctness was not denied under oath. It shows that the clause upon which the plaintiff chiefly relies reads as follows:
“It is further agreed by the party of the first part [the contractor], that a sum of money equal to ten per cent be reserved and shall be held by the party of the second part [the board of education] as part security for the faithful performance of work and may be applied under the direction of the superintendent in liquidation of any damages under this contract.”
The bond against liens was approved and filed by the clerk of the district court, and was in the form provided by statute, (Civ. Code, § 660), running to the state for the benefit of persons in whose favor liens might accrue, the condition being expressed in these words:
“The conditions of this obligation is that R. L. Hudson will make payment of all claims arising from the furnishing of labor or material for the purpose hereinbefore recited, which might be the basis of lien under the provisions of the laws of the State of Kansas.”
The bond for the faithful performance of the contract contained this language, the italics showing the portions particularly relied upon by the plaintiif :
“Provided, however, that this bond is issued subject to the following conditions and provisions:
“First. That no liability shall attach to the surety hereunder unless, in the event of any default on the part of the principal in the performance of any of the terms, covenants or conditions of the said contract, the obligee shall promptly, upon knowledge thereof, and in any event not later than thirty days after the occurrence of such default, deliver to the surety at its office in the City of Muskogee, Oklahoma, written notice thereof with a statement of the principal facts showing such default and the date thereof; nor unless the said obligee shall deliver written notice to the .surety at its office aforesaid, and the consent of the surety thereto obtained, before making to the principal the final payment provided for under the contract herein referred to.
“Second. That in case of such default on the part of the principal, the surety shall have the right, if it so desire, to assume and complete or ;procure the completion of said contract; and in case of such default, the ■surety shall be subrogated and entitled to all the rights and properties■ •of the principal arising out of said contract and otherwise, including all securities and indemnities theretofore received by the obligee and all deferred payments, retained percentages and credits, due to the principal ■at the time of such default or to become due thereafter by the terms and dates of the contract.”
The petition and reply allege in substance that the board was estopped from insisting upon the surety’s liability on the bonds, because it failed to retain ten per cent of the contract price, but paid it to the contractor at the time of the completion of the building, making it impossible for the surety to protect itself against any claim that might be made the basis of a lien. The plaintiff’s contention is that the contract and the two bonds are to be interpreted as' parts of one entire agreement, and that the violation by the board of a provision of the bond for faithful performance of the contract precludes its enforcing the other bond against the surety. It is at least doubtful whether sufficient facts are pleaded to show that any loss to the surety resulted from a premature settlement with the contractor — a condition necessary to a defense to the bond based on that ground. (School District v. McCurley, 92 Kan. 53, 142 Pac. 1077; Y. M. C. A. v. Ritter, 92 Kan. 467, 140 Pac. 892.) But that question need not be determined, for the case is controlled by another consideration. The requirement regarding notice to the surety before the making of the final payment, and that relating to the subrogation of the surety to "the rights of the board, were made conditions of the surety’s liability upon the bond for faithful performance of the contract, but the bond for indemnity against mechanics’ liens was ■complete in itself and contained no such limitation. The present action, so far as the board of education is concerned, is purely one for the enforcement of mechanics’ liens against the schoolhouse. Such a lien can exist only by virtue of the act of the legislature, under the conditions there laid down. And the statute in so many words provides that where the contractor gives such a bond against liens as that here given, and it is approved and filed, no lien shall attach. (Civ. Code, § 660.) While the obligation to furnish the bond was assumed by the contractor as a part of his contract, its effect is determined by the statute, with which it complied in all respects. It gave protection to third persons, and when it had once been ■executed, approved and filed, it was not subject to nullification by reason of the relations of the builder and contractor. The statute says that where such a bond is given there shall be no lien. The bond was given and all basis for a lien was thereby removed. The laborers and material men had no claim against the building and their assignment could transfer none to the plaintiff.
The appellant suggests that at all events the court committed reversible .error in failing to render a personal judgment, as prayed in the petition, against the contractor. The ruling complained of is the sustaining of the motion of the board of education for judgment in its favor dismissing the suit. This ruling and the ensuing judgment are to be interpreted as defining the rights of the plaintiff with respect only to the board, and not as affecting its action regardéd as a personal one against the contractor.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
All of the matters involved in this lawsuit except one are already res judicata. (Railroad Co. v. Thisler, 96 Kan. 184, syl. ¶ 2, 150 Pac. 580.) When this case was here before (Doty v. Shepard, 92 Kan. 122, 1041, 139 Pac. 1183, 141 Pac. 1013) it was said:
“We find nothing wrong with the referee’s findings of fact, which were approved by the trial court, but it should also be ascertained and found what the rights of Nellie P. Shepard are in the Tabor property. When this is done, and the result added to the findings already made, the rights of the parties can easily be determined.” (p. 128.)
The district court sent the case to the referee, who made the following findings of fact and conclusion of law:
“I. In addition to the findings and conclusions included in the report already made by me in this action, I find from the evidence that on or about the nineteenth day of August, 1889, H. D. Shepard, the husband of the defendant D. S. Shepard and the father of the defendant Nellie P. Shepard, purchased at sheriff’s sale in Osage County, Kansas, Lots Twelve (12), Thirteen (13), Fourteen (14) and Fifteen (15) in Block Eighteen (18) in the City of Burlingame, and had the same conveyed by the sheriff of Osage County to one Max Buek for the sum of $1251; that the purchase price was paid by the said H. D. Shepard; that afterwards and on the seventh day of November, 1889, the said Max Buek and his wife executed and delivered a quit claim deed by which they conveyed said realty to one Loren A. Dutton; that said Dutton paid nothing for the said conveyance and has never had possession of said real estate or claimed any interest therein; that afterwards and on the twenty-fifth day of January, 1906, the said Loren A. Dutton executed and delivered a quit Claim deed by which he conveyed said real estate to the' defendant Nellie P. Shepard.
“II. That said Nellie P. Shepard paid no consideration for said conveyance and the said Loren A. Dutton received nothing therefor.
“III. That after the purchase of said property at the sheriff’s sale in August, 1889, as hereinbefore found, the said H. D. Shepard went into the possession thereof and collected the rents and profits thereof until his death, which occurred in the year 1904.
“IV. That after the death of said H. D. Shepard, the defendant D. S. Shepard, who is the mother of the defendant Nellie P. Shepard, collected the rents from the said real property until the month of March, 1910, upon which date the defendant M. R. Doty took possession thereof, as I have already reported in the original report filed in this action.
“V. That when said H. D. Shepard purchased the said real property as hereinbefore found, he agreed with M. R. Doty and C. E. Doty to advance the money for the purchase price thereof and to re-convey the property to M. R. Doty or C. E. Doty at any time that they should pay him the amount that he was required to pay for the same, together with the interest thereon. There was no time fixed for the re-payment of the said purchase money. The money was to be paid to the said Shepard and the re-conveyance made whenever the said Dotys demanded it.
CONCLUSION OP LAW.
“The Supreme Court has decided in this action that when H. D. Shepard purchased the said real property as I have hereinbefore found, that he held it simply for the purpose of security for the purchase money advanced by him and that after he had remained in possession of the same and collected rents and profits sufficient to repay him the purchase money and interest thereon, after deducting taxes and other legitimate expenses, this claim to the property was satisfied and the Dotys were entitled to a decree quieting title to the property as against the said Shepard. I am, of course, bound by that decision, and I, therefore, recommend as a conclusion of law that the plaintiffs’ title be quieted against Nellie P. Shepard because she has never paid anything for the property and is, therefore, not a bona fide purchaser for value. She has not been in the open, notorious and exclusive possession of the property, claiming to be the owner thereof for a period of fifteen years, and therefore, the fifteen years’ statute of limitations can not avail her in this action.”
The district court gave judgment accordingly.
These findings of the referee were filed March 27, 1915. A motion for a new trial was filed on March 31, 1915. The appellee contends that this was too late. In Bank v. Refining Co., 91 Kan. 434, 438, 139 Pac. 587, it was said that a finding of fact by a referee has the effect of a special verdict, and such is the language of the statute (Civ. Code, §§ 300, 305, 306; Savage v. Challiss, 4 Kan. 319, syl. ¶ 2). Even if this point be overlooked, and if it should be held that the motion for a new trial was not due until the district court gave judgment on the referee’s findings, still the findings of fact must stand, since no motion for a new trial was filed after the judgment was entered.
But the failure to file a motion for a new trial, or merely filing such motion too late for consideration, does not necessitate the dismissal of an appeal. It merely limits the scope of the review. (Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 786.) In such case, however, we must take the facts as determined and test the accuracy of the judgment thereon. This, however, leaves little to discuss in this case. Here all questions as to the competency and sufficiency of the evidence are foreclosed. So, too, any claims that Nellie P. Shepard was entitled to be subrogated to the rights of a mortgagee for the mortgage placed on the property by Dutton while he held the title for Nellie P. Shepard’s father was either presented or waived, for, when parties are engaged in a lawsuit, all the incidents of the controversy must be pleaded and pressed that there be an end of litigation. The findings of fact do not show and it certainly can not be presumed that this mortgage was for the benefit of Doty. A motion is made by new counsel in this case to introduce additional evidence in this court not considered below. This can not be allowed.. (Hess v. Conway, 93 Kan. 246, 144 Pac. 205.) We have looked into this proffered evidence, however, and it only shows that while the naked legal title was in Dutton he mortgaged the property, and later, on his demand, H. D. Shepard paid off the mortgage, taking an assignment thereof in the name of another kinsman. Counsel for appellant assures us that this mortgage has been paid, but we can not see that Doty’s rights are in any wise affected by this mortgage.
Nellie P. Shepard and her predecessors in the chain of quitclaim conveyances, Dutton and Buek, holding as they did without consideration and merely for the convenience of H. D. Shepard, had no interest in this property except that of naked title holders for H. D. Shepard. (Johnson v. Williams, 37 Kan. 179, 182, 14 Pac. 537; Goddard v. Donaha, 42 Kan. 754, 756, 22 Pac. 708.) Since the interest of H. D. Shepard and that of his estate and of his heirs terminated when sufficient rents-had been collected to reimburse him for moneys paid out on Doty’s account, Nellie P. Shepard is no longer entitled to hold the legal title against the Dotys. That there has been such full reimbursement is foreclosed by the original findings of fact:
“XXIV. Up to about the 25th day of March, 1907, H. D. Shepard and D. S. Shepard collected rents and profits from the Tabor property and the Doty store building in sums sufficient, if properly applied, to repay the purchase money, with interest, which was advanced by H. D. Shepard at the time of the purchase of said property after deducting all of the taxes paid, all of the insurance paid, and all amounts expended for repairs made by the Shepards, and interest thereon.”
Under the arrangement between H. D. Shepard and M. R. Doty, Shepard was entitled to the possession, rents and profits,. and his successive title holders, Buek, Dutton and Nellie P. Shepard, were entitled to hold the title until March 25, 1907, and this action was begun on March 26, 1910, consequently all discussion of the statute of limitations is irrelevant.
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The opinion of the court was delivered by
Mason, J.:
Thomas J. Myers purchased'a tract of land at sheriff’s sale, made under a decree foreclosing a mortgage, the eighteen months allowed for redemption expiring August 24, 1914. A tenant of the mortgagor planted a part of it to corn about May 10, 1914. About August 20, 1914, the tenant undertook to sell the corn crop to Hampton Steele and W. F.. Wharton, who paid him for it. Myers received a deed September 8, 1914. In November, 1914, Steele and Wharton gathered all the crop except a few loads which they had hauled off about August 20. Myers brought action against them for the value of the corn. A verdict was returned against him, on which judgment was rendered. He appeals.
Among other findings made in response to special questions-were the following:
“What was the condition of this corn August 25, 1914, as to whether it was ripe or green at that time? Ripe.
“Had said corn ceased to grow and to draw sustenance from the land prior to August 24th, 1914? Yes;
“When was this corn ripe and fit to husk and put in ,a crib? October 1st to October 10th, 1914.
“When and at what time was the corn fit and in a condition to gather to be put in a crib and sell upon the market? October 1st to October 10th, 1914.”
The court instructed the jury in substance that the .crop belonged to the purchaser, at the sheriff’s sale only in case it was still drawing sustenance from the soil at the time the period of redemption expired. The plaintiff complains of this instruction and contends that the true test (which he asked to have incorporated in the charge) is whether the crop at the ■date named was “wholly ripe and matured and ready to gather .and either put in a crib or sell on the market.”
Whether an annual crop is to be regarded as so far a part of .the realty that it will pass by an ordinary deed unless reserved is often made to depend expressly upon whether there has been •a physical severance from the soil, irrespective of the question ■of. maturity. In a typical case it was said :
“It is true that the authorities in alluding to this subject very generally use the words growing crops, as those embraced by a conveyance of the land, but this expression appears to have been commonly employed to distinguish crops still attached to the ground, rather than to mark any ‘distinction between ripe and unripe crops. . . . Whether the crop of the seller of the farm goes with the land to the' purchaser of the latter, when there is no reservation or exception, depends upon whether the crop is at the time attached to the soil, and not upon its condition as to maturity.” (Tripp v. Haseeig, 20 Mich. 254, 260, 261.)
The rule in relation to voluntary conveyances is usually applied to those founded on a judicial sale, although a distinction is sometimes made (Aldrich v. Bank of Ohiowa, 64 Neb. 276, 89 N. W. 772), based upon the practice of appraisement, which might also be supported by considerations of public policy and perhaps by the rule of interpreting a deed more strongly against the grantor. The view that in such a situation as that here presented the maturity of the crop should be the controlling consideration, with the reasons for it, has been thus •expressed: ■
“The grain being mature, the course of vegetation has ceased and the soil is no longer necessary for its existence. The connection between the grain and the ground has changed. The grain.no longer demands nurture from the soil; the ground now performs no other office than affording a resting place for the grain — it has the same relations to the grain that the warehouse has to the threshed grain or the field has to the stacks of grain thereon. It will not be denied that when the grain is cut it ceases to be a part of the realty. The act of cutting, it is true, appears to sever the straw from the land. But it is demanded by the condition of the grain. It is no longer growing; it is no longer living blades which require the nourishment of the soil for its existence and development. It is changed in its nature from growing blades of barley or oats to grain mature and ready for the reaper. Now the mature grain is not regarded by the law like the growing blades, as a part of the realty, but as grain in a condition of separation from the soil.” (Hecht v. Dettman, 56 Iowa, 679, 680, 10 N. W. 241.)
This view has been definitely adopted by this court, its latest expression on the subject being-in these words:
“It has been clearly settled in this state that a conveyance of land, either by voluntary deed or judicial sale, without reservation, carries all growing crops with the title to the land. This rule only applies to crops which are immature and have not ceased to draw nutriment from the soil at the time of sale, and is not applicable to crops that are ripe and ready for harvest. This distinction has been carefully recognized in all the cases where the subject was considered. [Citing cases.] When the crops mature they can no longer be regarded as a part of the realty, and hence do not pass to the purchaser of the land. As the ripened crop possesses the character of personalty, the fact that it rests upon the land, unsevered, is of little consequence. If the severance of such a crop was at all material, it had in legal effect been severed through the sale by Tut-hill to the plaintiff. The mortgage- or sale of a ripened crop at least operates as a constructive severance of the same from the land.” (National Bank v. Beegle, 52 Kan. 709, 711, 85 Pac. 814.)
The reasons given for preferring the test of maturity to that of severance clearly suggest the corollary that a crop should be regarded as mature in this sense whenever it has ceased to draw sustenance from the soil, notwithstanding it may require seasoning before it is ready to be stored or marketed, and therefore may conveniently and advantageously be left standing for a time. The instruction of the trial court adopted this theory, and is approved. The conclusion reached is in full accord with the spirit of the redemption law, which undertakes to secure to the owner of the equity the absolute enjoyment of all benefits of the property for eighteen months after the sale.
The plaintiff also contends that there was no evidence that the crop was mature at the date of the expiration of the redemption period, and that the findings quoted are inconsistent with each other. There was testimony that owing to the dryness of the season the corn had by the 24th of August ceased to draw sustenance from the ground. By naming the 1st of October in answer to the question requiring them to state when the crop was ripe and fit to husk and put in a crib the jury did not assert that it was not fully mature, in the sense indicated, in August.
The judgment is affirmed. | [
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OPINION DENYING A REHEARING AND MODIFYING FORMER JUDGMENT.
The opinion of the court was delivered by
West, J.:
When the opinion herein (Holland v. Holland, 97 Kan. 169, 155 Pac. 5) was filed, it appears that defendant James Holland had departed this life. A motion for rehearing was filed and left undisposed of until proper notices to secure a revivor could be secured. Revivor having been accomplished, the motion for rehearing is denied.
Modification of the judgment is requested and under the circumstances should be made. The plaintiff should be required to account to the other parties interested for the value of the support of his father from the time he left the plaintiff’s home until the time of his decease. He should also be required to pay the legacies which the jury found he contracted with his parents to pay. When these conditions are complied with the title of the plaintiff to the land should be quieted. Counsel insist that the finding by the trial court that the plaintiff breached his contract is unsupported by the evidence and outside the issues framed by the parties. But as a method of settling the controversy upon equitable principles this seems fairer and more practical than to go again into the facts and merits.
To the extent herein indicated the former judgment and opinion are modified. | [
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The opinion of the court was delivered by
West, J.:
The plaintiffs appeal from an error sustaining a demurrer to their amended petition. The averments of this pleading in effect are that the plaintiffs contracted with the defendant for an option on a certain ninety acre tract of land at $50 an acre “for the mineral reserve under said land for all such land as contains coal in one vein that measures thirty-four (34") inches or more in thickness, to be determined by the drilling of said land. . . . Second party agrees within ten days, after finishing said drilling, to elect to take or reject, the land and to state the number of acres that contains said amount of coal it wishes to purchase.” It was alleged that the defendant elected to take “seventy acres of the one vein of coal or mineral reserve mentioned in said written contract, underlying the premises above described, and notified the plaintiffs of such election, and then and there pointed the said seventy acres out to the plaintiffs.” Further, that such election was in accordance with the intentions of the parties at. and before the execution of the above agreement and as it was-construed qnd understood by the parties at the time of its. execution and at the time of the election, and that a deed in accordance therewith was tendered and refused. The deed, however, purports to convey only “the one mineral reserve”' under the seventy acres of land. The trial court decided that the deed did not comply with the terms of the contract.
It will be observed that the option contract without ambiguity calls for the mineral reserve for all the land that contains a coal vein measuring thirty-four inches or more in thickness, while the deed not only restricts the grant to “one mineral reserve” but does not even describe it as of the required thickness. The plaintiffs seek to recover the purchase price named in the option contract for the mineral reserve, although tendering only the deed referred to.
If we view the case as one in which.the parties contracted in writing for one thing and afterwards agreed orally upon another thing, we encounter the statute of frauds. (Robertson v. Talley, 84 Kan. 817, 115 Pac. 640; Banister v. Fallis, 85 Kan. 320, 116 Pac. 822.)
Again, if resort is to be had to the construction placed upon the written contract by the parties, that necessarily implies an. ambiguity in such contract. We have searched in vain to find any ambiguity. Only in case of ambiguity is such evidence- or construction permissible. (Rettiger v. Dannelly, 91 Kan. 61, 136 Pac. 942; 17 Cyc. 669, 670; 6 R. C. L. 837, 841; 10 M. A. L. 371.) This is an action not to reform, but to enforce.
The ruling of the trial court is affirmed. | [
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‘The opinion of the court was delivered by
West, J.:
The defendants, having sold some lumber to go into a house after the plaintiff bank had taken a mortgage to secure a loan on the property, took notes for the payment of this material bill but neglected to file a lien upon the premises. When the bank’s mortgage was foreclosed the notes for material were sought to be transformed into a judgment and lien prior to that of the mortgage. The court gave the defendants judgment but declined to make the amount thereof a lien, thereby following the plain and thoroughly settled law of this state. (Greeno v. Barnard, 18 Kan. 518; Perry v. Conroy, 22 Kan. 716; Conroy v. Perry, 26 Kan. 472; Hurd v. Hixon & Co., 27 Kan. 722; Potter v. Conley, 83 Kan. 676, 112 Pac. 608.) Counsel for the defendant frankly says in his brief that “This is a case where the moral rights of the parties, and the equities appear to conflict with strict technical rules of law, and perhaps, in some degree, with former decisions of this court.”
The authorities, however, unquestionably sustain the trial court in its ruling, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
George W. Gaunt was prosecuted for killing J. Lee Shaffer, the information charging murder in the first degree. He admitted the homicide, but asserted that he had acted in self-defense. He was convicted of manslaughter in the third degree, and appeals.
The defendant introduced no witnesses regarding his reputation. The court gave this instruction:
“The law presumes the defendant to be of good reputation until the contrary is shown. The defendant will therefore be held by you to be of good reputation and character except in so far as his own testimony or any admissions contained therein may affect his credibility as a witness.”
The defendant complains of the refusal of the court to give a number of additional instructions which he asked on this point, including statements, among others, to the effect that the presumption of good character was substantive testimony and that it extended to every branch of the case where good reputation might serve him. Where witnesses have testified to the good reputation of a defendant it may be error to limit the effect of such evidence to some particular issue. (The State v. Deuel, 63 Kan. 811, 66 Pac. 1037.) But the instruc tion above quoted is not open to that objection. While it is often said that there is a presumption that the character of a defendant in a criminal case is good, the expression has been criticized, and practically all the courts that have passed upon the question have held that where the defendant offers no evidence on the subject no instruction whatever need be given regarding it. (Note, 46 L. R. A., n. s., 342; Price v. United States, 218 Fed. 149; People v. Cruse, 24 Cal. App. 497, 141 Pac. 936; People v. Fleshman, 26 Cal. App. 788, 148 Pac. 805; State v. Knotts, 168 N. Car. 173, 83 S. E. 972; Durham, v. State, 128 Tenn. 636, 163 S. W. 447; Robinson v. Commonwealth, [Va. 1916] 87 S. E. 553.) An apparent exception is Mullen v. United States, 106 Fed. 892, but that was influenced by language of the federal supreme court (Coffin v. United States, 156 U. S. 432) the effect of which has been modified by later decisions. (Coffin v. United States, 162 U. S. 664; Agnew v. United States, 165 U. S. 36. See, 4 Wigmore on Evidence, § 2511, p. 3559, note 3.) No error was committed in refusing the instructions asked. That which was given was at least as favorable to the defendant as he had a right to demand.
The defendant also asked instructions to the effect that in determining who was the aggressor in the affray that led to the homicide, (1) the jury were bound to take into consideration the bad reputation of the deceased as to quarrelsomeness, and (2) had a right to consider the age, vigor and strength of the two men; (3) that any reasonable doubt as to who was the aggressor must be resolved in favor of the defendant; (4) that if a certain state of facts were found it devolved upon the state to show beyond a reasonable doubt that in the final altercation the defendant was the aggressor; (5) that the existence of certain stated conditions required a finding that the deceased was the aggressor; (6) that if after some controversy between them the defendant had left the room and closed the door, telling the deceased to come no further, not knowing that he intended, following him, this might be considered as showing a purpose on the part of the defendant to retire and end the altercation; and (7) that if the deceased followed the defendant under these circumstances this might be regarded as tending to show a purpose on the part of the former to renew the altercation. There was nothing in the instructions to suggest that the jury were not to give full consideration to all the evidence for whatever bearing it had on the case.. There was no necessity for telling them that they should consider particular evidence as bearing on certain matters, especially where the connection was obvious, and for this reason no error was committed in refusing the first two requests above referred to. The third and fourth were sufficiently covered by a statement that in order to justify a conviction the state was required to prove every ingredient of the offense beyond a reasonable doubt, and by a full exposition of the law of self-defense. The fifth was objectionable as tending to invade the province of the jury. The sixth and seventh were mere suggestions as to what inferences might be drawn from particular facts, and were not necessary to an intelligent understanding of the case.
Bert Shaffer, the son of the deceased, a boy five years of age, was called as a witness by the state, and was permitted to testify. The court gave this instruction concerning his evidence:
“The court permitted Bert Shaffer, a boy of five years, to testify. While this is a very tender age you are instructed that age is not the test to be applied to the testimony of a witness. It is for you to determine from the intelligence of the witness, his memory concerning the things of which he has testified, his opportunity and ability to observe .and know the things of which he has testified, the consistency of 'his statements and his ability of conveying his recollection correctly, what weight you shall give to his testimony, and in doing this you .may take into consideration his size and age, together with all the other circumstances appearing on the trial relative to his testimony and the things of which he has testified.”
The statute, in the enumeration of persons who are incompetent to testify, includes “children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they áre examined, or of relating them truly.” (Civ. Code, § 321, subdiv. 2.) The defendant maintains that this law should have been quoted to the jury, and also that the court erroneously surrendered its power to determine the admissibility of the boy’s testimony. - No occasion existed for stating to the j-ury the provision of the statute. That related to the competence of the witness — to the question whether he should be allowed to testify at all — a matter with which the j ury were not concerned. The court passed upon his competency when it allowed him to testify, and left to the jury the question of the weight to be given the testimony. An argument is made in support of the contention that the boy’s testimony, in some respects, was incredible, and showed that it was the result of impressions derived from others. This of course was a matter for the determination of the jury. At the trial, counsel for the defendant expressed willingness that the boy’s testimony should go to the jury “just as it is for what it is worth,” although later moving to strike it out. The trial court had a much better opportunity than a reviewing tribunal to judge of the admissibility of the evidence, and its decision must be regarded as final. Various instructions were asked, cautioning the jury against attaching too much credence or weight to the boy’s testimony, but we think this matter was sufficiently covered by the part of the charge already stated.
Complaint is made because no specific reference was made in the instructions to another witness, seven years of age. The jury were told that they were the exclusive judges of the credit and value of the testimony of the various witnesses, and it can not be presumed that they failed to take account of the youth of this particular witness in deciding what weight to give his evidence.
The defendant complains of the refusal of a request to instruct the jury that if the deceased lived ten days after the fatal wound, they might consider the fact that no evidence had been introduced showing his version of the affray. The unexplained failure of a party to produce evidence within his control, which would naturally be in his interest, is said to be a fair matter for the consideration of the jury, and the refusal to give an instruction to that effect when requested has been held to constitute error. (38 Cyc. 1743, 1744.) The instruction here asked seems to assume that the deceased had made a statement regarding the affray under such circumstances as to render it admissible in evidence. The physician who attended the deceased testified that he was conscious for a number of days after his death had become inevitable, and after he knew this. But the physician repeated all that he remembered of his conversation, and none of it touched upon this matter. No other evidence was given on the subject. In this situation there could be no error in refusing the request.
The defendant offered to prove by Mrs. Cochran that Mrs. Bounds, the grandmother of Bert Shaffer, while he was testifying, had said to her: “They told the children not to say that Lee Shaffer started the quarrel.” The defendant complains of the rejection of the evidence, but it was clearly hearsay and incompetent. Mrs. Bounds was later called to the stand by the defendant, and having testified that she had never talked with either of the children about the trial, was asked to repeat her conversation with Mrs. Cochran. An objection to the question was sustained and the ruling is complained of, an offer having been made to show by the witness that she had said in substance that “they,” meaning herself and others, had told the boys to swear that Lee Shaffer had not started the quarrel. The examination was largely within the control ,of the trial court, which might have permitted cross-examination of the witness to discover whether she had made statements inconsistent with her testimony that she had not talked with the boys about what they were to swear to. But no question addressed directly to that phase of the matter was asked. It can not be said that the court abused its discretion in omitting to require a further investigation, or that error was committed in sustaining the objection to the question asked.
Complaint is made of the refusal to allow the introduction of a decree of divorce granted Shaffer’s wife, with the petition on which it was founded, alleging adultery and extreme cruelty; the record of a conviction of Shaffer in the district court for selling liquor; and entries on the docket of the justice of the peace showing three criminal cases against him, one for assault and battery, the other upon charges not stated. The prosecution had admitted that Shaffer’s reputation as to being peaceable and law-abiding was bad. The evidence excluded was not vitally important, even if admissible.
A further contention on which a reversal is asked is that the evidence did not warrant the verdict. In support of ¡'this view it is urged that the testimony of the two boys should be rejected. A review of the evidence in detail is not regarded as necessary. There was direct testimony besides that of the boys which tended to discredit the defendant’s account of the affair, and circumstantial evidence having the same effect — for instance, that regarding the course of the fatal bullet and the appearance of the wound. The defendant and Lee Shaffer had conflicting claims with regard to a farm. The immediate controversy out of which the homicide grew began in the rear room of a harness shop in which Shaffer was at work, the owner, John Elmore, being present. The defendant stepped through the doorway, Shaffer following him, into the front room, where the fatal shot was fired. The defendant testified that while in the rear room his hand was in his right overcoat pocket, and that he indicated to Shaffer by his actions that he had a gun; that he told Shaffer to stop; that if he had come on he would have used the gun then. He was asked: “If he had come on would you have shot him in the presence of Johnny Elmore?” He answered: “I would have shot him in the presence of Jesus Christ.”
The judgment was that the defendant should serve á term of not to exceed three years in the state penitentiary. This is objected to as not being an indeterminate sentence. The statute provides that a person convicted of a felony (other than murder or treason) shall be sentenced to the penitentiary for a term not to exceed the maximum nor less than the minimum provided by law. (Crim. Code, § 272a.) The penalty for manslaughter in the third degree is confinement and hard labor for a term not exceeding three years, or imprisonment in the county jail not less than six months. (Gen. Stat. 1909, f 2517.) A sentence for confinement and hard labor can not be less than one year. (Gen. Stat. 1909, § 2791.) The judgment of the court recited the maximum limit and the law supplies the minimum.
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The opinion of the court was delivered by
PORTER, J.:
Plaintiffs brought this action to quiet their title to certain real estate in Greenwood county as. against a judgment recovered in an action in which they were defendants before a justice of the peace in Coffey county, a transcript of which judgment was duly filed in the office of the clerk of the district court of Greenwood county. Defendant, the First National Bank of Be Roy, plaintiff in the action before the justice of the peace, filed a disclaimer, having assigned its interest in the judgment to defendant W. O. Jones. The latter answered setting up the rendition of the judgment and the proceedings by which the transcript thereof was filed in Greenwood county. The reply alleged that the judgment was void for the reason that prior to its rendition the plaintiffs, who were defendants therein, had been discharged as bankrupts; that the promissory note given to the bank which formed the basis of the claim upon which the judgment was rendered had been scheduled in the bankruptcy proceedings, and that plaintiffs had appeared in the justice court and filed in the action certified copies of the proceedings in bankruptcy showing these facts; also that when the transcript of the judgment was docketed in the district court of Greenwood county they filed a motion pleading their discharge and asking the district court for an order releasing them from all liability on the judgment. The abstract does not state what action was taken by the district court on this motion, but we assume it was denied. The action to quiet title was tried and the court rendered judgment in the defendants’ favor for costs, from which this appeal has been taken.
The plaintiffs’ only remedy was to appeal from the judgment rendered by the justice of the peace. This action to quiet their title is a collateral attack on the judgment and can not be sustained. There was no lack of jurisdiction either of the subject matter or parties in the action brought by the bank before the justice upon the promissory note. Jones, who was surety on the note, paid the bank and took an assignment of the judgment. If the justice erred in disregarding the defense interposed by the principals on the note, they should have appealed to the district court of Coffey county. Some claims, against a bankrupt are not necessarily extinguished by his discharge; and a new promise will revive the right to sue on a discharged claim. In any event the decision of the justice could have been no more than erroneous; and after the judgment had been docketed in Greenwood county it was too' late for plaintiffs to question its validity.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered a judgment against the township for damages sustained by being thrown from an automobile which is alleged to have been turned over by reason of obstructions piled in the highway at the end of a bridge under process of repair by the township board. It was charged ■that the board had determined to tear out the old bridge and construct a new one of cement at the same place and for the purpose of constructing such cement bridge hauled sand and stone and placed it in the roadway at a point near where the bridge was to be constructed and on the abutment, negligently piling the stone across the traveled track at a point about eight feet west of the old bridge in such a manner as completely to obstruct the travel by a vehicle over the highway, and placing large quantities of sand on either side of the track in such manner as to cause it to run into the traveled track, thereby causing the road, highway and bridge to become defective, out of repair and dangerous to travel in the ordinary way and at the usual and lawful rate of speed; that the plaintiff, with others, approached the place in an automobile at a lawful and reasonable rate of speed and the car ran into and struck the sand in such a manner as to upset it, throw the plaintiff out and injure him; that there were no barriers, signs, notices or other warnings placed on the east side of the bridge to apprise him of the danger or defective condition of the highway. The jury found that there was a defect in the highway caused by piles of sand that had existed five days or more and that the township trustee had actual personal knowledge thereof at least five days prior to the time of the injury. The defendant complains that the trial court overruled a demurrer to the petition, an objection to the introduction of evidence, a demurrer to the plaintiff’s evidence and a motion for new trial and erred in the instructions and in the admission of evidence.
The petition and the evidence respectively charged and fairly tended to show a cause of action in favor of the plaintiff and a corresponding liability against the township.
The statute authorizes a recovery for damages by reason of any defective bridge, culvert or highway (Gen. Stat. 1909, § 658), and while counsel are correct in their assertion that a duty rested upon the township to repair the bridge in question this duty did not authorize the obstruction of the highway leading thereto or relieve the township from responsibility for rendering and leaving it in a defective and dangerous condition.
The fact that the bridge was undergoing repairs did not relieve the township from keeping the highway in condition for travel. To hold otherwise would make it possible for the town ship board to continue a road in a dangerous condition at will so long as the excuse of repair or reconstruction could be advanced. There is no inconsistency between the duty to repair and the duty to keep in safe condition. As was said in Cunningham v. Clay Township, 69 Kan. 373, 76 Pac. 907:
“The liability of the township is founded upon neglect of the duty to keep the highway in repair. But instead of the general requirement of ordinary diligence in the discharge of such duty the statute substitutes a specific test. When injury is sustained by reason of a defective highway, if the township trustee has had five days’ notice of the defect the township is liable, however great care the officers may have exercised; . . . The statute makes its own definition of actionable negligence.” (p. 377; Jacobs v. Bangor, 16 Maine, 187, 33 Am. Dec. 652, and eases cited; Snowden v. Town of Somerset, 52 App. Div. 84; Hurst v. Taylor, 14 Q. B. Div. 918.)
See Higman v. Quindaro Township, 89 Kan. 476, 132 Pac. 215, and cases cited, holding that the absence of a safeguard constitutes a defect within the meaning of the statute. In Sims v. Williamsburg Township, 92 Kan. 636, 141 Pac. 581, it was held that actual knowledge of conditions naturally productive of injury, obtained while repairing a road, constitutes notice of defect.
The complaints regarding the admission of evidence have been examined and nothing substantially prejudicial appears.
Fault is found with certain statements made in argument by one of the counsel but the record discloses that the trial-court acted promptly, properly and sufficiently in this matter. One of the points most strongly pressed is that the findings as to notice were not supported or sufficient. These were to the effect that the township trustee had actual notice of the defect at least five days prior to the time of the injury, which notice consisted of personal knowledge and that he received this notice Monday before the accident, which was about dark on the following Saturday. There was considerable testimony indicating that the roadway was obstructed a week -or ten days before the accident and the trustee himself testified that he was director of the work of construction. The language of the statute is: “Shall have had notice of such defects for at least five days prior to the time when such damage was sustained.” (Gen. Stat. 1909, § 658.) Long before this enactment the legislature'had laid down the rule that, “The time within which an act is to be done shall be computed by excluding the first day and including the last.” (Civ. Code, § 747.)
As early as the 18th Kansas, it was said:
“But we take the law to be well settled, however, in matters of practice, where any particular number of days not expressed to be clear days is prescribed, the rule in regard to the computation of time, is, not to exclude both the day on which the notice is served and the day on which the act is to be performed, but to exclude the one and include the other . . . The spirit, if not the letter of our statute sustains this computation. It provides that the time within which an act is to be done shall be computed by excluding the first day, and including the last.” (Dougherty v. Porter, 18 Kan. 206, 209.)
In Northrop v. Cooper, 23 Kan. 432, the rule was applied to a case requiring publication “for at least thirty days before the day of sale.” (p. 435.) The same argument was made there as here, that thirty full days were intended. In Schultz, Adm’x, v. Clock Co., 39 Kan. 334, 18 Pac. 221, the same rule was followed and it was said :
“Three days before the time of appearance are required; and we think this provision does not contemplate that three full days shall elapse between the day of service and the day of appearance, or that any exception shall be made from the statutory rule of computing time.” (p. 337.)
(See, also, Howbert v. Heyle, 47 Kan. 58, 63, 27 Pac. 116; Matthews v. Arthur, 61 Kan. 455, 59 Pac. 1067; Erie Township v. Beamer, 71 Kan. 182, 183, 79 Pac. 1070; The State v. Sessions, 84 Kan. 856, 858, 115 Pac. 641.)
Following, therefore, the well-established rule, it must be held that actual knowledge acquired on Monday was sufficient, the injury occurring the following Saturday evening.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The board of county commissioners of Barton county contracted with the Jenkins Construction Company, composed of E. N. Jenkins and George E. Sheldon, to build and repair seven bridges which had been destroyed or injured by the floods of 1912. The construction company furnished a bond for the faithful performance of the contract, signed by the Western Casualty & Guaranty Insurance Company as surety. The construction company failed to carry out its contract, and persons who furnished labor and materials to the construction company brought six separate suits against the construction company and its surety. . As some money was still due to the construction company for work done upon the completed bridges, the board was made a defendant in each of the suits. For the purposes of the trial, all the cases were consolidated and’ tried as a single action without a jury. The court made findings of the amount; due to each plaintiff, and gave judgment for the amounts against the construction company and the guaranty company.
It appears that three of the bridges, viz., the Drew, Vierthaler and Straub, were unfinished when the default occurred, and the principal dispute between the parties herein is in respect to the kind of abutments agreed to be built for the Straub bridge. Under the agreement, seven of the bridges were to be built and spans of wrecked bridges were to be taken from the beds of streams, the whole to be done for $13,294. In a schedule attached to the contract, the price of each piece of work was stated, and the price named for the Straub bridge was $1200. It was stipulated that the bridges named should “have one roadway, 18 feet in clear width, and to be built with center line of roadway at right angles to abutments or piers, and to be constructed according to the annexed specifications and plans, which are made a part of this contract.” The plans and specifications referred to were contained in a document designated as instructions to bidders and general specifications, and this was in the hands of the construction company when it submitted its bid and when the parties entered into the contract, and it was in the hands of the guaranty company when it executed its bond. In this document special reference was made to the Straub bridge as follows: “Bridge is a four panel sixty-nine foot span, built about 20 years ago. Abutment to be rebuilt of concrete and old bridge replaced. Bridge in fairly good shape, excepting part of the top chord which is badly twisted, county to furnish new lumber needed, either at Claflin or Gt. Bend.” No detailed plans were made for the Straub bridge, nor indeed for any of the bridges. Two drawings or blue prints were made and used, and on the side of one of them there was an indorsement, “Design of bridge at Drew and Vierthaler crossings,” and on the other, “Proposed bridge for Mud Creek.” In each of these plans the abutments were represented to have wing walls. There was testimony to the effect that a separate drawing was not made for the Straub bridge, because it was a repair job, and also that the drawings made were intended to be guides for the work on all the bridges, including the Straub bridge. Testimony, too, was given to the effect that Sheldon, who was associated with Jenkins at the time, had gone over-all the features of the work with the board, and was informed and understood that the abutments of the Straub bridge, as well as the others, were to be built with wing walls. There was a provision, too, in the instructions to bidders, that in case any question arose as to the meaning of the plans and specifications the interpretation of the board should control, and bidders were requested to satisfy themselves as to the meaning of the plans and specifications, as they would be firmly held to the interpretation placed upon them by the board.
The guaranty company contends that the contract is entire, that the drawings or plans with reference to abutments had no application to the Straub bridge, and that the meaning of the term “rebuilt,” used in the specifications, meant to replace the abutments in the form and dimensions of the old ones, and that, therefore, the requirement of wing walls was without justification. The contract in respect to the abutments was plain enough as to the material to be used, but was ambiguous as to the size and form of the same. The Straub bridge was to be built according to the plans and specifications annexed to the contract, and as the only plans made and considered by the parties provided for wing walls the court, we think, was warranted in holding that the bridge was to be rebuilt with wing walls.
The contract appears to have been an entirety, but as between the different parties contending here, it is deemed unimportant whether it is to be regarded as entire or severable. The whole work was to be done for $13,294, and completed at a stated time. It was stipulated that bids must cover the work as a whole, and none of the conditions of the contract indicate that the contractor could be relieved from the obligar tions of the agreement by anything short of full performance of the entire work. The schedule attached, stating prices for each piece of work, was probably intended as a basis for carrying out the provision that eighty-five per cent of the cost price should be paid to the contractor as each piece of work was fully completed. The contract, although ambiguous, was valid, and the ambiguity was cleared up to some extent by extrinsic circumstances, such as the acts and declarations of the parties. Where there is ambiguity in a written agreement parol evidence may be received, not to contradict the writing but to aid in its interpretation. To that end, the circumstances under which the contract was made and the practical construction put upon it by the parties themselves may be received. (Baxter Springs v. Light Co., 64.Kan. 591, 68 Pac. 63; Mayberry v. Beck, 71 Kan. 609, 81 Pac. 191; Parks v. Baker, 81 Kan. 351, 105 Pac. 439; Riley v. Foster, 95 Kan. 213, 148 Pac. 246.) In its decision, the trial court stated that .as the case was before the court alone, some testimony was received relative' to what transpired in connection with the letting of the contract, as an aid to an understanding of its provisions. However, the court stated that this testimony did not control its judgment nor lead to a variance or alteration of any part of the contract. After finding what was due to each of the claimants, the court found that there was due from the board to the construction company, for work that had been completed before the default, the sum of $3055.09, which it was required to pay into court for distribution among the claimants.
The court charged back against the board certain items expended by it in the completion of the contract. These findings are challenged on a cross-appeal which has been taken by the board. When the default occurred and the guaranty company declined to complete the contract the board., employed the Missouri Valley Bridge & Iron Company to finish the work. It agreed to give that company the actual cost with ten per cent added for profit. In arriving at actual cost the customary method was adopted of taking the actual cost of material and labor and general expenses and upon the whole of these adding ten per cent for profit. A dispute has arisen as to what may be properly tréated as general expenses. It seems to be a common practice to allow a certain per cent of the actual cost of material and labor to cover a great variety and number of things incidental to the work which can not well be enumerated and which are called general expenses. It is stated that fifteen per cent was allowed by the board for such expenses. No reason is seen why a reasonable allowance of this kind, based on builders’ experience, may not be made, and some of the items disallowed were properly chargeable as general expenses. On the work done on the Straub bridge the court disallowed items amounting to $645.37, and on the Vierthaler bridge $213.48. Among these items are charges for tools, and the use of tools, expense of bond, insurance, repairs on machinery, freight, storage, blacksmithing, and for some materials such as gasoline, hardware and the like. There is testimony in the case that these things were necessary and reasonable in the work and no proof to the contrary is found in the abstract. There are such items as railroad tickets, boots, stamps, postage and box rent, livery and telephone, which, although they were allowed and paid by the board, are deemed to be unreasonable and improper charges. The completion of the work having been thrown upon the board, it is entitled to charge and recover for any item of expense that was reasonably necessary to accomplish the task, but no more than that can be justified. In our view, the trial court should have allowed $603.07 of the items disallowed on the Straub bridge and $193.73 of the amount disallowed on the Vierthaler bridge. The sum of these two items, $796.80, with ten per cent of that sum added as profit as the contract provides, making a total of $876.48, should be added to the award made in favor of the board.
Another complaint is based upon the holding that the board was not entitled to recover $287, the cost of reflooring the Drew bridge. It appears that work was suspended úpon the bridges by the construction company during the winter months, and about the middle of March it was resumed on the suggestion of .the board, and the work was prosecuted from that time on with the approval of the inspector employed by the board. The concrete, which appears to have been of good material and properly mixed, was laid on the floor of the Drew bridge on March 27. At that time the temperature was moderate and suitable for such work, but during the night following the laying of the floor there was a sudden change of temperature, which resulted in freezing the concrete so that it disintegrated, and another floor was required to be laid, which was done by the board at an expense of $287. The only fault in the floor first laid was due to the change of temperature and the freezing which disintegrated the concrete. The provisions of the contract required the construction company to make a good, first-class floor, to the satisfaction of the board, and payment was not to be made until the work was completed and had been inspected and approved by the board. The question arises, Who must bear the loss resulting from the change of temperature ? There is no claim that the construction company questioned the propriety of laying the floor so early in the season, and while it was done with the consent of the board and its inspector, there was no compulsion upon the company to do it upon that particular day. The parties might have placed in the contract an exception which would have relieved the construction company from the effects of frosts, storms, floods or inevitable accidents, and every one familiar with the seasons must know that sudden changes of temperature are not uncommon here. The rule is that events against which parties may provide in advance in their contract can not be set up as an excuse for the nonperformance of the conditions of the contract. The courts can not insert exceptions that the parties might have done, nor relieve them from the hardships or casualties that they might have guarded against in the contract. (School Trustees of Trenton v. Bennett, 27 N. J. Law, 513; West v. The Uncle Sam, 29 Fed. Cas. 729, No. 17,427.)
In 30 A. & E. Encycl. of L. 1249, it is said:
“A contractor who agrees under an entire contract to construct an entire work is not excused from the full performance of his contract by the destruction of the work when partly completed, but must himself bear the loss, though such destruction is caused by unavoidable accident; and not only in such a case is he denied a recovery of compensation for the partly completed work, but the builder may recover from him partial payments made as the work progressed, and may maintain an action for damages against the contractor for failure to perform his contract. This rule has chiefly been announced where the structure was destroyed before completion by fire, but is equally applicable where the structure falls by reason of latent defects in the soil, or is destroyed by lightning, by a freshet, or by a storm.”
If, under the contract, the board had been given the power to fix the time when the work should be done, and had required the construction company, against its judgment, to do it at an unseasonable time, the board would have been responsible for resulting injury, but no such control was vested in the board, and the mere fact that the inspector employed by the board was present and consented that the work should go on did not shift to the board the risk of a change of temperature or. loss resulting from the freezing of the concrete. (Ryan v. Bay City, 160 Mich. 559, 125 N. W. 398.)
In Meriwether v. Lowndes County, 89 Ala. 362, 7 South. 198, a contract was made by a county with another to maintain a bridge and keep it in good repair for a period of five years. During this period the bridge was destroyed by an extraordi nary flood, but such a casualty was not excepted from the terms of the contract. The court said:
“There is a long line of eases, both in England and this country, which settle the proposition, that an unconditional express covenant to repair, or keep in repair, is equivalent to a covenant to rebuild, ‘and binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger’; and that, while an act of God will excuse the nonperformance of a duty created by law, it will not excuse a duty created by contract.” (p. 366.)
(Clark v. Collier, 100 Cal. 256, 34 Pac. 677; School District No. 1 v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Huyett & Smith Co. v. Edison Co., 167 Ill. 233, 47 N. E. 384, 59 Am. St. Rep. 272, and Note; Milske v. Steiner Mantel Co., 103 Md. 235, 63 Atl. 471, 5 L. R. A., n. s., 1105, and Note, 115 Am. St. Rep. 354; Mitchell v. Hancock Co., 91 Miss. 414, 45 South. 571, 15 L. R. A., n. s., 833, and Note; Wm. A. Stover et al. v. James Allen et al., 48 Tenn. 486; 6 Cyc. 64; 6 R. C. L. 308, § 295.)
The consent of the board that the work should proceed at the time the floor was laid did not change the obligations of the contract nor make the board responsible for unforeseen losses that might have been provided against in the contract, but were not. No act of the board brought to the attention of the court relieves the construction company from completing its work and turning over the bridge in good condition in accordance with the absolute requirements of the contract. The board was therefore entitled to recover $287, the expense of relaying the floor.
The judgment will be modified, therefore, by adding to the award, made in favor of the board, the items for general expenses and the profit thereon, amounting to $876.48, and the $287 paid for the reflooring of the Drew bridge; and so modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on thirty promissory notes given by the defendant to the plaintiff and to foreclose a real-estate and a chattel mortgage securing the notes. The defendant interposed a counterclaim for damages for fraud practiced upon her in the transaction which gave rise to the notes and mortgages. A demurrer was sustained to her evidence, judgment was rendered against her, and she appeals.
The plaintiff sold her farm and purchased the defendant’s hotel, with its furniture, fixtures and equipment. The sale was concluded and the deed was delivered on June 17, 1913. The price paid was $4000. The sum of $2000 was paid in cash. Forty notes of $50 each, payable one each month, beginning July 1, 1913, were given for the remainder of'the price. The first ten notes were paid, the last one being paid on October 1, 1913. The. suit was commenced on January 19, 1915.
The evidence was sufficient to establish fraud. The hotel stood on the east portions of two lots. The defendant was shown the property in such a way as to lead her to believe she was getting the building and all of both lots, which appeared to form and appeared to be used as a unit, known as the Brunswick hotel. The deed conveyed only the east half of the lots, the west half having previously been deeded to the plaintiff’s son. The contract of sale reads as follows:
“I, E. H. Van Natta hereby agree to sell to Nellie F. Snyder the entire furniture and everything now used in carrying on the business of the Brunswick hotel at Scandia, Kansas, excepting therefrom only the articles mentioned on the other side hereof, which articles I am to take from said hotel and the same are not to be considered a part of this sale.
“This contract or memoranda is made in connection with the sale of the lots and buildings known as the Brunswick hotel, for which a valuable consideration is this day paid, viz: $2000.00 in cash, and a mortgage on the same for $2000.00, payable in 40 months from July 1, 1913.”
The court seems to have been of the opinion the defendant’s evidence showed as a matter of law that she had waived the fraud or was estopped from setting it up. The defendant testified that she was distantly related to the plaintiff, considered him her friend, and did not advise with any one else because she considered him just like a father to her. In the evening of the day the sale was consummated, after the defendant had paid her money, had given her notes and’ mortgages, and had received her deed, the plaintiff’s wife told her the deed did not contain all of the two hotel lots. Soon afterwards the plaintiff’s son fenced off a part of the lots. The defendant accepted the situation, paid notes as they became due, and even after the suit was commenced tried to borrow money to pay what she owed the plaintiff. She did not complain of the fraud until her answer was filed. The reason the defendant did not complain sooner was that she was ashamed to think the plaintiff had beaten her. He was very quarrelsome when crossed, she was afraid to make him angry, he said such awful things, and- she did not want to make him antagonistic. She was without any business experience, did not know what to do that would do any good, and did not know what her rights were until she consulted an attorney after she was sued.
The case ought to have gone to the jury. In the beginning the defendant had two remedies, one equitable' and the other legal. She could rescind the contract of sale and require return of her money and cancellation of her notes and mortgages. To avail herself of this remedy it was essential that she act promptly and tender reconveyance. She could not allow herself to be in the attitude of reaping an advantage from a contract which she repudiated, or allow the state of affairs to change so the plaintiff, acting on the assumption the contract was to stand, could not be substantially restored to his former situation. On the other hand, the defendant could affirm the contract and sue for the damages which she sustained because of the fraud. Affirmance of the contract meant that the notes and mortgages were valid obligations to be met according to their tenor. It also meant that the plaintiff should keep whatever she received, such as it was. In simply doing this she did hot waive the fraud. The measure of her damages was the difference in value between the hotel property as it was and as it was represented to be, and the claim for damages could be asserted by action or by way of counterclaim at any time within the period fixed by the statute of limitations. All this is elementary law, and cases applying the doctrines stated have been collated again and again. The plaintiff cites the following statement appearing in 20 Cyc., at page 92:
“Thus where a contract of sale has been induced by fraud of the vendor, if the purchaser consummates the purchase after discovering the fraud he cannot thereafter maintain an action of deceit. These principles are not in conflict with the doctrine that the party defrauded has his election to repudiate the contract or to affirm it and sue in deceit. The question of waiver, however, is largely one of intent.”
The plaintiff failed to cite the statement of principle which immediately precedes the quoted statement and which the quoted statement merely illustrates. It reads thus:
“If the defrauded party acquires knowledge of the fraud while the contract remains executory, and thereafter does any acts.in performance or affirmance of the contract, or exacts performance from the other party, he thereby condones the fraud and waives his right of action. Under such circumstances a recovery would be largely if not entirely for self-inflicted injuries and the maxim, Volenti non fit injuria, applies." (20 Cyc. 92.)
In this case the contract of sale was fully executed on both sides. The contract has been quoted. It was entirely fulfilled by the defendant when she paid $2000 and gave notes secured by mortgages for $2000 more. If, before paying the money and giving the notes and mortgages, the plaintiff had discovered the fraud and had then proceeded to execute the contract there would have been ground for invoking the doctrine of waiver. Because, however, waiver is largely a matter of intention — that is, an intention to cling to the bargain and pay the price for the property as it is and not as it was represented to be — there would still have been a question for the jury to pass upon, in view of the defendant’s confusion, ignorance and fear.
The plaintiff’s brief contains the following statement:
“Where it clearly appears that after a man had been in possession of property a month, he paid money on the contract, bought out additional interests therein and never made a claim of fraud until after suit was brought for collection of the purchase price, a counterclaim based on fraud will not be allowed.”
The case of White, Admx., v. Smith, 39 Kan. 752, 18 Pac. 931, is given as authority for the statemént. No question of waiver or condonation was involved or was considered in that case. The only question was whether or not actionable fraud had been established, and the circumstances that after Smith had been in possession of his own share of the property a month and a day he paid money on the contract, that he subsequently bought out two additional interests, and that no claim of fraud was ever made until after the commencement of suit, were referred to, in connection with other matters stated in the opinion, not as showing condonation of a fraud, but as showing the purchaser had not been defrauded at all in the manner charged.
The case of Sell v. Compton, 91 Kan. 151, 136 Pac. 927, is cited by the defendant and criticized by the plaintiff. The case was one for rescission and cancellation. The syllabus reads as follows:
“A man who trades his farm for a stock of merchandise and fixtures, gives a deed to the farm, a note for the difference in price between the farm and the goods, and agrees to pay a percentage of the proceeds of the sales of the goods on the note, has no standing in equity to ask for cancellation of the deed and note on the ground that the goods were fraudulently misrepresented unless he disaffirm promptly on discovery of the fraud and restore, or is able to restore, the other party to the trade substantially to his original status.
“If, after knowledge of the fraud, the purchaser of the goods continue to sell them in regular course of retail trade, conduct a ten-day special sale, otherwise dispose of considerable quantities of the goods, make payments on the note, and submit to a foreclosure of a chattel mortgage given to secure the note, all without any expression of dissatisfaction, the contract is affirmed in fact and in law, and his only remedy is by an action for damages.” (Syl. ¶¶ 1, 2.)
The cause was remanded with permission to amend the . pleading to claim damages, should the district court, in the exercise of its discretion, see fit to permit the amendment. In the opinion an instruction given the jury called to determine questions of fact was summarized as follows:
“The court instructed the jury that if the defendant was guilty of fraud it was the duty of the plaintiff to act promptly on discovery of the fraud, to return or offer to return the goods, and to demand restoration of the title to his land; and that if he said nothing and continued to sell the goods, he waived the fraud and could not complain of it.” (p. 153.}
In the plaintiff’s brief it is asserted that this court expressly approved that instruction and said the fraud was waived. The argument is that the instruction embodied the rule of condonation, that when the fraud was waived all remedies were lost, and that the court’s volunteered suggestion was unnecessary and was in conflict with the instruction. The trial court was instructing the jury in a case of rescission, and under elementary rules of interpretation the phraseology employed should be regarded as relating to the subject under consideration. Assuming that the instruction would be so understood, this court quoted it, but this court did not “expressly” approve the instruction either in form or in substance, and nowhere in the syllabus or in the opinion did this court say the “fraud was waived.” There was evidence enough that the vendee had been defrauded. The decision foreclosed further pursuit of the remedy of rescission and cancellation, and it was the duty of the court to direct the trial court what to do. If the vendee still had a remedy by way of damages, the petition being amendable on that theory, there was no need to compel him to begin all over again. The facts did not show that the remedy by way of damages had been lost as a matter of law, and consequently the case was remanded with leave to amend so as to , claim damages, unless the trial court should be apprised of something appealing to its discretion which would authorize it to enter a dismissal. Consequently the decision is not open to the plaintiff’s criticism and is an authority supporting the defendant’s argument.
The plaintiff quotes the first paragraph of the syllabus of the case of Thresher Co. v. Gruben, 6 Kan. App. 665, 50 Pac. 67, which reads as follows:
‘‘Where a threshing machine sold and bought as new was in fact an old one repaired and repainted, and where the purchasers knew this to be true within three days after they obtained the machine, but thereafter paid, without objection on this ground, one of the notes given for its purchase, held, that they waived the fraud in the sale, and the same did-not furnish ground for the recovery of damages.”
In that case the facts stated in the opinion show that the purchasers had three remedies: First, for rescission. This remedy was lost by using the machine and paying part of the price, although the purchaser knew of the fraud within three days after the purchase. Second, affirmance of the contract and action for damages for fraud in respect to representations not covered by the contract. This remedy was not waived by merely keeping and using the machine and paying one note. Third, action for damages for breach of warranty in respect to matters covered by the contract. The court of appeals confused the right to rescind, which must be exercised promptly, and the right to affirm, keep the property, pay for it, and sue for damages. The paragraph of the syllabus quoted is overruled.
The defendant claimed the plaintiff did not deliver to her all' the personal property included in the contract of sale. If so she is- entitled to credit for the value of such property.
The judgment of the district court is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Action to recover $122.09 involuntarily paid as taxes.
In 1913 George A. Mosby, a resident of Missouri, purchased 300 steers in Oklahoma and kept them,in that state until the following May. About March 1, 1914, the officers of Oklahoma levied a tax upon the steers and this tax was paid by the plaintiff later in the year. About May 1, 1914, the cattle were moved to a ranch owned by the plaintiff in Greenwood county, Kansas. Shortly afterwards the assessors in that county placed the cattle on the tax roll and a tax of $112.34 was levied against them. Prior to that time a return had been made to the assessor of all the personal property of the plaintiff in Greenwood county on March 1 and it had been listed for taxation. He did not know that the tax had been levied upon the cattle in question until about January 1, 1915, when a tax warrant was placed in the hands of the sheriff and he was about to sell the cattle in satisfaction of the warrant. To avoid this, and under protest, the plaintiff paid $122.09, the •amount of the taxes, penalties, costs and charges. The facts related were set forth in the plaintiff’s petition, and defendants demurred, contending that the facts did not warrant a. recovery. The demurrer was overruled and, the defendants standing upon their demurrer, judgment was rendered for the plaintiff.
On this appeal the defendants insist that the cattle are subject to taxation in Kansas. Although the cattle were not in Kansas on March 1, the ordinary time for listing property, they were brought into the state for the purpose of grazing before September 1, and under the provisions of chapter 248 of the Laws of 1899, as amended by chapter 364 of the Laws of 1901 (Gen. Stat. 1909, §§ 9233-9235), are deemed to have acquired an actual situs in Kansas and were subject-to taxation here unless excepted from that liability by the provisions of the amended act. That act provides, as far as applicable to the present controversy, that when any person shall settle in any county of this state and bring personal property therein after March 1 and prior to September 1, it shall be listed and returned for taxation in that year unless such person should prove to the taxing officers that the property has been listed for taxation for that year in some other county in the state or in some other state or territory. The section referred to has been interpreted to mean that the property of residents brought into the state' after March 1 and before September 1, which has been taxed elsewhere for that year, is not subject to taxation here, but-that' the property of nonresidents brought into the state during the period is subject to taxation. In the case of a resident the theory is that all of his money and property will be regularly listed and assessed and that his obligation to the state will be fully discharged, while the nonresident who brings his property here after March 1 and takes it out before the next assessment will contribute nothing to the public for the-protection afforded him. (Hull v. Johnston, 64 Kan. 170, 67 Pac. 548; Lingenfelter v. Ferguson, 71 Kan. 154, 80 Pac. 48.) The statute is not an unjust discrimination against the nonresident owner, nor does it offend the equal protection limitation of the federal constitution, as the intention of the provision is the imposition of taxes upon all the property in the state by the same method of valuation and at the same rate. To accomplish this, a separate provision was made to reach property that was brought to and kept in the state between the ordinary times of assessment and which would otherwise escape taxation. The money or assets which the resident invests in or exchanges for cattle or other property after the listing time is assessed as it existed on March 1, while the plaintiff residing out of this jurisdiction whose cattle have been taxed under this provision has not been assessed here for either the money or the assets invested in the cattle, and if his cattle were not assessed would escape taxation entirely. The tax is imposed on visible tangible property which has a situs in the state, and the rule is, that it may be taxed where it has a situs regardless of the domicile of the owner. It is contended that the system as applied to the plaintiff is lacking in equality, and it may not be the best mode of attaining equality; but the law does not look for absolute equality in taxation. The provision does not discriminate unjustly against the plaintiff nor deny to him the equal protection of our laws. (Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. Rep. 475, 29 L. Ed. 715; Union Transit Co. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. Rep. 36, 50 L. Ed. 150; Note, 15 L. R. A., n. s., 142.) Nor can the required contribution be regarded as double taxation in any legal sense. Each state is sovereign and independent and has authority to impose a tax on all property within its jurisdiction. It does not lose its power because property brought into the state may have been subjected to taxation in the state from which it was brought for the same period. It j can not be regarded as double taxation unless it is twice taxed j in the same jurisdiction. (Hudson v. Miller, 10 Kan. App. 532, 63 Pac. 21; Judy v. Beckwith, 137 Iowa, 24, 114 N. W. 565, 15 L. R. A., n. s., 142; Whitaker, Auditor’s Agent, v. Brooks, 90 Ky. 68, 13 S. W. 355, 11 Ky. Law Rep. 871; Bradley v. Bauder, 36 Ohio St. 28, 38 Am. Rep. 547; 37 Cyc. 755.)
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
George W. Humphrey brought this action against M. E. Flaherty, to recover a balance due under a written contract by which the plaintiff was to receive $2500 for remodeling and constructing a house for the defendant and he recovered a judgment for $361.64 from which the defendant appeals.
In the contract, February 1, 1912, was named as the time for completing the building, and it was provided that the plaintiff should forfeit $5 per day for any delay in the com-pletion after that date. It was also provided that payments should be due when certificates of the architect were issued. In his appeal the defendant insists that the trial court erred in not making any allowance for plaintiff’s delay in the completion of the house, and he further insists that the plaintiff was not entitled to judgment because the work was not done according to the contract and certificates had not been given by the architect. The work was not completed until about two months after the time fixed in the contract for completion. The plaintiff claimed that- the penalty provision was waived by the defendant, who was placing a large boiler in the basement and the foundation walls had to be left open some time for that purpose, and also by requiring the doing of extra work such as the deepening of the cellar, the building of attic stairs, putting in attic windows and making window and door screens. Another reason assigned for the delay was the extreme cold during a part of the winter while the work was going on which interfered with the building; but that is a contingency against which the plaintiff might have provided in his contract. The testimony, however, is that the acts and defaults of the defendant mentioned occasioned delay. It is well settled that if an owner by his own act and default prevents the contractor from performing the contract within the specified time the contractor can not be held liable under a penalty provision such as was contained in the contract in question. His action or default in effect waives the penalty or rather estops him from claiming damages for which he. is himself responsible. (Ritchie v. City of Topeka, 91 Kan. 615, 138 Pac. 618; Note, 17 Ann. Cas. 646.) Upon this issue and the testimony produced the trial court found in favor of the plaintiff, and upon an appeal this finding must be deemed to be conclusive.
As to the question that no action would lie because the architect’s certificates had not been issued, it is the contention of the plaintiff that this provision of the contract has also been waived. The contract was for the rebuilding and extension of an old house, and while the contract was in the form ordinarily used by builders in new construction where an architect is employed to supervise the construction, it is in testimony that the parties never contemplated that the architect who made the plans should make estimates or issue certificates. The architect called once shortly after the work was begun and looked at the building, but the defendant did not ask him to certify what was due under the contract. On the contrary, the defendant made payments to the plaintiff from time to time without mention of estimates or certificates. Aside from the cursory look made by the architect a short time after the work was begun the defendant did not ask the architect to look at the building again until more than two years after the work was completed. He moved into the house a little while after the time when it was turned over by the plaintiff and has since occupied it, and after the house was complete the defendant entered into a contract with the plaintiff for the erection of a barn on the premises. A provision for the architect’s certificate and approval is one that may be waived, and the waiver may be implied from the acts of the owner. (Hobart v. Beers, 26 Kan. 329; 30 A. & E. Encycl. of L. 1246.)
Testimony was introduced to the effect that a small part of the work was imperfectly done, and upon this evidence the court in awarding judgment for the plaintiff credited the defendant with the sum of ten dollars. Under the circumstances the allowance of the credit can not be regarded as a finding that the contract had not been substantially performed by the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
James M. Mason brought an action in the district court of Wyandotte county against Skip D. Harlow to enjoin Harlow from prosecuting a damage suit against Mason in the courts of Arkansas. Mason procured a temporary injunction and gave bond to indemnify Harlow thereon. Eventually the defendant, Harlow, prevailed in the Wyandotte county casé. (Mason v. Harlow, 84 Kan. 277, 114 Pac. 218; 91 Kan. 807, 139 Pac. 384; 92 Kan. 1042, 142 Pac. 243.)
Thereafter Harlow filed an action against Mason and the surety on the bond given in the injunction case, alleging damages in the aggregate sum of $291, and from a judgment in plaintiff's favor, defendant Mason appeals. The bond reads:
“Whereas the honorable District Court of Wyandotte County, Kansas, Second Division, did on the 10th day of June, A. D. 1911, issue a temporary injunction, restraining and enjoining Skip D. Harlow, his agent, servants and attorneys from further, during the pending of this suit and until the further order and judgment herein, from prosecuting a civil action for damages in which said Skip D. Harlow is plaintiff and James M. Mason is defendant pending in the Circuit Court of Fulton County, Arkansas.
“Now, therefore, James M. Mason as principal and the United States Fidelity and Guaranty Company as surety are held and firmly bound unto the said Skip D. Harlow in the sum of Three Hundred Dollars well and truly to be paid;
“The condition of this bond is such, that if the said James M. Mason shall pay to said Skip D. Harlow any damages which he may sustain if it be finally decided that the said injunction issued ought not to have been granted, then this obligation to be void, otherwise to remain in full force and effect.”
The sole defense was that the damage suit in Arkansas, Harlow v. Mason, has not yet been disposed of. It is still standing on the dockets awaiting an opportunity to obtain a valid service of summons on Mason, and that will probably never occur.
The appellant contends that the restraining order or temporary injunction issued in the Wyandotte county case was merely ancillary to the action for damages in Arkansas, and that this action on the bond for damages was prematurely brought since the Arkansas case is still pending. This is a misapplication of a doctrine which is sound enough in itself. Where a court having jurisdiction of a cause and of parties issues an injunctive order to protect its jurisdiction or for other good cause, at the behest of one of the parties, it may decline to entertain an action on the bond given to procure such injunction until the main case is disposed of. In some cases it may be that the obligors on the bond are entitled as a matter of right to have the action stayed until the principal cause is decided.
But the idea that an injunction is a mere ancillary order dependent upon or pertinent to another suit no longer prevails. It may be that, indeed; but in our time it is frequently much more. Without relation to any other suit, an independent action for an injunction is as familiar as an action for debt, for damages, for mandamus or to quiet title.
We note the case of Brown v. Galena Mining and Smelting Co., 32 Kan. 528, 4 Pac. 1013, cited by appellant, which was an acton for a permanent injunction to restrain-parties from mining on certain property in Galena. A temporary injunction was issued, the plaintiffs having given bond therefor. Later the temporary injunction was dissolved. Whereupon the defendant against whom the temporary injunction' had been issued commenced an action on the injunction bond. This court held that this action was prematurely brought, for it could not be ascertained until the main cause was decided whether the temporary injunction had been improvidently issued or not.
But in the case at bar the issues were threshed out to a conclusion in a jury trial and a final judgment rendered thereon, which judgment was affirmed by this court. (Mason v. Harlow, 91 Kan. 807, 139 Pac. 384.) That was a conclusive determination that the temporary injunction was not properly allowed, and Harlow’s damages suffered thereby were then a matter of justiciable determination, and the district court did not err in entertaining this action on the bond nor in rendering judgment thereon. This rule is recognized in Brown v. Galena Mining and Smelting Co., supra.
“If the court by the final judgment grants the relief demanded in the petition, it is the final decision that the temporary injunction was properly granted, and the undertaking given has served its purpose; but if the court, by its final judgment, decided that the plaintiff is not entitled to such relief, then it is finally decided that the injunction ought not to have been granted, and the liability of the obligors to it is fixed, and suit may be commenced and maintained for all damages sustained because of the issue of the injunction.” (p. 531.)
To this effect are Fox v. Hudson, 20 Kan. 246; Mitchell v. Sullivan, 30 Kan, 231, 1 Pac. 518; Mulvane v. Tullock, 58 Kan. 622, 50 Pac. 897; Tullock v. Mulvane, 61 Kan. 650, 60 Pac. 749. Nor is this at variance with the decisions cited by appellant. There is no longer room for debate as to whether or not the temporary injunction ought to have been granted when the suit for a permanent injunction has been finally decided against the party who obtained the temporary injunction.
A very interesting question is presented by appellee in a motion to dismiss but on the view here taken on the merits it need not be considered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment awarded to O. W. Jones against the Atchison, Topeka & Santa Fe Railway Company as damages for personal injuries sustained by him while attempting to board one of the defendant’s trains. The accident occurred on the morning of August 28, 1914, at the defendant’s station in Mayfield, Kan. Jones went to the station with the intention of taking the local freight that arrived at that place about seven o’clock in the morning, and which had just pulled in when he reached the station. Finding the ticket oifice closed, the plaintiff went out to the train where the station agent and the conductor and brakeman of the train were unloading freight from one of the cars. The plaintiff testified that he asked the agent, who was working inside the car, for a ticket, but received no response, although the plaintiff was only six or seven feet away. He remained there until the railroad employees were through working in that car, when the agent started towards the ticket office, but he was called back by the conductor to take freight from another car. The plaintiff then took his valise back and placed it in the way car and started back toward the ticket office, but the train started to move and the plaintiff turned back towards the way car again. The train stopped for a moment, but soon after this it began moving from the station without any announcement or signal having been given, and the plaintiff said to the conductor and brakeman, who were standing near the train, that he had not been able to purchase a ticket yet, that his valise was on the way car, and that he desired to go out on that train. The conductor then said: “If you are going on this wagon you will have to get on.” About twenty cars had passed them when this remark was made, and the train was said to be going about four miles an hour. The brakeman also told the plaintiff to get on, saying: “We are leaving town, train is going slow.” Plaintiff followed the suggestion of the trainmen and attempted to swing on to the way car as it passed, just after the conductor and brakeman had each in turn done so. He testified that as he took hold of a railing and put his foot on the first step the train jerked and he was thrown down and seriously injured. The jury returned a verdict for the plaintiff and also made special findings. Among other things, the jury found that the train was going about seven miles an hour when the plaintiff undertook to board it; that the negligence of the defendant consisted in not selling him a ticket when he asked for it; in the conductor signaling the engineer to go ahead, knowing that the plaintiff, desired to get aboard; and in the failure of the employees to use proper precautions to help plaintiff board the train after telling him to attempt to do so.
The defendant insists that the injury suffered by the plaintiff was the result of his own negligence, and also that in submitting the case to the jury the correct rule of the plaintiff’s responsibility Was not stated by the court. Some testimony was offered, tending to show, that the injury resulted from the failure of the defendant to take precautions for the safety of the plaintiff when he was attempting to board the train, but the degree of negligence that would make the defendant liable was not correctly stated. Ordinarily a carrier is bound to exercise the highest degree of care for the safety of its passengers which is reasonably practicable. It is not expected, nor does the law require, that a carrier shall provide for - passengers traveling on a freight train the safeguards and the conveniences ordinarily provided for travelers on passenger trains. The care and skill required necessarily depend upon the means of transportation, and precautions that would exonerate a carrier from responsibility for an injury to a passenger on a freight train would not suffice if the injury had been sustained on a passenger train. Freight trains, as all know, are mainly used for carrying freight, and there are many hazards on such trains that travelers are not subjected to on passenger trains. One who chooses this means of travel must be held to have done so with a knowledge of the hazards and inconveniences incident to the operation of such trains.' A carrier is required to exercise due care towards passengers carried for hire on freight trains, but the extent of its responsibility is the subject of dispute. In the absence of a; statute fixing the degree of care to be exercised by a carrier towards passengers on a freight train, it is generally held that it must exercise the highest care that is practicable and consistent with that mode of transportation. (Mo. Pac. Rly. Co. v. Holcomb, 44 Kan. 332, 24 Pac. 467; Railway Co. v. Ralston, 77 Kan. 196, 93 Pac. 592; Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104, 93 S. W. 268, 6 Ann. Cas. 793, and Note; St. Louis & S. F. Ry. Co. v. Gosnell, 23 Okla. 588, 101 Pac. 1126, 22 L. R. A., n. s., 892; Notes, 19 L. R. A. 310, 313; 34 L. R. A., n. s., 230.) Our legislature, however, has fixed the measure of care to be exercised by a railroad company carrying passengers on freight trains, as well as the measure of its responsibility to passengers who may be injured while traveling on such trains.These companies had provided for carrying passengers on, mixed trains, composed of freight and baggage cars, but evidently they were averse to passenger traffic on the ordinary freight trains, where there was no place for the care of passengers except in the caboose. In view of the known practice of excluding passengers from freight trains the legislature enacted—
“That all freight trains to which a caboose is attached shall be obliged to transport, upon the same terms and conditions as passenger trains, all passengers who desire to travel thereon and who are above the age of fifteen years, or who, if under fifteen years, are accompanied by a parent or guardian or other competent person, But no freight train shall be required to stop to receive or discharge any passenger at any other point other than where such freight train may stop; nor shall it be necessary to stop the caboose of such trains at the depot to receive and discharge passengers: Provided, That on such trains the railroad companies shall only be liable for.their gross negligence: And provided further, That this act shall not be construed to apply to freight trains on main lines, the most of which train shall be composed of cars loaded with live stock.” (Gen. Stat. 1909, § 7123.)
In the previous legislature of 1907 an act was passed requiring railroad companies to carry all persons except certain minors on freight trains, and providing, too, that they might limit their liability to passengers as against anything but willful negligence. (Laws 1907, ch. 274.) In a case where that act was under consideration it was held that mixed trains, consisting of freight, passenger, mail and baggage cars, regularly engaged in carrying passengers, such as are usually operated on the branch lines of the state, were not within the meaning of the act. (Schwartz v. Railway Co., 83 Kan. 30, 109 Pac. 767.) It may be assumed that the legislature has implied power to require carriers to take passengers on freight trains, and also to fix the measure of their responsibility for injuries suffered by passengers choosing that means of travel. Persons above fifteen years of age, as well as those younger who are accompanied by guardians or competent attendants, may elect to take the risk of traveling on a freight train, but the legislature has said that those who venture on such trains have no right to ask more than slight care and can hold the carriers for nothing less than gross negligence. In the absence of statutory standards of negligence the courts of Kansas have generally ignored the classification of negligence into the degrees of slight, ordinary and gross, and have held that in each case the true measure is due care; that is, the care and diligence proportionate to the-risk and which the peculiar circumstances of the case demand. (Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346.) Although comparative negligence has been discarded, the degrees of negligence have been recognized in this state for some purposes. (K. P. Rly. Co. v. Pointer, 14 Kan. 37; K. P. Rly. Co. v. Kessler, 18 Kan. 523; A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77, 1 Pac. 298; Winstead, Sheriff, v. Hulme, 32 Kan. 568, 4 Pac. 994; Cady v. Case, 45 Kan. 733, 26 Pac. 448; A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919.) It must be assumed that the classification recognized in these cases is the one the legislature had in mind when the law in question was enacted. Negligence is the violation or disregard of a duty, and the recognized meaning of the term gross negligence is the failure to exercise slight care. Instead of the high degree of care which the court has always held to be required where the safety of passengers was involved, even while traveling on freight trains, the statutory measure must now be applied to passengers traveling on such trains. The rule of the statute may appear to be somewhat harsh, but it is based on a matter of public policy, and having been defined and declared by the legislature, the courts must observe and enforce it. The trial court ignored the rule of the statute and instructed the jury upon the old theory that the defendant would be liable if it had been guilty of ordinary negligence towards the plaintiff. It is said by the plaintiff that as no instruction upon the statute was requested by the defendant it has no right to complain, but the difficulty is that the instructions given did not state the correct rule of responsibility, and it is of those given that complaint is made.
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The opinion of the court was delivered by
Portee, J.:
The action in the district court was to recover an alleged indebtedness. There were three causes of action, but the error complained of relates to the third cause of action, which was upon a promissory note. The jury returned a verdict in plaintiff’s favor and made a number of findings of fact. The court approved the findings, but sustained defendant’s motion for judgment on the pleadings, evidence and findings, and this is the ruling we are asked to review.
The answer admits the execution of the note but alleges that plaintiff is not the owner or holder of it; that prior to the commencement of the action he had sold, assigned and delivered to one C. M. Hutchison the note together with a mortgage given to secure its payment, and that thereafter defendant paid the note, and that the mortgage had been canceled and delivered to him by the holder; that the plaintiff had retained the moneys received by him for the sale of the note and had never tendered or offered to return the same.
The reply admitted the execution, delivery and assignment of the note and mortgage, but alleged that C. M. Hutchison’s name was not written in the assignment of the mortgage at the time it was delivered, and that the transfer and assignment was made under the following circumstances : Defendant employed one R. C. Wilson to purchase the note and mortgage for him as cheaply as possible and agreed to provide a fund amounting to twelve hundred dollars or more with which to make the purchase; that thereupon Wilson, concealing from plaintiff the fact that he had been employed by and was acting for the defendant, negotiated with plaintiff for the purchase of the note and mortgage, and falsely and fraudulently represented to plaintiff that they were of very little value and would be difficult to collect; that the plaintiff believed these false representations and relied upon them; and that Wilson, for and on behalf of def endant, paid the plaintiff $400, and that plaintiff under these circumstances executed the assignment and delivered the note and mortgage to Wilson. The reply further alleged that the whole transaction amounted in law to nothing more than the payment of $400 on the note, for which plaintiff in his petition had given defendant credit. It further alleged that Wilson wrote in the name of Hutchison as assignee, in order that Hutchison might make a formal release of the mortgage. The jury found that plaintiff accepted the $400 on Wilson’s'representations to the effect that the note and mortgage were of very little value and would be very difficult of collection, that Wilson knew at that time that defendant had made arrangements for the payment or purchase of the note, and that plaintiff believed and relied upon the statements.
As already observed the trial court approved these findings of fact but held that the note had been paid and discharged by the transaction. The plaintiff relies upon the rule that an agreement to accept part in satisfaction of the whole of a liquidated demand is invalid because without consideration. (Bridge Company v. Murphy, 13 Kan. 35; St. L. Ft. S. & W. Rld. Co. v. Davis, 35 Kan. 464, 11 Pac. 421.) The reason for the rule is that there is no consideration for the release of the remainder of the debt, as the debtor gives no more than he is bound to give, and the creditor accepts no more than he is entitled to receive. The rule is said to have had its origin in a dictum in the English Court of Common Pleas (Pinnell’s Case, 5 Coke’s K. B. 117). Although it is universally recognized by courts and text-writers, it has been criticised as technical, artificial and having no foundation in reasoning. (Brooks and another v. White, 43 Mass. 283, 285, 37 Am. Dec. 95; Bolt v. Dawkins, 16 S. Car. 198, 214.) In a number of states it has been entirely abrogated or modified by statute. Courts generally refuse to apply the rule where the technical reasons for doing so do not exist (Brooks and another v. White, supra; Harper v. Graham, 20 Ohio, 105, 115), and have recognized numerous exceptions to it, for instance, the payment of a part before due, or at a place other than that where the obligor was legally bound to pay, or a payment in property, regardless of its value, or by the debtor in composition with his creditors generally by which they agree to accept less than is due them, is held to create a consideration which is sufficient. The rule quite generally followed is that any additional consideration, however small, will support the new agreement, provided only it be such that in law it is sufficient to support an ordinary contract and consist of something which the debtor was not legally bound to do or give. (Bryant v. Proctor, 53 Ky. 451.) Thus it has been held that the payment of a debt or any part of the debt before it is due is something which the debtor is not under legal obligation to •do and therefore furnishes a legal consideration for a contract to release or cancel a debt; and any new consideration moving from the debtor toward the creditor will take the agreement ■out of the operation of the rule. (1 C. J. 544, 545.) It is well settled that the courts will refuse to inquire into the adequacy of the consideration if there be any that will support an ordinary contract. (Hastings v. Lovejoy, 140 Mass. 261, 2 N. E. 776, 54 Am. Rep. 462.) It is said that the additional consideration may consist of anything which might be a burden to the one party or a benefit to the other. (1 C. J. 541.) One established exception to the rule is that payment by a third person of a sum less than the amount due, with the understanding that it shall be in full payment, is held to be an accord and satisfaction. .
A very thorough discussion of the subject of accord and satisfaction will be found in an elaborate note in 100 Am. St. Rep. 390-456. The author of the note, referring to the technical distinction drawn by the earlier cases says:
“The strictness of the rule undoubtedly worked many hardships in preventing a creditor, who needed the money, from making an accord and satisfaction with his debtor or in preventing a debtor who might be temporarily embarrassed from settling with his creditor for less than the fixed amount of his debt. Hence, the courts, though bound by precedents, from time to time enlarged the exceptions to the rule so that now the exceptions might almost be said to form the rule itself.” (p. 430.)
There was great lack of harmony in the earlier decisions on the question whether part payment made by a stranger to the transaction to which it relates could be pleaded as accord and satisfaction. The English and many of the early American cases held that a satisfaction given by a stranger is not good because he is in no respect a privy to the original contract. The leading English cases to that effect are Grymes v. Blofield, 1 Croke’s (39 Eliz.) 541, and Edgcombe v. Rodd and Others, 1 Smith, 515, 5 East, 294. The doctrine of Grymes v. Blofield, was followed in the United States by Clove v. Borst, 6 Johns. (N. Y.) 37, and by a number of other courts.-
In Leavitt and Lee, Executors of Hans Wilson, dec’d v. Morrow, 6 Ohio St. 71, the doctrine that a satisfaction is no defense if it accrue from a stranger is discussed and the older cases are criticised. In the opinion it was said:
“But mere precedent alone is not sufficient to settle and establish forever a legal principle. • Infallibility is to be conceded to no human tribunal. A legal principle, to be well settled, must be founded on sound reason, and tend to the purposes of justice. . . . Precedents are to be regarded as the great storehouse of experience, not always to be followed, but to be looked to as beacon lights in the progress of judicial in vestigation, which., although at times they may be liable to conduct us to the paths of error, yet may be important aids in lighting our footsteps in the road to truth. . . . The rule laid down is purely technical; and the reason assigned, that the stranger is not privy to the condition of the obligation, loses all its reality when we consider that the satisfaction must have been accepted by the plaintiff, and assented to or ratified by the defendant. -It would seem, therefore, that a rule which in its tendency is calculated to foster bad faith and defeat the purposes of justice ought not to be adhered to simply on account of its antiquity.” (pp. 78, 80.)
The Ohio case was approved in Harvey v. Tama County, 53 Iowa, 228, 233, 5 N. W. 130, and cited in Wellington v. Kelly et al., 84 N. Y. 543, 547, as having materially criticised and limited Grymes v. Blofield, supra. In Snyder v. Pharo, 25 Fed. 398, it was held that:
“Satisfaction of a debt by the hands of a stranger is good when made by the authority of, or subsequently ratified by the defendant, and the fact of pleading it, will be sufficient evidence of ratification.” (Headnote, ¶ 2.)
In Jackson v. Pennsylvania R. R. Co., 66 N. J. Law, 319, 49 Atl. 730, 55 L. R. A. 87, it was held that an accord between the plaintiff and a third person and satisfaction moving from such third person to the plaintiff, who accepts and retains it, are available as a defense if the defendant has either authorized or ratified the settlement. After a full consideration of the early authorities, English and American, on the question of accord and satisfaction entered into by a third person, it was said in the opinion:
“The tendency of the American decisions is strongly in favor of supporting a satisfaction moving from a third person, when such person either had authority to make it, or the act was followed by ratification, and the article received in satisfaction was retained. . . . The reason of the rule is simple. On the one hand, no party can be deprived of a right by mere payment by a volunteer. On the other hand, since a party is entitled to only one satisfaction, his acknowledgment that he has received it, and his retention of it, operate to extinguish his right.” (pp. 325, 326.)
In Crumlish’s Adm’r v. Cent. Imp. Co., 38 W. Va. 390, 18 S. E. 456, 45 Am. St. Rep. 872, 23 L. R. A. 120, there is a review of the English cases and the early New York cases, as well as the later American cases, and attention is called to the fact that in Wellington v. Kelly et al., 84 N. Y. 543, the old cases were doubted. In the opinion it was said:
“It seems utterly unjust and repugnant to reason, that a creditor accepting payment from a stranger of the third person’s debt should be allowed to maintain an action against the debtor pleading and thereby ratifying such payment, on the technical theory that he is a stranger to the contract. The creditor has himself, for this purpose, allowed him to make himself a quasi party, and consents to treat him so, so far as payment is concerned. To regard the debt paid, so far as he is concerned, is but to hold him to the result of his own act. Shall he collect the debt again? In that case can the stranger recover back? What matters it to the creditor who pays? As the supreme courts of Wisconsin and Ohio in cases above cited said, this doctrine is against common sense and justice.” (p. 396.)
In Harrisons v. Hicks, 1 Port. (Ala.) 423, 27 Am. Dec. 638, it was said:
“The payment of a debt, although it be made by one who is not a party to the contract, and although the assent "of the debtor to the payment does not appear is still the extinguishment of the demand.” ■(Syl. ¶ 2.)
No cases have been cited in the brief which involved facts at all similar to the case at bar. Our own research has resulted in finding but two cases which are at all analogous. In Shaw v. Clark, 6 Vt. 507, 27 Am. Dec. 578, where a judgment debtor furnished the money to a'third person to purchase a judgment from the creditor who accepted a less sum than the face of the judgment, it was said in the opinion: “As the sum paid was really the money of the debtor and paid over by his agent it is the same as if paid by himself.” (p. 508.) The court held it to be quite obvious that the act of a debtor in furnishing funds to a third person to buy up his debts at a discount is so far fraudulent as to render the sale voidable at the election of the creditor. This case was decided in 1856.
A case to the contrary is Gordon v. Moore, 44 Ark. 349, 51 Am. Rep. 606, where the facts were in some respects similar to those in the present case, and it was held that an agreement by a creditor to accept from a third person, in behalf of the debtor, a smaller sum in satisfaction of the whole is valid and binding and will discharge the debt. In the opinion it was said that the consideration is that the creditor gets, or is assured of getting, what perhaps the debtor might never pay, and that “it can not alter the nature of the case that the debtor repaid the advance.” - (p. 355.)
In 1 R. C. L. 182, it is said:
“The modern and better rule is that an accord and satisfaction made with one who is a stranger to the transaction to which it relates is good, and will bar an action on the claim involved, if the person against whom the claim was made has either authorized or ratified the settlement.”
The author concedes that there are authorities which hold to the contrary supported by some of the earlier American cases and the English authorities, but adds that—
“It requires powers of discrimination looking far beyond the justice of the case to see the reason of this rule. The reason assigned by some of the early adjudications is, that the person from whom the accord and satisfaction comes is not privy to the contract giving rise to the debt. This reason might give just cause to the creditor to refuse to receive the satisfaction from a stranger, or third person, not known in the transaction of the parties, even as agent of the debtor, but when the creditor has actually received and accepted the contribution in satisfaction of the debt, to allow him to maintain an action on' the same debt afterward would seem to shock the ordinary sense of justice of every man.” (p. 182.)
In 1 Cyc. 317, it is said:
“But in order that the act of the stranger operate as a satisfaction of the debt or demand it must have been authorized by the debtor or subsequently ratified by him.”
Formerly an exception to the rule was always made in a case where a release under seal was given with part payment on the theory that a release under seal implies a consideration. But this exception to the rule finds no room for application in those jurisdictions where, as in this state, the distinction between sealed and unsealed -instruments has been abolished. (Gen. Stat. 1909, § 1643; 1 C. J. 543.)
From the foregoing authorities it seems firmly established that a debtor may authorize and employ a third person as his agent to make a satisfaction of his debt; that where he does so, and the money is advanced by the third party and accepted by the creditor in satisfaction of the debt it is a good accord and satisfaction. This is so even where the third party makes the payment without the debtor’s knowledge, if the latter afterward ratify the action.
Did the concealment by Wilson of the fact that he was acting fox* the defendant destroy the effect of the payment, or in other words, must there be knowledge on the part of the creditor that the payment is made on behalf of the debtor before it will constitute an accord and satisfaction ? It was held that an accord and satisfaction is—
“The result of an agreement between the parties, and, like all other agreements, must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. If the creditor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor.” (Harrison v. Henderson, 67 Kan. 194, 200, 72 Pac. 875.)
And in Matheney v. El Dorado, 82 Kan. 720, 109 Pac. 166, it was ruled that—
“To constitute an accord and satisfaction, the agreement that a smaller sum shall be accepted in discharge of a larger one originally claimed must have been entered into by the parties understandingly and with unity of purpose.” (Syl. ¶ 1.)
But the extent of the doctrine there declared is merely that the smaller sum must not only have been offered, but it must have been accepted with the understanding that it was in full satisfaction of the larger amount claimed. The plaintiff certainly understood that he was accepting the $400 in full satisfaction of all his interest in the note and mortgage. It is difficult to see how his rights were affected in the slightest by his failure to know and understand that Wilson was acting as the agent of the debtor, because as we have seen, the weight of authority is that a payment of a part by a stranger, who may have acted without the knowledge or consent of the debtor, will, if accepted by the creditor and afterwards ratified by the debtor, constitute a full accord and satisfaction.
Section 126 of the negotiable instruments law (Gen. Stat. 1909, § 5372) enumex*ates the various ways in which negotiable instruments may be discharged, among which is (5) “when the principal debtor becomes the holder of the instrument at or after maturity in his own right.” The phrase “in his own right” has been construed to exclude a case where a maker acquires the instrument in a purely representative capacity. (Bank v. Dryden, 91 Kan. 216, 137 Pac. 928.) There it was held that the note is not discharged when the maker acquires it as agent for another. Nor is it discharged when the maker becomes the holder, for example, as executor or administrator. (See Crawford’s Ann. Neg. Inst. Law, Revised Uniform ed., p. 195, and cases cited.) Did not the debtor in this case become the holder of the instrument after maturity in his own right? Whether we consider the transaction as one in which he furnished the money in the first instance to purchase the note through his agent, Wilson, or as one in which Wilson first purchased it with his own funds and subsequently, upon being reimbursed by defendant, transferred it to him, it would seem to be clear that the maker became the owner in his own right, unless there be some principle of law which forbids a debtor to purchase his own debt. The holder of the note was willing to part with all his interest in it upon payment of $400, and accepted in full consideration for his interest that sum from one whom he believed to be the purchaser and surrendered the note and security. How are his rights as a holder affected in any manner by the subsequent transfer of the note to the maker? Promissory notes, both before and after maturity, are negotiable and transferable, and the exigencies of business and trade demand the extension rather than the restriction of these qualities.
We fail to find any showing of fraud in the transaction by which plaintiff was induced to transfer the note to Wilson, unless it must be said as a matter of law that the transaction was fraudulent because it amounted to a purchase by the defendant of his own debt, and because the plaintiff supposed he was dealing with Wilson. Leaving out of consideration for the present that feature of the matter, let us inquire what finding there is which shows fraud. Finding No. 10 is as follows:
“Did the plaintiff accept $400 from R. C. Wilson for an assignment of the $1200 note and mortgage in question, relying upon his own general knowledge of the defendant’s responsibility and probable ability to pay and induced by a belief, based upon such knowledge that it was for his best interest to accept Wilson’s proposition to pay said sum for such assignment? Answer: Accepted on R. C. Wilson’s representations.”
Other findings are to the effect that Wilson sáid to plaintiff, in substance, that the note and mortgage "were of very little value and would be very difficult of collection;” that Wilson knew defendant had made arrangements for the payment or purchase of the note and concealed that fact from the plaintiff. The jury being asked to state in what way he concealed the fact from the plaintiff that defendant had made these arrangements answered that it was done by leaving the name of the assignee out of the assignment. The answer is meaningless. It would have been an equally appropriate answer if they had been asked to state in what way Wilson concealed from plaintiff the existence of any other fact which he had failed to mention. If they had been asked to state in what way he concealed from plaintiff the condition of defendant’s health, the answer would have been no less absurd. The jury might better have answered : “We do not know.” The execution of a blank assignment of instruments is a common practice. The assignment was left in blank, and the jury found that Hutchison’s name was written in afterwards in order that he might execute a proper release of the mortgage. The assignment was executed by the plaintiff, not by Wilson. The plaintiff was willing to execute it in blank and there was no fraud in the act of Wilson in writing in the name of any one he pleased. The plaintiff supposed he was transferring his right in the mortgage to Wilson; and if the latter’s name had been written in the assignment, plaintiff would have remained equally ignorant of the fact, if it was a fact, that his brother had made arrangements for the purchase or payment-of the note. Moreover, there is no showing or finding that the defendant had provided a fund for the full payment of the note. The most that is shown is that he had arranged with a banker to buy the note for him. How much he paid the banker over and above the $400 advanced to the plaintiff, or how he paid it, does not appear. If plaintiff had known that his brother was to reimburse Wilson or had already advanced the money to Wilson, he might still have been willing to accept that sum in satisfaction of the entire debt.
It certainly does no violence to the presumed intention of the parties to hold him to the result of his own act in accepting the $400 with the understanding, at least, that he was parting with all his interest in the note and that, so far as he was concerned, the sum he received was to be in full payment of his claim. So far as shown by the evidence or findings, the money actually received by the plaintiff was advanced by the third: party. Plaintiff therefore received something he might not otherwise have received; and applying the rule that any benefit or advantage accruing to the creditor, however slight, is a sufficient consideration to support the agreement, we think it must be held that a consideration was shown in this case. The rule that a payment of a lesser sum accepted with the understanding that it shall be in full discharge of the entire debt will not bar an action to recover the balance unless made upon a new and distinct consideration, rests rather upon technical considerations than upon common sense, and the strict adherence to it has often resulted in preventing justice and the enforcement of the real intent of the parties. As we have seen, the modern tendency of the courts is to enlarge the exceptions to the rule in order to avoid its harshness, and to enforce settlements, adjustments and compromises. It is always necessary that the minds of the debtor and creditor meet upon the proposition that the receipt of the lesser sum shall extinguish all right on the part of the creditor to exact further payment. (Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875; Matheney v. El Dorado, 82 Kan. 720, 109 Pac. 166.) When-it is shown that the minds of the parties, whether acting by and for themselves as principals, or through others as agents, have met and agreed upon this point, the courts should reach out and seize upon any possible or probable benefit to the one, or loss or inconvenience to the other, which may be said to constitute a consideration for the new agreement, and thus carry into effect the understanding of the parties.
Wilson’s representations were merely the expression of his. opinion. Besides, it seems far fetched to say that plaintiff had a right to or did rely on Wilson’s statement as to the financial responsibility of his brother, because the record shows that he must have known more about that matter than Wilson. The defendant is his brother. In this same action plaintiff sues upon other causes of action involving an account showing numerous business transactions between the two covering a period of thirteen years and in which the plaintiff was the creditor and his brother the debtor. They lived in the same neighborhood. Part of the account sued for is for labor performed by plaintiff for the defendant. Plaintiff must have known about his brother’s financial affairs. He knew the note had been given to take up a previous note for $1000 and interest which his brother had been unable to pay. So far as the record shows the $400 was advanced by a third party. It was entirely satisfactory to plaintiff until he learned subsequently that Wilson had been acting in behalf of his brother, when he attempted to repudiate the transaction, but retained the payment.
Property of all kinds, real and personal, is purchased every day by agents for undisclosed principals. Why may not an individual purchase and become the owner of the evidence of his indebtedness? It is a common practice for the state, for cities and other municipalities, as well as for private corporations, to purchase their own bonded indebtedness. We have been cited to no principle of law, and are not aware of any, which would prevent an individual from going into the market and purchasing at a discount or otherwise, securities upon which he is indebted and' which he has put in circulation. If he may do this himself, he may accomplish the same thing by an agent who acts without disclosing the agency.
We think the trial court wisely concluded that the findings of fact might be permitted to stand as approved without affecting the rights of the parties, and that upon the facts plaintiff can not maintain the action to recover on the note.
There is a cross-appeal in reference to the two causes of action upon which plaintiff recovered a,small judgment. We find nothing substantial in the claims of error as to these matters, and the judgment will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sought to recover judgment for damages for the dispossession of the land on which he was pasturing and watering cattle. Judgment was rendered in favor of the defendants. The plaintiff appeals.
The American Land & Cattle Company owned a large tract of land in Clark county. From some time in 1905 until in July, 1913, the plaintiff pastured and used about 1600 acres of this land, lying along Snake creek. The plaintiff owned other large tracts of land contiguous to, and fenced with, that of the cattle company. The plaintiff paid $200 a year for the use of the land owned by the cattle company. This rent was paid to different parties. The plaintiff’s leases were oral and were for a year at a time. There was a conflict in the evidence concerning the parties from whom the plaintiff leased the land. The plaintiff’s evidence tended to show that he rented the land from agents of the cattle company, while the defendants’ evidence tended to show that the plaintiff rented the land from the company’s tenants. These tenants had written leases which provided for the surrender of possession of the land on the 30th day of April of each year. J. P. Campbell had this and other land of the cattle company leased annually from May 1, 1911, to April 30, 1913. For the year May 1, 1913, to April 30, 1914, Campbell had the other land leased, but for that year his leases omitted the lands in controversy. In July, 1913, the cattle company fenced its land along Snake creek, drove the plaintiff’s cattle off, and ordered the plaintiff to keep off the land and to keep his cattle out. The plaintiff was pasturing a large number of cattle on the land owned by himself and that owned by the cattle company. These cattle obtained water at Snake creek, on the land of the cattle company. The plaintiff did not have a supply of water on his land sufficient for his cattle. On account of being deprived of water, his cattle were greatly damaged. To recover damage he brought this action. The case was tried to a jury and a general verdict was returned in favor of the defendants.
One of the plaintiff’s complaints is that the court erred in admitting in evidence leases from the defendant cattle company to J. P. Campbell for the years 1911, 1912 and 1913. In their answer the defendants denied that they had, at any time, leased to the plaintiff any of the land belonging to the cattle company, and denied authorizing any person to do so. Under these allegations it was proper for the cattle company to prove that it had leased the land in controversy to J. P. Campbell, and then to prove that J. P. Campbell had leased the land to the plaintiff. This evidence contradicted that of the plaintiff, which tended to show that the plaintiff leased the land directly from the cattle company through its agents. If the plaintiff rented this land from J. P. Campbell, his leases were properly introduced in evidence to show his, and, necessarily, the plaintiff’s rights under the leases, together with the rights of the defendant cattle company.
No notice that the plaintiff’s right to the use of the land would be terminated was given to the plaintiff by the cattle company, or by anyone for it. For this reason the plaintiff contends that he was wrongfully deprived of the use of the land and of the water on it. This question is presented in different ways. The plaintiff asked instructions that notice was necessary before his rights could be terminated. These instructions were refused. The court instructed the jury, in substance, that if Edwards was a subtenant under J. P. Campbell, and that if J. P. Campbell was a lessee under the written leases offered in evidence, no notice to the plaintiff was necessary in order to terminate his right to the use and possession of the land in controversy. Campbell’s leases provided for the termination of his interest on April 30, 1913. To terminate his right to use the land for any period of time after April 30, 1913, it was not necessary to give him notice. If it was not necessary to give Campbell notice, it was not necessary to give the plaintiff notice in order to deprive him of his right, if any he had, to the use of the land. Section 4698 of the General Statutes of 1909 governs this question and is as follows:
“Where the time for the termination of a tenancy is specified in the contract, or where a tenant at will commits waste, or in the case of a tenant by sufferance, and in any case where the relation of landlord and tenant does not exist, no notice to quit shall be necessary.”
The instructions requested by the plaintiff ignored the defendants’ evidence tending to show that the plaintiff was the tenant of J. P. Campbell, and for that reason were properly refused. They withdrew from the jury the power to determine between the evidence of the plaintiff and that of the defendants as to the source of the plaintiff’s right to use the land. If the jury believed that the plaintiff’s contention concerning the leasing of the land was the correct one, the plaintiff’s rights were fully protected by the instructions given.
The plaintiff contends that the instructions of the court did not correctly state the position of the defendants. The part of the instructions toward which this contention is directed was as follows:
“The defendants claim that the lands were leased to J¡ P. Campbell under written leases which specify the date of expiration. Further, that plaintiff, Edwards, was a sub-tenant under Campbell, under a verbal lease.”
This was a correct statement of the position of the defendants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff obtained a judgment for $8000 as damages for injuries to his right hand while operating a circular saw in the car-repair shop of the defendant at Wichita. The saw, which was thirty inches in diameter, revolved upon an adjustable steel table, projecting a few inches above the tabletop, and a considerably larger part of the saw, some tw„enty-two inches of it, revolved beneath the table. The machine had a device for feeding boards and timbers into the saw, and the speed of this feeding device was regulated by a system of cone pulleys, one-half of which were attached to the machine below the table-top and about ten inches distant from the saw. To change the speed of the feeding device it was necessary to reach under the table and shift a belt from..one cone pulley to another by hand. There was no mechanical belt shifter or other contrivance for shifting the pulley belt, and the space under the table between the cone pulleys and the saw was open and unguarded. It was also in evidence, and in conformity to an elementary principle of mechanics, that it is inconvenient and difficult to shift the belt of a system of cone pulleys except when the machine is running.
As to the manner and extent of his injuries, the plaintiff testified:
“One of the boys brought in a board and .wanted it ripped; and I started the saw and after I got it started the belt underneath the machine wouldn’t pull the feed to feed it and it was dangerous to feed it without the feed running. We used to put on rosin on the belts to make it pull the feed and the master mechanic cut us out on the rosin, then we put on what was called belt dressing. It is in sticks about nine inches long and about one and a half through. You take that in your hand and hold it on the belt which is underneath the saw and runs from the main shaft where the saw was applied down to another shaft below that. It has three different feeds on it and on these feeds there is a high speed, middle speed and low speed. You have to put this belt on there by your hands; there is no belt shifter fixed to shift that. You have got to shift it when it is in operation with your hands. . . . The only way you have, you have got to go around and get behind the machine and get down in there to shift this belt. So I applied this dressing to it. In applying the dressing it jumped from this one, the middle one, down to the low speed-again, and throwed my hand over like that and cut these two fingers off and injured this one until it isn’t any good. At times I can’t use it. In my trade I can’t use a hammer or a saw, and the fleshy part of my hand hurts and it swells up here on the knuckle of the other one; my finger is helpless, so all I have is one finger and the thumb. There is a continual hurt all the time, even at nights. It is my right hand. . . . Up to the time of my injury I was able to use tools. I was drawing wages of $2.24 a day. I have never done any house work to amount to anything. My occupation is car man, car carpenter. I had steady employment with the Orient at that time. My health is good. My nervous system was in good condition.' I was stout physically and had no physical infirmities and was able to put in a full day’s work and earn a steady salary. These two fingers are off right at the fingers on my hand; they are the two small fingers on the right hand. The other finger is affected; that is, you see it is impossible to straighten it any more than just like that; and if I just bump it or shake it a little it is helpless. I can straighten it out like that. It is affected right in the joint. It was cut where the scar is — cut clear to the bone. It was stiff for about two months and a half. I am able to just ordinarily use it. I can close it about half. I can’t catch around anything with it. There is no strength in the second finger; it is weak, helpless. I have practically only one finger on that hand. I haven’t got the strength in the arm that I had before.
“I have worked part of the time since the accident. I am now working for the Missouri Pacific, drawing $1.60 a day, trucking freight. If I go to lift anything X just get my arm under it because I can’t lift anything with this because I ain’t got strength enough. I made an effort to see if I could get better wages, but I could n’t.”
Certain special questions were answered by the jury:
“3. State what was the direct and proximate cause of plaintiff’s injuries. Ans. By his hand coming in contact with an unguarded saw.
“6. Was it practicable to safeguard said saw in question at the point where plaintiff was injured? Ans. Yes.
“8. Could plaintiff have shifted the belt 'running on the two cone pulleys underneath the table while the machine was stopped? Ans. No.”
Defendant’s chief grounds of appeal and errors assigned will be noted in order. It was not error to overrule defendant’s demurrer to the evidence, nor was there any material variance between the pleading and the proof. (Civ. Code, § 134-) It is true that one of the grounds of plaintiff’s first cause of action was the defendant’s failure to furnish some suitable device for shifting the belt, and this allegation was not sustained by the evidence and was resolved for defendant by the jury’s special findings. But the first cause of action also alleged:
“That defendant was negligent in failing to have said circular saw and each and every part thereof properly and safely guarded so that the said plaintiff in working in and about the same and operating said saw could not come in contact with said saw and be injured thereby.”'
The evidence was sufficient to support that allegation and ' the jury so found. The other alleged negligence may be treated as superfluous and immaterial. It did not prejudice the defendant.
No purpose would be served by reviewing again the question whether a railroad company which employs many workmen in its car shops is amenable to the factory act of 1903. (Laws 1903, ch. 356, Gen. Stat. 1909, §§ 4676-4683.) That has already been fully determined. (Bubb, Adm’x., v. Railway Co., 89 Kan. 303, 131 Pac. 575; Slater v. Railway Co., 91 Kan. 226, 137 Pac. 943.) Of course, a railroad company, in its transportation business, is likewise governed by the common carriers’ liability act of 1911 (Laws 1911, ch. 239) and by a good many other acts as well. But the car-repair shop of a railroad is a factory, and in the operation of it the railroad company is as much bound by the factory act (§7) as it would be if that were its only corporate business and it were not engaged in the transportation business at all. Many modern railroads maintain hotels for the convenience of their patrons, but it would hardly be contended that in the conduct of their hotels they are not amenable to the laws pertaining to hotels and innkeepers for the safety of guests. The evidence and jury’s finding dispose of the contention that no violation of the factory act was proven.
“All . . . saws . . . used in a ¡manufacturing establishment shall, where practicable, be properly and safely guarded, for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment.” (Factory Act, Laws 1903, ch. 356, § 4, Gen. Stat. 1909, § 4679.) ■
Complaint is made that the trial court shut out evidence proffered by defendant that the state factory inspector had visited the defendant’s shops shortly before plaintiff’s accident and that he had inspected the machine and made no objection to it; and. that the other planing mills and saw mills using circular saws in Wichita did not guard the saw blades beneath the tables on which they were operated. The plaintiff’s right to recover in no way- depended upon what the factory inspector’s opinion was touching the defendant’s compliance with its duty to guard or screen all dangerous machinery, where practicable', for the safety of its workmen. We hardly think it important as affecting this lawsuit that other circular saws in other Wichita factories were unscreened and unguarded, although it is to be hoped that plaintiff’s accident— not to mention the damages assessed against this defendant — ' has prompted a reformation in that respect.
Certain instructions of the trial court are criticized. The court told the jury, in substance, that the factory act had changed the old rules of evidence as to the burden of proof, and that it was unnecessary for plaintiff to prove in the first instance that it was practical to place a safeguard about the saw, and that it was for the defendant to prove that such safeguard was impractical. These instructions are in harmony with what this court said in Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657 :
“Under the statute the plaintiff was not required to go further and offer proof in the first instance that it was practicable to guard the shafting. The legislature was evidently moved by the fact that very often an injured employee is not competent to demonstrate the practicability of providing safeguards, and may not be able to command the expert evidence necessary to do so. The accident may have wrecked the machine, or the factory owner may remove it .or deny hims access to it. When the employee is killed, or witnesses are killed, the way to recover is still further embarrassed. On the other hand, the factory owner always possesses the ability-to show that additions in the direction of safety would- destroy the efficiency of the appliance causing the injury, or would otherwise be impracticable.” (p. 635.)
Counsel for defendant urge us to qualify the doctrine, thus quoted. This we can not do. Moreover, in this case, elaborate photographs of the machine which-injured the plaintiff have been submitted to us, and from an inspection of them we could hardly have more hesitancy than did the jury in finding that it was altogether practicable to place a screen or other safeguard between the cone pulleys and the saw which injured the plaintiff.
Other errors assigned have been considered but none of them is of sufficient consequence for any comment nor to affect the result of this review.
We come now to the only question which presents any difficulty in this case. It is urged that the verdict and judgment for $8000 for the injuries to plaintiff’s hand are excessive. We are constrained to hold that this contention is meritorious. While it is true that no amount of monetary award will adequately compensate a person for a permanent physical injury to his body or any of its members, yet in this work-a-day world where such accidents -do happen, it is the only reparation possible; and the law, the courts, and the public have striven to find a fair and approximate monetary measure for human injuries, basing their estimates partly upon many prior similar awards, partly and perhaps unjustly upon the financial ability of the party against whom the award is assessed, partly upon the loss of time and earning power occasioned to the injured party. It wofild be impossible to recount all the factors which enter into the common and general notions of what is fair and just as a basis to measure the damages for personal injuries. There can be no absolute standard to measure such damages, and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury which fixes the award. The most courageous and practical attempts to measure damages for personal injuries are the workmen’s compensation acts. These acts originated in Germany and Great Britain, and in. modified adaptations to local conditions have been enacted in this country and in many of the states. Our own act (Laws 1911, ch. 218; Laws 1913, ch. 216), which provides a system and measure of monetary awards to be paid by employers for injuries sustained by their workmen, is based chiefly upon the theory that these sums will be paid without cavil, lawsuit or other expense to the injured workmen. Naturally the awards should be higher where their payment is uncertain, or where contested or delayed. If the plaintiff and his employer, the defendant railroad company, had elected to come under the Kansas workmen’s compensation act the award could not have been in excess of fifty per ce'nt of his preceding average weekly wages for eight years. This would not amount to more than $2802.24. Of course, the compensation act is in no way controlling in this case, but the illustration drawn from its provisions gives some light on defendant’s grievance. Counsel for plaintiff would justify the amount of the judgment by computing the life expectancy of the plaintiff, a healthy man, aged thirty-seven years when he was injured, at thirty years, which would be 9390 working days, at sixty-four cents per day, which is the difference between his present daily earnings and those before his injuries. This would amount to $6009.60. The same computation, taking a twenty-five years’ expectancy, would produce $5009.60. One difficulty with such bases, however, is the questionable assumption that plaintiff’s earning capacity would continue throughout his entire life expectancy the same as in the health and vigor of Bis prime. That could not be. Space and time will not permit us to extend this discussion. It is with much reluctance that we disturb the amount of the judgment, but after making every fair allowance for difference of opinion we are impelled to hold that the award is at least $3000 too much; and the case will be remanded to the district court with instructions to give the plaintiff the option of a modified judgment fixing his damages at $5000, with the alternative that a new trial be granted. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a decision sustaining a demurrer to a petition in which the plaintiff sued Douglas county for damages sustained by him by the falling of a bridge on a county road across Wakarusa creek. The plaintiff hired two men who owned a traction engine to haul his threshing machine from Lawrence to some place in the southwest part of Douglas county, and in crossing this bridge, without the statutory planking, the floor of the bridge gave way, throwing the engine and tender on which the plaintiff was riding into the creek. The plaintiff fell thirty-four feet and was severely injured. The petition alleged that the chairman of the county board knew of the defects in the bridge, these defects being the weakening through age and rust of the iron stirrups which supported the “I” beams upon which the wooden stringers and bridge floor rested, and that the board of county commissioners had caused many of these stirrups, which were old, rusted, pitted and weak, to be rewelded and placed in the bridge, and that the board of county commissioners knew also that the re-welding was impérfect and defective and that the stirrups were wholly unfit for use. Other pertinent allegations, all to the same effect, were pleaded.
It does not appear that the notice of the defective condition of the bridge was a serious question in this demurrer. Probably the notice was sufficiently pleaded. Nor does it appear that the sufficiency of the petition turned upon the weight of the engine. Undoubtedly the traction engine weighed over three tons, since it is alleged that it was a “fifteen-horsepower traction engine.” It appears that the demurrer was sustained chiefly on account of the failure to plank the bridge as required by section 45 of chapter 248 of the Laws of 1911, which reads:
“That all persons owning, controlling, operating or managing steam or gasoline threshing-machines, saw-mills, traction engines or transfer wagons or vehicles of any kind used for the transportation or distribution of oil or other merchandise or commodity and moving the same over the public highway are required to lay down planks not less than one foot wide, three inches in thickness, and of sufficient length, on the floor of all bridges and culverts situated on the public highway, while crossing the same, for the wheels of said engine of any kind to run on while crossing such bridge or culvert; provided, that this section shall not apply to any machine or engine not exceeding three tons in weight; provided further, that no person, firm or corporation seeking to recover damages against any city, township or county under the provisions of this section, shall secure a judgment therein, unless the jury shall find that such person, firm or corporation had before receiving the injury complained of, complied with the provisions of this section.”
The statute upon which the action is founded reads:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.” (Gen. Stat. 1909, § 658.)
These statutes were construed in Costello v. Riley County, 91 Kan. 532, 138 Pac. 639, in which it was said:
“The intent and effect of the act of 1911 was and is so to modify the law regarding the recovery of damages in this kind of an action that planking is a condition precedent to a recovery.” (p. 535.)
The statute imposes the duty of planking the bridge upon all persons owning, controlling, operating or managing a traction engine weighing over three tons before they attempt to move such engine over a bridge. This duty primarily rested upon the owners and operators of the engine who were hired by plaintiff to haul his thresher across the bridge. The plaintiff, however, was charged with notice of the statute. He sat on the tender and was riding across the bridge. He knew his employees in charge of the engine were violating the law. He knew they were imperilling their lives and limbs and taking him into danger, for the plain purpose of the statute was to safeguard against such mishaps as the very one that happened. He had no right to ride across the bridge without the statutory planking under conditions which made the planking imperative, knowing also that if the bridge gave way the want of planking would bar a recovery for damages. He voluntarily and without heed or need rode into this place of danger. Knowing his employees were violating the law, and running the risk of accident, he voluntarily took chances with them, and his situation as to a claim for damages is no better than theirs. He was negligent in his duty to himself, so wanting in care and diligence in his conduct, that the law will not accord him the relief which he seeks.
In Falls Township v. Stewart, 3 Kan. App. 403, 42 Pac. 926, it was said:
“A person, although entitled to the use of a bridge, culvert, or public highway, and entitled to do so although he has knowledge of its defective, dangerous or unsafe condition, can not do so in the face of certain, unavoidable danger, and if he is injured thereby in his attempt to use the same when the danger is certain and unavoidable, he can not recover from the county. or .township where the bridge is located.” (Syl. ¶ 3.)
While the legal requirement that a bridge be planked before heavy traction engines are driven across it is perhaps new, and precedents concerning the consequences of breach of that requirement are rare, yet the principle is old and familiar to lawyers. Municipal and quasi-municipal corporations are not required to construct and maintain bridges capable of withstanding any and all sorts of extraordinary loads, and the statute of 1911 in effect declares that a traction engine weighing over three tons is an extraordinary load, and forbids its passage over a bridge without the extra statutory planking. To cross a bridge with such’ an engine without this planking is but going voluntarily into a place of danger, the danger which the wise provision of the statute seeks to avert; and the cases are numerous which hold that a person who needlessly crosses a bridge known to be dangerous is guilty of such contributory negligence as will bar a recovery. (Jones v. Union County, 63 Ore. 566, 127 Pac. 781, 42 L. R. A., n. s., 1035, and Note; 8 Am. Dig. “Bridges,” §§ 91, 94; 3 Dec. Dig. “Bridges,” § 44; 5 Cyc. 1103, 1105; 4 R. C. L. 238.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment under the workmen’s compensation act.
The plaintiff was employed by the defendant as a common laborer and was injured about the 22d of July, 1913, by having the first and second fingers of his left hand mashed, cutting the flesh and injuring the tendons. After the plaintiff received his injury he was sent by the defendant to its physician, who treated the plaintiff’s hand for some days. At the end of thirteen or fourteen days he returned to work for the defendant, and did light work which he could perform with one hand until about the first of January, 1914, when he went back to his original work. This he continued until in March, 1914, when he voluntarily quit the defendant’s employ. During the entire period of his employment, after being injured, he received the same wages that he was receiving when he was hurt, $12 per week. A demurrer to the plaintiff’s evidence was overruled, a verdict was rendered in his favor for $812 and judgment was entered accordingly.
The defendant specifies a number of errors. These are based on and can be reduced to four propositions:
1. The defendant argues that the plaintiff was not incapacitated from performing labor beyond the two weeks’ period by reason of the injury received by him. This contention is against the evidence of the plaintiff, who testified positively that he could not use the first and second fingers of his hand effectively, and that this hindered him in the performance of his work. The jury by its verdict found against the defendant and found that the plaintiff was incapacitated. These findings were supported by evidence and are conclusive in this court.
2. The defendant argues that within two weeks after the injury the plaintiff was employed by the defendant at the same Wages at which he had been employed previous to receiving the injury, and that he voluntarily quit the defendant’s employ. If this employment relieved the defendant of liability, then any employer can escape liability for compensation by retaining the injured employee and paying him wages, although he may not be able to do as good work after the injury as he did before. An injured employee may not wish to continue to work for the one in whose employ he was injured, and because of his injury he can not obtain as good wages in another place. The injured employee has a right to compensation for his injury. It does not matter that his employer continues to accept his services and pay him regular wages, unless that employment continues for the entire period for which compensation might be allowed. The act fixed the liability when the employee was injured. That liability can be discharged Only in the manner directed by the statute. The conclusion heré' reached is supported by Cory Brothers & Co., Limited, v. Hughes, (1911) 2 K. B. 738.
3. The defendant contends that the plaintiff did not make any claim for compensation in accordance with the statute’. The plaintiff’s evidence on this question, as set out in the defendant’s abstract, is substantially as follows:
“I asked the manager what he was going to do about my hand'; I' asked him if I was going to get recompensed for my hand, and he said he would see Dalton, the superintendent of Peet Brothers’ plant.
“Q. When was that? A. Just a short time before I quit. I could nk. remember just the time of the month.
“I spoke with him once or twice with regard to it previous to that time and that is the way he answered me. He said he would see Dalton, and I had a talk with Dalton just after I went back to work. Dalton says, ‘I1 am here to take care of the men,’ something like that, or ‘always take care of the men.’ . . . Some weeks before I quit I had a conversation with Mr. Dalton of Peet Brothers with regard to their paying me- for my injury. I was then working at the plant, but I don’t know how long it was before I quit. When I said that I had talked with the manager of' Peet Brothers I meant Jim Banner. It was along in January or December, some place along there, that I talked with him about my hand, and I asked him what he was going to do; was he going to give me anything for my hand. I meant money for damages. ... I spoke to Dalton about it — it might have been two months after I got my hand hurt that I spoke to Dalton, or over, and I just asked him what he was going to do about it; was he going to give me anything; give me recompense for my hand — and that was when I was working' there regularly and drawing regular wages.”
The claim for compensation need not be in writing. The statute, in part, reads:
“Proceedings for the recovery of compensation under this act shall not he maintainable . . . unless a claim for compensation has been made-within three months after the accident . . . and the failure to make a claim within the period above specified shall be a bar.” (Laws 1913, ch-.. 216, § 6.)
The evidence of the plaintiff tends to prove that he talked with the defendant’s superintendent within the three months' after the injury was'received, about compensation for that injury, and asked the superintendent if he was going to give the, plaintiff any recompense for his hand. This certainly fills, the requirement of the statute so far as a claim for compensation is concerned. To require a more specific claim for compensation compels the injured employee to employ a lawyer so as to get his claim for compensation technically within the language of the statute. This would be substantially, “I claim compensation for my injury.” What did this conversation between the plaintiff and the defendant’s superintendent amount to? Stripped of all verbiage, it is a request for compensation for the 'injury the plaintiff had received. The statutory requirements were substantially complied with. The defendant can not escape because the claim was not made more specific.
4. The plaintiff recovered judgment for $312. The defendant paid the plaintiff in wages after his injury the sum of $412. Section 12 of chapter 218 of the Laws of 1911 provides, in part, that—
“In fixing the amount of the payment, allowance shall be made for any payment or benefit which the workman may receive from the employer during his period of incapacity.”
The defendant’s contention is that it should have been given an allowance of $412, and that when it was credited with that amount no judgment could be rendered against it on the verdict for $312.
This matter was not in express terms submitted to the jury. The defendant did not ask for an instruction covering this question. None was given by the court. The plaintiff asked for compensation in the sum of $2344 — $6 per week for a period of seven years and four months, commencing on the eleventh day of April, 1914, shortly before he quit working for the defendant. It does not appear that allowance was not made for the $412 paid by the defendant. The compensation fixed by the jury was small when compared with the amount asked. If the defendant desired this question explicitly submitted to the jury it should have requested an instruction covering the proposition. This court has often said that if a party does not ask for such instructions as he desires, his claim of error .because they are not given is unavailing. (Dighera v. Wheat, 85 Kan. 458, 116 Pac. 616; Rambo v. Electric Co., 90 Kan. 390, 393, 133 Pac. 553; Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 648, and cases there cited.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The father of Louise F. Carter, now seven years of age, died intestate in November, 1914, leaving considerable property. His widow, the child’s mother, was appointed her guardian. In August, 1915, she resigned as guardian, and at her request P. H. Johnson was appointed in her place. He assumed control of Louise and placed her in the immediate care of Henry Ficken and his wife. The mother (now Mary A. Brown, having remarried) brings this proceeding against Johnson and the Fickens, asking that the custody of the child be restored to her. The guardian at first filed a disclaimer, but now resists the application on the ground that by virtue of his appointment in that capacity he has the legal right to control his ward, and that the character of the petitioner renders her an improper person to be charged with that responsibility.
It has been said on the one hand that in the absence of a statute to the contrary a guardian of the person has a right to the custody of his ward even as against parents (21 Cyc. 62), and on the other that a statute giving a preference to parents in that regard is merely declaratory of the common law (The People v. Hoxie, 175 Ill. App. 563). Some of the cases cited as bearing on the question are affected by local statutes, and some by the archaic notion that the mother is entitled to little consideration in the matter. It is not necessary to attempt to state any general rule by which to solve controversies between parent and guardian. Each must necessarily be determined according to its peculiar facts. In the present instance there is no difficulty in saying that the claim of the petitioner to the control of her child is not affected in the slightest degree by the appointment of the guardian. The original entry of the order of the probate court making such appointment, in August, »1915, did not in terms refer to guardianship of the person, but such a reference was inserted after this proceeding was begun, with the knowledge of the present probate judge, by the occupant of the office at the time the order was made, who testi fied that the additional recital was omitted from the original entry by oversight. This was a somewhat offhand way of undertaking to correct a court record, but if the alteration is given full force it does not militate against the conclusion already stated. The mother, as the surviving parent, was the natural guardian of the person of the child. (Gen. Stat. 1909, § 3966.) The statute makes no express provision for any other guardian of the person during her life, and there could be no occasion for such an appointment unless she were found to be unfit for the trust. In the proceedings in the probate court there was no allegation, proof or finding of her unfitness. The only justification suggested for constituting some one else the guardian of the child’s person is based on the mother’s resignation as guardian, coupled with her request for the appointment of a successor. The order appointing her purported to constitute her the guardian of the person as well as of the property of her child, but to this extent was without any field of operation since the statute invested her with that trust. Her resignation, which was occasioned by her lack of ability to look after the child’s property interests, followed the form used in her appointment, and spoke of her guardianship as relating to the person and property of the ward. Her request for the appointment of a successor employed the same formula. Her intention was clearly to surrender the authority which she had derived from the order of the court, and have it transferred to some more competent business manager. The language she adopted (doubtless that of the printed forms in use for such purposes) can not be given the effect of an admission on her part that she was not a fit person to have the custody of her child. That issue was not involved or determined in the probate court proceedings, and without such determination there could be no valid appointment of a guardian whose right to the control of the person of the child would be superior to that of the mother.
The prayer of the petitioner should therefore be granted, unless this court is convinced of her unfitness. No useful purpose would be served by setting out the evidence in detail, or even in substance. She is shown to have acted at times with bad judgment and indiscretion. A part of the testimony, which if given full credence would justify a stronger char acterization of her conduct, was not directly contradicted, as she did not take the witness stand, but need not on that account be accepted as entirely accurate, its nature and the surrounding circumstances suggesting the probability of mistake or exaggeration. She undeniably acquired an unfortunate reputation in the community in which she was living, which may have caused harsher inferences to be drawn from her actions than would otherwise have been the case. That some feeling was engendered which colored local public opinion in relation to the case is evident from this circumstance: The probate judge testified that shortly before the petitioner applied to this court the report was circulated that her attorney was engaged in a plot to kidnap the child — that twenty people talked to him about it. No evidence is necessary to convince the court that his informants, however sincere in their belief, were mistaken. The petitioner’s affection for her child is abundantly established. Confidence in her fitness to care for her has been expressed by a number of witnesses who have been in a position to judge of her character by personal observation, including several who became acquainted with her after a recent change in her residence. Nothing to her discredit has been shown with respect to her conduct since that time. A parent will not be deprived of the custody of a child on the ground of unfitness unless that objection is sustained by clear and satisfactory proof. (Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987.) The evidence here is not regarded as meeting that requirement, and the prayer of the petition will therefore be granted, conditioned, however, upon the giving of a bond by the petitioner in the sum of $1000 for the retention of the child within the state, and obedience to any further order that may be made by the court, jurisdiction of the case being retained. The respondents, haying acted in evident good faith in the discharge of a responsibility placed upon them, will be allowed to recover their costs. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note given to the defendant and by him indorsed and delivered, to the plaintiff under an indorsement guaranteeing payment. The plaintiff recovered and the defendant appeals.
The note was given to the defendant by R. E. Rader, and was payable on September 1, 1913. Before maturity the defendant transferred the note to the plaintiff under the following guaranty indorsed on the back:
“For value received I hereby guarantee the payment of the within note at maturity or at any time thereafter, with interest at the rate of 8 per cent per annum until paid, waiving demand, notice of non-payment and protest.”
On August 26 the bank extended the time of payment, without consideration, to October 1. On September 2 the defendant paid $25 on the note, which sum he had obtained from Rader for the purpose. There was evidence that at that time the defendant was informed of the extension to October 1. On October 1 the time of payment was extended to December 1, Rader paying interest in advance for the extension. The president of the bank testified to the negotiations for the purchase of the note, consummated by execution of the guaranty and delivery of the note. He further testified that he had a number ■ of conversations with the defendant in which he told the defendant about the extensions. The court instructed the jury that if the defendant had knowledge of the extension he was liable. The instruction was erroneous. No right to extend the time of payment was reserved to the bank in the guaranty, and in order to be bound by the second extension it was necessary that the defendant assent to it. (Negotiable Instruments Act, § 127, Gen. Stat. 1909, § 5373.) Knowledge alone does not constitute assent, and it is not necessary that a surety or guarantor having knowledge of an extension should expressly object to it to entitle him to his discharge. (1 Brandt, Suretyship and Guaranty, 3d ed., § 379.)
The court gave the jury an instruction relating to ratification of the extension by the defendant by treating the guaranty as a subsisting obligation. This instruction was also erroneous. It was broad enough to permit the jury to find against the defendant because of the payment made on the note after the first extension. That extension did not discharge the defendant, and if it had been binding on the bank and had been assented to by the defendant, those facts would not have authorized the bank to grant a second extension. (1 Brandt, Surety-ship and Guaranty, 3d ed., § 379.) Furthermore, the defendant was a party secondarily liable. (Bank v. Bellamy, 19 N. Dak. 509, 125 N. W. 888, 31 L. R. A., n. s., 149.) He was discharged by any agreement binding on the bank to extend the time of payment, unless the agreement were made with the defendant’s assent or unless recourse against him were expressly reserved. (Negotiable Instruments Act, § 127, Gen. Stat. 1909, § 5373.) Assent to an agreement extending time of payment means concurrence in the agreement when made. An extension without such assent ipso facto discharges the party secondarily liable, and he can again become liable only by virtue of a new contract or by virtue of conduct creating estoppel.
The judgment of the district court is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from a conviction for arson. The defendant was prosecuted under two counts. Under the first count the charge was that the defendant “did unlawfully, willfully and feloniously set fire to and bum in the .night time the one-story frame, three-room dwelling house commonly known and described as 403 Lawrence avenue, Leavenworth, Leavenworth County, Kansas.”
In the second count the charge was that the defendant “did unlawfully, willfully and feloniously set fire to and burn the one-story frame, three-room dwelling house, described as number 403 Lawrence avenue, Leavenworth, Leavenworth county, Kansas, together with the goods, wares and other chattels which were situated in said house at said time and which were insured against loss or damage by fire with intent to defraud or prejudice the insurer.” Each charge alleged that the offense was committed on the 25th day of March, 1915. The evidence tended to show that there were two fires in the house; one on the 24th day of March and the other on the 26th day of March, 1915. The court instructed the jury that it could convict the defendant on either the first or the second count, or both. The jury returned a verdict as follows: ■
“We, the jury empanelled and sworn in the above entitled ease, do upon our oaths find the defendant guilty as charged in the second count in the information. And we further find the defendant not guilty as charged in the first count in the information.”
The defendant urges that but one offense was charged in the information, and that for that reason when the jury returned a verdict of not guilty on the first count no judgment of conviction could be rendered on the second count.
The offense charged in the first count was different in character from that charged in the second count. It is true that the information alleges that the two offenses were committed on the same day, but it is not necessary to allege the exact day on which an offense was committed, and the evidence may show that the offense charged was committed at any time within two years preceding the filing of the information.
If two offenses are charged in an information, each involving a separate and distinct crime, they may be charged as having been committed on the same day; and in fact they might have been committed on the same day. In the present case, the evidence tended to show that two offenses were committed, but on different days. For the two offenses, good pleading required that the facts constituting each of the crimes be set out in separate counts. If these two offenses had been charged in one count, that count would have been bad for duplicity. Two offenses were charged in separate counts in the information. Evidence to establish each' of these offenses was properly admitted, and the instruction of the court that the jury could convict on either, or both, of these counts was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendants for the value of four carloads of sewer pipe. The defendants answered alleging that they had been awarded a contract to construct a storm sewer on the Fort Leavenworth military reservation; that the plaintiff’s agent was present at-the letting of the contract and knew the government specifications, and that this agent solicited defendants’ order and offered to ship sewer pipe which would comply therewith and pass government in spection; that defendants, relying upon this assurance, sent an order for pipe, directing the shipment of one carload, but that the four carloads were forwarded in disregard of that order; that the sewer pipe so shipped was of inferior quality and did not comply with the government' requirements, and that the defendants, not knowing this, hauled the pipe and laid it along side the sewer ditch, where it was inspected and rejected and that the government officials ordered it removed from the federal premises; that the defendants notified the plaintiff of the rejection of the pipe, and that the plaintiff directed the defendants to hold the pipe until further order of the plaintiff, and that the plaintiff would make arrangements to remove it from the reservation. Defendants also alleged that they were compelled to purchase sewer pipe elsewhere, and not hearing further from plaintiff they were compelled by the government officials to remove the pipe at great expense, and that they stored it in Leavenworth city; that the pipe furnished by plaintiff was defective, “and very little of it was of any value for any purpose,” and that “they have been unable to use same, and that the same thereof and the whole thereof is of no value whatsoever.” Defendants further pleaded that by the failure of plaintiff to furnish sewer pipe in compliance with the specifications and order, as plaintiff “had agreed to do,” the defendants were damaged in specified particulars, aggregating $562.30, for which sum defendants asked judgment.
Plaintiff’s reply denied that its agent submitted prices for sewer pipe; denied the making of guaranties; denied that he saw the government specifications or knew their contents; denied the receipt of an order for one carload of pipe with directions to hold the remainder until it would be determined if the government would approve the pipe, but averred that on July 22, 1911, the defendants sent a written order to ship four cars of sewer pipe as quickly as possible, and on July 25 the defendants sent another written order asking that the eighteen-inch pipe be shipped first and the balance to follow down the line of sizes without any condition or restriction as to the time of loading or shipping. Plaintiff also denied any notification that all the pipe was rejected by the government, and alleged that most of it had been used and accepted by the government and that the defendants stated that they could and would use the balance elsewhere and that they did use a large .amount of the sewer pipe elsewhere. Plaintiff also denied receipt of notification that the government had ordered defendants to remove all of the sewer pipe, and alleged that such pipe as was hauled away was done at defendants’ own instance, and denied that it had given directions to hold the sewer pipe until further order or that plaintiff agreed to have the pipe removed from the reservation.
At the trial defendants stated that they were not seeking a rescission of the contract, but grounded their action upon damages sustained by breach of warranty and upon special damages because the goods sold to them were for a specific and guaranteed purpose.
The jury gave a general verdict for defendants and assessed their damages at $358.50. Special, questions were answered thus:
“If the jury find the defendants entitled to recover any special damages herein, they will answer the following questions and each of them:
“(1) If you find there was a warranty of the sewer pipe in question, state when the warranty was made and whether verbally or in writing? Answer. Verbally and writing.
“(2) Was the condemned sewer pipe in question of any value? Answer. No.
“(3) Did the defendants take any precaution to lessen the damages which they intended to claim against the plaintiff? Answer. Yes.
“(4) Did the defendants make any claim of damages at or about the time of the alleged breach of warranty? Answer. No.
“(5) Did the defendants use any part of the sewer pipe in question in their government contract, and if so what -sizes and how much of each? Answer. Yes, 45 ft. 18", 600 ft. 8", 200 ft. 10".
“(6) Did the defendants claim the right to hold the sewer pipe or any part thereof until payment of their claim for damages? Answer. Yes.
“(7) What, if anything, do you allow the defendants for demurrage? Answer. $8.00.
“ (8) What, if anything, do you allow the defendants for labor in unloading cars? Answer. $9.00.
“(9) What amount, if any, do you allow defendants for hauling pipe to sewer ditch? Answer. $16.00.
“(10) • What amount, if any, do you allow defendants for hauling pipe off the sewer site? Answer. $24.00.
“(11) What amount, if any, do you allow defendants for foreman in keeping sewer ditch open? Answer. $50.00.
“(12) Whát amount, if any, do you allow defendants for other help than the foreman in keeping sewer ditch open? Answer. $120.00.
“(13) What amount, if any, do you allow defendants for penalty paid to the United States Government? Answer. $73.00.
“(14) What amount, if any, do you allow defendants for hauling sewer pipe off the military reservation? Answer. $86.00.
“(15) Do you find the market price at Ft. Leavenworth, Kansas, of the rejected sewer pipe in question to be. as invoiced to the defendants? Answer. No.
“(16) If you answer question No. 15 in the negative, then state what was the market price of the pipe? Answer. No evidence to show.”
Plaintiff assigns errors which will be considered in order.
To support the finding of warranty, one of the defendants testified that at the time of the letting of the contract the plaintiff’s agent solicited defendants for an order and guaranteed that its sewer pipe would satisfy the government’s demands, and the subsequent correspondence between the parties amounted to a written ratification of the oral warranty. This is far from correct. The same defendant testified that he thought the plaintiff’s agent represented “the Athens people,” a different firm, and he wrote them, giving an order which was not filled. Then he tried to get the order filled by a “Mr. Dickey,” who represented a Kansas City firm. It was only after repeated failures to procure pipe from others, and after some weeks had elapsed, that he opened negotiations with plaintiff for sewer pipe. In such situation, if plaintiff’s agent did offer to guarantee the quality of its sewer pipe at the time of the letting, such offer was not accepted and there was no oral warranty. Neither does the correspondence justify the finding of a written warranty, or the ratification of a prior' oral warranty. The federal contract was let in May, 1911. On June 3 plaintiff wrote to defendants:
“We presume that you will be awarded this work and as stated to you, we are in a position to quote you some very attractive prices on pipe.”
To this defendants made no answer, but on July 6 plaintiff wrote to defendants, saying that their letter to the Athens Fire Brick Company had been referred to plaintiff. Plaintiff •in this letter quoted prices on sewer pipe, saying:
“These prices in minimum carloads 26,000 pounds f. o. b. our works, freight only allowed to Ft. Leavenworth, and are also subject to inspection of engineer. Breakage in transit, if any, at purchaser’s risk.
“We have large stocks of straight pipe and fittings on these sizes as shown in catalogue enclosed, and can start shipping car immediately, and coihplete quantity required as fast as we can secure empty equipment.”
On July 12 defendants answered:
“We received your favor of July 6th, Saturday with quotations on sewer pipe on our contract at Ft. Leavenworth, Kansas, which came too late to do us any good. We have looked all through our letter files and fail to find any previous letter with prices from you. We waited two weeks to hear from you and finally wrote to Texas for prices, we took it for granted that you had framed up a deal with W. S. Dickey. You certainly would have had the-order if it had come a week sooner. The captain wanted us to start the work the 1st of July and that hurried us or we would have waited to hear from Athens, Texas, first. Can say if we have any more sewer pipe to buy we will get your prices before buying.”
On July 15 defendants wrote:
“Could you commence to ship immediately on the sizes including ■ the 18" to the 6" and the 24" and 21" that I may be short' of — you have the number of feet in the specifications I sent.
“I have only placed the order for the 24 and 21" do not see any reason why the order cannot be divided especially when we ean save a little money.
“Hoping to hear from you by return mail, I remain.”
On July 18 plaintiff wrote:
“Have your favor of the fifteenth inst. in reference to the requirements of pipe from Ft. Leavenworth. If you place order with us immediately for your present requirements, we can start shipments at once and complete as fast as pipe is required.
“The prices quoted in our letter of July 6th are subject to change without notice and as there has been a tendency in the market to advance, 'we hope you can give us this order by return mail so that we can start shipments at once.”
On July 20 defendants wrote:
“Your favor of July the 18th received. You can commence shipment on the 18", 15" and 12" pipe and I want the fitting's in the first car but have not the plans here so will write you to-morrow, telling you the fittings I want in the first car.”
On July 21 defendants wrote:
“In the first ca'r of pipe would like to have:
“3 lengths of 24" pipe
3 lengths of 21" on 8" Y
1 length of 18" on 8" Y
7 lengths of 15" on 8" Y
4 lengths of 12" on 8" Y
3 lengths of 10" on 8" Y
2 lengths of 15 }ie bends.”
On July 22 plaintiff replied:
“We have entered your order for your requirements of Standard No. i pipe for Ft. Leavenworth as per attached copy which we wish you would ¿heck over and if there are any changes to be made advise us immediately So no mistake will be made in order.
“We have taken these quantities from correspondence but possibly you may desire to make some change. We will start shipment at once and complete as fast as we can secure empty equipment.”
This correspondence shows that whatever plaintiff’s agent told, defendants at the letting of the contract in May did not become the basis of a contract. It shows that only after defendants’ failure to get their orders filled elsewhere did they enter into a contract with plaintiff. And by no fair interpretation can these letters be read to import a warranty that the sewer pipe would pass government inspection. On the contrary, one letter expressly says that the pipe is priced and sold f. o. b., breakage at consignees' risk, freight to be advanced by consignees, and subject to inspection by the government’s engineer. .If it did not pass such inspection, there would be no sale. It must be held therefore that the question of warranties, either oral or written, is not in this transaction.
Part of the sewer pipe did pass government inspection and was used in the work. It is clear that the defendants are liable for the purchase price of the pipe so used. As to the remainder, when the defendants notified the plaintiff that the government had inspected and condemned much of the pipe, plaintiff on August 26 replied:
“We shall be unable to furnish anything better, so wish you would kindly just hold it there subject to our order. We will have arrangements made to remove it at once, and dispose of it at Leavenworth or elsewhere to the best possible advantage, unless you have some suggestion to make for handling it in a different way.”
Defendants answered:
“Your favor of August 26th réceived. Would say in reply that we expect to use all the shipment of pipe below the 15" and perhaps most of them — have made arrangement to buy the 18" pipe and will resume work as soon as they come — think will be able to pile your pipe off to one side until we are through the sewer and then see how many are left and can tell better what to do with them. Am working on that 8" sewer in town while waiting had no trouble with the pipe in the city it made a 2%-mile haul for me though.”
On August 4 defendants wrote;
“ ... in regard to the rejected pipe and fittings — we secured a small contract from the city last night for a sewer will hold that order back until we find out what lacking at the Fort. The cars came to-day they look to be in fine shape. Will commence to unload to-morrow — will let you know how they stack up.”
How much of the sewer pipe rejected by the government was used by defendants in the city sewer is not clear. Whatever the amount was should be paid for by defendants, although it would be fair and just to make defendants a reasonable deduction for hauling that pipe from the place where it was rejected to the place where it was used — “a 2i/2-mile haul.”
It seems that defendants sold $17 worth of pipe. If so, that too must be accounted for. As to the pipe still on hand, it belongs to defendants, since their cross-action was for damages and not for rescission. They must pay what it is reasonably worth, but the evidence seems to show that it had no value, and this is the finding of the jury, although that finding is not controlling on that portion of the rejected pipe which was used in the city sewer, nor on the $17 worth which was sold to a third party.
Touching the specific items of damage allowed by the j ury, it seems clear from the correspondence that plaintiff was within its privilege, and indeed within its instructions from defendants, in forwarding the entire shipment promptly, and it ought not to be charged with the demurrage. Neither should it be charged with the expense of hauling the sewer pipe to the sewer site nor away from it, except the deduction for hauling the pipe used in the city sewer, as we have suggested above. The charges for employing a foreman and others to keep the sewer ditch open can not be set up against the plaintiff. Neither can the penalty paid to the government. The plaintiff was not responsible for the delay, and the defendants’ own testimony showed that it was occasioned, in part at least, while they were still dealing with other firms.
“Q. Why didn’t you wait until they tested it before you put the pipe in the ditch? A. Well, we were pushing the work, I wanted to push it.
“Q. You thought it was all right? A. Yes.
“Q. You took your own judgment? A. Yes; we thought it was right.
“Q. Now, then you want to charge the Evens & Howard people for your mistake? A. (No answer.)
“Q. As a matter of fact you did order 18" from Dickey and he could not fill the order? A. (No response.)
“Q. The Court: Did you mean before or after he gave the order to the plaintiff here?
“Mr. Dempsey: I want to find out whether he did not before he gave the order to Evens & Howard.
“(Addressing witness): I will ask you, Mr. Tarry, if prior to the time of your placing that order with Evens & Howard you did not order 18" pipe from The Dickey Clay Manufacturing Company and they .were not able to fill the entire order and you had to order some 18" of the Evens & Howard people? A. May I explain that?
“Q. Answer yes or no. A. No; I furnished Mr. Taft them specifications, you understand—
“Q. Who is Mr. Taft? A. Mr. Taft represents the Dickey Clay Pipe Company and he was to ship the pipe ás ordered.
“Q. Including 18"? A. No; whatever the order was; for the 21 and 24" and if we needed 18" we were to order — we will order 18" as we need it.
“Q. You had at that time made no arrangements with- the Evens & Howard people? A. No.
“Q. Now then you went ahead and dug the ditch right after placing the order with Mr. Taft? A. Yes.
“Q. And continued on? A. Eight along.
“Q. And then later you ordered 18" pipe or what you could not get from Evens & Howard people? A. Yes, sir.”
This evidence makes it clear that these items of damage can not be sustained.
Some other errors are assigned, but as a new trial must be ordered and they are not likely to arise again, they need not be discussed.
The judgment is reversed and the cause remanded for a new trial. . | [
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The opinion of the court was delivered by
Marshall, J.:
The. plaintiffs seek to enjoin the defendants from building a bridge across the Kansas river at Lawrence. • Judgment was rendered in favor of the defendants and- the plaintiffs appeal.
After properly submitting the question to the voters of Douglas county, the board of county commissioners of that, county determined to build a cement bridge across the Kansas river at Lawrence, under chapter 71 of the Laws of 1913. The board made provision for the bridge to carry telephone and telegraph wires, gas and water pipes, and for the construction, on the bridge, of a railroad track to be used in the transportation of street railway, interurban, and railroad cars. The plaintiffs contend that the commissioners had no authority to build such railroad tracks.
A bridge is a part of a public highway. It may connect parts of a street or of a public road, or a street and a public road. A board of county commissioners has the same authority in constructing a bridge as it has. in building a public road. Gas mains may be laid in public roads. (La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448.) Telephone lines may be constructed and maintained on public roads. (McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870, 66 L. R. A. 171.) Public roads must now be constructed to carry loads and vehicles that were unthought of one hundred years ago. They must now be so constructed as to accommodate present means of - transportation. This requires stronger bridges and more solid masonry. Heavy engines, cars and automobiles are constantly on all public highways. Automobiles and traction engines have become everyday necessities. Electric railroads are being built in streets and on and along public roads. Street railroads are necessary for the existence of modern cities. Interurban railroads are becoming a public necessity. Under these circumstances it was proper for the board of county commissioners of Douglas county to take into consideration the needs of the people of that county and of the city of Lawrence, and to build a bridge that will accommodate all kinds of travel and transportation. The board had authority to build a railroad track on the bridge.
The plaintiffs insist that the bridge will cost more than $200,000. The commissioners contracted with The Missouri Valley Bridge & Iron Company to build the bridge complete with the railroad tracks for $199,910. • Another contract was made by which the commissioners agreed to pay engineers $10,000 for work in connection with designing and constructing the bridge. There were other expenses amounting to several hundred dollars. These items make the entire cost of the bridge about $211,000.
One span of the bridge will cross the Santa Fe railway tracks. That railroad has agreed to pay $14,359.19 as its pro rata share of the expense of constructing the bridge. Deducting this sum from the entire cost of the bridge leaves the amount to be paid by Douglas county less than $200,000. In Anderson v. Cloud County, 83 Kan. 419, 111 Pac. 464, this court said:
“Section 655 of the General Statutes of 1909, authorizing county commissioners to make an appropriation of $4000 to build or repair a bridge and requiring an affirmative vote of the electors before a greater sum may be appropriated, does not preclude the building of a bridge which costs more than $4000, without a vote of the electors, where another municipality and other interested parties contribute so much of the cost of the bridge as exceeds $4000, and where no more than $4000 of the funds of the county is appropriated for that purpose.” (Syl. ¶1.)
This principle in Anderson v. Cloud County is controlling in the present case.
Section 2 of chapter 71 of the Laws of 1913 reads:
“The money so collected by the levy of the tax as provided in section one of this act, shall be known as the special bridge fund, and shall never exceed the sum of two hundred thousand dollars, for the construction of any one bridge and its necessary approaches.”
This statute does not' restrict the cost of the bridge, but . limits the amount that may be raised by taxation for its construction. The plans and specifications contain this provision, as found in the opinion of the trial court:
“The maximum amount which the county is authorized by the law to expend from the county treasury for the construction of this bridge, is $200,000.00, to be raised by a tax levy. More than one-half of this amount has been collected and it is expected that the Santa Fe Railway Company will contribute an extra sum, and if such contribution is made, a sum available will be in excess of it . . . but in no event will the amount expended from the county treasury exceed the sum of $200,000.00 and bidders must take this into account in preparing their tender.”
Under this provision of the contract the county can not be compelled to pay more than $200,000 for the construction of the bridge. The entire cost to Douglas county will not amount to $200,000.
The j udgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The Wichita Water Company sued the city of Wichita on three counts, (a.) for labor and materials used in protecting a bridge and one of its approaches which were threatened by a flood in January, 1910; (5) for water used in wagons for flushing and sprinkling the streets; and (c) for expenses incurred in changing water mains and hydrants to conform to the grades and elevations of the new union depot in Wichita.
A demurrer to the evidence was sustained as to the first and third causes of action. The water company was given judgment for $75 and interest for the water used by the city for sprinkling the streets, but received nothing for water used in flushing the streets. From this result it appeals.
1. Was the demurrer to the evidence properly sustained as to the first count. The evidence showed that on January 14,1910, a flood on the Little Arkansas river threatened the destruction of the Central avenue bridge in Wichita and its eastern approach and threatened to inundate the neighboring part of the city. One of the members of the city government, the commissioner of streets and public improvements, requested the plaintiff’s assistant superintendent to use its men and teams and to secure additional help and material to protect the bridge and this commissioner agreed that the city would pay these expenses. The city did not pay. On February 4, 1913, the mayor wrote a letter to the plaintiff saying that he thought that there was some merit in plaintiff’s claim for protecting the river bank and bridge, admitted that some money was due thereon, but that he could not ascertain the amount and suggested that the plaintiff bring an action in court to determine the matter. This action was filed on March 15, 1913. This was about three years and two months after the services were rendered and after the materials were furnished. The claim was therefore barred by the statute of limitations. (Civ. Code, § 17, subdiv. 2.) Moreover, the promise of one commissioner could not bind -the city. His promise on behalf of the city was unenforceable, unless this commissioner, in compliance with his promise, had taken up the matter with the city government and had formally secured its ratification. (28 Cyc. 646.) This holds true, also, as to the mayor’s acknowledgment that “some money” was due on “the river bank claim.” The mayor could not give validity to a claim by acknowledging its justice. (28 Cyc. 647.) For that matter, if every member of the city government, acting independently and not in their organized capacity as the city commission, had said or done the same, no contract, no legal obligation would have followed. (Root v. Topeka, 63 Kan. 129, 181, 65 Pac. 233; 28 Cyc. 643, 644.) The statutes prescribe the methods by which contracts with a city are to be made. (Gen. Stat. 1909, §§ 9037, subdiv. 4, 1234, 1237, 1294, 1298. See generally Gen. Stat. 1909, §§ 1213-1218.)
While there is no escape from the foregoing proposition, we are not unmindful that in time of flood or other disaster threatening the welfare of a city, it may be imperatively necessary that some official take the initiative and do what ought to be done to avert loss or suffering, but in every such case it must be assumed that he does so in full confidence that the city will promptly ratify his unauthorized acts, and one who deals with such officer knowing his technical want of power does so in mere expectation that the city will ratify. In any meritorious case, as in an emergency of flood, fire or pestilence, there would be no difficulty in securing ratification if promptly undertaken. If the matter is left to drift for several years until the personnel of the commission has changed and until the gravity of the situation under which the unauthorized contract was made is largely forgotten, there is no help for it. There is a presumption that a meritorious claim will be promptly presented, and in any event the claimant must assert his right within the time fixed by the statute of limitations.
2. Turning next to the third cause of action, it seems clear that the plaintiff can not recover its expenses in changing the location of its water mains and hydrants to conform to the establishment of the new union station. The plaintiff received its corporate existence and privileges from the state, but these were and are subject to further future regulation, and even subject to revocation and repeal. (Const, art. 12, § 1.) To a limited extent, this is also true as to the privileges granted to the plaintiff by the state’s agent, the city of Wichita. (Anderson v. Fuller et al., 51 Fla. 380, 41 South. 684, 6 L. R. A., n. s., 1026.) It was not out of regard for the plaintiff that it was given a franchise to place its mains and hydrants in the streets of Wichita. It was out of regard for the public welfare. Neither was it out of regard for the railroads that permission was granted to erect a union depot. It also was for the public convenience. And when modem invention shall have devised new public conveniences and utilities for the public welfare, the older utilities, like the plaintiff and the union depot, may again have to reorder their establishments to make room for these also. It seems clear that the recipient of any public grant or franchise must be said to have accepted it on this implied understanding. (The State v. Mo. Pac. Rly. Co., 33 Kan. 176, 5 Pac. 772.)
Reasonable changes and improvements in the affairs of public utilities may be ordered at the expense of the public utility company. Thus as a municipality increases its population and business becomes congested, telephone wires may be ordered removed and located elsewhere, railroads may be required to establish new and more expensive crossings, larger terminals, additional connections, etc. (The State, ex rel., v. Railroad Companies, 85 Kan. 649, 118 Pac. 872; City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161.) Of course the exercise of such powers must be reasonable, otherwise the courts will withhold or enjoin their enforcement. (Paola v. Wentz, 79 Kan. 148, 98 Pac. 775; City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1095; Telephone Co. v. Utilities Commission, 97 Kan. 136, 154 Pac. 262.)
It is a thoroughly established proposition that a city has a dual capacity — one as an agency of the state in which it exercises powers purely governmental, legislative and public; the other is proprietary, commercial and quasi-private. (City of Wichita v. Railroad & Light Co., 96 Kan. 606, 608, 152 Pac. 768.) In the exercise of its governmental powers, whether that exercise be wise or foolish, just or unjust, it is never liable thereon in the absence of a statute imposing such liability. Of course in its other capacity, the proprietary, commercial and quasi-private one, it may be subjected to liabilities and judgments like ordinary private corporations and individuals. Nor can there be any doubt that the city of Wichita was exercising its purely governmental functions when it ordered the plaintiff to change the location of its water mains and hydrants. In this respect the city is not liable for the expenses of the plaintiff incurred in obedience to the city’s commands. (Edson v. Olathe, 81 Kan. 328, 105 Pac. 521, 36 L. R. A., n. s., 861; Fire Insurance Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667; Pond, Public Utilities, §§ 3, 4, and cases cited.)
The decided cases go so far as to say that a city can not bargain away its powers to subject the grantees of franchises to further regulation and control as future'public necessities may require. (Edson v. Olathe, supra; Crowder et al. v. The Town of Sullivan et al., 128 Ind. 486, 28 N. E. 94, 13 L. R. A. 647, Snouffer v. C. R. & M. City R’y Co., 118 Iowa, 287, 92 N. W. 79. See, also, Note, 6 L. R. A., n. s., 1026.)
Turning now briefly to the plaintiff’s grievance that it was not permitted to recover for the water used in wagons to flush the streets. Viewing this question strictly, the plaintiff’s contention is technically correct. In consideration of the franchise grant the payment of a stipulated hydrant rental, the city now pays about $25,000 per annum to the plaintiff. The ordinance granting the franchise provides for the use of the hydrants for fires, etc., and for flushing and washing the sewers and gutters, and it provides that “not more than two hydrants shall be opened at any one time nor oftener than twice in any one week, nor longer than two hours at any one time, nor discharge through any orifice greater than one and one-half inches.” It must be conceded that the furnishing of water for the city’s flushing wagons does not come within the terms of this ordinance, and it was technical error to submit the question to the jury whether this use of flushing wagons was within the terms of the ordinance. It may be that the use of flushing wagons is the modern and better Way to do this work, but the city should pay for' the water thus used if it involves any excess of water over the old way prescribed by the ordinance. But since it can not be presumed and the facts are wanting to show whether the new method of flushing required more watér than the old, the plaintiff failed to establish this cause of action. We need do no more than suggest this as an equitable consideration in any future dealings between the water company and the city in the use of these flushing wagons.
Yet another error is presented. The plaintiff objected to three of the jurors on the ground that they were residents and taxpayers of Wichita. This is no longer an absolute disqualification. (Laws 1913, ch. 236) although such juror may be examined on his voir dire to determine his impartiality. Nothing was shown here, however, that the challenged jurors would hesitate to do their duty notwithstanding their slight and inconsequential interest as taxpayers in the outcome of the lawsuit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought by the board of county commissioners of Douglas county to compel the board of county commissioners of Leavenworth county to unite in repairing a public bridge which' spans the Kansas river near Eudora. The river forms the boundary line between the two counties and there has been a bridge over the river at Eudora for many years. The bridge was washed out during the flood of 1903, after which the two counties joined in erecting the present bridge, although the township and city of Eudora as well as some private persons contributed toward the expense of the structure. It forms part of a much traveled highway, and recently the bridge has deteriorated to such an extent as to be unsafe and finally impassable. It is 1700 feet long and spans the river where there are two channels separated by Leander island. In it there were six steel spans extending from the north bank and across the north channel, a pile and trestle structure acros's the island, and two steel spans and a short trestle structure over the south channel, connecting with the south bank of the river. Since the flood of 1903 the main flow of water has passed through the north channel, but water still flows through the south channel when the river is high. Since the high water of 1915 the north bank has been washed away so that there was a gap between the north end of the bridge and the bank, which was eighty feet wide about the time this controversy arose, and from testimony recently taken the gap appears to be about 210 feet wide at this time. The plaintiff requested the defendant to cooperate in making repairs and in paying for the same, and plans for the repairs were prepared; but the defendant declined to comply with the request. Initiatory steps were taken by the plaintiff to compel the cooperation of the defendant in repairing the bridge, but it was disclosed that the plans and specifications prepared for the work had not been approved by the public utilties commission as the statutes require. The plaintiff then made a new start and presented plans and specifications to that commission for its approval, and modified plans were approved by the commission in July, 1915. The defendant still refusing to join or assist in repairing the bridge, the present proceeding was begun. Considerable testimony was taken with a view of showing the plans and specifications were impracticable and insufficient, but the legislature has invested the public utilities commission with the discretion and power to determine and settle these questions (Laws 1913, ch. 260), and so far as appears its decision is not open to any attack that can be made in this action.
The main contention of the defendant is that the right and duty of carrying on the county business, including the building and repairing of bridges, has been conferred on the commissioners; that they are acquainted with the highways and bridges of the county and with the funds which are available for building and repairing bridges; that they know which of the bridges throughout the county that are out of repair are most needed; and are vested with the discretion and judgment to determine which of the bridges out of repair shall be first repaired and the extent of the repairs, taking into consideration the amount of money that may be used for that purpose. The statute authorizes the building of bridges over watercourses which divide counties, at the expense of both, providing that they shall unite in appointing a person to supervise the construction of the same and the method of fixing the portion of the cost which each county shall pay. (Gen. Stat. 1909, §§ 652, 668.) There is another provision that “when a bridge built by the county is out of repair, the board shall estimate the cost of repairing it, and make an appropriation therefor; and may require the township trustee of the township, or the overseer of the road district in which the bridge is located, or some other suitable person, to proceed immediately to repair the same, as the board may direct: Provided, That if the cost of repairing the same exceed one hundred dollars, then like preliminary steps shall be taken as in building a bridge.” (Gen. Stat. 1909, § 667.) There is no question but that the bridge is> an intercounty structure, and it follows that it is to be main tained by the counties which constructed it. It forms a part of a highway which the authorities are required to keep in condition. It is confessedly out of repair, and the duty of providing for restoring it to a passable condition rests upon the counties which own it. The plans and specifications for the repairs to the bridge were prepared and submitted to the public utilities commission for inspection and approval, and that tribunal has approved them. All the preliminary steps have been taken by the plaintiff, and the duty of the defendant to unite with the plaintiff in the repairs is clear and absolute.. The plaintiff has sought the cooperation of the defendant in the performance of that duty, but there has been a persistent refusal on the part of the defendant to cooperate with the plaintiff or to take even the preliminary steps toward providing for the repairs. Where the duty' to repair the bridge is absolute, mandamus will issue to compel the performance of that duty. (The State, ex rel., v. Comm’rs of Cloud Co., 39 Kan. 700, 18 Pac. 952.)
In the case of a county-line bridge which had become unsafe the commissioners of one of the counties refused to join or assist in repairing it. Although the' bridge was not built by either of the counties, it was held that the duty of restoring it rested upon both counties, and that each was liable for a proportion of the. expense of making the repairs. (Cloud County v. Mitchell County, 75 Kan. 750, 90 Pac. 286.) This holding was not made under the statute sought to be applied here, but was under a statute applicable to the situation that existed there. (Gen. Stat. 1909, §§ 7308, 7309.)
The duty, however, was no more imperative in that case than in the present one where the bridge was built by both counties in accordance with the provisions of the statute cited. It is insisted, however, that the obligation to repair is a relative one— that there are many bridges in the defendant county needing repairs, and that only about thirty thousand dollars had been . provided for bridge purposes, and that the defendant, in September, 1915, contracted for the building and repairing of twenty-eight bridges, which entirely exhausted the funds raised for that purpose. The funds for the year being exhausted, it may be impracticable to enforce the obligation of making the repairs at once, but the preliminary steps may be taken toward providing the fund, and the appointment of a. commissioner to supervise the making of the repairs may be-made. The defendant has not shown a disposition to cooperate,, but on the contrary has evinced a purpose to avoid its obligation and duty in the premises, and has even contended that it was at liberty to entirely abandon the bridge rather than incur the expense that would be necessary to put the bridge in a passable condition. The defendant might determine to abandon the maintenance of a bridge under some circumstances, where it is wholly within its county (The State, ex rel., v. Cowley County, 87 Kan. 732, 125 Pac. 23), but the bridge in question is a joint enterprise of the two counties and neither of them can decide to abandon the bridge or to cast the entire expense of its maintenance on the other. (Bremer County v. Walstead, 130 Iowa, 164, 106 N. W. 352). The discretion which the law vests in the commissioners in the maintenance of an inter-county bridge is to be exercised jointly, and under the admitted facts and the testimony herein the plaintiff is entitled to the remedy which it seeks. The remedy is peculiarly applicable in a case like this, where joint action is required of two boards and where one of them contumaciously refuses to unite with the other and persistently resists the performance of the duty which the law enj oins.
In view of the condition of the bridge fund of the defendant county, an order to make an immediate appropriation for the repair of the bridge will not be made, but the writ will issue directing the defendant to proceed at once in good faith to unite with the plaintiff in the preliminary steps toward the making of the repairs by the appointment of a commissioner, and also in making provision to raise funds necessary to pay the defendant county’s share of the expense of the repairs and in setting them apart for that purpose. Jurisdiction of the case will be retained in this court for the making of any further orders that may be necessary and proper for the enforcement of the judgment herein. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of keeping a liquor nuisance, and appeals.
The first witness for the state was Steve Briggs, who was examined in chief, cross-examined, and examined redirectly. At the conclusion of the redirect examination the defendant’s attorney requested that the witness be required to remain so that he might be called for further examination. The court stated to the attorney that he might recall the witness then if he had any further cross-examination. The attorney then stated that he had n.o further cross-examination. After the state had rested the attorney stated that he offered to show by cross-examination of the witness certain facts which would explain his testimony and would affect his credibility. The offer did not include a statement that the facts had come to the attorney’s knowledge after he had declared he did not desire to cross-examine further, and an objection to the offer was sustained. The ruling was well within the court’s discretion.
The defendant requested an instruction relating to evidence of previous good character which was copied literally from the syllabus of a decision of this court on the subject. The request was refused. The language of this court was addressed to lawyers and judges and not to a jury, and contained statements which without adaptation and explanation might well give a jury, untrained in legal thought, a distorted idea of the subject discussed. The district court did well to frame its own instruction on the subject. The instruction given is criticized but is sufficient for the purpose.
Another instruction discussed is confessed to be' not very material and certainly was not prejudicial.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
Zelora Roberts on April 14, 1914, recovered a lump sum judgment for $1979.90 against his employer, the Charles Wolif Packing Company, under the workmen’s compensation act. On an appeal by the defendant the judgment was ordered to be reduced to $1928.87, and as so modified was affirmed. (Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413.) On July 29, 1915, after the mandate had been spread of record and an execution had been issued, the defendant filed in the district court an application to enjoin the enforcement of the judgment and to reduce it to such an amount as would afford the plaintiff compensation up to that time, on the ground that his incapacity had ceased, and that he was able to earn, and was earning and receiving, from $8 to $10 a week, whereas the jury had found that his earning capacity had been permanently reduced to $3 a week; that the plaintiff had refused an offer by the defendant to employ him at $12 a week; and that these facts- were developed after the rendition of the judgment, and could not have been presented at the trial. The application was denied, and the defendant appeals.
In the application it was alleged “that there was no issue tendered by the pleadings and no evidence produced by either party at the trial as to the extent of his [the plaintiff’s] future disability and future earning capacity.” That contention was necessarily disposed of by the ruling on the prior appeal and need not be further considered. Upon the hearing of the application evidence was given that the plaintiff had been employed for two months in driving a “jitney,” at from $8 to $10 a week, and that he had been offered employment by the defendant as elevator man, at $12 a week, but had refused 'it. The plaintiff made affidavit that he had been employed at driving a make of car which required the use of but one foot, that he did not know how long that employment would continue, and that the condition of his leg still incapacitated him from any other work that he knew of; that because of his condition he thought himself unable to fill the place offered him by the defendant; and that for various reasons, which he stated, he believed the offer was not made in good faith. The defendant invokes a rule which has been thus stated:
“As a general rule any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself there, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will authorize a court of equity to enjoin the adverse party from enforcing such judgment.” (23 Cyc. 991.)
In a proper case for the application of that principle the precise procedure by which relief is sought is doubtless of little importance. The defendant’s application is substantially a petition for a new trial on account of newly discovered evidence which could not have been produced at the trial, relating to the extent of the plaintiff’s permanent disability and the resulting diminution of his earning capacity. The new evidence was pertinent to the issue, and was not cumulative. (Bousman v. Stafford, 71 Kan. 648, 81 Pac. 184.) It was not so persuasive, however, as to amount to absolute proof that the judgment was unconscionable. The offer of employment under the circumstances was not entitled to great weight. (Note, L. R. A. 144, 261.) Nor was the circumstance that the plaintiff had been able to procure temporary work at an exceptional employment, requiring the use of but one leg, at all conclusive of the injustice of the judgment. But in any event the legislature has seen fit to limit to one year the time within which an application may be made for a new trial upon grounds which could not have been discovered before the expiration of the term at which a verdict was rendered. (Civ. Code, § 308.) That limitation may sometimes cause injustice. But the desirability of reaching an absolutely final result at some stage of litigation has been deemed by the legislature a sufficient compensation for any such occasional hardship, and the whole matter is one of legislative policy. The attention of the lawmaking body having been directed to the subject, and the determination having been reached that (in the absence of fraud in its procurement) a judgment should not be reopened for any reinvestigation of the facts after the lapse of a year, the limitation applies without regard to the procedure to which resort is had. In this state statutes of limitation apply to equitable as well as to legal remedies (Chick and others v. Willetts, 2 Kan. 384), and “an election between mere statutory forms of procedure does not give a right to extend the statutory period of limitation for the commencement of such procedure” (Cottrell v. Manlove, 58 Kan. 405, 409, 49 Pac. 519). The statute, having undertaken to give relief at any time within a year, where facts affecting an issue are developed too late for use at the trial, must be deemed to have attached that limitation to any exercise of the rights referred to, irrespective of the form in which it is asserted. (See, also, Note, 54 Am. St. Rep. 227.)
On the first appeal the judgment was modified by applying a different rule of computation to.the facts as found, and the judgment as so modified "was affirmed. In this situation the time in which a new trial might.be asked on account of newly discovered evidence was not extended by reason of the proceedings in this court.
It often happens that the amount of a verdict is made to turn upon a present estimate of future conditions, the tribunal trying the matter making use of whatever information is1 available at the time, and necessarily acting upon its best judgment as to what changes are likely to take place. Subsequent developments may, in a particular case, show that a mistake has been made in that regard, but this does not warrant the overturning of the judgment. The fact that the permanent effect of a workman’s injury is often doubtful may be a good reason for postponing the time when a judgment awarding compensation therefor shall become final, of for reserving means for varying the amount according to later developments. But that question is one for the legislature. The present statute makes no distinction in that regard between such a judgment as that here involved and one rendered in any other action for the recovery of money. If in an action under the present workmen’s compensation act the plaintiff recovers on the theory that his disability will cease within a year, and that proves not to be the case, that fact will not enable him to obtain ,any increase of the judgment. The statutory provision for a reexamination by the court of the amount of compensation allowed, by its terms applies only where agreements or awards have been filed with the clerk (Laws 1911, ch. 218, §§ 29, 32), and can not be extended to cover judgments rendered in actions brought without agreement or arbitration, as authorized by a subsequent section of the same act (§36). This was declared on the first appeal of this case. (Roberts v. Packing Co., 95 Kan. 723, 728, 149 Pac. 413. See, also, in this connection, Note, L. R. A. 1916 A, 172, ¶ 45.) Moreover, the right referred to of asking a modification of the amount is required to be exercised, if at all, within one year.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action Was one for damages for breach of a contract to convey land. The plaintiff recovered and the defendant appeals. ' ■
The petition set forth the contract, stated that the defendant had repudiated it, and claimed damages. The contract reads as follows:
“This Agreement Entered into By and between E J Ohare, Known as First Party in this Contract, and E J Akey, as Second Party, First Party agrees to trade her Residence of 10 Rooms Located in Manhattan Riley Co Kan. Consideration $10,000, Subject to a Mortgage of $2000, This Property is too Have Perfect Tittle and to be Clear of all Incumbrace, Excepting the Mortgage of $2,000 and to give Posesión of same on approval of Tittle and Exceptance of the Following Described Farm, of Said Second Party.
“S. E. Vi of Sec 4, Town 33 Range 20 Labett Co. Kans. Consideration $12,000, Clear and perfect Tittle Excepting a First Mortgage of $4,000, Drawing 5, Vz% Intrest, Due in January 1920, Said Second Party Trades for this Propert Subject to Lease Now on the Farm and Held by, George W Brown, Lease is Good for the Year of 1914 and Expires March 1st 1915.
“The Party of the Second Part agrees to Give Party of the First Part untill the 15th day of April, 1914 to Inspect the Farm, and Approve of same, or this Contract to be Null and Void, Both Parties hereby Give their Notes for $200, apiece as a guarantee of good Faith on their Part, and the Notes to be Held, in Excrow by Bradley untill final Settlement, in case of failure of either Party to fullfill this Contract, after the Inspection by Party of the First Part, and Accepted, by First Party then in this case the Note would be come the property of G. W. Bradley as Payment for Commission, on the Failure of either party to fullfill this Contract, and the other parties Note Retimed.”
The answer admitted execution of the contract and contained a general denial. One affirmative defense was pleaded, which was that the plaintiff was not able to perform because she had incumbered her property with a mortgage of $2500 bearing eight per cent interest instead of a mortgage for $2000 as the contract provided, and that the defendant would not accept the property on those terms although the plaintiff asked him to do so. The reply was that subsequent to the execution of the written contract the defendant, for his own benefit, requested the plaintiff to borrow as much money as she could on- her property and pay him the proceeds above $2000. The plaintiff undertook to do this. She was able to borrow but $2500, which she did at the lowest rate of interest obtainable, and deposited $500 of the amount in a bank at Manhattan to be delivered to the defendant when he performed on his side.
The plaintiff and the defendant listed their properties with the same agent, who had an office in Topeka. About April 1, 1914, the defendant and the agent went to Manhattan and the plaintiff and the defendant there agreed to exchange properties and agreed on all the terms of the exchange. The defendant and the agent returned to Topeka. The written contract embodying the terms agreed on was prepared in the agent’s office, was signed there by the defendant, and was sent to the plaintiff who signed it at Manhattan. In order to make the exchange it was necessary for the plaintiff to adjust some liens covering the property she was trading and other property. To do this she was obliged to mortgage the property she was trading for $2000. This situation was explained to the defendant and the contemplated mortgage was specified in the contract. After all the terms of the contract had been agreed on, but before the defendant returned to Topeka, he requested the plaintiff, when she obtained her loan, to get as much more money as she could, $3000 if possible, and turn the excess over to him. The plaintiff said it was nothing to her and she would do so if she copld. Within the time specified in the contract the plaintiff, together with the agent, went to Labette county, the plaintiff inspected the defendant’s land, approved it, and told the agent to notify the defendant of her approval. On May 23 the plaintiff procured the mortgage on her property. She was able to secure $2500 and no more. She was obliged to pay eight per cent interest, the lowest rate obtainable, and to pay a cash commission. She deposited $500 of the amount obtained in a bank at Manhattan to be paid to the defendant when the contract was performed. A notation was made on the books of the bank to prevent withdrawal of the money by the plaintiff. It may be that the agent’s recollection of what occurred when the plaintiff unequivocally approved the defendant’s land was confused. He testified that “right at the time she approved the property at the price named in the contract,” and he testified quite decidedly that she did not. Whatever his motive, he opened correspondence with the defendant, telling him there was a difference between him and the plaintiff and that the plaintiff approved the trade “on the basis of $2500.” The plaintiff testified she did not deviate from her original acceptance. On June 24 the plaintiff prepared and mailed to the agent a statement as a basis of settlement. Nothing came of the correspondence, and on the third or fourth of August the defendant went to Manhattan where all the details for consummating the contract were arranged by the parties themselves. Within the time performance of the contract was delayed interest accrued on the mortgage on the defendant’s land. He had given some commission notes in connection with that mortgage which he had not paid and which he was obliged to pay in order that the incumbrance might be as stated in the contract. Rent had accrued on both properties, and there were some other details. The plaintiff narrated in full the facts relating to the procuring of the mortgage for $2500, including the rate of interest and the deposit in the bank. The defendant said it was all right and suited him. He went with the plaintiff to the bank, inquired about the deposit, and was told by the president of the bank that the deposit of $500 was there at his command on completion of the contract. It was agreed that deeds were to be delivered to the bank for exchange and the bank permitted the defendant to take with him the abstract of the plaintiff’s property showing the $2500 mortgage. The defendant himself admitted on the witness stand that his understanding with the plaintiff was that the deal would be all right subject to the $2500 mortgage with an adjustment of the rate of interest, which the plaintiff said she would attend to. Her testimony was to the effect that he was entirely satisfied. The defendant returned to Topeka, and on August 7 returned the plaintiff’s abstract with a letter saying he had sent his deed to his wife for signature. On the next day the plaintiff deposited her deed in the bank. On August 15 the defendant wrote the plaintiff, stating that his wife was nor willing to sign the deed because she objected to the increased amount of the mortgage and to the rate of interest. He inquired if the plaintiff could not adjust the difference in the item of interest — a peculiar request if, as he testified, the plaintiff had already agreed to make the adjustment. On August 17 the plaintiff wrote the defendant that since the deal was all made she did not feel she could do differently, that she was leaving for Colorado, to be gone ten days, and that the deal would be consummated then or she would consider it all off. The plaintiff did not hear from the defendant again.
The defendant testified he had no conversation whatever with the plaintiff when at Manhattan in April about her boi*rowing as much above $2000 as possible and turning the cash over to him. When at Manhattan in August he did not inquire about the deposit and was not told it was in the bank subject to his disposal when the contract was consummated. He read the abstract on the train from Manhattan to Topeka, and saw that the mortgage was for $2500. After the deed was returned by his wife without her signature he tendered it to the agent, who refused to accept it for the plaintiff. The agent (who, it will be recalled, was the defendant’s agent too), denied this tender, which was not mentioned in the answer.
The defendant submitted certain special questions which were answered by the jury as follows:
“Question 1: Was the plaintiff ever ready, able and willing to comply with the contract in suit? Yes.
“If the question is answered ‘yes’ state ¿he time. Answer 1: On or after May 23, 1914.
“Question 2: Did the defendant execute and tender the deed to the Labette Co. farm to Bradley? Answer 2: No.
“Question 3: Did the defendant ever refuse to comply with the agreement sued upon? Answer 3: We do not find that defendant refused verbally or in writing but absolutely failed to comply to agreement sued upon.
“Question 4: Did the plaintiff ever notify the defendant that she approved, unconditionally, the farm and deal? Answer: Yes, through Bradley, their agent.
“Question 5: Did the plaintiff ever notify the defendant that her deed was deposited in Manhattan Bank? If you answer the question yes, state how and when she gave such notice. Answer 5:. No, but the evidence shows she deposited it there according to agreement.
“Question 6: If the plaintiff ever deposited her deed in the Bank, state when she did so. Answer 6: Aug. 8th, 1914.”
The defendant says the reply was eliminated from the case by the plaintiff’s own testimony. Recurring to the reply, it will be observed that it stated the defendant’s request relating to obtaining as much money above $2000 as possible was made after the contract was executed. The plaintiff testified the request was made after the agreement had been made but before it was reduced to writing and signed. Discrepancies of this kind between pleading and proof arte not strange occurrences and are not ground for summarily tossing pleadings out of a case. The statute makes them quite immaterial unless the adverse party be misled to his prejudice. In that event he must make a showing, and the pleading may then be amended. (Civ. Code, § 134.) At the time of the trial the defendant did not regard the variance of sufficient consequence to pursue the course indicated by the statute.
It is said the petition did not state a cause of action because there was no allegation that the plaintiff was able, ready and willing to carry out the contract or that she offered to do so. It did not occur to the defendant to make this objection to the petition in the district court and it is a little late to make it here. Instead of demurring to the petition on the ground stated the defendant chose to make an issue of fact of that very matter and staked his defense on the one proposition that the plaintiff was unable to perform on her part because of the $2500 mortgage bearing eight per cent, to which he would not submit.
Another defect in the petition which the defendant regards as fatal is pointed out. It was not discovered while the case was before the district court. Because no ruling on the subject was demanded or made, no error was committed and there is nothing to review.
It is said the plaintiff never did accept and approve the contract sued on. She signed the contract. The only acceptance and approval which it required was of the defendant’s farm by April 15. The plaintiff’s testimony relating to that subject has been stated. The jury had before it the correspondence and conduct of the parties, the parties themselves, and all their testimony, and chose whom they would believe. They believed the plaintiff, and there is enough in the record to indicate that they did not act arbitrarily.
It is said the plaintiff attached new conditions to the contract. The agent’s correspondence with the defendant, the plaintiff’s statement of account as a basis of settlement, and other features of the evidence are referred to. That the $2500 mortgage was not in itself a new condition is not an open question. The plaintiff said it originated in the defendant’s own request which she fulfilled to the best of her ability. The request, if made as the plaintiff testified, did not constitute a modification of the written contract. The contract remained just the same, but a method of compliance which would be beneficial to the defendant was suggested. If, as the plaintiff testified, she acted on the suggestion and did the best she could to accommodate the defendant, he is estopped to complain. The defendant contradicted the plaintiff, contradicted the pres-' ideht of the bank, and otherwise repudiated the plaintiff’s ex planation of the transaction. The jury performed the usual function of a jury under such circumstances and reposed confidence where it considered confidence should be reposed. The statement which the plaintiff submitted to the agent expressed on its face the plaintiff’s idea of its purpose — a basis of settlement. The contract had not fixed a time for performance. Because of facts already indicated a settlement in connection with performance was a business necessity, and in view of all the circumstances the jury had the right to conclude the plaintiff was trying to close an old deal and not to make a new one. For the purpose of the decision let it be conceded that after the plaintiff had inspected the defendant’s farm and had accepted and approved it the agent, acting for the plaintiff, made a new proposition to the defendant, that the trade must be closed on the basis of a $2500 mortgage on the plaintiff’s property. The agent was unable to obtain the defendant’s consent. When the two principals met at Manhattan in August there was no difference between them and the details of closing the trade were arranged according to the contract.
It is said the defendant’s assent to whatever he assented to when at Manhattan in August was assent to a new proposition not made the basis of the action. The things discussed at Manhattan in August were the $2500 mortgage matter and the details incident to performance. Agreements respecting details of performance do not constitute modifications of the original agreement, and in this instance the details discussed were all matters of fulfillment and not of substitution. The mortgage for $2500 originated in the defendant’s request or it did not. The evidence was conflicting and the verdict of the jury concluded the matter.
The defendant’s wife had never been a resident of Kansas. Her attitude toward the trade was immaterial. The plaintiff had the right to fix a reasonable time within which long-delayed performance should take place or the defendant would be in default. The jury were so instructed and the verdict disposed of that subject.
Various instructions to the jury are criticized. The criticisms result very largely from the defendant’s view of the pleadings, which this court does not accept, and from the defendant’s view of the evidence, which the jury did not accept. The in structions fairly and adequately covered the law of the case but it is not necessary to discuss them in detail. There were just two substantial and meritorious questions raised by the pleadings: Did the plaintiff accept the defendant’s farm and did she disable herself to perform by the mortgage for $2500 at eight per cent interest, to which the defendant would not accede? If the plaintiff was right about these matters the defendant was in default and the plaintiff was entitled to recover. The tender of deed which the defendant said he made, and which the jury found specifically he did not make, should have been made to the Manhattan bank to be effective. The two questions referred to were questions of fact the determination of which did not depend on the instructions defining the legal rights of the parties under various aspects of the evidence. The instructions on how to deal with the evidence were complete and correct. Finding No. 4 disposes of the first question. The solution of the other depended on which one of two lines of evidence would be accepted. The findings show the plaintiff was believed in all matters inquired about concerning which she testified, and the first finding could not have been made unless her testimony regarding the $2500 mortgage was believed.
Some matters discussed in the briefs which have not been referred to are deemed to be sufficiently covered by what has been said.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an application for a writ of habeas corpus. The petitioner was apprehended and prosecuted in Reno county on an information charging him with having committed the crime of bigamy in Finney county. On arraignment he pleaded guilty and was sentenced to confinement in the state penitentiary “until discharged therefrom as by law provided.” After serving some eighteen months of this sentence, he brings this proceeding, and contends (a-) that the district court of Reno county did not have jurisdiction to accept his plea of guilty and to render judgment against him, and (5) that the duration of his sentence can not be ascertained from the judgment and commitment, and that they are therefore void for uncertainty.
The statute under which the petitioner was prosecuted in Reno county, in part, reads:
“An indictment [or information, Crim. Code, § 66] for bigamy as defined in the preceding sections may be found, and proceedings, trial, conviction, judgment and execution thereon had, in the county in which such second or subsequent marriage or the cohabitation shall have taken place, or in the county in which the offender may be apprehended.” (Gen. Stat. 1909, § 2714.)
It is contended that the last clause of the statute just quoted violates section 10 of the bill of rights, which provides:
“In all prosecutions, the accused shall be allowed to appear and- defend in person or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.”
But none of these constitutional privileges was arbitrarily withheld from him. He might have invoked any or all of them. He might have demanded a jury trial in Finney county. He did not care to contest the state’s accusation. He waived these privileges. He entered a plea of guilty.
In the early case of The State v. Potter, 16 Kan. 80, it was held:
“The constitutional right of a defendant in a criminal action to be tried ‘by an impartial jury of the county or district in which the offense is alleged to have been committed,’ (Const. Bill of Rights, § 10,) is a mere personal privilege which the defendant may waive or insist upon at his option. It is not a right conferred upon him from considerations of public policy; and public interests would not be likely to suffer by a waiver thereof.” (Syl. ¶ 5.)
To the same effect are The State v. Kindig, 55 Kan. 113, syl. ¶ 3, 39 Pac. 1028; Lightfoot v. The Commonwealth, 80 Ky. 516; Hourigan v. Commonwealth, 94 Ky. 520, 23 S. W. 355; Ledgerwood v. The State, 134 Ind. 81, 33 N. E. 631; State v. Fitzgerald, 51 Minn. 534, 53 N. W. 799; and In re Blum, 30 N. Y. Supp. 396, 9 Misc. Rep. 571.
The case of The State v. Smiley, 98 Mo. 605, 12 S. W. 247, cited and pressed by counsel, does not touch the question of-waiver. As we read that report, it would appear that the accused, who was charged with the crime of bigamy committed in, Johnson county, contested the jurisdiction of the Madison county court from the inception of the proceedings against him. That questions as to the jurisdiction of the court may be waived in Missouri as elsewhere, see The State v. Gamble, 119 Mo. 427, 24 S. W. 1030.
Until the statute (Gen. Stat. 1909, § 2714) is assailed by one whose constitutional guaranties are being taken or withheld from him without his waiver or consent we need not positively determine its constitutionality.
We perceive no legal infirmity nor uncertainty in the judgment and commitment. The petitioner pleaded “guilty to the charge of bigamy as charged in the information.” This crime is defined by sections 225, 226 and 227 of the crimes act (Gen. Stat. 1909, §§ 2711-2713). The punishment may be a jail sentence, or confinement not exceeding five years in the penitentiary. Since he received a penitentiary sentence, the indeterminate sentence act (Laws 1903, ch. 375, Crim. Code, §§ 272a-272j) controls, and his confinement will be dependent largely upon his own good behavior, the minimum being for one year and the maximum five years. (The State v. Page, 60 Kan. 664, 57 Pac. 514.)
Nor does the slightest confusion arise from the fact that there is another statute (Civ. Code, §§ 674, 675) pertaining to premature marriages of divorcees, and which is also declared to be bigamy for which a penitentiary sentence is imposed. In this latter sort of bigamy, which is purely statutory, the particulars would necessarily have to be recited in the judgment to show that the merely statutory offense was the one upon which the prosecution was based. The older statute covers the common-law crime of bigamy and is so well known and understood that the details of the offense were not required to be set forth in the judgment and commitment with such minute particularity. Furthermore, if the petitioner in fact did intend merely to plead guilty to the statutory offense defined by sections 674 and 675 of the civil code then his grievance is not that his sentence and commitment are void but that he is entitled to be discharged “according to law” under the latter statute when the duration of his sentence thereunder has expired. But even in that view of the case, his action at this time would be prematurely brought.
Even in the case of In re Howard, 72 Kan. 273, 83 Pac. 1032, where the judgment and commitment were held void for uncertainty, the petitioner was not given an absolute discharge but was ordered returned to the district court for a definite and certain sentence and judgment. This procedure was followed in the case of In re Spaulding, 75 Kan. 163, 88 Pac. 547. In the case of In re McLean, 84 Kan. 852, 115 Pac. 647, it was held in paragraph three of the syllabus that the information may be looked to for the purpose of interpreting the verdict in a criminal case, and the same reasoning permits its use for the proper interpretation of a judgment and commitment. The information in this case reads, in part:
“That on the 22 day of January A. d. 1915, in said county of Finney and State of Kansas, one Bob Mote then and there being, and then and there having a true wife living to wit: Lillian Mote, and having actual knowledge that he had said wife living, did then and there unlawfully, feloniously and wilfully marry another person to wit: Elizabeth Brooks and said Bob Mote was apprehended in Reno County, Kansas.”
This clearly shows that the petitioner was charged with the familiar common-law crime of bigamy as defined by the crimes act (§§ 225-227, Gem.Stat. 1909, §§ 2711-2713), and his commitment “until discharged therefrom as by law provided” is for a term not less than one year nor more than five years, and it is not void on the grounds urged by the petitioner.
The writ is denied. | [
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The opinion of the court was delivered by
Mason, J.:
Ferdinand Fensky, a resident of California, died intestate and without issue, August 7, 1903. By the laws of that state his heirs were his wife, who was entitled to half his property, five sisters, two brothers and a nephew, who were each entitled to one-sixteenth of it. The widow was appointed administratrix by a California court. M. T. Campbell was appointed administrator in Kansas. He filed an inventory showing something over $20,000 of personal property in his hands. He paid $1000 to each of the collateral heirs named and received from them writings releasing all claims against the estate in favor of the widow. These releases were filed in the probate court, together with a receipt from the widow for the remaining assets shown by the inventory, and in June, 1905, an order was made closing the estate. On May 15, 1914, two of the intestate’s sisters brought an action against the administrator and his bondsmen to have the settlement set aside for fraud, and for an accounting of the assets with which he was chargeable. The administrator has since died and his representative has been substituted. A demurrer to the petition was overruled, and the defendants appeal.
In addition to the facts already stated the petition makes these allegations: Fensky had at one time owned various tracts of real estate in Kansas, including what is known as Fensky’s Addition to Topeka, the record title to which stood in his name at his death, but which in fact he had sold, taking notes and contracts for the deferred payments, and holding executed deeds for delivery upon their payment. These notes, contracts and deeds, after the death of Fensky, were sent by the widow to the Kansas administrator, who inventoried none of them, but accounted for them to her. He induced the collateral heirs to execute the releases referred to by falsely representing to them that the Kansas real estate had not been sold and that the entire personal estate left by Fensky amounted to about $20,000. Other notes than those inventoried came into the hands of Campbell as a part of the estate and were by him collected, the proceeds being paid to the widow. The plaintiffs never knew of the existence of the contracts of sale or the uninventoried notes until after July, 1912.
The defendants maintain that the order of settlement has the force of a judgment and is not open to attack by the method here pursued. The allegation, however, is that the settlement was procured without an actual accounting as to the claims of these plaintiffs, by the use of a release of all demands against the estate (including that in California as well as that in Kansas), which had been obtained by intentionally false statements concerning facts which affected its value, particularly by the representation that the Kansas real estate had not been sold by Fensky, in which case the entire title would of course have vested in his widow upon his death. A fraud so accomplished we regard as extrinsic to the issue determined by the probate court and therefore capable of forming a basis for setting aside its order. (See Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Note, 106 Am. St. Rep. 640-642, 645-647.) In the United States district court for the southern district of California these plaintiffs brought an action for an accounting, founded on the same facts, against the successors in interest of Fensky’s widow, who had died in the meantime. A motion to dismiss it was sustained. A copy of a memorandum opinion, which appears not to have been published, shows that the court concluded that the fraud com plained of was not of such a character as to warrant setting aside the probate court orders, because it was intrinsic with respect to the matter determined, inasmuch as the probate court presumably passed on all the things it would have had to consider if the releases had not been executed, including the extent and value of the estate, excepting that it was not required to decide the exact' proportion to which the plaintiffs were entitled. The allegations in the two cases may not have been precisely the same. Here it would appear that the use of the releases, together with the receipt of the widow and domiciliary administratrix, made it unnecessary to make any decision concerning the disposal of the assets with which the ancillary administrator was chargeable. Various Kansas cases support the view that the order of the probate court is open to attack on the ground of the kind of fraud alleged, and that an equitable action in the district court is an appropriate proceeding for the purpose. (Klemp v. Winter, 23 Kan. 699; Gafford, Guardian, v. Dickinson, Adm’r, 37 Kan. 287, 15 Pac. 175; Carter v. Christie, 57 Kan. 492, 46 Pac. 964.) The joinder of the bondsmen as defendants is proper. (Fincke v. Bundrick, 72 Kan. 182, 83 Pac. 403.) The defendants urge that this is a collateral attack on the judgment, because other relief is sought than its vacation, and quote in support of the contention this and similar texts: “If the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, the attack upon the judgment is collateral.” (23 Cyc. 1063.) The meaning obviously is that in order for an action to constitute a direct attack on a judgment, its vacation must be sought as an end in and of itself and not as a mere incident to something else. The circumstance that additional relief is asked can not affect the matter.
The statute seems to contemplate that the net proceeds of the property of a nonresident intestate administered in this state shall, in accordance with the usual practice, be paid over to the foreign administrator. (Gen. Stat. 1909, § 3610.) But while the heirs may have had no absolute right to a distribution at the hands of any one except the domiciliary administratrix, the funds in the hands of the ancillary administrator were subject to the control of the court and might in some circumstances have been ordered paid directly to the final beneficiaries. (13 A. & E. Encycl. of L. 938, 940; 18 Cyc. 1235; 11 R. C. L. 441.) A direction to turn over all the assets to the widow, although she was also the domiciliary administratrix, if procured by the use of a release obtained by fraud, can not be a bar to a further inquiry as to their proper disposition. The petition states grounds sufficient to justify setting aside the order of final settlement by virtue of its allegations of intentional fraud. (23 Cyc. 1022.) Ordinarily the right to the purchase price of land, contracted to be sold but not conveyed at the time of the vendor’s death, passes to his personal representative and not to his heirs. (Gilmore v. Gilmore, 60 Kan. 606, 57 Pac. 505; 18 Cyc. 187; 11 R. C. L. 124; Note, 57 L. R. A. 646.) The petition contains nothing to suggest a different rule here, but if the evidence should show that the administrator believed that the notes therein referred to followed the rule of real estate and became the property of the widow no statements made by him in good faith by reason of that belief, however incorrect from a legal point of view, would warrant a reopening of the administration. The extent of recovery if the allegations of the petition should be proved is not involved in this proceeding.
The defendants assert that the action (as to the sureties at least) is- one on the bond of the administrator and has been barred by the five-year statute of limitation (Civ. Code, § 17, subdiv. 5). The plaintiffs contend that' it is one for relief on the ground of fraud, properly brought within two years after the discovery. (Civ. Code, § 17, subdiv. 3.) To bring it within the latter classification the fraud must be the basis of the action. (25 Cyc. 1178, 1182.) The mere fraudulent concealment of facts giving rise to a right of action for damages for the violation of a contract has been held by this court not to suspend the statute. (Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051.) Elsewhere there is a difference of judicial opinion as to whether such conduct will postpone the running of the statute against an action at law (25 Cyc. 1214), while there is a general agreement that such is the effect with reference to a suit in equity (19 A. & E. Encycl. of L. 243; 25 Cyc. 1214). In this state the statute of limitations applies equally to legal and equitable cases. (Chick and others v. Willetts, 2 Kan. 384.) In the present action, however, the requirement that the fraud practiced must be the foundation of the action is fully met. The relief asked is essentially the setting aside of the releases because they were procured by fraud, the vacation of the settlement which was based upon them, and the restoration of the rights thereby denied. If the running of the statute was suspended as to the administrator it was suspended as to the bondsmen as well. (25 Cyc. 1186.)
The argument is also advanced that the facts pleaded show that by the exercise of reasonable diligence the plaintiffs could have learned of the matters alleged to have been concealed, and therefore must be deemed to have had constructive knowledge of them. The plaintiffs alleged in general terms that they had no means of knowning the facts, and we do not think any of the details stated are in necessary conflict with that allegation. It is suggested that inquiry of the purchasers of lots in the Topeka addition would have disclosed that they had bought them from Fensky and were indebted to him for the purchase price at the time of his death, but in the absence of anything to excite suspicion on the subj ect it can not be said as a matter of law that the plaintiffs were under an obligation to make such an investigation. In the federal case referred to the court reached a different conclusion in this regard, which obviously resulted from a less liberal interpretation of the allegations of a pleading than the practice in this state requires where the attack is by demurrer.
The contention is made that the petition is demurrable because it merely alleges that the plaintiffs did not know of the facts pleaded until July, 1912, and does not state how the discovery came about. The general rule appears to be that such a statement is required. (25 Cyc. 1418; Hardt v. Heidweyer, 152 U. S. 547.) But the contrary practice obtains in some of the states, including Kansas. (K. P. Rly. Co. v. McCormick, 20 Kan. 107; 25 Cyc. 1419.)
The order overruling the demurrer is affirmed. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
This is an action by the defendant in error to recover from the plaintiff in error actual and exemplary damages for negligently carrying him to a place on a branch line of defendant company away from .the station on its main line to which he gave a proper ticket to the conductor. Upon the verdict judgment was rendered for $213.25, of which sum the jury, in answer to a special question, found $13.25 to be actual damages for the injury suffered; the remaining $200 was, presumably, exemplary damages. This amount seems large, under the circumstances, but there was some evidence of gross negli gence and insulting conduct on the part of the defendant’s trainmen toward the plaintiff, and, there being no definite rule for determining this class of damages, and the trial court having approved the verdict, the judgment will not be reversed on that ground.
There are also several assignments of error in admitting and excluding evidence, and in giving and refusing instructions, but they are not material.
A question of practice is raised which demands our consideration and which has not heretofore been decided in this court. After both parties had produced their evidence and rested and the court had charged the jury it was announced that the arguments would be limited to one hour on each side. One of the counsel for plaintiff spoke about thirty minutes and concluded his argument. Thereupon the attorney for defendant asked that the case be submitted without further argument, but another attorney for the plaintiff insisted that he had the right to occupy the remaining time allowed his side. The defendant objected, and after some discussion the court said to the attorney for plaintiff: “If you want to insist on an argument and take your chances on it, you may.” He proceeded to argue the case.
Under similar circumstances it was said in Nemaha County v. Allbert, 6 Kan. App. 165, 51 Pac. 307, that the plaintiff’s attorneys had no right to renew their argument after the defendant had waived his, and that it was error for the court to refuse the request of defendant’s counsel to reply after plaintiff’s attorneys had concluded the second argument. Also, it was said in S. K. Rly. Co. v. Michaels, 49 Kan. 388, 30 Pac. 408, under circumstances similar to this case, that it was not error for the court in its discretion to refuse to allow plaintiff to make an argument after the defendant had waived. In Hackney v. Del. & Atl. Tel. Co., 69 N. J. L. 335, 339, 55 Atl. 252, it was said:
“It was not within the discretion of the court to permit a second counsel to address the jury on the same side as that of the counsel who had opened. It may be in the discretion of the court to permit the same counsel who had already addressed the jury to make a fuller opening in case he shall so request, but to permit other counsel to do so or to further address the jury for the plaintiff when no reply has been made by the counsel for the defendant, is not discretionary.” (See, also, N. Y. & Long Branch R. R. Co. v. Garrity, 68 N. J. L. 50, 42 Atl. 842.)
The Hackney case defines the better practice and is in accord with the recognized procedure in the district courts of this state. The bar consider it an advantage to have the opening and closing arguments to the jury; indeed counsel not infrequently, in doubtful cases, contend that the burden of the issue rests upon their side, though this be a disadavantage, in order that they may secure the greater advantage of having the opening and closing arguments. It is a constant temptation, sometimes yielded to by able and reputable practitioners engaged for the plaintiff, to have a mere nominal opening argument made in order that in the closing arguments they may, without repetition, present their case and the evidence to support it in its most favorable light, and thus debar the opponent from disclosing any flaws or fallacies which with great cunning and skill they may weave into the texture of the final address and thereby conceal them.
It is a wholesome practice to have it understood that the party having the burden of the issue must make a full and fair presentation of his case in the opening or take the chances of entirely losing the opportunity so to do.
.The judgment of the district court is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
A landowner attempted to appeal from the rejection by the board of county commissioners of his claim for damages arising from the location of a highway through his premises. He neglected to avail himself of the right to appeal as from the decision of a justice of the peace, given by section 6022 of the General Statutes of 1901, and, hence, was obliged to rely upon sections 1640 and 1641, which read as follow:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and-the payment of all costs that shall be adjudged against the appellant.
“The clerk of the board, upon such appeal being taken, shall immediately give notice thereof to the county attorney, and shall make out a brief return of the proceedings in the case before the board, with their decision thereon, and shall file the same, together with the bond and all the papers in the case in his possession, with the clerk of the district court; and such appeal shall be entered, tried and determined the same as appeals from justices’ courts, and costs shall be awarded thereon in like manner.”
Instead of following these statutory directions the appellant took h-is bond to the clerk of the district court, had him approve the security, and filed it with him. The district court took jurisdiction of the appeal, against the seasonable protest of the county, and after a trial awarded damages against it. In so doing the district court committed error.
The legislature desired to prohibit irresponsible appeals, and undertook to secure the payment of all costs which might be awarded against the appellant. The opinion of some trusted officer upon the sufficiency of the proposed security was necessary in order to obtain the protection desired. The matter might have been committed to the board of county commissioners, to the clerk of the district court, to the judge of the district court, or to some other official, but the statute assigns the duty to the clerk of the county board. The judgment of no other person will suffice.
“When one person or class of persons is named in a power of attorney, or an act of the lawmaking power, as being authorized to do a certain thing therein named, all other persons are thereby excluded from doing the same thing as effectually as if they were positively forbidden.” (The United States v. Lewis L. Weld, 1 McC. [Kan.] 185, 192.) .
Therefore, the approval of the bond in question by the clerk of the district court was of no more effect than an approval by a notary public or the postmaster of the county-seat would have been, and because it was unapproved it was invalid. (Ell. App. Proc. §369.)
“An appeal security is valid without approval by a court or judge, unless a statute so requires. Where approval is required the statute is mandatory, and the appeal bond is invalid on objection where unapproved. Such a statute vests in the official designated to approve the bond a judicial, hot a ministerial, power. It cannot, accordingly, be delegated to any other authority than that named in the statute.” (1 Encyc. Pl. & Pr. 1007.)
Besides, the statute contemplates that the bond shall be delivered to the clerk of the county board. It is his duty to keep the seals, records and papers of the board. (Gen. Stat. 1901, §1659.) The bond must be executed to the county, and belongs to the county. During the time necessarily consumed in giving notice to the county attorney of the appeal, and making up a return of the proceedings in the case and of the decision of the board, the bond must remain in the custody of the clerk, and when this return and other papers in his possession are transmitted to the district court he files them, together with the bond, with the clerk of that tribunal.
Delivery is essential to the validity of an appeal bond. (1 Encyc. Pl. & Pr. 977; 2 Cyc. 917.) Since the bond in this case never came into the custody of the officer who alone could accept it, it was ineffective to accomplish the purpose for which it was prepared.
The county did nothing to estop itself from impeaching the validity of the bond, and the subsequent efforts disclosed on the part of the appellant to cure the omissions referred to were unavailing.
The judgment of the district court is reversed, with the direction that the appeal be dismissed.
All 'the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
This was a suit brought by George W. Franks to foreclose a lien for labor done and materials furnished in the repair of a building in Kansas City. The lot on which it stood was owned by Rosa B. Doyle. At the time of the flood of 1903 the building was leased by the owner to the Ferd. Heim Brewing Company, of Missouri. It was occupied by defendant in error as a sublessee under the brewing company, and in it he carried on the business of selling intoxicating liquors in violation of law. The building was damaged by the high water. Under a contract with Thomas H. Doyle, husband of the owner, Franks repaired it, and expended $283 for materials and labor in so doing. To secure the payment of the amount he filed a lien. Defendant pleaded in defense of the suit that Franks repaired the building for the sole purpose of furthering his unlawful traffic in intoxicating liquors. It was established at the trial that plaintiff was engaged in the violation of the prohibitory liquor law in the building at the time it was damaged by high water, and continued his illegal business therein after it was repaired. Plaintiff recovered judgment in the district court, which we are urged to reverse on the sole ground that the contract for the restoration of the building was illegal.
The subject-matter of the contract between the husband of the property owner and Franks was in no wise tainted with illegality. It had relation to the application of labor and the use of materials in the repair of a house adapted to various business purposes. Plaintiff below proved the contract, its performance on his part, and its breach by the party sued, without calling in aid any illegal transaction to assist in supporting his cause of action. The contemplated illegal use of the premises by Franks while the repairs were being made, and the subsequent carrying out of his intention, were mere incidents indirectly connected with a legal contract in all respects innocent. (9 Cyc. 556, f.)
It is contended that because the repairs made on the building were done to facilitate the unlawful traffic in intoxicating liquors a contract with the owner of the property calling for such repairs cannot be enforced. This argument, if sustained, would prevent a recovery by a grocer for provisions furnished on credit to one known to be engaged in the unlawful sale of liquors, and render illegal a sale of clothing to such person, because without food or clothing the lawbreaker could not pursue his prohibited business.
The rights of plaintiff below originated in a transaction not offensive to law. His cause of action was not dependent upon, or affected by, the intended use of the building. Such use was collateral to the transaction, and the consideration for the contract was independent of it. The following authorities support our position: Armstrong v. American Exchange Bank, 133 U. S. 433, 10 Sup. Ct. 450, 33 L. Ed. 747; Ingram v. Mitchell, 30 Ga. 547; National Distilling Co. v. Cream City Importing Co., 86 Wis. 352, 56 N. W. 864, 39 Am. St. Rep. 902; Ware et al. v. Curry, 67 Ala. 274; Irving v. Irving, 169 Pa. St. 529, 32 Atl. 445, 29 L. R. A. 292; Hoffman v. M’Mullen, 83 Fed. 372, 28 C. C. A. 178, 45 L. R. A. 410; Johnson v. Hulings, 103 Pa. St. 498, 49 Am. Rep. 131; Green v. Schoenhofen Brewing Co., 103 Iowa, 252, 72 N. W. 655; Coppedge v. Goetz, 67 Kan. 851, 73 Pac. 908.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
This was a suit to abate and enjoin the maintenance of a nuisance under the prohibitory liquor law. The injunction was allowed and the defendant brings the case here for review.
The first error assigned is that on the trial the court refused the defendant a jury trial, and Woodman v. Davis, 32 Kan. 344, 4 Pac. 262, and Swarz v. Ramala, 63 id. 633, 66 Pac. 649, are cited as authority. Neither case sustains the defendant’s position, and the action of the court is so well sustained by numerous other decisions of this court that it seems unnecessary to discuss it. In fact, Swarz v. Ramala, supra, sustains the action of the court.
Again, it is urged that the court erred in not dismissing, or, at least, not continuing, the trial of this case until a criminal case which was pending in the same court against the same defendant should be disposed of, and in which he was charged with a violation of the prohibitory liquor law, and, it is claimed, upon the same facts. Whether the charge in the criminal case was for illegal sales or for maintaining a nuisance the record here does not disclose. It matters not. The result of the criminal case could under no circumstances become res judicata as to any question of law or fact involved in the civil case. If not, the verdict or judgment in the criminal case-would not even be competent evidence for the court to consider in the determination of the civil action. Assuming, as the briefs seem to indicate, that the charge in the criminal case was the illegal sale of intoxicating liquors, an acquittal on this charge would not even bar a criminal prosecution for maintaining a nuisance, as, besides the sale, there are two other grounds upon which the nuisance charge might be sustained. If for no other reason the verdict or judgment of acquittal in a criminal case is incompetent evidence on the trial of a civil ac tion, involving the same facts, because of the different degree of certainty requisite in the proof of the two cases.
The next assignment of error is the denial of the defendant’s motion to strike out some testimony from a mass of evidence. The motion, if acted upon, would impose upon the trial court, and, if considered here, upon this court, the burden of sifting the evidence for the purpose, first, of determining to what portion the motion is intended to apply, and, second, whether the motion should be allowed as to such portion or portions. The latter only falls within the duty of the court. If a party claims that some timbers in a pile are too short for a specified purpose, he must point out the pieces; then the court should measure them. The court should not both pick and measure. The motion is not sufficiently specific, and there was no error in denying it, regardless of its merits, which we do not decide. It appears, however, from the findings that the judgment against the defendant was not based upon violations prior to March 19, 1903; so if there was evidence of prior violations the defendant was not prejudiced thereby.
The last assignment, except to the ruling upon the motion for a new trial, which depends upon the others, is that the court erred in admitting evidence favorable to the plaintiff. No proper objections were made and saved, however, and no specific rulings of the court are called to our attention in the brief of plaintiff in error.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiffs, as the parents of their minor child, Earnest Fry, brought this action against the Southwest Missouri Electric Railway Company to recover damages for his death, alleged to have been occasioned by the negligence of the defendant’s employees in carelessly and negligently running one of its street-cars over the child. The plaintiffs recovered judgment, from which the defendant prosecutes error.
The defendants in error call our attention to the fact that the record does not disclose that all the evidence that was introduced upon the trial is preserved, and therefore they object to this court’s considering any of the alleged errors involving an examination of the evidence. The record itself contains no statement that all the evidence is preserved. The certificate of the trial judge, however, states that all the evidence is contained in the case-made. The trial judge cannot make or supplement a case-made by his certificate. The only authority given him by statute is to certify that the case-made is a true one, and if the case-made does not show that it contains all the evidence the certificate of the trial judge is ineffectual to supplement it. (Bartlett v. Feeney, 11 Kan. 593, 602; Brown v. Johnson, 14 id. 377; Eddy v. Weaver, 37 id. 540, 15 Pac. 492.) The omission of the evidence from the record deprives this court of authority to examine any error involving a consideration of the evidence.
The only remaining contention arises on the insufficiency of the petition to authorize the court, in view of the special findings of the jury, to enter judgment for the plaintiffs. It is argued that the petition charges the defendant with having knowingly, wilfully and wantonly run over and killed the plaintiffs’ child, while the jury found that the death was not caused by the knowing, wilful and wanton acts of the employees-of the defendant. It is contended that under this finding judgment should have been rendered for the defendant. The averments of the petition are:
“(6) Plaintiffs aver that on the 28th day of January, A. D. 1903, the minor son of plaintiffs, as aforesaid, was lawfully crossing over Seventh street, in the-city of Galena, Kan., at a point on said street where Wood street, one of the streets of said city, intersects-with said Seventh street, when one of defendant’s street-railway cars, to wit, No. 34, that was being-carelessly, negligently, recklessly and wantonly run and operated along and over said Seventh street by defendant, struck and knocked the said Earnest Fry-down, and defendant carelessly, negligently, recklessly and wantonly ran said car upon and over the body of' plaintiffs’ minor son, as aforesaid, instantly killing the-said minor son of plaintiffs.”
The petition averred that the injury was the result, of the negligence of the defendant in operating its. cars. If defendant was in doubt as to whether it was. an action to recover damages for the careless and negligent management of the cars by the defendant’s employees, or a charge that the killing was wantonly- and cruelly inflicted, it could have ascertained such knowledge by a motion either to make the petition more definite and certain in this particular or by a. motion to strike out. The petition was sufficient to admit evidence that the injury was the result of the negligent conduct of defendant’s employees, and the. finding of the jury sustained that charge.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
The amended petition counted on a contract in writing that was pleaded for a lump commission amounting to three per cent, of the given value of the land. The allegation that the agreed amount for selling the land was the reasonable value of the plaintiff’s services in that behalf was immaterial, and not prejudicial to the defendant. The jury found against Jenkins on the question of a time limit to the contract, which finally disposed of that controversy. The same can be said of the authority of Beachy to sell one of the farms. His authority to sell the 240-acre farm was testified to by Jenkins.
Several questions were asked of a witness by counsel for defendant below which called for conclusions. The competency of such testimony was considered in the late case of Johnson v. Dysert, 70 Kan. 730, 79 Pac. 652. A buyer of land cannot be permitted to testify in a general way by giving his opinion as to which of two persons induced him to make the purchase.
The particular questions of fact numbered 13, 15, and 17, which the court refused to submit to the jury, if answered, would have involved a recitation by the jury of a large part of the testimony. Defendant, by these questions, in effect called for a special verdict. (Foster v. Turner, 31 Kan. 58, 1 Pac. 145.)
There was testimony sufficient for the consideration of the jury as to whether Beachy was the procuring cause of the sale. According to the testimony of Beachy, Mr. Jenkins asked him: “If I sell the farm to Stadt will you claim your commission?” With an affirmative answer to this question Jenkins afterward sold the farm to Stadt. We find no error in the case. The judgment is affirmed. | [
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Per Curiam:
The plaintiff in error brought suit in the district court of Scott county to set aside a tax deed, and for damages. Issues were joined and a trial had, of which the journal entry of judgment recites:
“Thereupon the plaintiff introduced his evidence and rested, to which evidence the defendants filed a demurrer, which was by the court, after due consideration, sustained, on the ground that the tax deed referred to in the plaintiff’s petition is by the court found and adjudged to be regular in form and valid on its face, to have been of record in the office of the register of deeds of Scott county more than five years prior to the commencement of this action, to have been recorded within six months from its date, and that defendant Edna O. Peck took possession under such deed within two years from its date, and for no other reasons.”
The tax deed was in evidence, and purports to convey three separate tracts of land. It recites the sum offered at the sale for each separate tract, being “the whole amount of taxes, interest, penalty and costs then due and remaining unpaid,” and also recites “and payment of said several.sums, aggregating the sum of seventy-eight dollars and ninety-five cents, having been made.” The true aggregate of these sums is $85.95, which is $7 more than the amount recited as paid by the purchaser. The officers had no authority to accept less than the full amount, and the receiving of less renders the tax deed void on its face. (Douglass v. Lowell, 60 Kan. 239, 56 Pac. 13.) But, it is said, this is merely a clerical mistake. There is no evidence other than the deed of the amount really paid. Probably other evidence would not be'admissible.
Again, chapter 248 of the Laws of 1889 (Gen. Stat. 1901, sec. 7677) requires the county clerk, when he includes more than one tract or parcel of land in one deed, to state “the amount of tax, interest and penalty for which each separate tract is sold and conveyed, the sum of which separate amounts shall be the gross or aggregate consideration of the deed.” The deed in question recites the sum paid by the purchaser as taxes on each of the three tracts for the two years following the purchase. It does not, however, recite the separate amount for which each tract is conveyed. This omission also renders the deed void on its face. (Gibson v. Kueffer, 69 Kan. 534, 77 Pac. 282.)
The order and judgment of the district court are reversed, and the case is remanded. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff is the owner of the minerals in certain lands in Crawford county, and was such owner in 1898. The fee to the surface of such lands was then, and is now, in others. In that year the minerals were assessed for taxation and the taxes regularly extended on the tax-rolls of Crawford county. In 1899 the county treasurer sold these minerals for the unpaid taxes of 1898, and issued tax-sale certificates therefor to the purchasers. In the spring of 1902 he published the statutory notice of final redemption and deeds to be issued on the 6th day of September, 1902. This suit was brought to restrain the treasurer from executing such deeds. The defendants filed a demurrer to the petition, which was sustained, and the plaintiff prosecutes error.
The petition in its allegations of fact was sufficient to cover all the contentions made by plaintiff in error, one of which is that the attempted assessment of such taxes and the extension thereof on the tax-rolls by the county clerk were unauthorized. There is no claim of irregularity.
It is contended that the minerals so assessed as the property of plaintiff were parts and parcels of the several tracts of land under the surface of which the minerals were deposited, and that each of these tracts was duly assessed as real estate for the year 1898 at its full value and as high as other mining lands in that vicinity; that the taxes on the lands of plaintiff were fully paid for the year 1898, and that the valuation and assessment of the surface was in excess of the fair value of the land. The statute which provides fol taxing this character of property reads:
“That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the 1st day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves; provided, that when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.” (Laws 1897, ch. 244; Gen. Stat. 1901, §7588.)
Plaintiff contends that this act is void because it provides for an unequal and inequitable valuation and assessment. Its counsel construe the act to mean that when the fee to the surface of the land and the minerals thereunder are in one person the minerals are not taxable; that it is only when the fee is in one person and the ownership of the minerals in another that they are subject to taxation. We do not so construe the act. The act in question does not repeal any of the tax laws in existence at the time of its passage, and is not intended as a substitute for any of the provisions of the general tax law. In prior laws provisions are found for the valuation and assessment of lands at their full value for the purpose of taxation. Such valuation should include the minerals when they are owned by the person who has the fee to the surface. Such laws were not changed by the present act. Tax laws are the growth of experience and the development of property. Changes must be made from time to time by amendments, repeals, alterations, or additions, as new conditions require, in order that all classes of property may be required to bear a just proportion of the public burden. The act under consideration was passed to meet a newly developed class of property or division of ownership of real estate in Kansas, by which lands came to be divided horizontally, as it were. But for this provision, it would be possible for a very large and highly valuable class of real estate to escape taxation.
It is also contended that the act contains no provisions for the ascertainment of the value of this class of real estate for the purposes of taxation. This suggestion is equally applicable to the taxation of real estate generally, in which the ascertainment of values is left to the judgment of the assessor. The idea suggests itself that, if the value of the minerals in the earth be ascertainable for the purpose of purchase and sale, it should not be difficult to arrive at their assessable value.
Contention is made that the owner of the fee paid the taxes on these lands for the year 1898 at their full assessed value and that the assessment of the minerals to the plaintiff is in excess of the fair value of the land. This is a question that does not concern the plaintiff. If the owner of the fee paid taxes in excess of the fair value of the lands he should have applied to the county board of equalization for a rebate.
In the case of Wren & Clawson v. Comm’rs of Nemaha Co., 24 Kan. 301, 305, it was said:
“All statutes in pari materia are to be read and construed together, as if they formed parts of the same statute, and were enacted at the same time.” (See, also, Bland v. Jackson, 51 Kan. 496, 33 Pac. 295.)
The act in question having been passed as supplemental to the general tax law it is a part thereof, and, if it be wanting in provisions for its enforcement, such provisions may be found in the general tax law of the state.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
In the appeal by John Casey from the decision of the probate court denying his right to purchase school-land the county superintendent was not a proper party defendant, nor was she an authorized representative of the state in the litigation respecting this school-land. The controversy here was between the state and the petitioner, and in the absence of a statute conferring authority upon the county superintendent she was without authority to enter an appearance for the state, or to bind it by any agreements or waivers that she might make. The state was not a party in the trial- court, and the case-made was not served upon any representative of the state. In this court the state is not made a party, nor has any one with authority to represent the state entered an appearance here or taken any steps to bring the state within the 'jurisdiction of the court. On the other hand, the attorney-general challenges the validity of the proceeding and the right of review here because of the absence of the state from the proceeding. There is nothing for us to review, and therefore the proceeding is dismissed. | [
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Per Curiam:
McDonald & Co. held a chattel mortgage upon a stock of goods owned by Grice. The Hutchinson Wholesale Grocery Company obtained a second chattel mortgage on the same stock, which by its terms recognized the priority of McDonald & Co.’s mortgage. Subsequently McDonald & Co. took possession of the goods. While their representative was absent from the store in which the goods were located Grice and one Dunnett, an attorney who had represented the grocery company in taking its mortgage, took possession of the store and stock of goods and excluded McDonald & Co.’s representative therefrom, and they then brought this action in replevin to recover possession. The entire contention turns about the question whether Dunnett was acting for the grocery company at the time, or for Grice, and whether it was the grocery company or Grice, or both, that took the possession away from McDonald & Co.
There is no question but that Dunnett assumed to act for the grocery company, but neither his acts nor words could be shown to prove his agency. Practically all of the questions in the case are solved if there was sufficient evidence of his agency produced to prove that agency if undisputed, or to go to the jury if disputed.
In this case there was little or no dispute as to the evidence that went to prove Dunnett’s representative authority, and we think this evidence abundant to establish it. It was probably out of an abundance of caution that the court submitted any question to the jury rather than to direct a verdict for the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
William R. Smith, J.:
Janes and Abernathy, executors of the will of William Ryley, deceased, brought an action against John E. Rundell to recover the amount of a judgment rendered against the latter in favor of Ryley, in Barton county, Missouri, in the sum of $726.61. An affidavit in garnishment was filed, and summons issued thereon to plaintiff in error. It was served May 2, 1901. Cooley answered that he held fifty shares of stock of the Cooley Land and Investment Company, a corporation, which were assigned to him as collateral security for the payment of a note of $1442.20 executed by John E. Rundell to him, and that the shares were of the par value of $5000; that the balance of the stock after paying this note was claimed by John A. Pope, by virtue of a bill of sale given to Pope by Rundell on the 18th of April, 1901. On motion of plaintiffs below Pope was made a party defendant. The court rendered judgment in favor of the plaintiffs against John A. Run-dell for $1208, and ordered that Cooley turn over to the clerk of the district court the stock in his hands at the time the garnishee summons was served on him, and also the remainder of an eighty per cent, dividend declared and paid on said stock, less the amount of indebtedness owing Cooley by Rundell, the stock and.money to be held by the clerk subject to further orders respecting its disbursement.
It appeared from the testimony of Cooley that a few weeks after he was served with summons in garnishment the Cooley Land and Investment Company sold all its assets and converted them into money. Thé capital stock of the corporation aggregated $25,-000. The property sold for $20,000, and this amount was distributed among the stockholders pro rata, in proportion to the holdings of each. The amount paid to Cooley was $4000, eighty per cent, of the face value of the stock held by him.
The principal contention of plaintiff in error is that inasmuch as under section 4647 of the General Statutes of 1901 a garnishee is liable only for property or money in his hands belonging to the principal de fendant, or for debts owing to- him, at the time of service of the garnishee summons, no part of the dividend of $4000 paid to Cooley after he was summoned as garnishee can be applied to the payment of the judgment against Rundell.
What counsel is pleased to call a dividend was not such, however, in the ordinary meaning of the term. Instead of paying a dividend from earnings in the usual way the corporation made a division of its entire assets, represented by the capital stock. The stock in the hands of the garnishee when he was' served with process was worth $4000. If he can hold the so-called dividend for that amount exempt from liability to the garnishing creditor the latter will get nothing on his debt, although at the time he garnished there was stock of ample value in the hands of Cooley to pay his claim. The garnishee must account for the actual value of the stock in the corporation at the time the garnishment summons was served on him. We are clear that the statute on which plaintiff in error relies does not help him under the facts in this case. (Norton v. Norton, 43 Ohio St. 509, 3 N. E. 348.)
It is contended that there was no judgment against the principal defendant before the garnishee was adjudged to be liable, bringing the case within Leviz-Zukoski v. Bank, 63 Kan. 550, 66 Pac. 638.) The judgments against Rundell, principal defendant, and against Cooley as garnishee, were rendered at the same time, and both appear in the same journal entry. Rundell made no appearance. He was served by publication. The question now raised seems not to have been presented to the court below. It does not come, to us with any force or merit.
These proceedings in error are evidently prosecuted in the interest of Pope, who is not a party in this court. Four of the nine assignments of error set out rulings of the trial court of which Pope alone complains. We cannot consider them. It seems quite clear that Cooley, the plaintiff in error, has not been prejudiced by the action of the court below, for the amount of his debt against Rundell was secured to him by its final order.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith,'J.:
The evidence upon the hearing of the motion to dissolve the attachment being all in writing, we have carefully examined it, and cannot reach the conclusion thereon that the trial court did. The grounds for the attachment were denied under oath, which placed the burden of sustaining the attachment upon the plaintiff. While there is some evidence tending to show that the defendant, with his family, had abandoned his homestead and residence in Topeka, Kan., and had acquired a residence in Enid, Okla., there is very much evidence to the contrary. Indeed, the entire effect of the evidence impresses us with the idea that the defendant was unsettled at the time of the commencement of the action; that while he and his family were absent from the state they contemplated returning and again occupying the property attached as their home. At least it must be said that the plaintiff failed clearly to establish the alleged fact of the abandonment of the homestead and change of residence.
The plaintiff in error complains of the ruling of the court excluding the affidavit of Mrs. Elliott on the hearing of the motion to dissolve. Under the deci sions of this court Mrs. Elliott had a joint interest in the property, if it was their homestead, and she might on application have been made a party defendant, but this was not done. Hence she did not come within the exception named in section 4771 of the General Statutes of 1901, which, so far as applicable to this case, renders the wife incompetent to testify for or against her husband except when they are joint parties and have a joint interest in the action. She was not a joint party.
By numerous decisions of this court, particularly Palmer v. Parish, 61 Kan. 311, 59 Pac. 640, and Garlinghouse v. Mulvane, 40 id. 428, 19 Pac. 798, it has been held that the homestead-exemption laws of this state are to be liberally construed in favor of the homestead, and that the homestead can be appropriated for the payment of debts only upon clear and positive evidence of its abandonment as such. It is undisputed that the defendant and his family occupied the attached property as a homestead for many years, during a portion of which time the defendant was in business in Colorado, and that during the time he was in business in Colorado his family occupied the homestead; that his alleged change of residence to Oklahoma was only comparatively a short time before the commencement of the action; that the homestead had been rented only from month to month, for the reason that the defendant and his family might return at any time; and that some of their household goods were left in the house. Although the defendant had offered the homestead for sale, and had tentatively considered acquiring a home in Oklahoma in case he should be able to sell the homestead, there had been nothing in that line accomplished, and no home had been acquired elsewhere. The court erred in denying the motion to dissolve the attachment.
Upon the trial the court instructed the jury relative to the right of the plaintiff to maintain the action as follows:
“It is a little difficult to explain in detail to you what would constitute a doing of business within the state. The court could possibly do that better by a simple illustration. It is undisputed in this case that the plaintiff is engaged in the manufacturing and selling of farming implements. Now, if the plaintiff had a place of business in this state, sent its goods here, had some person in charge of that branch house, so to speak, and was there selling goods, that would constitute a doing of business within this state within the meaning of our corporation law; and if the plaintiff had agents employed to solicit orders in this state, and the agents, had authority to make contracts with the persons with whom they transacted business in such way that the contract became final, and was not subject to review by the authorities of the plaintiff company in the state of Missouri, but that when the order was taken it became a completed contract or transaction, except as to filling the order, then I instruct you that that would constitute the doing of business within the state, because the giving of the order, and the acceptance of it by the agent, would make a completed contract, and therefore would constitute the doing of business within the state in the meaning of our corporation law.
“But if you believe from the evidence in this case that the plaintiff was a foreign corporation, having its domicil in the state of Illinois; that it had a branch place of business in Kansas City, Mo.; that it sent out its agents through this state to solicit orders; that the orders, when taken, were subject to approval or rejection by the officers or agents of plaintiff company at its place of business at Kansas City, Mo.; that the order was not binding upon the company until it had been approved by such officers or agents at the office of the company in Missouri, and upon its approval the goods were then delivered to the common carrier as the goods of the purchaser, then I instruct you that that would not be the doing of business in the state of Kansas within the meaning of our corporation law; and the reason for that is that a contract of that kind would be a Missouri contract, and not a Kansas contract. If the contract was entered into in the state of Missouri, completed there, and the goods delivered upon the cars as the goods of the purchaser, then that is a Missouri transaction, and not a Kansas transaction. Or if persons living in Kansas should go to the plaintiff’s place of busines in Kansas City, and there make contracts with the plaintiff through its agents for the shipment of goods, and under the arrangement the goods were to be delivered on the cars at Kansas City as the goods of the purchaser under the contract, then that would be a Missouri transaction, and would not constitute the doing of business within the state of Kansas.
“Now, it is for you to say from the evidence in this case whether or not the plaintiff was doing business in the state of Kansas at the time of the commencement of this action, and had been for some time prior thereto.”
It is in evidence that the plaintiff was a corporation organized under the laws of the state of Illinois to engage in manufacturing agricultural implements in that state; that it had a branch house in Kansas City, Mo., in charge of an officer or managing agent, for the purpose of distributing and selling its goods; and that at the commencement of the action and for several years prior thereto it had in its employ five men, whose residences are not stated, traveling over the state of Kansas to secure orders from implement dealers of the state, which were generally signed by the dealers at their places of business in the state and directed the shipment of certain specified implements from Kansas City, Mo. These orders or contracts were on a printed form, one of which was introduced in evidence, and it was proved by the plaintiff below that the same form had been used by the company for a number of years. Among the conditions of the contract, the blanks in which were to be filled out in each case according to whether the dealer was an individual or a firm, are these:
“To secure the performance of this agreement on -part, - hereby further promise and agree to hold in trust for the benefit, and subject to the order, of Parlin & Orendorff Company, its successors and assigns, all of the goods heretofore received from it, until-have paid in full, in cash, all-obligations of whatsoever nature now due, or yet to become due, to. the said Parlin & Orendorff Company, and — do hereby further agree that the title and ownership to, and the right of possession of, all goods shipped by said Parlin & Orendorff Company, or received by-under this contract, shall remain vested in said Parlin & Orendorff Company, until the purchase-price therefor or any promissory notes given by-for such purchase-price shall have been fully paid by-; and further to secure said Parlin & Orendorff Company we also hereby agree to keep the said goods insured to at least seventy-five per cent, of their value; loss, if any, payable to said Parlin & Orendorff Company as its interest may appear. . . .
“The party making this order hereby agrees that all future orders sent by-to Parlin & Orendorff Company, whether oral or in writing, and whether so expressed or not at the time the order is given, shall be governed by, and settlement for all goods shipped under such future orders shall be made in accordance with, the terms of this order. . . .
“This contract is not binding upon either party until acceptance is made and indorsed hereon by Parlin &■ Orendorff Company, a corporation, through its manager, at its office in Kansas City, Mo.”
It is also in evidence, and uncontradicted, that when a dealer in Kansas made a settlement with the Parlin & Orendorff Company for goods so ordered and received an agent was sent from Kansas City to the place of business of the dealer in Kansas, with a statement of the account, and the accounts were checked up and the dealer paid to the agent the cash for the balance found due to the Parlin & Orendorff Company, or gave a note for the same, as the case might be. If notes were given, they were made payable in Kansas City, Mo., to the Parlin & Orendorff Company. If the agent and the dealer had any difficulty in the settlement, it was then subject to approval or disapproval by the house in Kansas City.
Can it be said as a proposition of law that goods shipped under the written contract, parts of which are herein quoted, were delivered to the carrier in Kansas City, Mo., as the property of the dealer in Kansas? Or can it be said as a proposition of law that the employer in sending men over the state of Kansas to make such contracts with implement dealers in the state is not doing business in the state of Kansas ? Or can it be said that the sending of agents to the state of Kansas to settle accounts and to receive cash or promissory notes in settlement thereof is not doing business within the state of Kansas? We are obliged to answer all these questions in the negative. x If these questions should not be answered affirmatively, as a question of law, they should have been submitted to the jury under proper instructions to be answered as questions of fact.
Paraphrasing the language of Mr. Justice Peckham in the case of Lumbermen’s Insurance Co. v. Meyer, 197 U. S. 407, 25 Sup. Ct. 483, 49 L. Ed. 810, we think it would be somewhat difficult for the plaintiff to describe what it was doing in Kansas, if it was not doing business therein, when sending its agents into the state to perform the various acts of adjustment provided for by its contracts and made necessary to carry them out. When the plaintiff shipped goods to dealers in Kansas under the contract, which we assume was good between the Parlin & Orendorff Company and the dealer, the title and right to possession of the goods remained in the company until the dealer paid for them; and, supposing that the dealer paid an agent of the company sent to Kansas for the purpose of making settlement of the claim, the payment being made in Kansas, was not the real sale of the goods made in Kansas? We think it was. The method of business of the plaintiff company seems to have been that it shipped its goods to the dealer ordering them with the understanding that the dealer should pay the freight, hold the goods as the property of the company, sell the same, and have as his profit all that he received over and above the price at which the goods were listed to him. If so the Kansas dealer was virtually the resident agent of the Parlin & Orendorff Company for the sale of its goods — that is, as between the company and the dealer, and we are not called upon to determine the effect of the contract as between the dealer and any third party or as between the company and any third party.
The instruction of the court assumed that the company delivered the goods to a carrier in Kansas City as the property of the dealer, which, under the terms of the contract, seems an erroneous assumption. At any rate the instruction is too narrow, eliminating questions of law upon which the jury should have been instructed, and withdrawing from the consideration of the jury facts which it was proper for them to consider.
It is contended on the part of the defendant in error that section 1283 of the General Statutes of 1901 was repealed by chapter 150 of the Laws of 1903. This is untenable; at least so far as this case is concerned. By the very terms of section 3 of chapter 150 the provisions of the chapter did not become operative until February, 1904, which was after the trial of this action.
The case is remanded, with instructions to sustain the motion to dissolve the attachment and to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Upon an information containing four counts H. N. Bundy was prosecuted for violations of the prohibitory liquor law. Three of the counts charged unlawful sales of intoxicating liquors, and the fourth charged the maintaining of a nuisance. He was convicted upon the second and fourth counts. There was a motion to quash the fourth count because it alleged the keeping of a place at a past time, and sales and other acts in the place at a present time. The motion was erroneously denied, and the defendant was then arraigned, and, declining to plead, a plea of not guilty was entered for him. After the jury had been impaneled and sworn the court, upon application of the state, and over the objection of the defendant, permitted an amendment of the fourth count of the information showing that the acts constituting the offense were contemporaneous. Immediately the defendant moved to quash the amended information, and when this was denied he was again arraigned and required to plead to the amended information. He then asked for a continuance of the trial because of the amendment, but this was denied.
The first and principal ground of complaint is upon the ruling allowing an amendment of the information after arraignment and the organization of the jury. As it originally stood the information was defective. (The State v. Chiles, 64 Kan. 453, 67 Pac. 884.) The amendment was matter of substance. Without it an offense was not sufficiently charged. Section 72 of the criminal code places limits upon the power to amend informations. It provides:
“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. No amendment shall cause any delay of the trial, unless for good cause shown by affidavit.” (Gen. Stat. 1901, §5513.)
Under this provision the amendment might have been made before the plea of not guilty was entered for the defendant, but on the trial the information can only be amended in matters of form, and not then unless it can be done without prejudice to the rights of the defendant. In a number of cases a liberal rule has been applied in amending criminal charges and many defects have been treated as matters of form and immaterial. (The State v. Cooper, 31 Kan. 505, 3 Pac. 429; The State v. Beatty, 45 id. 492, 25 Pac. 899; The State v. McDonald, 57 id. 537, 46 Pac. 966; The State v. Bugg, 66 id. 668, 72 Pac. 236; The State v. Coover, 69 id. 382, 76 Pac. 845.) Here there was a defect in the description of the offense. Because of the lack of concurrence of time in the acts done by defendant the charge was incomplete and insufficient. To perfect the charge, or rather to state a public offense, it was necessary to insert essential allegations that were more than matters of form.
It seems to be conceded by the state that the information was amended in matter of substance, but it is claimed that as the defendant was rearraigned and required to plead again, after the amendment was made, there was a compliance with the statute which allows such amendments before plea. If it were granted that after the plea the court could ignore the proceedings on the defective information, retrace its steps, and begin anew upon the amended information, it could not be said that the court’s action was without prejudice to the rights of the defendant. A jury had been impaneled and sworn to try the case before the amendment was made, and this jury was retained. He was tried by a jury selected when the offense of which he was convicted was not charged against him. In this, respect the court did not begin anew, and he was compelled to accept a jury selected when the charge made against him did not constitute a public offense. One of the most important steps in the prosecution, therefore, was taken after the first plea and before the second was entered. When the first plea had been entered and the jury impaneled and sworn the defendant was placed in legal jeopardy, and it was surely too late then substantially to change the charge against him. Having answered the charge, and the jury having been sworn to try the issues as presented, a new issue could not be introduced and tried. After the trial has begun and jeopardy has attached the defendant has a right to insist that the case shall proceed to a final result, and if he cannot be convicted upon the information as it stands when the trial commences he is ordinarily entitled to an acquittal. The statute, however, controls, and it in effect prohibits an-amendment in matters of substance after the defendant pleads. It is clear that the amendment in this case was important and cannot be treated as a mere matter of form, and hence the court erred in permitting the amendment after the entering of the plea and the impaneling of the jury.
As the conviction upon the fourth count is invalid it is unnecessary to consider other objections to the conviction under that count.
There remains the conviction for an illegal sale. Objections were made to the testimony of witnesses because their names had not been indorsed upon the information. Attached to and filed with the information were the sworn statements of these witnesses of violations of law charged against the defendant. He was, therefore, not only advised that they were witnesses against him, but also as to what their testimony would be. The method pursued put him in a better position than would the mere indorsement of their names on the information. There was no prejudice to the defendant in failing to write their names again on the back of the information, nor was there any abuse of discretion by the court in allowing them to testify.
Other objections are made to the testimony which are deemed to be immaterial.
In instructing the jury the court stated that they could not consider evidence of violations of law, except within two years of the commencement of the prosecution, and inadvertently named a date about two weeks later than the commencement of the prosecution. As there was no evidence offered of sales made by defendant between the commencement of the action and the later date he sustained no prejudice by the instruction. It had the effect of shortening the period of limitation within which evidence of violations might be considered.
It is finally contended that the jury were not instructed in writing, as the law requires. It appears that the instructions were reduced to writing and read to the jury, but that they were not given to or taken by the jury to the jury-room. The statute provides that “the judge must charge the jury in writing, and the charge shall be filed among the papers of the cause.” (Crim. Code, §236.) Although the. statute does not specifically require that the written instructions shall be sent with the jury to the jury-room it is believed to be a common and proper practice. In The State v. Bennington, 44 Kan. 583, 25 Pac. 91, it was said that one of the beneficial purposes of written instructions was that the jury might take them to the jury-room so as to settle among themselves any misapprehensions of the language of the court, or difference of opinion or want of recollection as to what the instructions were. Some attempt was made to show that a question arose in the jury-room as to what the instructions really were, and that the jury asked for a rereading of the instructions, or that they be delivered to them so that they might use them in deliberating upon the case, but that neither was done. There appears to be a dispute of fact in the record as to this matter, and as it appears’ to have been settled against the contention of the appellant it is not open for our consideration. If a request for the instructions or for a rereading of them had in fact been denied there might be cause for complaint, but if no such request was made the mere fact that the instructions were not sent to the jury-room when the jury retired affords no ground for reversal.
The judgment upon the second count of the information, therefore, is affirmed, but the conviction under the fourth count, being invalid, is set aside.
All the Justices concurring. | [
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Per Curiam:
It is insisted by the plaintiff in error that certain special findings are not supported by the evidence, are against the undisputed evidence, and are inconsistent with each other. The facts involved were many, intricate, and hard to settle. Much evidence was submitted in their elucidation. A very wide latitude must necessarily be given the jury in their determination. As to one or two of the special findings, it may be said that very little, if any, evidence seems to support them. They are, however, subordinate and not necessarily involved in the general verdict.
A consideration of the entire evidence leads us to the conclusion that the essential findings of the jury were warranted by the evidence, and that the general verdict is well sustained thereby; and having received the approval of the trial court neither will be disturbed by us. Nor do we find any fatal variance in the special findings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of ejectment to recover a.strip of land 100 feet wide that had been obtained from Joseph Simmons by the Chicago, Kansas & Western Railroad Company, and subsequently sold by the railroad company to John H. Abercrombie. In 1887 the railroad company surveyed and staked out a route for a railroad through- Mitchell county, and on July 13 of that year, when about to begin construction of the railroad over the land owned by Joseph Simmons, it purchased from him the strip of land that is the subject of this action. The conveyance that he made was in form a general warranty, wherein the property was described as “all the land in the southwest quarter of section fifteen (15), township nine (9) south, of range seven (7) west, lying within fifty feet of the center line of the main track of said railroad, and containing six and twenty-three-hundredths (6.23) acres, more or less.” A week later —on July 20, 1887 — the railroad company made a map and profile of the route intended to be adopted, which was subsequently filed in the office of the county clerk. The railroad was never constructed, nor even graded, over the Simmons land. The entire quarter-section was enclosed and cultivated by Joseph Simmons while he lived, and it has remained in the exclusive possession of J. N. Simmons and Laura Simmons, who became the owners of the tract. The railroad company, however, paid taxes on the strip of land until April 28, 1898, when it executed a deed purporting to convey the strip to the plaintiff, describing it as it was described in the deed from Simmons to the railroad company.
Later, in 1903, the plaintiff asserted a claim of ownership to the strip of land through the quarter-section, and as his claim was denied he brought this proceeding to enforce it. The trial court found upon the facts, which were mainly agreed to, that the strip of land was conveyed by Simmons and received by the railroad company for use as a right of way for a railroad, and that the plaintiff was not entitled to recover.
It is insisted by the plaintiff that the railroad com pany acquired an absolute title to the strip of land, and that nothing less was conveyed to him. The defendants contend, first, that the deed of Simmons to the railroad company was so indefinite in the description of the property conveyed as to be defective, and, second, that if the description be held to be sufficient and the instrument valid it did not convey anything more than a right of way, and hence when it was not used for that purpose it reverted to the original owner, or to those holding under him.
It is claimed that it was impossible to locate or identify the land from the description given; that the description of a part of a quarter-section “lying within fifty feet of the main track of the railroad” furnished no means of identification, where, in fact, no railroad had been built. The agreed facts, however, show that prior to the execution of the deed the company contemplated the construction of a railroad over this land, and had actually surveyed and staked out a route and line. The map and profile of the route was in the course of preparation, and was completed a few days later, and this was the one that was filed with the county clerk. The company was negotiating for land upon which to construct and operate a railroad. It had marked out on the face of the land the line or track where it proposed to build. The owner sold it to the company for that purpose, and obviously both parties contracted with reference to these facts. In construing a doubtful description in a conveyance the court must keep in mind the position of the contracting parties and the circumstances under which they acted, and interpret the language of the instrument in the light of these circumstances. When so construed we may fairly say that, as the only way of locating the strip was by a resort to the line that had been surveyed and staked out by the company as the statute authorized, the parties contracted with reference to this survey and it may be looked to as a part of the description. Under the principle that that will be considered certain which can be made certain we can look not only to the survey but also to the map and profile made by the company.
In D. M. & A. Rly. Co. v. Lockwood, 54 Kan. 586, 38 Pac. 794, the court considered a description in a deed that was attacked for indefiniteness, and which purported to convey fifty feet on each side of a center line of a route that had been surveyed, staked, and located. It was skid that “the law will not declare a deed void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain,” and following this rule the court held the deed to be valid. (Tucker v. Allen, 16 Kan. 312; Seaton v. Hickson, 35 id. 663, 12 Pac. 22; Thompson v. Motor Road Co., 82 Cal. 497, 23 Pac. 130; Penna. R. R., Appellant, v. Pearsol et al., 173 Pa. St. 496, 34 Atl. 226; Crafts & another v. Hibbard & another, 4 Metc. [45 Mass.] 438; Oxford v. White, 95 N. C. 525; Horton v. Murden, 117 Ga. 72, 43 S. E. 786; Armstrong v. Mudd, 10 B. Mon. [49 Ky.] 144, 50 Am. Dec. 545; Lohff v. Germer, 37 Tex. 578; McPike v. Allman, 53 Mo. 551.)
Was the interest that the railroad company acquired by the deed one that it could convey to plaintiff? The general rule is that in the absence of charter or statutory restrictions corporations may take, hold and convey land for any purpose not inconsistent with the objects for which they were created. It is competent for the legislature to prescribe the purpose for which land may be acquired and held by corporations, and in this state the legislature has conferred on such corporations the power “to take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railway; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only, and to purchase and hold, with power to convey, real estate, for the purpose of aiding in the construction, maintenance and accommodation of its railway.” (Gen. Stat. 1901, §1316.) Aside from this provision there is in the same section authority given to enter upon the lands of others for the purpose of selecting and surveying a route for a proposed railway, and in that connection to lay out a road not exceeding 100 feet in width, and a greater width where the proper construction of the road requires it. It is provided, too, that a map and profile of the route intended to be adopted shall be made, and that notice shall be given to all occupants of .lands on the designated route that have not been purchased or donated. (Gen. Stat. 1901, §§1318, 1319.) There is another provision for obtaining land for a right of way by compulsory process under the power of.eminent domain. (Gen. Stat. 1901, §§1359-1365.)
The statutes recognize that land for a right of way may be acquired by purchase as well as by compulsory proceedings. When so purchased for that purpose does the railroad company hold a higher or better right than where it is acquired by virtue of eminent domain? May a railroad company purchase a strip of land extending a great distance through the country and over many farms, abandon the enterprise, and then sell the strip to those who will put it to a wholly different use — one that might be both obnoxious and menacing to the adjoining owners? Where an absolute and unqualified fee-simple title is acquired by a railroad company it may of course, in the absence of express or implied restrictions, be conveyed to another. After stating this rule Judge Elliott remarks:
“But where there is an implied restriction, as is often the case in regard to.the right of way, or the like, of a railroad company, the grant does not ordinarily vest a fee in the company, but vests such an estate, usually an easement, as is requisite to effect the purpose for which the property is required. Where the grant is of ‘surplus real estate,’ as it is often called, that is of real estate not forming part of the railroad or its appendages, a deed effective to vest a fee in a natural person will vest that estate in a railroad company.” (2 Ell. Rail. §400.)
The fact that the deed contains covenants of warranty, or that the right acquired is designated as a fee, is not necessarily controlling. In Jones v. Van Bochove, 103 Mich. 98, 61 N. W. 342, consideration was given to a conveyance of a strip of land that was described as a right of way for a railroad between certain points, and although the instrument was in the form of a warranty deed it was held that an absolute title was not conveyed. In The Cincinnati, Indianapolis, St. Louis and Chicago R’y Co. v. Geisel, 119 Ind. 77, 21 N. E. 470, there was a deed releasing and quit-claiming to a railroad company a right of way eighty feet wide through a certain tract of land, and it was held that the company did not acquire the fee of the land. In the opinion it was said:
“It does not follow that because a railroad company may take an estate in fee, or a right of way of a defined width, it does take such an estate, or such a right of way, for parties may by their contract create a less estate than a fee, or a right less in extent than that which the law authorizes the grantee to acquire. (Indianapolis etc. R. R. Co. v. Reynolds, 116 Ind. 356.)”
In the case of Hill v. Western Vermont R. R. Co. et al., 32 Vt. 68, 74, it was said:
“A contract to convey land for a particular use, or to a party having capacity to acquire a certain estate in land for a particular use, must of necessity carry the implication of such limitation upon the estate to be conveyed.”
In Norton v. London and Northwestern Railway Co., L. R. 9 Ch. D. 623, the railroad company acquired a fee to a strip of land for a right of way. A question arose as to the right of the railroad company to erect a blind, or barrier, to obstruct the view from a building of an adjoining owner, and it was held that although the company held the fee to its right of way it held it “in that qualified manner- in which land taken for particular purposes is taken,” and that “they had only a' right to the fee simple of the land for the purpose for which they acquired it, namely, the construction and perpetual working of the railway,” and for that reason the right to build the barrier and obstruct the plaintiff’s view was denied. In the same case it was also held that an abandonment-of a portion of the right of way operates to vest that portion in the owner of the adjoining land.
In the case of N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83, 32 N. E. 50, 17 L. R. A. 516, a jdispute arose between a landowner who had conveyed land along a water-front in fee to a railroad for a right of way and the railroad company — whether such owner of the land not conveyed was a riparian owner, or whether the right had passed to the railroad company. The decision was against the railroad company, and the court held that although the railroad company received title to its right of way—
“in fee simple by the voluntary grant of the former owners, ... by the provisions of the statute it holds such real estate and can use it only for the purposes expressed in its charter, that of the maintenance, construction and accommodation of the railroad. For this purpose only the land can be used, and although the title granted to the company is a fee, yet as thus burdened and restricted, we think the grantor in conveying the strip did not thereby cease to be the owner of the upland within the meaning of the statute.
“The conveyance to the railroad of the strip in question is in its effects entirely unlike the conveyance to a private individual in fee simple. In the latter case, it may well be, the grantor even of so narrow a strip would lose his character of riparian owner and the grantee would acquire it. But when we con sider the purpose of the conveyance to the railroad and the limitations to its use which the statute itself placed upon the company, it becomes entirely plain that the grantor ought not to lose his character of riparian owner where he retains the property immediately adjoining that which he conveys.” (Page 95.)
In Chouteau v. The Mo. Pac. R’y Co., 122 Mo. 375, 22 S. W. 458, 30 S. W. 299, land was conveyed to a railroad company by general warranty deed for railroad purposes, and it was held that the company did not acquire a fee in the land, and, further, that the conveyance by the husband extinguished the inchoate right of -dower of the wife in the land, although she did not join in the conveyance. In effect this was a following of the ruling made in Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426.
In Uhl v. Railroad Co., 51 W. Va. 106, 41 S. E. 340, there was a contract for the execution of a deed conveying a strip of land for a right of way in fee simple, and it was held that the words “right of way” in a grant to a railroad company mean an easement and do not pass the absolute title, and that the railroad company did not take oil or other minerals under the land.
The supreme court of Iowa, in The Ottumwa, Cedar Falls & St. Paul R’y Co. v. McWilliams et al., 71 Iowa, 164, 32 N. W. 315, held that a contract that recited that certain land was to be conveyed to a railroad company for a right of way, and also that it should be conveyed by deed in fee simple, was a contract for. a right of way merely, and not for a fee-simple title to the land. (See, also, The People v. White, 11 Barb. [N. Y.] 26; Cleveland, Columbus, Cincinnati and Indianapolis R. W. Co. v. Coburn et al., 91 Ind. 557; Pipe Line Co. v. D. L. & W. R. R. Co., 62 N. J. Law, 254, 41 Atl. 759.)
Now, as we have seen, the deed and’ those things to which we may look in "its interpretation plainly show that the strip was sold on the one part, and purchased on the other, as and for a right of way for a railroad. This use, being within the contemplation of the parties, is to be considered as an element in the contract, and limits the interest that the railroad acquired. It took the strip for a specific purpose, and could hold it so long as it was devoted to that pun-pose. Whether the right of way purchased should be designated as an easement or as a qualified or determinable fee may not be very important. A right of way, although commonly designated as an easement, is an interest in land of a special and exclusive nature, and of a high character. In speaking of its character the supreme court of the United States said:
“A railroad right of way is a very substantial thing. It is more than a' mere right of passage. It is more than an easement. We discussed its character in New Mexico v. United States Trust Co., 172 U. S. 171, 19 Sup. Ct. 128, 43 L. Ed. 407. We there said (p. 183) that if a railroad’s right of way was an easement it was ‘one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.’ ” (Western Union Tel. Co. v. Penn. R. R. et al., 195 U. S. 540, 570, 25 Sup. Ct. 133, 141, 49 L. Ed. 312.)
Whatever its name, the interest was taken for use as a right of way, it was limited to that use, and must revert when the use is abandoned.
We are not called upon to decide, nor do we intend to express an opinion, as to the rule applicable where lands are purchased or obtained without regard to the use to be made of them, or where there is nothing in the contract or conveyance indicating that they have been purchased for a right of way. Lands may be acquired by donation or by voluntary grant for aid in the building of railroads, and railroad companies may doubtless acquire lands for various uses in connection with railroad business that could not be taken by virtue of eminent domain, and as to these different rules may apply. It is intended to confine the decision to cases where the contract or conveyance shows that the land was sold and received for use as a fight of way for a railroad. The conclusion is that the plaintiff acquired no interest in these lands by the attempted conveyance by the railroad company to him, and, therefore, that the judgment of the district court is affirmed.
All the Justices concurring.
Clark A. Smith, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Greene, J.:
The contentions of the plaintiff in error are that inasmuch as Flint and Smith acquired the warranty deed and possession of the property from her under false and fraudulent misrepresentations and without consideration she still holds the equitable title, and that, as between her and them, the deed should have been set aside; that defendant in error, J. F. Kenney, took only the equities held by Flint and Smith, and, therefore, that the deed from them to him should have been declared void.
It is forcefully argued by counsel for plaintiff in error that a purchaser under a quitclaim deed can never be a bona fide purchaser as to any person owning an equity in the property, and, therefore, that whatever claim their client could have urged against the title of Flint and Smith in a suit against them to set aside her deed might have been relied on in this proceeding, as against their grantee by quitclaim deed. There are many outstanding equities to which the title of a quitclaim deed is subject, but it cannot be so declared of all such equities, in whomsoever they may exist. It might be found that equities exist in certain persons but their acts and course of conduct have been such that it would be unconscionable to enforce such rights against one holding in good faith by quitclaim deed. The determination of what equities are prior in right to the holder of the real estate under a quitclaim deed and whether they are held by persons in whose favor they should be enforced depends entirely upon the facts of each case.
The rights of parties holding real estate under quitclaim deeds, as against outstanding equities, have been considered by this court in the cases of Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243, and Merrill v. Hutchinson, 45 id. 59, 25 Pac. 215, 23 Am. St. Rep. 713. In the case of Johnson v. Williams, supra, 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 purchaser, but undiscoverable by the exercise of any ordinary or reasonable degree of diligence. ...
“We would think that in all cases, however, where a purchaser takes a quitclaim deed he must be presumed to take it with notice of all outstanding equities and interests of which he could by the exercise of any reasonable diligence obtain notice from an examination of all the records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon, or any person who might, from any record or from any knowledge which the purchaser might have, seemingly have some interest in the property. . . .
“A person who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he is a' purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries.” (Pages 181-183.)
The rule there laid down was followed in Merrill v. Hutchinson, supra. In this state the law is well settled against the contention that the title of the holder of real estate by quitclaim deed is subject to all outstanding equities.
Before the defendant in error purchased he examined the warranty deed which plaintiff in error executed. He applied to the notary public who took the acknowledgment of the deed and to the real-estate agent who witnessed its execution, both of whom assured him that, so far as their knowledge extended, the transaction was genuine and in good faith. He visited the property and found the grantees in possession and operating the plant. The diligence thus exercised by the defendant in error to discover outstanding equities was, in so far as plaintiff in error is concerned, within the rule of the above authorities and sufficient to protect his title against the claim of the plaintiff in error. The record not only failed to contain anything from which it could be ascertained that a possible equity remained in plaintiff in error, but the warranty deed was a solemn declaration that she did not claim any equities therein.
It is doubtful whether the principle attempted to be invoked by the plaintiff in error is applicable to the facts. Even admitting her extreme contention, that the title of the holder of real estate under a quitclaim deed is subject to all outstanding equities under all circumstances, yet it is not certain that she is in a position to invoke that rule. Might not the defendant in error rely on her solemn declaration in the deed that she did not have any interest in the property, together-with the possession of her grantees, and safely invest his money? Should she not be estopped from claiming any equity against him?
For the reasons first assigned the judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This is an action on a promissory note, begun by the plaintiff in error. An affidavit in attachment was filed, order of attachment issued, and the attachment was levied upon a certain tract of real estate. The defendant filed a motion to dissolve the attachment, and one ground of the same is the following :
“Second. No levy of said pretended order of attachment was ever made upon any property owned by this defendant.”
This motion was verified by the defendant. On the hearing of the motion the defendant was allowed to dismiss or strike out this ground of his motion. The defendant, however, could not strike out or dismiss the admission of fact which it contained, viz., that he did not own the attached property, and this fact was sufficient in itself to defeat his motion. (Mitchell v. Skinner, 17 Kan. 563.)
The order dissolving the attachment is reversed. | [
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The opinion of the court was delivered by
Cunningham, J.:
A question of practice first demands our attention. This case was tried upon the issues of fact joined on the 18th of September, 1902. At the close of the plaintiff’s evidence defendant interposed a demurrer thereto, which the court overruled. The case was then proceeded with, and the jury returned its general verdict and special findings in favor of plaintiff. In due time the defendant’s motion for judgment on the special findings was filed and denied, after which, his motion for a new trial coming on to be heard, the following proceedings, as shown by the journal entry, were had, on September 23, 1902:
“The court,' having considered said motion and heard the argument of counsel, doth allow the same on the ground following, and for no other ground: That the court committed error in refusing to sustain the demurrer filed and presented by the defendant to the evidence introduced by the plaintiff; the court holding that under the evidence presented the plaintiff was not entitled to recover, and that the case should not have been submitted to the jury.”
A new trial was thereupon ordered. From that order the plaintiff prosecuted proceedings in error to this court, where it was held that there was evidence sufficient to go to the jury on behalf of the plaintiff, and the order of the district court was reversed, with “directions to enter judgment upon the findings and verdict.” (Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466.) The case was taken up the second time by the district court on April 5, 1904, upon the motion of the plaintiff for judgment in his favor, as directed by the mandate of this court, and without further trial or proceedings of any kind judgment was so rendered for the amount of the verdict, with interest thereon at six per cent, per annum from the date of the verdict; that is, the judgment included not only the amount named in the verdict, but interest thereon up to the date of the judgment. To reverse this judgment the milling company prosecutes this proceeding, counting upon no other errors, with one exception, than such as were committed by the court during the trial of the case upon its merits in September, 1902; so that the question of practice is whether it may now be heard as to these matters.
It insists that prior to the rendition of the judgment against it on April 5, 1904, it, not having been previously harmed, had nothing of which to complain, and, hence, could not have maintained a proceeding in this court to reverse a judgment which had not been rendered; that the court having granted it a new trial it was satisfied therewith, and had a right to rest thereon until the result of such new trial should be known.
We cannot agree to these contentions. The action of the court in sustaining the motion for a new trial in September, 1902, for no other ground than that the court committed error in refusing to sustain the demurrer to the evidence, was in effect the denial of the motion upon all other grounds. That is the necessary implication. The determination of a motion need not necessarily be in explicit words; it may be implied. So the effect of this action by the court was to deny the motion in part and sustain it in part. (14 Encyc. Pl. & Pr. 171.) Now, the moment that the court denied or allowed the motion for a new trial in whole or in part, either party against whom such ruling was made might have come to this court for the purpose of having the same reviewed. One of them having done so with a complete case-made, the other might have had all of the adverse rulings of which he complains reviewed by attaching thereto his cross-petition in error and presenting them here. (Scully v. Smith, 66 Kan. 265, 71 Pac. 519.) We note the fact that in the former case the defendant in error, the present plaintiff in error, did attach a cross-petition presenting to some extent (it might have done so to the full extent) the errors now complained of, and in its brief supported the same to some extent (it might have done so to the full extent) by argument.
We cannot hear the plaintiff in error upon the questions arising upon his exceptions made during the progress of the trial on the merits, or upon the action of the court on the motion for a new trial, because: (1) It might have filed, and did file, a cross-petition in error, and hence was heard, or had an opportunity to be heard, when the case was considered before, and the questions are now res judicata; (2) even if this were not so, the plaintiff could not be heard because more than one year had elapsed after the denial of its motion for a new trial before it filed its petition in error. The correctness of.the denial of this motion by the court below is the question it now seeks to present here. “The order overruling the motion for a new trial, we think, was a final order within the meaning of said section 556 and section 542 of the civil code.” (Osborne, Ex’r, v. Young, 28 Kan. 774.) Such ruling was a judgment against plaintiff in error; not a money judgment to be sure, but a ruling against its claims of error. It was such a determination as to be harmful to it and from which it could then have prosecuted error, and, hence, the proceeding to reverse must have been begun within one year after the entry of the order of which complaint is made.
The further complaint, that the court erred in allowing interest upon the amount awarded by the verdict from its date to the entry of judgment thereon, we think is well taken. The statute has undertaken to regulate matters' of interest- — -when it shall be allowed, and its amount. (Gen. Stat. 1901, §8590.) We there find no authority to allow interest in cases of this kind, and the general rule is that interest upon awards for damages is not allowable. (K. C. Ft. S. & M. Rld. Co. v. Berry, 55 Kan. 186, 40 Pac. 288; A. T. & S. F. Rld. Co. v. Ayers, 56 id. 176, 42 Pac. 722; Railroad Co. v. Holmes, 68 id. 810, 74 Pac. 606; Telephone Co. v. Vandervort, ante, p. 101, 79 Pac. 1068.) The amount erroneously included in the verdict was $98.87; this amount will be deducted, and the judgment, so modified, will be affirmed. The costs of this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.':
From the foregoing statement of facts it will be seen that we are asked to compel Judge Snelling to do the identical thing which Judge Flannelly, of the district court of Montgomery county, has forbidden him to do. Strong reasons must necessarily be found to warrant any such anomalous order. These are found to the satisfaction of the relator in the following propositions: That injunction will nev.er lie to restrain the prosecution of a criminal action, and hence no magistrate can ever be enjoined from the issuance of a warrant for the arrest of an alleged offender; that, therefore, Judge Flannelly being without jurisdiction, the order of injunction was without force upon Judge Snelling, and was but a mere brutum fulmen, and not only might, but should, be ignored by the latter when applied to for process.
A very great majority of the cases found in the books, where application has been made to a court of equity for injunctions to restrain the prosecution of criminal actions, announce the doctrine that equity courts will not so interfere; especially is this true where it is sought by such suits to test the constitutionality or validity of the ordinance or law under which an alleged criminal is being prosecuted. The general doctrine is a very just, proper and correct one, and it is almost inconceivable that a court endowed with the high prerogatives of equitable jurisdiction would by their use interfere in the ordinary proceedings of criminal courts. It is true, however, that in some cases, rare indeed, equity courts have rightly interfered to prevent prosecutions of criminal actions. This is especially so where criminal proceedings are being prosecuted with a spiteful purpose, and in other cases for the purpose, and with the effect, of interfering with the property rights of the citizen. (The City of Atlanta et al. v. The Gate City Gas Light Co., 71 Ga. 106; P. & A. V. R. R. Co. v. Prowers Co., 5 Colo. App. 129, 38 Pac. 112; Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169.) We have yet to find a case where a refusal to enjoin is put upon a denial of the inherent power to do so.
However, this is all aside from the question involved, which is not whether Judge Flannelly, of the district court of Montgomery county, should have granted such injunction, but whether he had power to grant it. The question is not whether this court shall enjoin the officers of a criminal court from pro ceeding in a criminal case, but whether it shall direct one who has been so enjoined by a court having jurisdiction of the subject-matter, and jurisdiction of the person, to violate such injunction. The district court of Montgomery county had jurisdiction to issue injunction, and it had jurisdiction of the person of Judge Snelling. Whether Judge Flannelly improvidently or erroneously made the order of injunction in .question is beyond the scope of this discussion. It was made, and until its revocation in some proper manner it is to be obeyed. Any other rule would bring chaos into judicial proceedings, and clashing, worse confounded, between judicial tribunals.
This court has decided the matter in hand in the case of The State v. Hornaday, 62 Kan. 334, 62 Pac. 998, where in the syllabus it was said:
“Mandamus will not issue to compel the performance of an act the doing of which has been enjoined by another court vested with jurisdiction over the subject-matter and over the parties to the injunction proceeding, except that it may someimes issue in behalf of one who is not a party to the injunction, and whose rights can only be secured by its allowance.”
What we have said with regard to Judge Snelling applies with equal force to the county attorney, Mayo Thomas, and it seems that he, appreciating the force of these considerations, refrained from appearing in person to procure the issuance of the warrants, as it appears that Mr. Ziegler represented the state in the application. Admitting that this change of front was in all respects bona fide, it is not such a one as appeals with any great force to a court when asked to order the issuance of the discretionary writ of mandamus.
It is, however, urged by the relator, and this is probably the real ground of= his ' contention, that, granting the binding force ,of the orders made by Judge Flannelly upon the officers named as men, such orders do not and cannot bind the state of Kansas; that it was not a party, could not have been made a party, and could not have been bound had it been a party; and that, although Mayo Thomas, as county attorney, and thus representing the state, was enjoined from prosecutions, any other person may volunteer on behalf of the state to promote or effectuate such prosecutions notwithstanding the order of injunction. We think this would be but to juggle with judicial orders. No one but the county attorney, or the attorney-general on proper occasion, or persons deputized by them, may control prosecutions within a county. No claim is made that Mr. Ziegler was acting for the attorney-general. We may therefore fairly assume that he was acting for the county attorney in representing the state. We think, however, that where a prosecuting officer who under the law represents the state or a judicial officer who is an efficient part of the state’s machinery in effectuating the law has been enjoined in his official capacity from the doing of a given act,'it is substantially an injunction against the state.
In Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399, Mr. Justice Shiras, in speaking for the court, said:
“In the present case the commonwealth’s attorney, in the prosecution of an indictment found under a law admittedly valid, represented the state of Virginia, and the injunctions were therefore in substance injunctions against the state. In proceeding by indictment to enforce a criminal statute, the state can only act by officers or attorneys, and to enjoin the latter is to enjoin the state. As was said in In re Ayers, 123 U. S. 443, 497: ‘How else can the state be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?’ ” (Page 169.)
In the case of Arbuckle v. Blackburn, 51 C. C. A. 122, 113 Fed. 616, 65 L. R. A. 864, the object was to enjoin the food commissioner, an officer of the state of Ohio, from prosecuting certain alleged violations of a criminal law of Ohio, on the alleged ground of its unconstitutionality. In discussing the question now under consideration Judge Day said:
“This is virtually to enjoin the state from proceeding through its duly qualified and acting officers. If the food commissioner may be enjoined from instituting such prosecution, why may not the prosecuting attorney, or any officer of the state charged with the execution of the criminal laws of the state? While the state may not be sued, if the bill can be sustained against its officers it is as effectually prevented from proceeding to enforce its laws as it would be by an action directly against the state. This view of the case, in our judgment, is amply sustained by the cases above cited, and by the later case of Fitts v. McGhee, 172 U. S. 516, 43 L. Ed. 535, 19 Sup. Ct. 269, in which the subject is fully discussed by Mr. Justice Harlan.” (Page 130.)
If we shall by fine-spun theories be able to distin-' guish between the state in its intangible entity and as represented by its officers and agents, the fact still remains that orders of injunction were made, by a court having jurisdiction of the persons against whom they were made, by which these officers were forbidden to do certain acts, and that one of these officers is now here as relator seeking an order of this-court to compel the other officer to disobey such orders. This is sufficient reason, if none other exist, why we should refuse the discretionary writ of mandamus. If the district court of Montgomery county was wrong in granting the injunction let its action be reviewed by due proceedings. The writ is denied.
All the Justices concurring. | [
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Per Curiam:
The notices of appeal were- served on the county attorney and clerk of the district court on December 30, 1903. The bill of exceptions and transcript were filed in this court on March 28, 1904. Section 5722 of the General Statutes of 1901 provides that the transcript must be filed here within thirty days after the appeal is taken. (The State v. McEwen, 12 Kan. 37; The State v. Teissedre, 30 id. 210, 2 Pac. 108; The State v. Simmons, 64 id. 795, 68 Pac. 636.)
The case of The State v. Boyle, 10 Kan. 113, relied on by counsel for appellant, is not in point. There was no waiver of the notices of appeal in this case.
The appeal is dismissed. | [
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Per Curiam:
This action was brought to recover $12,500. The petition alleges that the plaintiff and defendant were equal owners of 100 shares of stock in a corporation organized for the purpose of manufacturing plowshares; that the stock was held in the name of defendant; and that, without the knowledge or consent of plaintiff, the defendant sold the 100 shares for $25,-000 and converted the money to his own use. The defendant demurred to the petition on the ground that it did not state a cause of action. The demurrer was overruled, and the defendant prosecutes error to this court. We think the petition is sufficient in its allegations of fact.
The judgment of the court below is affirmed. | [
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Per Curiam:
This is an action brought by a minor to recover damages because of personal injuries suffered by reason of the wanton negligence of the plaintiff in error. It is a companion case to Railway Co. v. Troup, 69 Kan. 854, 76 Pac. 859, in which the father of the injured boy recovered damages for the same injury here sued for. All of the errors complained of in that case are here again presented for review. No material difference appearing as to such claimed errors, that case will be followed. The errors complained of are as to the sufficiency of the evidence to identify the train that inflicted the injury as one operated by the defendant; to show authority in the fire man who expelled the plaintiff from the train to do so; to show wantonness on the part of the defendant, the injured boy being a trespasser; and as to whether the plaintiff was guilty of such contributory negligence as to preclude recovery.
However much we might be inclined to doubt the strength of the evidence upon these points, were the weight of evidence for us to pass upon, we may only say now that the jury have settled them against the contentions of the plaintiff in error, and their verdict has received the approval of the trial court. Brief attention will be given to the other questions presented:
(1) There was no error committed by the court in refusing to limit the inquiry as to the engine that did the injury to No. 439, although that number was testified to as being the engine that was in question. The number of the engine was not an essential in the inquiry. The jury might have found for the plaintiff even though they did not find that the engine in question was No. 439.
(2) In none of the criticized instructions was it assumed that the engine that did the injury was the defendant’s. That question was fairly submitted to the jury by the court.
(3) The complaint that the petition did not state a cause of action because it failed to charge that the fireman was acting within the scope of his employment is not well taken. The petition did state that at the time the injury was inflicted “the said locomotive was in charge, and under the control and management, of defendant’s servants and agents, who were respectively fireman and engineer thereon.” The allegation that the engine was under the management and control of the fireman by reasonable implication is an allegation that the fireman had a right to eject trespassers therefrom.
(4) We think there was no error in refusing to give instruction No. 12 asked by the defendant, or in giving No. 20 as the court did. The essence of the plaintiff’s claim was that some one acting as fireman, with the necessarily implied authority of a fireman, committed the wrongs complained of, and it mattered not whether technically he was a fireman or some other employee of the company temporarily engaged as such.
We have given the other alleged errors careful attention, but find in them nothing warranting a reversal. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Brashear sued Rabenstein for work and labor performed, money expended and lumber furnished for the defendant’s use and benefit, pleading his cause of action in the form of a common count. After issues had been framed, and a jury had been impaneled to try the cause, the plaintiff’s attorney made a statement of his case to the effect that Bra-shear had been a tenant of a farm under a lease; that Rabenstein purchased the farm while the lease was in force, and through an agent arranged to make some improvements on the land; that Brashear and Rabenstein’s agent orally agreed that Brashear should perform labor, furnish material, and board men without making any charge therefor, but by way of consideration he should have the farm so long as it was for rent and he should remain there; that Brashear performed his part of the contract, and had gotten into a house constituting part of the improvements when the defendant’s agent notified him that he could not have the farm longer; and that the defendant himself subsequently stated to Brashear that the farm was rented to another. Thereupon the defendant moved to exclude all evidence relating to the count in the petition referred to for the reason that the statement of plaintiff’s case precluded recovery upon it, and the court, over plaintiff’s objection, withdrew it from the consideration of the jury. The ruling is assigned as error, and it was erroneous.
In support of the court’s position it is said, in defendant’s brief:
“The plaintiff pleaded a good cause of action, but stated to the jury facts which, without additional facts, showed that he had no right to recover on the cause of action set out in his petition, and he failed to state the additional facts (if theré were any such) which would entitle him to recover. By his state ment he destroyed the force of his petition, and furnished nothing to take its place.”
In the case of Jenson v. Lee, 67 Kan. 539, 542, 73 Pac. 72, it was said:
“Pleading the common counts is still sufficient in this state finder the code as it was at common law. If the defendant desired a full statement of the facts constituting the plaintiff’s cause of action he should have moved to make the petition more definite and certain. (Meagher v. Morgan, 3 Kan. 372, 87 Am. Dec. 476; Water Power Co. v. McMurray, 24 id. 62; Barons v. Brown, 25 id. 410.) He failed to do this. Therefore the plaintiff was left at large in making his proof.”
The facts stated by the attorney for plaintiff are all compatible with a right to recover in quantum meruit for advancements made upon a contract which was unenforceable under the statute of frauds, and which the defendant refused to perform. They are not, therefore, in any sense destructive of the cause of action pleaded or repugnant to the abbreviated statement of the petition. They were, instead, entirely consistent with the pleading, and were constituents of the cause of action that it expressed in syncopated form. This being true, the circumstance that some facts essential to recovery were not narrated in the statement did not annihilate the pleading or foreclose the right to supply them by proof on a trial.
In view of the growing practice in some of the district courts of this state of testing the right of a plaintiff to recover by the preliminary statement of his case to the jury, it is proper to say that that stage of a trial need not be approached as the inevitable crisis of the lawsuit. That step in the proceedings may be entirely omitted without incurring any legal censure. If undertaken it is not indispensable that the facts be stated either with fulness or precision, and summary judgment for the defendant cannot be imposed as a penalty for failing so to do. On the other hand the plaintiff’s attorney may, if he so desire, merely sketch the outlines of the case, and he may make his sketch as meager and as partial as may suit his purpose. He may elaborate upon such facts as he may wish specially to impress upon the jury, and altogether omit as many others, vitally essential to recovery, as he may choose; and if he should negligently or even ignorantly fail to allude to one or more matters necessary to be proved his client could not be sent out of court for it. Besides being incomplete the statement may be indefinite and ambiguous; important facts may be left doubtful, and others may be suggested merely, or left wholly to inference. The pleadings, and not the statements, make the issues, and no matter how deficient a statement may be from an artistic standpoint, or what its shortcomings may be in the estimation of the critical attorney on the other side, the court is not authorized to end the case because of them unless some fact be clearly stated or some admission be clearly made which evidence relevant under the pleadings cannot cure, and which, therefore, necessarily and absolutely precludes recovery. (Lindley v. A. T. & S. F. Rld. Co., 47 Kan. 432, 28 Pac. 201; Telephone Co. v. Vandervort, 67 id. 269, 72 Pac. 771; Stewart v. Rogers, ante, p. 53.)
On the statement made in the present case the plaintiff, being without fault himself, is entitled to recover. (Wonsettler v. Lee, 40 Kan. 367, 19 Pac. 862; 29 A. & E. Encycl. of L. 836.) He could not have compelled specific performance because sufficient grounds for equitable interference did not exist. He was not obliged to wait for eviction under process. He could take the defendant at his word when the latter repudiated his obligations under the contract and immediately seek reparation in any form of action suitable for the purpose. That adopted (suit upon the implied contract which the law raised, in view of the defendant’s conduct) was entirely appropriate.
Therefore, the judgment of the district court is reversed, with direction to proceed further in accordance with this opinion.
All the Justices concurring. | [
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Per Curiam:
The plaintiff in this case is a private foreign corporation, and it was conceded upon the trial that it had not at the commencement of the action complied with the corporation laws of the state of Kansas, but it was proved that, prior to the trial of the case, it had complied therewith, and had received a certificate from the secretary of state evidencing that fact.
The sole question presented in this case is whether the corporation, not having filed the statement and procured the certificate required by law before the commencement of the action, could comply with the law thereafter and maintain the action. The court below decided this question in the negative and dismissed the action. The judgment is reversed on the authority of The State v. Book Co., 69 Kan. 1, 76 Pac. 411, Deere v. Wyland, 69 id. 255, 76 Pac. 863, and Hamilton v. Reeves & Co., 69 id. 844, 76 Pac. 418. | [
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The opinion of the court was delivered by
Mason, J.:
John T. Fields sued Jezreel Dewitt to recover upon a note for $10,000, the execution of which was denied. A verdict was returned and a judgment rendered against the plaintiff, who prosecutes error. The principal grounds relied upon for a reversal relate to comments upon the case made in the local newspapers during the trial, and to the conduct of the court in permitting the jury to separate after retiring for deliberation without receiving an admonition at the time of their separation, and in urging upon them the desirability of their reaching an agreement if possible. The trial took place in Lyon county, lasting'nearly a week, the jurors, of course, frequently separating. During this time two Emporia daily newspapers published articles relating to the case that were distinctly unfavorable to the plaintiff, not only by reason of opinions directly expressed or clearly indicated going to the merits of the controversy but also on account of the manner in which the proceedings were related. Several of these articles were of such a nature that perhaps the reading of any one of them by a member of the jury before verdict would of itself have furnished good ground for a new trial.
The plaintiff claims that there is a presumption that the jurymen did read them, and cites in support of the contention Meyer v. Cadwalader, 49 Fed. (C. C., E. D. Pa.) 32, and Morse v. Montana Ore-purchasing Co., 105 id. (C. C., D. Mont.) 337. The opinion in each of those cases was the announcement by the trial court of the reasoning by which it was impelled to grant a new trial, in the course of which it was said in effect that under the circumstances there present the court might be satisfied that certain newspaper articles published during the trial were seen and read by the jury although there was no direct evidence to that effect. What is spoken of as a presumption in this connection is merely an inference based upon the unreasonableness of any other conclusion. In a given case a trial court may be justified in believing that certain newspaper publications have been read by the jury although there is no direct evidence of the fact, and in acting upon that belief, but it does not follow that its failure to take that view may be held by a reviewing court to constitute error.
In the present case the question was not permitted to rest upon circumstantial evidence only. Eight jurors made affidavit that they had read none of the articles in question. This not only exonerated these particular jurors from the charge of individual misconduct, but tended to allay suspicion against the others by confuting the argument that the publications were made so broadcast that they could not have escaped the observation of any one interested in the matter. Each of the remaining four jurors made affidavit that he had read all or a part of some one newspaper comment on the trial. There was no showing, however, that the articles that were read in whole or in part, or any of them, were of the number mentioned in the motion for a new trial and complained of by the plaintiff. In the case of two of them the contrary is made to appear affirmatively, in one instance by the date of the publication of the article read, and in the other by its title. In the case of the other two the record is silent on this subject. Beyond the mere fact that the articles read related in some way to the trial there is nothing to indicate their contents. This is not sufficient in itself to require the setting aside of the verdict. (17 A. & E. Encycl. of L. 1248.) Misconduct of the jury is not to be pre sumed. (17 id. 1206.) It is incumbent upon the party-alleging it to prove it. There was a showing that some objectionable articles were published, and that some articles relating to the case were read by jurors; but there was no direct evidence that any of the objectionable articles were read, and it cannot be said that the court erred in not drawing that conclusion from the attendant circumstances. There was no evidence whatever that any of the articles that were shown to have been read were objectionable.
Upon the publication of the first of the objectionable articles the plaintiff called the attention of the court to the matter, and asked that steps be taken “by admonishment of the jury and of the editors and reporters, or by contempt proceedings, to prevent injury to the plaintiff by any successive articles of a like nature.” The court duly cautioned the jury against being influenced by newspaper comment but refused to take any other action in the matter, and this refusal is assigned as error, being characterized as an abuse of discretion which prevented a fair trial. Inasmuch as, for reasons already given, we hold that no prejudice is shown to have resulted to the plaintiff from any of the publications that were made at any time, the failure of the court to take the action requested cannot be deemed to have injured the plaintiff, even if it could under any circumstances have constituted a ground for reversing the judgment.
Complaint is also made of the fact that the affidavits of the four jurors who had read some newspaper comment on the case included statements that what they read did not in any way influence their verdict. The court announced that it gave no weight to these statements, regarding them as incompetent, and formally sustained an objection to their consideration. The question of their admissibility is therefore not presented.
The case was submitted to the jury at about half- past five o’clock on a Saturday afternoon. At that time the court told the jury that if by six o’clock they had not arrived at a verdict they might then separate, and reassemble at half-past seven, and also gave them the admonition required by the statute as to their conduct during the separation thus expressly provided for or any that might take place later. The jury were allowed to separate and remain apart from six o’clock until half-past seven, and again from eleven o’clock on Saturday night until nine o’clock on Monday morning, without being called into court and having the admonition repeated to them. It is contended that these facts require the granting of a new trial, upon the authority of Pracht v. Whittridge,44 Kan. 710, 25 Pac. 192. There a new trial was ordered because of the omission of the court to admonish the jury with reference to several separations that were permitted after they had retired for deliberation. A number of separations had occurred before the case was submitted, and upon each of these an admonition had been given relating to that particular occasion, but the jury were not told then or at any time that they were to observe the same rules upon all future separations or upon any of them. The decision goes no further than to hold that the statute is mandatory, and that where the jury are allowed to separate after the submission of the case to them, without at any time having received an admonition covering their conduct during such separation, a new trial must be awarded unless it be shown that no prejudice to the losing party resulted.
In criminal cases it is necessary that the admonition be given “when the jurors' are permitted to separate after being impaneled, and at each adjournment” (Gen. Stat. 1901, §5680), while the provision of the civil code (Gen. Stat. 1901, §4726) is merely that “if the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished” as to their duty in that regard. The obvious difference in the language of the two sections cited suggests a like difference in the legislative intent. In the present case there was at least a literal compliance with the statute. The jury were permitted to separate after the cause was submitted to them, and they were admonished as to their duty while so separated. So far as relates to the first separation the objection made is without substance. The jury were told that in half an hour they might separate for a stated time, under directions then fully given them. There was no occasion for the .repetition of these instructions a few minutes later, at the very moment of the separation.
Whether the fact that the jury were told to observe the same admonition at any other separation that might take place dispensed with the necessity for any further action in that regard need not be decided, the matter being controlled by another consideration. The trial court found that the plaintiff, by his attorneys, had consented that the jury might be allowed to separate until Monday morning without being further admonished, and had thus waived any irregularity in that respect. Plaintiff’s counsel contend that what was agreed to was merely that the jury might separate until the time stated, and that there was no thought on their part of consenting to any departure from the regular procedure, it having been assumed by them that before the separation the jury would be called in and again admonished. The agreement, as shown by the record, was effected by the consent of the attorneys to a proposal made by the court, the terms of which were not as explicit as might be desired, but which was made under such circumstances that the court was justified in understanding that in assenting to it the attorneys agreed that the jury might be dismissed until Monday by the bailiff, in the absence of the judge, and therefore necessarily without receiving any additional admonition. The objection based upon the manner of the second separation is on this account not available on review.
The claim that the court exceeded proper limits in urging upon the jury the desirability of their reaching an agreement is based upon an affidavit made by the plaintiff in support of his motion for a new trial, setting out that upon the return of the jury on Monday morning the court “insisted that the jury should agree if they could, and urged upon them to do so; that it was a big case, and that neither he nor they wished to try it again, and if possible they should agree.” The record shows a statement by the court that “with reference to the direction to the jury to agree Mr. Fields, in' his affidavit, puts the matter a little stronger than the court put it to the jury;” that the jury were told “to make all reasonable effort to agree; that it was an important case, one in which there were considerable costs, and that they should make all possible effort to agree and determine the matter, and to try to do the best they could to agree.” The showing of the plaintiff, as modified by the statement of the court, falls far short of establishing coercion. Charges to the jury of a character similar to those here shown have often been held to be unobjectionable. (11 Encyc. Pl. & Pr. 304, 305.)
The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Burch, J.:
This action was brought to recover a
balance claimed to be due for the sale of a tract of land. After the evidence was all in the court declined to submit the case to the jury called to try it, and directed a verdict for the plaintiff. The evidence favorable to the defendant tended to show the following state of facts: The defendant agreed to purchase of the plaintiff a tract of land represented to contain 320 acres, at the price of fifteen dollars per acre. He made a small partial payment, and went into possession. -Before the day appointed for closing the deal he discovered that the tract did not contain the supposed quantity of land. On that day he callea the plaintiff’s attention to the deficiency and made a tender of the balance he claimed to be due. A controversy thereupon arose over the terms of the original agreement. The defendant contended that the settlement should be made at the price of fifteen dollars per acre for the actual number of acres sold, while the plaintiff claimed a gross price for the tract, whatever its size. In the course of the conversation the plaintiff turned to a third party that was present when the original bargain was made and said he would leave it to him, and if he said the price was to be fifteen dollars per acre he would close the trade on that basis. The party appealed to said that was his understanding of the matter, whereupon the plaintiff said he would take the money tendered to him. He did so and delivered his deed.
This evidence was amply sufficient to show a settlement of a disputed claim, and to show a consideration for accepting a less sum of money than the seller claimed he was entitled to receive. (Neely v. Thomp son, 68 Kan. 193, 75 Pac. 117, and authorities cited in the opinion.)
In the course of the trial testimony was given concerning a lost memorandum of the sale, made at the time of the first negotiations, signed by the plaintiff and delivered to the defendant. The terms of this writing were not admitted by the defendant, but, conceding it to contain all the elements of a complete contract expressing the plaintiff’s view, still the defendant’s evidence was competent.
In order to overthrow the plaintiff’s case the defendant undertook to show a former controversy over the price of this land, and a binding settlement. The controversy arose out of an attack the defendant had made upon the terms of the written memorandum on a certain occasion antedating the suit. The validity of that attack at the time it was made was immaterial. The form of action and the character of evidence which would have been necessary at that time to sustain it in court were immaterial; but the fact that when he paid for the land he had impeached the written memorandum of sale was material. The defendant did not seek in this case to contradict a writing. He merely undertook to prove there had been a previous dispute in which he had asserted its untruthfulness, and had insisted upon a state of facts incompatible with it, against the assertions and insistence of the plaintiff to the contrary. This furnished a foundation for the settlement and for the defense in this action.
It is urged that the oral features of the settlement ran counter to the statute of frauds, and that the original written agreement could not be modified by an oral one, ineffective for that reason. The oral arrangement, however, was fully performed by the payment of the price on one side and the delivery of the deed on the Qther. Hence, the statute of frauds was fully satisfied. When the parties met to settle they could have agreed orally, had they so desired, upon a sale including only half of the land at ten dollars per acre, despite the previous contract, and upon performance both parties would have been bound.
"It is .well settled, that the terms of a written contract cannot be varied by any previously executed contract, written or parol, nor by any contemporaneous parol contract. It is equally well settled, that the terms of a ’written contract may be varied, modified, waived, annulled, or wholly set aside, by any subsequently executed contract, whether such subsequently executed contract be in writing or in parol.” (Todd v. Allen, 18 Kan. 543, 545. See, also, 29 A. & E. Encycl. of L. 829.)
There is, of course, another side to this case, but the defendant had a clear right to the opinion of a jury upon it.
The motion to dismiss is overruled on the authority of Butler v. Scott, 68 Kan. 512, 75 Pac. 496, jurisdiction having been reserved for the entire time within which the parties might have made and served the case and suggested amendments.
The judgment of the district court is reversed, with direction to grant the defendant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
This litigation originated in a suit challenging the validity of proceedings taken by the city of Topeka to condemn land for use as an alley. The landowner sought to enjoin such proceedings but was denied relief, and now prosecutes error.
The principal controversy turns upon the construction to be given to sections 160, 161, 161a and 162 of the act relating to cities of the first class. (Laws 1903, ch. 122.) Section 161 merely confers the right upon cities to condemn private property for public uses, including that here involved. Section 161a provides for the appointment of appraisers in condemnation proceedings, and for the assessment of damages by them after the giving of notice of the time and place of their meeting to owners of property affected, personal notice being required in the case of residents. Section 162 relates to the manner of payment of the amounts awarded, and gives a right of appeal. Section 160 provides that when a city appropriates private property for certain stated purposes (including the opening of an alley) the appraisers appointed shall ascertain the value of the land taken and the damages to other property, and apportion the total in accordance with their judgment, charging against the city the amount of benefit to the public, and against each piece of property within a benefit district fixed by ordinance a due share, based upon the extent to which it is peculiarly advantaged; and that they shall give at least three days’ notice in the official city paper of the time and place of their meeting for the assessment of damages and benefits.
The vital question is whether the notice provided by section 160 is a substitute for that prescribed in section 161a, or is required to be given in addition to it. The plaintiff insists upon the latter construction. If the statute were an original enactment this contention would derive some plausibility from the order in which these sections occur. Each of the four sections cited, however, is but a reenactment of a prior section, without any very significant change. Sections 161, 161a and 162 are substantially the same respectively as sections 30, 31 and 32 of chapter 37 of the Laws of 1881, appearing as sections 578, 579 and 580 of the General Statutes of 1889 and as sections 754, 755 and 756 of the General Statutes of 1901. The prototype of section 160 was section 1 of chapter 40 of the Laws of 1891, which, as amended by section 1 of chapter 108 of the Laws of 1901, is printed as section 908 of the General Statutes of 1901. When this section was first adopted the sections corresponding to sections 161, 161a and 162 had been long embodied in the statute. It was obviously to be con strued in connection with them. "It assumed the existence of a general procedure for the condemnation of private property for public use, under which appraisers were appointed to assess damages only, after giving notice in a particular way of the time and place of their meeting. It provided that in certain cases, as in the opening of an alley, the appraisers should assess both damages and benefits, after giving notice in a different way.
The fair construction seems to be that it was not intended that two kinds of notice should be given, but that in cases to which the later statute applied the notice therein described should be sufficient for all purposes. There is nothing in the act of 1903 that suggests a design to change the effect of the old law in this regard. Indeed, one additional clause inserted in the new act has a decided tendency to the contrary. The original section to which section 161a corresponds by its terms applied to all cases of the condemnation by the city of private property for public use, and at the time of its enactment it did have such a general application. Afterward a different procedure was authorized where an alley was to be opened, as now set out in section 160. Accordingly this restriction of the application of the provisions of section 161a is recognized by inserting in it the words “except as herein otherwise provided.” We conclude that the only notice required to be given in the present case was that provided in section 160.
The only notice in fact given was by a publication made in one issue of a daily paper nine days before the meeting of the appraisers. Plaintiff claims that this was not a compliance with the requirement of section 160, and argues that “three days’ notice in the official city paper means three publications on three separate days in that paper.” We do not think this is a correct interpretation. A three days’ notice of a meeting is a notice given three days before, the meeting is to be held. One publication in a daily paper is a notice, and if it is made three days in advance of the time set it is a three days’ notice. (Phil. Wilm. & Balto. R. R. Co. v. Shipley, &c., 72 Md. 88, 19 Atl. 1.) Similar phrases are of frequent occurrence in the statutes in such connection as to admit of no other construction. Where a continuous publication is intended this is indicated by the requirement that it shall be made “for” a stated time, or by some equivalent expression. (Whitaker v. Beach, 12 Kan. 492.)
Various other assignments of error have been argued and considered, but are not thought to require discussion.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This case is affirmed on the authority of McAlpine v. Reicheneker, 27 Kan. 257. In that case the court laid down four rules for the determination of the boundary-lines between tracts of land which have once been apportioned or divided, the first two of which are as follow: First, if the monuments or marks on the ground for the corners of the several allotments can be found such marks and monuments must govern, and distances and bearings must be disregarded. Second, if the monuments or marks on the ground are lost or obliterated parol evidence may be introduced in connection with the record to show their location.
This was an action in ejectment brought by plaintiff in error against the defendant in error to recover possession of a part of lot 13, block 16, in an addition to Kansas City, Kan., called Riverview, the controversy being as to the division line between the east one-half and the west one-half of the lot. All of the lots in block 16 front to the south on Park avenue. Lot 14 is immediately west of lot 13, and the west line of lot 14 extends along the east side of Seventh street. The lots were laid out as of fifty-feet front along Park avenue, but Mr. Lasley, the county surveyor, who surveyed the property just before the beginning of the action, testified that the eight lots of block 16 fronting on Park avenue were only 396.75 feet, being 3.25 feet short of the measurement as platted. At the same time he testified that Mr. O’Flaherty, the engineer who laid out the addition, was a competent engineer and surveyor, but that 0’Flaherty’s chain was too long. If so, this would make the frontage of the eight lots really more than 400 feet. Lasley also testified that he made his measurement eastward from the now recognized street line of Seventh street. Several witnesses testified, and there was no dispute in the evidence (except as to the amount cut off) that in widening Seventh street the city “cut into” property on the west side of lot 14 from seven to eleven feet, so that the west line of lot 14 on Seventh street as laid out was that distance west of the line of Seventh street from which Lasley measured.
The amount of land in controversy between the plaintiff and defendant is between seven and eight feet. The plaintiff owns lot 14 and the west one-half of lot 13, and the defendant owns the east one-half of lot 13. If the plaintiff can begin at the now east line of Seventh street and take one-eighth of 396.75 feet for lot 14, and one-sixteenth for the west one-half of lot 13, the dividing line between him and the defendant would be practically as he claims. If he must begin at the line as originally laid out for the west line of block 14 and take one-eighth of the frontage of the block for lot 14, and one-sixteenth for the west one-half of lot 13, the dividing line would be substantially as claimed by the defendant. The court below took the latter view of the case and found in favor of the defendant, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
F. A. Brownson brought a suit against Joseph Perry to compel the specific performance of a contract for the conveyance to him of a tract of land, joining as defendants Perry’s wife and M. L. Lockwood, to whom Perry had made a deed subsequent to the contract. A demurrer was sustained to the evidence of plaintiff, who now prosecutes error. Two questions are presented — whether the evidence tended to show that an enforceable contract was executed, and, if so, whether it conclusively appeared that the plaintiff by his conduct had lost the right to enforce it.
The contract relied upon by the plaintiff was evidenced by a written instrument in the form of a certificate, preceded by the salutation: “To whom it may concern, greeting.” It was signed by Perry and his wife, and stated that they had sold the land to Brownson for $2200, of which $10 had been paid. The objection made to it by the defendants is that it was unilateral —that while it purported to obligate the Perrys to sell the land it imposed no obligation upon Brownson to buy it. In support of this objection attention is called to the somewhat unusual form of the contract, and to the fact that it was not signed by Brownson. The omission of Brownson to sign the contract was unimportant, for it was shown that he accepted it, acted upon it, and placed it upon record. (Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; 9 Cyc. 300.) The contract, after reciting the existence of certain liens which were to be deducted from the purchase-price, proceeded:
“It is further noted that the said Joseph and Maggie Perry will execute the deed above noted within five days from the date hereof, and that the said F. A. Brownson will pay the money, whatever is due, to the said Joseph Perry and Maggie Perry within the five days above named, or as soon thereafter as said title can be perfected, should it be necessary to perfect the title to the property herein described.”
The acceptance by Brownson of such a contract, in which it was “noted” that he was to pay the purchase-price, amounted to a specific agreement on his part to buy the land upon the terms stated.
Evidence was introduced tending to show that before this contract was made Perry had executed what is designated as a gas lease upon the land, the existence of which was known to Brownson; that for some reason, not fully explained, this lease was believed by both Brownson and Perry to be invalid; that negotiations were had between Perry and the lessee, and between Perry and Brownson, with regard to clearing the record of the lease, either by purchasing a release or by bringing an action to set it aside; that these negotiations came to no definite conclusion, various propositions being made and refused; that for a period of three or four months matters remained in this condition, without further action being taken or attempted; that Perry then sold -the property at an advanced price to Lockwood, and Brownson himself procured a release of the gas lease, offered to pay Perry the full purchase-price agreed upon, and demanded a deed to the land.
The evidence, only the general trend of which is attempted to be here indicated, seems sufficient to have justified a finding upon a full submission that the plaintiff had forfeited his claim to equitable relief by his own delay to act, or that his conduct was tantamount to a definite and final refusal to accept the only title that the defendant was able to give him, and, within the rule stated in Riley v. Allen, post, precluded him from maintaining a suit for specific performance; but it cannot be said as a matter of law that it warranted no other conclusion. Therefore it was error to sustain the demurrer, the ordinary rule not being affected by the fact that the case was tried without a jury. (Farnsworth v. Clarke, 62 Kan. 264, 62 Pac. 655.)
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
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Caplinger, J.:
In this appeal by Joe Delacruz of his aggravated battery conviction, he argues his right to a fair trial was violated by improper comments made by the district court during voir dire and trial, as well as improper comments made by the prosecutor during closing argument. Delacruz also contends the instructions given by the district court on aggravated battery and misdemeanor battery were clearly erroneous.
We conclude the district court erroneously instructed the jury on misdemeanor battery and aggravated battery and that a real possibility exists that, but for these errors, the jury would have rendered a different verdict. Thus, we reverse and remand to the district court for a new trial.
Factual and Procedural Background
On November 2, 2007, Delacruz and his wife, Angela Aguilar Delacruz (Angela), spent the evening driving around in Delacruz’ truck and drinking beer. Eventually, they ended up at a bar where they continued to drink. At the bar, Delacruz became jealous and accused Angela of wanting to be with other men.
As the two left the bar, they argued over who should drive home. Angela dropped Delacruz off at a friend’s home and then drove to a parking lot near their apartment. There, Angela parked the truck and sat in the parking lot for approximately an hour to an hour and a half because she had been drinking and did not want to drive. Also, she was worried about going home because she knew what “usually happen[ed]” when she and Delacruz drank.
Delacruz was present when Angela returned to the couple’s apartment, and the two began fighting. Sometime early in the morning of November 3,2007, the Liberal police dispatch received a 911 call from Angela’s cellular phone. The 911 operator heard a female screaming and the sound of someone being struck before losing the connection. Officers attempted to locate Angela but, lacking a current address, their attempts were unsuccessful.
During the altercation between Delacruz and Angela, Delacruz punched Angela in the face, stomped on her head, sat on her arm, and choked her until she passed out. At some point, Angela hit Delacruz with a lamp. Additionally, during the fight, Angela left the apartment and unsuccessfully attempted to obtain help at a neighbor s apartment. When she returned, she and Delacruz continued fighting. After the altercation ended, Angela and Delacruz remained together in the apartment for 2 days.
On November 7,2007, Angela appeared in court on an unrelated matter. Officer John McCord was present and observed bruises and cuts on Angela’s face and head. McCord asked Angela about the 911 call and convinced her to accompany him to the police station for an interview. During the interview, Angela provided details of her altercation with Delacruz.
The State charged Delacruz with aggravated kidnapping; aggravated battery or, in the alternative, attempted first-degree murder; aggravated intimidation of a witness; and criminal threat.
At trial, Angela testified regarding her fight with Delacruz and the extent of her injuries. The State presented photographs taken the day of Angela’s interview of the injuries she claimed to have sustained during her fight with Delacruz. Officer McCord testified about his interview with Angela and his observations of her injuries, and the jury watched a DVD video of the interview. Two officers testified about their attempts to locate Angela following the 911 call. Delacruz’ theory of defense was that Angela’s testimony was not credible because she had been drinking and had taken several prescription medications the night of the incident.
At the close of the State’s evidence, the district court granted Delacruz’ motion for a directed verdict in part, finding no evidence to support the charges of aggravated kidnapping, attempted first-degree murder, aggravated intimidation of a witness, and criminal threat. The district court retained the charge of aggravated battery with great bodily harm. However, finding the evidence of this charge to be “thin,” the district court also instructed the jury on the lesser included offenses of aggravated battery with bodily harm and simple battery.
The jury found Delacruz guilty of aggravated battery with great bodily harm, a severity level 4 offense under K.S.A. 21-3414(a)(1)(A).
Discussion
In this appeal of his conviction, Delacruz argues his right to a fair trial was violated by improper comments made by the district court during voir dire and trial and by the prosecutor during closing argument. Further, he argues the district court committed clear error in instructing the jury on misdemeanor battery and aggravated battery.
Because we conclude that the jury instructions were clearly erroneous and require reversal of Delacruz’ conviction and remand for a new trial, we decline to consider Delacruz’ claims of judicial and prosecutorial misconduct.
A. fury Instructions
Delacruz challenges aspects of both Instruction Nos. 3 and 4. Those instructions provided:
“Instruction No. 3
“In Count No 1, the Defendant, Joe Delacruz, is charged with the crime of Aggravated Battery. The Defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the Defendant intentionally caused great bodily harm to another person; and,
“2. That this act occurred on or about the 3rd day of November, 2007, in Seward County, Kansas.”
“Instruction No. 4
“As to Count 1, wherein the Defendant is charged with the offense of Aggravated Batteiy With Great Bodily Harm, includes the lesser offenses of Aggravated Battery With Bodily Harm and Battery.
“The Defendant pleads not guilty to both of these lesser included offenses.
“To establish the charge of Aggravated Battery With Bodily Harm, each of the following claims must be proved:
“1. That the Defendant intentionally caused bodily harm to another person in any manner whereby great bodily harm, disfigurement or death can be inflicted.
“2. That this act occured [sic] on or about the 3rd day of November, 2007, in Seward County, Kansas.
“To establish the charge of Battery, each of the following claims must be proved:
“1. That the Defendant intentionally caused physical contact with another person in a rude, insulting or angry manner- and,
“2. That this act occured [sic] on or about the 3rd. day of November, 2007, in Seward County, Kansas.
“You may find the Defendant guilty of Aggravated Battery with Great Bodily Harm, Aggravated Battery With Bodily Harm, Battery or not guilty.
‘When there is a reasonable doubt as to which of two or more offenses Defendant is guilty, he may be convicted of the lesser offense only.
“There are no definitions that this Court can give to you to define ‘great bodily harm or ‘bodily harm’. You must consider all of the evidence presented, to determine the crime, if any, committed by the Defendant.” (Emphasis added.)
Delacruz makes two distinct arguments on appeal with respect to these jury instructions. First, he contends the district court clearly erred in defining the lesser included crime of simple batteiy as “intentionally caus[ing] physical contact with another person in a rude, insulting or angry manner” pursuant to K.S.A. 21-3412(a)(2). He argues the evidence presented at trial instead required that the jury be instructed that simple battery is “intentionally causing bodily harm to another person” pursuant to K.S.A. 21-3412(a)(l).
Further, Delacruz argues the district court committed clear error in instructing the jury regarding aggravated battery when it failed to distinguish “great bodily harm” from “bodily harm” and by affirmatively instructing the jury that no definition of “great bodily harm” or “bodily harm” could be provided.
Delacruz concedes he failed to object to the instructions as given or to the court’s failure to define “great bodily harm” and “bodily harm.”
When a defendant fails to object to an instruction as given or to the district court’s failure to give an instruction, our review is limited to determining whether the instruction given or omitted was clearly erroneous. K.S.A. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). An appellate court may find an instruction to be clearly erroneous only if we are firmly convinced that a real possibility exists that the jury would have rendered a different verdict if the trial error had not occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
1. Misdemeanor battery
Delacruz points out that K.S.A. 21-3412(a) provides two definitions of misdemeanor, or simple, battery: “(1) Intentionally or recklessly causing bodily harm to another person; or (2) intentionally causing physical contact with another person when done in a rude, insulting or angiy manner.” He argues the district court erred in instructing the jury in this case on the second of these two alternatives, i.e., that simple battery consisted of “intentionally causing] physical contact with another person when done in a rude, insulting or angry manner.” Delacruz contends that because the evidence presented by the State clearly supported an instruction on bodily harm, the district court was required to instruct the jury pursuant to K.S.A. 21-3412(a)(l) that simple battery was “intentionally or recklessly causing bodily harm.” Delacruz suggests that if the jury had been instructed on battery as defined by K.S.A. 21-3412(a)(l), the jury might have convicted him of misdemeanor battery causing bodily harm rather than aggravated battery causing great bodily harm.
The State bypasses the issue of whether the instruction was erroneous and, instead, argues it was not clearly erroneous because there was no real possibility the jury would have concluded Delacruz was guilty of intentional bodily harm had it been instructed as to this option with respect to the misdemeanor battery charge. Based on its verdict, the State contends the jury necessarily determined that Angela’s injuries constituted great bodily harm rather than bodily harm.
We agree that the district court should have given an instruction based on K.S.A. 21-3412(a)(l) on the evidence presented here. However, we will postpone our discussion of whether the instruction was clearly erroneous and consider that issue in conjunction with our discussion of the prejudice caused by the additional instructional error, as discussed below.
2. Aggravated batterq
Delacruz asserts a two-fold challenge to the instruction on aggravated battery. First, he contends the district court erred by failing to provide an instruction distinguishing between “great bodily harm” and “bodily harm.” Second, he argues the court erred by affirmatively instructing the jury that the two terms could not be defined. Delacruz further suggests that if the jury had been instructed that “great bodily harm” means something more than “slight, trivial, minor, or moderate harm and does not include mere bruising,” the jury would have convicted him of the lesser offense of aggravated battery as defined in K.S.A. 21-3414(a)(l)(B) or of simple battery as defined in K.S.A. 21-3412(a).
Without benefit of authority, the State contends the aggravated battery instruction correctly stated the law. Further, the State argues that even if the instruction was erroneous, it is unlikely the jury would have reached a different verdict had it been properly instructed.
The jury was instructed on aggravated battery, which is defined in K.S.A. 21-3414(a)(l)(A) as “[ijntentionally causing great bodily harm to another person or disfigurement of another person.” (Emphasis added.) Further, the jury was instructed on a lesser included offense of aggravated battery, which is defined in K.S.A. 21-3414(a)(1)(B) as “intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” (Emphasis added.) Aggravated battery as described in K.S.A. 21-3414(a)(l)(A) is a severity level 4 offense, while aggravated battery as described in K.S.A. 21-3414(a)(l)(B) is a severity level 7 offense. K.S.A. 21-3414(b); see State v. Winters, 276 Kan. 34, Syl. ¶ 2, 72 P.3d 564 (2003) (severity level 7 aggravated battery is a lesser included offense of severity level 4 aggravated battery).
The terms “great bodily harm” and “bodily harm” are not defined by statute, nor are any definitions provided in the Pattern Instructions for Kansas (PIK). See K.S.A. 21-3414; PIK Crim. 3d. 53.00; PIK Crim. 3d 56.18; but see PIK Crim. 3d 56.18, Comment.
However, courts have consistently explained that the term “great bodily harm” distinguishes the bodily harm necessary to establish aggravated battery “from slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained in simple battery.” See, e.g., State v. Green, 280 Kan. 758, 765, 127 P.3d 241, cert. denied 549 U.S. 913 (2006); State v. Dubish, 234 Kan. 708, 716, 675 P.2d 877 (1984); State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978); State v. Morton, 38 Kan. App. 2d 967, 971, 174 P.3d 904, rev denied 286 Kan. 1184 (2008).
Generally, whether particular injuries constitute, “great bodily harm” as opposed to “bodily harm” is a fact question for a jury to decide. Green, 280 Kan. at 765; Morton, 38 Kan. App. 2d at 971-72. Thus, Delacruz’ suggestion that the jury should be instructed regarding the distinction between the two terms has merit.
Further, while PIK Crim. 3d 56.18 does not incorporate the common-law definition of “great bodily harm,” that definition is referred to in the comment to PIK Crim. 3d 56.18. Further, our Supreme Court has held that while district courts are strongly encouraged to use PIK instructions as written, if the particular facts of a case require modifications or additions to a PIK instruction, the trial court should not hesitate to do so. See State v. Gallegos, 286 Kan. 869, 878, 190 P.3d 226 (2008).
Certainly, it would have been helpful for the district court to modify the PIK instruction in this instance to include a discussion of the distinction between “great bodily harm” and “bodily harm.” However, we need not decide whether the court’s failure to do so was error or even clear error. Instead, as discussed below, we find it necessary to reverse Delacruz’ conviction based upon the affirmative misstatement contained in Instruction No. 4.
Instruction No. 4 advised the jury that “[t]here are no definitions that this Court can give to you to define ‘great bodily harm’ or ‘bodily harm.’ ” Delacruz argues this misstatement implied to the jury that there was no meaningful distinction between the two terms and essentially encouraged the jury to react impulsively to the evidence of physical harm.
We agree. The district court affirmatively and erroneously misadvised the jury that the two terms could not be defined, contrary to well-established case law. Moreover, in considering whether a real possibility exists that the jury would have rendered a different verdict if the trial error had not occurred, we are swayed by the district court’s own characterization of the evidence of “great bodily harm” as “thin.” Finally, the effect of this error may have been compounded by the district court’s failure to properly instruct the jury on misdemeanor batteiy. As discussed above, the district court should have instructed the jury that simple battery consisted of “intentionally or recklessly causing bodily harm” instead of “intentionally causing] physical contact with another person when done in a rude, insulting or angry manner.”
We conclude that if the jury had been properly instructed on simply battery using the phrase “bodily harm,” and had not been mistakenly instructed that the terms “great bodily harm” and “bodily harm” could not be defined, a real possibility exists that the jury would have rendered a different verdict. Therefore, we reverse and remand this case to the district court for a new trial.
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Pierron, J.:
Ric Almack, d/b/a Ric Almack Estate Sales & Appraisals, appeals the judgment of the district court granting Almack default judgment, as a sanction against Jim Steeley, d/b/a Steeley & Associates, and awarding Almack $5,717.50. The court affirmed a magistrate court’s decision as a sanction for discovery violations but reduced the amount awarded by the magistrate court from nearly $25,000 to $5,717.50. Almack argues the district court erred in denying him an election of remedies, denying the full measure of contract damages, and failing to affirm the magistrate judge’s award of attorney fees. We affirm the district court’s judgment but do so as a consequence of Almack acquiescing in the judgment.
Almack is in the business of estate sales, buy-outs, hquidations, and appraisals. Steeley was engaged in the business of buying and selling used office equipment. In early February 2005, Almack pur chased the assets of the Japanese Consulate in Kansas City, Missouri. On February 10,2005, Steeley signed an agreement to serve as broker for Almack of multiple office-related items purchased from the Japanese Consulate. The agreement included 12 electronic items (copiers, fax machine, shredders, and etc.) and provided:
“Packing and moving of these items is the responsibility of the broker to the sale location. If the items are not sold and returned the client is responsible for packing and moving the items at that time.
“Safekeeping and insurance of property is responsibility of bailee broker during the term of this contract. All property listed above, to be sold, is to be handled by broker. Client and broker must agree in writing for item to be sold at a price lower than that listed for each item. Fax confirmation is considered writing for this contract agreement. Broker will deduct 50% from the total proceeds for the sale(s).”
On February 10, 2006, Almack made a demand upon Steeley for an accounting of the proceeds of sale, for payment of 50% of the gross sales, and for return of the unsold equipment. On March 22, 2006, Almack filed a limited actions petition seeking judgment against Steeley based on breach of contract. The magistrate court later granted Almack’s motion for leave to amend his petition. Al-mack was allowed to pick up eight of the items on September 7, 2006, and had 20 days to amend his petition to include claims for loss of value.
On September 19, 2006, Almack filed an amended petition alleging three causes of action: (1) breach of contract damages of expected payment of proceeds in the amount of $12,285; (2) conversion for the fair market value of the property, minus returned properly, in the amount of $22,825; and (3) diminuation of value of the returned items in the amount of $1,745. Steeley filed an answer and counterclaim alleging that Almack had failed to pick up the equipment at Steeley’s office, he was entitled to damages for the repair and storage of the equipment, and Almack had fraudulently misrepresented the quality of the equipment.
After Almack filed his original petition, he started discovery requests and subpoenas for Steeley’s business records involving Steeley, his wife, and their business dealings. Steeley objected to Almack’s discovery efforts. Some of the requests and subpoenas were honored, others were declined.
On March 19, 2007, the magistrate court ordered Steeley, by journal entry dated April 16, 2007, to provide within 30 days an itemization of all deposits over $100 for all bank accounts owned by Steeley, his wife, or Steeley & Associates for the period of February 17, 2005, through April 13, 2006, and to provide all repair bills and evidence of diminished value of returned equipment for Steeley’s counterclaim. The magistrate court also ordered both parties to make full disclosure of witnesses, expert witnesses, reports, and any evidence of efforts to sell the equipment. The court’s order stated: “If the Court’s Orders are not complied with, severe sanctions may be imposed.”
Almack had previously filed a motion for default judgment on January 8, 2007, based on Steeley’s failure to following the magistrate court’s discovery orders and failure to participate in mediation. On May 9, 2007, Almack filed his fourth motion for order to compel production of documents and motion for sanctions. On June 18, 2007, the court held a hearing on Almack’s motion but Steeley did not appear at the hearing, although he later acknowledged notification. By journal entry filed June 20, 2007, the court granted judgment on the pleadings as a sanction for Steeley’s failure to comply with “the reasonable and necessary orders of the court regarding discovery.” The court granted judgment in Al-mack’s favor in the amount of $22,825 for the conversion claim, $1,745 for the diminuation of value claim, and $500 for attorney fees resulting from Almack’s third motion to compel. The court indicated it served no purpose to award attorney fees for Almack’s fourth motion to compel.
On June 25, 2007, Steeley filed a notice of appeal of the limited action decision to the regular civil docket of the district court. In the meantime, Almack obtained an order for Steeley to appear for a hearing in aid of execution on September 20,2007. Steeley failed to appear at the hearing in aid. The magistrate court found Steeley to be in contempt and ordered him to serve 48 hours in jail unless he provided copies of his wife’s bank statements for the past 90 days. The district court set the case for trial on January 7, 2008.
All parties appeared for a hearing on January 7, 2008. The initial discussion focused on the posture of the case because a trial on the merits had not occurred in limited actions and the only judgment in existence was for Steeley s failure to comply with discovery requests. The district court considered its review to be whether entry of judgment was the appropriate sanction for Steeley’s failure to comply with discovery requests. The court heard argument on Steeley’s failure to produce a completed witness list, failure to produce information related to cash deposits in bank accounts, and failure to produce evidence of purchase parts, invoices, expenses, storage, and moving fees in accordance with the magistrate’s motion to compel.
The district court ruled from the bench on January 7, 2008, that the magistrate court’s sanction of judgment in favor of Almack was an appropriate response to Steeley’s failure to comply with discovery. However, the district court disagreed with the amount of the judgment. The court concluded there was an admitted written agreement for a bailment and a 50% commission on anything sold. The court found that when Almack filed his petition in limited actions, the property had a value on March 20, 2006, of $12,285. This amount, $12,285, was an estimation by Almack of a reduced value of 50% from the date the items had been put on consignment with Steeley on February 10, 2005.
In establishing a new judgment amount, the district court used the current value, as claimed by Almack, of the four items that were not returned to Almack for a total of $10,190. Under the bailment contract, Almack was entitled to 50% commission, resulting in a judgment value of $5,095. The court also concluded that Almack was entitled to judgment under his diminution of value claim (count III - $1,745). The court subtracted the value of the converted typewriter from the diminution value and, after determining 50% per the bailment, this resulted in an additional judgment of $622.50. The total judgment entered by the court was $5,717.50.
There was no journal entiy filed solely for the proceedings on January 7, 2008, until much later — -June 12, 2008. On January 22, 2008, Steeley filed a motion for reconsideration and/or motion to alter or amend the order of judgment. On April 9,2008, the district court held a hearing on Steeley s motion for reconsideration. On May 9, 2008, the court entered its written judgment formalizing the $5,717.50 judgment from January 7, 2008, and also denying the motion for reconsideration.
Almack filed a notice of appeal on May 14, 2008. Steeley filed a cross-appeal on June 30, 2008. Almack filed a motion to dismiss Steeley’s cross-appeal as untimely. This court granted leave for Steeley to file his cross-appeal. Other necessary procedural facts will be supplied in the discussion below.
An issue not raised by Steeley, who appears pro se, is the issue of Almack’s acquiescence in the district court’s judgment. We believe this is a jurisdictional issue which we may raise sua sponte. This court issued a show cause order asking for the positions of the parties on this issue. We now proceed to meet the issue.
Almack has clearly taken action on his judgment from the district court. The question is whether those actions constitute acquiescence and necessitate a dismissal of this appeal. We believe they do.
On January 7, 2008, the district court rendered its ruling from the bench for a $5,717.50 judgment in favor of Almack. On Januaiy 22, 2008, Steeley filed his motion for reconsideration and/or motion to alter or amend order of judgment. Yet even without a written judgment, on February 8, 2008, Almack obtained an order signed by the court for Steeley to appear for a hearing in aid of execution. Prior to appearing at the March 27, 2008, hearing in aid, Steeley filed an objection on March 24,2008. On April 9,2008, the court held a hearing on Steeley’s motion for reconsideration. As previously stated, on May 9, 2008, the court entered its written judgment formalizing its $5,717.50 judgment from Januaiy 7,2008. On June 12, 2008, the court entered a journal entiy specifically for the January 7, 2008, judgment.
On May 13, 2008, Almack filed an application for examination of Steeley in aid of execution. On May 14, 2008, Almack filed a notice of appeal. The district court granted an order for hearing in aid of execution for July 9, 2008. On May 19, 2008, Steeley filed a motion for stay of execution pending disposition of plaintiff s ap peal. On May 28, 2008, Almack filed a motion to strike Steeley’s motion to stay arguing Steeley s only remedy was to file a supersedeas bond. He also requested sanctions against Steeley for filing the motion for stay.
On June 26,2008, the district court heard argument on Steeley s motion to stay. The issue of acquiescence was raised sua sponte by the court but not substantively addressed by either party. Initially, the court stated that even if a case is docketed on appeal, unless the judgment debtor files a supersedeas bond, there is not any stay of the collection proceedings. Almack argued this case was not an execution sale, it was a stay of a hearing in aid of execution, and he was entitled to pursue collection efforts unless and until Steeley posted a supersedeas bond. The court pointed out that Steeley was not the appealing party and he did not have to post a supersedeas bond. Almack responded that he might have to post a bond to stay execution on the judgment. The following colloquy occurred:
“THE COURT: The question for the appellate court may be whether or not you, by your collection actions, are acquiescing in the judgment that you are appealing.
“MR. KIRK: And I’m willing to address it.
“THE COURT: And that is a different issue for the appellate court.
“MR. KIRK: An aid in execution is not an execution. I’m looking for assets that I can actually - - .
“MR. STEELEY: Your Honor, execution of proceedings. It’s the same thing.
“THE COURT: That’s up to the appellate court. It may be that he acquiesces. That’s not for me to address.”
The district court denied Steeley s motion to stay the hearing in aid proceedings. On June 27, 2008, the court entered its written order denying the stay and also denying Almack’s motion to strike and motion for sanctions. On June 30, 2008, Almack filed a motion for change of judge.
On June 30,2008, Steeley also filed a notice of cross-appeal from the judgment entered on June 12 [sic] and all previous rulings. On July 8, 2008, Steeley filed a motion to continue the hearing in aid. On July 9, 2008, Almack filed a request for citation of contempt against Steeley for failing to appear. The order was granted by the district court. As stated earlier, neither Almack nor Steeley raised the issue of acquiescence in this appeal. Further, Steeley did not file a cross-appellant’s brief. Although acquiescence has not been alleged on appeal, we can still address the issue.
Acquiescence in the lower court’s judgment by an appealing party raises a jurisdictional issue. See Varner v. Gulf Ins. Co., 254 Kan. 492, 497-98, 866 P.2d 1044 (1994) (“where a party is found to have acquiesced in the judgment of a trial court, appellate jurisdiction is lacking and the party’s appeal must be dismissed”); First Nat’l Bank in Wichita v. Fink, 241 Kan. 321, 736 P.2d 909 (1987); Layne Christensen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 137, 38 P.3d 757 (2002). Jurisdictional issues can be raised by the appellate courts at any time. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008) (an appellate court has a duty to question jurisdiction on its own initiative).
Acquiescence in a judgment, which cuts off the right of appellate review, occurs when a party voluntarily complies with the judgment by assuming the burdens or accepting the benefits of the judgment contested on appeal. Younger v. Mitchell, 245 Kan. 204, 206-07, 777 P.2d 789 (1989). The doctrine of acquiescence is based on the inconsistency between accepting some benefit or burden from a judgment while appealing the judgment itself. Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. ¶ 6, 597 P.2d 1080 (1979). Acquiescence occurs when a party voluntarily complies with all or part of a judgment. See Varner, 254 Kan. at 494-98 (holding that an insurer’s partial payment of the judgment constituted acquiescence). The test for acquiescence is whether the position taken by the party on appeal is inconsistent with the judgment. Layne Christensen Co., 30 Kan. App. 2d at 138.
We have searched Kansas jurisprudence for cases involving a judgment creditor’s acquiescence in a district court’s judgment. In turn, we have discovered a great amount of authority on a judgment debtor’s acquiescence in the district court’s judgment. See Huet-Vaughn v. Board of Healing Arts, 267 Kan. 144, 150, 978 P.2d 896 (1999) (court dismissed appeal on grounds that, by paying a $5,000 fine imposed by the Kansas Board of Healing Arts, Huet-Vaughn had acquiesced to the KBHA’s judgment that a military court martial conviction was comparable to a Kansas felony conviction); Tice v. Ebeling, 238 Kan. 704, 713, 715 P.2d 397 (1986); Cohen v. Dresie, 174 Kan. 391, 394, 256 P.2d 845 (1953); Harmon v. James, 146 Kan. 205, 207-08, 69 P.2d 690 (1937); see also Vap v. Diamond Oil Producers, Inc., 9 Kan. App. 2d 58, Syl. ¶ 3, 671 P.2d 1126 (1983) (Defendant acquiesced in judgment by allowing bank account to be garnished without filing a stay of execution.); Muckey v. Baehr, 158 Kan. 19, 145 P.2d 164 (1944) (Even though execution was in hands of the sheriff at the time the judgment was paid, defendant acquiesced in judgment because he failed to protest to the clerk of the court.).
We have found several noteworthy cases for our discussion of the issue on the judgment creditor side of the equation. In Hemphill v. Ford Motor Co., 41 Kan. App. 2d 726, Syl. ¶ 2, 206 P.3d 1 (2009), the court held: “In a case in which a party was awarded money in an arbitration and accepted payment of the arbitration award while appealing the propriety of arbitration, that party has acquiesced in the judgment and may not seek to have the arbitration award set aside.”
In Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 136 P.3d 457 (2006), the court held that in a foreclosure action, a party’s acceptance of redemption funds was not voluntary and therefore did not amount to acquiescence in the judgment. The court applied a “protective measure” exception to the rule of acquiescence:
“[T]he [appellants’] acceptance of the redemption funds was a protective measure under Bank IV Wichita v. Plein, 250 Kan. 701, 709, 830 P.2d 29 (1992). A Plein protective measure is taken in defense of and to protect a party’s rights while an appeal is pending. [Citation omitted.]
“We agree with the Court of Appeals that application of the protective measure exception is appropriate on this particular set of facts. Had the [appellants] refused to accept the funds, they would have had to pay unnecessary interest on the loan they took to finance their purchase of the property. This hardship put the [appellants’] action well within the protective measure exception, and their acquiescence does not bar their appeal of the district court’s judgment.” 281 Kan. at 1271-72.
Hemphill and Pastine are indicative of the view that a party’s acceptance of payment on a judgment or pursuit of satisfaction measures that actually result in monetary or tangible benefit to the creditor constitutes acquiescence and thus eliminates the right of appeal. Generally, “benefits must actually be received by an appellant in order to waive the right of appeal; an unsuccessful attempt to collect a judgment does not relinquish the right of appeal because no fruits of the judgment have been accepted.” 5 Am. Jur. 2d, Appellate Review §587, p. 344.
In Robert L. Wheeler, Inc. v. Scott, 818 P.2d 475 (Okla. 1991), the court addressed this issue head on:
“The issue is whether an attempt by an appellant to execute on the judgment from which he appealed results in a waiver of the appeal under the ‘acceptance of benefits ‘ doctrine, even though the appellant received nothing from the attempted execution. The issue before us is one of first impression. The authority on this issue is meager.” 818 P.2d at 478.
The Wheeler court held that because there was nothing in the record to show that Wheeler accepted any of the benefits of his judgment, the motion to dismiss his appeal based on acquiescence was denied. The Wheeler court cited the following general principles:
“The authority which exists supports a rule that benefits must actually be received by an appellant in order to waive his right to an appeal. Oklahoma case law recognizes similar principles. In Bras v. Gibson, 529 P.2d 982, 983-984 (Okla.1974), this Court held that a party who accepts the benefits of the part of the judgment favorable to him waives tbe right to appeal the portion that is unfavorable. The Court explained:
“Bras needed only to appeal die trial court’s actions to protect his interest. His act in cashing the voucher was voluntary and for his benefit. That act was not done in defense of and to protect his rights. As to the trial court’s orders, Bras could do nothing more than object and appeal. As to the voucher, Bras could accept or refuse. This was his choice. [Emphasis added.]”
“With similar reasoning, courts in three other states have held that recording a judgment was not “acceptance of benefits.” Menges v. Robinson, 132 Cal. App. 647, 23 P.2d 526, 528 (Cal. Dist. Ct. App. 1933); Kittredge v. Grau, 158 La. 154, 103 So. 723, 724 (1925); Ellis v. Scarborough, 279 S.W. 857, 858 (Tx. Civ. App.1926). The California and Texas cases gave as a rationale that the judgment creditor records his judgment simply as a precaution to provide some security for the satisfaction of the judgment should it be affirmed on appeal.” 818 P.2d at 478.
We believe Kansas currently falls in line with the minority of jurisdictions that have adopted a rule that prevents an appeal if the party takes any action inconsistent with the right of review — successful or not. These jurisdictions treat such inconsistent behavior as a tacit acceptance of the benefits of the judgment. See, e.g., J & F Car Care Serv., Inc. v. Russell Corporation, 166 Ga. App. 888, 305 S.E.2d 504 (1983) (“ If a judgment is rendered in favor of a litigant which he thinks is too small, he may either appeal and test such question or he may suppress any dissatisfaction and collect the judgment. He cannot do both. Stallings v. Shell Petroleum Corp., 54 Ga. App. 359, 361[2], 188 S.E. 50; Owens v. Read Phosphate Co., 115 Ga. 768, 42 S.E. 62; Coley v. Coley, 128 Ga. 654, 655[1], 58 S.E. 205.”); Alien v. Allen, 198 Ga. 267, 31 S.E.2d 481 (1944) (appointment of receiver waived right of appeal).
Several Kansas cases bring us in line with this minority view. First, we distinguish cases where the actions of the acquiescing party were done involuntarily. Here, Almack acted voluntarily. In Harsch v. Miller, 288 Kan. 280, 200 P.3d 467 (2009), the appellants were ordered by the district court to proceed with trial despite their appeal of the district court’s denial of their motion to stay. The Harsch court rejected the appellants’ claim of acquiescence and found the district court did not abuse its discretion in denying the motion to stay and ordered the jury trial to proceed. 288 Kan. at 292; Compare Haberer v. Newman, 219 Kan. 562, Syl., 568, 549 P.2d 975 (1976) (“In an appeal from a judgment of a district court granting specific performance of a contract for the sale of real property, the acts of the appellants following entry of the judgment savor of acquiescence and the appeal is dismissed. [Emphasis added.]”).
Although perhaps harsh in their impact, the cases appear to be controlling.
In In re Marriage of Zimmerman, No. 96,466, unpublished opinion filed July 3, 2008, the district court divided property in a divorce action. The husband appealed the decision but also filed a motion in the district court asking that the court compel the wife to execute quitclaim deeds, which she had been ordered to do in the divorce decree, to the real estate that was awarded to him. The district court granted the motion to compel. The Zimmerman court held that the husband had voluntarily accepted the benefits of the divorce decree by filing the motion to compel and thereby acquiesced in the judgment.
In the judgment creditor situation presently before the court, we rely heavily on McDaniel v. Jones, 235 Kan. 93, 95, 679 P.2d 682 (1984). McDaniel and Jones entered into an arrangement in the 1960s that transferred property owned by Jones to McDaniel, with Jones retaining possession and responsibility to make all payments on the existing mortgage, along with tax and insurance payments. After an agreement between McDaniel and Jones — that the district court later ruled was an equitable mortgage — became controverted, McDaniel filed a quiet title action. The court ruled fee title belonged to Jones, subject to hens for monies expended by McDaniel and the United States’ tax liens that were subordinate to McDaniel’s hen.
Jones appealed from all adverse rulings. McDaniel appealed the failure to find that he had fee simple title. The United States appealed the subordinate priority assigned its hen. After judgment, McDaniel sought a foreclosure sale of the property. Jones filed an application to stay the sale pending the appeal. The United States opposed Jones’ application. The district court denied Jones’ request, and the sale was consummated. Jones fought the confirmation of the sale, but the court approved it. Jones then redeemed the property. The court impounded the proceeds pending the outcome of the appeal.
Jones asserted the action by McDaniel in pursuing the sale of the property, the action by the United States in opposing the stay of the sale proceeding, and both parties’ opposition to the effort by Jones to have the court deny the confirmation was acquiescence. The Kansas Supreme Court ruled that McDaniel’s action in pur suing the sale was an implied recognition of and acquiescence in the trial court’s finding of an equitable mortgage. 235 Kan. at 102. McDaniel’s right to appeal was therefore cut off. 235 Kan. at 103.
The United States, however, only contested the priority of hens assigned by the district court. The McDaniel court felt this was a distinct and severable part of the judgment “involving] only the respective rights of the United States and [McDaniel].” 235 Kan. at 104. The result on appeal on the issue of priority of liens would affect in no way the right to foreclose on the property to satisfy the judgment in favor of McDaniel or the United States. The appeal only determined who would get the proceeds of the sale. 235 Kan. at 104.
The Kansas Supreme Court has used the principles and language in McDaniel to state the following, especially telling in the present case where a judgment creditor initiates collection proceedings before and during an appeal of a judgment: “As a general rule, anything which savors of acquiescence in a judgment cuts off the right of appellate review. [Citations omitted.] The gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment. McDaniel v. Jones, 235 Kan. 93, 102, 679 P.2d 682 (1984).” Tice v. Ebling, 238 Kan. 704, 713, 715 P.2d 397 (1986). We acknowledge that several courts have discussed not road-blocking a judgment creditor’s collection efforts and allowing the creditor the ability to force a judgment creditor into posting a supersedeas bond which in turn protects the creditor on appeal.
Almack’s actions in this case savor of acquiescence. He has accepted the benefits of the judgment by commencing a hearing in aid of execution proceeding. This is not a case about the completion of a sale or accepting payments on the judgment or even protective measures necessary to preserve a judgment. Instead, this case involves the voluntary actions of a judgment holder to enforce a judgment. See, e.g., Troyer v. Gilliland, 247 Kan. 479, 799 P.2d 501 (1990) (participant who was awarded money judgment acquiesced in judgment by securing order for distribution of funds paid into trial court).
Having acquiesced in the judgment, Almack’s appeal is dismissed.
“3. The Supreme Court of Iowa held that a plaintiff who appealed the judgment granted to him had not waived his right to prosecute the appeal, even though he had attempted to execute on the judgment but received nothing. Hornish v. Peck, 53 Iowa 157, 1 N.W. 641, 644 (1879), aff'd. on reh. 53 Iowa 157, 4 N.W. 898 (1880). In McDaniel Gift Shop, Inc. v. Balfe, 179 So.2d 588 (Fla. App. 1965), the court held that the acceptance-of-benefits doctrine does not apply where the appealing party does not actually receive any of the benefits of the judgment. The court reasoned that a purpose of a judgment creditor in securing and delivering a writ of execution to the sheriff is frequently to cause the judgment debtor to post a supersedeas bond to protect the judgment creditor pending the appeal. The court stated that there was nothing irregular in such a tactic. | [
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Rulon, C.J.:
Defendant Ananstacio Deleon Gallardo appeals the district court’s order to register as a sex offender after defendant was convicted of unlawful sexual relations and trafficking contraband in a correctional institution. Defendant argues the district court misconstrued and misapplied K.S.A. 22-4902(c)(14) in requiring him to register. We disagree and affirm.
Defendant was a vo-tech instructor employed in a women’s correctional facility in Shawnee County. He was charged with one count of rape, one count of unlawful sexual relations, and two counts of traffic in contraband in a correctional institution. The rape and unlawful sexual relations counts involved an inmate at the facility, T.L.K. The contraband counts were for a “morning after pill” defendant allegedly acquired for T.L.K. and for tobacco. Defendant waived a prehminaiy hearing.
Defendant entered a guilty plea to unlawful sexual relations, K.S.A. 21-3520(a)(l), level 10 person felony, and the trafficking counts, K.S.A. 21-3826(a), level 6 nonperson felony, in exchange for the State’s dismissal of the rape count. The plea agreement made no sentencing recommendations. In the plea agreement, defendant agreed “the charging affidavit filed in support of the Complaint ... is a true and correct description of the facts and the Court shall consider same to be the factual basis supporting my plea,” and if the case went to trial, the State “would be able to establish such facts set forth in the charging affidavit which establishes such element of the offense(s) beyond a reasonable doubt.”
At the plea hearing, the State recited the factual basis for the charges, including the charging affidavit. The court asked defendant, “starting with Count II, which is the unlawful sexual ... relations, do you admit to the facts that were read by [the prosecutor] .. . which related to that count to unlawful sexual relations and its sexual relationship between an employee of the department of corrections with a person who is not married to the offender and apparently is an inmate in that department of corrections?” After clarifying defendant was a vo-tech instructor, not a corrections officer, defendant’s attorney said, “we would agree and stipulate to the factual basis sufficient for Count II.” Defendant agreed.
The sentencing court then imposed the standard presumptive sentences: 18 months for each count of traffic in contraband, consecutive to each other, and 6 months for unlawful sexual relations, concurrent to the other counts. The court then granted 24 months’ probation.
The sentencing court required the defendant to register as a sexual offender after finding the crime of conviction in this case fell under K.S.A. 22-4902(c)(14) (2007) (now K.S.A. 2009 Supp. 22-4902[c][15]), as an act “determined beyond a reasonable doubt to have been sexually motivated.”
Defendant essentially malees three distinct arguments he should not be required to register under the sexual offender statutory scheme. First, defendant argues K.S.A. 22-4902(c) does not expressly include the crime of unlawful sexual relations, thus implying defendant’s crime should not be included within the “catch-all” provision, 22-4902(c)(14). Second, defendant argues K.S.A. 22-4902(a)(5) defines “offender” as one who is convicted of unlawful sexual relations where one of the parties is less than 18 years of age, thus implying that “offender” does not include such a conviction where die parties are both 18 years of age or older. Finally, defendant argues the sentencing court erred in requiring registration here because the sex acts were consensual and any finding of sexual motivation is not supported by the record. Defendant’s arguments frame a question of statutory construction and application, so our appellate review is unlimited. See State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).
The relevant statutory provisions in effect at material times herein are contained in the selected subsections of the 2007 version of K.S.A. 22-4902(a), (b), and (c), which provided in material part:
“(a) ‘Offender" means: (1) A sex offender as defined in subsection (b);
(2) a violent offender as defined in subsection (d);
(5) any person convicted of any of the following criminal sexual conduct if one of the parties involved is less than 18 years of age:
(F) unlawful sexual relations as defined by K.S.A. 21-3520, and amendments thereto;
“(b) ‘Sex offender includes any person who, after the effective date of this act, is convicted of any sexually violent crime set forth in subsection (c) or is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime set forth in subsection (c).
“(c) ‘Sexually violent crime’ means:
(1) Rape as defined in K.S.A. 21-3502 and amendments thereto;
(2) indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto;
(3) aggravated indecent liberties with a child as defined in K.S.A. 21-3504 and amendments thereto;
(4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of K.S.A. 21-3505 and amendments thereto;
(5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and amendments thereto;
(6) indecent solicitation of a child as defined by K.S.A. 21-3510 and amendments thereto;
(7) aggravated indecent solicitation of a child as defined by K.S.A. 21-3511 and amendments thereto;
(8) sexual exploitation of a child as defined by K.S.A. 21-3516 and amendments thereto;
(9) sexual battery as defined by K.S.A. 21-3517 and amendments thereto;
(10) aggravated sexual battery as defined by K.S.A. 21-3518 and amendments thereto;
(11) aggravated incest as defined by K.S.A. 21-3603 and amendments thereto; or
(12) any conviction for an offense in effect at any time prior to the effective date of this act, that is comparable to a sexually violent crime as defined in subparagraphs (1) through (11), or any federal, military or other state conviction for an offense that under the laws of this state would be a sexually violent crime as defined in this section;
(13) an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301,21-3302 or 21-3303 and amendments thereto, of a sexually violent crime, as defined in this section; or
(14) any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated. As used in this subparagraph, ‘sexually motivated’ means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.” K.S.A. 22-4902(a), (b), and (c) (2007).
This defendant argues his crime is not among those specifically listed within 22-4902 (c)(1) through (c)(13), thus indicating legislative intent to exclude his crime of conviction despite the “catchall” provision at (c)(14).
This defendant’s principal crime of conviction was unlawful sexual relations under K.S.A. 21-3520(a)(l), which provides:
“(a) Unlawful sexual relations is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender if:
(1) The offender is an employee or volunteer of the department of corrections, or the employee or volunteer of a contractor who is under contract to provide services for a correctional institution, and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is an inmate.”
The Kansas Legislature’s specific failure to include unlawful sexual relations under subsections (c)(1) through (c)(13) does not indicate an intent to exclude all other convictions from registration requirements, but only an intent to exclude such convictions from per se inclusion. In fact, the legislature did not intend the listing to be exclusive given the addition of subsection (c)(14), which serves as a general “catch all” for crimes meeting the criteria set forth therein. If the failure of the legislature to list specific offenses within subsections (c)(1) through (c)(13) were to insulate all other crimes from being considered sexually violent, the general category defined by subsection (c)(14) would be rendered meaningless. Therefore, the only question is whether unlawful sexual relations meets the criteria of subsection (c)(14).
Our construction and application is consistent with a host of appellate decisions construing subsection (c)(14) and its predecessor. Most compelling is Judge Pierron’s opinion in State v. Patterson, 25 Kan. App. 2d 245, 963 P.3d 436, rev. denied 265 Kan. 888 (1998), where the panel considered whether convictions of burglary and theft could be considered sexually motivated for purposes of this statutory scheme, also characterized as the Kansas Offender Registration Act, (KORA). Construing the predecessor to K.S.A. 22-4902(c)(14), the Patterson court rejected an argument very much like this defendant’s argument before us:
“In light of the legislative history, it is clear that the legislature passed the [KORA] in order to protect Kansas residents from sex offenders who pose a high risk of reoffense. It is clear from the [KORA] that the legislature specifically required all people convicted of Chapter 21, Article 35 crimes, or crimes of a similar nature, to register as sex offenders. K.S.A. 22-4902(b)(l)-(10). It is also clear from the legislative history, and the language of K.S.A. 22-4902(b)(12), that the legislature was concerned with those offenders who commit crimes not commonly called sex crimes, but which nevertheless are criminal offenses committed by persons seeking sexual gratification. Notwithstanding the ambiguous statutory language, it is both reasonable, and consistent with legislative intent, to conclude that K.S.A. 22-4902(b)(12) [Furse 1995] [predecessor to K.S.A. 22-4902(c)(14)] defines as ‘sexually violent’ all crimes committed for the purposes of sexual gratification.” 25 Kan. App. 2d at 249-50.
Our court has consistently construed the statutory scheme before us to mean any act meeting the requirement of the general definitional subsection for sexually motivated crime ([c][14]) will implicate registration without regard to inclusion or exclusion of the crime of conviction within the specific listing provided by other subsections. See, e.g., State v. Coman, 42 Kan. App. 2d 592, 214 P.3d 1198 (2009) (review pending); State v. Lopez, 25 Kan. App. 2d 777, 973 P.2d 802 (1998) (affirming attempted aggravated burglary as sexually motivated); State v. Lembke, 2008 WL 1946845 (Kan. App. 2008) (unpublished opinion) (affirming as sexually violent a conviction for possession of child pornography); State v. Stenger, 2007 WL 1530118 (Kan. App. 2007) (unpublished opinion) (affirming as sexually motivated a conviction for furnishing alcoholic beverages to a minor for illicit purposes). Accordingly, our court has consistently had no difficulty in applying the “catchall” provision of 22-4902(c)(14) as independent of the express fisting of crimes in subsections (c)(1) through (c)(13) of the same statute, and therefore we reject the defendant’s first argument.
Defendant next argues the specific inclusion within the definition of “offender” of one convicted of unlawful sexual relations with a minor indicates legislative intent to exclude such a conviction involving adults. This argument again disregards the broad, general language elsewhere in the statute. K.S.A. 22-4902(a) clearly states “offender” includes a sex offender defined in subsection (b), which clearly includes anyone convicted of the crimes “set forth in” subsection (c). Therefore, we reject this argument for the same reasons we have rejected defendant’s first argument. If unlawful sexual relations is found beyond a reasonable doubt to have been committed with sexual motivation pursuant to subsection (c)(14), the person so convicted is an “offender.” We are convinced that any reasonable scrutiny of the entire legislative scheme set forth in 22-4902 manifests a strong legislative intent to broadly include within the statutoiy ambit virtually any crime committed with sexual gratification as its motivation.
Finally, defendant argues the sentencing court’s findings of sexual motivation are not supported by the record, specifically because defendant contends the sex acts involved were consensual and were not violent in nature. First, we note that neither consent nor violence is specifically mentioned within the criteria of 22-4902(c)(14). The only question is whether there was evidence to support the sentencing court’s finding beyond a reasonable doubt this defendant’s act was sexually motivated.
The factual basis for defendant’s plea of guilty was as follows: Another inmate asked the victim, T.L.K., if she would have sex with the defendant, in return for which the defendant would “take care of her for the rest of her time there.” T.L.K. replied she was willing to give defendant a “blow job” but would not have sexual intercourse with him. Later defendant took T.L.K. to a storage facility, where he licked T.L.K.’s breasts and T.L.K. performed oral sex on the defendant. Defendant turned T.L.K. around and told her to get on her knees. T.L.K. complied, fearing she could not refuse. Defendant put his penis in T.L.K.’s vagina and ejaculated. About 2 weeks later, T.L.K. told the defendant she thought she was pregnant and the defendant then provided T.L.K. “morning after pills” and told her to take them.
The sentencing court held “there doesn’t appear to be any other reason that those acts might have been committed, other than for the defendant’s sexual gratification.” We agree. The sentencing court’s finding satisfies the criteria under K.S.A. 21-4902(c)(14) (2007). No argument has been made in this appeal that the sentencing court’s finding beyond a reasonable doubt violates any constitutional requirement. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
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Malone, J.:
Travis Gunner Long appeals the district court’s determination of his criminal history following his conviction of one count of possession of methamphetamine. Specifically, Long claims the district court erred by including three prior uncounseled misdemeanor convictions in his criminal history. Long also claims his constitutional rights were violated because his criminal history was not proven to a juiy beyond a reasonable doubt. Based on State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009), we conclude that Long’s prior uncounseled misdemeanor convictions were obtained in violation of his Sixth Amendment right to counsel and should not have been scored in his criminal history.
Factual and procedural background
On December 29, 2003, the State charged Long in Finney County District Court with one count of possession of methamphetamine and one count of driving with a suspended license. Long failed to appear at a hearing on July 12,2004, and the district court forfeited his bond and issued a bench warrant for his arrest. Long was subsequently apprehended, and on February 22,2007, he pled no contest to possession of methamphetamine. In exchange, the State agreed to dismiss the count of driving with a suspended license, and the State agreed not to file charges against Long for his aggravated failure to appear. As part of the plea agreement, the State agreed to recommend a durational departure of half the standard range of Long’s presumptive sentence.
The district court ordered a presentence investigation (PSI) report. Long’s criminal history worksheet included convictions of two counts of battery in Garden City Municipal Court case No. 96 MCR 0061 and one count of battery in case No. 96 MCR 1386. The three person-misdemeanor convictions were rated as one person-felony conviction for criminal history purposes. Long filed an objection to his criminal history, challenging the validity of his prior misdemeanor convictions. Long argued that he did not have appointed counsel for the misdemeanor convictions and he served jail time for the uncounseled misdemeanors. Therefore, according to Long, the misdemeanor convictions could not be included in his criminal history.
The district court conducted a hearing, and the records from the Garden City Municipal Court were admitted into evidence. The records showed that Long was convicted of one count of battery in case No. 95 MCR 1386, rather than case No. 96 MCR 1386 as listed in the PSI report. According to the records, Long’s sentence in case No. 95 MCR 1386 was 1 year of probation; alcohol evaluation and counseling for a minimum of 1 year at an area mental health facility; a fine of $1,000, suspended to $200 and to be paid at $100 per month; and court costs to be paid in 30 days. Long was convicted of two counts of battery in case No. 96 MCR 0061, and the municipal court imposed a sentence of 1 year of probation; alcohol evaluation and counseling at an area mental health facility for a minimum of 1 year; court costs to be paid in 30 days; and a fine of $1,000 on each count, suspended to $200 as long as probation was completed. The municipal court records clerk testified there was no indication that Long was ordered to serve any jail time as a result of the batteiy convictions.
However, the municipal court records further showed that on July 24, 1998, Long was found guilty of indirect contempt for failure to pay his fines and court costs in three cases, including 95 MCR 1386 and 96 MCR 0061. Long was represented by counsel at the contempt hearing. The municipal court judge sentenced Long to 6 months in jail, but the court suspended the sentence and gave Long the opportunity to “purge himself of contempt by making payment of not less than $100 per month beginning July 10, 1998.” The records did not reflect whether Long actually served time in jail on the contempt sentence or whether he purged himself of contempt by making payment on the fines.
After considering the evidence and reviewing the applicable case law presented by the parties, the district court judge stated:
“Well, as I understand the objection to the Defendant’s criminal histoiy, the issue is whether or not these municipal court batteiy convictions were counselled or uncounselled and if they were uncounselled, whether or not there was a waiver of counsel. In that regard, the State of Kansas has failed to establish and cannot establish whether or not the misdemeanor battery convictions were counselled or uncounselled or whether there was a waiver of counsel.
‘What I think the State of Kansas has been able to establish by a preponderance of the evidence, that in each of these cases, no jail sentence was imposed.
“By virtue of that determination, these battery convictions are properly a part of and should be counted in connection with Mr. Long’s criminal histoiy.”
Accordingly, the district court included the misdemeanor convictions in Long’s criminal histoiy and determined that he had a criminal history score of C. The district court granted Long a durational departure and sentenced him to 15 months in prison. Long timely appealed.
On appeal, Long claimed the district court erred by overruling his objection to his criminal history. Because Long was ordered to serve jail time for contempt, based on his failure to pay fines and court costs, Long asserted his uncounseled misdemeanor convictions resulted in incarceration and should not have been included in his criminal history. Long also claimed his constitutional rights were violated because his criminal history was not proven to a jury beyond a reasonable doubt.
This court initially rejected Long’s arguments and concluded that a prior uncounseled misdemeanor conviction for which the defendant received a suspended sentence or probation that did not result in incarceration could be included in the defendant’s criminal history. State v. Long, 41 Kan. App. 2d 477, 486, 203 P.3d 45 (2009). Long timely filed a petition for review. While the petition for review was pending, the Kansas Supreme Court decided Youngblood, which held that a person accused of a misdemeanor has a Sixth Amendment right to counsel at the stage of the proceedings where guilt is adjudicated if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. 288 Kan. 659, Syl. ¶ 2. The court further held that an uncounseled misdemeanor conviction obtained in violation of a person’s Sixth Amendment right to counsel may not be collaterally used for sentence enhancement in a subsequent criminal proceeding. 288 Kan. 659, Syl. ¶ 3. The Supreme Court granted Long’s petition for review and remanded the case to the Court of Appeals for reconsideration in light of Youngblood pursuant to Supreme Court Rule 8.03(h)(2) (2009 Kan. Ct. R. Annot. 66).
Proof of criminal history
Long first claims the district court erred by overruling his objection to his criminal history. The parties agree this issue involves interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
We begin our analysis by reviewing the applicable statutes governing the determination of criminal history. All prior convictions must be included in a defendant’s criminal history unless they are an element of the present crime, enhance the severity level or applicable penalties, or elevate the classification of the present crime from a misdemeanor to a felony. K.S.A. 21-4710(d)(ll). The criminal history worksheet satisfies the State’s burden to prove a defendant’s criminal history unless the defendant contests the worksheet. K.S.A. 21-4715(b) and (c). If the defendant files a specific and timely objection to the criminal history, the State is required to produce further evidence to establish the disputed portion of the criminal history by a preponderance of the evidence. K.S.A. 21-4715(c).
When determining a defendant’s criminal history score, three person-misdemeanor convictions constitute one adult person-felony conviction:
“Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender’s criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.” K.S.A. 21-4711(a).
The issue here is whether Long’s prior person-misdemeanor convictions may be considered in the calculation of his criminal history score even though he was not represented by counsel when he was convicted of the misdemeanors.
Right to counsel in misdemeanor cases
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall have the right to the assistance of counsel for his or her defense. The Sixth Amendment right to counsel is made applicable to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 340-45, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963).
In Kansas, a defendant also has a statutory right to counsel in a prosecution in municipal court:
“If the municipal judge has reason to believe that if found guilty, the accused person might be deprived of his or her liberty and is not financially able to employ counsel, the judge shall appoint an attorney to represent the accused person.” K.S.A. 12-4405.
Long’s argument focuses entirely on his constitutional right to counsel and not on the statutory right. An issue not briefed by the appellant is deemed waived or abandoned. State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).
In Argersinger v. Hamlin, 407 U.S. 25, 33-37, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972), the United States Supreme Court held that in the prosecution for a misdemeanor offense, the right to counsel attaches in any case that actually leads to imprisonment. In this context, imprisonment includes incarceration in a county jail. In Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979), the Court held that a defendant has no right to appointed counsel in a misdemeanor case when the defendant receives a fine instead of a jad term at sentencing, even if the governing statute authorizes a jad sentence. According to the Court, whether actual imprisonment occurred defines the constitutional right to appointment of counsel in misdemeanor cases. 440 U.S. at 373-74. Thus, under Scott and Argersinger, the Court articulated an “actual imprisonment” rule for the necessity of appointed counsel in misdemeanor cases.
In Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994), the defendant was convicted of conspiracy to distribute cocaine and his sentence was enhanced based on a prior uncounseled misdemeanor conviction for which no prison term had been imposed. The Court held that, consistent with the Sixth and Fourteenth Amendments, if an uncounseled misdemeanor conviction is valid under Scott because no prison term was imposed, then the conviction also may be used to enhance a later sentence. 511 U.S. at 748-49.
In State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995), the Kansas Supreme Court embraced the actual imprisonment rule for uncounseled misdemeanors used to establish a defendant’s criminal history under the KSGA. In Delacruz, the defendant pled guilty to a felony, and his criminal history worksheet included three prior misdemeanor batteiy convictions. For two of the misdemeanor convictions, the court imposed a fine and no jail sentence. On the third misdemeanor conviction, however, the court imposed a fine and a sentence of 90 days in jail. 258 Kan. at 130-31.
Noting that two of the misdemeanor convictions were valid under Scott because the defendant did not serve any prison time, the court held that those convictions could be used to determine the defendant’s criminal history under the sentencing guidelines. 258 Kan. at 135. For the misdemeanor conviction that resulted in jail time, the Supreme Court remanded for the district court to determine whether the defendant had counsel or waived his right to counsel. The court held that unless the State could produce evidence that the defendant was either represented by counsel or waived counsel, the conviction was unconstitutional under Scott and could not be used in the defendant’s criminal history. 258 Kan. at 136.
In State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001), the defendant claimed he had received ineffective assistance of counsel at sentencing. To resolve this issue, the court analyzed whether three prior misdemeanor battery convictions were properly included in the defendant’s criminal history. In one of the prior convictions, the defendant had been ordered to and did serve jail time. In the other two prior convictions, the defendant had received a suspended sentence or probation and did not serve jail time. The court concluded that the prior conviction that resulted in jail time could not be counted for enhancement because the record did not show that the defendant had been represented by counsel or waived his right to counsel. 28 Kan. App. 2d at 789-91. As for the other two convictions, the court held that an uncounseled misdemeanor conviction involving a suspended sentence or probation that does not result in incarceration may be included in a defendant’s criminal history under the KSGA, even though the conviction has the effect of enhancing the defendant’s sentence under the guidelines. 28 Kan. App. 2d at 789.
Following these cases, the United States Supreme Court decided Alabama v. Shelton, 535 U.S. 654, 152 L. Ed. 2d 888, 122 S. Ct. 1764 (2002). In Shelton, the defendant was convicted of a misdemeanor and sentenced to serve 30 days in the county jail. However, the court suspended the sentence and placed the defendant on 2 years’ unsupervised probation, conditioned on his payment of court costs, a fine, reparations, and restitution. The defendant appealed his conviction and sentence, claiming a violation of his Sixth Amendment rights and arguing that his suspended sentence triggered his right to appointed counsel even though he remained on probation and had not been deprived of his liberty. The Alabama Supreme Court agreed and reasoned that a suspended sentence constitutes a “term of imprisonment” within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. 535 U.S. at 659. The Alabama court affirmed the defendant’s conviction and the monetary portion of his punishment but invalidated that aspect of the defendant’s sentence imposing suspended jail time. 535 U.S. at 659-60.
The United States Supreme Court affirmed the decision of the Alabama Supreme Court and held that a suspended sentence that may result in the actual deprivation of a person’s liberty may not be imposed unless the defendant was accorded “ ‘the guiding hand of counsel’.” in the prosecution for the crime. 535 U.S. at 658. In such an instance, the Court concluded the defendant is entitled to appointed counsel at the critical stage when his or her guilt or innocence of the charged crime is decided and vulnerability to imprisonment is determined. 535 U.S. at 674.
The Kansas Supreme Court analyzed the impact of Shelton in Youngblood. In Youngblood, the State charged the defendant with felony possession of marijuana based on a prior conviction of the same offense in municipal court. The defendant filed a motion to dismiss the felony charge. He argued that because the municipal court conviction was uncounseled and he had not waived his right to counsel, its use to enhance the current charge to a felony violated his Sixth Amendment right to counsel. The State conceded that the prior conviction was uncounseled but argued that the defendant had waived his right to counsel in municipal court. 288 Kan. at 660.
The district court conducted a hearing on the motion to dismiss and heard testimony from the municipal court judge, who stated that it was his practice to always discuss waiver of the right to counsel with defendants, but he had no independent recollection of the actual waiver discussion with this particular defendant. The municipal court judge also testified that he had sentenced the defendant to 6 months in jail on the possession of marijuana charge, but that he had placed the defendant on probation at the initial sentencing. 288 Kan. at 661. Ultimately, the district court denied the motion to dismiss. The district court interpreted the case law as requiring the actual service of jail time to trigger the Sixth Amendment right to counsel. Additionally, the district court found that the defendant had properly waived his right to counsel in municipal court. 288 Kan. at 661.
On appeal, the Kansas Supreme Court reversed. The court initially determined that the State has the burden of showing that an accused was advised of his or her right to counsel, either retained or appointed, and that the waiver of counsel was knowingly and intelligently made. Furthermore, the court noted that an accused’s waiver of the right to counsel may not be presumed from a silent record. 288 Kan. at 662. The court reviewed the evidence and determined that the State had failed to carry its burden of proving that the defendant was advised in municipal court of his right to counsel and that a waiver of counsel was knowingly and intelligently made. 288 Kan. at 665.
Next, the court considered the use of the defendant’s uncounseled misdemeanor conviction to enhance the current charge to a felony. The court determined the defendant was entitled to counsel when the municipal court found him guilty and sentenced him to a jail term, even though the jail time was suspended or conditioned upon a term of probation. The court found that the denial of the right to counsel rendered the defendant’s misdemeanor conviction in municipal court unconstitutional under the Sixth Amendment. Accordingly, the court concluded that the unconstitutional misdemeanor conviction could not be collaterally used in district court to enhance the defendant’s current charge to a felony. 288 Kan. at 670.
Application of Youngblood
Returning to our facts, Long’s municipal court sentences for his battery convictions are somewhat difficult to understand. Long was fined for each of his convictions, and the fines were suspended or reduced provided that payments were made in a timely manner. The municipal court did not impose a jail sentence upon Long for any of his convictions. However, Long’s sentence in each case referred to a 1-year probation, which was more akin to a suspended sentence since the court never imposed jail time. It is undisputed that the State failed to establish that Long’s municipal court convictions were counseled or that there was a waiver of counsel at the time his guilt was determined.
Pursuant to Youngblood, a person accused of a misdemeanor has a Sixth Amendment right to counsel at the stage of the proceedings where guilt is adjudicated if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. 288 Kan. 659, Syl. ¶ 2. Kansas has not abandoned the “actual imprisonment” rule, but the Supreme Court has determined that a suspended sentence or probation constitutes a term of imprisonment within the meaning of the rule, in accordance with the United States Supreme Court ruling in Shelton. Whether the defendant actually serves any time in jail is not the test to determine when the defendant is entitled to counsel. Here, Long’s sentence in each misdemeanor case included a 1-year probation. Because Long was sentenced to probation without counsel or having waived counsel at the time his guilt was adjudicated, his misdemeanor battery convictions were obtained in violation of his Sixth Amendment right to counsel. According to Youngblood, Long’s unconstitutional convictions may not be collaterally used for sentence enhancement or scored in his criminal history. See 288 Kan. 659, Syl. ¶ 3.
The State attempts to distinguish Long’s case from Youngblood. In Youngblood, the defendant initially received an underlying jail sentence, which was suspended with probation. 288 Kan. at 670. Long received probation as well, but the district court never specified the underlying jail term. However, this distinction is insignificant. Youngblood makes it clear that a person accused of a misdemeanor has a Sixth Amendment right to counsel at the stage of the proceedings where guilt is adjudicated if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. Had Long received only a fine without any term of probation, his misdemeanor convictions would not have triggered his constitutional right to counsel. But because Long was placed on probation in each misdemeanor case, he was entitled to counsel at the stage of the proceedings where his guilt was adjudicated, even though his incarceration was not immediate or inevitable. See 288 Kan. 659, Syl. ¶ 2; Shelton, 535 U.S. at 659-60. .
In summary, because Long was sentenced to probation in No. 95 MCR 1386 and No. 96 MCR 0061 without counsel or having waived counsel at the time his guilt was adjudicated, his misdemeanor battery convictions were obtained in violation of his Sixth Amendment right to counsel and should not have been scored in his criminal history. We do not need to address whether Long’s uncounseled misdemeanor convictions resulted in incarceration when he was subsequently ordered to serve jail time for contempt of court. Also, we do not reach Long’s claim that his constitutional rights were violated because his criminal history was not proven to a jury beyond a reasonable doubt. Long’s sentence is vacated, and the case is remanded for resentencing without including his misdemeanor battery convictions in his criminal history score.
Vacated and remanded. | [
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